MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1521/H46-32

6 March 2025

1521st meeting, 4-6 March 2025 (DH) Human rights   H46-32 Kavala v. Türkiye (Application No. 28749/18) Supervision of the execution of the European Court’s judgments Reference documents CM/Del/Dec(2024)1514/H46-37; DH-DD(2025)5; DH-DD(2025)158

 

Application	Case	Judgment of	Final on	Indicator for the classification
28749/18	KAVALA	10/12/2019 11/07/2022 (46 § 4)	11/05/2020 Grand Chamber	Complex problem and urgent individual measures

Case description

The applicant in the Kavala case was arrested on 18 October 2017 and placed in pre-trial detention, accused of attempting to overthrow the government within the context of the Gezi Park events of 2013 (Article 312 of the Criminal Code (CC)) and to overthrow the constitutional order within the context of the attempted coup in July 2016 (Article 309 of the CC).

The Court found on 10 December 2019 thatthis arrest and pre-trial detention took place in the absence of evidence to support a reasonable suspicion he had committed an offence (violation of Article 5 § 1 of the Convention) and also that they pursued an ulterior purpose, namely to silence him and dissuade other human rights defenders (violation of Article 18 taken in conjunction with Article 5 § 1). The Court in addition held that the length of time taken by the Constitutional Court to review the applicant’s complaint about his detention (one year, four months and 24 days) was insufficiently “speedy”, given that his personal liberty was at stake (violation of Article 5 § 4).

The Court indicated under Article 46 that the nature of the violation left no real choice as to the measures required to remedy it, and that any continuation of the applicant’s pre-trial detention would entail a prolongation of the violation of Article 5 § 1 and of Article 18 in conjunction with Article 5 § 1, as well as a breach of the obligations on respondent States to abide by the Court’s judgments in accordance with Article 46 § 1 of the Convention. It therefore held that the government was to take every measure to put an end to the applicant’s detention and to secure his immediate release. 

However, the applicant was not released, and the Committee thus referred to the Court, in accordance with Article 46 § 4 of the Convention, the question whether Türkiye had failed to fulfil its obligation under Article 46 § 1, with particular regard to the Court’s indication under Article 46 and the individual measures required.

In the Kavala (Article 46 § 4) judgment, issued on 11 July 2022, the Grand Chamber found that Türkiye had failed to fulfil its obligation under Article 46 § 1. The Court considered that the measures indicated by Türkiye did not permit it to conclude that the State Party had acted in “good faith”, in a manner compatible with the “conclusions and spirit” of the Kavala judgment, or in a way that would make practical and effective the protection of the Convention rights which the Court found to have been violated in that judgment.

Status of execution

Individual measures

Main developments in the judicial proceedings

On 25 April 2022, the Assize Court convicted the applicant and sentenced him to aggravated life imprisonment for attempting to overthrow the government by force (Article 312 of the CC) and acquitted him of the charges under Article 328 of the CC concerning espionage. As for the charges under Article 309 of the CC for the offence of attempting to overthrow the constitutional order, the Assize Court decided that, taken as a whole, the applicant’s actions constituted only the offence under Article 312.

On 9 June 2022, the applicant lodged an application with the Constitutional Court, complaining about the unlawfulness of his detention following conviction. These proceedings are pending.

On 28 December 2022, the 3^rd Regional Appeal Court upheld the judgment of the Assize Court.

On 28 September 2023 the Court of Cassation upheld the Assize Court’s judgment. The applicant’s conviction for attempting to overthrow the government by force (Article 312 of the CC) and sentence to aggravated life imprisonment thus became final.

On 24 October 2023, the applicant introduced a further complaint before the Constitutional Court concerning his final conviction. In particular, he claimed that his right to liberty and security, right to fair trial, right to respect for private and family life, freedom of expression, freedom of assembly and association, the principle of “no punishment without law”, as well as prohibition of ill-treatment were violated on account of his conviction and his ongoing detention. This application is also pending before the Constitutional Court.

On 18 January 2024 the applicant lodged a new application with the European Court complaining under various articles of the Convention about the criminal proceedings that led to his final conviction. The Court gave notice of this application to the government on 21 March 2024.

The most recent communication of the authorities (DH-DD(2025)5)

The authorities, referring to their previous submissions on the outcome of domestic proceedings and the applicant’s pending complaints before the Constitutional Court and the European Court, noted that the government assumes its responsibilities as a respondent State and maintains close cooperation with the Committee of Ministers. In this respect, they recalled the high-level technical contacts that took place to ensure implementation of the Kavala judgment, including meetings held by former chairs of the Committee at Ministerial and Deputy Ministerial levels; the Secretary General’s visit to Türkiye in November 2023; the first and second high-level technical meetings between the Director General of Human Rights and Rule of law and the competent authorities in February and October 2024; the Co-Rapporteur of the Parliamentary Assembly’s visit in June 2024; and the Council of Europe Commissioner for Human Rights’ visit to Türkiye in November 2024.

The authorities noted that they remain open and ready for co-operation with the bodies of the Council of Europe and consultations with the Secretariat are underway for a new technical meeting to be held in May 2025.

Action taken by the Committee of Ministers

A more complete description of the action taken by the Committee of Ministers, its Chair and other Council of Europe bodies since the European Court delivered the Kavala (Article 46 § 4) judgment on 11 July 2022 can be found in the Notes prepared for the 1514^th meeting.[1] The individual measures relating to the applicant’s detention are examined at every regular and human rights (DH) meeting of the Committee of Ministers.

In its last decision adopted at its 1514^th (December 2024) (DH)^[2] meeting, the Committee welcomed the second high-level technical meeting held in Ankara on 24 October 2024 to discuss a number of avenues available for the implementation of the Kavala judgment, followed by the Secretariat’s visit to Mr Kavala in prison; and it encouraged the authorities to continue this constructive approach and their high-level technical dialogue with the Secretariat.

The Committee took note of the three main avenues identified by the Secretariat following the above meetings as having a realistic chance of bringing results in line with the European Court’s judgments, by providing a procedural possibility for a retrial and acquittal, as well as provisional release pending such a retrial (see further below). Recalling its previous decisions and that implementation of the Court’s judgments is a shared responsibility of all authorities, including the judiciary, the Committee once again strongly exhorted the authorities to take all steps in their power to ensure the use of all available avenues to ensure the applicant’s immediate release, including the rapid examination by the Constitutional Court of the applicant’s pending applications, with full regard to the Court’s findings, particularly under Articles 18 and 46 § 4 of the Convention. Lastly, the Committee urged the Turkish authorities to give full consideration to pursuing a friendly settlement of Mr Kavala’s case pending before the European Court.

Rule 9.1 communication from the applicant (DH-DD(2025)158)

The applicant’s representatives reiterated their previous submissions^[3] and informed the Committee that there have been no developments concerning Mr Kavala’s release or his two applications pending before the Turkish Constitutional Court.

Recalling the Court’s findings under Article 18 that the applicant’s arrest and detention three years after the Gezi events pursued an ulterior purpose, the applicant’s representatives indicated that recently, twelve years after the Gezi Park protests and six years after the European Court’s 2019 Kavala judgment, further people have been arrested and placed in detention for “attempting to overthrow the government”. They referred in particular to the arrest of a person who had been allegedly engaged in “intense communication with Mr Kavala” concerning the Gezi Park protests. Mr Kavala made a press statement on 7 February 2025, stressing that, since his phones were tapped, the prosecutor’s office should have been aware that communication between himself and this person began only after the Gezi protests had ended. The applicant’s representatives argue that these developments have significant negative repercussions for the execution of the Kavala judgment, in view of the authorities’ characterisation of the Gezi events as an integrated activity planned, organised, led and financed by Mr Kavala with the aim of overthrowing the government.

As regards Mr Kavala’s second application with the European Court, lodged in January 2024 after the Court of Cassation upheld his conviction, the applicant’s representatives stressed once again that this does not affect the ongoing obligations of the Turkish authorities to fully implement the existing two Kavala judgments.

Finally, the applicant’s representatives called on the Committee to: (1) invite the authorities to produce a new, urgent individual measures action plan which provides a clear timeline as to when and how Mr Kavala will be released; (2) instigate the Complementary Joint Procedure.

Rule 9.2 communication from the Turkey Human Rights Litigation Support Project, Human Rights Watch (DH-DD(2025)98, and Freedom of Expression Association (“İFÖD”) (DH-DD(2025)205)

The NGOs reiterate the urgent need for the immediate release of Mr Kavala and to fully comply with the European Court’ ruling without further delay. They consider that there is a connection between non-implementation of the Kavala judgment and the Constitutional Court’s delay in examining Mr. Kavala’s pending applications.

In their reply (DH-DD(2025)209, the authorities reiterated their previous submissions, in particular that the applicant’s conviction became final, and he is in detention after conviction. They further referred to the proceedings pending before the Constitutional Court and the European Court introduced by the applicant. Lastly, the authorities pointed out that they always maintain a constructive co-operation within the context of the supervision of the present case.

General measures

During its last examination of the general measures at the September 2024 (DH) meeting, the Committee recalled the Court’s findings under Article 5 § 4 of the Convention regarding the length of proceedings before the Constitutional Court and invited the authorities to take result-oriented measures with particular focus on expediating the examination by the Constitutional Court of priority cases concerning the deprivation of liberty, including introduction of time-limits for such cases to ensure compliance with the Convention requirements.

Regarding the Court’s findings of a violation of Article 18 in conjunction with Article 5 of the Convention, the Committee recalled its previous decisions strongly urging the Turkish authorities to take all legislative and other measures to ensure independence of the judiciary, in particular by securing the structural independence of the Council of Judges and Prosecutors from the executive, and deeply regretted once again the absence of any progress on this issue. The Committee further noted – at that point in time – the forthcoming Opinion of the Venice Commission on the Turkish legislation concerning the composition of the Council of Judges and Prosecutors and the election procedure of its members and encouraged the authorities to take inspiration from the relevant Council of Europe material and to pursue the technical dialogue with the Secretariat on this issue with a view to identifying the legislative and other measures that are required to achieve progress in ensuring independence of the judiciary.

Length of proceedings before the Constitutional Court

The authorities reiterated their argument that the Court’s finding of a violation in the present case was of an isolated nature. Despite the increasing number of applications, the Constitutional Court decided on 83.3% of the total number of applications introduced since 2012. Applications concerning unlawful or lengthy detention are given priority and directly assigned to a rapporteur who conducts an examination of admissibility within one month. If the complaint is found serious, the application is referred to a section for substantive examination.

Independence and Impartiality of the Judiciary

The Turkish authorities reiterated their previous submissions, in particular that the legislation fully ensures the independence and impartiality of the judiciary. Pointing out that every member State has its own system based on its legal culture and traditions, the authorities explained that in Türkiye the independence of the judiciary is mainly guaranteed by the Constitution, Law No. 6087 on the CJP, and Law No. 2802 on Judges and Prosecutors. Judges are independent; no organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations, or suggestions. Attempting to influence judges, experts or witnesses is a criminal offence.

 

The Constitutional amendment in 2017 had changed the election procedure for the CJP by involving the Turkish Grand National Assembly. The National Assembly elects three members of the CJP from the judges of the Court of Cassation, one member from the judges of the Council of State, and three members from academia and lawyers with specific qualifications laid down in law. The constitutional amendment had ensured that the structure of the CJP is based on the principles of independence and impartiality and addresses the Venice Commission’s criticism in the “Interim Opinion on the draft Law on the High Council of Judges and Prosecutors of 27 September 2010”. In the 2021 elections, seven members of the CJP were supported by 450 of 470 members of the Parliament, which indicated that the CJP was composed by consensus. On 31 January 2024 another election was held at the Parliament for the appointment of one of the academic members. As no agreement could be reached, he was selected by lot. According to the authorities, this demonstrated that the government cannot determine the election of a specific candidate without reconciliation.

Three high-level political messages of the President in September and December 2024 and three messages of the Minister of Justice delivered in December 2024 on various occasions demonstrated the importance and support given to the independence and impartiality of the judiciary by the executive.

Venice Commission’s Opinions on the independence of judiciary

In March 2017, the Venice Commission examined the possible effects of the Constitutional amendments on the judicial independence and found that the proposed composition of the CJP was extremely problematic and could place the independence of the judiciary in serious jeopardy, because it is the main self-governing body overseeing appointment, promotion, transfer, disciplining and dismissal of judges and public prosecutors.^[4]

On 6-7 December 2024, the Venice Commission^[5] adopted its “Opinion on the Composition of the Council of Judges and Prosecutors and the Procedure for the Election of its Members”.^[6] It noted that “following the attempted coup of 2016 and the ensuing reforms of 2017/2018, many cases of dismissals, transfers, promotions and appointments of judges and prosecutors were reported and argued to be implemented following strategic political reasons, in disrespect of judicial independence.

Out of the approximately 11.000 judges and prosecutors in office at the time of the reforms, about one third was dismissed. Reportedly, this generated a widespread climate of fear and submission in the judicial system. Moreover, during the last six years, not only had the dismissed judges to be replaced, but the overall number of judges was increased to about 25.000, requiring the recruitment of many young and often (perceived as) inexperienced judges. Public trust in the judiciary is consequently heavily affected.” (§19)

Recalling that following the constitutional reform of 2017, Türkiye changed from a parliamentary to a presidential system where the President combines the functions of head of state and head of government, embodying the executive power and being actively engaged in party politics, the Venice Commission stated that the four members of the CJP appointed by the President of the Republic were therefore to be considered as political appointees and could not be considered as “judicial members” according to international standards. It further pointed that the majority of the seven members elected by the National Assembly were likely to be of the same political persuasion as the President of the Republic, especially given that parliamentary elections are held at the same time as presidential elections. Finally, the Venice Commission underlined that, as the President of the Republic also appoints the two ex officio members, the executive could de facto choose at least ten out of 13 members of the CJP, thus exerting a strong political influence on the judiciary (§ 118). Recalling that only an independent judicial council, whose functioning is shielded from interference by the executive and legislative powers, can guarantee the independence of the judiciary, the Venice Commission recommended, among others, “modifying the relevant constitutional and legislative provisions in order to establish a system where at least half of the members of the CJP are judges and prosecutors elected by the different levels of the judicial system and ensuring an appropriate level of diversity in terms of gender, minorities, and geographical coverage, excluding the President of the Republic from the selection procedure, except for a purely formal role of appointment, as well as the National Assembly, as far as judicial (and prosecutorial) members are concerned.” 

Judicial Reform Strategy

According to publicly available information on the Ministry of Justice’s website, the Judicial Reform Strategy (2025 and 2029) announced on 23 January 2025 includes as one of its aims “to reconsider the structure of the CJP and judicial bodies”.

Rule 9.2 communication from the Turkey Human Rights Litigation Support Project, Human Rights Watch (DH-DD(2025)98, and Freedom of Expression Association (“İFÖD”) (DH-DD(2025)205)

The NGOs notably argues that the failure of domestic courts to implement the Kavala judgment not only constitutes a violation of Türkiye’s international legal obligations but also undermines its own constitutional order, and that Türkiye should undertake comprehensive judicial reforms to ensure the independence of the judiciary, particularly by restructuring the Council of Judges and Prosecutors to eliminate executive influence. In this respect, they refer to the Venice Commission’s recent Opinion and argue that the current election system of the CJP creates a structure where executive and legislative influences dominate the judiciary, including the supreme courts and the Constitutional Court, and lacks safeguards required for it to function independently and impartially.

In their reply (DH-DD(2025)209, the authorities recalled that the principle of independence and impartiality of the judiciary is a fundamental rule in Turkish legal system, guaranteed by the Constitution and relevant legislation. They reiterated that structure of judicial councils varies between member States. The authorities lastly noted that they would not like to comment on the allegations falling out of the scope of the present judgment and that are of speculative nature.

Analysis of the Secretariat  

Individual measures

The Court’s initial judgment in the Kavala case became final in May 2020 and its judgment on the proceedings under Article 46 § 4 was delivered in July 2022. Mr Kavala has been unlawfully deprived of his liberty for an ulterior purpose since October 2017. In its Article 46 § 4 judgment, the Court considered that the measures indicated by Türkiye did not permit it to conclude that the State Party acted in “good faith”, in a manner compatible with the “conclusions and spirit” of the Kavala judgment, or in a way that would make practical and effective the protection of the Convention rights which the Court found to have been violated in that judgment (§173). It reiterated that the violation of Article 18 taken together with Article 5 had vitiated any action resulting from the charges related to the Gezi Park events and the attempted coup (§ 172).

In view of the above, the Committee found that Türkiye remains in serious breach of its obligations under the Convention and the principles of the rule of law until Mr Kavala is released.

At its last meeting in December 2024 (DH), the Committee took note of the three main avenues identified by the Secretariat following the second high-level technical meeting of October 2024, as having a realistic chance of bringing results in line with the European Court’s judgments, by providing a procedural possibility for a retrial and acquittal, as well as provisional release pending such a retrial. These were 1) a Convention-compliant ruling of the Turkish Constitutional Court in respect of one or both of Mr Kavala’s pending applications; 2) conclusion of Mr Kavala’s application currently pending before the European Court; 3) a friendly settlement of Mr Kavala’s current application to the European Court, or a unilateral declaration by the government in respect of it. Both the first and third avenues could lead to the reopening of proceedings according to Turkish law.[7]

As regards the applicant’s two cases pending before the Constitutional Court (first avenue), it is recalled that these were introduced in 2022 and 2023. The Committee has been regularly urging the authorities to ensure their rapid examination by the Constitutional Court. Reiterating that the implementation of the Court’s judgments is a shared responsibility of all authorities, including the judiciary, the Committee could once again urge the authorities to ensure that the Constitutional Court decides those applications promptly and taking full account of the Court’s reasoning under Articles 18 and 46 § 4 of the Convention.

However, in the absence of progress in the proceedings before the Constitutional Court, a friendly settlement could be the avenue likely to offer the chance of the quickest result. Moreover, friendly settlement of cases is a procedure commonly employed by the Turkish authorities in cases concerning notably Article 6 of the Convention.[8] Following this reasoning, the Committee at its examination at the December 2024 DH meeting urged the Turkish authorities to give full consideration to pursuing a friendly settlement of Mr Kavala’s case pending before the European Court.

The authorities’ expression of continued openness to cooperation, in particular for a new technical meeting in May 2025, could be noted with interest. In addition, the Committee could stress that any further high level technical meeting between the authorities and the Secretariat should aim to achieve swift, concrete, and result-oriented progress towards ensuring Mr Kavala’s immediate release by all available means, inter alia friendly settlement of the new Kavala case pending before the Court, with a view to honouring Türkiye’s unconditional obligation under the Convention to comply with the European Court’s two judgments.

General measures

The information provided by the authorities in reply to the Committee’s decisions mainly reiterates arguments which the Committee has already examined.

Independence and impartiality of the judiciary

The Committee has been regularly[9] making reference to the Court’s findings under Article 18 and the applicant’s ongoing detention, to stress the need for the authorities to take adequate legislative and other measures to protect the judiciary and ensure that it is robust enough to resist any undue influence, including from the executive branch. It specified[10] that the measures needed concerned in particular the structural independence of the CJP,[11] in line with the Committee’s practice in other cases with similar violations of Article 18.[12] In March 2023, the Committee deeply regretted the apparent lack of will to acknowledge the need for legislative and other measures to bring the structure of the CJP into line with the Council of Europe standards.

The Venice Commission’s most recent Opinion clearly confirms the ongoing nature of the shortcomings of the current structure of the CJP and their effect on the judiciary. The composition of the CJP must be such as to guarantee the conditions of independence and impartiality for the exercise of its powers.

While it is a matter of regret that the authorities have made no reference to the Venice Commission’s recent Opinion and recommendations on the need for change in the structure and election system of the CJP, the Committee could take note with interest that one of the aims of the Judicial Reform Strategy announced on 23 January 2025 is “to reconsider the structure of the CJP and judicial bodies”.

Against this background, the Committee may wish to strongly urge the authorities to proceed with the adoption of legislative and other measures to protect the judiciary and ensure that it is robust enough to resist any undue influence, including from the executive branch, in the context of the implementation of the Judicial Reform Strategy and taking inspiration from the Venice Commission’s recommendations in particular regarding the structure and election mechanism of the CJP.

Length of proceedings before the Constitutional Court

At its last examination of this issue, the Committee invited the authorities to take result-oriented measures with particular focus on expediting the examination by the Constitutional Court of priority cases concerning the deprivation of liberty, including introduction of time-limits for such cases to ensure compliance with the Convention requirements. It is a matter of regret that no measures have been taken or envisaged to strengthen the existing system of priority at the Constitutional Court, in particular for cases concerning deprivation of liberty. The authorities’ arguments on the isolated nature of the violation and the existing system of priority for cases concerning allegations of unlawful or lengthy deprivation of liberty are not convincing, in particular bearing in mind that the applicant’s two individual complaints before the Constitutional Court are pending since 9 June 2022 and 24 October 2023 (see status of execution above). Furthermore, a similar delay in proceedings is observed in another Article 18 case against Türkiye examined by the Committee, where the applicant’s complaint before the Constitutional Court regarding his pretrial detention has been pending since 7 November 2019.[13]

The Court has very strict standards concerning the State’s compliance with the requirement of speedy review of the lawfulness of detention where an individual’s personal liberty is at stake (§ 192). While the Constitutional Court applies its own priority criteria for examining cases pending before it, the authorities could be invited to consider reviewing the internal regulations of the Constitutional Court in the light of the Convention standards so as to extend its priority criteria to cases pending execution before the Committee of Ministers, notably those requiring urgent individual measures, including for violations concerning deprivation of liberty, such as in the present case. The Committee could furthermore urge the authorities to take result-oriented measures to ensure that the existing priority criteria are applied with due diligence for all cases without any exception. 

Financing assured: YES