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MINISTERS’ DEPUTIES |
Notes on the Agenda |
CM/Notes/1419/H46-38 |
2 December 2021 |
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1419th meeting, 30 November – 2 December 2021 (DH) Human rights
H46-38 Kavala v. Turkey (Application No. 28749/18) Supervision of the execution of the European Court’s judgments Reference documents ,DH-DD(2021)1212, H/Exec(2021)10, CM/Del/Dec(2021)1411/H46-37 |
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Application |
Case |
Judgment of |
Final on |
Indicator for the classification |
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 Turkish Criminal Code (TCC)) and to overthrow the constitutional order within the context of the attempted coup in July 2016 (Article 309 TCC).
The Court found that this 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 it 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.
Status of execution
Individual measures
A more complete description of the developments since the European Court’s examination can be found in the notes prepared for the 1377bis and 1411th DH meetings and in the information document prepared by the Secretariat (H/Exec(2021)10).
At its last Human Rights meeting (1411th, 14-16 September 2021), the Committee considered that the failure of the Turkish authorities to remove the negative consequences for the applicant of the violations found by the Court, in particular to ensure the applicant’s immediate release, despite the Committee’s repeated appeals, suggests a refusal by the respondent State to abide by the final judgment of the Court in the present case. The Deputies decided, therefore, in the light of their previous decisions, in particular the decisions adopted at the 1406th meeting (June 2021) (DH), that it is necessary, in order to ensure the implementation of the judgment, to make use of proceedings under Article 46 § 4 of the Convention, and expressed their resolve to serve formal notice on Turkey of their intention to commence those proceedings in accordance with Article 46 § 4 of the Convention at the present meeting, in the event that the applicant is not released before then.
Subsequently the domestic court reviewed the applicant’s detention on 27 September and 5 November, and on 8 October 2021 when it also held a hearing in the criminal case and, on each occasion by two votes to one, decided to maintain his detention. The next hearing in the criminal trial at which the applicant’s detention will also be reviewed is scheduled for 26 November 2021.
At the hearing in the criminal trial on 26 November 2021, the Assize Court reviewed the applicant’s detention and decided not to release him by two votes to one. The next hearing is scheduled for 17 January 2022.
In their most recent submissions (DH-DD(2021)1212), the authorities provided information on the current state of the domestic proceedings and reiterated their previous submissions, arguing that the applicant’s detention for the offences examined by the Court ended on 18 February 2020 and that he is currently in pre-trial detention in respect of another charge, namely “political or military espionage” (Article 328 TCC).
Rule 9.1 submissions (DH-DD(2021)1037, DH-DD(2021)1094, DH-DD(2021)1187)
In his submissions, the applicant mainly claimed that the court’s decision to dismiss his request for release at the hearing on 8 October was unlawful and erroneous which showed that his continuing detention was based on ulterior motives. He referred to several recent speeches made by high level State authorities against him and argued that such statements put pressure on the judiciary and were indications of repeated violations of Article 18.
The applicant also submitted an English translation of the defence statements he made before the trial court during the hearing on 8 October 2021 (DH-DD(2021)1037). He mainly argued that his detention was not based on any evidence and that the chronology of events seemed “to indicate the presence of an intervention in the judiciary process and a politically tainted judiciary”. The applicant denied all charges and explained how the “material presented did not qualify as evidence of crime”. He argued that prolonging his detention on “flimsy grounds was extrajudicial execution and a move to bypass the Court’s judgment”.
Rule 9.2 submissions (DH-DD(2021)1257)
In its submissions on 15 November 2021 İFÖD noted that they have been monitoring the Gezi trial and their legal team attended all hearings. The NGO noted that during the hearing on 8 October the applicant’s representatives referred to the Court’s judgment and the Committee of Ministers’ decisions which had not been taken into account by the prosecution who requested the continuation of the applicant’s detention. İFÖD argued among other issues, that the reasoning of the domestic court in dismissing the applicant’s request to be released was similar to the previous reasonings. The NGO claimed that statements of high-level state officials, appeared to be strongly leading to the continuation of the applicant’s detention.
Authorities’ replies (DH-DD(2021)1257, DH-DD(2021)1187)
In their response to both Rule 9 communications, the Turkish authorities argued that contrary to the applicant’s allegations, his trial was ongoing in line with the domestic law and procedure. They further referred to relevant provisions of the Constitution on the rule of law and judicial independence and indicated that “the independent courts will make the necessary examinations and decide on this issue”. The authorities reiterated their argument that the subject matter of the judgment at hand was the applicant’s acts in relation to the Gezi Park events whereas his current detention was ordered under different criminal proceedings, notably the offence of political or military espionage. In this respect, according to the authorities the applicant’s detention which was the subject matter of the judgment has already ended.
General measures
At its last human rights meeting (1411th), the Committee reiterated its call upon the Turkish authorities to take legislative and other measures to ensure the full independence and impartiality of the Turkish judiciary, including from the executive branch, taking inspiration from the Council of Europe standards, in particular as regards the structural independence of the Council of Judges and Prosecutors.
In response, the authorities reiterated their previous submissions.
Analysis by the Secretariat
Recent developments before the domestic courts following the Committee’s last decisions do not indicate progress towards meeting the obligation of restitutio in integrum. On the contrary, the domestic courts decided to maintain the applicant’s detention during the judicial reviews of 27 September and 5 November, and at the hearings held on 8 October and 26 November 2021. The applicant’s objections to these decisions were also dismissed. At the time of drafting these Notes the applicant was still detained.
As the European Court has underlined, failure to implement a final, binding judicial decision would be likely to lead to situations incompatible with the principle of the rule of law and the obligations which the Contracting States undertook to respect when they ratified the Convention. Rapid and full execution of the Court’s judgments is vital, for the protection of the applicant’s rights and as the Court’s authority and the system’s credibility both depend to a large extent on the effectiveness of this process.
Therefore, in the light of its decision adopted at the September DH meeting and in view of the fact that the applicant has not yet been released, it now appears necessary for the Committee to serve formal notice of its intention to commence the proceedings under Article 46 § 4 of the Convention. For this purpose, the Committee may consider adopting the appended interim resolution.
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Financing assured: YES |