MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-37

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-37 Kavala v. Türkiye (Application No. 28749/18) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)1325, CM/Del/Dec(2024)1507/H46-37

 

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 Turkish Criminal Code (TCC)) and to overthrow the constitutional order within the context of the attempted coup in July 2016 (Article 309 of the TCC).

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

In line with its previous decisions, the Committee of Ministers is examining only the individual measures at the 1514th meeting (3-5 December 2024) (DH); general measures will be examined in March 2025.[1]

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 TTC) and acquitted him of the charges under Article 328 of the TCC concerning espionage. As for the charges under Article 309 of the TCC 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 TCC) 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

The authorities (DH-DD(2024)1325), 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 high-level technical meeting between the Director General of Human Rights and Rule of law and the competent authorities in February 2024; the Co-Rapporteur of the Parliamentary Assembly’s visit in June 2024; and most recently the Council of Europe Commissioner for Human Rights’ visit to Türkiye in November 2024.

The authorities also referred to the second high-level technical meeting held on 24 October 2024 in Ankara, with a delegation of high-level representatives of domestic authorities, including the Council of Judges and Prosecutors, the Constitutional Court, the Court of Cassation, the Ministry of Justice, and the Ministry of Foreign Affairs, during which issues concerning the execution of the judgment at hand were discussed in a comprehensive manner. The representatives of the Secretariat also met with the Deputy Minister of Justice.

The authorities lastly noted that they remain open and ready for co-operation with the bodies of the Council of Europe.

Action taken by the Council of Europe

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 1483^rd meeting.[2] 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 1507^th (September 2024) (DH)[3] meeting, the Committee expressed its deepest regret and concern that the applicant continues to be detained despite the European Court’s findings in its two judgments that the criminal proceedings against him constituted a misuse of the criminal justice system, undertaken for the purpose of reducing him to silence, and that by keeping him detained, Türkiye has failed to fulfil its binding obligation under Article 46 § 1. It invited member States and the Secretary General to underline this issue in their bilateral contacts with the Turkish authorities. Noting the second high level technical meeting due to take place in Türkiye on 24 October 2024, the Committee stressed the urgent need for the authorities to use this meeting to bring forward concrete and result-oriented proposals to ensure full implementation of the Kavala judgment. Lastly, the Committee recalled that implementation of the Court’s judgments is a shared responsibility of all authorities, including the judiciary, and the Constitutional Court has the competence to put an end to the applicant’s detention by rapidly examining his applications with full regard to the Court’s findings, particularly the reasoning under Articles 18 and 46 § 4 of the Convention. In this respect, the Committee expressed deep regret that the Constitutional Court has still not examined the applicant’s individual complaints and strongly exhorted, once again, all relevant Turkish authorities, including the judiciary, to take concrete steps to ensure the applicant’s immediate release, through any means available to them.

During the above-mentioned second high-level technical meeting between the Secretariat and the Turkish authoritiesin Ankara on 24 October, a number of avenues available for the implementation of the Kavala case were discussed in detail. Also, on 25 October 2024 and for the first time, the Secretariat was able to visit Mr Kavala in prison.

The Council of Europe Commissioner for Human Rights conducted a visit to Türkiye between
4-8 November 2024, during which he met representatives of the various authorities, as well as Mr Kavala in prison.

Analysis of the Secretariat

The second high-level technical meeting in Ankara of 24 October 2024, followed by the Secretariat’s visit to Mr Kavala in prison, could be welcomed, as signs of a constructive approach by Turkish authorities. The Committee could encourage the authorities to continue this constructive approach and their high-level technical dialogue with the Secretariat.

Following from these meetings, the Secretariat has formed the conclusion that, although other avenues to ensure Mr Kavala’s release may exist in theory, there are only three possibilities with a realistic chance of bringing results, through the procedural possibility for a retrial which could result in an acquittal, in line with the European Court’s judgments, as well as provisional release pending such a retrial.

The first possible legal avenue to a retrial would be a Convention-compliant ruling of the Turkish Constitutional Court in respect of one or both of Mr Kavala’s pending applications. This has been called for by the Committee and it remains a prime avenue. If the Constitutional Court were to find in Mr Kavala’s favour, it could remit his case to the Assize Court for retrial, with or without an indication for his release pending the retrial. Once seized of the case, the Assize Court could also decide to release Mr Kavala pending the proceedings. However, during the meeting in Ankara, the Secretariat was informed that although Mr Kavala’s applications are given priority because he is imprisoned, no additional level of priority accrues from the fact of the European Court’s findings of violation. Given the heavy case-load of the Constitutional Court, it is therefore unfortunately unclear when Mr Kavala’s applications will be determined.

The second possible legal avenue to a retrial would be the conclusion of Mr Kavala’s application currently pending before the European Court. If the Court were to find that his trial was unfair, in breach of Article 6 of the Convention, Mr Kavala would then have the right under Turkish law to request reopening of the criminal proceedings and his release pending proceedings. The Assize Court could then, either ex officio or upon the applicant’s request, decide to release him pending reopened proceedings.

The third possible legal avenue to a retrial would be a friendly settlement of Mr Kavala’s current application to the European Court, or a unilateral declaration by the government in respect of it. If accepted by the Court as a ground to strike out the application, a friendly settlement or unilateral declaration are both grounds recognised by Turkish legislation to allow the applicant to request reopening of proceedings before the Assize Court.[4]

It should be noted in this connection that strikeouts on the basis of the friendly settlement of applications concerning complaints under Article 6 of the Convention against Türkiye are not unusual in the European Court’s practice.[5] In the Secretariat’s view, this avenue could present the quickest route to a reopening, and would therefore be worth exploring. The Committee might therefore wish to urge the Turkish authorities to give full consideration to pursuing a friendly settlement of Mr Kavala’s case, on terms which would give him the best chance of a rapid release and acquittal.

Financing assured: YES