DECLASSIFIED[1]

AS/Mon (2024) 16

11 September 2024

amondoc16 2024                                                                                                                                                                                     

or. Engl.

Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)

The honouring of obligations and commitments by Türkiye

Information note following the fact-finding visit (11-14 June 2024)

Co-rapporteurs: Mr Stefan Schennach (Austria, SOC) and Ms Jill Mortimer (United Kingdom, EC/DA)

1. Introduction

1.         On 12 October 2022, the Parliamentary Assembly adopted Resolution 2459 (2022) on “The honouring of obligations and commitments by Türkiye”[2], in the framework of a mid-term review of the monitoring procedure. The Assembly focused mainly on implementation of judgments of the European Court of Human Rights (“the Court” or “ECtHR”), including in the cases of Messrs Osman Kavala[3] and Selahattin Demirtaş[4], the independence of the judiciary, challenges to the rule of law and the preparation of the 2023 parliamentary and presidential elections.[5]

2.         On 12-13 January 2023, the previous co-rapporteurs for Türkiye – Messrs John Howell (United Kingdom, EC/DA) and Boriss Cilevičs (Latvia, SOC) undertook a fact-finding visit to the country in order to meet with Mr Osman Kavala, who remained in detention on remand, and to discuss his situation with the authorities. The findings of that visit are included in the previous co-rapporteurs’ information note of January 2023.[6]

3.         Since then, the political situation in Türkiye evolved with the 2023 presidential and parliamentary elections and the local elections of 31 March 2024. The organisation of a new fact-finding visit had been postponed a few times due to these political developments and also due to changes in the rapporteurship.[7] Finally, a fact-finding visit had been fixed for 11-14 June 2024 but unfortunately the co-rapporteur, Ms Mortimer, could not take part in it due to the general election scheduled in the United Kingdom for 4 July 2024.

4.         During the visit, I met all political groups and committees on Human Rights Inquiry and on Justice at the Grand National Assembly, the Türkiye’s delegation to the Assembly, deputy Ministers of Justice and of Foreign Affairs, judges at the Constitutional Court, Chief Public Prosecutor at the Court of Cassation, different NGOs and the diplomatic community. Moreover, I visited the Sincan (Ankara), Marmara (Istanbul) and Edirne prisons. In the Sincan prison, I met with Mr Murat Arslan; in the Marmara prison, with Messrs Osman Kavala and Bekir Kaya, and in the Edirne prison – with Mr Selahattin Demirtaş. While in Istanbul, I also talked to Mr Kavala’s wife - Ms Ayşe Buǧra Kavala.

5.          The programme of the visit is enclosed (see Appendix I), as well as the statement issued at the end of my visit (see Appendix II). I would like to thank the authorities for assisting in the preparation of this visit, in particular Mr Yıldırım Tuğrul Türkeş (NR), Chairperson of the Turkish delegation to the Assembly, for his good offices and efforts to facilitate my meetings with Messrs Osman Kavala and Selahattin Demirtaş, the latter having been arranged at a very short notice.

6.         This information note will focus on the main issues that I raised with the authorities – independence of the judiciary, prison conditions, the execution of ECtHR judgments and the practice of replacing democratically elected-mayors by governors. Moreover, I will report about my visits to the Sincan (Ankara), Marmara (Istanbul) and Edirne prisons.

2. Political and socio-economical background

7.       Two devastating earthquakes on 6 February 2023, affecting Türkiye’s southeastern provinces and northwest Syria, left over 50,000 dead in Türkiye, at least 100,000 injured, and almost 220,000 homeless and displaced. A cost-of-living crisis continued, with extremely high price inflation estimated at over 71,60% as at the beginning of June 2024.[8]

8.       In a two-round presidential contest in May 2023, President Recep Tayyip Erdoğan was re-elected, defeating Mr Kemal Kılıçdaroğlu of the Republican People’s Party (CHP) amid high turnout.  Also in May 2023, an alliance led by the ruling Justice and Development Party (AKP) won majority of parliamentary seats on 49.5% of the vote, while a CHP-led alliance won 35%. The pro-Kurdish Green Left Party (YSP) won 10.6%.

9.       The observers of the Assembly and the Office for Democratic Institutions and Human Rights of the Organisation for Security and Co-operation in Europe (OSCE/ODIHR) reported that State-run media had heavily favoured the AKP and the ruling coalition, which had enjoyed ‘an unjustified advantage, including through biased media coverage’ and that President Erdoğan had repeatedly accused legitimate political opponents of supporting terrorism during the campaign. Observers also said that the elections had been marred by continued restrictions on the freedoms of assembly, association, and expression.[9]

10.     The local elections of 31 March 2024 led to the opposition’s victory especially in big cities, at the Mediterranean coast and in the south-eastern part of the country. The elections were observed by the election observation mission of the Congress of Local and Regional Authorities, which welcomed the high turnout and the peaceful and professional manner in which they had taken place.[10]

3. Issues concerning independence of the judiciary

11.     In its Resolution 2459 (2022), the Assembly noted that the constitutional amendments establishing a presidential system did not guarantee the separation of powers and the independence of the judiciary, notably due to the composition of the Council of Judges and Prosecutors.[11] Moreover, despite some steps taken – including the adoption of an Action Plan on Human Rights in March 2021 and the fourth judicial package in July 2021 – the authorities had not been able to address and redress some of the systemic issues which seriously undermined the functioning of the justice system.[12] The Assembly also stressed the important role of the Constitutional Court in promoting the protection of fundamental freedoms, including the right to a fair trial, notably through the mechanism of individual applications.[13]

12.     The Assembly’s findings were backed by the findings of the Council of Europe’s Group of States against Corruption (GRECO), which, in March 2022, concluded as regard judges and prosecutors that “the current level of compliance with the recommendations remained globally unsatisfactory”. GRECO also noted that “[…] the executive has kept a strong hold over a number of key areas regarding the running of the judiciary, including: the process of selecting and recruiting candidate judges and prosecutors; reassignments of judicial officeholders against their will; disciplinary procedures; and training of judges and prosecutors.”[14] In June 2023, GRECO came to the same conclusions. It concluded that “(…) more substantial changes are also needed for GRECO’s recommendations to be fully implemented, notably to limit the role and influence of the executive on a number of key matters regarding the running of the judiciary.”[15] Moreover, in March 2024, the previous Council of Europe Commissioner for Human Rights, Ms Dunja Mijatović, pointed out ‘strong partiality of the judiciary to political interests and a systemic lack of independence of the Turkish judiciary’ in her “Memorandum on freedom of expression and of the media, human rights defenders and civil society in Türkiye”.[16] She concluded that “(…) the situation regarding the independence and impartiality of the judiciary posed an existential risk to the rule of law in Türkiye and, by extension, to the respect for all human rights guaranteed under the European Convention on Human Rights”.[17]

13.     Therefore, one the most problematic issues is the structure of the Council of Judges and Prosecutors (HSK), which lies at the heart of the problem regarding the lack of independence of the Turkish judiciary and is followed in the context of the implementation of the Kavala and Selahattin Demirtaş (No. 2) judgments (under general measures).[18] The problem is due to the fact that the majority of HSK members are appointed by the executive and the legislative powers,[19] which is not in line with European standards.[20] This situation raises doubts as to the judiciary’s independence from the political power because of the HSK’s role in appointing, dismissing judges and public prosecutors and taking decisions on their career. At the initiative of the Monitoring Committee, the European Commission for Democracy through Law (Venice Commission) is currently preparing an opinion on the relevant provisions of the Turkish Constitution and legislation[21] and will probably adopt it in December 2024.

14.     Another problem is the resistance of Turkish courts or the Parliament to comply with the case-law of the Constitutional Court, compounded by repeated verbal attacks on the Constitutional Court by public officials. For example, in the case of opposition MP Can Atalay (also one of the five defendants convicted in the Gezi park trial), whose release had been ordered by the Constitutional Court on 25 October 2023, the President of the Republic publicly expressed his dissatisfaction with its ruling.[22]  Moreover, the Istanbul 13^th High Criminal Court, instead of re-examining the case, refused to reopen it and sent its decision to the Court of Cassation, which subsequently requested the opening of a criminal investigation into the judges of the Constitutional Court. I raised this issue at my meeting with the judges of the Constitutional Court, who stressed that their decision in this case was binding, and that non-compliance resulted from the decision of the first-instance court, which refused to reopen the case. They also underlined that the decisions of the Constitutional Court were implemented in the majority of cases, although the Parliament had not yet taken any action on its decision criticising the lifting of MPs immunities.

15.     The effectiveness of the Constitutional Court as a remedy for human rights violations in Türkiye is also undermined by a persistent pattern of delays in adjudicating cases which are more sensitive or controversial in nature such as the cases of Osman Kavala and Selahattin Demirtaş (examined below) or the closure of the People’s Democratic Party (HDP) launched in March 2021 by the Chief Prosecutor of the Court of Cassation for alleged ties to the Kurdistan Workers' Party (PKK). Although I referred to these cases during my meeting with judges of the Constitutional Court, I had received no information about the status of their examination.

16.     According to my interlocutors from civil society, Turkish courts continue to systematically accept bogus indictments (often for terrorism-related offences), convicting without compelling evidence of criminal activity individuals and groups the government regarded as political opponents. Among them are journalists, opposition politicians, activists and human rights defenders. My interlocutors also complained about the fact that the Minister of Justice had refused to meet with them to discuss the forthcoming judicial reform.

17.     During my meeting with the deputy Minister of Justice, I was told that a new (9^th) Judicial Strategy was being prepared and that Türkiye was committed to respect human rights and the rule of law. Constitutional safeguards were in place to guarantee judicial independence, it was not possible to give orders on specific cases to courts and any attempt to influence a judicial trial was a criminal offence.

4. Prison conditions

18.     In its Resolution 2459 (2022), the Assembly remained concerned about the situation in prisons, including the situation of seriously ill prisoners. Although it welcomed the commitment by the authorities to a zero-tolerance policy towards ill-treatment and torture, it nonetheless urged them to take more resolute and credible action to investigate thoroughly serious allegations of such treatment.[23] In January 2024, in its Resolution 2528 (2024) on “Allegations of systemic torture and inhuman or degrading treatment or punishment in places of detention in Europe”,[24] the Assembly raised concern that “(…) despite the “zero tolerance” message given by the authorities, there has been a rise in the use of torture and ill-treatment in police custody and prison over the past years, overshadowing Türkiye’s earlier progress in this area”.[25]

19.     In both above-mentioned resolutions, the Assembly called on the authorities to implement the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and to authorise the publication of all its reports. For the time being, five CPT’s reports remain unpublished due to the lack of the authorities’ authorisation.[26] The CPT carried out its latest - ad hoc - visit to the country in February 2024. Its main objective was to examine the treatment of persons held in high-security prisons as well as the situation of LGBTI and women prisoners.[27] According to the recently published Council of Europe’s Annual Penal Statistics on Prison Populations(SPACE I)for2023,[28] Türkiye has the highest incarceration rate with 405 inmates for every 100,000 inhabitants and from January 2022 to January 2023 a considerable increase in the number of prisoners was recorded in this country (+15%).

20.     During my visit, civil society representatives shared with me their concerns about overcrowding in penitentiary facilities and excessive length of prison sentences and detention on remand. Prison sentences are often pronounced on the basis of terrorism-related offences. Numerous detainees, like Mr Demirtaş (see below), are kept in detention hundreds of kilometres away from their families, which increases their feeling of being isolated and can violate their right to respect for family life. Trials often take place hundreds of kilometres away from the place of the allegedly committed offences. Overcrowding in detention centres and prison facilities is officially recognised, as according to the official data of the Ministry of Justice as of 2 May 2024, there were 329,151 detainees and convicts in 403 penitentiary institutions, with a total capacity of 295,328. My interlocutors from civil society also indicated that nearly 350 children lived with their parents in penitentiary institutions. They also deplored the psychologically harsh conditions of detention in the high-security prisons (F-type prisons), where inmates were subject to various types of isolation, and condemned the situation of severely ill prisoners (currently 651), stressing that 42 such detainees had died in 2023. I was also informed about the lack of information concerning the current situation of Mr Abdullah Őcalan, incarcerated in the prison facility at the Imrali island. Since March 2020, none of his relatives has been able to visit him and last time he spoke with his brother over the phone was in March 2021. Since August 2019, none of his lawyers has seen him.

21.     I raised the issue of prison conditions during my meetings in the Parliament and in the Ministry of Justice. The head of the parliamentary Human Rights Inquiry Committee informed me that her committee and the Minister of Justice were following closely the situation in penitentiary institutions. She admitted that the number of prisoners had recently considerably increased because of ‘safety reasons’, and numerous charges related to alleged terrorist activities. The medical condition of ill detainees was regularly monitored by courts and health institutions.

5. Cases pending before the ECtHR and implementation of ECtHR judgments

22.     According to the 2023 Annual Report of the ECtHR, published in January 2024, Türkiye topped the list of countries with cases awaiting judgment with 23,397 applications, corresponding to 34.2% of the total. It was followed by the Russian Federation, Ukraine, Romania and Italy. Complaints related to arrests, prosecutions and dismissals in the public sector following a coup attempt in July 2016 made up half the applications. As of 1 April 2024, Türkiye ranked first as regards the number of pending applications before the ECtHR (with 23,950 applications out of 65,500, which constituted 36.6% of the Court’s caseload).[29]

23.     As regards the execution of ECtHR judgments against Türkiye, as of 31 December 2023, there were 446 cases pending execution before the Committee of Ministers, which supervises their execution (compared to 480 in 2022 and 510 in 2021). Thus, Türkiye ranked third (after Ukraine and Romania) between Council of Europe member States having the highest number of non-implemented ECtHR judgments.[30] Out of these 446 cases, 35 were leading cases classified under enhanced procedure, and 89 were leading cases classified under standard procedure. Of the leading cases under enhanced procedure, 24 have been pending for five years or more; similarly, 48 of the leading cases under standard procedure have been pending for five years or more. The high number of non-implemented judgments was pointed out in the Assembly’s latest resolution on the implementation of ECtHR judgments - Resolution 2494 (2023).[31]

24.     Non-implemented ECtHR judgments concern mainly violations of the right to freedom of expression and information, violations of freedom of assembly and association, violations of the freedom of thought, conscience or religion, the functioning of justice, lawfulness of detention, ineffective investigations into the actions of security forces and their impunity, and domestic violence.[32]Currently, the Committee of Ministers is also supervising the implementation of a new judgment - Yüksel Yalçınkaya v. Türkiye, in which the ECtHR ruled that the conviction of the applicant (a teacher), for membership in an armed terrorist organisation, based decisively on the use of an encrypted messaging application (ByLock) was in breach of Article 6 (the right to a fair trial), Article 7 (no punishment without law) and Article 11 (freedom of assembly and association) of the European Convention on Human Rights (“the Convention”).[33] This judgment may have far-reaching implications for thousands of people facing similar charges in Türkiye and at least 8,000 applications concerning this problem are now pending before the ECtHR.[34]

25.     During my meetings with the authorities in Ankara, I recalled that the execution of ECtHR judgments was a legal obligation enshrined in the European Convention on Human Rights. I strongly called on the Turkish authorities to take without delay all necessary measures to implement the ECtHR judgments concerning Messrs Kavala and Demirtaş. I stressed that the resolving of these cases lay in the hands of the Turkish judiciary, which should be impartial and free from political pressure and had the capacity to find a legal solution in compliance with the requirements of the Committee of Ministers. My various interlocutors stressed that Türkiye had implemented nearly 90% of judgments of the ECtHR and reiterated their commitment to fully cooperate with the Council of Europe. Judges at the Constitutional Court also informed me that they were considering measures to be taken in order to implement the Yüksel Yalçınkaya v. Türkiye judgment.[35]

6. Replacing democratically elected mayors by governors

26.     Since 2016, over 150 elected mayors had been dismissed and replaced with governors appointed by the Minister of Interior in municipalities run by the DEM party (formerly HDP). Many of these mayors have been imprisoned, some released later, and many others had to leave the country and are currently living in European countries as refugees or asylum seekers.[36]

27.     After the elections of 31 March, in the city of Van, the elected DEM Party Co-Mayor Mr Abdullah Zeydan was initially denied office following a last-minute court decision depriving him of civil rights and replaced by an AKP candidate. This event triggered protests and clashes with police. Eventually, Mr Zeydan’s mandate was restored following a decision of the Supreme Election Council (YSK).

28.     On 3 June 2024, Mr Memet Sıddık Akış, the elected Co-Mayor of Hakkari Municipality, was arrested, placed in detention on remand and replaced by the Governor of Hakkari. The charges brought against him were determined in an investigation which had been launched almost 10 years earlier. On 5 June, he was convicted for a sentence of 19 years and 6 months of imprisonment for terrorism related offences. During almost all my meetings with the authorities, I raised this issue and stressed that such a practice is anti-democratic as it goes against the will of people who voted in local elections.

7. My meetings with detainees

          7.1. The case of Mr Osman Kavala

29.     Mr Osman Kavala, a well-known philanthropist, human rights defender and businessman, has been deprived of liberty since 18 October 2017, despite two judgments of the ECtHR calling for his immediate release, including the judgment of 11 July 2022 delivered in the infringement proceedings (Article 46§4 of the  Convention).[37] On 28 September 2023, the Court of Cassation upheld the judgment of the Assize Court of 25 April 2022 concerning his conviction for aggravated life imprisonment for attempting to overthrow the government within the context of the Gezi Park events of 2013. Along with the previous co-rapporteur, Mr Howell, I strongly condemned this verdict.[38]

30.     On 9 October 2023, the Assembly awarded Mr Osman Kavala the 11th Václav Havel Human Rights Prize and, on 12 October, it adopted Resolution 2518 (2023) “Call for the immediate release of Osman Kavala”, in which it considered that Mr Kavala fell within its definition of ‘political prisoner’ and called again for his immediate release. It also suggested that the Council of Europe and its member States take same measures, including initiating the complementary joint procedure foreseen in its Resolution 2319 (2020), to put pressure on Türkiye to implement the judgments in his case. Moreover, in Resolution 2534 (2023) on “The progress of the Assembly's monitoring procedure (January-December 2023)”, the Assembly called again on the authorities to release Mr Kavala.

31.     Mr Kavala has been in prison for seven years now. Several domestic proceedings are still pending in his case. Mr Kavala lodged two applications to the Constitutional Court complaining about the unlawfulness of his detention following conviction (on 9 June 2022) and his final conviction (on 24 October 2023). Both sets of proceedings are pending before the Constitutional Court.

32.     Mr Kavala has also tried to use extraordinary judicial remedies. Under Article 311 of the Code on Criminal Procedure, he had introduced two requests to the 13^th Assize Court on 26 March and 6 May 2024 for reopening of the proceedings. Both requests were refused, as were the applicant’s appeals against the refusals. On 6 May, the applicant further filed a request for “reversal of judgment in the interest of law” with the 13^th Assize Court.[39]

33.     On 18 January 2024, Mr Kavala lodged a second application with the ECtHR, complaining that the decision of the Court of Cassation upholding his conviction violated several provisions of the Convention (including the right to a fair trial).[40]On 21 March, the ECtHR communicated the case to the government, which was due to reply by 16 July 2024. The deadline was prolonged till 16 September 2024.

34.     The issue of legal avenues that could lead to Mr Kavala’s release was discussed during a high-level technical mission of the Council of Europe during its visit to Ankara on 15 February 2024.[41] A follow-up high-level mission is now being organised.

35.     The Committee of Ministers continues to examine the Kavala case at its weekly meetings. The last decision on this issue was adopted at its 1501^st meeting (DH) on 11-13 June 2024.[42] The Committee of Ministers underlined that “(…) given the exceptional nature of the Court’s findings in its two judgments in this case, Türkiye remains in serious breach of its obligations under the Convention and the principles of the rule of law until Mr Kavala is released”.[43] The Committee of Ministers again expressed ‘profound concern’ about Mr Kavala’s detention and ‘deeply deplored’ the absence of any progress towards his release; thus it “(…) strongly exhorted all Turkish authorities, including the competent domestic courts, to consider all possible options to ensure his immediate release”.[44] It also deplored the delay in the examination of Mr Kavala’s applications by the Constitutional Court and “(…) urged the authorities to ensure that the Constitutional Court decides those applications promptly and taking full account of Türkiye’s obligations under the Convention.”[45]

36.     During my visit, I raised the issue of the implementation of judgments in the Kavala case with the authorities, including members of the Grand National Assembly, deputy Ministers of Justice and of Foreign Affairs, judges at the Constitutional Court and the Chief Public Prosecutor at the Court of Cassation. Most of my interlocutors underlined that Türkiye was among the Council of Europe member States with the best rate of implementation of ECtHR judgments and that the Kavala case should not be singled out. They also stressed that Türkiye was conducting a dialogue with the Committee of Ministers on this case and referred to the fact that so far, the Court had only ruled about Mr Kavala’s detention on remand and not about his final conviction. Mr Kavala’s case was in the hands of domestic courts (including the Constitutional Court), which should not be under political pressure. During the meeting with the Chief Public Prosecutor at the Court of Cassation, I was provided with some contextual information about the 2013 Gezi park protests and Mr Kavala’s financial operations; however, I did not find it convincing when it comes to the reasons of his conviction.

37.     I reassured the authorities that my intention was not to single out Mr Kavala’s case. However, I recalled that the ECtHR had considered from the very beginning that there was no evidence to support that there was a reasonable suspicion Mr Kavala had committed an offence. Therefore, I insisted at every meeting with the authorities that he should be released without delay.

38.     On 13 June 2024, I visited the Marmara (former Silivri) prison, where I was welcomed by the director of the prison block, Mr Ali Demirtaş, who provided me with information about the prison facility. I met Mr Kavala in a visiting room, with prison officers standing in a nearby room. There was no time restriction and our conversation lasted approximately one hour.

39.     Mr Kavala expressed satisfaction about the material conditions of his detention, including the fact that he was living in an individual cell, which is meant for 3 persons maximum. His closest family can phone once a week and visit him twice a month (once in a visiting room and once behind a glass wall). He was well-informed about the proceedings before the Committee of Ministers and talked about the available legal avenues that could lead to his release. He hoped that the Minister of Justice would initiate a procedure following which the Court of Cassation could reverse his final conviction and that the ECtHR would deliver another judgment finding violation of the Convention following his second application to the Court. As regards the political situation in the country, Mr Kavala expressed some hope for a change after the local elections of 31 March but expressed concern about the replacement of the mayor of Hakkari by a governor and about the situation of Mr Can Atalay, who had not been released (see above). I assured Mr Kavala of my strong commitment and support to finding a solution for his release.

7.2. The case of Mr Selahattin Demirtaş

40.     Mr Selahattin Demirtaş was, between 2007-2018, one of the co-chairs of the HDP party and a member of the Grand National Assembly. He stood in the 2014 and 2018 presidential elections and received 9.76% and 8.32% of the votes respectively.[46]

41.     In October 2014, violent protests took place in 36 provinces in eastern Türkiye (‘6-8 October events’), followed by further violence in 2015 in the wake of the breakdown of negotiations aimed at resolving the ‘Kurdish question’. On 20 May 2016, with a view ‘to address public indignation about statements by certain members of parliament constituting emotional and moral support for terrorism’, Article 83 § 2 of the Constitution was amended, lifting inviolability from prosecution for certain members of parliament.

42.     Consequently, Mr Demirtaş was one of 154 parliamentarians (including 55 HDP members) who lost parliamentary inviolability. He was arrested on 4 November 2016 and placed in pre-trial detention, charged with various terrorism-related offences. At the same time eight other democratically elected HDP members of Parliament, were also detained, as was the former HDP co-chair Ms Figen Yüksekdağ Şenoğlu.

43.     In December 2020, the ECtHR issued a judgment in which it found a number of violations of the Convention related to Mr Demirtaş’s pre-trial detention between 4 November 2016 and 7 December 2018 and the removal of his parliamentary inviolability (violations of Articles 5 §§ 1 and 3, of Article 10 of the Convention and Article 3 of Protocol No. 1).[47] The Court considered that the domestic courts had failed to give specific facts or information that could give rise to a reasonable suspicion that Mr Demirtaş had committed the offences in question. Finally, taking into account, among other elements, the applicant’s return to pre-trial detention on 20 September 2019, the Court found it established that the detention pursued the ulterior purpose of stifling pluralism and limiting freedom of political debate (violation of Article 18 in conjunction with Article 5 of the Convention). Therefore, it considered that any continuation of the applicant’s pre-trial detention on grounds pertaining to the same factual context would entail a prolongation of the violation of his rights as well as a breach of the obligation on the respondent State to abide by the Court’s judgment (Article 46 § 1 of the Convention). It therefore held that Türkiye had to take all necessary measures to secure MrDemirtaş’simmediate release.[48]

44.     MrDemirtaş remains in detention, despite the ECtHR’s judgment and numerous decisions of the Committee of Ministers[49] and Assembly’s resolutions calling for his immediate release[50]. As regards Ms Yüksekdağ Şenoğlu, the ECtHR came to similar conclusions as in the case Selahattin Demirtaş (No. 2) and found the same violations of the Convention in a judgment of November 2022[51], the execution of which is now being supervised by the Committee of Ministers.

45.     On 16 May, Mr Demirtaş was convicted by a first instance court in Ankara for a 42-year prison sentence for ‘attacking the State’s and the country’s integrity’ in the so-called ‘Kobane case’. In the same verdict, Ms Yüksekdağ was convicted to 30 years and 3 months. According to the defence, the verdict – which is not final and for which the court has not yet given the reasons - was based on flawed evidence and was conducted under political influence. I have strongly condemned this sentence in my statement of 17 May.[52]

46.     On 7 November 2019 Mr Demirtaş lodged before the Constitutional Court a complaint about his current pre-trial detention, whereas Ms Yüksekdağ Şenoğlu did so on 8 June 2023. Both complaints are still pending. In its recent decision concerning both cases adopted at its 1501^st meeting (DH) on 13 June 2024, the Committee of Ministers “(…) strongly urged the authorities to ensure that the Constitutional Court completes its examination of both applicants’ complaints without further delay (…)”.[53]

47.     On 20 March 2020, Mr Demirtaş also lodged an application concerning his current detention to the ECtHR; its examination is still pending.

48.     During my visit in Ankara, I raised the case of Mr Demirtaş and Ms Yüksekdağ Şenoğlu with the authorities, including members of the Grand National Assembly, deputy Minister of Justice and judges at the Constitutional Court. The deputy Minister of Justice underlined that the ECtHR did not have access to new evidence, including that on the basis of which the applicants had been convicted the first instance court in the Kobane case, and that applications were still pending before the Constitutional Court and the ECtHR. During the meeting with the judges of the Constitutional Court, the latter agreed with me that the crime of ‘attacking the State’s and the country’s integrity’ should have been formulated in a more precise way as well as Article 14 of the Constitution which referred to some crimes against the integrity of the State.[54]

49.     On 14 June 2024, I went to the Edirne prison (‘F-type’ high-security prison), where I met Mr Demirtaş in a visiting room, in the presence of two prison guards. There was no time restriction and our conversation lasted approximately one hour and half.

50.     Mr Demirtaş was surprised to receive a delegation from the Council of Europe, as a request for a visit by a rapporteur of the European Parliament had been previously rejected. He did not complain about the material conditions in the prison and underlined that he was treated with respect and kindness by prison staff. Nevertheless, he deplored his isolation and the excessive security measures and criticised the whole system of F-type prisons in Türkiye. He shares his cell with a former mayor of Diyarbarkır also accused of terrorism-related offences.

51.     Mr Demirtaş complained about the fact of being far away from his family, who lives in Diyarbarkır, almost 1700 km from the prison facility. His wife visits him once a week and his daughters – once a month. Mr Demirtaş expressed concern about the fact that his wife had got threats through social media.

52.     As regards the charges brought against him, Mr Demirtaş criticised the broad formulation of terrorism-related offences in the Turkish legislation, which was easily used against political opponents. He stressed that he would appeal against the judgment delivered in the Kobane case and hoped that the appeal court could reverse the judgment of the first-instance court. He mentioned that nearly 140 criminal investigations had been brought against him and that he was getting assistance of over 1,500 lawyers, the majority of whom were acting as volunteers. Since his placement in detention, over 10,000 lawyers had visited him. He also deplored the fact that during a recent visit to Spain President Recep Tayyip Erdoğan publicly called him a ‘terrorist’.

53.     Although Mr Demirtaş paid tribute to the work of international organisations, including the Council of Europe, he thought that more could be done to ensure Türkiye’s respect for human rights. He stressed that European values should not be compromised. I assured him of my strong commitment and support to finding a solution for his release and I strongly believe that the Council of Europe should give more priority to his case.

          7.3. The case of Mr Murat Arslan

54.     Mr Murat Arslan is a lawyer, former rapporteur of the Constitutional Court and president of the now dissolved Association for the Union of Judges and Prosecutors (YARSAV). On 26 October 2016, he was arrested because of alleged links with the Gülen movement. Mr Arslan has been convicted for a total sentence of 11 years and has been in prison for 8 years now. On 9 October 2017, he was awarded the Assembly’s Václav Havel Human Rights Prize for his work to uphold the independence of the judiciary in Türkiye.

55.     I met Mr Arslan on 12 June 2024 in the Sincan prison (Ankara). As he had not been warned about my upcoming visit, he was a bit surprised to meet with a representative of the Council of Europe and spoke about the events preceding his arrest and the reasons for his conviction. Our conversation lasted around 45 minutes.

56.     Mr Arslan had been sentenced for 10 years of imprisonment for ‘participation in a terrorist organization’. He explained to me that he had been convicted on the basis of statements of two witnesses who pretended that they ‘heard’ that he was a member of the FETŐ (Fethullahist Terrorist Organisation); one of these witnesses was anonymous and had testified only in writing. Mr Arslan thinks that his conviction was related to the 2014 election in the Council of Judges and Prosecutors, when he had refused to support pro-government candidates, as well as to various interviews he had given to the press after the failed coup d’Etat of 15 July 2016.  He also indicated that he had been sentenced to another year of imprisonment for ‘insulting the President of the Republic’ as he had criticised the ruling party in a letter sent outside the prison. After the Constitutional Court had dismissed his complaint about his conviction, he had lodged an application to the ECtHR, which is still pending.

57.     As regards the material conditions of detention, Mr Arslan lives with 15 other inmates in a cell meant for 6 persons. He sees his family once a week; three visits per month are held through a glass wall while one visit per month takes place in a visiting room. He noted a slight deterioration of medical care.

          7.4. The case of Mr Bekir Kaya

58.     Mr Bekir Kaya is a former co-mayor of Van (elected twice) and was also one of the lawyers defending Mr Abdullah Őcalan.  Since November 2016, he has been serving a sentence of 17 years of imprisonment on charges of belonging to an illegal organisation (in two different cases) and has been detained for almost 8 years now.

59.     I met Mr Kaya on 13 June 2024 in the Marmara prison (Istanbul), straight after my exchange with Mr Kavala. We spoke for nearly one hour, without the presence of any prison guards.

60.     Mr Kaya believes that he had been convicted in connection with his function of elected mayor and criticises the overall legislation on the judiciary and criminal law, which is being used as an instrument of politics. Following his conviction, Mr Kaya lodged a complaint to the Constitutional Court, which is still pending, therefore, he has not yet applied to the ECtHR. Several criminal cases have been brought against him in connection with his activities as Mr Őcalan’s lawyer; in some of them he has already been acquitted.

61.     Although he is detained hundreds of kilometres far away from his family, which lives in Van, Mr Kaya did not complain about the material conditions of his detention. He stays alone in a 12 m² cell (which is meant for 3 persons maximum).

8. Concluding remarks

62.     I reiterate my thanks to the Turkish authorities for facilitating this visit and especially the visits to the above-mentioned prisons, which was a gesture of good will. I appreciate this and believe that my visit was an important step forward in the dialogue between the Council of Europe and the authorities of Türkiye, one of the oldest members of the Organisation. I also hope that we will continue our good cooperation in promoting the strengthening of the country’s human rights protection system and our common European values.

63.     Nevertheless, I would like to stress again that the execution of ECtHR judgments is a legal obligation enshrined in the European Convention on Human Rights. Although the Turkish authorities state that they have implemented almost 90% of ECtHR judgments concerning their country, there are still many outstanding and long-standing issues. The implementation of the judgments in the cases of Messrs Kavala and Demirtaş as well as Ms Yüksekdağ Şenoğlu is an issue of utmost importance and an urgency, as it puts at risk the existence of the rule of law and respect for human rights in the country. I strongly call once again on the Turkish authorities to take without delay all necessary measures to implement these judgments. The resolving of these cases lies in the hands of the Turkish judiciary, which has the capacity to find a legal solution in compliance with the findings of the ECtHR and the requirements of the Committee of Ministers. Such a legal solution would show that the Turkish judiciary is ready and willing to address the critical remarks concerning its lack of independence and impartiality and to comply with international human rights and rule of law standards.

64.     During my visit, I touched upon only a few important issues, while leaving aside other serious problems pointed out in Assembly’s Resolution 2459 (2022), in particular restrictions on freedom of expression, reprisals against journalists, academics, lawyers and civil society activists as well women’s rights and gender equality.[55] I hope to be able to examine these issues in detail during my next visit to the country and intend to include them in the forthcoming monitoring report.

Appendix I

Co-rapporteurs: Ms Jill Mortimer (United Kingdom, EC/DA) - absent, and Mr Stefan Schennach (Austria, SOC)

Secretariat:       Ms Agnieszka Szklanna, Secretary of the Monitoring Committee of the PACE

Focus of the visit:                                

Latest political and judicial developments in Türkiye, with a focus on implementation of the judgments of the European Court of Human Rights with respect to Mr Osman Kavala

(*) Meetings organised by the Secretariat of the Council of Europe

Arrival of the delegation

09:00 – 11:30 am             Working breakfast with NGOs (*)

 

12:00 – 1.30 pm               Working lunch with members of the Turkish Delegation to PACE

         

1.45 – 2.30 pm                 Meeting with Ms Derya Yanik, Chairperson of the Committee on Human Rights                                    Inquiry

2.45 – 3.30 pm                 Meeting with Mr Cüneyt Yüksel, Chairperson of the Committee on Justice

3.45 – 4.15 pm                 Meeting with Mr Abdullah Güler, Chairperson of the AKP Group

4.30 – 5.00 pm                 Meeting with Mr Gökhan Günaydin, Chairperson of the CHP Group

5.15 – 5.45 pm                 Meeting with Mr Sezai Temelli, Deputy Chairperson of the DEM Group

6.00 – 6.30 pm                 Meeting with Mr Erkan Akçay, Deputy Chairperson of the MHP Group

6.45 – 7.15 pm                 Meeting with Mr Turhan Çömez, Deputy Chairperson of the of the İYİ Party Group

7.30 – 8.00 pm                 Meeting with Mr Selçuk Özdağ, Chairperson of the Saadet Party Group

8.30 – 9.30 pm                Meeting with NGOs (continuation) (*)

09.00 – 09.40 am             Meeting with Mr Hurşit Yilmaz, Deputy Minister of Justice

 

10.00 – 10.40 am             Meeting with Ms Berris Ekinci, Deputy Minister of Foreign Affairs

11.00 – 11.40 am             Meeting with Mr Basri Bağci, Vice-President of the Constitutional Court

1.20 – 1.45 pm                 Meeting with Mr Muhsin Şentürk, Chief Public Prosecutor at the Court of Cassation

2.00 – 3.30 pm                 Working lunch with diplomats (Lithuania, Sweden, Finland, Italy, Spain, Belgium)                                  (*) 

4.00 - 5.00 pm                 Meeting with Mr Murat Arslan (Sincan prison)

Departure for İstanbul

11.30 am – 1.30 pm         Meetings with Mr Osman Kavala and Mr Bekir Kaya (Marmara prison)

4.00 – 6.00 pm                Meetings with the family of Mr Osman Kavala and with NGOs (*)

8.00 – 10.00 pm              Working diner with Mr Yıldırım Tuğrul Türkeş (NR), Chairperson of the PACE Turkish Delegation and Mr Sevan Sivacioğlu (NR), member of the delegation

11.30 am -1.00 pm Meeting with Mr Selahattin Demirtaş (Erdine prison)

Departure of the delegation

Appendix II

PACE monitor, ending visit, again urges Turkish authorities to implement Strasbourg Court judgments

18/06/2024 | Monitoring

Following a fact-finding visit to Ankara and Istanbul on 11-14 June 2024, PACE’s co-rapporteur for the monitoring of Türkiye, Stefan Schennach (Austria, SOC), has again called on the Turkish authorities to implement the judgments of the European Court of Human Rights and to continue their high-level dialogue with the Council of Europe.

"I am very grateful to the Turkish authorities, and in particular to the chairperson of the delegation to PACE, Yıldırım Tuğrul Türkeş (Türkiye, NR), for having facilitated my meetings with Osman Kavala and Selahattin Demirtaş, the latter having been arranged at very short notice.

Mr Kavala has been in prison since October 2017, despite two judgments of the European Court of Human Rights calling for his immediate release. On 28 September 2023 his conviction for aggravated life imprisonment was upheld by the Court of Cassation.

Mr Demirtaş has been detained since November 2016 despite a judgment of the Strasbourg Court also ordering his immediate release. Last May, he was convicted by a first instance court and sentenced to 42-year prison term in the so-called ‘Kobane case’. I have strongly condemned this sentence as based on unfounded charges.

During my meetings with the authorities, I recalled that the execution of Strasbourg Court judgments is a legal obligation enshrined in the European Convention on Human Rights and strongly called on the Turkish authorities to take without delay all necessary measures to implement the judgments concerning Messrs Kavala and Demirtaş. The resolution of these cases lies in the hands of the Turkish judiciary, which has the capacity to find a legal solution in compliance with the requirements of the Committee of Ministers, which supervises their execution.

During my visit, civil society representatives also shared with me their concerns about overcrowding in penitentiary facilities and the excessive length of prison sentences and detention on remand. Detainees are often kept in detention hundreds of kilometres away from their families, which increases their feelings of isolation and violates their right to respect for family life.

I believe that my visit is an important step forward in the dialogue between the Council of Europe and the authorities of Türkiye, one of the oldest members of the Organisation. I also hope that we will continue our good co-operation in promoting the strengthening of the country’s human rights protection system and our common European values.”

***

During his visit, Mr Schennach met the representatives of all political groups as well as members of the Committees on Human Rights Inquiry and on Justice at the Grand National Assembly, members of Türkiye’s delegation to PACE, the Deputy Ministers of Justice and of Foreign Affairs, judges at the Constitutional Court, the Chief Public Prosecutor at the Court of Cassation, the representatives of a number of different NGOs and members of the diplomatic community.

He also visited the Sincan prison in Ankara, where he met Murat Arslan, judge and laureate of the 2017 Václav Havel Prize; the Marmara prison in Istanbul, where he met Osman Kavala and the former Co-Mayor of Van Bekir Kaya; and the Edirne prison, where he met Selahattin Demirtaş.