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Turkey: Free Rights Defender Following European Court Ruling

Council of Europe Ministers Should Urge Osman Kavala’s Release

Osman Kavala © 2017 Anadolu Kültür

(Strasbourg) – The Council of Europe Committee of Ministers should issue a decision at its June 4, 2020 meeting directing Turkey to release human rights defender Osman Kavala and drop all charges against him, Human Rights Watch, the International Commission of Jurists, and the Turkey Human Rights Litigation Support Project said today.

The three groups have submitted a detailed submission to the Council of Europe’s Committee of Ministers, which oversees enforcement of European Court of Human Rights judgments. The groups outlined how Turkey continues to violate Kavala’s rights by flouting a landmark judgment, that became final on May 11 requiring his immediate release.

“The European Court ruled that Kavala’s detention is unlawful, and their binding judgment requires Turkey to release him immediately,” said Emma Sinclair-Webb, Turkey director at Human Rights Watch. “The Committee of Ministers, at its June 4 meeting, should press Turkey to comply and issue a clear message that no Council of Europe member state should be silencing human rights defenders.”

The judgment is particularly significant because it is the first final ruling against Turkey in which the court determined that in interfering with an individual’s rights Turkey acted in bad faith and out of political motivations, violating Art. 18 of the European Convention on Human Rights. The court said that by detaining Kavala since November 2017 and prosecuting him, the Turkish authorities had “pursued an ulterior purpose, namely to silence him as human rights defender.”

The European Court judgment in Kavala v. Turkey (Application no. 28749/18) found violations of Art. 5(1) (right to liberty and security), Art. 5(4) (right to a speedy decision on the lawfulness of detention), and the rarely used Art. 18 (limitation on use of restrictions on rights), taken together with Art. 5(1). It required Turkey to release Kavala and said that any continuation of his detention would prolong the violations and breach the obligation to abide by the judgment in accordance with Art. 46(1) of the European Convention on Human Rights.

A court ordered Kavala’s detention on November 1, 2017 on bogus allegations that he used the 2013 Istanbul Gezi Park protests as a pretext for an attempted coup, and that he was involved in the July 15, 2016 attempted military coup. On February 18, 2020, Kavala and his eight co-defendants were acquitted on charges of “attempting to overthrow the government by force and violence” in the Gezi Park trial.

But Kavala was not released, and a court detained him again immediately on the charge of “attempting to overthrow the constitution by force and violence” because of an ongoing 2016 coup-related investigation against him. Turkey’s President Recep Tayyip Erdoğan had publicly criticized his acquittal just before he was detained again. Weeks later a court ordered his detention a second time on another charge (“espionage”) but relying on the same evidence and investigation file.

“The sequence of court orders prolonging his detention and the lack of objective deliberation as to the lawfulness of any deprivation of liberty indicates that decisions have been guided by political considerations and there has been a concerted official effort to prevent Kavala’s release,” said Róisín Pillay, director of the Europe and Central Asia Programme of the International Commission of Jurists. “Since the European Court’s judgment, Turkey has continued to violate Kavala’s human rights.”

The targeted harassment in Turkey of rights defenders is part of a wider trend of arbitrary detentions and abusive prosecutions of journalists, elected politicians, lawyers, and other perceived government critics.

This trend has been well documented in many reports by the Council of Europe, the European Union, and human rights organizations.

“The campaign of persecution against Osman Kavala and the failure to release him and drop all charges have perpetuated a chilling environment for all human rights defenders in Turkey,” said Ayşe Bingöl Demir, co-director of the Turkey Human Rights Litigation Support Project.

The three organizations made detailed recommendations to the Committee of Ministers, urging it to:

  • Call on the government of Turkey to ensure the immediate release of Osman Kavala as required by the European Court’s judgment, stressing that the judgment clearly applies to his ongoing detention and persecution;

  • Place the Kavala v. Turkey judgment under “enhanced procedures” and treat it as a leading case under Art. 18 of the European Convention;

  • Recognize that Kavala’s continuing detention violates Art. 46 of the Convention, concerning the binding nature of final judgments of the European Court, and that a failure to release Kavala may trigger an Art. 46(4) procedure (infringement proceedings);

  • Emphasize to the Government of Turkey that Kavala’s release is of added urgency in the context of the Covid-19 pandemic, which increases the risk to his health in detention; and

  • Ask the Government of Turkey to drop all charges under which Kavala has been investigated and detained to silence him, in conformity with the Court’s findings that his rights have been violated and that his exercise of rights to freedom of expression, assembly, and association was wrongfully used as evidence to incriminate him.

The groups also identified the general measures that Turkey needs to take to carry out the judgment to end politically motivated detention and prosecution of human rights defenders and other perceived government critics. These measures focus on Turkey’s structural rule of law problems. They include executive control over Turkey’s judiciary and prosecutorial authorities, and the evidence of a clear pattern of direct political interference in court decisions through frequent public speeches by Turkey’s president and proxies. A pattern of criminalizing the exercise of Convention-protected rights defines many of the cases against human rights defenders and other perceived government critics.

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