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Landmark Judgment Against Turkey for Ignoring European Ruling

European Court of Human Rights Rules on its Order to Free the Rights Defender Osman Kavala

Osman Kavala © 2017 Private

(New York) – The Grand Chamber of the European Court of Human Rights (ECtHR) handed down a landmark judgment announced on July 11, 2022 against Turkey for its failure to carry out the court’s order to free the imprisoned human rights defender Osman Kavala, Human Rights Watch and the Turkey Litigation Support Project said today.

The court found in Kavala v. Türkiye, a case brought by the Council of Europe’s Committee of Ministers, that Turkey failed to fulfill its obligation under Article 46(1) of the European Convention on Human Rights to comply with its judgment issued on  December 10, 2019.  The judgment is an important step toward accountability for Turkey’s systemic disregard for the convention system and as recognition of the urgency of implementing the court’s order to release Kavala.

“This is the only second time, after Mammadov v. Azerbaijan, that the ECtHR has ever conducted infringement proceedings and determined that a member state has not complied with a European Court judgment,” said Helen Duffy of the Turkey Litigation Support Project.

“It is an acknowledgement of Turkey’s ever-deepening rule of law crisis, which has involved seriously undermining the Convention system and the escalating use of criminal law for political purposes.”

The two organizations, joined by the International Commission of Jurists, had repeatedly recommended infringement proceedings against Turkey for its failure to comply with the judgment in Kavala’s case, which epitomizes the evisceration of respect for human rights in Turkey today, the groups said.

In its new judgment, the court held that “Türkiye has failed to fulfil its obligation under article 46§1 to abide by the Kavala v. Türkiye judgment of 10 December 2019.”

The European Court underlined that:

Its finding of a violation of Article 18 taken together with Article 5 in the Kavala judgment had vitiated any action resulting from the charges related to the Gezi Park events and the attempted coup. It is nonetheless clear that the domestic proceedings subsequent to the above judgment, which resulted first in an acquittal and then a conviction, have not made it possible to remedy the problems identified in the Kavala judgment (para. 172).

Turkey alleges that Kavala had a leading role in mass protests in 2013 that began in Istanbul’s Gezi Park and in a subsequent coup attempt. In the 2019 judgment, the court held that Kavala was prosecuted and held in pretrial detention since November 2017 on the basis of his human rights activities. The court found that the Turkish authorities had pursued an ulterior purpose of silencing Kavala as a human rights defender and that by using detention for political ends, Turkey had violated Kavala’s right to liberty and security (article 5), and prohibition from restricting the Convention rights for the purposes other than those allowed under the Convention (article 18).

Although in the December judgment, the court ordered Kavala’s immediate release as a first step to implement the judgment, the Turkish authorities have ignored the court’s legally binding ruling. In its supervision of the process of carrying out the court’s judgments, the Committee of Ministers took numerous steps calling for Kavala’s release and the full restoration of his rights to ensure that it was carried out.

As the three organizations made clear to the Committee of Ministers in pressing for infringement proceedings, and Kavala’s counsel pleaded before the court (paras. 118-124), the Turkish courts and prosecutors have engaged in a series of tactics to circumvent the authority of the European Court and the Council of Europe. They have issued sham release orders, initiated multiple criminal proceedings against Kavala on the same facts, and disjoined and re-joined case files accusing him of bogus offenses.

The Grand Chamber judgment addresses these practices of the Turkish authorities by stating that “the measures indicated by Türkiye do 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” (para. 173).

Most recently, on April 25, after Kavala had spent four-and-a-half years in detention on baseless charges, the Istanbul assize court sentenced him to life in prison without parole on charges of attempting to overthrow the government.

“The Grand Chamber judgment in the case of Kavala v. Türkiye is a further demonstration of Turkey’s persistent failure to respect its international human rights obligations, and that implementation of the court’s judgments is key to the effectiveness of the European human rights system” said Aisling Reidy, senior legal adviser at Human Rights Watch. “As the European Court has now confirmed Turkey’s failure to execute the 2019 Kavala judgment, the Committee of Ministers needs urgently to take all feasible measures to ensure the judgement is respected and Kavala released,” she continued.

The Committee of Ministers is expected to resume its supervision process and take more robust steps to discharge its mandate of ensuring the necessary individual and general measures are taken by Turkey to implement the court’s ruling.

“Once again, we call for the immediate release of Osman Kavala, cleared of all charges. Judgments of the European Court of Human Rights must be complied with and not intentionally eluded,” Duffy said. “The Grand Chamber’s judgment finding violation sends an important signal to Turkey that it cannot use judicial tactics to evade its international obligations, including bringing forward multiple criminal proceedings on the same facts or handing down prison sentences based on non-Convention compliant charges.”

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