IN THE EUROPEAN COURT OF HUMAN RIGHTS

Application No. 2170/24

BETWEEN:

OSMAN KAVALA (No. 2) Applicant 

and 

TÜRKİYE Respondent

and 

Turkey Human Rights Litigation Support Project

Human Rights Watch

International Commission of Jurists

Interveners

WRITTEN SUBMISSIONS ON BEHALF OF THE INTERVENERS

Introduction

1. The Third-Party Interveners (‘the Interveners’) submit these comments by leave of the President of the Second Section of the Court granted on 14 August 2024 under Rule 44(3) of the Rules of Court.
2. The present case concerns the continued detention of Osman Kavala following the European Court of Human Rights' (‘the Court’ or ‘the ECtHR’) judgment of 10 December 2019 (Kavala v. Turkey, no. 28749/18, 10 December 2019) and the subsequent criminal proceedings which resulted in a sentence of aggravated life imprisonment. Mr. Kavala’s conviction became final on 28 September 2023, despite the ECtHR’s 2019 judgment and its landmark ruling of 11 July 2022 (hereinafter ‘Kavala Grand Chamber Judgment’) under the highly exceptional infringement proceedings which found Türkiye in violation of Article 46(1) of the European Convention on Human Rights (‘the Convention’).[1]
3. The proceedings against Mr. Kavala are intrinsically linked to two key issues. The first is the erosion of judicial independence and impartiality in Türkiye, which bears directly on the Court’s determinations under Articles 5, 6, 7, 10, 11, 18, and 35(1) of the Convention, as well as Article 46(1). The second issue exposed by these proceedings is Türkiye’s flagrant and persistent failure to implement ECtHR judgments. The practices leading to this case, including the domestic courts’ conviction of Mr. Kavala, follow a well-documented pattern of conduct designed to circumvent the implementation of ECtHR’s rulings in politically sensitive cases, in particular those involving perceived dissidents.

4. Drawing on expertise as organisations specialising in international human rights law and working extensively on human rights and the judicial process in Türkiye, the Interveners will address the following issues arising in this case, directly related to these broader concerns of judicial independence and persistent non-implementation of judgments: the lack of independence and impartiality of the judiciary in Türkiye particularly following the 2017 Constitutional amendments (Section II); the effectiveness of the Constitutional Court (‘the TCC’) in providing remedies in cases involving the detention and prosecution of human rights defenders, opposition politicians and others engaging in politically disfavoured expression (Section III); and Türkiye’s practices to circumvent the implementation of the Court’s judgments (Section IV).

   The lack of independence and impartiality of the judiciary in Türkiye

5. As a general principle of law recognised by the international community, judicial independence and impartiality, enshrined in the Convention (Article 6) and in Türkiye’s Constitution (Articles 9 and 138), is a part and parcel of the rule of law. It encompasses the procedure and qualifications for the appointment of judges, guarantees relating to their security of tenure, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature.[2] It requires freedom from external and internal undue pressure and influence,[3] but also presenting the appearance of impartiality.[4] Judicial independence and impartiality is essential for the effective investigation, prosecution and, where appropriate, punishment of grave human rights violations,[5] and the protection of the full array of Convention rights.
6. The degradation of the independence and impartiality of the judiciary in Türkiye has occurred over  long period, and gradually led to what has been widely identified as the “capture” of the judiciary by the ruling political coalition parties (AKP and MHP) as part of its broader assumption of effective control over State institutions over the past decade and a half.[6] This capture has been enabled by successive constitutional and legislative amendments weakening or removing key safeguards, as well as politically motivated criminal and disciplinary proceedings against, and arbitrary arrest and dismissal of, thousands of judges and prosecutors.[7]
7. The first fundamental deficiency in this respect is the composition and functioning of the Council of Judges and Prosecutors (CJP). As the main self-governing body of the judiciary, the CJP is meant to constitute “one of the most crucial guarantees of judicial independence” and a key institution, alongside the TCC, in the protection of the rule of law.[8] It should protect members of the judiciary from arbitrariness by legislative and executive powers.[9] However, amendments to the Turkish Constitution adopted by the Grand National Assembly (‘Parliament’) -confirmed in a 2017 referendum- radically altered the composition and selection procedure of the CJP (Article 159 of the Constitution).[10] The Minister and Deputy Minister of Justice remain ex officio members. At the same time, the number of CJP members was reduced from 22 to 13, with the number appointed directly by the President or filled by ex officio government officials rose to 6 out of 13 (compared to 4 out of 22 previously). The remaining 7 are elected by Parliament. Notably, none are now elected by the judiciary itself (previously 10 out of 22 had been), in contradiction to European standards prescribing that at least a significant portion of judicial council members to be judges elected by their peers.[11] 
8. International human rights bodies have expressed serious concerns regarding these changes and their impact on the CJP’s independence.[12] The CJP’s composition and the election of its members in practice since 2017 provide clear indicia validating these concerns. First, the ex officio membership of the Deputy Minister of Justice has enabled the ruling political coalition to promote consecutively one prosecutor and one judge who had previously presided over the prosecution or conviction in key cases of perceived government critics and opposition figures to the CJP.[13] Second, President Erdoğan’s direct appointments to the CJP have been instrumentalized  to serve his political agenda, facilitated by the 2017 constitutional amendment that no longer requires him to relinquish ties with his political party.[14] For example, in 2017 and 2021,[15] he appointed to the CJP a prosecutor who was involved, before and during his CJP mandate, in contested and flawed, high-profile cases against government critics (one of which led to a judgment against Türkiye by the ECtHR).[16] This prosecutor was later elected as Deputy President of the CJP[17] and President of its Second Chamber, resulting in both chamber presidents now being Erdoğan-appointed members.[18]
9. In addition, the election of the remaining 7 CJP members by Parliament has done little to ensure the independence of those members from the ruling AKP/MHP coalition. In 2017, two opposition parties (CHP and HDP) refused to participate in the selection of candidates by a joint parliamentary committee,[19] which led the ruling political coalition to nominate all candidates.[20] In 2021, a “quota” agreement was made prior to voting, in which the AKP/MHP coalition determined the names for 4 CJP seats and the İYİ Party/CHP determined the remaining 3 seats, excluding the HDP from the process.[21] Two members appointed through this process previously worked for the AKP or held government positions,[22] and one had been previously appointed to the CJP by President Erdoğan himself.[23] These politically negotiated nominations bypassed the confidential, multi-round voting system laid out in Article 159 of the Constitution, which is designed to safeguard a fair selection procedure.[24] It seriously compromised the secrecy of the vote and reduced the likelihood that individual MPs would select CJP candidates based on objective, non-partisan criteria.[25]
10. The appointment procedure for the CJP itself provides clear evidence of the dismantling of the separation of powers in Türkiye. Rather than serving as a safeguard for judicial independence, the CJP appears to have become a mechanism for consolidating undue influence over the judiciary. Established standards in the Court’s jurisprudence on judicial independence required decisions affecting the career of judges and prosecutors to be based on objective criteria and a transparent process.[26] However, reports suggest that the CJP’s powers related to disciplinary proceedings, transfers,[27] promotions, and case and judicial formation appointments have been exercised in breach of the criteria laid out in Law no. 2802 on Judges and Prosecutors and with the purpose of furthering the interests of the ruling political coalition.[28] Striking examples include the CJP’s actions in the case of Osman Kavala,[29] the measures taken against Judge Ayşe Sarısu Pehlivan,[30] the criminal proceedings involving opposition politician Ekrem Imamoğlu,[31] the Sinan Ateş murder case,[32] and the handling of a case involving a MHP local politician arrested for violent behaviour in court.[33] Combined with the mass dismissals and criminal proceedings initiated against judges and prosecutors following the 2016 coup attempt, the consolidation of power in the office of the President and through his control of the parliament in determining the composition of the CJP and the serious issues surrounding its functioning have severely undermined judicial independence in Türkiye.
11. The recruitment system for judges and prosecutors is also non-compliant with standards on judicial independence. Notably, the board conducting the interviews is composed entirely of members of the executive, including several officials from the Ministry of Justice, one representative from the Justice Academy -a state institution under the Ministry’s control- and the General Secretary of the CJP, who is appointed by the Minister of Justice.[34] Rather than being based on objective criteria, these interviews lack transparency and multiple judicial actors have expressed concern that their outcome is pre-determined on the basis of whether candidates had been informally approved by the ruling political parties.[35] In this connection, in 2018 an opposition MP presented a list of over 100 newly recruited judges and prosecutors who had held active roles within the ruling AKP party.[36]
12. The recruitment process formally includes an oral interview following a written exam. However, between 2017 and 2018, after thousands of judges were dismissed under the state of emergency in the aftermath of the coup attempt, a presidential decree lifted the requirement to achieve a minimum score (at least 70/100) in the written exam, effectively allowing appointments to be made solely on the basis of interviews. Numerous candidates who performed well on the written exam but were not recruited, reporting interviews of no more than two or three minutes with no substantial questions.[37]
13. Finally, the consolidation of influence and even effective control over the judiciary is also evident in the continued political pressure on, and interference with, the judiciary in cases concerning perceived dissidents or others viewed as obstructing the interests of the ruling coalition. For instance, after President Erdoğan’s recent reference to judges and prosecutors dismissed after the coup attempt as “flies” of “the FETÖ swamp” and criticised the Council of State’s decision to reinstate 387 of them, Minister of Justice Yılmaz Tunç announced that the Council of State decision would be re-examined by the CJP.[38] In the case of imprisoned opposition MP Can Atalay convicted in the Gezi Park trial, President Erdoğan openly warned the TCC, which had found violations of Mr. Atalay’s rights, “not to underestimate the steps taken by the Court of Cassation”, implying potential repercussions against the TCC members.[39]

14. The current judicial system in Türkiye appears to function within a self-perpetuating cycle: the government controls and influences the recruitment of judges, some of whom are appointed to the CJP by the government and allies with political control over the Parliamentary appointments,[40] and the CJP then holds significant control over the rest of the judiciary. This enables the ruling coalition to maintain pressure on judges and prosecutors both from within and outside the judiciary. These conditions fly in the face of the safeguards required for the existence of an independent judiciary.

    Effectiveness of the Constitutional Court as a remedy in cases involving the detention and prosecution of human rights defenders, opposition politicians and other dissenters

15. Article 13 of the ECHR guarantees the right to an effective remedy for Convention violations. According to the ECtHR’s case law, for a remedy to be considered effective, “the national authority that provides the remedy in question must be independent and capable of providing redress”.[41]  The ECtHR assesses not only the existence of formal remedies within the legal system of the Contracting Party, but also considers the broader legal and political context in which these remedies operate, as well as the personal circumstances of the applicants.[42] Additionally, a domestic remedy cannot be considered effective if it lacks minimum guarantees of promptness[43] or if the State fails to ensure its implementation when granted.[44] Given these criteria, several issues in Türkiye cast serious doubt on whether the individual application procedure to the TCC serves as an effective remedy in cases of detention, especially in the context of politically disfavoured activities.
16. The current method of appointment of the TCC members precludes its independence from the executive. The President has the power to appoint 12 out of the 15 members of the TCC. As the Venice Commission noted, the President’s political affiliations compromise his neutrality in this context.[45] Five members currently appointed by President Erdoğan have previously held government positions: one was chief advisor to the President;[46] two are former Deputy Ministers of Justice (who were ex officio members of the CJP),[47] one was a former official in the Ministry of Justice,[48] and one was a former Director of Presidential Administrative Affairs.[49] Additionally, two of the three members elected by Parliament have also been affiliated with the government or the ruling party.[50]
17. The President appoints two TCC members from the Court of Cassation and two from the Council of State. Given the forementioned lack of structural independence of the CJP, which elects the members of both courts, this gives the executive added and undue influence over the TCC.[51] For instance, Mr. İ. F. , who was involved in the prosecution of several politically charged criminal cases (including Gezi Park case), was appointed to the TCC after just 20 days of tenure at the Court of Cassation.[52] Similarly, Y.A., recently appointed from the Council of State, played a role in highly political decisions such as approving Türkiye’s withdrawal by presidential decree from the Istanbul Convention.[53]
18. Second, there is a clear correlation between constitutional changes affecting the structural independence of the TCC and the TCC’s oversight of, and effectiveness in ensuring, human rights guarantees.[54] In particular, the close links described above between many TCC members and government have undermined the court’s willingness and ability to address certain human rights law violations on the merits and provide effective remedies and reparation for violations affecting perceived dissidents and government critics. For example, despite the ECtHR’s rare finding of a violation of Article 18 ECHR due to the arbitrary detention of human rights defender Osman Kavala, the TCC failed to find that his continued detention to be a violation of his rights.[55] The TCC also found the application brought by judge Alparslan Altan, detained in the aftermath of the coup attempt, inadmissible. Yet, in a judgment finding violations of Mr. Altan’s rights, the ECtHR highlighted the TCC’s failure to address his argument that there was no concrete evidence that could justify his pre-trial detention.[56] The TCC, in a later judgment explicitly refused to implement the ECtHR’s judgments concerning the pre-trial detention of judicial officers including Mr. Altan.[57]
19. The TCC’s judgments often consist of a combination of rights-compliant and non-compliant approaches, depending on the sensitivity of the issue, government policies and priorities, and the judicial formation hearing the case.[58] Cases relating to the use of the encrypted communication application ByLock provide a striking example of this selective approach to compliance with human rights standards and ECtHR case-law. In Yalçınkaya v Türkiye, the ECtHR found a violation of Articles 6 and 7 ECHR in relation to the use of ByLock as criminal evidence[59] and ordered that Türkiye undertake general measures under Article 46. Yet, the President of the TCC expressed disagreement, stating “ultimately, the courts in Türkiye will make the decision”.[60] Since then, several TCC judgments have failed to comply with the ECtHR judgment[61] and the court has been  delaying rulings on related cases, seemingly as a means to avoid implementing Yalçınkaya.[62] In September 2024, the local court hearing the retrial of Mr. Yalçınkaya handed down the same sentence against him, despite the ECtHR ruling that the evidence used in the initial sentencing did not comply with the Convention standards.[63]
20. Third, the TCC’s lack of a transparent prioritisation policy contributes to its selectivity and facilitates interference with its independence. While some cases are concluded quickly, others, particularly those involving politically sensitive issues or government critics, face unreasonable delays, precluding an effective remedy. For instance, applications concerning the suspension of MPs’ mandate were decided only after the  mandate lapsed or the MP was barred from running for office due to a terrorism-related conviction.[64] In addition, an application lodged by the imprisoned opposition politician Selahattin Demirtaş, filed in November 2019, remains pending despite the ECtHR’s finding of a violation of Article 18 ECHR concerning his detention, despite repeated warnings from the Committee of Ministers.[65]
21. Fourth, there is a growing and visible trend of intentional non-implementation of TCC judgments by lower courts, particularly on the rare occasions when the Court has reached timely decisions on the merits in cases not favoured by the government. Recent examples of non-implementation include a pilot judgment requiring Parliament to amend overbroad anti-terrorism legislation[66] and judgments requiring lower courts to suspend criminal proceedings against MPs with parliamentary immunity.[67]
22. Finally, the recent case of opposition MP Can Atalay, a co-defendant of Mr. Kavala, epitomises critical challenges to the effectiveness of the TCC. In September 2023, the Court of Cassation refused to comply with the TCC’s ruling on parliamentary immunity, asserting the TCC lacked authority to decide on the issue.[68] The Court of Cassation went on to uphold the conviction and 18-year sentence of Mr. Atalay in the Gezi Park trial, despite his election as MP in May 2023. The TCC found a violation of Mr. Atalay’s rights to be elected, conduct political activities and his right to liberty and security, ordering his release from detention and a retrial.[69] However, the Court of Cassation not only ignored this order but also took the unprecedented step of seeking a criminal investigation against the TCC members.[70] Notably, President Erdoğan criticised the TCC, suggesting it “made many mistakes” and proposed limiting individual applications to the TCC.[71]
23. After the non-implementation of its initial ruling, the TCC handed down a new judgment in December 2023, again finding violations of Mr. Atalay’s rights and ordering his release.[72] The Court of Cassation once more refused to comply. As Mr. Atalay’s conviction became final, Parliament stripped him of his mandate.[73] The TCC declared this decision “null and void” in August 2024.[74] During an extraordinary parliamentary session to address this, an MP from Mr. Atalay’s party was physically attacked by a member of the presidential party.[75]
24. The examples discussed, including that of Mr. Atalay, highlight the intensifying political pressure and backlash against the TCC in cases where it has reached decisions concerning perceived dissidents. In a highly repressive political climate with severely eroded judicial independence, where dissent is often equated with ‘terrorism’ or ‘betrayal of the nation’, the ability of individuals to obtain redress for human rights violations through an individual application to the TCC is increasingly limited to those cases which favour the ruling parties.

25. Given the totality of the circumstances which raises the most serious concerns regarding the independence and effectiveness of the TCC, there appears to be a pressing need to reconsider the ECtHR’s previous presumption that the TCC remains an effective remedy in cases raising politically sensitive issues.

    Türkiye’s practices to evade Convention obligations and circumvent the implementation of the Court’s judgments

26. Turkish judicial authorities’ repeated abuse of criminal proceedings, including through, unreasonable  construal of provisions of criminal law and concomitant disregard for core procedural rights and the ECHR reveal a persistent defiance towards the ECtHR’s judgments and standards in its case-law.[76] According  to the Department for the Execution of Judgments, Türkiye has a staggering 141 leading ECtHR judgments, along with 315 repetitive cases, still pending implementation.[77] This makes Türkiye the worst performer in implementing leading cases among the 46 Council of Europe member states.
27. The non-implementation of the ECtHR’s two judgments concerning Mr. Kavala exemplifies Türkiye’s ongoing failure to comply with its international obligations. Another compelling example of this resistance is the continued arbitrary detention of former HDP co-chairs and MPs, Selahattin Demirtaş and Figen Yüksekdağ Şenoğlu, despite ECtHR rulings under Article 46 of the Convention requesting their release.[78] In addition, in the Yıldırım Turan case,[79] the TCC rejected the ECtHR’s finding in Alparslan Altan v Turkey and Baş v Turkey, contending that the ECtHR lacks the authority to determine the compatibility of detention measures with domestic law.[80]
28. The Committee of Ministers’ supervision of Türkiye’s systemic non-implementation of ECtHR judgments reveals recurring practices aimed at avoiding discharge of their Convention obligations, particularly in politically sensitive cases. These practices include: (i) judicial authorities’ actions aimed at circumventing national or ECtHR judgments or hinder effective legal protection; (ii) actions by government authorities that, while superficially cooperative in a procedural sense, impede the proper implementation of the ECtHR judgments; and (iii) practices reflecting overt non-compliance.
29. As regards the first category, the Turkish authorities frequently initiate overlapping criminal charges and proceedings based on the same or similar factual and legal grounds. This tactic has been well-documented in Kavala v. Turkey, Selahattin Demirtaş v. Turkey (no. 2), and Atilla Taş v. Turkey, where judicial authorities reclassified substantially the same facts as new ‘crimes’ to justify ongoing detention.[81] This practice was also highlighted in the Grand Chamber judgment in Kavala v. Türkiye.[82] In several cases against Mr. Kavala and others, the judicial authorities issued release orders that were not executed as other arrest and detention orders were placed simultaneously.[83] This represents discreet but systematic efforts by the judicial authorities to hinder access to justice.[84] The government, meanwhile, uses these tactics to bolster its narrative against perceived dissidents and legitimise its disregard for ECtHR judgments. Such practices amount to serious violations and abuse of legal process, especially when used to bypass judicial decisions by high national courts or by the ECtHR and to prevent individuals from securing effective protection of the law and the opportunity for release.[85]
30. Regarding the practices in the second category, while the Turkish government will typically point to “dialogue” and “cooperation” with the Council of Europe, actively participating in the monitoring process and submitting statements asserting that they are taking necessary steps to comply, the actions taken have often been superficial, symbolic and ultimately hollow.[86] There are numerous leading groups of cases against Türkiye pending implementation.[87] Although the Committee of Ministers strongly urged the authorities to consider legislative amendments on several occasions, the government authorities continued to refer to previous legislative amendments and maintained their position that there is no need for further action.[88] Moreover,  legislative acts presented as ‘judicial reforms’ in the context of addressing systemic issues have, in reality, worsened existing deficiencies in Convention compliance rather than resolving them as civil society reports reflect.[89]

31. In the third category, there has been outright refusal to comply with ECtHR rulings by both government and judicial authorities. In those cases, the government authorities have frontally challenged the ECtHR’s findings and the Committee of Ministers’ decisions, denying the need for reform and the existence of systemic issues.[90] Specifically, in cases concerning perceived dissidents, both the Turkish authorities have openly defied the ECtHR’s findings and questioned its authority to assess the compatibility of domestic law with the Convention, attempting to shift the narrative regarding applicants.[91] In some instances, the President and his governing coalition have publicly attacked the ECtHR rulings or those TCC judgments in line with the Convention,[92] in flagrant disregard for the Convention system and standards.

    Conclusion

32. The analyses in this submission reveal three fundamental issues that are highly relevant for the present case. Firstly, the erosion of judicial independence in Türkiye has reached a stage where domestic courts have acted to facilitate rather than remedy Convention violations and used to silence individuals who express dissent or criticize the authorities. Moreover, due to its structural deficiencies and recent practice, the TCC can no longer be regarded as an effective remedy for violations stemming from the widespread repression of human rights defenders, opposition politicians, and others engaged in politically disfavoured expression.  Lastly, Turkish authorities’ recurring practices also demonstrate that, they have adopted strategies in bad faith to continue silencing perceived dissidents in Türkiye, despite the growing number of ECtHR judgments finding serious human rights violations in such cases.