Turkey responds to CoE Committee of Ministers decision on Osman Kavala

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The Ministry of Foreign Affairs has criticized the Committee of Ministers of the Council of Europe over its decision to start an infringement process concerning Turkey's failure to implement an ECtHR judgment about jailed businessperson Osman Kavala.

The committee notified Turkey yesterday (December 2) of its intention of referring the Kavala case to the ECtHR to determine whether Turkey has executed the judgment, the ministry stated, confirming earlier reports.

"In line with the principle of respect for pending judicial proceedings, we call on the Council of Europe to avoid taking further steps, which would/mean interference in the independent judiciary.

"Everyone, and above all, the Committee of Ministers of the Council of Europe should respect and trust in legal proceedings conducted by independent and impartial courts."

The implemented judgments

"Being a founding member of the Council of Europe, Turkey is aware of its responsibilities stemming from the European Convention on Human Rights. Turkey so far executed 3,674 judgments of the European Court of Human Rights, 128 of which have been during this year.

"The Committee of Ministers, which supervises the execution of European Court of Human Rights judgments, has currently a large number of cases on its agenda. We view it as an inconsistent approach to regularly keep the Kavala judgment on the agenda, while there are older judgments concerning a variety of issues, which are yet to be executed by other States.

"Initiating certain mechanisms available under the European Convention of Human Rights, against certain countries based on political considerations rather than legal and equitable criteria undermines, first and foremost the reputation of the Council of Europe.

"If the Committee of Ministers of the Council of Europe wishes to maintain the effectiveness of the human rights system, it should stop this biased and selective approach and address the execution of ECtHR judgments in an impartial way with respect to all member States."

A summary of Osman Kavala's arrest

17 October 2017: Osman Kavala was detained.

1 November 2017: Kavala was ordered arrest on the charges of 'attempting to overthrow the government or to prevent it from exercising its functions' (Article 312 of the TCC) and 'attempting to overthrow the constitutional order through force and violence' (Article 309 of the TCC).

24 December 2018: The investigation files under Article 309 and 312 of the TCC were separated.

19 February 2019: The first indictment against Kavala was issued under Article 312 of the TCC 16 months after he was arrested.

11 October 2019: A release order was issued in favor of Kavala on the charge under Article 309 of the TCC.

10 December 2019: The ECtHR ruled that Kavala's detention constituted a violation of human rights and that he should be released immediately.

18 February 2020: A decision of acquittal was issued in the trial heard under Article 312 of the TCC.

19 February 2020: After the decision of acquittal, Kavala was not released but was arrested again on the charge under Article 309 of the TCC.

9 March 2020: Kavala was ordered arrest under Article 328 of the TCC.

20 March 2020: The second release order was issued in favor of Kavala under Article 309 of the TCC. However, his detention on the charge of espionage under Article 328 of the TCC continued.

3 September 2020: The Committee of Ministers of the Council of Europe, which oversees the execution of the judgments of the ECtHR, ruled that the judgment of the ECtHR should be executed and that Kavala should be released immediately.

29 September 2020: The Constitutional Court of the Republic of Turkey decided to examine the application of Kavala regarding his unlawful detention. However, it postponed the examination as the second indictment including the charges under Articles 309 and 328 (espionage) of the TCC was submitted to the court on the same day.

29 September 2020: In the second meeting in which this matter was discussed, the Committee of Ministers of the Council of Europe ruled that an interim decision should be drafted to be issued in the event that the judgment of the ECtHR is not executed.

3 December 2020: The Committee of Ministers of the Council of Europe issued an interim decision that Kavala should be released immediately and that the Constitutional Court should examine the file in accordance with the judgment of the ECtHR without further delay.

15 December 2020: The Constitutional Court decided to examine the application regarding the unlawful detention and ruled that the file should be referred to the General Assembly of the Constitutional Court.

18 December 2020: The 36th Assize Court ruled that the detention shall continue. The second hearing was scheduled on 5 February.

29 December 2020: The Constitutional Court ruled with 8 to 7 votes that the decision of Kavala did not constitute any violation of right. The reasoned judgment included the strongly dissenting opinions of the judges who voted that the detention constituted a violation of rights.

22 January 2021: The Appellate Court overturned the decision of acquittal in the Gezi trial. It ruled that the file concerning this trial shall be examined together with the files under Articles 309 and 328 of the TCC.

28 January 2021: After the decision of acquittal was overturned, the 30th Assize Court issued a preliminary proceedings report and scheduled the trial concerning the consolidated files on 21 May 2021.

5 February 2021: In the trial heard in the 36th Assize Court, the Court ruled that Kavala's trial shall be consolidated with the Gezi Trial, which will be heard again in the 30th Assize Court under Article 312 of the TCC, and that the detention of Kavala on the charges of espionage under Article 328 of the TCC shall continue.

30 April 2021: As a result of its examination of the detention, the 30th Assize Court ruled that the detention of Kavala shall continue.

12 May 2021: In its weekly meeting of 12 May 2021, the Committee of Ministers of the Council of Europe reviewed Kavala's file and expressed their great concern that Turkish authorities and courts did not take the necessary steps to end Kavala's the continued detention against the judgment of the ECtHR. The Committee urged the member states to bring up the continued detention and immediate release of Kavala during their meetings with Turkish authorities. It pointed out that the detention of Kavala would be reviewed again by the 30th Assize Court on 21 May 2021, and urged the authorities to take all the necessary steps to ensure the release of Kavala.

21 May 2021: At the hearing held by the İstanbul 30th High Criminal Court, the court board ruled that Osman Kavala's arrest on "espionage" charges should continue. The court board also demanded that the Gezi file about the çArşı group should be examined in consideration of a possible merging of the cases and be sent back to the court.

9 June 2021: The Committee of Ministers of the Council of Europe announced that it would bring infringement proceedings against Turkey in the event of Turkey's continued failure to implement the ECtHR ruling on Kavala. It noted that his imprisonment was against international law and Kavala should be released immediately.

28 July 2021: Temporarily appointed as the Presiding Judge of the 13th High Criminal Court during the judicial recess, the Presiding Judge of the İstanbul 30th High Criminal Court, as the Presiding Judge of the local court which had not given consent, gave consent to his own request for merging the cases.

2 August 2021: Even though the İstanbul 30th High Criminal Court was to hold a hearing on August 6, it held a hearing four days before, ruled by a majority of votes that the case should be merged with the ongoing case at the İstanbul 13th High Criminal Court and Osman Kavala's arrest should continue.

17 September 2021: The Committee of Ministers of the Council of Europe decided to wait before imposing sanctions on Turkey over its failure to implement the ECtHR rulings on Osman Kavala and Selahattin Demirtaş, the jailed former Co-Chair of the Peoples' Democratic Party (HDP). It reiterated its call for Kavala's release.

CLICK - Committee of Ministers of Council of Europe: Release Demirtaş and Kavala

(KÖ/VK)