NGOs urge infringement proceedings against Turkey for 'defying ECtHR ruling on Kavala'

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Ahead of today meeting (September 14), the Human Rights Watch (HRW), the International Commission of Jurists, and the Turkey Litigation Support Project have released a joint statement and said, "The Council of Europe Committee of Ministers should trigger infringement proceedings against Turkey at its September 14-16, 2021 meeting for its failure to implement the European Court of Human Rights' (ECtHR) judgment ordering the release of the jailed human rights defender Osman Kavala."

The three NGOs have made the recommendation in a submission to the Committee of Ministers, providing a full update on the latest developments in the ongoing legal proceedings against Kavala.

Demirtaş will also be on the agenda

As indicated by the three organizations in their joint statement, the Committee of Ministers' September meeting will also examine the state of implementation of another leading ECtHR judgment ordering the immediate release of former Co-Chair of the Peoples' Democratic Party (HDP) Selahattin Demirtaş, "which the Turkish government continues to defy."

The three organizations, along with Article 19 and the International Federation for Human Rights, have also made a submission to the Committee of Ministers on developments in the Demirtaş case, calling on the Committee to "urge the government to ensure his immediate release."

Aisling Reidy, a senior legal adviser at the HRW, has said, "In the face of Turkey's persistent and flagrant defiance of its obligation to implement the Kavala judgment, the Committee should trigger infringement proceedings against Turkey. The committee should also call for the immediate release of Demirtaş with a commitment to escalating measures if it does not happen."

Kavala and Demirtaş judgements

The ECtHR ruled on December 10, 2019, that by holding Kavala in pretrial detention since November 2017 and prosecuting him on the basis of his human rights activities, the authorities had "pursued an ulterior purpose, namely to silence him as a human rights defender."

Similarly, the ECtHR ruled on December 22, 2020, that by holding former HDP Co-Chair Selahattin Demirtaş in pretrial detention since November 2016 and prosecuting him for activities and speeches protected under the European Convention on Human Rights (ECHR), the authorities in Turkey sought to prevent him from carrying out his political activities.

The ECtHR concluded that this situation deprived voters of their elected representative, and resulted in "stifling pluralism and limiting freedom of political debate: the very core of the concept of a democratic society."

In both cases, the court found that by using detention for political ends, Turkey had violated Kavala's and Demirtaş's rights, including the right to liberty, and had abused the discretion given to governments to impose legitimate limitations on rights (articles 5 and 18 of the ECHR respectively). The court took the rare step of ordering immediate release of both.

"The Committee of Ministers should take note of the Turkish authorities' repeated tactics in the Kavala and Demirtaş cases aimed at ensuring the prolongation of their unlawful detention and circumventing the authority of the European Court," said Ayşe Bingöl Demir from the Turkey Litigation Support Project, adding, "The committee should pursue robust measures against Turkey to press for full implementation of the judgments and end a cycle of malpractice which flagrantly violates Turkey's obligations under the ECHR."

About the Committee of Ministers

The Committee of Ministers has the authority to take infringement proceedings against a Council of Europe member state that refuses to carry out European Court judgments. It was used for the first time in 2017 when the government of Azerbaijan repeatedly refused to secure the unconditional release of a wrongfully jailed opposition politician, Ilgar Mammadov.

Infringement proceedings are provided for under article 46/4 of the ECHR. Two-thirds of the Committee of Ministers need to vote to start infringement proceedings. Once the process is triggered, the case reverts to the ECtHR for a further opinion on whether the state has met its obligations to comply with the judgment. If the ECtHR confirms that Turkey has failed to carry out the ruling, the Committee of Ministers may then take additional measures, including ultimately suspending Turkey's voting rights or membership of the Council of Europe. (PT/SD)