UN rapporteurs on Osman Kavala: 'Judgement of ECtHR binding on all courts in Türkiye'

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UN Special Rapporteurs shared on November 25 their communication on continued detention of businessperson Osman Kavala and the related infringement proceedings they have written to the government of Türkiye on September 21, 2022 with the public.

According to the announcement, the communication "remained confidential for 60 days before being made public, giving the Government time to reply."

The Rapporteurs noted that the government of Türkiye replied the communication on November 10, but did not address the allegations in the communication, and shared the allegations and concerns indicated in it with the public.

The communication sent to Türkiye on September 21 was signed by Mary Lawlor, the UN Special Rapporteur on Human Rights Defenders, Mumba Malila, Vice-President of the UN Working Group on Arbitrary Detention, Irene Khan, the UN Special Rapporteur for freedom of expression and opinion and Clement Nyaletsossi Voule, the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association.

The following allegations and concerns were expressed in the communication sent to the government on September 21, according to the statement by the Rapporteurs dated November 25.

"The judgement is binding on Türkiye and all of its courts"

"On 11 July 2022, the European Court of Human Rights (ECtHR) ruled that Türkiye had failed in its obligation to abide by the previous judgement the case, thus violating article 46 paragraph 1 of the European Convention on Human Rights. This is the second time in the 63 year history of the Court that a country has faced infringement proceedings for failing to implement a binding judgement of the ECtHR.

"The judgement is final, took effect immediately and is binding on Türkiye and all of its courts, including the Court of Cassation which is hearing Mr. Kavala's appeal against his unlawful conviction."

"Respect the decision and legitimacy of ECtHR"

"In the communication [written to the government of Türkiye], we expressed our utmost concern regarding the apparent denial of justice for Mr. Kavala, on whose case the highest human rights court in Europe has now twice issued legally binding judgements.

"We are deeply concerned that Mr. Kavala's case continued to be processed through domestic courts, and an aggravated life sentence handed down, despite the ECtHR ruling and the infringement proceedings which were underway.

"Such actions would be at odds with Türkiye's obligations under jurisdiction of the Court and may have far reaching consequences for human rights defenders and all those seeking justice on alleged violations of human rights in Türkiye.

"The refusal of Türkiye to abide by the judgement appears to furthermore be a direct attack on the credibility of the ECtHR and the inalienable human rights which it seeks to uphold. We are consequentially concerned about the broader significance that Türkiye's failure to abide by the judgement in the context of its commitment to uphold human rights domestically and provide pathways to justice.

"Indeed, we are deeply concerned that this case could have a chilling effect on individuals who wish to express themselves, demonstrate peacefully, assemble and participate in public and political life in Türkiye.

"We urge your Excellency's Government to respect the decision and legitimacy of the European Court of Human Rights and take begin the process of securing the freedom of Mr. Kavala, who has been detained arbitrarily for almost five years."

What did Türkiye say in response dated December 10?

UN Rapporteurs, also shared the response by Türkiye dated December 10 while sharing their communication sent to Türkiye.

The Permanent Mission of the Government of Türkiye to the United Nations Office, in its response given in the name of the Government of Türkiye, criticized the press release by Mary Lawlor, the UN Special Rapporteur on Human Rights Defenders on the situation of Osman Kavala. Türkiye stated that this was "a hasty press release" made without waiting for the reply of the government.
The government noted that the related press release was made "without giving the concerned State the opportunity of responding" and also that it was not in line with "the principles of objectivity, impartiality, non-selectivity, reciprocal constructive dialogue and cooperation as framed by core documents" of the UN.

The Government said that the UN Special Rapporteur on Human Rights Defenders had "reached a unilateral conclusion" "without waiting for the reply of the Government," and that "such an approach is not useful for constructive dialogue and protection of human rights."

Osman Kavala's imprisonment

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.

8 October 2021: Following the merging of the Gezi and çArşı cases, the first hearing was held. The İstanbul 13th High Criminal Court did not release Osman Kavala on the grounds of "strong criminal suspicion". One member of the court board expressed a dissenting opinion. None of the requests raised by the lawyers was accepted. In his defense at court, Osman Kavala said, "The continuation of my arrest on lame grounds is extrajudicial execution, it is an attempt to create a perception."

11 October 2021: The European Union Delegation to Turkey recalled that there was no ruling of conviction against Osman Kavala and said that the failure to release him despite the ECtHR ruling is extrajudicial. The Delegation demanded Kavala's immediate release.

18 October 2021: The Embassies of 10 countries (Germany, the United States of America, Denmark, Finland, France, the Netherlands, Sweden, Canada, Norway and New Zealand) called on Turkey to release Osman Kavala immediately.

19 October 2021: The Ministry of Foreign Affairs of Turkey summoned the ambassadors. President and ruling AKP Recep Tayyip Erdoğan and Minister of Interior Süleyman Soylu criminalized Osman Kavala even though he was not convicted and was acquitted before.

22 October 2021: Following the statements of Erdoğan, Kavala said that these remarks left "no possibility for a fair trial", adding, "I believe my participation in the hearings and presenting a defense would be meaningless."

23 October 2021: Erdoğan said that he instructed the Ministry of Foreign Affairs to declare the 10 ambassdors "personae non gratae".

25 October 2021: The ambassadors announced that they maintained compliance with Article 41 of Vienna Convention on Diplomatic Relations. The same day, Erdoğan welcomed these statements. The Court of Cassation and the Board of Judges and Prosecutors also made statements indicating that the judiciary is independent in Turkey.

26 October 2021: Nationalist Movement Party (MHP) Chair Devlet Bahçeli targeted the Constitutional Court through Osman Kavala, who had been behind bars for 4 years, and argued that the top court should be closed. He argued that the ECtHR rulings "became a leverage in the hands of the West.

27 October 2011: Speaking about the infringement proceedings that might be brought against Turkey over the failure to release Osman Kavala, Erdoğan said that "Turkey would go its own way".

2 November 2021: In his fourth year behind bars, Osman Kavala sent a message from prison: "After losing four years of my life and becoming an 'issue of the country', the only aspect I can find solace in is the possibility that the process I experienced could contribute to confronting the crucial problems in the judiciary of Turkey, thus, those who will be brought to justice in the future could receive a fairer treatment." Main opposition CHP Chair Kemal Kılıçdaroğlu also said, "There are Demirtaş and Kavala, who are unjustly held behind bars; this is unacceptable to my conscience."

26 November 2021: The second hearing of the merged çArşı and Gezi cases was held. At the hearing not attended by Osman Kavala, he was not released again. A member of the court board expressed a dissenting opinion to the ruling.

29 November 2021: Osman Kavala said the following about the charges against him: "The most striking characteristic of the espionage charge brought against me after the ECtHR decision to continue my arrest is that it is not based on the description of espionage in the laws."

2 December 2021: The Committee of Ministers of the Council of Europe decided to bring infringement proceedings against Turkey over its failure to implement the ECtHR ruling on Osman Kavala. In response to this, the Ministry of Foreign Affairs said, "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."

8 December 2021: Regarding the interim resolutions of the Committee of Ministers of the Council of Europe calling on Turkey to implement the ECtHR rulings on Selahattin Demirtaş and Osman Kavala and to release them immediately, President Erdoğan said, "We don't recognize the decisions taken by the European Union about Kavala, Demirtaş, this or that... This is so simple. We assume that 'they [decisions] do not exist'. In our eyes, these are null and void."

17 January 2022: The third hearing of the Gezi trial, which was merged with the çArşı case, was held. Osman Kavala did not attend the hearing as he previously announced that Erdoğan's remarks about him "left no possibility for a fair trial." The court ruled for the continuation of his detention.

2 February 2022: The Committee of Ministers of the Council of Europe officially launched infringement proceedings against Turkey because of its failure to release Osman Kavala despite a European Court of Human Rights (ECtHR) judgment.

21 February 2022: Handing down its interim ruling in the Gezi trial, the court board ruled that Osman Kavala's arrest should continue and the file of çArşı case, which had been previously merged with Gezi, should be separated from the file of Gezi.

4 March 2022: Announcing the opinion as to the accusations in the Gezi trial, the prosecutor requested aggravated life sentence for Osman Kavala and Mücella Yapıcı and up to 20 years in prison for other defendants Çiğdem Mater, Ali Hakan Altınay, Mine Özerden, Şerafettin Can Atalay, Tayfun Kahraman and Yiğit Ali Ekmekçi.

21 March 2022: While the final ruling was expected to be handed down, the court gave time to the defendants and their lawyers until April 22, 2022 as they objected, requesting time to make statements as to the accusations. The court rejected the requests for extending the investigation and ruled that Kavala's detention should continue.

25 April 2022: In the second session of the final hearing, the court sentenced Kavala to aggravated life imprisonment on charge of "attempting to overthrow the government" and Mücella Yapıcı, Çiğdem Mater, Hakan Altınay, Mine Özerden, Can Atalay, Tayfun Kahraman, Yiğit Ali Ekmekçi to 18 years in prison for "aiding" this offense charged.

(SD/PE/VK)