On 25 April 2022, Osman Kavala, a Turkish activist and philanthropist, was sentenced to life imprisonment by a court in Istanbul. Amnesty International was quick to condemn the decision as a “travesty of justice” that represented a “devastating blow” to human rights. The verdict followed Kavala’s continuous pre-trial detention in Turkey since November 2017. This occurred despite the European Court of Human Rights (ECtHR or “the Court”) calling for Kavala’s immediate release in a judgment issued in December 2019. The outcome for Kavala therefore raises doubts about the ability of the ECtHR to ensure the implementation of Court judgments by respondent states. Further, how the ECtHR now responds to the decision of the Istanbul court has the potential to define the legitimacy and effectiveness of the Court for years to come.

PRE-TRIAL DETENTION

Kavala was first arrested in October 2017 on suspicion of attempting to overthrow the Turkish Government and the constitutional order through force and violence. This was in connection to Kavala’s alleged involvement with the Gezi Park protests in 2013 and the attempted Turkish coup d’état in 2016. Following his arrest, Kavala was placed in pre-trial detention in Silivri Prison in Istanbul, where he continues to be held to date. All attempts by Kavala to end his pre-trial detention through the Turkish courts have been unsuccessful. 

APPLICATION BEFORE THE ECtHR

In June 2018, Kavala lodged an application with the ECtHR alleging that Turkey had violated several of his rights under the European Convention on Human Rights (ECHR), namely article 5 (“right to liberty and security”) and article 18 (“limitation on use of restrictions on rights”). In Kavala v. Turkey, issued in December 2019 and made final in May 2020, the ECtHR held that there had been a violation of Kavala’s rights under article 5(1) and (4) as well as article 18 taken together with article 5(1). In particular, the Court noted “that the authorities were unable to demonstrate that the applicant’s initial and continued pre-trial detention had been justified” and that Kavala “could not reasonably be suspected of having attempted to overthrow the Government by force or violence”. Crucially, the Court observed that the measures taken against Kavala “pursued an ulterior purpose, namely to reduce him to silence as an NGO activist and human rights defender”. Finally, the Court held that Turkey was to take all necessary measures to put an end to Kavala’s detention and secure his immediate release.

INFRINGEMENT PROCEEDINGS 

Following the ECtHR judgment, numerous calls on Turkey were made by the Committee of Ministers (as the body responsible for overseeing the implementation of ECtHR decisions) to end Kavala’s detention. These were ignored, and Kavala’s detention continued whilst he also faced further hearings and trials before the Turkish courts. In December 2021, the Committee of Ministers notified Turkey of its intention to start infringement proceedings against the state for failing to meet its ECHR obligation under article 46(1) to abide by final judgments of the Court. Infringement proceedings are the process by which the Committee of Ministers can refer a case of state non-compliance to the Grand Chamber (as the highest judicial formation of the ECtHR) using article 46(4) of the ECHR. In February 2022, the Committee of Ministers formally referred the case of Kavala v. Turkey to the Grand Chamber.

This was a highly significant step since, prior to this, infringement proceedings had only ever been used once against Azerbaijan in 2019, after the state failed to abide by the judgment in Ilgar Mammadov v. Azerbaijan. The case concerned similar facts to Kavala v. Turkey, namely the pre-trial detention of an activist, and the call for his immediate release by the ECtHR, which was subsequently ignored by the respondent state. The Grand Chamber issued its judgment in May 2019, holding that Azerbaijan had not met its obligations under article 46(1) of the ECHR. This decision did have an impact in that it led to Azerbaijan expunging the applicant’s criminal record. However, the applicant had already been released by the time the Grand Chamber reached its decision. The present case thus differs significantly, and Turkey clearly indicates no intention to release Kavala, having instead sentenced him to life imprisonment. The Grand Chamber’s upcoming judgment in the infringement proceedings against Turkey is therefore crucial in determining Kavala’s fate. 

FINAL THOUGHTS 

This author contends that there now needs to be a firm and clear judgment by the Grand Chamber that condemns Turkey’s complete failure to abide by a Court decision. This is necessary to set the precedent that non-compliance with ECtHR judgments will not be tolerated. However, the question then becomes what will happen if Turkey fails to release Kavala after a second judgment from the ECtHR? If this happens, it may then be time for more drastic consequences, such as the threat of Turkey’s suspension from the Council of Europe. Without this, the legitimacy of the ECtHR risks being irretrievably tarnished, and with it the credibility of human rights protections in Europe.

Jasmine holds an LLB from the University of Nottingham, where she fostered an interest in human rights law. She is currently involved with Citizens Advice and Forced to Flee and is due to start an LLM in Human Rights Law at UCL in September.

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