Update on the Infringement Proceedings in the case of Osman Kavala

Photo Credit: Amnesty International

Background: the first Kavala judgment and the call for infringement proceedings

Osman Kavala is a Turkish businessman and human rights philanthropist. In May 2020, the European Court of Human Rights ruled that his arrest and detention took place in the absence of evidence to support a reasonable suspicion he had committed an offence and also that it pursued an ulterior purpose, namely to silence him and dissuade other human rights defenders. Under Article 46 of the European Convention on Human Rights, the Court held that the Turkish government must take every measure to put an end to Kavala’s detention and to secure his immediate release.

Over two years since the Court’s judgment became final, the applicant remains in detention, following additional rulings by the Turkish courts and new charges brought by the Turkish authorities. Civil society organisations have been advocating for the implementation of this judgment, calling on the Council of Europe Committee of Ministers to demand his immediate release.

After seven decisions and two interim resolutions, in December 2021, the Committee of Ministers served formal notice on the Turkish government of its intention to refer the case back to the Court, in accordance with “infringement proceedings” under Article 46, paragraph 4, of the Conventions.

What are infringement proceedings?

Under Article 46 (4) of the ECHR, if the Committee of Ministers considers that a state refuses to abide by a final judgment, it may refer to the ECtHR the question whether that state has failed to fulfil its obligation. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken.

This mechanism was introduced in 2010 as a new means of facilitating implementation. It requires a two thirds majority of the Committee of Ministers. It has only been invoked once before, in the case of Azerbaijani opposition politician Ilgar Mammadov.

Kavala v. Turkey (Article 46 § 4 Procedure): What did the ECtHR rule?

In today’s Grand Chamber judgment in the proceedings under Article 46 § 4, the European Court of Human Rights held that there had been a violation of Article 46 § 1 of the ECHR - and that the Turkish authorities had acted in bad faith.

The Court concluded that neither the new decisions on Mr Kavala’s detention nor the bill of indictment contained any substantially new facts capable of justifying this new suspicion. As during Mr Kavala’s initial detention, the investigating authorities had once again referred to numerous acts which were carried out entirely lawfully to justify his continued pre-trial detention.

Mr Kavala is still deprived of his liberty. The Court considered that the measures indicated by Türkiye did not permit it to conclude that the State Party had acted in “good faith”, in a manner compatible with the “conclusions and spirit” of the Kavala judgment, or in a way that would have made practical and effective the protection of the Convention rights which the Court had found to have been violated in that judgment.

What does the ruling mean for Osman Kavala and for Turkey?

The second ECtHR judgment confirms that the Council of Europe and the European Court have both agreed that the Turkish government has failed to comply with its international human rights obligations by refusing to release Osman Kavala. The strongest tool at their disposal has been employed to convey this message and to compel Turkey to implement the judgment.

The failure to implement is now a settled judicial fact. The government’s attempts to employ judicial tactics in order to circumvent implementation will no longer be accepted for examination in Strasbourg. Every new day that Kavala spends in prison represents an undebatable and overt refusal to accept the principle of the rule of law, the will of the Member states and, of course, the enjoyment of Kavala’s right to liberty and security.

What happens now?

The Turkish authorities should immediately release Osman Kavala and reverse the consequences of the criminal procedures against him - including a full acquittal.

If the Turkish government does not release Mr Kavala, the Committee of Ministers will decide on the sanctions which should be applied against Türkiye. If Türkiye refuses to collaborate sincerely and effectively to implement this case, the Committee of Ministers can suspend its rights of representation and request Türkiye to withdraw as a member; it may also decide to end Türkiye’s membership to the Council of Europe.

For Türkiye, this is a crucial moment and a last chance to pass the minimum threshold required to be a part of the European community of democracies.