Call for the immediate release of Osman Kavala
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 12 October 2023 (23rd sitting) (see Doc.15841, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Ms Petra Bayr). Text
adopted by the Assembly on 12 October 2023 (23rd sitting).See
also Recommendation 2261
(2023).
1. The Parliamentary Assembly recalls
that Osman Kavala, a human rights defender and philanthropist, has
been detained in Türkiye since 18 October 2017, charged with three
different offences in an alternating manner which has led to his
continuous detention. He was initially detained on charges of having
sought to overthrow the constitutional order and the government
through force and violence in relation to the 2013 Gezi Park (Istanbul)
demonstrations and the 2016 attempted coup. Osman Kavala was subsequently
acquitted in a domestic judgment of 18 February 2020. This did not
lead to his release. Instead, the Council of Judges and Prosecutors
initiated a preliminary investigation to consider taking disciplinary
action against the three judges who acquitted Osman Kavala and the
prosecution appealed his acquittal. On 25 April 2022, the first
instance court convicted Mr Kavala for attempting to overthrow the
government by force, only with respect to the Gezi Park events,
and sentenced him to aggravated life imprisonment. The charges in
respect of the attempted coup were not part of his conviction. He
was also acquitted of additional charges relating to espionage,
which had been added since his initial detention. On 28 December
2022, the Istanbul Regional Court of Appeal rejected Mr Kavala’s
appeal against the conviction and sentence and, on 28 September
2023, the Court of Cassation rejected his further appeal, meaning
that his conviction and aggravated life sentence are now final.
2. Throughout the process, the prosecution’s reasoning has been
based on Mr Kavala having met with the then Council of Europe Commissioner
for Human Rights, members of the European Parliament, diplomats
and journalists; having assisted individuals to file applications
before the European Court of Human Rights (“the Court”); knowing
members of civil society in Türkiye and internationally; having
peacefully participated in demonstrations; and having performed
other work to further human rights causes, such as supporting people in
exercising their right to freedom of expression, association and
assembly. None of these elements shows criminal conduct; indeed
these are all activities that fall within the classic role of a
human rights defender and many of them, if not all, involve the
ordinary exercise of the rights enshrined in the European Convention
on Human Rights (ETS No. 5, “the Convention”).
3. The Assembly further recalls that the Court found in 2019
that Osman Kavala’s detention was in violation of, inter alia, Article 18 taken together
with Article 5(1) of the Convention as it was “established beyond reasonable
doubt that [his detention] pursued an ulterior purpose … namely
that of reducing the applicant to silence”. In particular, the Court
found that the evidence against him was not sufficient even to warrant
a reasonable suspicion that he had committed these offences. Indeed,
in the 2019 judgment, the Court examined the indictment in great
detail and held that there was no credible evidence to plausibly
conclude that there existed a reasonable suspicion in support of
criminal charges, let alone such a serious charge. The Court also held
that Türkiye was to take all necessary measures to put an end to
Mr Kavala’s detention and to secure his immediate release.
4. Judgments of the Court finding a violation of Article 18 of
the Convention – essentially an intentional violation for ulterior
motives – are rare in the history of the Convention, but it is of
extreme concern that any such cases should exist within the Council
of Europe member States. Moreover, in line with the criteria set
out in Resolution 1900 (2012), the finding of a violation of Article
18 clearly indicates that Osman Kavala falls within the Assembly’s
definition of political prisoner.
5. The Assembly stresses that, under Article 46(1) of the Convention,
member States are bound to comply with final judgments of the Court.
However, in spite of a clear judgment of the Court requiring his
immediate release and clear, repeated decisions and resolutions
of the Committee of Ministers calling for his immediate release,
as well as similar calls in Assembly resolutions, the Turkish authorities
have, up until now, not released Osman Kavala. Indeed, the Turkish
authorities continued with his detention, prosecution and conviction
even though the evidence against him in the case file was not credible
enough to warrant even a reasonable suspicion that he had committed
these offences, let alone a prosecution or a conviction.
6. This led the Committee of Ministers of the Council of Europe
to refer the case to the Court under Article 46(4) of the Convention,
questioning whether Türkiye had fulfilled its obligation to implement
the 2019 judgment, thus initiating infringement proceedings. In
its judgment of 11 July 2022, in the infringement proceedings under
Article 46(4), the Court held that Türkiye had indeed failed to
fulfil its obligation under Article 46(1) to abide by its Kavala
judgment. It found that the additional charges of espionage were
based on identical facts to its previous findings, thus there was
still no reasonable suspicion that Mr Kavala had committed any criminal
offence. It also stated that the primary obligation to release Osman
Kavala, resulting from the initial judgment, continued to exist.
7. The Assembly notes that Article 46(4) judgments are extraordinarily
rare; the Kavala judgment is only the second such judgment ever
handed down and this is the only case of a member State failing
to implement a judgment even following an Article 46(4) judgment.
8. The Assembly is deeply concerned that, despite the clear obligation
on Türkiye to immediately release Osman Kavala, he remains in prison.
The continued refusal by the Turkish authorities to effectively
execute this judgment is not only a personal tragedy for Osman Kavala
and his family, it is also a tragedy for the rule of law and justice
in Türkiye. Domestic courts, in the various judgments relating to
Osman Kavala, have not meaningfully engaged with the findings of
the European Court of Human Rights when reviewing his case and have
certainly not respected those judgments. Given that the Turkish
Constitution gives precedence to the provisions of international
treaties duly in force in the event of a conflict as to the scope
of fundamental rights and freedoms between the treaty and a domestic
statute, this is difficult to understand.
9. Following the recent Court of Cassation judgment, which did
not even mention the Kavala judgments of the European Court of Human
Rights, Mr Kavala’s conviction has become final and the Turkish
courts that dealt with Mr Kavala’s case have proved themselves neither
able nor willing to respect Türkiye’s international human rights
obligations in this matter. Although Mr Kavala may now avail himself
of the right to individual application to the Constitutional Court,
it is questionable whether he has a real prospect of success, given
the Constitutional Court’s decision on his previous application
concerning the unlawfulness of his detention.
10. The Assembly insists that it is incumbent upon the Turkish
authorities, at the highest levels, to take swift and meaningful
action to comply with the Court’s judgment and to release Osman
Kavala immediately. Türkiye has an obligation to execute binding
judgments of the Court and a refusal to do so is incompatible with
its international obligations. Such a refusal casts a shadow on
the commitment of Türkiye to respect the rule of law, human rights
and democratic values, which are central for all Council of Europe
member States. Thus, in light of the present exceptional circumstances,
the Assembly believes that the time has now arrived to take steps
to initiate the complementary joint procedure foreseen in its
Resolution 2319 (2020).
11. The Assembly regrets the role played by Turkish prosecutors
and judges who dealt with Osman Kavala’s case in ensuring, through
misuse of the law, his unlawful detention, prosecution and conviction.
It is incumbent upon Türkiye to ensure that prosecutors and judges
exercise the powers that have been bestowed upon them in full compliance
with the rule of law, the interests of justice and human rights.
12. This truly exceptional case is undermining the basis of the
Convention system as a whole. It is imperative that action be taken
swiftly to secure the release of Osman Kavala and to ensure that
Türkiye upholds the rule of law and human rights and implements
the two Kavala judgments of the Court.
13. The Assembly therefore calls on Türkiye to:
13.1 respect its international obligations
under the Statute of the Council of Europe (ETS No. 1) and under
the European Convention on Human Rights;
13.2 in accordance with Article 46(1) of the Convention, comply
with binding judgments of the Court and, in particular, to immediately
release the human rights defender, Osman Kavala, who remains unlawfully
detained in Türkiye;
13.3 urgently improve the legal framework and conditions for
respecting the rule of law, the independence of the judiciary, the
protection of human rights and compliance with the Court’s judgments within
Türkiye, so that judges can act in accordance with their constitutional
roles, with sufficient guarantees that their independence will not
be interfered with, that judges and prosecutors are not enabled
or do not feel encouraged to misuse the law for ulterior purposes,
and to ensure that systemic failures are addressed, including through
urgent reform of the Council of Judges and Prosecutors, using the
relevant expertise of the Council of Europe.
14. The Assembly calls on Council of Europe member and observer
States and the European Union to:
14.1 engage
with the Turkish authorities at the highest levels to urge the immediate
release of human rights defender Osman Kavala;
14.2 undertake, as a matter of urgency, action to support improvements
to the protection of the rule of law and of human rights in Türkiye;
14.3 apply, should Türkiye fail to release Osman Kavala, “Magnitsky
legislation” or other existing legal instruments to impose targeted
sanctions against those officials, including prosecutors and judges,
who are responsible for the unlawful and arbitrary deprivation of
liberty of Osman Kavala.
15. This fundamental issue is also part of the dialogue between
the European Union and Türkiye and, in this context, the Assembly
calls on the European Union to take full account of this serious
situation when determining its financial support to Türkiye, so
that priority is given to work that promotes pluralism in a society which
respects human rights and the rule of law.
16. If Osman Kavala has not been released from prison by 1 January
2024, this Assembly recalls its ability to challenge the credentials
of the Turkish delegation at its first part-session of 2024.
17. For its part, the Assembly stands ready to work together closely
with the Committee of Ministers, the Secretary General and Türkiye
in ensuring the execution of the Kavala judgment and in securing
the protection of the Convention system as a whole, and ultimately
the credibility of the Organisation, also in line with the Reykjavik
Declaration and the emphasis it puts on the execution of the Court’s
judgments.
