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Call for the immediate release of Osman Kavala

Resolution 2518 (2023)

Parliamentary Assembly
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.