On 10 December 2019, the European Court of Human Rights (ECtHR) marked Human Rights Day by issuing a judgment of great potential significance in the case of Osman Kavala, a prominent human rights activist who has been detained for his alleged role in the 2013 Gezi Park Protests and the July 2016 coup attempt. In Kavala v Turkey, the Court found violations of Article 5(1) of the European Convention on Human Rights (Convention) on the lack of reasonable suspicion that the applicant had committed an offence; Article 5(4) of the Convention on the lack of a speedy judicial review on arbitrary detention; and Article 18 of the Convention, on the prohibition of restrictions of rights for unauthorised purposes, in conjunction with Article 5(1).
Both the timing and the content of the judgment are significant. Delivered in the weeks before the Turkish court is due to hear Mr Kavala’s criminal case, on 24-25 December 2019, the decision sends a very strong message to the Turkish judiciary. Moreover, the case is emblematic of broader current trends in Turkey and has raised human rights issues of significance to hundreds of other cases underway before the Turkish courts. As a joint third-party intervention before the ECtHR, submitted by the TLSP and PEN International, made clear, these issues include the human rights implications of closing civil society space in Turkey and the repression of human rights defenders including through excessive resort to criminal law.
The applicant Osman Kavala was arrested in Istanbul in October 2017 on the alleged suspicion of attempting to abolish constitutional order (Article 309 of the Criminal Code) and overthrow the government (Article 312 of the Criminal Code). The charges relate to his alleged involvement in the 2013 Gezi Park Protests. The protests, which began as a challenge to government plans to destroy Gezi Park in İstanbul and create a shopping centre later triggered a wave of demonstrations against restrictive government policies across Turkey, and were characterised by the prosecutor as a “riot to overthrow the government” and “supported by many terrorists.” On 1 November 2017, Mr Kavala was brought before the 1st Magistrate’s Court (Criminal Peace Judgeship) in Istanbul, where he denied the charges and highlighted that he had been campaigning for peace and for the defence of human rights. At the end of this hearing, Mr Kavala was placed in detention on the grounds that there was evidence to suggest he had organised the Gezi Park Protests and had contacts with the alleged organizers of the July 2016 coup attempt.
On 29 December 2017, Mr Kavala lodged an individual application with the Constitutional Court claiming violation of, inter alia, Article 19 of the Constitution, corresponding to the rights guaranteed under the Convention. In a controversial majority decision, discussed in detail by TLSP here, the Constitutional Court endorsed the prosecutor’s perception that the Gezi Park Protests had been violent and aimed at overthrowing the government, and that the applicant had taken part in and financed activities and meetings contributing to this aim. Five dissenting judges challenged the majority on the grounds that there was in fact no evidence substantiating links between the applicant’s conduct and the violent incidents highlighted by the authorities. The majority however decided that the applicant’s pre-trial detention was lawful based on a reasonable suspicion and was proportionate given the difficulties in investigating terrorism related offences.
In his case before the ECtHR, Mr Kavala relied on Articles 5(1)(c) and 5(3) of the Convention to challenge the lawfulness of his initial and continued pre-trial detention. He argued that the lack of evidence of any plausible grounds for suspecting him of criminal activity rendered the detention unlawful. The ECtHR agreed, finding “in the absence of facts information or evidence showing he had been involved in criminal activity – that the applicant could not be reasonably suspected of having committed the offence of attempting to overthrow the Government.” The Court reached the same conclusion in relation to Mr Kavala’s alleged involvement in the attempted coup (para 153).
The Court’s willingness to consider the facts and evidence and find that it provided no reasonable basis for suspicion, or detention, was significant. But in a passage that provokes particular interest in light of Mr Kavala’s impending trial, the ECtHR went further, making clear that the impugned conduct could not reasonably be seen to constitute a crime at all, but rather legitimate human rights related activity. It noted that the applicant’s continued pre-trial detention was “based not only on facts that cannot be reasonably considered as behaviour criminalised under domestic law, but also on facts which were largely related to the exercise of Convention rights. The very fact that such acts were included in the bill of indictment as the constituent elements of an offence in itself diminishes the reasonableness of the suspicions in question” (para 157).
The Court found a lack of speedy judicial review governing detention under Article 5(4) of the Convention. Mr Kavala argued that several factors (including lack of access to the case file and non-compliance with the principles of equality of arms amongst others) had prevented him from being able to effectively challenge his detention, and that the proceedings before the Constitutional Court did not respect the requirement of speedy judicial review. Again, the ECtHR agreed, finding that given what was at stake for the applicant, the total duration of over 16 months of the Constitutional Court’s review could not be considered compatible with the “speediness” requirement of Article 5(4) (para 185). Of special note, with important implications for future cases, is the Court’s observation that “the excessive workload of the Constitutional Court cannot be used as perpetual justification for excessively long procedures […] It is for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of Article 5(4) of the Convention” (para 188).
Lastly, the applicant submitted that his detention was in breach of Article 18 of the Convention as it was imposed for a purpose other than that envisaged by Article 5, namely to silence him as an NGO activist and human rights defender, to dissuade others from engaging in such activities and to paralyse civil society in the country. Reflecting our third-party intervention, the Court found that following the attempted coup, the government had misused “legitimate concerns in order to redouble its already significant crackdown on human rights, inter alia, by placing dissenters in pre-trial detention.” (para 214). In a significant finding, the second such finding against Turkey following its previous judgment in Selahattin Demirtaş v Turkey (No. 2), the Court held that applicant’s initial and continued detention pursued an ulterior purpose, namely to reduce him to silence as a human rights defender.
In support of its finding on Article 18, the ECtHR highlighted the fact that during police interviews, Mr Kavala was asked many questions which had no connection with the charges. This included questions about his meetings with representatives of foreign countries, his telephone conversations with academics, journalists, NGO representatives and the visit of an EU delegation – none of which appeared to be relevant to assessing the “reasonableness” of the suspicion underlying the charges. The Court noted that many of these are the “ordinary and legitimate activities on the part of a human rights defender and the leader of an NGO” (para 223).
In an indictment of the Turkish prosecution, the judgment found that “the inclusion of these elements undermines the prosecution’s credibility. In addition, the prosecution’s attitude could be considered such as to confirm the applicant’s assertion that the measures taken against him pursued an ulterior purpose, namely to reduce him to silence as an NGO activist and human-rights defender, to dissuade other persons from engaging is such activities and to paralyse civil society in the country” (para 224).
In addition, the Court found the time-frame of the case to be relevant to an assessment of Article 18 of the Convention, specifically the fact that the applicant was arrested more than four years after the Gezi Park Protests and more than a year after the attempted coup (para 226).
Lastly, the Court noted that the charges were brought against the applicant in February 2019, over a year after his initial detention of November 2017, and following speeches given by the President of the Republic. The Court made references to two specific speeches the President gave in November and December 2018, in which he spoke about the financing of the Gezi Park events and openly cited the applicant’s name: “I have already disclosed the names of those behind Gezi. I said that its external pillar was G.S., and the national pillar was Kavala.” The Court held it could not overlook the fact that “when these two speeches were given, the applicant who had been held in pre-trial detention for more than a year, had still not been officially charged by the prosecutor’s office. In addition, it can only be noted that there is a correlation between, on the one hand, the accusations made openly against the applicant in these two public speeches and, on the other, the wording of the charges in the bill of indictment, filed about three months after the speeches in question” (para 229).
Taking into account these elements, and the consideration that Mr Kavala’s detention was “part of a wider campaign of the repression of human rights defenders in Turkey,” which was endorsed by third-party interveners, the Court found a violation of Article 18 and noted its wider chilling effect on the rest of civil society (para 230). Based on its findings summarised above, the Court invited Turkey to take all necessary measures to end violations and secure Mr Kavala’s “immediate release.”
The judgment of the ECtHR is significant in several respects. It is the first case the ECtHR has concluded in relation to the worrying trend of arbitrary use of criminal law against human rights defenders in the country following the coup attempt. The rare findings of Articles 5(1) and, particularly, Article 18 violations, and the strident criticism the Court directed to the investigating authorities and the executive, are noteworthy. It is also the first time that the ECtHR found that the Constitutional Court’s ability to provide a speedy remedy to those challenging their pre-trial detentions, in this case, fell short of the Convention standards, which it had alluded to in its rulings on Mehmet Hasan Altan v Turkey (para 166) and Şahin Alpay v Turkey (para 138). The Court’s unequivocal indication that Mr Kavala must now be released without delay presents a clear test for the Turkish state. As of 19 December 2019, Osman Kavala was still in detention without any indication on his release.
