December 12, 2019
On 10 December 2019, the European Court of Human Rights (ECtHR or Court) delivered its much-awaited decision in the case of Osman Kavala v. Turkey, an application lodged by a human rights defender and philanthropist to challenge his arbitrary arrest and subsequent placement in pre-trial detention in relation to the Gezi Park events and the 15 July 2016 attempted coup. The application had been pending before Strasbourg since 8 June 2018. In line with its priority policy that has been previously implemented in the group of cases concerning detained journalists and academics in Turkey, the Court decided to grant priority to Osman Kavala’s case on 23 August 2018 and it was hence communicated to Turkey on 30 August 2018. In its judgment, the ECtHR found several violations (see below). Arguably, the finding of an Article 18 violation in conjunction with Article 5(1) (c), among other violations, is the most significant part of the judgment and yet comes as no surprise. Following the Court’s earlier ruling in Selahattin Demirtas v. Turkey, this makes it the second Article 18 case decided against Turkey, which adds to the steady evolution of the burgeoning case law (see, inter alia, the Grand Chamber’s Merabishvili v. Georgia).
The Osman Kavala case is emblematic of many existing problems in Turkey. While each issue deserves close attention in its own right, they are also inextricably intertwined. Each issue is either a result or a cause of one another – factors that cumulatively contributed to the judicial farce and injustice that Kavala faced domestically. So one cannot help but think about the Matryoshka dolls when looking at the oddities of the particular case. This blog post focuses in on the ECtHR’s substantive findings in the judgment and see whether the Court went further into the unraveling of the Matryoshka dolls in Turkey. Some background information and details of the ECtHR’s judgment will first be presented.
Osman Kavala is a businessman and a prominent civil society activist in Turkey. He was arrested on 18 October 2017 on suspicion of attempting to overthrow the Government and the constitutional order through force and violence (proscribed by Articles 309 and 312 of the Turkish Criminal Code) – charges linked to the Gezi Park events and to the attempted coup d’état of 15 July 2016 respectively. In response to the ruling party’s (“AKP”) urban development project that would have destroyed the Gezi Park to build a shopping center, a peaceful environmental sit-in was organised in May 2013. The police responded with violence and raided the park with tear gas and pressurised water in order to disperse the protesters. The protest escalated over the following months and spread to several cities across Turkey, over the course of which four civilians and two police officers were killed and thousand of people injured.
In justifying Kavala’s pre-trial detention on 1 November 2017, the Turkish magistrate court found that there existed concrete evidence indicating that he had led, organised and financially supported the Gezi Park events, an insurrection orchestrated with the involvement of terrorist organisations aimed at overthrowing the Government. As regards the charge concerning the 15 July attempted coup, the magistrate alleged that Kavala had been in contact with H.J.B. (Professor Henri J. Barkey, allegedly one of the instigators of the attempted coup), on 18 July 2016 (on the basis of reports from base transceiver stations that their mobiles emitted signals from the same station).
In the period between 1 November 2017 and 15 February 2019, Kavala submitted several applications for his release, all of which has been dismissed. Eventually, on 19 February 2019, the Istanbul public prosecutor filed a bill of indictment in respect of Kavala and 15 other suspects, including actors, NGO leaders and journalists, accusing them of having attempted to overthrow the Government by force and violence within the meaning of Article 312 of the Criminal Code (-thus disjoining the criminal investigation into the accusation under Article 309 of having attempted to overthrow of the constitutional order). The prosecutor mainly relied on the following evidence: the statements of an anonymous witness (M.P) accusing Kavala of acting for G.S. (George Soros) and of organizing and financing ‘the Gezi insurrection’; transcripts of numerous telephone conversations, surveillance reports of his several meetings and exchanges of messages that Kavala had during and after the Gezi events with journalist and leaders of several NGOs, and representatives of foreign countries; and his relationship with Professor Barkey.
In the meantime, on 29 December 2017 Kavala submitted an individual application before the Turkish Constitutional Court (TCC). On 28 June 2019, the TCC found no violation of Article 19 of the Turkish Constitution (counterpart to Article 5 ECHR) holding that there existed factual evidence giving rise to a strong suspicion that Kavala had committed the alleged offence during the Gezi events, the ultimate aim of which was the overthrow of the Government; his detention was thus neither arbitrary nor unjustified.
The Court’s judgment
In examining the alleged lack of reasonable suspicion grounding Kavala’s detention, the Court first noted that its task is to verify whether there existed sufficient objective elements that could lead an objective observer to reasonably believe that the applicant might have committed the offences with which he has been charged (para.136). It then turned the evidence produced to justify the suspicions in respect of the two alleged offences. The Court noted that neither the Turkish magistrate’s detention order of 1 November 2017 nor the subsequent detention orders contained any material evidence indicating that he had used force or violence, had instigated or led the violent acts during the Gezi Park events or had provided support for such criminal conduct (para.143). According to the Court, the evidence in the bill of indictment was also inconclusive as it shed no light on which of Kavala’s actions amounted to criminal conduct; nor does it provide justification for the suspicions against him (para.148). Accordingly, the Court concluded in the absence of facts, information or evidence showing that he had been involved in criminal activity, the deprivation of his liberty was not based on a reasonable suspicion. (para.156). The Court furthermore held that the detention order based on a mere suspicion and insufficient evidence cannot be said to have been strictly required by the exigencies of the situation in light of Turkey’s derogation pursuant to Article 15 ECHR in the aftermath of the 15 July attempted coup. (para. 158)
With regard to the speediness requirement under Article 5(4) ECHR, the Court noted that around 18 months had elapsed between the date on which Kavala lodged an application before the TCC (29 December 2017) and the date on which that TCC published its final judgment (28 June 2019) (para.185). The Court had already accepted that the TCC’s review might take longer against the backlog in its workload following the declaration of a state of emergency in the Mehmet Altan and Sahin Alpay cases. In those cases, the Court found that the speediness requirement had been complied with notwithstanding the length of proceedings (more than 14 and 16 months respectively). However, as the length of proceedings in the Kavala case exceeds these two time periods, the Court concluded that the time-period in question was unduly long and could not be described as “speedy” within the meaning of Article 5(4) ECHR (para.196).
As regards Kavala’s contention that there was an ulterior purpose behind his pre-trial detention, namely to reduce him to silence as a human-rights defender, the Court reiterated that a restriction on rights may serve more than one purpose and an Article 18 claim will only succeed if the predominant purpose is not prescribed by the ECHR (para.219). To the Court, it appeared from the outset that “the investigating authorities were not primarily interested in the applicant’s presumed involvement in the public disorder which occurred in the course of the Gezi events and the attempted coup” (para.222) This was due to the fact that Kavala, during his police interview, was asked many questions which seemed to have no connection with these events, mostly relating to his ordinary and legitimate activities as a human rights defender and civil society activist. Similarly, the bill of indictment did not contain even a succinct statement of the facts and criminal actions on which Kavala’s criminal liability in the Gezi events is based (para.223). The Court then underlined the fact that Kavala was arrested on 18 October 2017, that is, more than four years after the Gezi events and more than a year after the attempted coup, on charges related to these events (para. 226). No plausible explanation, however, had been advanced by the Government to explain this considerable lapse of time.
What the Court also considered crucial in its assessment under Article 18 is that the long-standing investigation in relation to Kavala (during which he’d been in pre-trial detention for more than a year) accelerated after President Erdogan openly targeted him in two speeches on 21 November and 3 December 2018. In both speeches, Erdogan accused George Soros and Osman Kavala of financing the terrorists during the Gezi events, of encouraging people to divide and to shatter nations and of being the external and internal pillars behind Gezi (para.229). To the Court, there is a correlation between the accusations made openly against the applicant in these two public speeches by the Head of State and the wording of the charges in the bill of indictment filed about three months after the speeches in question on 19 February 2019 (para.229). Referring to the concerns expressed by the Commissioner for Human Rights and the third party interveners who considered Kavala’s detention to be part of a wider campaign of repression of human rights defenders in Turkey (para.230), the Court eventually found a violation of Article 18 in conjunction with Article 5(1)(c) and concluded:
“In the light of above-mentioned elements, taken as a whole, the Court considers it to have been established beyond reasonable doubt that the measures complained of in the present case pursued an ulterior purpose, contrary to Article 18 of the Convention, namely that of reducing the applicant to silence.” (para. 232)
The Court, having regard to its findings of several violations, and in accordance with Article 46(1) ECHR, held that the Government must take every measure to put an end to Kavala’s detention and to secure his immediate release (para. 240)
As alluded to above, the comment section focuses on the language used by the Court and the reach of its findings. At the most fundamental level – say this is the smallest Matryoshka doll– there is the individual complaint brought by a Turkish national, Osman Kavala. He was arrested on 18 October 2017 based on a mere suspicion and kept detained for over two years with no credible evidence. The Court’s unanimous decision that there was no reasonable suspicion is indeed quite telling in showing that the case is a clear example of arbitrariness.
Unstacking the second doll, there emerges Kavala’s profile as a human rights defender and a civil society leader. So the case at hand brings to the fore some major issues concerning the dire situation of human rights defenders in Turkey. Severe restrictions, smear campaigns, judicial harassment and arbitrary criminal prosecution have become part of their lives in recent years and the Kavala case should be seen against the backdrop of this continuously increasing pressure. As the Council of Europe Commissioner for Human Rights clearly noted in her third party intervention, this case contributed significantly to an already existing chilling effect on civil society, including human rights defenders in the country. In its judgment, the Court provided a fully convincing and plausible reasoning in that regard by highlighting that the case marks a further criminalisation of peaceful association and expression (such was the Gezi park events) in Turkey, by ringing a clear warning bell for Turkey and by using Article 18 for its intended aims.
The Kavala case then highlights a structural issue (let’s not forget that each doll is another problem!) of the excessive and unrestricted use of pre-trial detention in Turkey especially in the post-coup period. Since the 15 July 2016 failed coup, Turkey has seen mass detention and arrests of thousands of people not involved in any violent act. More than 250,000 people, including judges and prosecutors, military personnel, police officers, journalists, lawyers, human rights defenders and opposition politicians were deprived of their liberty on an array of terrorism related offences. In the vast majority of cases, they were arrested and detained on a mere suspicion (like Kavala!) with almost no evidence corroborating their involvement in terrorist activities, and ultimately became victims of political and legal injustice left without any recourse to an effective remedy that they could use to meaningfully challenge their detention. In turn, the Court has so far condemned Turkey’s post-coup pre-trial detention practices in three important decisions in Mehmet Altan, Sahin Alpay and Alparslan Altan and now in Kavala. In all four decisions (or at every turn), the ECtHR was unconvinced that the pre-trial detention of the applicants satisfied its reasonable suspicion standard by holding that the difficulties facing Turkey during the post-coup period could not provide a carte blanche under Article 5 ECHR to detain anyone without any verifiable evidence or information or without a sufficient factual basis. These decisions indeed seem to presage a strong judicial boldness regarding Turkey’s detention practices.
Continuing to go further along the unpacking of Matryoshka dolls, the case also underscores the systematic failure of domestic remedies in today’s Turkey including the individual application mechanism before the TCC. It is evident from the domestic proceedings that the elements adduced grounding the initial detention order as well subsequent extension orders lack any meaningful evidentiary basis linking Kavala to any of the alleged offences. Moreover, when deciding Kavala’s individual application, the TCC uncritically rode on the coattails of the Turkish magistrate court that ordered his initial detention and the Istanbul public prosecutor’s –imaginary- evidence listed in the bill of indictment. So the ECtHR findings in the Kavala case reveals another stark contrast with what the TCC found in his individual application. Nevertheless, the ECtHR once again found that none of the material in its possession suggested that an individual application to the TCC was not capable of affording appropriate redress for the applicant’s complaint under Article 5 of the Convention, or that it did not offer reasonable prospects of success (para. 100). I believe the reasoning of the Court under this part is not convincing. As I have previously argued, the total abdication of their purpose by the Turkish courts show that the problem might and should be regarded as more wide ranging and fundamental than a failure to obtain relief at the national level, including before the TCC.
Perhaps, the biggest doll (aka the most fundamental problem) relates to Turkey’s present lack of an independent judiciary. In its assessment under Article 18, the Court rightly remarked that the restriction in question affected not merely Kavala alone, or human rights defenders and NGO activists more widely, but the very essence of democracy as a means of organising society and thus the ulterior purpose attained significant gravity (para. 231). However, the Court stopped short of finding that the judicial authorities had also acted in bad faith from the beginning. This strongly contrasts with the Court’s finding that Kavala’s investigation accelerated after the above-mentioned speeches given by President Erdogan. But in my reading of the case, this aspect was one of the most crucial aspects leading the Court to find a violation of Article 18. It must also be noted that numerous reports of international and human rights bodies are replete with concerns over the executive’s grip on the whole judiciary in Turkey (Venice Commission, the CoE’s Commissioner for Human Rights, the UN Commissioner for Human Rights, to give a few examples.)
Ultimately, then, it could be concluded that in Kavala, the Court built on its existing Article 18 case law in a coherent and principled way. In doing so, the Court managed to take into account the domestic legal and political developments underpinning Kavala’s detention and thus was able to unravel –at least a good number of- the Matryoshka dolls in Turkey (this is mostly linked to its findings under Article 18). The same cannot be said, however, when it comes to its consistent failure (and inability) to examine the broader context and pattern in which the alleged violations took place and the disintegration of the rule of law, the judiciary and domestic remedies in Turkey.