September 29, 2026
By Emilia Klebanowski
On 25 August 2026, the European Court of Human Rights (ECtHR or Court) delivered its landmark judgment in Kavala v Türkiye (No. 2). Sitting as a Grand Chamber, the Court found by fifteen votes to two that Turkey had violated Articles 3, 5, 6, 10, 11 and 18 of the European Convention on Human Rights (ECHR), ruling that Kavala’s continued detention was unlawful and that his criminal conviction must be regarded as null and void. The Court strongly condemned the violations, describing the case as one of ‘exceptional gravity’.
Importantly, this is not the first time Strasbourg has spoken on Kavala’s case. In its judgment of December 2019, the Court found multiple and comparable violations of the ECHR, and indicated, under Article 46, that Turkey had to take the necessary measures to end Kavala’s detention and secure his immediate release. When Turkey failed to give effect to that ruling, the Committee of Ministers (CM) initiated infringement proceedings under Article 46(4). These proceedings culminated in a July 2022 judgment finding that Turkey had failed to fulfil its obligation under Article 46(1) to comply with the 2019 judgment. Crucially, however, the Article 46(4) proceedings centred on the failure to take the required individual measures, namely Kavala’s immediate release. Neither the CM’s referral nor the Court’s ensuing judgment addressed the general measures required to remedy the underlying violations identified in the 2019 judgment. Turkey’s failure to comply therefore extended beyond the continued detention of Kavala himself to the absence of adequate measures capable of preventing similar violations in the future. Apart from the judgments themselves, the CM and other Council of Europe (CoE) institutions repeatedly asked Turkey to comply. Nearly seven years after the initial judgment, Kavala remains imprisoned. The Kavala series raises the question of what happens when a State ignores Strasbourg.
Osman Kavala is a Turkish businessman, civil society activist and human rights defender. He has been deprived of his liberty without interruption since 18 October 2017. Kavala was initially suspected of having attempted to overthrow the Turkish government through force and violence in connection with the Gezi Park events of May-September 2013, and of attempting to overthrow the constitutional order in connection with the attempted coup d’etat of 15 July 2016. He was subsequently convicted in the Gezi Park trial and sentenced to aggravated life imprisonment, with his continued detention ordered on that basis.
The case first reached the ECtHR in Kavala v. Turkey, where the Court, in its judgment of 10 December 2019, found violations of Article 5(1) and (4) and Article 18 in conjunction with Article 5(1), on account of the lack of any reasonable suspicion justifying his pre-trial detention and its underlying purpose. Despite the judgment, which became final on 11 May 2020, and was transmitted to the CM under Article 46(2) for supervision of its execution, Kavala remained deprived of his liberty and was ultimately sentenced to aggravated life imprisonment. In February 2022, the CM adopted an interim resolution referring to the Court, under Article 46(1), the question of whether Turkey had failed to fulfil its obligation to abide by the 2019 judgment. Prior to that, the CM had examined the case repeatedly at its DH meetings, adopting 10 decisions and two interim resolutions (CM/ResDH(2020)361 and CM/RESDH(2021)432) before triggering the infringement procedure. Each of these documents found that the information available created a strong presumption that Kavala’s continued detention constituted a continuation of the violation and insisted on his immediate release. In its infringement judgment of 2022, the Court affirmed Turkey’s failure to comply. With Kavala still convicted and serving his aggravated life sentence, he lodged a second application with the ECtHR concerning the violations committed against him since the December 2019 judgment.
The Kavala v. Türkiye (No. 2) judgment must be read in the context of these prior proceedings. In its judgment, the Court reaffirmed that Kavala’s deprivation of liberty since December 2019 violated Articles 3, 5(1), 6(1), 10, 11, and Article 18 in conjunction with Articles 5(1), 6(1), 10 and 11. Judges Vehabović and Yüksel dissented, arguing primarily that the application should have been declared inadmissible for failure to exhaust domestic remedies, given Kavala’s pending application before the Turkish Constitutional Court.
Under Articles 10 and 11, the Court found that Article 312 of the Criminal Code was interpreted unforeseeably, since Kavala was held criminally liable as a result of indirect reasoning, ‘based on a cumulative attribution of acts of violence committed by third parties’ lacking a direct link with the accusations (para 163-164). The Court stated that lawful civil society work, such as research or discussion meetings, forms part of the normal exercise of freedom of expression and cannot be treated as the material element of a serious criminal offence without emptying Article 10 of its substance and producing a chilling effect on public debate (paras 168-170).
Regarding Article 6(1), the Court indicated that the 2019 defects were never remedied. The domestic courts failed to show how new evidence compensated for the initial lack of reasonable suspicion, conducted no genuine causal-link analysis, refused to hear key defence witnesses on stereotyped grounds, and effectively reversed the burden of proof (paras 202-205). The Court also raised concerns over independence and impartiality, noting the disciplinary investigation opened against the judges who acquitted Kavala, the repeated remittal of the case between courts, and the participation of a judge with close ties to the ruling AK party, all against a wider structural backdrop of shortcomings affecting judicial independence (paras 208-210). Taken together, these shortcomings reflected ‘a profound deterioration in the judicial context in which the applicant’s case was examined’ (para 211).
The Court found a violation of Article 5(1) since Kavala’s detention between December 2019 and April 2022 was arbitrary, lacked any reasonable basis, and was maintained in bad faith through successive attempts to circumvent domestic safeguards and earlier judgments of the Court (paras 238-40). Kavala’s post-conviction detention could not be regarded as ‘lawful’, since it resulted from proceedings involving a flagrant denial of justice (paras 247-248).
Concerning Article 18 in conjunction with Articles 5(1), 6(1), 10 and 11, the Court found that the measures imposed on Kavala were predominantly motivated by the purpose to punish him for his role in the Gezi Park demonstrations and to sanction his activities as a human rights defender (para 279). It situated the case within a wider pattern, describing it as ‘highly emblematic’ of the political prosecution of opponents, journalists, and human rights defenders in Turkey (paras 276-279).
The Court also found a violation of Article 3 because Kavala’s aggravated life sentence offered no realistic prospect of release or meaningful review (paras 288-289).
As regards reparations, pursuant to Article 46, the Court required Turkey to secure Kavala’s release at the earliest possible date, and to eliminate the consequences of the conviction, which should be regarded as null and void (para. 309). Importantly, the Court did not treat Kavala’s case as isolated but highlighted that it represents ‘a particularly significant illustration of a problem that is systemic in nature’ within a broader context which is ‘marked by the detention and prosecution of political opponents, human-rights defenders and journalists on the basis of criminal offences, the scope of which is in many cases interpreted extensively or artificially magnified’ (para 310). The Court identified structural shortcomings in judicial independence and impartiality, which likely permitted ‘direct or indirect influence by the executive branch on certain judicial decisions, particularly in cases with a sensitive political dimension’ (para 310). Beyond individual measures, it called for general measures to protect judges from undue influence and to prevent criminal proceedings for purposes other than the impartial administration of justice (para 312). The Court furthermore called for reforms ensuring that criminal prosecutions are not used to exert pressure or neutralise the exercise of fundamental rights (para 312), and required legislation establishing a procedure capable of guaranteeing ‘a genuine prospect of conditional release’ (para 315).
Perhaps the most significant development is the extent to which the Court situates the violations within a broader systemic context. Unlike in its infringement judgment, the Court does not shy away from identifying structural features of the domestic judicial context, referring to a ‘pattern’ and to the broader ‘judicial context’, and expressly using the language of ‘systemic’ problems. This is significant as the Court has been criticised for avoiding or being too cautious in acknowledging broader structural or systemic problems, even where individual violations arise against a background of serious deterioration of the rule of law. In Sabuncu and Others v. Turkey, for example, Judge Kūris in his partially dissenting opinion argued that the violations found were not isolated incidents but rather the product of a ‘system’, ‘synergy’, and ‘policy’ (para 26), and he returned to the point in Ahmet Hüsrev Altan v. Turkey, asking how many times the Court could keep failing to see the pattern in how it was deciding Article 18 complaints against Turkey (para 20). The criticism is also echoed in scholarship. Lemmens and Van Drooghenbroeck, for instance, note that the Court has never actually identified what it means by ‘systemic’, and that its willingness to draw structural conclusions varies considerably depending on the context. Against this backdrop, the Court’s explicit recognition of systemic problems seems to mark a shift in its approach, particularly given the Court’s earlier focus on individual measures rather than the general measures necessary to address the underlying violations in Kavala.
The more significant question the Kavala series raises is what the Convention system and the CoE more generally can and cannot do when States simply refuse to comply. It is worth remembering that compliance ordinarily falls outside the Court’s jurisdiction except for the infringement procedure under Article 46(4-5). This procedure allows the CM to refer a State to the Court if it is refusing to abide by a final judgment. Infringement proceedings are triggered only after serving formal notice on the State concerned and securing a two-thirds majority of votes in the CM. Afterwards, the case is referred to the Court to determine whether the State has indeed failed to abide by a judgment. If this is the case, this leads to a violation of Article 46(1), with the case being returned to the CM to consider any further measures to be taken. These can include interim resolutions or decisions, as well as keeping the case on the agenda of successive meetings of the CM’s Deputies (DH meetings). In particular serious cases of non-compliance, the CM may also consider measures under the CoE’s Statute, including suspension or expulsion of the State concerned. Although neither Article 46 nor the Statute expressly provide for suspension or expulsion because of non-compliance with a judgment, such measures may be considered within the broader framework of the CM’s powers and the State’s obligations as a CoE Member State. The complementary joint procedure may also be relevant where the conditions for its application are met, as it provides an additional mechanism for addressing cases of non-compliance.
Thus far, the infringement procedure has been triggered twice, namely in Ilgar Mammadov v. Azerbaijan, and now in Kavala. Turkey is thus one of only two States ever subjected to it. The Mammedov precedent offers limited grounds for optimism, since compliance was ultimately achieved, but only on the narrowest possible margin (see also for an analysis of the judgment here). It took nearly a year after the 2019 infringement procedure, an interim resolution from the CM invoking the approaching parliamentary elections and sustained diplomatic pressure before the Azerbaijani Supreme Court finally quashed Mammadov’s conviction in April 2020. Azerbaijan treated this as satisfying only what was narrowly required by it as regards Mammadov. Several co-applicants in the same case group, facing the same pattern of politically motivated prosecution, saw their convictions stand for years afterwards. Azerbaijan explicitly rejected the argument that they should benefit from the same relief. If the one precedent for the infringement procedure ‘working’ required a year of sustained pressure to secure compliance with even its narrowest terms, it is doubtful whether Kavala’s case will resolve any differently.
Turkey’s response to the Kavala judgment illustrates the difficulties the Court faces when States are unwilling to comply with judgments. Mehmet Uçum, Chief Advisor to the President and Deputy Chair of the Presidency’s Legal Policies Board, posted that the ECtHR (and the European Parliament’s Turkey rapporteur) ‘should know their place’. He called the judgment a political project, stressing that the ECtHR is not a superior court over Turkish courts, and added that the power to comply with a judgment rests with national courts. Furthermore, Uçum suggested that Turkey may reconsider its status as a party to the Convention. In effect, this would also have an impact on Turkey’s membership to the CoE, as ratifying the ECHR is a requirement for any country wishing to become a member. Importantly, judgments of the Court are final and binding under Article 46(1), with compliance being a legal obligation, not a matter of judicial discretion. In addition, under Article 58, States may denounce the Convention only after five years’ membership and on six months’ notice. Accordingly, any denunciation does not release Turkey from its Convention obligations in respect of acts constituting violations that occurred before denunciation became effective (Article 58(2)).
Responsibility for what happens next now falls to the CM, which has already deployed the principal enforcement mechanisms available under Article 46. PACE has gone further in calling for the complementary joint procedure under Resolution 2319 (2020). In Resolution 2518 (2023), adopted after Kavala’s aggravated life sentence had been upheld, the Assembly concluded that the time had come to take steps to initiate the procedure and called on the CM, the Secretary General and other CoE actors to work together to secure execution. However, the complementary joint procedure has not been initiated yet. What is at stake now is therefore not only Kavala’s continued detention, but also the credibility of the Convention system.
It is doubtful whether the judgment will make any practical difference for Kavala. Nevertheless, it reaffirms the continuing unlawfulness of his detention and Turkey’s failure to comply with Strasbourg judgments, while contributing to the Court’s continuing case law. At the same time, it exposes the limits of the Convention system: whilst the Court can establish a violation and prescribe the remedy, it cannot compel compliance where the political will is absent. As Mammadov shows, even the system’s working example of the infringement procedure took a year of sustained pressure to produce the narrowest possible compliance. When a State chooses to disregard the Court, the Court can continue to find violations and establish a record of non-compliance. The CM and other CoE institutions can continue to exert pressure. However, whether judgments are ultimately implemented depends on the willingness of the State to comply with judgments, which is a separate and more difficult challenge.
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