October 02, 2026
By Marilena Katsogiannou
Among the striking features of the Grand Chamber’s judgment in Kavala v. Türkiye (no. 2) is the way it dealt with Kavala’s expressly pleaded Article 7 complaint. It identified the defects at its core, but did not decide the complaint under this provision. Article 7 ECHR embodies the principle of criminal legality: conviction and punishment must rest on a legal basis sufficiently accessible and foreseeable at the time of the conduct. It also constrains judicial interpretations extending an offence beyond what could reasonably have been foreseen. The factual setting of this case makes that legality issue particularly concrete.
In April 2022, Kavala was convicted under Article 312 of the Turkish Criminal Code (Hükûmete karşı suç), which concerns attempts to overthrow the Government by force and violence, and was sentenced to aggravated life imprisonment. The domestic courts found that he had organised, planned, led and financed the Gezi Park protests. Kavala argued, first, that his conviction lacked a foreseeable legal basis and, second, that the constituent elements of the offence − notably the use of force or violence and the intention to overthrow the Government − had not been established by the domestic courts (para. 290). Under Article 6 § 1 ECHR, he separately challenged the fairness of the proceedings, alleging insufficient reasoning, flawed assessment of evidence, failures of equality of arms and adversarial proceedings, as well as a lack of judicial independence and impartiality (paras. 179, 185-186).
Under Articles 10 and 11 ECHR, the Grand Chamber held that the domestic courts had treated Kavala’s participation in public debate and support for civil-society initiatives as elements of that exceptionally serious offence without establishing his involvement in violence committed by third parties. Their interpretation had consequently extended the scope of Article 312 in an unforeseeable manner (paras. 169-172).
The Court addressed the foreseeability limb of the Article 7 complaint under Articles 10 and 11, while treating the domestic courts’ failure to reason on the constituent elements of the offence as part of the Article 6 § 1 violation. It then held that, because of the ‘close connection’ between the complaints, Article 7 required no separate examination (paras. 293-294). The Court gave no further explanation of that ‘close connection’ beyond referring back to those findings and citing Tsaava and Others v. Georgia.
The question raised by the judgment is not whether the Court addressed the defects underlying Kavala’s conviction. It did. The question is whether findings made under Articles 6, 10 and 11 ECHR were sufficient to perform the distinct function of Article 7 ECHR itself. This post argues that one limb could plausibly be addressed under Article 6, but that the other, concerning the foreseeable reach of the offence itself, remained a distinct Article 7 question.
That distinction becomes clearer when Kavala is read alongside Yasak v. Türkiye, decided only a few months earlier. The Article 7 reasoning developed in Yasak had an important precursor in Yüksel Yalçınkaya v. Türkiye, where, in a case concerning a conviction for membership of a terrorist organisation, the Grand Chamber had already brought aspects of the domestic courts’ treatment of the elements of criminal liability within Article 7 review. Yasak then sharpened that review by scrutinising whether the domestic courts had connected the evidence to the applicant’s mens rea in a sufficiently detailed and individualised manner.The majority found a violation of Article 7 on that basis (Yasak, paras. 202, 211-213). Basil Saen’s recent analysis on this blog likewise identifies that procedural dimension, and the intensity of Strasbourg review, as fundamental to Yasak. Six judges − Vehabović, Chanturia, Felici, Yüksel, Ní Raifeartaigh and Kučs − disagreed with placing that defect under Article 7. They considered that a trial court’s failure to assess whether the evidence established mens rea belonged, if anywhere, under Article 6. That counted procedurally: the applicant’s Article 6 complaint had been declared inadmissible, meaning that it was not placed before the Grand Chamber (joint dissent, paras. 1-3).
Judge Ní Raifeartaigh’s separate dissent makes the distinction especially useful for Kavala (No.2). On her account, Article 7 addresses the criminal rule itself: whether domestic law permits punishment without individualised criminal responsibility and whether it defines sufficiently clearly the conduct and mens rea required for liability. Article 6, by contrast, concerns what happens in the individual trial: whether the domestic court actually examines those elements, gives adequate reasons for its conclusions and assesses the evidence consistently with fair-trial guarantees (paras. 15-16).
Her reliance on Navalnyy and Ofitserov v. Russia is important for that reason. In that case, under Article 6, the Court held that the domestic courts had gone beyond an ordinary assessment of individual criminal responsibility; the acts treated as criminal fell outside the scope of the offence, and the criminal law had been construed arbitrarily and unforeseeably to the applicants’ detriment, producing a manifestly unreasonable outcome (Navalnyy and Ofitserov, para. 115). Judge Ní Raifeartaigh relied on that passage to show that Convention review of the way a domestic court establishes criminal liability can take place under Article 6 (Yasak, separate dissent, paras. 19-20).
A few months later, Kavala (No. 2) relied, by analogy, on the same paragraph of Navalnyy and Ofitserov. The Grand Chamber found under Article 6 that Kavala had been convicted for conduct falling outside the criminal provision without his specific individual responsibility having been established by reference to its constituent elements (Kavala No. 2, para. 206). The correspondence is close in one respect: in both cases the Court considered the criminalised conduct to fall outside the offence’s scope.
That parallel should not be overstated. The Court does not cite Yasak or its dissent in Kavala (No. 2), so it cannot be said to have followed the dissenting position. But the comparison helps to identify the issue more precisely. The trial-level failure to establish the constituent elements of liability can plausibly be analysed under Article 6. The argument here is not that every such failure must instead be decided under Article 7.
The remaining difficulty is different. On Judge Ní Raifeartaigh’s own account, Article 7 still governs whether the criminal rule is sufficiently clear as to the conduct falling within the offence. That is precisely what Kavala raised separately. The Grand Chamber did not merely criticise the domestic courts’ assessment of the evidence; it held that their interpretation had extended the scope of Article 312 in an unforeseeable manner (paras. 169-171). Even if the Article 6 treatment of the constituent-elements issue is accepted, that finding leaves a distinct Article 7 question about the permissible reach of the criminal offence itself.
The Grand Chamber gave only a brief answer. After recalling that the foreseeability complaint had been addressed under Articles 10 and 11 and that the constituent-elements issue had contributed to the Article 6 violation, it held that the ‘close connection’ between the complaints made a separate examination of Article 7 unnecessary. It referred generally to Tsaava and Others v. Georgia, paras. 225-229, without identifying which of the rationales discussed there it was relying on (Kavala No. 2, paras. 293-294).
Tsaava is important because it explains when the Court may legitimately decline to examine a complaint separately. For convenience, this post refers to that practice as ‘absorption’: separate examination may be unnecessary where two complaints substantially overlap, where one provision is more specific and fully captures the issue, or where the Court can confine itself to the principal legal questions without deciding genuinely peripheral complaints. But Tsaava also places limits on those techniques. A common factual basis is not enough, by itself, when the provisions protect interests of a different nature, and complaints that are plainly central to the application cannot simply be treated as peripheral (paras. 227-228).
That carries weight in Kavala (No. 2) because Article 7 does not ask exactly the same legal question as Articles 10 and 11. Under those provisions, the finding that Article 312 had been extended unforeseeably meant that the interference with expression and assembly was not ‘prescribed by law’. Under Article 7, the question is whether the conviction and punishment themselves remained within the limits imposed by the principle of criminal legality. The two inquiries share the concept of foreseeability, but they use it for different legal purposes and may lead to different Convention consequences.
Kudrevičius and Others v. Lithuania [GC], concerning criminal sanctions imposed after farmers blocked major roads during protests, is the closest counterexample. There, the Court had already found under Article 11 that the relevant criminal law provision was foreseeable for the applicants. It then recalled that Article 7 uses the same Convention concept of ‘law’, including accessibility and foreseeability, and also noted that the applicants had not specifically pursued their Article 7 complaint before the Grand Chamber. On that basis, it considered a separate Article 7 examination unnecessary (Kudrevičius, para. 193).
The contrast with Kavala (No. 2) is significant. In Kudrevičius, the foreseeability issue had already been resolved against the applicants: the domestic interpretation had been found foreseeable. A separate Article 7 analysis would therefore largely have repeated a conclusion already reached on the same issue. In Kavala (No. 2), by contrast, the Court reached the opposite conclusion: Article 312 had been extended in an unforeseeable manner. The question left open was therefore not whether foreseeability had already been discussed, but what that adverse finding meant for the legality of the conviction itself under Article 7.
This suggests a more demanding approach to absorption. The fact that another Convention provision has addressed part of an Article 7 complaint should not, by itself, make separate examination unnecessary. What counts is whether the earlier analysis has actually resolved the criminal legality issue that Article 7 protects, rather than merely touching the same facts or the same concept of foreseeability. On that basis, the reasoning in paragraph 294 of Kavala is too abbreviated: ‘close connection’ identifies proximity between the complaints, but no more than that.
The allocation of the legality issues is crucial because the different Convention provisions do not test the same defect in the same way. Under Articles 10 and 11, once the Court found that the interference was not ‘prescribed by law’, there was no need to examine legitimate aim or necessity (Kavala No. 2, para. 173). Under Article 6, the focus was on the fairness of the proceedings and the arbitrariness of the reasoning. Under Article 5 § 1(a), the question became whether the resulting conviction could lawfully justify Mr Kavala’s continued detention.
The analysis under Article 5 makes the point particularly clearly. The Grand Chamber relied on Del Río Prada v. Spain, an Article 7 case in which an unforeseeable reinterpretation of sentence remission rules prolonged the applicant’s detention, to assess whether an unforeseeable interpretation of criminal law could deprive a conviction of its capacity to justify detention. It then returned to its earlier finding that Article 312 had been extended in an unforeseeable manner and concluded that Mr Kavala could not reasonably have foreseen that his conduct would lead to deprivation of liberty (Kavala No. 2, paras. 242 and 246).
A second route to the Article 5 finding came from the defects established under Article 6. Because Kavala’s conviction resulted from proceedings amounting to a flagrant denial of justice, the detention flowing from that conviction could not be regarded as lawful. The earlier findings of unforeseeability under Articles 10 and 11, the Court added, ‘point in the same direction and strengthen this conclusion’ (Kavala No. 2, para. 247).
The significance is not that one Convention right is stronger than another, but rather that the Convention provision used to analyse the defect determines the test applied and the legal consequence attached to it. The classification also has a further Convention consequence: unlike Articles 6, 10 and 11 ECHR, Article 7 is expressly non-derogable under Article 15 § 2 ECHR, a feature the Grand Chamber itself emphasised in Yasak v. Türkiye (Yasak, para. 190). Kavala is especially striking in this respect because Del Río Prada supplies part of the reasoning by which the Court ultimately concludes that Kavala’s conviction can no longer justify his detention, while Article 7 itself remains unexamined.
A possible objection is that Article 312 existed before the Gezi Park events and was accessible. Instead of an absence of a statutory offence, the problem under Article 7 was the way in which the domestic courts extended that offence to conduct which, according to the Grand Chamber, could not foreseeably be treated as falling within its scope.
That distinction is relevant in this context, as the Court has long accepted, notably in the classic Article 7 cases on the judicial development of criminal law, S.W. v. the United Kingdom and C.R. v. the United Kingdom, that criminal law may develop through judicial interpretation, but only where the resulting interpretation remains consistent with the essence of the offence and could reasonably have been foreseen. Hence, Kavala (No.2) raised more than a question about whether the domestic courts assessed the evidence badly. The Grand Chamber expressly found that their interpretation had extended the scope of Article 312 in an unforeseeable manner (Kavala No. 2, paras. 169-171).
This is why the decision not to examine Article 7 separately requires more explanation than paragraph 294 provides. The aspect of the complaint regarding individual responsibility may plausibly be dealt with under Article 6, particularly if one accepts the distinction drawn by the dissent in Yasak. But that does not dispose of the separate question whether the criminal offence itself was applied beyond its foreseeable reach.
Nor is this merely a matter of classification. In its Article 46 analysis, the Grand Chamber ultimately stated that Kavala’s criminal conviction should be regarded as ‘null and void’ under Convention law and required Türkiye to eliminate its consequences (Kavala No. 2, para. 309). It then described the case as a particularly significant illustration of a systemic problem involving prosecutions based on offences whose scope is ‘interpreted extensively or artificially magnified’ (Kavala No. 2, para. 310). Those are far-reaching conclusions about the conviction itself and about the way criminal liability was constructed. Yet the Court did not separately determine what those findings meant under Article 7.
The point is not that Article 7 can never be left unexamined, or that the Grand Chamber was required to add another violation to an already extensive operative part. Tsaava confirms that genuine overlap may justify non-examination, while Kudrevičius shows what such duplication can look like in the Article 7 context.
But when Article 7 has been expressly pleaded, something more than factual proximity between the complaints should be required. Before declining separate examination, the Court should identify which criminal legality question has already been resolved elsewhere, explain why that analysis is capable of performing the distinct protective function of Article 7, and determine whether any separate question remains as to the legality of the conviction or punishment.
Paragraph 294 of Kavala (No. 2) does not supply that explanation. The Grand Chamber addressed foreseeability under Articles 10 and 11, individual criminal responsibility under Article 6, and the consequences for detention under Article 5 § 1(a). What remains unexplained is why those findings, taken together, made a separate assessment under the Convention’s dedicated guarantee of criminal legality unnecessary.
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