The following is based on a communication written by the UN Special Rapporteur on Human Rights Defenders to the Government of Turkiye on 21 September 2022. The communication remained confidential for 60 days before being made public, giving the Government time to reply. The Government replied on 10 November 2022 and regrettably, did not address the allegations in the communication.
The Special Rapporteur also released a press release on this case on 31 October 2022.
BACKGROUND
Topic: continued detention of Mr. Osman Kavala in light of the judgement of the European Court of Human Rights ordering his release and subsequent infringement proceedings against Türkiye in this regard.
Mr. Osman Kavala is a human rights defender who has been at the forefront of civil society activities in Türkiye since the 1990’s. He is the head of the not-for-profit Anadolu Kültür, whose members are active in the fields of arts, business, and civil society to promote and defend the right to cultural diversity in Türkiye. Mr. Kavala is a member of many other civil society organisations such as the Turkish Economic and Social Studies Foundation (Türkiye Ekonomik ve Sosyal Etüdler Vakfı – TESEV), Diyarbakır Political and Social Research Institute (Diyarbakır Siyasal ve Sosyal Araştırmalar Enstitüsü – DİSA), Open Society Foundation (Açık Toplum Vakfı), History Foundation (Tarih Vakfı), and Turkish Cinema and Audiovisual Culture Foundation (Türkiye Sinema ve Audiovisuel Kültür Vakfı – TÜRSAK).
Mr. Kavala was the subject of two previous joint communications by Special Procedures’ mandate holders (TUR 9/2021 and TUR 12/2017). We thank your Excellency’s Government for its reply to the latter, dated 15 December 2017 and regret that the reply to the more recent communication does not address the specific allegations regarding Mr. Kavala.
ALLEGATIONS
As previously communicated, Mr. Osman Kavala was arrested in Istanbul Ataturk Airport on 18 October 2017. During his first trial, held on 25 October 2017, no charges were pressed against him, however his detention was renewed for seven days. He was ultimately charged under articles 309 and 312 of the Turkish Penal Code regarding the use of violence to prevent the constitutional order and attempting to overthrow the Government of Türkiye. The charges relate to the prosecution’s allegations that Mr. Kavala was involved the so-called Gezi Park protests that occurred in 2013, and a failed coup d’état attempt in July 2016.
On 10 December 2019, the European Court of Human Rights ruled in the Kavala v. Türkiye case that the detention of Mr. Kavala was arbitrary on the basis that his detention lacked sufficient evidence and was aimed at silencing him, thus violating articles 5.1, 5.4 and 18 of the European Convention on Human Rights. The Court ordered his immediate release.
The ruling of the ECtHR which should be final and binding on Turkish courts, was dismissed by the Istanbul 30th High Criminal Court for the first time on 24 December 2019. The decision to dismiss the ECtHR ruling was subsequently upheld multiple times in Turkish courts.
On 18 February 2020, the Istanbul 30th High Criminal Court ordered Mr. Kavala’s acquittal in relation to the charge of attempting to overthrow the Government, under article 312 of the Penal Code. However, the Istanbul Prosecutor’s Office issued an arrest warrant against Mr. Kavala on that same day under article 309 of the Turkish Penal Code, leading to the human rights defenders’ re-arrest before he could leave prison.
On 9 March 2020, a further charge of espionage, under article 328 of the Turkish Penal Code, was filed against Mr. Kavala by the Istanbul Prosecutor’s Office.
On 22 January 2021, his acquittal of the charge of attempting to overthrow the Government was overturned.
On 2 February 2022, the Committee of Ministers of the Council of Europe, who supervise the execution of ECtHR judgements, voted by the required two-thirds majority to refer Mr. Kavala’s case back to the Court, having not been successful in repeated efforts to urge Türkiye to implement the original judgement.
On 25 April 2022, the 13th Istanbul Assize Court convicted Mr. Kavala of “attempting to overthrow the government”, sentencing him to aggravated life imprisonment, without the possibility for parole. His conviction was reportedly based on the same evidence that had been deemed by the ECtHR to be insufficient to support the allegations.
On 11 July 2022, the European Court of Human Rights (ECtHR) ruled that Türkiye had failed in its obligation to abide by the previous judgement the case, thus violating article 46 paragraph 1 of the European Convention on Human Rights. This is the second time in the 63 year history of the Court that a country has faced infringement proceedings for failing to implement a binding judgement of the ECtHR. The judgement is final, took effect immediately and is binding on Türkiye and all of its courts, including the Court of Cassation which is hearing Mr. Kavala’s appeal against his unlawful conviction.
CONCERNS
In the communication, we expressed our utmost concern regarding the apparent denial of justice for Mr. Kavala, on whose case the highest human rights court in Europe has now twice issued legally binding judgements. We are deeply concerned that Mr. Kavala’s case continued to be processed through domestic courts, and an aggravated life sentence handed down, despite the ECtHR ruling and the infringement proceedings which were underway. Such actions would be at odds with Türkiye’s obligations under jurisdiction of the Court and may have far reaching consequences for human rights defenders and all those seeking justice on alleged violations of human rights in Türkiye.
The refusal of Türkiye to abide by the judgement appears to furthermore be a direct attack on the credibility of the ECtHR and the inalienable human rights which it seeks to uphold. We are consequentially concerned about the broader significance that Türkiye’s failure to abide by the judgement in the context of its commitment to uphold human rights domestically and provide pathways to justice. Indeed, we are deeply concerned that this case could have a chilling effect on individuals who wish to express themselves, demonstrate peacefully, assemble and participate in public and political life in Türkiye. We urge your Excellency’s Government to respect the decision and legitimacy of the European Court of Human Rights and take begin the process of securing the freedom of Mr. Kavala, who has been detained arbitrarily for almost five years.
