Turkey: Council of Europe Votes for Infringement Process

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Osman Kavala
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(Istanbul) – The Council of Europe Committee of Ministers’ vote on February 2, 2022 to begin infringement proceedings against Turkey is an important step to support human rights protection in Turkey and uphold the international human rights framework, Human Rights Watch said today. The resolution concerns Turkey’s failure over the past two years to comply with the European Court of Human Rights’ judgment in which the Court ruled that Turkey should free human rights defender Osman Kavala and fully restore his rights.

“The Committee of Ministers’ vote to pursue infringement proceedings against Turkey for its politically motivated, arbitrary detention of human rights defender Osman Kavala shows a resolve to uphold the international human rights law framework on which the Council of Europe is based,” said Aisling Reidy, senior legal adviser at Human Rights Watch. “The resolution sends a reminder to all Council of Europe member states that European Court of Human Rights judgments are binding, and it is an important acknowledgement of Turkey’s rule of law crisis.”

The Committee voted to send the case of Kavala v Turkey back to the European Court of Human Rights for a legal opinion on whether Turkey has met its obligations to comply with the judgment. If the European Court confirms – as it is expected to do – that Turkey has failed to implement its judgment, the Committee of Ministers may then take additional measures against Turkey.

These could include ultimately suspending Turkey’s voting rights in the Council of Europe and could even jeopardize Turkey’s membership. Turkey is the second country in Council of Europe history to be subjected to the sanction process for breaching member states’ obligations to implement European Court of Human Rights judgments.

Infringement proceedings were invoked for the first time in 2017, when the government of Azerbaijan repeatedly refused to secure the unconditional release of a wrongfully jailed opposition politician, Ilgar Mammadov.

Article 46/4 of the European Convention on Human Rights provides for the infringement proceedings. A vote of two-thirds of the Committee of Ministers is needed to start the process. The European Court on December 10, 2019 took the rare step of ordering Osman Kavala’s immediate release. It ruled that by holding Kavala in pretrial detention since November 2017 and prosecuting him on the basis of his human rights activities, the Turkish authorities had “pursued an ulterior purpose, namely, to silence him as a human rights defender.”

The court found that by using detention for political ends, Turkey had violated Kavala’s rights, including the right to liberty, and had abused the discretion given to governments to impose legitimate limitations on rights, under articles 5 and 18 of the European Convention on Human Rights, respectively.

The Kavala judgment is legally binding, yet the Turkish authorities have snubbed the Strasbourg court and ignored the decisions of the Committee of Ministers, which represents the Council’s 47 member states, calling for his release and the full restoration of his rights.

The Turkish courts and prosecutors have engaged in a series of tactics to circumvent the authority of the European Court and the Council of Europe, using domestic court decisions to prolong Kavala’s detention and extend the life of baseless prosecutions. The courts have issued sham release orders, initiated multiple criminal proceedings against Kavala on the same facts, and separated and re-joined case files accusing him of bogus offenses.

In 2021, Turkey merged the proceedings against Kavala with an entirely separate and much older case against football fans and others charged with a demonstration during 2013 protests a few kilometers away from Istanbul’s Gezi Park.

Turkey’s international partners, in particular countries that supported the infringement vote, should make it clear that Turkey’s continued failure to implement the Court’s judgment and to release Osman Kavala would have consequences on their relations with Turkey. In particular, the European Union should tie its proposed “positive agenda” with Turkey to Kavala’s release and make respect for rights a prerequisite for opening talks on the Customs Union modernization that Turkey is seeking.

“Turkey knows that the European Court’s judgments are binding but has chosen to defy its obligations and the rule of law,” Reidy said. “Through the infringement proceedings and engagement from other countries, that needs to change, and Turkey should free Osman Kavala immediately and restore all of his rights.”

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