The Council of Europe (CoE) should insist that Turkey immediately comply with judgments from the European Court of Human Rights (ECtHR) or face infringement proceedings, three leading nongovernmental organizations working on human rights in Turkey said in a statement on Friday.
Human Rights Watch, the International Commission of Jurists and the Turkey Human Rights Litigation Support Project urged the committee to “use all available measures to require Turkey to rectify its flagrant non-compliance with its obligations, the court judgments, and the committee’s decisions on this matter.”
In an upcoming meeting on June 7-9, 2021 the CoE Committee of Ministers will review the Turkish government’s failure to implement two ECtHR judgments that ordered the immediate release of human rights defender Osman Kavala and Kurdish politician Selahattin Demirtaş.
The ECtHR ruled on December 10, 2019 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.”
Similarly, the ECtHR ruled on December 22, 2020 that by holding Demirtaş in pretrial detention since November 2016 and prosecuting him for his activities and speeches protected under the European Convention on Human Rights (ECHR), the Turkish authorities had pursued the ulterior purpose of preventing him from carrying out his political activities, depriving voters of their elected representative and “stifling pluralism and limiting freedom of political debate: the very core of the concept of a democratic society.”
In both cases the court found that Turkey had violated the right to liberty and other rights (Articles 5 and 18 of the ECHR, respectively). The court took the rare step of ordering their immediate release.
Despite the fact that the landmark judgments are legally binding, the Turkish authorities have snubbed the Strasbourg court and ignored the Committee of Ministers’ decisions calling for the men’s release.
“The Committee of Ministers should be using every means it has to push Turkey to implement the Kavala and Demirtaş judgments,” said Aisling Reidy, senior legal adviser at Human Rights Watch. “That means that the committee should be prepared to trigger infringement proceedings against Turkey if it persists with its defiance of the European Court’s binding judgment in favor of Kavala, and to call for the immediate release of Demirtaş with a commitment to escalate measures if it does not happen.”
The Committee of Ministers has the authority to take infringement proceedings against a Council of Europe member state that refuses to carry out European court judgments. It was used for the first time in 2017 when the government of Azerbaijan repeatedly refused to secure the unconditional release of wrongfully jailed opposition politician Ilgar Mammadov.
Infringement proceedings are provided for under Article 46/4 of the ECHR. Opening these proceedings requires the vote of two-thirds of the Committee of Ministers. Once the process is triggered, the case reverts to the ECtHR for a further opinion on whether the state has met its binding obligation to comply with the judgment. If the court confirms that Turkey has failed to carry out the ruling, the Committee of Ministers may then take additional measures, including ultimately suspending Turkey’s voting rights or membership in the Council of Europe.
“Not only does the non-implementation of these judgments show Turkey’s failure to respect its international law obligations, but it also represents a serious challenge to the Council of Europe system for implementation of European Convention on Human Rights,” said Róisín Pillay from the International Commission of Jurists “This matter does not only have a serious impact on Kavala’s and Demirtaş’s rights, but also on the Convention system more broadly. The Committee must therefore not delay in ensuring this challenge is faced in line with the procedure provided under the Convention.”
On May 21, when the retrial of Kavala for his alleged role in the 2013 Gezi Park protests began, Turkish authorities merged that case with another concerning his alleged involvement in a 2016 coup attempt and espionage. The İstanbul 30th Assize Court hearing the case extended his detention. The next hearing against Kavala is scheduled for August 6.
In Demirtaş’s case, the Ankara 22nd Regional Appeals Court on April 19 merged an existing case against him with a new case before it despite the fact that it involved the same or similar facts, which the European Court had held consisted of peaceful political speeches and activities protected under the ECHR. In the new case, the facts used as the evidence have been reclassified under different charges
“Turkish prosecutors and judges have sought to circumvent the authority of the European Court by adopting the tactic of opening new criminal proceedings against Kavala and Demirtaş based on the reclassification of the same facts,” said Helen Duffy of the Turkey Human Rights Litigation Support Project “This cynical non-compliance with the court’s judgments requires a robust response from the Committee of Ministers.”
[…] The sham/ evasion line has been maintained by the Director, Europe Regional Office, Amnesty International (and former Council of Europe’s Commissioner for Human Rights (2012-2018)), Nils Muižnieks. Writing in March 2021, he maintained that Turkey’s reaction to the Court’s Kavala ruling and the CoM’s follow up, amounted to ‘spit[ting] in the face’ of the authority of the Convention system. He argued that there was no more scope with respect to ‘delay and dithering’ in this case, it being ‘impossible to pretend that Turkey continues to cooperate and fulfil its obligations in good faith’. More recently, Helen Duffy of the Turkey Human Rights Litigation Support Project has referred to Turkey’s ‘cynical non-compliance with the court’s judgments’, via an attempt by ‘Turkish prosecutors and judges… to circumvent the authority of the European Court by adopting the tactic of opening new criminal proceedings against Kavala [and another applicant, Demirtaş – discussed below] based on the reclassification of the same facts’. Meanwhile, on 4 June 2021, the Turkey Human Rights Litigation Support Project, Human Rights Watch and the International Commission of Jurists issued a Joint Statement urging the CoM to ‘use all available measures to require Turkey to rectify its flagrant non-compliance with its obligations, the court judgments, and the committee’s decisions on this matter’. (See also here). […]