Case of European Court of Human Rights, December 10, 2019 (case KAVALA v. TURKEY)

Defense:TURKEY
Resolution Date:December 10, 2019
SUMMARY

Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 18+5-1 - Limitation on use of restrictions on rights (Article 18 - Restrictions for unauthorised purposes) (Article 5-1 - Lawful arrest or detention;Art... (see full summary)

 
FREE EXCERPT

SECOND SECTION

CASE OF KAVALA v. TURKEY

(Application no. 28749/18)

JUDGMENT

Art 15 • Derogation • Limits

Art 5 § 1 (c) • Detention on the basis of suspicion that the applicant had committed the offences of attempting to overthrow the Government or the constitutional order “by force and violence” • Lack of reasonable suspicion that the applicant had had violent intentions • Case file concerned acts related to the mere exercise of rights guaranteed by the Convention or normal activism on the part of a human-rights defender • Derogation could not remove the requirement that suspicions had to be reasonable

Art 5 § 4 • “Speedy” review • Long period that could not be adequately justified by the Constitutional Court’s exceptional workload following the state of emergency • Significant periods of delay both before and after the state of emergency was lifted

Art 18 • Extended detention of a human-rights defender with the ulterior purpose of reducing him to silence • Chilling effect on civil society

Art 46 • Execution of judgments • Individual measures • Immediate release of applicant

STRASBOURG

10 December 2019

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

Table of Contents

PROCEDURE

THE FACTS

  1. THE CIRCUMSTANCES OF THE CASE

    A.The Gezi Park events

    1. General context

    2. Information submitted by the Government

    3. Information transmitted by the Commissioner for Human Rights

      B.The attempted coup of 15 July 2016 and the declaration of a state of emergency

      C.The applicant’s placement in pre-trial detention

      D.Extension of the pre-trial detention

      E.The indictment of 19 February 2019

    4. First part of the bill of indictment

    5. Second part of the bill of indictment

    6. Third part of the bill of indictment

      F.The applicant’s individual application before the Constitutional Court

      G.Other information provided by the applicant

      H.The application to the United Nations Working Group on Arbitrary Detention

  2. RELEVANT DOMESTIC LAW AND PRACTICE

    A.The Turkish Constitution

    B.Relevant provisions of the Criminal Code

    C.Relevant provisions of the Code of Criminal Procedure (“the CCP”)

    D.Legislative decrees nos. 667 and 668

  3. COUNCIL OF EUROPE MATERIALS

  4. THE URGENT APPEAL PROCEDURE AND THE WORKING GROUP ON ARBITRARY DETENTION

  5. NOTICE OF DEROGATION BY TURKEY

    THE LAW

  6. SCOPE OF THE APPLICATION

  7. PRELIMINARY QUESTION CONCERNING THE DEROGATION BY TURKEY

  8. THE GOVERNMENT’S PRELIMINARY OBJECTIONS

    1. Objection under Article 35 § 2 (b) of the Convention

    2. The objection based on failure to exhaust domestic remedies

  9. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION

    1. Admissibility

    2. Merits

    1. The parties’ submissions

    2. The Court’s assessment

  10. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION ON ACCOUNT OF THE LACK OF A SPEEDY JUDICIAL REVIEW BY THE CONSTITUTIONAL COURT

    1. Admissibility

    2. Merits

      1. The parties’ submissions

      2. The third parties

    3. The Court’s assessment

      1. Relevant principles

      2. Application of these principles

  11. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION

    1. Admissibility

    2. Merits

    1. The parties’ submissions

    2. The third-party interveners

    3. The Court’s assessment

  12. OTHER COMPLAINTS UNDER ARTICLE 5 §§ 3 AND 4 OF THE CONVENTION

  13. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION

    FOR THESE REASONS, THE COURT

    CONCURRING OPINION OF JUDGE BOŠNJAK

    PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE YÜKSEL

    In the case of Kavala v. Turkey,

    The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

    Robert Spano, President,Marko Bošnjak,Julia Laffranque,Valeriu Griţco,Egidijus Kūris,Arnfinn Bårdsen,Saadet Yüksel, judges,and Stanley Naismith, Section Registrar,

    Having deliberated in private on 15 October and 12 November 2019,

    Delivers the following judgment, which was adopted on the last‑mentioned date:

    PROCEDURE

    1. The case originated in an application (no. 28749/18) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mehmet Osman Kavala (“the applicant”), on 8 June 2018.

    2. The applicant was represented by Mr K. Bayraktar, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

    3. Relying on Article 5 of the Convention, the applicant alleged, in particular, that his arrest and pre-trial detention had not been justified and had been carried out in bad faith. He also complained that the Constitutional Court had not ruled speedily on the lawfulness of his pre-trial detention. Under Article 18 of the Convention, he submitted that his rights had been restricted for purposes other than those prescribed in the Convention. In this connection, he argued that the detention measure imposed on him amounted to a form of judicial harassment, the purpose of which was to exert a dissuasive effect on human-rights defenders.

    4. On 23 August 2018 the Court decided to apply Rule 41 of the Rules of Court and grant the applicant’s request for priority treatment of the application. Under its new prioritisation policy, effective since 22 May 2017, cases where applicants have been deprived of their liberty as a direct consequence of an alleged violation of Convention rights, as in the present case, are to be given priority.

    5. On 30 August 2018 the complaints under Article 5 §§ 1 (c), 3 and 4 and Article 18 of the Convention were communicated to the Government, and the remainder of the application was declared inadmissible, in accordance with Rule 54 § 3.

    6. The applicant and the Government each filed observations on the admissibility and merits of the case.

    7. The Council of Europe Commissioner for Human Rights (“the Commissioner for Human Rights”) exercised her right to intervene in the proceedings and submitted written comments (Article 36 § 3 of the Convention and Rule 44 § 2).

    8. In addition, written comments were submitted to the Court by the following non-governmental organisations: PEN International, Turkey Human Rights Litigation Support Project and the Association for Freedom of Expression (“the intervening non-governmental organisations”). The Section President granted leave to the organisations in question to intervene under Article 36 § 2 of the Convention and Rule 44 § 3.

    9. The Government and the applicant each replied to the intervening parties’ comments.

    10. On 25 June 2019 the Government submitted further observations and informed the Court that the Constitutional Court had decided to dismiss the applicant’s individual application. In a letter dated 26 June 2019 the Court invited the applicant to submit comments on the matter. The applicant did not submit observations on this point. On 10 July 2019 the Government sent a copy of the Constitutional Court’s judgment.

      THE FACTS

    11. The applicant was born in 1957 and lives in Istanbul. He is currently being held in detention.

    12. The applicant, a businessman, is a human-rights defender in Turkey. He has been involved in setting up numerous non-governmental organisations (“NGOs”) and civil-society movements which are active in the areas of human rights, culture, social studies, historical reconciliation and environmental protection.

      In 2002 he set up the limited public company Anadolu Kültür, which works to promote peace, reconciliation and human rights by supporting artistic and cultural initiatives, particularly those organised outside Turkey’s major cultural centres. Several of this NGO’s projects, organised in collaboration with the Turkish local authorities, have received support from many internationally known arts foundations and from the European Union.

    13. In her written observations, the Commissioner for Human Rights explained that the applicant has been a long-standing and trusted partner of many international bodies working on human rights in Turkey, including the Commissioner’s Office. She indicated that, like all four Commissioners since the inception of the Office, she has been in contact with many of the NGOs he helped to found or with him personally. In her view, he and these NGOs have been reliable and objective sources of information about the human-rights situation in Turkey, always displaying the highest level of professionalism, dedication and respect for human rights. She added that during their numerous dealings with them, neither she nor her predecessors had received any indication of any incitement to violence or crime, or justification and trivialisation of violence on their part.

    14. The applicant was arrested in Istanbul on 18 October 2017. He was suspected of having committed two offences under Article 312 (attempting to overthrow the Government) and Article 309 (attempting to overthrow the constitutional order) of the Criminal Code. The accusations against the applicant were related to the Gezi Park events which occurred between May and September 2013 (Article 312 of the Criminal Code) and the attempted coup of 15 July 2016 (Article 309 of the Criminal Code).

    15. In September 2011 the Istanbul Metropolitan Municipal Council (Istanbul Büyükşehir Belediye Meclisi) adopted a plan to pedestrianise Taksim Square in Istanbul. This plan included blocking traffic routes around Taksim Square and rebuilding barracks (demolished in 1940) in order to create a shopping centre in the new premises. These barracks were to be built on the site of Gezi Park, one of the few green spaces in the centre of Istanbul. Professional bodies such as the Chamber of Architects and the Chamber of Landscape Architects brought numerous administrative proceedings in an attempt to have the project set aside. In 2012 several demonstrations were organised to protest against the planned destruction of Gezi Park. Platforms bringing together several associations, trade unions, professional bodies and political parties, including the “Taksim Solidarity” (Taksim Dayanışma) collective, were...

To continue reading

REQUEST YOUR TRIAL