A panel of human rights experts discussed the situation regarding Turkey’s non-implementation of the European Court of Human Right’s (ECHR) judgements in the Kavala and Demirtas cases in a webinar on Thursday. The discussion had been organised by English PEN, one of the world’s oldest human rights organisations, only days before the Council of Europe (CoE) Committee of Ministers are expected to take a decision regarding Turkey’s non-compliance with the courts’s rulings.
The ECHR had earlier called for the immediate release of Osman Kavala, a prominent human rights defender who has been imprisoned since 18 October 2017, and Selahattin Demirtas, the former co-chair of the People’s Democratic Party (HDP) who has been imprisoned since 4 November 2016.
The CoE Committee of Ministers has, as recently as mid September 2021, urged Turkey to comply with the Court’s judgement and release Demirtaş and Kavala. The ministers had also indicated in their resolution regarding the Kavala case that they were notifying Turkey that proceedings under article 46 would be commenced in their meeting on 30 November should Kavala not have been released before then. The article states that the Committee, by a majority vote of two-thirds, refers to the ECHR of the question of whether Turkey has failed to fulfil its obligations of complying with the Court’s judgements.
‘HDP was punished by the government’
Emma Sinclair-Webb, Turkey Director at Human Rights Watch, said in the Webinar that the arrest of Demirtaş had come in the context of a major crackdown on the HDP after the party had made enormous electoral gains in the 2015 parliamentary elections by securing an historic 13 percent of national vote, and as the ongoing peace process between the Turkish administration and the Kurdistan Workers’ Party (PKK) broke down in the same year. “The HDP was punished by the government for these,” she said.
She went on to indicate that Kavala, on the other hand, was ‘scapegoated’ as a prominent human rights defender. “A conspiracy theory surfaced when he was detained for his alleged role in the Gezi protests and the coup attempt in 2016,” she added.
Çalı: ‘Arbitrary detention amounting to bad faith’
Başak Çalı, professor of international law, said that as the two cases had certain similarities, a major violation of rights in the ECHR’s perspective was ‘arbitrary deprivation of liberty’ which actually ‘amounted to a bad faith detention’, a practice associated with deception, hypocrisy and breach of contract.
Çalı also emphasised that speeches of the president regarding the two cases had also been illustrations of the political influence over the judiciary.
Türmen: ‘Turkey’s refusal took a creative form’
Rıza Türmen, former judge for Turkey at the ECHR, said that the ECHR’s judgements were binding and failure in complying with those judgements entailed international responsibility. “The Court’s credibility depends on the rapid execution of its judgements,” he said.
Indicating that since ‘a misuse of power by the Turkish administration for political purposes’ was involved in both cases and it also ‘entailed the issue of the independence of the judiciary’, a severe violation was concerned, Türmen stated that an ‘infringement proceeding’ has become ‘the last resort for the implementation of the ECHR’s judgements’.
He also noted, in reference to Kavala and Demirtaş having been subjected to seemingly new accusations after the ECHR rulings, that ‘Turkey’s refusal took a creative form’ as in both cases it ‘invented new cases’.
“Now they [Kavala and Demirtaş] are deprived of their liberty for other offences,” he said.
Çalı went on to elaborate on the same issue. “Turkey is saying to the Committee of Ministers that it either implemented judgements, or there’s no judgement to be implemented. It’s saying that they [Kavala and Demirtaş] were re-detained,” she said. “Turkey is not implementing, as understood by the Ministers.”
Warning against possible long delay in proceedings
Çalı warned against the possibility of serious delays in the course of infringement proceedings, referring to the ‘Mammadov Case’, which she said took a year for the ECHR to reach a decision.
Mammadov, a prominent opposition politician in Azerbaijan, was arrested in February 2013, only a short time before the presidential elections. The ECHR decided in May 2014 that his rights were violated. After the non-compliance of the Azerbaijan judiciary with the ECHR judgement the CoE Committee of Ministers, for the first time in its history, initiated on 5 December 2017 infringement proceedings against Azerbaijan for failing to comply with the ECHR judgment. However, the ECHR decided only 16 months later, on April 1 2019, that there had been a violation of Article 46 by Azerbaijan.
Türmen: ‘Releasing them is not enough, the charges should be annulled’
Çalı also warned that the remedial action in the cases of Demirtaş and Kavala was not only about their release. “It’s possible that they can end up in the same situation after they’ve been released,” she said.
Stating that the cases implied a ‘crossroads’ for Turkey, Türmen also affirmed that ‘the release of Demirtaş and Kavala would not be enough’, and that the Turkish judiciary ‘should annul’ all the charges against them.
Çalı: ‘Not Kafkaesque, but post truth’
Indicating that the cases against both Kavala and Demirtaş were ‘wholly fictitious’, Çalı said, “I wouldn’t call it Kafkaesque. I would call it post truth. We see how easily the judiciary may become part of misinformation in society.”
Türmen concluded with a warning that in the case of Turkey’s insistence on non-compliance with ECHR judgements, the last measure by the Committee of Ministers could be expelling Turkey from the Council of Europe.
If that happened, he added, “the line of the Turkish Republic since its foundation would be altered. It’s possible that on such an incident, authoritarian values would replace the line of adherence to universal values.”
