Turkey’s ECtHR violation battle over Kavala case

The Committee of Ministers of the Council of Europe on February 2, referred the case of imprisoned philanthropist and civil rights activist Osman Kavala to the European Court of Human Rights (ECtHR). It is the next step in “infringement proceedings” that may result in Turkey’s suspension from the Council of Europe, of which it is a founding member.
“The Committee found that, by failing to ensure Mr Kavala’s immediate release, Turkey is refusing to abide by the Court’s final judgment in his case,” it said in a statement. ECtHR ruled more than two years ago that Kavala should be released immediately; his detention is unlawful and violation of European Convention of Human Rights (ECHR.)

Kavala has been imprisoned for more than four years without conviction, and the case has become a matter of diplomatic relations as it is considered political in nature.

Following the Council’s decision for referral, President Tayyip Erdoğan said on February 3 that Turkey will not acknowledge the Council of Europe if “it does not acknowledge the Turkish courts.”

“Turkey will not acknowledge those who do not acknowledge” its courts, he said.

“What the ECtHR has said, what the Council of Europe says, this doesn’t concern us much because we expect our courts to be respected,” he said.

“To those who don’t show this respect: excuse us, but we will have no respect for them either,” Erdogan added.

There are three critical points that I would like to emphasise, which are of embarrassment for Turkey.

First: Trials of Silencing

The first source of embarrassment is that Osman Kavala has been in jail for more than four years on fabricated grounds. He was first acquitted of charges on nationwide Gezi Protests. Before his release, a new case was opened on attempting to overthrow the constitutional order in the July 15 coup attempt. He was kept in prison even though the court later ruled to release him on that charge, too; the case files are amended, a new case is opened on new charges.

The ECHR has said that, just like in the case of the previous Democratic People’s Party (HDP) co-chair Selahattin Demirtaş, these chain arrests aimed at silencing.

Officially, Demirtaş was detained on the ground of inciting violence in Kobane protests in 2016, and Kavala was detained on the ground of trying to overthrow the government by Gezi Protests in 2013.

However, the public opinion is that the reason behind their detention is their joint concern that President Tayyip Erdogan would turn Turkey into a one-man regime with the presidential system shift, which was approved by constitutional referendum in 2017 and taken into effect in 2018 with presidential elections.

Both Erdoğan and Nationalist Movement Party (MHP) leader Devlet Bahçeli, an ally of the ruling AKP, are exercising political pressure on judicial bodies, with their statements that they have given before almost every hearing saying that Kavala and Demirtaş should remain in prison. The cases are of a political nature.

Second: Violation of the law at multiple levels

Turkey is accused of violating the ECHR because of the Kavala case. But ECHR, the primary legal text of the Council of Europe, which Turkey joined as a founding member in 1950, is not the only text Turkey can be accused of violating by not complying with.

With the sentence added to Turkey’s constitution in 2004, which is approved by the parliament with the support of the main opposition CHP, “International agreements duly put into effect have the force of law.” and “in the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.”

Therefore, if the decisions of the ECtHR are not complied with, the constitution is also violated. In other words, when it comes to human rights and freedoms, the objection of “interfering the domestic politics” or “acknowledging or respecting the local courts” is not valid according to the constitution.

Turkey also rightly opposes human rights violations in other countries, such as Germany, Greece, Bulgaria and Bosnia, and wants this not to be seen as an intervention in internal affairs.

The decisions of the Constitutional Court, demanding compliance with the decisions of the ECtHR, are also not implemented, and there is also a violation of the law.

Third: The rhetoric is null and void

The Ministry of Foreign Affairs reacted sharply to the decision of the Committee of Ministers of the Council of Europe. In the written statement on February 2, Ankara said that Turkey’s “Government shared views with the Council of Europe on January 19 2022, in which we explained in detail that the ECtHR’s judgment has been executed, that Kavala’s detention was the result of another judicial proceeding and that the matter should be examined based on legal principles.”

“It is evident that this prejudiced and politically motivated decision, which disregards the domestic proceedings, damages the credibility of the European human rights system,” it added.

However, the violation decision of the ECtHR is based on the allegation that new lawsuits against Kavala aimed at circumventing the ECtHR ruling. And with this statement, in a sense, the Ministry of Foreign Affairs confirmed the accusation that new cases are filed to appear complying with the court.

If the decisions of the European institutions regarding the violations of rights in Turkey are “null and void,” as Erdoğan states, why does the President keep talking about his determination to join these institutions, especially the European Union (EU).

The discourse that “it has no effect” is a discourse that has lost its effect, is empty, and is out of date.

Using Turkey’s geographical location and military power, Erdogan says, “You have to accept me as I am.” Diplomacy aside, will foreign investments feel compelled to come to Erdogan’s Turkey, which the ECtHR says there is a violation of law?

Remembering decade ago

Just ten years ago, between 2012 and 2012, the President of the Parliamentary Assembly of the Council of Europe was a Turkish politician, current Foreign Minister Mevlüt Çavuşoğlu. At that time, the Council was extremely important for Erdogan, not as “obsolete” as today.

With the special efforts of Çavuşoğlu, Turkey agreed to open the Council’s convention against violence against women for signature at the Istanbul meeting. In 2011, the first politician that signed the convention was Erdoğan, who was the Prime Minister then.

Erdogan left the Istanbul Convention ten years later with the blackmail of the political Islamist base. Let’s hope things don’t go so far to exit from European Convention on Human Rights.

Will he be released?

According to Kavala’s lawyers, if Kavala is released, the decisions of the ECHR will be deemed to have been implemented and the violation process will be stopped.
Will Kavala be released at the hearing on February 12?

After the decision of the Council, Mr. Kavala published the following short and gentle statement, without any confrontation:

“After the ECHR’s decision stating that I should be released immediately and the acquited of the Gezi trial, I find it important to impartially examine the judicial practices carried out to maintain my detention. I hope that the evaluation of the ECHR will contribute to the protection of legal norms regarding human rights in our country.”

I ask again: does the court “contribute to the protection of human rights and legal norms in our country” by examining the case file “with an impartial eye”, as Kavala says?
It doesn’t look easy unless Erdogan is compelled by economic and political force to change his current line. I hope I am wrong and I will be one of those who are happy with Kavala’s release.