Ongoing detention of human rights defender violates the ECHR

JUDGMENT

Kavala v. Turkey  10.12.2019 (no. 28749/18)

see here

SUMMARY

In this case, Mr Kavala, a businessman who has been involved in setting up numerous nongovernmental organisations (“NGOs”) and civil-society movements which are active in promoting
and protecting human rights, argued that his arrest and placement in pre-trial detention had been
unjustified.

The Court noted that Mr Kavala had been placed in pre-trial detention on account of a “strong
suspicion” that he had committed two offences: attempting to overthrow the Government and
attempting to overthrow the constitutional order, through force and violence.

The Court found that the authorities were unable to demonstrate that the applicant’s initial and
continued pre-trial detention had been justified by reasonable suspicions based on an objective
assessment of the acts attributed to him. It also noted that this measure had essentially been based
not only on acts that could not be reasonably considered as behaviour criminalised under domestic
law, but also on acts which were largely related to the exercise of rights guaranteed by Articles 10
and 11 of the Convention, and that those acts had been non-violent. In the absence of facts,
information or evidence showing that Mr Kavala had been involved in criminal activity, he could not
reasonably be suspected of having attempted to overthrow the Government by force or violence.
With regard to the total duration of the Constitutional Court’s review of legality in the context of Mr
Kavala’s individual application and to what was at stake, the Court concluded that the proceedings
by which the Turkish Constitutional Court had ruled on the lawfulness of Mr Kavala’s pre-trial
detention could not be considered compatible with the “speediness” requirement of Article 5 § 4.

Lastly, the Court held that, having regard to the material in the file, it had been established beyond
reasonable doubt that the measures complained of in the case pursued an ulterior purpose, contrary
to Article 18, namely that of reducing Mr Kavala, and with him all human-rights defenders, to
silence.

In consequence, having regard to the particular circumstances of the case and the grounds on which
it had based its findings of a violation, the Court considered that the Government was to take every
measure to put an end to the applicant’s detention and to secure his immediate release

PRINCIPAL FACTS

The applicant, Mr Mehmet Osman Kavala, is a Turkish national who was born in 1957 and lives in
Istanbul (Turkey). He is currently detained and is suspected by the authorities of attempting to
overthrow both the Government and the constitutional order. Mr Kavala is a businessman who 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.

Mr Kavala was arrested in Istanbul on 18 October 2017 on suspicion of attempting to overthrow the
Government and the constitutional order through force and violence. The charges against him were
linked to the Gezi Park events and to the attempted coup d’état of 15 July 2016.

In May 2013, following the start of demolition work in Gezi Park, – a green space in the centre of
Istanbul –, environmental activists and local residents occupied the area. On 31 May 2013 the police
intervened violently. The protests escalated in June and July 2013 and spread to several towns and
cities in Turkey. Four civilians and two police officers were killed, and thousands of people were
wounded.

Moreover, during the night of 15 to 16 July 2016 a group of members of the Turkish armed forces
attempted to carry out a military coup aimed at overthrowing the Parliament, Government and
President of Turkey. During the night of violence, more than 250 people were killed and more than
2,500 were injured. The national authorities blamed the network linked to Fetullah Gülen, a Turkish
citizen living in the United States and considered to be the leader of an organisation described by the
Turkish authorities as FETÖ/PDY (“Gülenist Terror Organisation/Parallel State Structure”).

From 21 July 2016 the Government declared a state of emergency for a period of three months; this
state of emergency was subsequently extended for further periods of three months by the Council
of Ministers, chaired by the President. The Turkish authorities gave notice to the Secretary General
of the Council of Europe of a derogation from the Convention under Article 15.

On 31 October 2017 Mr Kavala, assisted by his lawyers, was questioned by police officers from the
anti-terrorist branch of the Istanbul Security Headquarters. On 1 November 2017 the public
prosecutor’s office called for Mr Kavala to be placed in pre-trial detention for “attempting to
overthrow the constitutional order through force and violence” (Article 309 of the Criminal Code)
and for “attempting to overthrow the Government or to prevent, through force and violence, the
authorities from exercising their functions” (Article 312 of the Criminal Code). In justifying the
suspicions in relation to the Gezi events, the prosecutor’s office alleged that Mr Kavala had led and
organised demonstrations which were in fact an insurrection in which all the terrorist organisations
had actively participated, with the aim of overthrowing the Government. On 8 November 2017 Mr
Kavala lodged an objection against the order for his pre-trial detention. On 13 November 2017 the
Istanbul 2nd magistrate’s court dismissed the appeal, on the grounds that the contested decision
had complied with the procedure and the law.

Between November 2017 and August 2018 Mr Kavala submitted several applications for provisional
release. In addition, the relevant magistrate’s courts examined, of their own motion, the applicant’s
continued detention on several occasions and ordered that the measure be extended.

On 19 February 2019 the Istanbul public prosecutor’s office filed a bill of indictment in respect of Mr
Kavala and 15 other suspects, accusing them, in particular, of having attempted to overthrow the
government by force and violence, within the meaning of Article 312 of the Criminal Code, and of
having committed numerous breaches of public order.

In the meantime, on 29 December 2017 the applicant lodged an individual application with the
Constitutional Court. On 28 June 2019 the CCT published its judgment, in which it concluded by
10 votes to 5 that there had been no violation of Article 19 of the Constitution. It declared admissible the complaint made by Mr Kavala with regard to the lawfulness of the order placing him
in pre-trial detention, but held that there had been no violation of Article 19 of the Constitution. It
dismissed the complaint regarding the lack of a public hearing when examining the applications for
release. The Turkish Constitutional Court held that the findings that there existed factual evidence
giving rise to a strong suspicion concerning his responsibility and that he had committed the alleged
offence during the Gezi events, the ultimate aim of which was the overthrow of the Government,
seemed neither arbitrary nor unjustified. As to the complaint regarding the lack of a public hearing
when examining the applications for release, the Turkish Constitutional Court noted that in the
period between 1 November 2017 and 30 April 2019 the applicant had not been brought before the
courts which were required to decide on the extension of his pre-trial detention. Holding that he had
had the opportunity to bring an action for damages, it nonetheless declared this complaint
inadmissible for failure to exhaust the ordinary remedies.

THE DECISION OF THE COURT…

Article 5 § 1

The Court reiterated that a person could be detained under Article 5 § 1 (c) only in the context of
criminal proceedings, for the purpose of bringing him or her before the competent legal authority on
reasonable suspicion of having committed an offence. The term “reasonable” meant the threshold
that the suspicion must meet to satisfy an objective observer of the likelihood of the accusations.

The question was then whether the deprivation of liberty was based on sufficient objective
elements; in addition, the facts relied on had to be reasonably considered as falling under one of the
sections describing criminal behaviour in the Criminal Code. Thus, there could not be a “reasonable suspicion” if the acts or facts held against a detained person did not constitute a crime at the time when they had occurred.

The Court observed that the applicant had been placed in pre-trial detention on account of a “strong
suspicion” that he had committed two separate offences: attempting to overthrow the Government
and attempting to overthrow the constitutional order, through force and violence.

The Court reiterated that in examining whether a reasonable suspicion existed for the arrest and
detention of the applicant, the starting-point for its analysis had to be the national courts’ decisions
on his initial and continued detention. Moreover, given that the Constitutional Court had assessed
the legality of the applicant’s pre-trial detention, the Court was called upon to assess whether the
reasoning adduced by that latter court, which had also had regard to the bill of indictment, had
adequately demonstrated that a reasonable suspicion existed in support of the applicant’s pre-trial
detention at the point in time when the national courts had ordered that measure.

The applicant was suspected of being the instigator and leader of the Gezi Park events, which, in the
public prosecutor’s view, were aimed at overthrowing the Government. It was to be noted,
however, that during the interviews with the applicant during police custody, no question had been
put to him about his possible involvement in committing the acts of violence which had occurred
during those events. Moreover, there was no evidence in the file indicating that he had used force or
violence, had instigated or led the violent acts in question or had provided support for such criminal
conduct. Although it referred to “concrete evidence”, the magistrate’s detention order of
1 November 2017 did not contain any materials which would have satisfied an objective observer
that there existed a reasonable suspicion that the applicant had participated in or supported such
acts. Nor did any of the subsequent detention orders extending the applicant’s detention refer to
such material evidence. In the Court’s opinion, this fact was of the utmost importance in this case, in
that one aspect of the actus rea constituting the offence with which the applicant was charged –
under Article 312 of the Criminal Code – was the use of “force” or “violence” to overthrow the
Government. The Court also noted that in the bill of indictment the prosecutor’s office had
described these events as the result of action by a group of individuals who were influential in civil
society and who had acted behind the scenes. This group of individuals allegedly formed a structure
which was led in Turkey by the applicant, himself supported by foreign actors. The Court noted,
however, that the acts attributed to the applicant were either legal activities, isolated acts which, at
first sight, were unrelated to each other, or activities which were clearly related to the exercise of a
Convention right; in any event, they were non-violent activities.

The Court concluded that – in the absence of facts, information or evidence showing that the
applicant had been involved in criminal activity – he could not reasonably have been suspected of
having committed the offence of attempting to overthrow the Government by force or violence. In
particular, the acts referred to were not sufficient to raise suspicions that the applicant had sought
by force and violence to organise and fund an insurrection against the Government.

With regard to the accusations concerning the attempted coup of 15 July 2016, the Court noted that
these were predominantly based on the existence of “intensive contacts” between the applicant and
a certain H.J.B., who was the subject of a criminal investigation for involvement in organising an
attempted coup. In the Court’s view, however, the evidence in the case file was insufficient to justify
that suspicion.

In conclusion, the Court considered that the evidence submitted to it was insufficient to support the
finding that there had been a reasonable suspicion against the applicant at the time of his initial
detention. Furthermore, it had not been shown that the evidence added to the case file following
the applicant’s arrest and throughout the period of his continued detention within the scope of this
case had amounted to facts or information giving rise to a suspicion justifying the applicant’s initial
and continued detention. In consequence, the Court concluded that the authorities had been unable to demonstrate that the applicant’s initial and continued pre-trial detention were justified by
reasonable suspicions based on an objective assessment of the acts in question.

With regard to Article 15 of the Convention, the Court referred to its finding that the evidence
before it was insufficient to support the conclusion that there had been a reasonable suspicion
against the applicant. That being so, the suspicion against the applicant had not reached the
required minimum level of reasonableness. Although imposed under judicial supervision, the
contested measures had thus been based on a mere suspicion. In consequence, the measures
complained of in the present case could not be said to have been strictly required by the exigencies
of the situation.

The Court concluded that there had been a violation of Article 5 § 1 on account of the lack of
reasonable suspicion that the applicant had committed an offence.

Article 5 § 4

On 29 December 2017 Mr Kavala had lodged an individual application with the Constitutional Court.
One year, four months and twenty-four days – including ten months and five days after the state of
emergency had been lifted – had elapsed between the date on which the individual application was
lodged with the Constitutional Court and the date on which that court had published the result of its
deliberations. Regard was also to be had to the time elapsed between the above date and the date
on which the final judgment was published. According to the Court’s established case-law, the
relevant period for the purposes of Article 5 § 4 began when an appeal was lodged with a court and
ended on the day the decision was communicated to an applicant or to his lawyer. It followed that
the period to be taken into consideration amounted to one year, five months and twenty-nine days.

The Court could accept that in the present case the issues before the Turkish Constitutional Court
were complex. However, there was nothing in the material before the Court to suggest that either
the applicant or his counsel had contributed to prolonging the judicial review of the measure in
question. In addition, following the applicant’s lodging of his individual application the Constitutional
Court had remained inactive for about ten months, in spite of the applicant’s request to obtain
priority processing of his case. The procedural delays were thus attributable to the authorities.

The Court had found it acceptable in the cases of Mehmet Hasan Altan and Şahin Alpay (20 March
2018) and Akgün (2 April 2019) that the Constitutional Court’s review might take longer.

Notwithstanding the clear length of the relevant proceedings, the Court had found in those cases
that the speediness requirement under Article 5 § 4 had been complied with. In those previous
judgments concerning the “speediness” requirement, the Court had borne in mind the
Constitutional Court’s caseload following the declaration of a state of emergency, and had held that
this was an exceptional situation. It had nonetheless stated that that finding did not mean that the
Constitutional Court had carte blanche when dealing with any similar complaints raised under
Article 5 § 4. In the present case, it sufficed to note that the length of the Constitutional Court’s
examination of the applicant’s individual application had exceeded all of the time periods observed
in the above-cited cases.

The Court reiterated that where an individual’s personal liberty was at stake, it applied very strict
criteria in assessing the State’s compliance with the requirement of speedy review of the lawfulness
of detention. That was especially true in the present case, where the applicant had been held in pretrial detention without the possibility of appearing before a court for more than one year and seven months and all his requests for release had been rejected for the same stereotyped reasons. In
addition, the restriction on access to the investigation file had remained in place until the adoption
of the bill of indictment on 4 March 2019.

In consequence, the Court considered that in the Turkish Constitutional Court, which had a
primordial role at national level in protecting the right to liberty and security, had failed to take
proper account of the importance of the right in question The applicant had been arrested on 18 October 2017 and the bill of indictment for some of the charges against him had been filed only
on 19 February 2019. This meant that for sixteen months after he had been placed in detention, the
applicant had been held without having been charged by the prosecutor’s office. As the
Commissioner for Human Rights had pointed out, the extension of the applicant’s detention in this
way could have a dissuasive effect on the non-governmental organisations whose activities were
related to matters of public interest. In the present case, speedy judicial review of this measure by
the Constitutional Court could have dispelled any doubts about the necessity of placing the applicant
in detention or extending the measure in question for such a long period.

With regard to the derogation by Turkey, the Court noted that the state of emergency had been
lifted on 18 July 2018 and that more than eleven months had subsequently elapsed before the
Turkish Constitutional Court delivered its judgment.

Having regard to the total duration of the Constitutional Court’s review of legality in the context of
the individual application and to what was at stake for the applicant, the Court concluded that the
proceedings by which the Turkish Constitutional Court had ruled on the lawfulness of his pre-trial
detention could not be considered compatible with the “speediness” requirement of Article 5 § 4.
There had therefore been a violation of Article 5 § 4.

Article 18

The Court reiterated its conclusion that the measures against the applicant had not been justified by
reasonable suspicions based on an objective assessment of the alleged acts, but had essentially been
based on facts which could not be reasonably considered as behaviour criminalised under domestic
law, and also on facts which were largely related to the exercise of Convention rights.

The Court observed that the apparent aim of the measure imposed on the applicant had been to
conduct investigations into the Gezi events and the attempted coup, and to establish whether the
applicant had indeed committed the offences of which he was accused. Given the serious disruption
and the considerable loss of life resulting from these two events, it was perfectly legitimate to carry
out investigations into these incidents. In addition, it could not be overlooked that the attempted
coup had led to a state of emergency being declared throughout the country.

However, it appeared that, from the outset, the investigating authorities had not been primarily
interested in the applicant’s presumed involvement in the public disorder which had occurred in the
course of the Gezi Park events. During the police interview, the applicant had been asked many
questions which, at first sight, had no connection with these events. Equally, some of the questions
put to him had concerned his meetings with representatives of foreign countries, his telephone
conversations with academics, journalists, NGO representatives, or the visit of an EU Turkey Civic
Commission delegation. The Government had not submitted any comments on the relevance of this
evidence in assessing the “reasonableness” of the suspicions in the present case.

The Court also noted that the bill of indictment was far from making up for the deficiency described
above. This document, 657 pages in length, did not contain a succinct statement of the facts. Nor did
it specify clearly the facts or criminal actions on which the applicant’s criminal liability in the Gezi
Park events had been based. There was nothing in the case file to indicate that the prosecuting
authorities had had objective information in their possession enabling them to suspect the applicant
in good faith at the time of the Gezi events. In particular, the prosecution documents referred to
numerous completely lawful acts that were related to the exercise of a Convention right and had
been carried out in cooperation with Council of Europe bodies or international institutions. Those
documents also referred to ordinary and legitimate activities on the part of a human-rights defender
and the leader of an NGO, such as conducting a campaign to prohibit the sale of tear gas to Turkey
or supporting individual applications.

Furthermore, the applicant had been arrested more than four years after the Gezi events and more
than a year after the attempted coup, on charges related to these events. The Court considered it
crucial in its assessment under Article 18 of the Convention that many years had elapsed between
the events forming the basis for the applicant’s detention and the court decisions to detain him. No
plausible explanation had been advanced by the Government for this lapse of time. It was also
important to note that those charges had brought following two speeches given by the President of
the Republic in November and December 2018, in which the applicant’s name had been cited. In the
Court’s view, it could only be noted that there was a correlation between, on the one hand, the
accusations made openly against the applicant in these two public speeches and, on the other, the
wording of the charges in the bill of indictment, filed about three months after the speeches in
question. Those elements could corroborate the applicant’s argument that his initial and continued
detention had pursued an ulterior purpose, namely to reduce him to silence as a human-rights
defender. Moreover, the fact that the prosecutor’s office had referred in the bill of indictment to the
activities of NGOs and their financing by legal means, without however indicating in what way this
was relevant to the accusations it was bringing, was also such as to support that assertion. The Court
was also aware of the concerns expressed by the Commissioner for Human Rights and the thirdparty interveners, who considered that the applicant’s detention was part of a wider campaign of
repression of human-rights defenders in Turkey.

In consequence, the Court considered it to have been established beyond reasonable doubt that the
measures complained of in the present case pursued an ulterior purpose, contrary to Article 18 of
the Convention, namely that of reducing the applicant to silence. Further, it considered that the
contested measures were likely to have a dissuasive effect on the work of human-rights defenders. It
found that the restriction of the applicant’s liberty had been applied for purposes other than
bringing him before a competent legal authority on reasonable suspicion of having committed an
offence, as prescribed by Article 5 § 1 (c) of the Convention.

There had therefore been a breach of Article 18 of the Convention taken in conjunction with Article 5 § 1.

Just satisfaction (Article 41)

No claim for just satisfaction had been made during the communication procedure in the
proceedings before the Chamber since 2018. In consequence, the Court made no award in this
respect.

Having regard to the particular circumstances of the case and the grounds on which it had based its
findings of a violation, the Court held that the Government was to take every measure to put an end
to the applicant’s detention and to secure his immediate release.

Separate opinions

Judge Bošnjak (concurring opinion) and Judge Yüksel (partly concurring and partly dissenting
opinion) expressed separate opinions, which are annexed to the judgment.

 


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