KAVALA v. TURKEY (Application no. 28749/18, Judgment 11.07.2022, Basis: Art. 46 paragraph 4 of the ECHR due to non-compliance with a previous final judgment of the ECHR)

KAVALA v. TURKEY

(Application no. 28749/18, Judgment 11.07.2022, Basis: Art. 46 paragraph 4 of the ECHR due to non-compliance with a previous final judgment of the ECHR)



INTRODUCTION
This is the second judgment that the European Court on Human Rights (ECtHR) has issued applying the provisions of Article 46 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), contained in Protocol 14 to the ECHR.
When applying Article 46 of the ECHR, the ECtHR does not re-examine the case in which a violation was previously established and the judgment became final. The matter of assessment is the state's attitude towards the obligations arising from the previously passed judgment. This procedure is always decided by the Grand Chamber of the ECtHR.
It is interesting that in both judgments in which Article 46 of the ECHR has been applied so far, a previous final judgments were regarding a violation of the rights from Article 5 of the ECHR - continued detention on insufficient grounds of applicants who were not politically like-minded with the ruling structure in the country, both were civil activists and human rights activists.
The Committee of Ministers initiated the procedure before the ECtHR on the basis of Article 46, which contains its right to supervise the execution of the rendered judgments, prior to which an address to the affected state in order to obtain information on what has been done on the basis of the rendered judgment.


I. FACTS AND CIRCUMSTANCES FOR THE JUDGMENT IN DECEMBER 2019 (WHICH BECAME FINAL ON MAY 11, 2020)

Mr. Kavala was a businessman and human rights activist in Turkey and was active in many non-governmental organizations and civil movements. He was deprived of his liberty and was in custody continuously from 18.10.2017, at least until 02.02.2022, that is, until the day when the Committee of Ministers did not decide to refer the verdict to the ECtHR in accordance with Article 46 para. 4 of the ECHR. The accusations related to criminal acts with which an attempt was made to overthrow the Government by force and violence and an attempt to disrupt the constitutional order. After the charges were withdrawn in 2020, the detention was lifted and a guarantee was set, but instead of being released, Mr. Kavala was first detained in the police, only to be remanded in custody on the same day on charges of military and political espionage.
After the Committee of Ministers raised the issue according to Article 46 para. 4 of the ECHR, Mr. Kavala was sentenced to life imprisonment for one crime and remained in custody.
Mr. Kavala's detention was repeatedly extended and he was in detention for a total of four years, three months and 14 days.
Mr. Kavala also sought protection before the Constitutional Court regarding the excessive duration of the detention measure. Based on the first request to the Constitutional Court, it was decided that there was no violation of his right to freedom. Then, Mr. Kavala submitted a second request to the Constitutional Court, during which it was again assessed that his right to freedom was not violated. The President of the Constitutional Court had his own separate opinion, who disagreed with the majority of judges, noting that in order to claim that a non-governmental organization undertook some spying activities, it must have information, documents and concrete evidence, not abstract and general hypotheticals. claims. The vice-president of the Constitutional Court had his separate opinion in a similar direction. The third judge who issued his opinion stated that there were no facts, information or evidence that Mr. Kavala participated in criminal activities for the crime charged. In similar circumstances, four more judges stated their opinions, or a total of seven judges of the Constitutional Court had their separate opinion.
Due to all the facts in the case, in December 2019, the ECtHR issued a judgment in the case of Mr. Kavala v. Turkey (application no. 28749/18), which found a violation of Article 5 paragraphs (1) and (4) and Article 18 in relation to Article 5 paragraph (1) of the ECHR regarding the criminal charges against Mr. Kavala and his subsequent and prolonged detention in the absence of any reasonable grounds, nor was there any evidence of reasonable doubt that Mr. Kavala had committed the offense it is put on him.
At the same time, the ECtHR assessed that the decision of the Constitutional Court of Turkey cannot be considered to be in the context of the protection provided in Art. 5 st. 4 of the ECHR.
The judgment of the ECtHR became final on May 11, 2020.


II. SUPERVISION OF THE IMPLEMENTATION OF THE JUDGMENT ACHIEVED IN DECEMBER 2019 (WHICH BECAME FINAL ON MAY 11, 2020)

After the judgment became final, it was submitted to the Committee of Ministers of the Council of Europe in order to supervise its execution, expecting that according to the state's obligation under Article 46 of the ECHR, Mr. Kavala would be released from detention. Already at a meeting on 4 June 2020, the Committee of Ministers classified the case as one requiring "enhanced action" on the basis that the Committee of Ministers required "urgent individual measures" to be taken due to a "complex problem" detected.
It was decided to pursue the matter at every meeting of the Committee of Ministers until Mr. Kavala is released.
Based on Article 46 para. 4 of the ECHR, the Committee of Ministers made 10 decisions and three resolutions. Even after the first verdict passed, the Committee of Ministers demanded the release of Mr. Kavala "without delay".
On 16 March 2021, a letter signed by the Chairman of the Committee of Ministers to the Turkish Foreign Minister "conveyed the Committee's deep concern about the continuation of the applicant's detention and expressed the strong expectation that Turkey will take all necessary steps to ensure the release of Mr. Kavala."
Between May 12, 2021 and January 12, 2022, the Committee of Ministers reviewed Mr. Kavala's case in 16 meetings.
After it was established that Turkey is trying to release Mr. Kavala and does not comply with the final judgment of the ECtHR, an official notification was sent to Turkey that in February 2022 the ECtHR will be convened, in accordance with Article 46, paragraph 4, of the ECHR , to decide on the basis of the question whether Turkey failed to fulfill its obligation from Article 46, paragraph 1, of the ECHR and at the same session the Committee of Ministers initiated a procedure in accordance with Article 46, paragraph 4 of the ECHR.


IV. RELEVANT LEGAL FRAMEWORK AND PRACTICE

RULES OF THE COMMITTEE OF MINISTERS
In the particular case, Turkey acted against the Rules of the Committee of Ministers for the supervision of the execution of the judgments of the ECtHR, specifically the Rule no. 11 – Procedure in case of breach of obligation by a signatory state of the ECHR.
This procedure is initiated if the following conditions are met:
- to be an exceptional case
- before its initiation, an official notification from the Committee of Ministers to the state should precede
- this notice was submitted within 6 months before this procedure was initiated, except in the case of a resolution adopted by a 2/3 majority of the representatives in the Committee of Ministers.
In order to judge that it is an exceptional case, the Committee of Ministers should apply a high threshold before starting the infringement procedure, which has the status of a last measure after the Committee of Ministers has judged that other means of securing the execution of the judgment have proved unsuccessful. .

The referral of the case to the ECtHR should take the form of a provisional resolution which should contain:
- justification of the initiation of the procedure and
- to state the position of the affected state.

PROTOCOL No. 14 of the ECHR
Protocol no. 14 of the ECHR was adopted in 2004, and entered into force in 2010, and with it, for the first time, the possibility of initiating a procedure before the ECtHR was prescribed in the event that a signatory state does not execute a judgment passed by the ECtHR.
Pursuant to Article 46 of this Protocol, ECtHR judgments are binding and must be implemented.
Paragraphs 4 and 5 of Article 46 empower the Committee of Ministers to initiate infringement proceedings due to non-execution of a judgment before the ECtHR.
The Grand Judicial Council of the ECtHR decides on this procedure.
The procedure for violation of execution does not mean reopening the case where the violation of the ECHR was established, nor does it provide for any fines for the affected state.
It is considered that the political pressure exerted by the initiation of the non-accession procedure and the subsequent decision of the Grand Judicial Council should be sufficient to ensure the implementation of the ECtHR's original judgment by the concerned state in order for it to act in good faith.

            THE CASE OF ILGAR MAMMADOV AGAINST AZERBAIJAN
The cited case (Ilgar Mammadov v. Azerbaijan, Application No. 15172/13, Judgment 29 May 2019) is the first case that the Committee of Ministers submitted to the ECtHR on the basis of Art. 46 paragraph 1 of the ECHR due to the initiated procedure for non-compliance and non-execution of a final judgment passed by the ECHR.
Mr. Mammadov was an opposition leader and human rights activist in Azerbaijan. He was in prison from 2013 to 2018, a period during which the Council of Europe and other international organizations and NGOs demanded his release. Acting on Mr. Mammadov's application (Application No. 15172/13, judgment of 05/22/2014, which became final on 10/13/2014), the ECtHR decided that there was a violation of Article 5 para. 1(c) and para. 4, of art. 6 st. 2 and Article 18 in connection with Article 5 of the ECHR.
In 2019, the ECtHR unanimously ruled that the ECtHR's original ruling in the case of Mammadov v. Azerbaijan had not been implemented, that the state had not acted in good faith in the spirit of the ECtHR's ruling.




V. DECISION OF THE ECtHR ON THE BASIS OF NON-ENFORCEMENT OF ITS FINAL JUDGMENT IN THE PARTICULAR CASE

The ECtHR issues a declaratory judgment when it finds a violation of the ECHR based on non-execution of a final judgment.

When the ECHR has established a violation of the ECHR or its protocols, the obligations of the respondent state are:
- has a legal obligation to pay the amounts awarded as just compensation to the affected parties,
- has the obligation to select individual measures to be adopted in its domestic legal order to put an end to the violation established by the ECtHR, which is again subject to supervision by the Committee of Ministers.

Before deciding to submit the case to the ECtHR, the Committee of Ministers preliminarily decides on the following:
- that there is a refusal of the state to comply with a final decision of the ECtHR
- existence of exceptional circumstances.

The ECtHR found that the Committee of Ministers does not have a mandate to evaluate the evidence in an ongoing case before a domestic court of a state that is a signatory to the ECHR.
At the same time, the ECtHR found that the fact of initiating a procedure according to Article 46 paragraph 4 of the ECHR constitutes a violation of the ECHR system, which is based on the principles of subsidiarity and margin of appreciation, as stated in Protocol No. 15 of the ECHR.

            The ECtHR ruled that the state's claims that Mr. Kavala's application was not filed within six months after exhausting all domestic remedies were unfounded, as that deadline is irrelevant when it comes to proceedings for non-compliance with a final judgment of the ECtHR.

The ECtHR appreciated several circumstances:
- whether the accusations against Mr. Kavala have substantially changed after the ECtHR verdict, as claimed by the state,
- whether he submitted a new application after the final judgment
- what measures Turkey has taken.

The ECtHR stated that even when it comes to a charge for a different crime, the assessment of whether the charge has substantially changed depends on whether the new charge is based on new evidence or whether it is the same evidence, only used for a charge with a different name of a crime. In the specific case, it was established that it was not a question of a new charge because it was based on the same facts.
There were many facts that the State did not dispute at all, and which went in favor of Mr. Kavala's claims.
The political nature of the case is also reflected in the fact that disciplinary proceedings were initiated against three judges who passed an acquittal verdict, and several statements and speeches were made by high-ranking state officials in the case of Mr. Kavala.




VI. CONCLUSION OF THE COURT

The ECtHR stated that the structure of the ECHR is set up in such a way that it is expected that the signatory states will act in good faith and that the same approach will be respected when it comes to supervision over the execution of judgments.
By disobeying the judgments of the ECHR, the states demonstrate disrespect for the rule of law, a principle which is the guiding principle when ratifying the ECHR.
In the specific case, Turkey took some concrete measures and presented several action plans, but despite the ECtHR's ruling, Mr. Kavala was continuously detained based on facts that, in its initial judgment, the ECtHR considered insufficient. to justify the suspicion that Mr. Kavala has committed "any crime" and which are "largely related to the exercise of rights from the ECHR." Despite this assessment by the ECtHR, Mr. Kavala was sentenced to the most severe punishment according to Turkish legislation – life imprisonment.
The ECtHR considered that the measures cited by Turkey did not allow it to conclude that the state party had acted in "good faith", in a manner compatible with the "conclusions and spirit" of the judgment in Mr. Kavala's case, or in a manner that would make it practical and effective protection of the rights from the ECHR which the ECtHR found to be violated in that judgment.
Hence the conclusion that Turkey has not fulfilled its obligation under Article 46 paragraph 1 to comply with the judgment in the case of Kavala v. Turkey of December 10, 2019 due to which:
- ascertained a violation of Article 46 para. 1 of the ECHR
- ordered the Government of Turkey, within three months, to pay Mr. Kavala an amount of 7,500 euros and other amounts in the name of fees, costs or expenses to which he was exposed during the procedure