Rezoluția interimară CM/ResDH(2022)21 Execuția hotărârii Curții Europene a Drepturilor Omului Kavala împotriva Turciei (adoptată de Comitetul de Miniștri la 2 februarie 2022, în cadrul celei de a 1423-a ședințe a Delegaților Miniștrilor) Cerere Cauza Hotărârea Definitivului la 28749/18 KAVALA 10/12/2019 11/05/2020 Comitetul miniștrilor, în temeiul articolului 46 alineatul (2) din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale, care prevede ca Comitetul să supravegheze executarea hotărârilor definitive ale Curții Europene a Drepturilor Omului (denumită în continuare "Convenția" și "Curtea"), reamintind rezoluția sa interimară CM/ResDH-[2021]432 prin care, în scopul punerii în întârziere, Turcia își exprimă intenția de a sesiza Curtea cu ocazia reuniunii sale din 2 februarie 2022, în conformitate cu art. 46 alineatul (4) din convenție, cu privire la faptul dacă Turcia și-a încălcat obligația, în temeiul articolului 46 alineatul (1), de a se conforma hotărârii Curții din 10 decembrie 2019 în cauza Kavala , și invită Turcia să își prezinte în mod concis opiniile cu privire la această chestiune până la 19 ianuarie 2022 cel târziu, reamintind din nou că, în hotărârea menționată anterior, Curtea a considerat că arestarea reclamantului și arestarea sa provizorie au avut loc în absența unor dovezi care să permită să se presupună că: există motive plauzibile ale atuncării unei infracțiuni (încălcarea articolului 5 alineatul (1) din Convenție) și că acestea urmăresc un scop neavut, și anume reducerea la tăcere a acestuia și descurajarea altor apărători ai drepturilor omului [încălcarea articolului 18 coroborat cu art. 5 alineatul (1) ] ; și că termenul de examinare, de un an și de aproape cinci luni, de către Curtea Constituțională a plângerii reclamantului nu poate fi considerat suficient de scurt, întrucât libertatea sa personală era în joc [încălcarea articolului 5 alineatul (4) ] (a) indicarea Curii, în conformitate cu art. 46, făcută având în vedere circumstanele speciale ale cauzei și motivele pe care aceasta și-a întemeiat constatările privind încălcarea, potrivit cărora guvernul trebuie să ia toate măsurile necesare pentru a pune capăt deteniei reclamantului și pentru a asigura eliberarea imediată a acesteia (§ 240 din hotărâre) obligația statului pârât, în temeiul articolului 46 alineatul (1) din convenție, de a se conforma tuturor hotărârilor definitive în litigiile la care este parte și că această obligație implică, pe lângă plata satisfacției echitabile acordate de Curte, adoptarea de către autoritățile statului pârât, dacă este necesar, a unor măsuri individuale pentru a pune capăt încălcărilor constatate și pentru a elimina consecințele acestora, în măsura posibilului prin Restitutio in integrum deciziile și rezoluția interimară (CM/ResDH(2020) 361 ) ulterioare ale Comitetului care solicită autorităților să asigure eliberarea imediată a reclamantului; că, începând cu 11 mai 2020, data la care hotărârea Curții a devenit definitivă, reclamantul este încă deținut pe baza procedurii criticate de Curtea Europeană sau pe baza motivelor de probă pe care a considerat că este insuficientă pentru a-și justifica deținerea Consideră că, în aceste circumstanțe, prin neasigurarea eliberării imediate a reclamantului, Turcia refuză să se conformeze hotărârii definitive a Curții; Hotărârea de a sesiza Curtea, în conformitate cu art. 46 alineatul (4) din Convenție, cu privire la întrebarea dacă Turcia nu și-a respectat obligaia în temeiul articolului 46 alineatul (1) din Convenie, în special în ceea ce privește indicarea Curii în temeiul articolului 46 și a măsurilor individuale necesare. În anexa la prezenta decizie se face următoarea mențiune: Opinia Republicii Turcia (numai în limba engleză) VIEWS OF THE GOVERNMENT OF THE REPUBLIC OF TÜRKAYE ON THE EXECUtion OF THE JUDGMENT OF Kavala v. Türkiye (Aplicația nr. 28749/18) Judgment of 10 decembrie 2019, Final on 11 May 2020 The Committee of Ministers, at its 1419 întâlnirea pe 2 decembrie 2021 adoptă Interim Solution CM/ResDH(2021)432 , in which the Committee Servind formal prospect on Türkiye of its intention, at its 1423 întâlnire (DH) on 2 February 2022, to reper to the Court, in acordance with Article 46 § 4 of the Convention, the question whether Türkiye has failed to fulfil its obligation under Article 46 § 1 of the Convention with particular regard to the Court The Committee also invitad the Government of Türkiye to submit in concise form its view on this interogare by 19 January 2022 at the latest. The Government of Türkiye would like to submit here-below the views on the as requested by the Committee of Ministers: FACTS The Since of the Judgment The European Court, with a judgment that became final on 11 May 2020, held that there has been a violation of Article 5 § 1 (right to liberty and security), a violation of Article 5 § 4 and a violation of Article 18 of the Convention taken in conjunction with Article 5 § 1. The European Court found that the aplicant could not reasonably be suspected of having committed the offences însărcined with [art. 5 alineatul (1) ] As to the violation of Article 5 § 4, the Court highlighted the lack of a speedy judicial review by the Constitutional Court. Lastly there has been a violation of Article 18 of the Convention taken in conjunction with Article 5 § 1 on account of thefact that the restriction of the applicant any continuation of the applicicants pre-trial detention in the present case [emphasis added] will entail a prelungire of the violation Curtea a Uniunii Europene, art. 312 (attempting to overthrow the Government- Gezi events - First applicant based on under Article 312) și art. 309 (attempting to overthrow the constitutional order-touch attempt of July 15 events - maisecond acuzations.) of the Turkish Criminal Code (TCC). Detailed information on the ongoing juridic procesing has been provided by the government in the government in their previous submissions to the Committee of Ministers. The aplicant was arresteded on 18 October 2017 within the scop of a criminal investigation instituted against the aplicant involving two apping Gezi events and aptempt of 15 July. On 5 February 2019, the Istanbul Chief Public Prosecutoruis Office decided to disjoin the investigation with a view to conduc the investigation in a more efectiv way. 10. Uită-te la investigația privind Gezi Events, la Istanbul Chief Public Prosecutor. Office filed an information with the Istanbul Assize Court, charging the aplicant with attempting to overthrow the government under Articol 312 of the Criminal Code. The Istanbul 30 Assize Court conducted the trial in respect of the applicant, ruled on the Agriculture and release of the aplicant on 18/02/20. Accordingly, the aplicant was released from detention based on the încărcare of attempting to overthrow the government (Art. 312 of the TCC) on 18 February 2020. Obiecție cu privire la other investigation attempt of July 15 conducted with respect to the offence of attempting to overthrow the constitutional order (Art. 309 of the TCC), the applicant detention has also come to an end when he was released ex official by the Istanbul Assize Court on 20 March 2020. Since then, the aplicant has not been detained from any sarcina procesed by the ECTHR. 12. The applicicants current detention has started on 9 March 2020 on account of a different sarcina that has never been examined by the European Court, notably the offence of Political or military Spionage (Art. 328 of the TCC). 13. The procesedings quarting all against the applicant are stil pandaning before the Istanbul 13 Assize Court. The Constitutional Court Subsecvent to the ECTHR judgment, on 4 May 2020 the applications lawyer lodged an individual application with the Constitutional Court on the ground that his detention on account of the încărcare of the Political or Military Spionage is unlawful. The Constitutional Court has promptly started to examin the applications individual application in . 15. On 29 decembrie 2020, the Constitutional Court -as Grand Chamber- delivered its judgment with respect to this application. The Constitutional Court held by the majority vot (8-7) that: Regarding the allegation that the applicant assessment is unlawful, the right to Liberty and security of the aplicant guaranteed under the third paragraph of Article 19 of the Constitution is not violated Uită-te la alegation that the detention period of the aplicant exceded the reasonable time, the right to liberty and security of the aplicant within the context of the seventh paragraph of Article 19 of the Constitution was not violated 16. The government has not received any communication from the Strasbourg Court whether the applicant file any complaint as as air priviri the unlawfulness of the current detention so far. The Applicant Electroluxs Current Detention 17. As mentioned above, the government would like to note that the European Court found incalcare of Article 5 on account of the sarcini stemming from the offences are în vedere under Article 312 (atempting to overthrow the government) and Article 309 (atempting to overthrow the constitutional order) of the Criminal Code. 18. The applicant is currently being detained for another offence, namely The authorities would like to note that the criminal proceedings, cuantificing the assurance of overthrow the Government (art. 312 of the Turkish Criminal Code) and attempting to Overthrow the Turkish Criminal Code) and outmpting to Overthrow the Constitution Order (art. 309 of the Turkish Criminal Code), are againing before the mainstanbul 13th Assize Court. 20. The Assize Court held the last hearing on 17 January 2022, deciding by a majority (2-1) that his detention be continued. It has been decided that the applicicants detention will be procesed on the case file on 10 February 2022 and, the next hearing will be held on 21 February 2022. 21. In its decision, the Assize Court stresed that; Having privition to thefact that, in the present case, by taking into contideration the quality and natura of the offence imputed to the acuzed Mehmet Osman KAVALA, the current stage of the trial, the analization on HTS records and the base station data in the file, the reports drawn up as a result of the analization on digital materials, the existence of the concrete evidence demonstrating strong suspected for the imputed offences in view of the MASAK report, the upper limitation of the precribed for the imputed offences by the law, it has been understood that the judieal supervision Measures will resuficient (...) II. THE APPLICABILITY OF Article 46§4 PROCEEDINGS Legal Framework 22. At the outset, the Turkish authorities would like to recall the legal framework outlining the conditions as to the applicability of Article 46§4 procesedings. 23.art. 46 alineatul (4) of the convention reads as folows: If the Committee of Ministers considers that a High Contracting Party refuzs to abide by a final judgment in a case to which it is a party , it may, after serving formal prospect on that Party and by decision adopted by a majority vots of two-thhirds of the representatives entitled to sit to sit on the committee, reper to the Court the question whether that Party has failed to fulphil its obligation under paragraph. Explanatory Report to Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention: Article 16 of the amending protocol Article 46 Rule 11 § 2 of the mail of the Committee of Ministers for the Supervision of the Execution of Judgments and of the Terms of Friendly Settlements The authorities would like to recall that the Article 46§4 procesue was introduced by amendments brought on with Protocol No. 14 to the Convention which entered into force in 2010. Since the procesure has only been used unce. 27. The above supports suggest that there are două condiții required for initiating Article 46§ 4 proceedings. These are: Refuzal by the High Contracting Party to abide by a final judgment Existența excepțională a circumstanțelor 28. The authorities are of the opinie that neither of these double conditions has been met. Türkiye abides by the Kavala judgment 29. Türkiye has never refuzed to implement any judgment of the European Court of Human Rights and certly does not refuz to abide by the Kavala judgment. Türkiye continues to fulfill its treaty-based obligations in good faith. In this scope, Türkiye has angajad in a constructiv dialog with the Committee of Ministers and provided the Committee with detailed, up-to-date information on developments in the procesion of executing judgments. (Rule 6 of the Committee of Ministers.) In the action planes and communictions submitted to the Committee detailed information was provided on Measures taken to execute the judgment at hand. (i) Individual Measures 30. The aplicant is currently detained for the office of spying on political or military affairs under TCC 328. This detention started on 9 March 2020. 31. This is a judicial process based on a different sarcina that has not been brought before the European Court. It is currently being examined by the mainstanbul Assize Court Since 8 October 2020 when the informament was admitted. 32. At the hearing of 21 May 2021, the Istanbul 30 Assize Court evaluated the European Court The Court also emphasised that the present detention stemmed from the offence of spying on political and military affairs under TCC 328 and there is no European Court informații available to it raises a strong presemption that the applicicants current detention is a continue of the încălcareas found by the Court main. Basing its assessment upon a strong Accordingly, it is beyond the Committee mais authority and mandate to make an assessment of evidence that is examined within the context of a pandaning case before the domestic scurts. 35. The authorities would like to state that the Kavala judgment was translated into Turkish, publicityshed and circulated together with an explanatory note on the European Court The authorities kept the Committee informed immediately on every development. Information on the legal grounds for the applicicants current detention was presented in a timely manner. (ii) General Measures 37. The authorities would like to reiterate that detailed explanations on general measures have been made in their previous submissions to the Committee of Ministers, însă the Committee of Ministers Hereby, the Turkish authorities would like to underline that general measures taken following the judgment at hand reals that Türkiye does not refuz to abide by the Kavala judgment. 39. In acest respect, the authorities would like to indicate that semnificant legislative measures have been taken to prevent similar încălcarea stemming from pre-trial detention. In particular, in line with the Human Rights Action Plan, which was introduced on 2 March 2021, the Fourth Judicial Package adopted on 8 July 2021. These amendments introduced additional safeguards for detention, inclusiv un similarar requirement for more serious offences listed under Article 100 of the CPC, also referred to as catalogi crime Concrete evidence justificing a strong suspecte will be required to place any individual sarcinad with one of these offences in detention. 40. Furthermore, the 4th Judicial Package had also included semnificant change with vizion to objection to the decisions of detention and conditional rendred by Magistrates Judgeships. Previously, a Magistrate Judgeship. Însă, due to the amendment in legislation by the 4th Judicial Package, Criminal Court of First Instance was determined as authority for the decisions of Magistrates Judgeships. Cu această amendament vertical obiecție procedura a fost introduced. Thus, a more efectiv appeal mechanism was put in effect. 41. Privind încălcarea articolului 5 alineatul (4), Turkish authorities took immediate actions to reduce the workload of the Constitutional Court. As a result of these measures, there has been a constant decrease in the number of applications to the Constitutional Court sine 2017. Mai mult, the increase in the number of applications it concluseses every year despite its growing workload indicates that the Constitutional Court works diligencely and devotedly. 42. On 29 decembrie 2020, the Constitutional Court delivered its judgment with respect to the applicant According to the statisticics publicityshed by the Constitutional Court, the number of applications submitted sine 2015 and the number of applications conchided are shown in the masa below: 2015 2016 2017 2018 2019 2020 2021 Applications Submitted 20,376 80,756 40,30,186 42,971 40,402 66.121 Applications Decided 15,368 16,089 89,651 35,356 39,385 45,414 45.321 44. Lastly, in response to the Committee The authorities would further like to highlight that the Council of Judges and Prosecutors took semnificant steaps to achieve a more Convention compliment judicial Practice. on 15 January 2020 an amendment to Article 6 entitled According to this amendment, in the promotion of judges and prosecutors, on the bazis of the principles of independence of the judiciary and security of garde of judges, account will be taken of whether the persons se referă laed a find of violation of the European Court of Human Rights or the Constitutional Court, as well as the nature and gravitaty of the violation, and the eforts of persons se referă lad to safeguard the rights enshrined in the European Convention on Human Rights and the Constitution. 46. Mai mult, the Justice Academy of Türkiye maitained its intensived pre-service and in- service trening activities addressing the judges and public prosecutors, in spite of the Covid- 19 pandemic. Türkiye is in the first place among other member States in respect of the number of users in the HELP learning platform. 47. The procesing against the applicant are carried out by independent and impartial pass and the aplicants detention is reviewed at standard intervals. (iii) Türkiye does not refuz to execute individual and general measures 48. As a conclusion, Türkiye has not refuzed to abide by the Court at hand. The government have fully cooperated with the Committee of Ministers and the Secretariat of the Council of Europe to endable the execution of the judgment. 49. The Committee The domestic scurts found that the applicicants current detention did not fall within the scope of European Court On this bazis, the Assize Court found that the applications detention is a new one based on differentfacts and acuzations that have been procesed by the Court. 50. In the same revein, the Constitutional Court also found that there was no violation of aplications right to Liberty. 51. At this junction, the government would like to highlight a ôoversial issue requising the Committee the supervision powers of the Committee of Ministers within the execution do not interfere with pandanting procesing before the domestic Court of Human Rights [1] . In the same line, it is further assessted that, The moment case shows that executation proceedings before the Committee of Ministers may interfere with cases pandaning before the domestic pendintes Acesta este un punct specific pentru Kavala judgment. Indiaed, the Court, in its Kavala judgment, considered that any continuation of the applicant assessment in the present case will entail a prelungire a încălcării. 54. The government have informed the Committee that the national scurt has already released the applicant from the sarcini subject to the Strasbourg Court Hence, by initiating the procesure under Article 46/4 for the Kavala case, the Committee does not only interfere with ongoing dogeedings, but also takes a position on a matter that could be brought before the Strasbourg Court in a separate application. 56. The Committee, with the ghidance of the Secretariat, decised that informații available to it raises a strong presumption that the applicicants current detention is a continue of the viols found by the Court . Relying upon a presumption, the Committee pased judgment upon a judicial process that could only be assessed by the Strasbourg Court. 57. Accordingly, it is beyond the Committee. 58. on the other hand, it is obvious that a holistic analissis should be made as far as the refuzal to abide by a final judgment is send. On this ground, the authorities would like to note that no conclusion has been asseted by the Committee of Ministers with vizion to the general measures already taken during the supervision process. As it has been submitted above, many legislative measures have been introduced to improve the legislative framework priving the issue of unlawful detention. The Constitutional Court has taken semnificant measures to prevent similar viols of Article 5§4. Likewise, the Council of Judges and Prosecutors amended its Practice to rinichiforce the independence and impartiality of the judiciary. Under these circumstances, it canot be concluded that Türkiye has refuzed to abide by the Kavala judgment. 59. Toate în all, the government would like to reiterate that, under the current Circumstations, initiating Article 46§4 procesing would amount to a amendation of the Convention system, which is based on the principles of subsidiarity and margin of application, as declarad by the Protocol No. 15. 60. The authorities underline that such an exceptional measure cannot be initiated on the bazis of presemptions. In the absence of any considetion by the Committee whether general measures are executed or not, it is also not posibil to conclusion that the execution of the judgment is refuzed in its entirety. 2. Exceptional circumstances do not exist 61. The exceptional nature of the procesdure adopted under Article 46§4 was explicated in Explanatory Report to Protocol No. 14 aswell as in the Rules of the Committee. Thefact that there has only been a single instance throughout its existence of more than a decade reafirms the exceptional nature of the procesdure. 62. As explained by the formator Director General of Human Rights and the Rule of Law (DG-I), Philippe Boillat, it is considered to be an ultima ratio: it is only when you consider [that] all the means at your disposal have been inefectiv... [3] 63. The authorities would like to mention that all available tools to the Committee of Ministers under the supervision process should have been exhausted in an efectiv manner before initiating Article 46§4 procesedings. 64. As a part of these eforts, the German Minister of Foreign Affairs, Heiko Mass, the then Chair of the Committee of Ministers addresed a letter to his Turkish counterpart, Minister Mevlüt queavussolu on 16 March 2021. Only two days later, on 18 March 2021 and before any reply could possibly be given to the said letter by the Turkish authorities, the Secretary General Marija Pejčinović Burić angajad in a telefono convorbire cu Minister queavuso It should also be taken into considertion that no more than 26 days elapsed between the two DH mietings held in September 2020 where the Kavala case was consecutively discussed at both mietings, without leaving an apte period of time to național authorities. 66. The Kavala judgment was finalised on 11 May 2020. It has been only a year and half since the judgment be argued that an adequate period of time has been provided to Türkiye to react to the means used by the Committee of Ministers during the supervision process as outlined above. Hence, exceptional circumstances in the moment supervizory have not materialized. III. CONCLUZIE 67. In light of the foregoing, it should be considered that Türkiye is taking all necessary measures, inclusiving individual measures within the scop of its duties. The authorities would like to reite that there is a different ofense and different proceedings against the aplicant and there is no judgment of the European Court regarding the appicants cu privire la detention. 68. Mai mult, the domestic Courts examinează acest rezultat și a avut ruled along similar lines that there were two acuzations against the aplicant which the European Court considered and both of the detentions were ended. The current detention of the aplicant is based on a different ofense under a new judicial procesing that has been initiated against him. Current detention has been neither the subject of an application before the European Court of Human Rights, nor has it been examined by the same. 69. Prin urmare, it cannot be considered that Türkie is refuzing to abide by the Kavala judgment. It is also not posibil to consider the existing of exceptional circumstances. Hence, it cannot be acceptd that conditions for initiating Article 46§4 proceseding have been satisfied. [1] Grand Chamber Judgment of 29 May 2019, Proceedings under Article 46/4 in the Case of Ilgar Mammadov v. Azerbaijan, Application No. 17572/13, Joint Concurring-Separate Opinion of Judges Yudkivska, Pinto De Albuquerque, Wojtyczek, Dedov, Motoc, Poláčková and Hüseynov, pagina 59, para 22. [2] ibid, Concurring Separate Opinion of Judge Woityczek, pagina 64, para 11. [3] DD(2016)1321
Résolution intérimaire
CM/ResDH(2022)21
Exécution de l’arrêt de la Cour européenne des droits de l’homme
Kavala contre Turquie
(adoptée par le Comité des Ministres le 2 février 2022,
lors de la 1423
e
réunion des Délégués des Ministres)
Requête
Affaire
Arrêt du
Définitif le
28749/18
10/12/2019
11/05/2020
Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit que le Comité surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées «
la Convention
» et «
la Cour
»),
Rappelant sa Résolution intérimaire
CM/ResDH(2021)432
signifiant, aux fins de mise en demeure, à la Turquie son intention de saisir la Cour, lors de sa 1423
e
réunion le 2 février 2022, conformément à l'article 46, paragraphe 4, de la Convention, de la question de savoir si la Turquie a manqué à son obligation, au regard de l'article 46, paragraphe 1, de se conformer à l’arrêt de la Cour du 10 décembre 2019 dans l’affaire
Kavala
, et invitant la Turquie à transmettre de manière concise son opinion sur cette question avant le 19 janvier 2022 au plus tard
;
Rappelant à nouveau
a.
que dans l’arrêt précité, la Cour a estimé que l’arrestation du requérant et sa mise en détention provisoire avaient eu lieu en l'absence d’éléments de preuve permettant de penser qu’il existait des raisons plausibles de le soupçonner d’avoir commis une infraction (violation de l'article 5, paragraphe 1, de la Convention) et qu'elles poursuivaient un but inavoué, à savoir le réduire au silence et dissuader d'autres défenseurs des droits de l'homme (violation de l'article 18 combiné avec l'article 5, paragraphe 1)
; et que le délai d'examen, d’un an et presque cinq mois, par la Cour constitutionnelle de la plainte du requérant ne saurait être considéré comme suffisamment «
bref
» étant donné que sa liberté personnelle était en jeu (violation de l'article 5, paragraphe 4)
;
b.
l’indication de la Cour, en vertu de l’article 46, faite au regard des circonstances particulières de l’affaire et des motifs sur lesquels elle a basé ses constats de violation, selon laquelle le gouvernement doit prendre toutes les mesures nécessaires pour mettre un terme à la détention du requérant et faire procéder à sa libération immédiate (§
240 de l’arrêt)
;
c.
l'obligation de l'État défendeur, en vertu de l'article 46, paragraphe 1, de la Convention, de se conformer à tous les arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’État défendeur, si nécessaire, de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par
restitutio in integrum
;
d.
les décisions et la résolution intérimaire (
CM/ResDH(2020)361
) ultérieures du Comité demandant instamment aux autorités d’assurer la libération immédiate du requérant;
e.
que depuis le 11 mai 2020, date à laquelle l’arrêt de la Cour est devenu définitif, le requérant est toujours détenu sur la base de la procédure critiquée par la Cour européenne ou sur le fondement d’éléments de preuve qu’elle a estimé insuffisants pour justifier sa détention
;
Considère que, dans ces circonstances, en n’ayant pas assuré la libération immédiate du requérant, la Turquie refuse de se conformer à l’arrêt définitif de la Cour ;
Décide de saisir la Cour, conformément à l’article 46, paragraphe 4, de la Convention, de la question de savoir si la Turquie a manqué de se conformer à son obligation en vertu de l’article 46, paragraphe 1, de la Convention eu égard en particulier à l’indication de la Cour en vertu de l’article 46 et des mesures individuelles requises.
L’opinion concise de la Turquie sur la question soulevée devant la Cour est jointe en annexe.
Annexe : Opinion de la République de Turquie
(en anglais uniquement)
VIEWS OF THE GOVERNMENT OF THE REPUBLIC OF TÜRKİYE
Kavala v. Türkiye (Appl. No. 28749/18)
Judgment of 10 December 2019, Final on 11 May 2020
1.
The Committee of Ministers, at its 1419
th
meeting on 2 December 2021 adopted Interim Resolution
CM/ResDH(2021)432
, in which the Committee served formal notice on Türkiye of its intention, at its 1423
rd
meeting (DH) on 2 February 2022, to refer to the Court, in accordance with Article 46 § 4 of the Convention, the question whether Türkiye has failed to fulfil its obligation under Article 46 § 1 of the Convention with particular regard to the Court’s indication under Article 46 and the individual measures required.
2.
The Committee also invited the Government of Türkiye to submit in concise form its view on this question by 19 January 2022 at the latest.
3.
The Government of Türkiye would like to submit here-below the views on the question as requested by the Committee of Ministers:
I.
FACTS
The Scope of the Judgment
4.
The European Court, with a judgment that became final on 11 May 2020, held that there has been a violation of Article 5 § 1 (right to liberty and security), a violation of Article 5 § 4 and a violation of Article 18 of the Convention taken in conjunction with Article 5 § 1.
5.
The European Court found that the applicant could not reasonably be suspected of having committed the offences charged with (Article 5 § 1). As to the violation of Article 5 § 4, the Court highlighted the lack of a speedy judicial review by the Constitutional Court. Lastly there has been a violation of Article 18 of the Convention taken in conjunction with Article 5 § 1 on account of the fact that the restriction of the applicant’s liberty was applied for purposes other than bringing him before a competent legal authority on reasonable suspicion of having committed an offence.
6.
The Court, under Article 46 of the Convention, considered that “
any continuation of the applicant’s pre-trial detention
in the present case
[emphasis added] will entail a prolongation of the violation
” and further considered “
that the government must take every measure to put end to the applicant’s detention and secure his immediate release
”.
7.
The Court’s judgment relates mainly to the pre-trial detention of the applicant based on charges under Article 312 (attempting to overthrow the Government- Gezi events - “first accusation”) and Article 309 (attempting to overthrow the constitutional order- coup attempt of July 15 events - “second accusation”) of the Turkish Criminal Code (TCC).
Criminal Proceedings
8.
Detailed information on the ongoing judicial proceedings has been provided by the government in their previous submissions to the Committee of Ministers.
9.
The applicant was arrested on 18 October 2017 within the scope of a criminal investigation instituted against the applicant involving two accusations regarding Gezi events and coup attempt of 15
July. On 5 February 2019, the Istanbul Chief Public Prosecutor’s Office decided to disjoin the investigations with a view to conduct the investigation in a more effective way.
10.
As regards the investigation concerning the Gezi Events, the Istanbul Chief Public Prosecutor’s Office filed an indictment with the Istanbul Assize Court, charging the applicant with attempting to overthrow the government under Article 312 of the Criminal Code. The Istanbul 30
th
Assize Court conducted the trial in respect of the applicant, ruled on the acquittal and release of the applicant on 18/02/2020. Accordingly, the applicant was released from detention based on the charge of attempting to overthrow the government (Art.
312 of the TCC) on 18 February 2020.
11.
As regards the other investigation concerning coup attempt of July 15 conducted with respect to the offence of attempting to overthrow the constitutional order (Art. 309 of the TCC), the applicant detention has also come to an end when he was released ex officio by the Istanbul Assize Court on 20 March 2020. Since then, the applicant has not been detained from any charge examined by the ECtHR.
12.
The applicant’s current detention has started on 9 March 2020 on account of a different charge that has never been examined by the European Court, notably the offence of Political or Military Espionage (Art.
328 of the TCC).
13.
The proceedings concerning all accusations against the applicant are still pending before the Istanbul 13
th
Assize Court.
The Constitutional Court’s Judgment
14.
Subsequent to the ECtHR judgment, on 4 May 2020 the applicant’s lawyer lodged an individual application with the Constitutional Court on the ground that his detention on account of the charge of the Political or Military Espionage is unlawful. The Constitutional Court has promptly started to examine the applicant’s individual application in question.
15.
On 29 December 2020, the Constitutional Court -as Grand Chamber- delivered its judgment with respect to this application. The Constitutional Court held by the majority vote (8-7) that:
•
Regarding the allegation that the applicant’s detention is unlawful, the right to liberty and security of the applicant guaranteed under the third paragraph of Article 19 of the Constitution
is not violated
,
•
Regarding the allegation that the detention period of the applicant exceeded the reasonable time, the right to liberty and security of the applicant within the context of the seventh paragraph of Article 19 of the Constitution
was not violated
.
16.
The government has not received any communication from the Strasbourg Court whether the applicant file any complaint as regards the unlawfulness of his current detention so far.
The Applicant’s Current Detention
17.
As mentioned above, the government would like to note that the European Court found violation of Article 5 on account of the charges stemming from the offences envisaged under Article 312 (attempting to overthrow the government) and Article 309 (attempting to overthrow the constitutional order) of the Criminal Code.
18.
The applicant is currently being detained for another offence, namely “Obtaining Classified Information for Purposes of Political or Military Espionage (Article 328 of the Turkish Criminal Code)” since 9 March 2020. It has to be emphasised that this current detention has not been brought before the European Court and has not been examined by the same Court.
19.
The authorities would like to note that the criminal proceedings, concerning the charges of “Obtaining Classified Information for Purposes of Political or Military Espionage (Article 328 of the Turkish Criminal Code)”, “Attempting to Overthrow the Government (Article 312 of the Turkish Criminal Code)” and “Attempting to Overthrow the Constitutional Order (Article 309 of the Turkish Criminal Code), are pending before the İstanbul 13th Assize Court.
20.
The Assize Court held the last hearing on 17 January 2022, deciding by a majority (2-1) that his detention be continued. It has been decided that the applicant’s detention will be examined on the case file on 10 February 2022 and, the next hearing will be held on 21 February 2022.
21.
In its decision, the Assize Court stressed that; “
Having regard to the fact that, in the present case, by taking into consideration the quality and nature of the offence imputed to the accused Mehmet Osman KAVALA, the current stage of the trial, the examination on HTS records and the base station data in the file, the reports drawn up as a result of the examination on digital materials, the existence of the concrete evidence demonstrating strong suspicion for the imputed offences in view of the MASAK report, the upper limit of the sentence prescribed for the imputed offences by the law, it has been understood that the judicial supervision measures will remain insufficient (…)
”
II.
THE APPLICABILITY OF ARTICLE 46§4 PROCEEDINGS
A)
Legal Framework
22.
At the outset, the Turkish authorities would like to recall the legal framework outlining the conditions as to the applicability of Article 46§4 proceedings.
23.
Article 46 § 4 of the Convention reads as follows:
“
If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party
, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two-thirds of the representatives entitled to sit on the committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph.”
24.
Explanatory Report to Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention:
Article 16 of the amending protocol
Article 46 – Binding force and execution of judgments
“...
“100.
The Committee of Ministers should bring infringement proceedings only in exceptional circumstances
.“
25.
Rule 11 § 2 of the “Rules of the Committee of Ministers for the Supervision of the Execution of Judgments and of The Terms of Friendly Settlements” reads as follows: “
Infringement proceedings should be brought only in exceptional circumstances...
”
B)
Conditions for Article 46§4 Proceedings
26.
The authorities would like to recall that the Article 46§4 procedure was introduced by amendments brought on with Protocol No. 14 to the Convention which entered into force in 2010. Since then, the procedure has only been used once.
27.
The above provisions suggest that there are two conditions required for initiating Article 46 § 4 proceedings. These are:
1)
Refusal by the High Contracting Party to abide by a final judgment
2)
Existence of exceptional circumstances
28.
The authorities are of the opinion that neither of these two conditions has been met.
1.
Türkiye abides by the Kavala judgment
29.
Türkiye has never refused to implement any judgment of the European Court of Human Rights and certainly does not refuse to abide by the Kavala judgment. Türkiye continues to fulfill its treaty-based obligations in good faith. In this scope, Türkiye has engaged in a constructive dialogue with the Committee of Ministers and provided the Committee with detailed, up-to-date information on developments in the process of executing judgments. (Rule 6 of the Committee of Ministers’ Rules for the supervision of the execution of judgments and of the terms of friendly settlements). In the action plans and communications submitted to the Committee detailed information was provided on measures taken to execute the judgment at hand.
(i)
Individual Measures
30.
The applicant is currently detained for the offence of spying on political or military affairs under TCC 328. This detention started on 9 March 2020.
31.
This is a judicial process based on a different charge that has not been brought before the European Court. It is currently being examined by the İstanbul Assize Court since 8 October 2020 when the indictment was admitted.
32.
At the hearing of 21 May 2021, the Istanbul 30
th
Assize Court evaluated the European Court’s judgment and stressed that the European Court’s violation stemmed from the applicant’s detention for the offense of Article 309 and 312 of the TCC and these detentions were ended (on 18 February 2020 and 20 March 2020 respectively, as mentioned above). The Court also emphasised that the present detention stemmed from the offence of spying on political and military affairs under TCC 328 and there is no European Court’s judgment about this issue.
33.
The Committee’s decisions in this regard read that “
the information available to it raises a strong presumption that the applicant’s current detention is a continuation of the violations found by the Court
”. Basing its assessment upon a strong “presumption”, the Committee passed judgment upon a judicial process that could only be assessed by the Strasbourg Court.
34.
Accordingly, it is beyond the Committee’s authority and mandate to make an assessment of evidence that is examined within the context of a pending case before the domestic courts.
35.
The authorities would like to state that the Kavala judgment was translated into Turkish, published and circulated together with an explanatory note on the European Court’s findings to the relevant courts. In addition to this, all the decisions of the Committee of Ministers regarding the Kavala judgment were translated and communicated to the relevant judicial authorities in due time.
36.
The authorities kept the Committee informed immediately on every development. Information on the legal grounds for the applicant’s current detention was presented in a timely manner.
(ii)
General Measures
37.
The authorities would like to reiterate that detailed explanations on general measures have been made in their previous submissions to the Committee of Ministers, however the Committee of Ministers’ considerations on these measures have so far not revealed any conclusion.
38.
Hereby, the Turkish authorities would like to underline that general measures taken following the judgment at hand reveals that Türkiye does not refuse to abide by the Kavala judgment.
39.
In this respect, the authorities would like to indicate that significant legislative measures have been taken to prevent similar violations stemming from pre-trial detention. In particular, in line with the Human Rights Action Plan, which was introduced on 2 March 2021, the Fourth Judicial Package adopted on 8 July 2021. These amendments introduced additional safeguards for detention, including a similar requirement for more serious offences listed under Article 100 of the CCP, also referred to as “catalogue crimes”. Concrete evidence justifying a strong suspicion will be required to place any individual charged with one of these offences in detention.
40.
Furthermore, the 4th Judicial Package had also included significant change with regard to objection procedure to the decisions of detention and conditional bail rendered by Magistrates Judgeships. Previously, a Magistrate Judgeship’s decision of detention (or conditional bail) was objected to the next Magistrate’s Judgeship or other Magistrate’s Judgeship. However, due to the amendment in legislation by the 4th Judicial Package, Criminal Court of First Instance was determined as objection authority for the decisions of Magistrate’s Judgeships. With this amendment a vertical objection procedure was introduced. Thus, a more effective appeal mechanism was put in effect.
41.
Regarding the violation of Article 5 § 4, the Turkish authorities took immediate actions to reduce the workload of the Constitutional Court. As a result of these measures, there has been a constant decrease in the number of applications to the Constitutional Court since 2017. Moreover, the increase in the number of applications it concludes every year despite its growing workload indicates that the Constitutional Court works diligently and devotedly.
42.
On 29 December 2020, the Constitutional Court delivered its judgment with respect to the applicant’s concerned individual application dated 4 May 2020. When it is considered that the period before the Constitutional Court lasted less than 8 months, it can be concluded that measures taken with respect to violation at hand are capable of providing an effective redress.
43.
According to the statistics published by the Constitutional Court, the number of applications submitted since 2015 and the number of applications concluded are shown in the table below:
2015
2016
2017
2018
2019
2020
2021
Applications
Submitted
20,376
80,756
40,530
38,186
42,971
40,402
66.121
Applications
Decided
15,368
16,089
89,651
35,356
39,385
45,414
45.321
44.
Lastly, in response to the Committee’s findings concerning the violation of Article 18 in conjunction with Article 5 § 1 the authorities would like to underline that the Court highlighted certain case-specific facts with respect to this application. The European Court, in its judgment, did not point to the existence of a systemic problem.
45.
The authorities would further like to highlight that the Council of Judges and Prosecutors took significant steps to achieve a more Convention compliant judicial practice. On 15 January 2020 an amendment to Article 6 entitled “Principles of Promotion” of the “Principle Decision on the Grade Promotion of Judges and Prosecutors” was promulgated in the Official Gazette. According to this amendment, in the promotion of judges and prosecutors, on the basis of the principles of independence of the judiciary and security of tenure of judges, account will be taken of whether the persons concerned caused a finding of violation by the European Court of Human Rights or the Constitutional Court, as well as the nature and gravity of the violation, and the efforts of the persons concerned to safeguard the rights enshrined in the European Convention on Human Rights and the Constitution.
46.
Moreover, the Justice Academy of Türkiye maintained its intensified pre-service and in- service training activities addressing the judges and public prosecutors, in spite of the Covid- 19 pandemic. Türkiye is in the first place among other member States in respect of the number of users in the HELP learning platform.
47.
The proceedings against the applicant are carried out by independent and impartial courts and the applicant’s detention is reviewed at regular intervals.
(iii)
Türkiye does not refuse to execute individual and general measures
48.
As a conclusion, Türkiye has not refused to abide by the Court’s judgment at hand. The government have fully co-operated with the Committee of Ministers and the Secretariat of the Council of Europe to enable the execution of the judgment.
49.
The Committee’s findings were transmitted to the concerned judicial authorities in a timely manner. The domestic courts found that the applicant’s current detention did not fall within the scope of European Court’s judgment. In particular, the Assize Court in İstanbul on several occasions examined the Strasbourg Court’s judgment and held that the facts of the current case are different from the ones examined by the ECtHR. On this basis, the Assize Court found that the applicant’s detention is a new one based on different facts and charges that have been examined by the Court.
50.
In the same vein, the Constitutional Court has also found that there was no violation of applicant’s right to liberty.
51.
At this junction, the government would like to highlight a controversial issue concerning the Committee’s mandate of supervision.
52.
A number of judges in Ilgar Mammadov judgment stressed “
the necessity of putting in place adequate safeguards ensuring that the supervisory powers of the Committee of Ministers within the execution process do not interfere with pending proceedings before the domestic courts as well as before the European Court of Human Rights
”
[1]
. In the same line, it is further asserted that, “
the instant case shows that execution proceedings before the Committee of Ministers may interfere with cases pending before the domestic courts
” and that
“[t]here are insufficient guarantees protecting the independence of the domestic courts in such situations
”.
[2]
53.
This is a very specific point relevant to the Kavala judgment. Indeed, the Court, in its Kavala judgment, considered that any continuation of the applicant’s detention in
the present case
will entail a prolongation of the violation.
54.
The government have informed the Committee that the national court has already released the applicant from the charges subject to the Strasbourg Court’s judgment and that he is currently detained on account of a different charge that is currently being examined by the court in İstanbul and may yet be examined by the Strasbourg Court.
55.
Hence, by initiating the procedure under Article 46/4 for the Kavala case, the Committee does not only interfere with ongoing domestic proceedings, but also takes a position on a matter that could be brought before the Strasbourg Court in a separate application.
56.
The Committee, with the guidance of the Secretariat, decided that “
the information available to it raises a strong presumption that the applicant’s current detention is a continuation of the violations found by the Court
”. Relying upon a presumption, the Committee passed judgment upon a judicial process that could only be assessed by the Strasbourg Court.
57.
Accordingly, it is beyond the Committee’s authority and mandate to make an assessment of evidence that is examined within the context of a pending case before the domestic courts.
58.
On the other hand, it is obvious that a holistic analysis should be made as far as the refusal to abide by a final judgment is concerned. On this ground, the authorities would like to note that no conclusion has been asserted by the Committee of Ministers with regard to the general measures already taken during the supervision process. As it has been submitted above, many legislative measures have been introduced to improve the legislative framework concerning the issue of unlawful detention. The Constitutional Court has taken significant measures to prevent similar violations of Article 5§4. Likewise, the Council of Judges and Prosecutors amended its practice to reinforce the independence and impartiality of the judiciary. Under these circumstances, it cannot be concluded that Türkiye has refused to abide by the Kavala judgment.
59.
All in all, the government would like to reiterate that, under the current circumstances, initiating Article 46§4 proceedings would amount to a contravention of the Convention system, which is based on the principles of subsidiarity and margin of appreciation, as affirmed by the Protocol No. 15.
60.
The authorities underline that such an exceptional measure cannot be initiated on the basis of presumptions. In the absence of any consideration by the Committee whether general measures are executed or not, it is also not possible to conclude that the execution of the judgment is refused in its entirety.
2.Exceptional circumstances do not exist
61.
The exceptional nature of the procedure adopted under Article 46§4 was explicitly indicated in Explanatory Report to Protocol No. 14 as well as in the Rules of the Committee. The fact that there has only been a single instance throughout its existence of more than a decade reaffirms the exceptional nature of the procedure.
62.
As explained by the former Director General of Human Rights and the Rule of Law (DG- I), Philippe Boillat, “
it is considered to be an
ultima ratio
: it is only when you consider [that] all the means at your disposal have been ineffective…
”
[3]
63.
The authorities would like to mention that all available tools to the Committee of Ministers under the supervision process should have been exhausted in an effective manner before initiating Article 46§4 proceedings.
64.
As a part of these efforts, the German Minister of Foreign Affairs, Heiko Mass, the then Chair of the Committee of Ministers addressed a letter to his Turkish counterpart, Minister Mevlüt Çavușoğlu on 16
March 2021. Only two days later, on 18 March 2021 and before any reply could possibly be given to the said letter by the Turkish authorities, the Secretary General Marija Pejčinović Burić engaged in a telephone conversation with Minister Çavușoğlu, raising the very same issue.
65.
It should also be taken into consideration that no more than 26 days elapsed between the two DH meetings held in September 2020 where the Kavala case was consecutively discussed at both meetings, without leaving an appropriate period of time to national authorities.
66.
The Kavala judgment was finalised on 11 May 2020. It has been only a year and half since the judgment became final. It can hardly be argued that an adequate period of time has been provided to Türkiye to react to the means used by the Committee of Ministers during the supervision process as outlined above. Hence, exceptional circumstances in the instant supervision process have not materialized.
III.
67.
In light of the foregoing, it should be considered that Türkiye is taking all necessary measures, including individual measures within the scope of its duties. The authorities would like to reiterate that there is a different offense and different proceedings against the applicant and there is no judgment of the European Court regarding the applicant’s current detention.
68.
Moreover, the domestic courts examined this issue and have ruled along similar lines that there were two accusations against the applicant which the European Court considered and both of the detentions were ended. The current detention of the applicant is based on a different offense under a new judicial proceeding that has been initiated against him. His current detention has been neither the subject of an application before the European Court of Human Rights, nor has it been examined by the same.
69.
Therefore, it cannot be considered that Türkiye is refusing to abide by the Kavala judgment. It is also not possible to consider the existence of exceptional circumstances. Hence, it cannot be accepted that conditions for initiating Article 46§4 proceedings have been satisfied.
[1]
Grand Chamber Judgment of 29 May 2019, Proceedings under Article 46/4 in the Case of Ilgar Mammadov v. Azerbaijan, Application No. 15172/13, Joint Concurring-Separate Opinion of Judges Yudkivska, Pinto De Albuquerque, Wojtyczek, Dedov, Motoc, Poláčková and Hüseynov, page 59, para 22.
[2]
ibid
, Concurring Separate Opinion of Judge Woityczek, page 64, para 11.
[3]
.