Information Note on the Court’s case-law 264
Judgment 11.7.2022 [GC]
Infringement proceedings against Türkiye for failure to abide by Court’s final judgment explicitly indicating applicant’s immediate release: violation
Facts – In a judgment of 2019 (hereafter the “Kavala judgment”) the Court found a violation of Article 5 §§ 1 and 4 and of Article 18 taken together with Article 5 § 1, considering that the applicant’s pre-trial detention was not justified by any “reasonable suspicion”, but was based on the mere exercise of Convention rights or normal activism on the part of a human-rights defender; and that it had, moreover, pursued an ulterior purpose of reducing him to silence. It further held under Article 46 that the respondent State had to take every measure to put an end to Mr Kavala’s “detention and to secure his immediate release”. Since he was not released, in February 2022, the Committee of Ministers referred to the Court, in accordance with Article 46 § 4, the question whether the Republic of Türkiye had failed to abide by the above judgment.
The Government argued that the Kavala judgment had been executed in full since the applicant was no longer detained on the basis of any of the charges which the Court had examined therein. In particular, his detention imposed on the basis of Article 312 of the Criminal Code (attempting to overthrow the Government through force and violence) in connection with the 2013 mass protests had ended on 18 February 2020 with his acquittal; further, the detention based on Article 309 of the Criminal Code (attempting to overthrow the constitutional order) in connection with the 2016 attempted coup d’état had lasted until 20 March 2020 when his release on bail had been ordered. These decisions did not result in the Mr Kavala’s actual release, since on 9 March 2020 he had been placed in pre-trial detention on a new charge (military or political espionage under Article 328 of the Criminal Code), a charge which had not been examined in the Kavala judgment. Further, from 25 April 2022, Mr Kavala was detained on a new ground – as a convicted person: his acquittal was quashed, he was found guilty of the charge under Article 312 and sentenced to aggravated life imprisonment. At the same time, he was acquitted of the charge under Article 328.
Law – Article 46:
(a) Preliminary question – The Government had submitted that the institution of proceedings by the Committee of Ministers under Article 46 § 4 had not been justified by any exceptional circumstances and had, moreover, amounted to a breach of the Convention system, in so far as it had interfered in the ongoing domestic criminal proceedings. The Court observed that infringement proceedings should indeed be brought only in “exceptional circumstances”, as provided for by the Committee of Ministers’ relevant Rules and the Explanatory Report to Protocol No. 14. This criterion was intended to indicate that the Committee of Ministers should apply a high threshold before launching this procedure, which had to be viewed therefore as a measure of last resort, where the Committee of Ministers considered that the other means to secure the execution of a judgment had ultimately proved unsuccessful and were no longer adapted to the situation. Moreover, infringement proceedings were not intended to upset the fundamental institutional balance between the Court and the Committee of Ministers. The right to initiate a referral was the Committee of Ministers’ “procedural prerogative”. Consequently, where this procedure had been duly initiated, it was not the Court’s task to express a view on the desirability of such a decision by the Committee of Ministers.
The Government had further argued that Mr Kavala should have lodged a new application with the Court within a six-month period after having exhausted the domestic remedies. However, pleas of inadmissibility were not relevant in the context of infringement proceedings.
(b) The Court’s assessment – The essential question in this case was whether or not there had been a failure by Türkiye to adopt the individual measures required to abide by the Court’s judgment and remedy the violation of Article 5 § 1, taken individually and in conjunction with Article 18. In considering it, the Court applied the general principles set out in the Ilgar Mammadov v. Azerbaijan [GC] judgment relating to the execution of its judgments under Article 46 §§ 1 and 2 and to the nature of the Court’s task in infringement proceedings under Article 46 § 4.
(i) The scope of the Kavala judgment – It was clear from the Court’s reasoning that the findings under Article 5 § 1 (lack of a reasonable suspicion) and Article 18 applied to the totality of the charges against Mr Kavala concerning the 2013 mass protests and the 2016 attempted coup. Consequently, in the absence of other relevant and sufficient circumstances, a mere reclassification of the same facts could not in principle modify the basis for those conclusions, since such a reclassification would only be a different assessment of facts already examined by the Court. Were it otherwise, the judicial authorities could continue to deprive individuals of their liberty simply by opening new criminal investigations in respect of the same facts. Such a situation would amount to permitting the law to be circumvented and might lead to results incompatible with the object and purpose of the Convention.
Even more importantly, it was clear that the Court had not accepted “the stated aim” of the applicant’s detention, which had been, firstly, to carry out investigations, and secondly, to establish whether Mr Kavala had indeed committed the impugned offences. Its finding as to the ulterior purpose of these measures was central in the light of the object and purpose of Article 18, which was to prohibit the misuse of power.
It followed that the Court’s finding of a violation of Article 5 § 1, read separately and in conjunction with Article 18, had vitiated any action resulting from the charges relating to the 2013 mass protests and the attempted coup. Moreover, in the absence of other relevant and sufficient circumstances capable of demonstrating that Mr Kavala had been involved in criminal activity, any measure, especially one depriving him of his liberty, on grounds pertaining to the same factual context, would entail a prolongation of the violation of Mr Kavala’s rights as well as a breach of the obligation on the respondent State to abide by the Court’s judgment in accordance with Article 46 § 1 of the Convention.
Furthermore, in contrast to the Ilgar Mammadov v. Azerbaijan judgment, the Kavala judgment contained, in its reasoning and operative provisions, an explicit indication as to how it was to be executed, namely that Mr Kavala be released immediately. Thus, by its very nature the violation found might not leave any real choice as to the measures required to remedy it. This was particularly true where the case concerned detention that the Court had found to be manifestly unjustified under Article 5 § 1, in that there was an urgent need to put an end to the violation in view of the importance of the fundamental right to liberty and security. That observation was all the more valid where, as in the present case, the violation had originated in detention that had also been held to be contrary to Article 18 taken together with Article 5 § 1.
In consequence, the fact of giving indications under Article 46 as in the present case firstly enabled the Court to ensure, as soon as it delivers its judgment, that the protection afforded by the Convention was effective and to prevent continued violation of the rights in issue, and subsequently assisted the Committee of Ministers in its supervision of the execution of the final judgment. Such indications also enabled and required the State concerned to put an end, as quickly as possible, to the violation of the Convention found by the Court.
(ii) Whether Türkiye had failed to fulfil its obligation to abide by a final judgment under Article 46 § 1 – Whatever the grounds advanced by the Government to justify his subsequent detention, Mr Kavala had been deprived of his liberty, without interruption, between 18 October 2017 and – at the least – 2 February 2022, the date on which the matter had been referred to the Court. The corresponding obligation of restitutio in integrum had required Türkiye to release Mr Kavala from detention immediately and to eliminate the negative consequences of the criminal charges found by the Court to be unjustified. The Court thus had to consider whether, as the Government had claimed, the charges against Mr Kavala had changed in substance. In examining this question, the Court found as follows.
The fact that Mr Kavala had not lodged a new application to the Court in respect of his continued detention after the Kavala judgment had no fundamental bearing for the purpose of its examination of whether Türkiye had complied with its obligation under Article 46 § 1. It was for the Committee of Ministers to supervise and assess the specific measures to be taken in order ensure the maximum possible reparation for the violations found by the Court. The question of compliance by the High Contracting Parties with its judgments fell outside the Court’s jurisdiction if it was not raised in the context of the “infringement procedure” provided for in Article 46 §§ 4 and 5 of the Convention.
Where the Court considered that Article 46 did not preclude its examination, it might find that it had competence to entertain complaints in follow-up cases (for example where the domestic authorities carried out a fresh examination of the case by way of implementation of one of the Court’s judgments) or when the ‘new issue’ resulted from the continuation of the violation found in the Court’s initial judgment. In consequence, the Court and the Committee of Ministers, in the context of their different duties, might be required to examine, even simultaneously, the same domestic proceedings without upsetting the fundamental institutional balance between them.
In the present case, the Committee of Ministers had not terminated its supervision of the execution of the Kavala judgment and had brought the infringement proceedings on the ground that since the Court’s judgment had become final, the applicant had remained in detention on the basis of proceedings that had been criticised by the Court or based on evidence which it had had found insufficient to justify his detention. The Court was thus required to make a definitive legal assessment of the question of compliance with the judgment in question.
Furthermore, in the context of infringement proceedings following a finding of a violation of Article 5 § 1, read separately and in conjunction with Article 18 of the Convention, the Court could not disregard the conclusions and indications addressed by it to the respondent State in the initial judgment, on the sole grounds that a new charge had been brought against Mr Kavala under domestic law. In its analysis, the Court had to look behind appearances and investigate the realities of the situation complained of, especially where it had ordered the immediate release of a detained person. Even though the charge of military or political espionage (Article 328) had been technically speaking a new charge, there had been striking similarities, or even complete duplication, between the facts supporting the suspicions against him and those already examined in detail in the Kavala judgment. Neither the detention decisions nor the bill of indictment had contained any substantially new facts relating to the constituent elements of the offence defined in Article 328 capable of justifying this new suspicion. As during Mr Kavala’s initial detention, which had been examined in the judgment concerning him, the investigating authorities once again used numerous acts which had been carried out entirely lawfully to justify his continued pre-trial detention.
Lastly, the Court took into account other relevant factors. Firstly, a considerable period of time had elapsed since the facts, all prior to July 2016, which had given rise to this new charge. In the Kavala judgment, this factor had been considered crucial for the assessment under Article 18. Secondly, the country’s high-ranking officials had given many speeches on the criminal proceedings against Mr Kavala. Thirdly, the Council of Judges and Prosecutors had begun an examination to establish whether it had been necessary to open a disciplinary investigation against the judges who had delivered the 2020 acquittal judgment.
In conclusion, although Türkiye had taken some steps towards executing the Kavala judgment, on the date on which the Committee of Ministers had referred the matter to the Court, and in spite of three decisions ordering his release on bail and one acquittal judgment, Mr Kavala had still been held in pre-trial detention for more than four years, three months and fourteen days, on the basis of facts which, in its initial judgment, it had held to be insufficient to justify the suspicion that he had committed “any criminal offence” and which had been “largely related to the exercise of Convention rights”. These considerations were crucial in the present case, particularly since, on 25 April 2022, Mr Kavala had been acquitted of the charge of military or political espionage under Article 328, but convicted of the charge under Article 312 and sentenced to the heaviest penalty under Turkish criminal law; that conviction had been based on facts primarily related to the 2013 mass protests, which the Court had scrutinised with particular care in its initial judgment on account of the clear absence of reasonable suspicion; the conviction had moreover been vitiated by the finding of a breach of Article 18.
Accordingly, the Court was unable to conclude that the State Party had acted in “good faith”, in a manner compatible with the “conclusions and spirit” of the Kavala judgment, or in a way that would make practical and effective the protection of the Convention rights which the Court found to have been violated in that judgment. Türkiye had therefore failed to fulfil its obligation under Article 46 § 1 to abide by the Kavala v. Turkey judgment of 10 December 2019.
Conclusion: violation (sixteen votes to one)
With regard to Mr Kavala’s additional requests the Court noted that, as indicated in the Explanatory Report to Protocol No. 14, the infringement procedure did not aim to reopen before the Court the question of a violation already decided in its first judgment. Nor did it provide for payment of a financial penalty by a High Contracting Party found to be in violation of Article 46 § 1. The Court was thus not competent to find a further violation of Articles 5 and 18. The finding of a violation of Article 46 § 1 meant that the primary obligation resulting from the Court’s initial judgment, namely restitutio in integrum, with all the ensuing consequences, continued to exist, and that it was for the Committee of Ministers to continue to supervise the execution of the Court’s initial judgment.
(See Ilgar Mammadov v. Azerbaijan (infringement proceedings) [GC], 15172/13, 29 May 2019, Legal Summary; Kavala v. Turkey, 28749/18, 10 December 2019, Legal Summary)