In a judgment of 10 December 2019, the Second Section of the European Court of Human Rights found a violation of Article 5 §§1 and 4 (“right to liberty and security”) and of Article 18 (“limitation on use of restrictions on rights”) taken together with Article 5 §1 ECHR, considering that the pre-trial detention of the Turkish activist and human rights defender Osman Kavala was not justified by any “reasonable suspicion” and that it had pursued an ulterior purpose of reducing him to silence. It further held under Article 46 ECHR (“binding force and execution of judgments”) that the Republic of Turkey had to take every measure to put an end to the applicant’s “detention and to secure his immediate release”.

 

Since Mr. Kavala was not released, in February 2022 the Committee of Ministers of the Council of Europe referred to the ECtHR the question of whether the Turkish authorities had failed to abide by the above decision. By referring primarily to the general principles set out in the Ilgar Mammadov v. Azerbaijan judgment of 2019 – the first infringement procedure activated by the Committee of Ministers –, on 11 July 2022 the Grand Chamber held that Turkey had violated Article 46 ECHR.

According to the ECtHR, even though Turkey had taken some steps toward executing the Kavala judgment, the applicant had still been held in pre-trial detention for more than four years 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”. As a consequence, the Grand Chamber 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 ruling.

 

(Comment by Marco Galimberti)