New Expertise of Authoritarian Regimes: How to Escape From the Implementation of International Standards – the Cases of Demirtaş and Kavala
by Kerem Altıparmak, Director of the Human Rights Center, Ankara Bar Association
In two recent leading cases, the European Court of Human Rights (ECtHR) found Turkey in violation of article 18 of the European Convention on Human Rights (ECHR).* Article 18 of the Convention is rarely invoked by the ECtHR. This provision is applied only when the applicants’ Convention rights had been restricted for purposes other than those prescribed in the Convention, namely when the restriction had pursued a motive other than the one permitted by the Convention.
The Demirtaş judgment, delivered in November 2018 was the first ever Article 18 case decided against Turkey. One year later, this time in the case of Kavala, the ECtHR held that Turkey had an ulterior motive in detaining a human rights defender. However, their story did not end there. They are still in prison as the Turkish authorities, similar to their counterparts in many other authoritarian regimes, have become experts in creating new methods to escape the implementation of these judgments.
The detention of Selahattin Demirtaş
Selahattin Demirtaş, the former co-leader of People’s Democratic Party, has been imprisoned for three separate sequential charges since November 2016. Mr. Demirtaş was detained for the first time on November 4, 2016 for membership in an armed terrorist organisation (Article 314 § 1 of the Criminal Code (“the CC”)). On September 7, 2018, Demirtaş was sentenced to four years and eight months in prison in connection with a speech he had made at a Newroz celebration in 2013.
On November 20, 2018, the European Court of Human Rights ruled that Demirtaş’s pre-trial detention was in violation of, among other statutes, Article 18 of the Convention in conjunction with Article 5.3. It also ruled that Demirtaş should be released.
Despite the judgement of the European Court, Demirtaş’s conviction in another case on September 7, 2018 was upheld by the Appeal Court on December 4, 2018. As his pre-trial detention exceeded the time that Demirtaş should have spent in prison according to the approved sentence, his release was ordered by an assize court on September 20, 2019.
However, Demirtaş was not released. His continued detention was based on a third arrest order imposed in another investigation concerning a tweet posted by People’s Democratic Party during demonstrations protesting the ISIL forces fighting against YPG in Kobane, Syria. Demirtaş was accused of inciting criminal activity with intent to disrupt the unity of the State. The Ankara Criminal Peace Judgeship detained Demirtaş on September 20, 2019.
In its judgement concerning Demirtaş, the European Court of Human Rights ruled that “it has been established beyond reasonable doubt that the extensions of the applicant’s detention, especially during two crucial campaigns, namely the referendum and the presidential election, pursued the predominant ulterior purpose of stifling pluralism and limiting freedom of political debate, which is at the very core of the concept of a democratic society.”
On March 18, 2019, the Turkish Government and the applicant requested that the case be referred to the Grand Chamber. The request was granted and the Grand Chamber held a hearing on September 18, 2019. The case is pending before the Grand Chamber.
The detention of Osman Kavala
Osman Kavala, a businessperson, human rights defender and chair of a non-profit arts and culture organization was arrested on charges of espionage on the 1st of November in 2017, based on an investigation of the Gezi Park protests of 2013.
After more than two years in pre-trial detention, on December 10, 2019, European Court of Human Rights ruled that his detention violated Article 18 of the Convention in conjunction with Article 5§1 and that Kavala should be released.
The European Court found that the applicant’s detention was part of a wider campaign of repression of human rights defenders in Turkey. The Court concluded that contested measures taken against the applicant were likely to have a dissuasive effect on the work of other human rights defenders.
Despite the judgment of the Court, Kavala was not released from pre-trial detention. On February 18, 2020, Kavala was acquitted by an assize court in Istanbul. The Istanbul Public Prosecutor’s Office appealed the decision.
Furthermore, hours after his acquittal, the chief prosecutor of Istanbul demanded the re-arrest of Kavala based on another investigation, concerning the attempted coup in July 2016. On February 19, 2020, Kavala was therefore detained again. This second arrest happened only one day before the ruling of the European Court of Human Rights became final on March 10, 2020.
On March 9, 2020, Kavala was subject to another detention order by the Istanbul Criminal Peace Judgeship – for the third time – on espionage charges. On March 20, 2020, his second detention concerning the coup attempt was lifted considering the time he spent in prison.
Currently, Kavala’s continued detention is based solely on these espionage charges.
In its judgement concerning Kavala, the European Court of Human Rights ruled that “the prosecution’s attitude could be considered such as to confirm the applicant’s assertion that the measures taken against him pursued an ulterior purpose, namely to reduce him to silence as an NGO activist and human rights defender, to dissuade other persons from engaging in such activities and to paralyze civil society in the country.”
The Government’s request for referral to the Grand Chamber is pending.
The release of detainees amid the COVID-19 pandemics
On April 14, 2020, Law n.7242 concerning execution of penalties was approved by the Grand National Assembly of Turkey. Although the government was already in the process of drafting a law on the execution of penalties, this was accelerated during the COVID-19 pandemic, with the aim of preventing the spread of the disease among detainees. The amendment paved the way for the release of 45,000 detainees. Yet these releases excluded those detained for crimes that fall within the scope of the Prevention of Terrorism Act (Law no. 3713), even if the underlying conduct had been non-violent in nature. Because of the excessively wide interpretation and use of these offenses in Turkey, human rights defenders, lawyers, judges and political opponents were included in this exception.
Selahattin Demirtaş and Osman Kavala remain in detention, despite the serious risk to the health of detainees during the COVID-19 pandemic, as well as the 2018 and 2019 orders of the European Court of Human Rights seeking their release.
The Turkish government is however not releasing the applicants on the ground that the Chamber judgments have not been finalized.
Meanwhile, the authorities have initiated new investigations against both Demirtas and Kavala, and issued new detention orders on charges similar, though not identical, to those reviewed in the Court’s judgments, with the apparent intent of not implementing the ECtHR judgments.
It is high time for the Council of Europe authorities to decide on how to deal with persistent objector regimes. But how they would go about it, is an open question.
Kerem Altıparmak studied and taught human rights law since 1996 at Ankara University. He resigned from his post in October 2018. Currently he is a legal consultant to the International Commission of Jurists. He is also a practicing lawyer focusing mainly on human rights law. He litigates before the European Court of Human Rights and the Turkish Constitutional Court. He also teaches human rights courses in the Human Rights School and works with human rights NGOs in Turkey.
* Selahattin Demirtaş v. Turkey (No. 2), no. 14305/17, 20.11.2018; Kavala v. Turkey, no. 28749/18, 10.12.2019.
This piece was a contribution to the Democracy & the Pandemic Mini-Conference of the Democracy Seminar held on May 20-21, 2020.