Written by: Işıl Aral, Daniel Bramhall, Andrew Stevens, Joseph Lynch-Watson

Osman Kavala, pictured, has been detained for 7 months without an indictment. http://www.osmankavala.org/en

 

Introduction

Osman Kavala has been a prominent figure in Turkish civil society since the 1980s, founding a plethora of cultural and arts-based initiatives.[1] Along with this, he is well known for his role at the head of the Kavala Group companies following his attendance at the University of Manchester in 1982 and subsequent philanthropic and humanitarian efforts after his departure from his position in the business.[2] His initiative Anadolu Kültür aims to foster a celebration of diversity through cultural and artistic exchange.[3] He is also responsible for founding İletişim Publishing,[4] which has since become one of Turkey’s largest publishing houses.

Background

Mr Kavala has been in custody since 18 October 2017, after being arrested on charges of attempting to abolish the constitutional order and attempting to remove the government of the Turkish Republic, in connection with the failed coup d’état of 2016.[5] Based upon his interrogation on 31 October 2017, Mr Kavala is also alleged to have been among the organisers of the 2013 Gezi Park protests.[6] He has drawn criticism from Erdoğan himself, who labelled him ‘Turkey’s Soros” for his alleged involvement in the Gezi protests.[7]

Due to a secrecy order on Mr Kavala’s investigation file, his lawyers have no access to any evidence against him, and as of 08 June 2018, there was no indictment[8].  This represents a clear violation of Article 9 of the International Covenant on Civil and Political Rights and Article 5 of the European Convention on Human Rights, and on 12 June Mr Kavala announced that he had applied to the European Court of Human Rights appealing his long detention without trial. His case illustrates the degradation of the rule of law in Turkey since the State of Emergency was declared following the attempted coup.

The handling of Mr Kavala’s case is not an isolated incident. Many other human rights advocates[9] and individuals who have expressed opposition to Erdoğan[10] have been arrested on non-specific coup related charges. Mr Kavala’s arrest has drawn criticism, being labelled as “an attack on the democratic values Kavala has worked to instil”.[11]  

Domestic Legal Framework

Mr Kavala’s first interrogation took place on 31 October, 13 days after his arrest, at the Istanbul Police Department Anti-Terrorism Unit. The next day, following the request of the Istanbul Chief Public Prosecutor’s Office, the Istanbul 1st Criminal Court of Peace decided that he was to be detained under article 309 of the Penal Code of Turkey which regulates violation of the Constitution and article 312, regulating offences against the government. [12] Article 309 (1) states that ‘Any person who attempts through force and violence to abolish, replace or prevent the implementation of the constitutional order of the republic of Turkey shall be sentenced to a penalty of aggravated life imprisonment’.[13] Article 312 (1) states ‘Any person who attempts through force and violence to abolish the government of the Republic of Turkey or to prevent it, in part or in full, from fulfilling its duties, shall be sentenced to a penalty of aggravated life imprisonment’. [14]

Given his long-standing commitment to the promotion of peaceful civil society, Mr Kavala makes an unlikely conspirator. The right to organise and demonstrate is protected by the 1982 Turkish Constitution in a way which complies with international standards, such as the European Convention on Human Rights. Article 34 of the Turkish Constitution states ‘everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission’.[15] Other fundamental rights are also protected by the constitution. Article 26 provides everyone with ‘the right to express and disseminate his thoughts and opinion by speech, in writing or in pictures or through other media, individually or collectively(…)without interference from official authorities’. Article 19 protects personal liberty, stating ‘No one shall be deprived of his/her liberty except in the following cases where procedure and conditions are prescribed by law’.

The detention of Mr Kavala and any charges relating to the Gezi protests would therefore appear to be unconstitutional. Whilst the state of emergency in Turkey allows for some constitutional rights to be suspended, the Gezi protests were prior to the attempted coup. Article 15 of the Constitution sets out that ‘in times of war, mobilization, a state of emergency, the exercise of fundamental rights and freedoms may be partially or entirely suspended, or measures derogating the guarantees embodied in the Constitution may be taken to the extent required by the exigencies of the situation, as long as obligations under international law are not violated’. Turkey remains in a state of emergency, which was extended on 18 April 2018 for three months, marking the seventh extension since the state of emergency was instated following the failed coup.

More than a year and a half since the coup attempt, it is difficult to view the  continuation of the state of emergency as remaining proportionate to the ‘exigencies of the situation’. Recently, the UN has publicly stated that the extension of the state of emergency is not jusitified. Additionally, the last clause of Article 15 of the Turkish Constitution states that the suspension of fundamental rights is permitted ‘as long as obligations under international law are not violated’. This means that even if  there were powers to restrict rights under Article 15, the actions taken against Kavala remain unconstitutional if they violate Turkey’s obligations under international law.

Regional and International Legal Framework

Turkey is also breaching its obligations under the European Convention on Human Rights (‘ECHR’).[16] Regardless of the merit of the charges, the detention of Mr Kavala for more than 14 days between 18 October and 1 November without being brought before a judge represents a contravention of ECHR Article 5, which ensures “the right to liberty and security of person” in order to “prevent arbitrary or unjustified deprivations of liberty”. Following the European Court of Human Right’s decision in Aksoy v Turkey,[17] an individual detained for 14 days without being brought before a judge or judicial officer was held to violate Article 5(3) of the ECHR, even during a state of emergency.[18] This detention, the European Court of Human Rights said, was ‘exceptionally long, and left the applicant vulnerable (…) to arbitrary interference with his right to liberty’. [19] Kavala’s extended detention, coupled with delays in bringing his case before court, demonstrates a violation of Turkey’s obligations under Article 5(3).[20] Moreover, Mr Kavala is yet to know the extent of the allegations for which he has been detained. This is in contravention of Article 5(2) which provides that ‘[e]veryone who is arrested shall be informed promptly […] of the reasons for his arrest and of any charge against him’. This obligation is not discharged because the allegations against Kavala have not ‘been supported with any credible evidence’.[21]

Article 5 ensures ‘the right to liberty and security of person’ and its purpose ‘is to prevent arbitrary or unjustified deprivations of liberty’’.[22] In the absence of credible evidence against Kavala, his detention appears to be an unjustified deprivation of liberty. Furthermore, Article 5(3) of the ECHR requires that ‘[e]veryone arrested or detained […] shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial’. This provision is imperative to the rule of law and is ‘one of the fundamental principles of a democratic society’.[23] Kavala’s extended detention, coupled with delays in bringing his case before court, demonstrates a violation of Turkey’s obligations under Article 5(3).[24]

In addition to the ECHR, Turkey is also party to the International Covenant on Civil and Political Right 1966 (‘ICCPR’).[25] In the case of Osman Kavala, it has been claimed that there have been ‘fabrications with the intention of incarcerating him for years,’[26] and as previously mentioned, his lawyers do not know the extent of the charges brought against him. [27] Article 9(2) of the ICCPR requires that ‘[anyone] who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him’. As such, the failure to inform Kavala and his lawyers of the charges against him represents a breach of Turkey’s obligations under Article 9(2).

Conclusion

Following the coup there have been large scale dismissals of public officials across the country, including 4000 judges and prosecutors.[28] This has led to widespread concern regarding interference by the executive with the independence of the judiciary. [29] Large scale removals of judicial officials seen to be critical of Erdoğan is a central issue for the rule of law in Turkey in the aftermath of the coup attempt, and with Erdoğan’s public comments about Mr Kavala there is a particular risk that a fair and impartial trial will be impossible in this case.

Osman Kavala’s case is symptomatic of concerning developments regarding the rule of law and human rights in Turkey. The Freedom in the World report 2018 from Freedom House demoted Turkey from a partly-free country to one which is not free.[30] This is due to a deterioration of civil and political rights resulting from, amongst others, arbitrary arrests and suppression of opposing groups. The World Justice Project, which specifically measures countries’ respect for the rule of law found in its latest report, that among 113 countries studied for the survey, Turkey ranks 101.[31]

On 8 February 2018, the European Parliament adopted a Resolution on the human rights situation in Turkey. In addition to general remarks expressing concern for the rule of law, the resolution declared that the European Parliament ‘is very concerned at the massive crackdown against Turkey’s civil society organisations, and specifically the arrest of one of the leading NGO leaders, Osman Kavala.. The resolution also urged the Turkish Government to ‘immediately release Kavala as his arrest is politicised and arbitrary’.[32]

On 3 April 2018 Osman Kavala released a letter from prison.[33] He notes that he has been informed that restrictions on his case have been lifted.  The implications of this remain unclear, but if followed through, this will be a welcome step.

However, the detention remains arbitrary. As Mr Kavala remarks “State of emergency turns extraordinary accusations and victimization into common phenomena. As long as the state of emergency’s shadow is not lifted from the constitution, it doesn’t seem likely for us to live the spring that is now felt in the courtyards…”[34]

The case of Osman Kavala is one of many examples illustrating the deterioration of the rule of law in Turkey since the coup, with power increasingly concentrated in the hands of the President.

[1] http://osmankavala.org/en/civil-society-activities accessed 10 February 2018.

[2] http://osmankavala.org/en/about-osman-kavala accessed 10 February 2018.

[3] http://www.anadolukultur.org/en/about/general-information/3232 accessed 10 February 2018.

[4] https://www.iletisim.com.tr/about-us accessed 10 February 2018.

[5] http://www.hurriyetdailynews.com/court-arrests-turkish-activist-osman-kavala-over-failed-coup-attempt-121694 accessed 10 February 2018.

[6] http://www.hurriyetdailynews.com/detention-of-osman-kavala-linked-to-gulen-investigations-121346 accessed 10 February 2018.

[7] https://stockholmcf.org/turkeys-erdogan-calls-detained-hr-activist-kavala-a-criminal-and-the-turkish-soros/ accessed 10 February 2018.

[8] https://www.amnesty.org/download/Documents/EUR4482002018ENGLISH.PDF

[9]http://www.barhumanrights.org.uk/bhrc-calls-for-the-release-of-the-istanbul-10/ accessed 10 February 2018.

[10] http://www.barhumanrights.org.uk/bhrc-publishes-latest-observations-from-altan-case/ accessed 10 February 2018.

[11] https://freedomhouse.org/blog/case-against-turkish-philanthropist-osman-kavala accessed 10 February 2018.

[12] http://osmankavala.org/en/judicial-process accessed 11 February 2018.

[13] https://global.tbmm.gov.tr/docs/constitution_en.pdf

[14] ibid.

[15] https://global.tbmm.gov.tr/docs/constitution_en.pdf accessed 16 February 2018.

[16] https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005/signatures, accessed 10th February 2018.

[17] Aksoy v. Turkey, 1996-VI 65-78.

[18] Article 5(3) of the ECHR requires that ‘[e]veryone arrested or detained […] shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial’. This provision is imperative to the rule of law and is ‘one of the fundamental principles of a democratic society’.   Brogan and Others v The United Kingdom (1988) 11 EHRR 117, §58.

[19] Aksoy v. Turkey, 1996-VI 65-78.

[20] https://tribune.com.pk/story/1535831/uproar-turkey-detains-top-civil-society-figure/, accessed 13 February 2018.

[21] https://www.hrw.org/news/2017/11/02/turkey-arrest-civil-society-leader-arbitrary-punitive (accessed 14th February 2018).

[22] McKay v The United Kingdom [2006] ECHR 820, § 30.

[23] Brogan and Others v The United Kingdom (1988) 11 EHRR 117, §58.

[24] https://tribune.com.pk/story/1535831/uproar-turkey-detains-top-civil-society-figure/, accessed 13 February 2018.

[25] https://treaties.un.org/PAGES/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en, accessed 3 February 2018.

[26] https://www.opendemocracy.net/anthony-barnett/osman-kavala-turkish-democracy-on-anvil, accessed 10 February 2018.

[27] https://turkeypurge.com/turkeys-pro-govt-media-now-overjoyed-with-detention-of-turkish-businessman-kavala, accessed 6 February 2018.

[28] https://www.reuters.com/article/us-turkey-security/turkey-has-removed-more-than-4000-judges-prosecutors-after-coup-minister-says-idUSKBN18M0Q9, accessed 3 February 2018.

[29] http://www.barhumanrights.org.uk/bhrc-condemns-mass-arrest-of-judges-and-prosecutors-in-turkey/ accessed 10 February 2018.

[30] Freedom in the World 2018, Turkey Profile, < https://freedomhouse.org/report/freedom-world/2018/turkey> accessed 13 February 2018.

[31] World Justice Project Rule of Law Index, https://worldjusticeproject.org/sites/default/files/documents/WJP_ROLI_2017-18_Online-Edition_0.pdf <accessed 29 April 2018.

[32] European Parliament resolution on the current human rights situation in Turkey (2018/2527(RSP)) 8.2.2018.

[33] http://www.osmankavala.org/en/statements-about-osman-kavala/365-a-letter-from-osman-kavala-on-the-5th-month-of-his-imprisonment.

[34] http://www.osmankavala.org/en/statements-about-osman-kavala/365-a-letter-from-osman-kavala-on-the-5th-month-of-his-imprisonment.