Information Note on the Court’s case-law 235

December 2019

Kavala v. Turkey - 28749/18

Judgment 10.12.2019 [Section II]

Article 18

Restrictions for unauthorised purposes

Extended detention of a human-rights defender with the ulterior purpose of reducing him to silence: violation

Article 5

Article 5-1-c

Reasonable suspicion

Suspicion of attempting to overthrow the public powers based on the mere exercise of Convention rights or normal activism on the part of a human-rights defender: violation

Article 5-4

Speediness of review

Long period that could not be adequately justified by the Constitutional Court’s exceptional workload following the state of emergency: violation

Article 15

Article 15-1

Extent strictly required by situation

State of emergency could not remove the “reasonableness” requirement for suspicions-based detention (Article 5 § 1 (c))

Lack of speediness of Constitutional Court’s review of pre-trial detention (Article 5 § 4) both under and after the state of emergency

Facts – Between May and July 2013 disturbances arose in many Turkish towns; they had been triggered by demonstrations in the Gezi Park in Istanbul (hereafter, “the Gezi events”); in addition to numerous acts of vandalism, several people (including two police officers) died, and thousands of people were injured.

In July 2016 an attempted military coup d’état occurred in Turkey, leading to the proclamation of a state of emergency. In this context, Turkey decided to avail itself of the right to derogation provided for in Article 15 of the Convention. The state of emergency remained effective until July 2018.

The applicant is a Turkish businessman who contributed to setting up numerous non-governmental organisations (“NGOs”) and civil-society movements which are active in the areas of human rights, culture, social studies, historical reconciliation and environmental protection.

In October-November 2017 he was arrested then placed in pre-trial detention on the grounds that there existed “strong suspicions” that he had played a role in the Gezi events and the attempted coup which amounted – put succinctly – to attempting to overthrow the Government and attempting to launch an insurrection, two offences punishable by the highest penalty.

In February 2019 the prosecutor’s office filed a bill of indictment in respect of the applicant and 15 other suspects, concerning only the second of the above charges.

In a judgment published in June 2019, the Constitutional Court dismissed an individual application lodged before it in December 2017 regarding the lawfulness of his detention, holding that the suspicions against him were neither arbitrary nor unjustified. The applicant is currently still in detention.

Law

(a) Admissibility

Article 35 § 2 (b) ( case already submitted to “another procedure of international investigation or settlement” ): Admittedly, in November 2017, three UN Special Rapporteurs and the Vice-Chair of the Working Group on Arbitrary Detention (WGAD) had sent Turkey a letter containing an “urgent appeal” concerning the applicant’s detention, in the context of the special proceedings introduced by the Office of the UN High Commissioner for Human Rights. An urgent appeal could give rise to the opening of a procedure, in the context of which the WGAD would be called upon to issue an opinion as to whether or not the deprivation of liberty in question was arbitrary. However, it had not been established that the WGAD had opened such a procedure; also, neither the applicant nor his close relatives had lodged any appeal before the United Nations bodies.

Conclusion : preliminary objection dismissed.

(b) Merits

Article 5 § 1: For the reasons set out below for each of the two charges, the Court considered that it had not been shown that the applicant’s detention was justified by reasonable suspicions based on an objective assessment of the acts in question.

There was no evidence in the case file that the applicant had used force or violence, had instigated or led the violent acts perpetrated or had provided support for such criminal conduct. The suspicions purportedly justifying the detention were essentially based not only on facts that could not be reasonably considered as behaviour criminalised under domestic law, but also on facts which were largely related to the exercise of Convention rights; in the Court’s opinion, the very fact considering such acts as the constituent elements of an offence in itself diminished the reasonableness of the suspicions in question.

Furthermore, the existence of contacts between the applicant and persons charged with various offences could hardly be used to justify inferences as to the nature of their relations; especially since, in the absence of a criminal conviction, those individuals enjoyed the presumption of innocence.

Impact of the derogation (Article 15) – Admittedly, during the state of emergency, several legislative decrees had amended domestic law by placing restrictions on the safeguards laid down with regard to the extension of police custody, access to case files and objections against detention orders. Nonetheless, the legal basis of the applicant’s pre-trial detention was Article 100 of the Code of Criminal Procedure, which had not been amended during the state of emergency; however, that provision required the presence of “factual” elements indicating the existence of strong suspicions that the offence had been committed (moreover – see below – both of the offences referred to included the use of “force or violence” as a constituent element). In other words, the legislation concerned had been applicable prior to, during and after the state of emergency. In consequence, the applicant’s detention case went further than what was “strictly required by the exigencies of the situation”. To conclude otherwise would negate the requirement regarding the reasonableness of the suspicions justifying deprivation of liberty, which would defeat the purpose of Article 5 of the Convention.

(i) The Court’s methodology: The Court reiterated that in examining whether a reasonable suspicion existed for the arrest and detention of the applicant, the starting-point for its analysis had to be the national courts’ decisions on his initial and continued detention. Furthermore, given that the Constitutional Court had assessed the legality of the applicant’s pre-trial detention on the basis of Article 19 of the Constitution, which was a remedy to be exhausted in the Turkish legal system, the Court was called upon to assess whether the reasoning adduced by that latter court, which had also had regard to the bill of indictment, had adequately demonstrated that a reasonable suspicion existed in support of the applicant’s pre-trial detention at the point in time when the national courts had ordered this measure.

(ii) Attempt to trigger insurrection (Article 312 of the Criminal Code) – The applicant acknowledged having played an active part in the demonstrations organised in Gezi Park in so far as they were conducted peacefully and having provided assistance to the non-violent demonstrators, and did not deny that he had had talks with individuals who played an important role in these events. Furthermore, it was not contested that violent groups had joined the demonstrators.

Chronological link between the facts and the proceedings – Arrested four years after the Gezi evens and the opening of the criminal investigation, the applicant was not indicted and charged until about five and a half years after those events. There was nothing to explain these considerable lapses of time. In particular, it did not appear (see below) that the authorities had in the meantime gathered important new evidence that was likely to change the direction of the investigation or indicating that the applicant had been the main instigator of these events.

Subject of the investigations and probative value of the evidence gathered – There was no evidence in the case file, particularly in the decisions on the initial and continued detention, or in the bill of indictment, to the effect that the applicant had used force or violence, had instigated or led the violent acts in question or had provided support for such criminal conduct. Although it referred to ‘concrete evidence’, the magistrate’s detention order of 1 November 2017 did not contain any materials which would satisfy an objective observer that there had existed a reasonable suspicion that the applicant had participated in or supported such acts. Nor did any of the subsequent detention orders extending the applicant’s detention refer to such material evidence.

Moreover, in its indictment, the prosecutor’s office had presented the Gezi events as the result of action by a group of individuals who were influential in civil society and who had acted behind the scenes with the support of foreign actors. In substance, the prosecution accused the applicant of leading this criminal association and, in this context, exploiting numerous civil-society actors and coordinating them in secret, with a view to planning and launching an insurrection against the Government.

This approach had led the prosecutor’s office to list several acts allegedly committed by this “ sui generis structure” and to attach them, in an unverifiable manner, to a criminal aim. In so doing, it had lost sight of the fact that one of the constituent elements of the relevant offence was the use of “force” or “violence” to overthrow the Government.

The record of the police interviews with the applicant showed that they had not questioned him about the Gezi events alone (albeit no question had been put to him about his possible involvement in committing the acts of violence which occurred during those events): many questions concerned a range of subjects which had no link with the suspicions against him.

In sum, it appeared that the facts imputed to the applicant were either legal activities, isolated acts which, at first sight, were unrelated to each other, or activities which were clearly related to the exercise of the rights guaranteed by Articles 10 and 11 of the Convention (such as relations with lawful NGOs carrying out their activities freely). In any event, they had been non-violent activities.

As the Government had failed to make up for the shortcomings in the judicial decisions or the bill of indictment in order to explain how the above elements, which were neither directly nor indirectly linked to the Gezi events, could have any relevance to the assessment of the reasonableness of the suspicions against the applicant, the Court concluded that, as the file stood, the applicant could not be reasonably suspected of having attempted to overthrow the Government (in particular, “through force or violence”) or of having organised or financed an insurrection.

(iii) Attempted coup d’état (Article 309 of the Criminal Code) – A suspicion of “attempting to overthrow the constitutional order through force or violence” had also to be justified by tangible and verifiable facts or evidence that are related to the offence in question. However, neither the decisions on detention nor the bill of indictment contained such information.

The fact that the applicant had had contacts a suspected individual or with foreign nationals could not, in itself, be considered sufficient to satisfy an objective observer that he could have been involved in attempting to overthrow the constitutional order. Moreover, the evidence gathered was insufficient to support the argument that the applicant and the individual in question had had “intensive contacts”.

Conclusion : violation (unanimously).

Article 5 § 4: In its previous judgments or decisions in the same context (see, for instance, Akgün v. Turkey (dec.), 19699/18 , 2 April 2019), the Court had tolerated periods that were already clearly very long – more than a year, and even one year and four months –, since those cases had been the first of a series of cases raising new and complicated issues against the background of the state of emergency, an exceptional situation which had created a considerable workload for the Constitutional Court.

However, the Constitutional Court’s excessive workload could not amount to a carte blanche and justify such lengthy periods ad infinitum . Although the questions raised in the present case were also complex, several factors justified a less indulgent assessment:

– the length of the procedure (one year and almost six months) exceeded those previously observed;

– the Constitutional Court had remained inactive for about ten months from the date on which the individual application was lodged, before asking the Government to submit their observations, in spite of the applicant’s request to obtain priority processing of his case (moreover, there was nothing to suggest that either the applicant or his counsel had contributed to this delay).

However, several factors, wrongly overlooked, made it all the more important to dispel rapidly any doubts about the necessity of placing the applicant in detention or extending this measure:

– firstly, the long period during which the applicant was not brought before a judge (more than one year and seven months); the stereotyped nature of the reasons given for detention, reproduced repeatedly in the successive decisions; the restriction on access to the investigation file, ordered on 20 October 2017 by the court which imposed detention and valid until the adoption of the bill of indictment, or for sixteen months;

– secondly, the dissuasive effect on NGOs whose activities were related to matters of public interest.

Impact of the derogation (Article 15) – The contested length of procedure could hardly be justified by the special circumstances of the state of emergency: when the state of emergency was lifted, more than six months had already elapsed without any procedural act being taken; and after that date, more than eleven months elapsed before the Constitutional Court delivered its judgment.

Conclusion : violation (unanimously).

Article 18 taken together with Article 5 § 1: This complaint was a fundamental aspect of the present case, and thus warranted separate examination. At the core of this complaint was the idea that, over and above the applicant or other persons as individuals, the alleged persecution was intended to muzzle human-rights defenders and NGOs, and thus impaired the very essence of democracy. The Court considered that the ulterior purpose thus defined would attain significant gravity, in the light of the particular role of human-rights defenders and NGOs in a pluralist democracy.

The stated aim of the measure imposed on the applicant had been to carry out investigations into the Gezi events and the attempted coup, and to establish whether the applicant had indeed committed the offences of which he was accused. The Court had already found that these reasons were not sufficient in the present case, in the absence of concrete evidence capable providing an objective justification for the suspicions against the applicant. While this conclusion obviated the need for any discussion on a plurality of purposes, the failure to provide valid reasons for detention nevertheless did not in itself imply that there had been a violation of Article 18.

However, certain of the circumstances already taken into consideration in the context of Article 5 § 1 were also relevant here, and led the Court to find it established beyond reasonable doubt that the measures complained of in the present case had pursued an ulterior purpose, that of reducing the applicant to silence; further, those measures were likely to have had a dissuasive effect on the work of human-rights defenders in general.

Chronological aspects (procedural and political levels) – Several years elapsed between the events forming the basis for the applicant’s detention and the judicial decisions ordering his placement in pre-trial detention, although the bulk of the evidence relied upon in support of the prosecution’s request had already been collected well in advance of those decisions.

Nor was the time that subsequently elapsed before the applicant was officially charged (and then solely in relation to the Gezi events) explained by significant investigative steps. In the intervening period, the only additional evidence added to the file was a witness statement which did not contain any concrete facts or incriminating material and a report by the Financial Crimes Investigation Committee (MASAK), which listed the banking operations carried out with a view to providing financial support to certain legal NGOs; the lawfulness of these operations had not been contested.

However, the Court noted a correlation between, on the one hand, the accusations made openly against the applicant in two public speeches by the President of the Republic towards the end of 2018 and, on the other, the wording of the charges in the bill of indictment, filed about three months after those speeches.

The Court was also aware of the concerns expressed by the Commissioner for Human Rights and the third-party interveners, who considered that the applicant’s detention was part of a wider campaign of repression of human-rights defenders in Turkey. Those arguments appeared to be corroborated by the substantive aspects set out below.

Substantive aspects (the content of the prosecution argument) – In spite of its length (more than six hundred pages), the bill of indictment did not contain a succinct statement of the facts, nor did it specify clearly those criminal actions on which the applicant’s alleged criminal liability in the Gezi events was based: it was essentially a compilation of evidence – transcripts of numerous telephone conversations, information about the applicant’s contacts, lists of non-violent actions –, some of which had a limited bearing on the offence in question.

In particular, the Court considered it significant that the prosecution documents referred to multiple and completely lawful acts that were related to the exercise of a Convention right or had been were carried out in cooperation with Council of Europe bodies or international institutions (exchanges with Council of Europe bodies, involvement in organising a visit by an international delegation); they also referred to ordinary and legitimate activities on the part of a human-rights defender and the leader of an NGO, such as conducting a campaign to prohibit the sale of tear gas to Turkey or supporting individual applications.

Conclusion : violation (six votes to one).

Article 46: Regard being had to the particular circumstances of the case and the grounds on which the Court had based its findings of a violation, the continuation of the applicant’s pre-trial detention would entail a prolongation of the violation of Article 5 § 1 and of Article 18 taken together with that provision.

The Court therefore considered that the respondent State was required to take every measure to put an end to the applicant’s detention and to secure his immediate release.

Article 41: no claim made in respect of damage.

(See also the Case-Law Guides on Article 5 , Article 15 and Article 18 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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