The Statement of the Ambassadors on Osman Kavala

by Rıza Türmen*

*Translation of the article published in T24 on 20 October 2021

It seems that governments want to give a final warning through their ambassadors in Ankara hoping to prevent the case of Osman Kavala from taking an unwanted and unpleasant turn as things are going to get rather ugly after the November meeting of the Committee of Ministers of the Council of Europe.

Ten ambassadors assigned to Ankara issued a statement about Osman Kavala in which they pointed out that the procedures used for not releasing Kavala, cast a shadow on democracy and the principles of rule of law and transparency, urging Turkey to release him in compliance with the judgment of the European Court of Human Rights (ECtHR).

The call of the ambassadors caused a great anger. They were summoned to the Ministry of Foreign Affairs and were reminded of their limits. The leaders of the ruling party likewise warned the ambassadors in various statements.

A reaction of this sort could have been justified if the ambassadors’ statement had been about an ordinary lawsuit in Turkey. However, evaluating the call of the ten ambassadors about the Osman Kavala case, requires taking into account the particular circumstances of the case.

First of all, this is a human rights issue.

Following the transformation after the Second World War, human rights is no longer a domestic affair of the governments. Human Rights was moved out of the sphere of sovereignty of governments to become a matter of concern for the international community at large. Today, no government stand up and say, “I can violate the human rights of my citizens as I please. That’s none of your business.”

The fact that Osman Kavala's detention was a flagrant violation of human rights was established by an international court. In its judgment dated 10.12.2019, the ECtHR ruled that Kavala’s detention was not based on concrete actions that would incur reasonable doubt and that therefore it was unlawful. The ECtHR also held that the detention was politically motivated and was intended to silence Osman Kavala and the civil society in Turkey. On these grounds, the court ordered the immediate release of Osman Kavala. In response, Turkey resorted to legal tricks to avoid implementing the ECtHR judgment although it had an obligation to implement the judgements originating from an international convention to which Turkey is a party. In order not to release Osman Kavala, the Turkish Court launched a new investigation into a concocted espionage case. When that, too, proved insufficient, the trials where Kavala had been acquitted were overturned by the Court of Appeals and were joined with the totally unrelated Çarşı case in blatant contradiction of legal procedures.

Turkey’s refusal to release Osman Kavala through a series of legal tricks and its failure to implement the ECtHR judgment are violations in their own right. While all this is going on, the ruling party shrouds itself under the unconvincing claim of “judiciary independence” and wants everyone to shut up.

Another point that needs to be taken into consideration in reacting to the call of the ambassadors is that this issue is currently before the Committee of Ministers of the Council of Europe which consists of the ambassadors of 47 state parties and is responsible for the implementation of the ECtHR judgments. The Committee of Ministers is a political body and the method it uses to enforce ECtHR judgments is exerting political pressure. The responsibility of the Committee of Ministers stems from the European Convention on Human Rights. Hence, political pressure acquires a legal character and becomes legitimate.

The ambassadors have been debating the enforcement of the ECtHR judgment on Osman Kavala for more than a year. They adopted numerous resolutions all of which included an appeal for Turkey to release him immediately. Turkey turned a deaf ear on these calls, persistent in its failure to implement the ECtHR judgment. The ambassadors in Strasbourg of the governments that signed the joint statement in Ankara have already adopted many resolutions calling for the release of Osman Kavala. It is not comprehensible as to why the decisions taken in Strasbourg do not cause any problems but the repetition of the same call in Ankara by the ambassadors of the same countries causes an uproar.

Why did the ambassadors in Ankara make such a move as the issue was already under discussion in the Committee of Ministers of the Council of Europe in Strasbourg?

The end of the road has been reached in both the discussions conducted in the Committee of Ministers in Strasbourg and the resolutions that were adopted. The joining of the Osman Kavala case with an unrelated one (Çarşı) as if to make a mockery of the decisions of the Committee of Ministers showed that the Committee’s resolutions had no effect on Turkey. This left the Committee of Ministers with only one choice: to initiate the infringement procedure. In fact, the resolution that came out of the September meeting hinted at the Committee’s intention to go down this road.

This means the following: In all likelihood, the Committee of Ministers will adopt a resolution as to the commencement of the infringement procedure with a two-thirds majority vote in its 30th November meeting. Six months after the adoption of this resolution, the Committee of Ministers will ask the ECtHR to decide whether the government in question has implemented its judgment. If the ECtHR holds that its judgment has not been enforced and that the Convention has thus been breached, the Committee of Ministers will impose a series of increasingly severe sanctions which may go so far as the expulsion of the government of Turkey from the Council of Europe.

It seems that governments want to give a final warning through their ambassadors in Ankara hoping to prevent the issue of Osman Kavala from taking an unwanted and unpleasant turn as things are going to get rather ugly after the November meeting of the Committee of Ministers of the Council of Europe.

There are three governments that signed the open letter in Ankara which are not Council of Europe member states and therefore have no seats in the Committee of Ministers: the US, Canada, and New Zealand. The US and Canada are observer members. These governments must have signed the statement due to the sensitivities toward human rights in their respective public opinions.

Another point that must be underscored, is that the suits filed with the ECtHR are against state parties and the addressees in the judgments and resolutions passed are the state parties. The obligation to implement the judgments and resolutions also rests with States. Therefore, a government can not shrug off its responsibility by saying, “The judiciary is independent. It’s up to the judiciary whether to implement an ECtHR judgment or not. I have no influence over it!” The responsibility lies with the State and the judiciary and the government are parts of the State.

The ECtHR or the Committee of Ministers are not interested where the noncompliance with the judgment arises from. They see the state party before them as their interlocutor.

Turkey’s position on the international stage would have been very different if it strove to be a state respectful of human rights and the principles of the rule of law governed by democracy instead of telling off criticisms for disapproving its performance.

Everything aside, Osman Kavala has been in jail for four years without any offense or evidence – simply because the political will wants him there.

How is the price for these lost years going to be paid?