On Osman Kavala and Turkish Judicial Failures

On October 18, 2017, Turkish authorities took Mr. Osman Kavala under custody.  Since that day, Kavala has been deprived of his freedom – and based on made-up allegations backed up by no trace of any convincing evidence.  While Kavala is hardly the only victim of Turkey’s politicized and floundering judiciary, his involvement in human rights activism and Turkish civil society – no doubt enabled by his financial power as a businessperson – makes him a special persona non grata in the eyes of the Turkish government.  And for the same reasons, his case has garnered international attention and support, with legal efforts to set him free ongoing both before Turkish courts and before the European Court of Human Rights (the “ECtHR”).

The ECtHR recently held that Turkey violated Article 46(4) of the European Convention on Human Rights (the “ECHR”) on the implementation of ECtHR judgments by not releasing Kavala despite the Court’s earlier ruling in 2019 that had instructed Turkish authorities “to take all necessary measures to put an end to the applicant’s detention and to secure his immediate release.”  Following the Court’s order in 2019 calling for Kavala’s release, Turkey refused to implement the judgment, and despite a domestic court acquitting him from charges he was previously held under detention (attempting to overthrow the government), Turkey came up with fresh (read: bogus) charges to detain him once more (this time, attempting to overthrown the constitutional order).

The Committee of Ministers of the Council of Europe, in charge of monitoring compliance with ECtHR rulings, will now deliberate as to how to handle Turkey’s now judicially confirmed failure to release Kavala.  Suspension of Turkey’s membership in the Council of Europe, is an option that is on the table, at least theoretically.

The Kavala case is larger than Kavala himself though.  While to proponents of Kavala’s cause (including myself) securing his freedom is an urgent priority, what his release from prison would mean for Turkey and the Turkish legal system more broadly is equally, if not more, important.  Kavala’s release would signal, first and foremost, to Turkey’s liberal democratic allies (what is now left of them) that Turkey reaffirms its commitment to the Council of Europe human rights space.  It would also signal to Turkish citizens that their right to peaceful demonstration is firm and its exercise is not punishable.  It would also put an end to a multi-year abuse of judicial process (perpetrated by the judiciary itself, no doubt at the behest of the government) to ensure that Kavala is kept under detention. 

All of which is to say, the Kavala case presents itself as a symptom of the Turkish judiciary’s numerous failings.  Rectifying the wrong done to Kavala therefore requires, first and foremost, releasing him, but the work does not and should not stop there.  In what follows, I outline some of the most prominent failings that have occurred so far in the Kavala case, in the hopes that it will serve as a reminder to those in power in a post-Erdogan Turkey what needs to be remedied to avoid future judicial failures.

• Kavala was first taken under custody on October 18, 2017.  Among the charges he faced at the time was attempting to overthrow the government for having allegedly financed part of the Gezi protests in 2013.  The first judicial failure presents itself here.  Let’s set aside the preposterous suggestion by the prosecutors at the time that a peaceful demonstration and its financing can amount to overthrowing the government.  Let’s assume for the sake of argument, please read that again, only for the sake of argument, that Kavala indeed attempted to overthrow the government back in 2013.  Why investigate it and detain him four years later in 2017 but not immediately in 2013?  That Kavala’s detention comes four years later is itself a judicial failure, regardless of the merits of the allegations made by the prosecutors.  The reasonable conclusion is that political elites decided in 2017, no doubt galvanized by the failed coup attempt and the purges that followed it, to retaliate against Kavala for being a prominent human rights activist with significant financial power.  Relatedly, the Turkish Penal Code’s provisions on crimes such as overthrowing the government or overthrowing Turkey’s constitutional order are so vaguely worded and susceptible to manipulation that they have become weaponized by the AKP’s political pawns in the judiciary.

• The Turkish Constitutional Court (“TCC”) – or rather its AKP-friendly majority – proved to be a disappointment as well.  Mr. Kavala lodged his individual application before Turkey’s highest court on December 29, 2017.  The TCC ruled on the matter on May 22, 2019, a significant delay.  Some pundits have made the not unreasonable argument that it would have taken longer for the Turkish court to rule on the matter had Mr. Kavala’s lawyer not also applied to the ECtHR.  The judicial failure here is not only the fact that Turkey’s highest court has become increasingly AKP friendly with many political appointments (although I have made the argument here that the TCC is not “packed” in the comparative constitutional law sense of the word), with some recent appointees having questionable qualifications.  Added to that, and perhaps equally dangerous, is the TCC’s deployment of a strategy to delay politically salient cases.  If rumors are true that the TCC decided to finally rule on the matter only after the case was submitted to the ECtHR, that, too, shows a failure, that the timely administration of justice depends on whether a foreign court has taken up the same matter.  (The silver lining being: at least the ECtHR retains some degree of informal power over the TCC’s agenda, particularly with regard to the timing of adjudication of politically salient cases.).  I should emphasize the dissenting opinions in the TCC’s Kavala judgment that would have held that Mr. Kavala’s detention is in violation of the Turkish Constitution, particularly the dissenting opinions by Chief Justice Zuhtu Arslan and other members of the TCC including Engin Yildirim and Yusuf Sevki Hakyemez.

• The third failure is Kavala’s second detention following his acquittal from charges of overthrowing the government.  Following his acquittal, on the very same day, he was rearrested, this time for allegedly having tried to overthrow Turkey’s constitutional order.  This is a blatant abuse of judicial process.  It—deservedly—erodes public confidence in the judiciary who has proven that it will go to all lengths to ensure Kavala remains captive.  If one charge ends in acquittal, in other words, another charge can always be arranged (read: made up).

• A judge hearing Kavala’s case, Murat Bircan, refused to recuse himself from the case, despite having run as an AKP candidate for MP in 2018, during which he made obsequious statements in praise of Erdogan, including: “For a strong Turkey, we need a strong leader.  We can only reach Turkey’s 2023 and 2071 goals under Erdogan’s leadership.”  There’s no need to spend more than a few words about this “judge.”  He is a joke and should be marginalized in a post-Erdogan Turkey (for my five cents on how to “de-AKPify” Turkey, particularly the judiciary, see here).  The failure here is the erosion of judicial ethics: a “judge’s” blatant disregard of the most basic recusal norms despite having been thoroughly entangled with a political party whose leader (Erdogan) has repeatedly accused Kavala of having masterminded attempts to overthrow the Turkish government.

So, to the Turkish opposition, in the hopes that they will oust the Erdogan regime at the ballot box:  Kavala’s freedom, which I hope will come sooner than later, will not fix the problems I outlined above.  Carefully study these judicial failures and address them.

And to the Turkish government, though they are unlikely to listen:  Free Kavala.  Now.