4. Judgments of the Court finding a violation of Article 18 of the Convention – essentially an intentionalviolation for ulterior motives – are rare in the history of the Convention, but it is of extreme concern that anysuch cases should exist within the Council of Europe member States. Moreover, in line with the criteria set outin Resolution 1900 (2012), the finding of a violation of Article 18 clearly indicates that Osman Kavala fallswithin the Assembly’s definition of political prisoner.

5. The Assembly stresses that, under Article 46(1) of the Convention, member States are bound tocomply with final judgments of the Court. However, in spite of a clear judgment of the Court requiring hisimmediate release, clear, repeated decisions and resolutions of the Committee of Ministers calling for hisimmediate release, as well as such calls in Assembly resolutions, the Turkish authorities have, up until now,not released Osman Kavala. Indeed, the Turkish authorities continued with his detention, prosecution andconviction even though the evidence against him in the case file was not credible even to warrant areasonable suspicion that he had committed these offences, let alone a prosecution or a conviction.

6. This led the Committee of Ministers of the Council of Europe to refer the case to the Court under Article46(4) of the Convention questioning whether Türkiye had fulfilled its obligation to implement the 2019judgment thus initiating infringement proceedings. In its judgment of 11 July 2022, in the infringementproceedings under Article 46(4), the Court held that Türkiye had indeed failed to fulfil its obligation underArticle 46(1) to abide by its Kavala judgment. It found that the additional charges of espionage were based onidentical facts to its previous findings, thus there was still no reasonable suspicion that Mr Kavala hadcommitted any criminal offence. It also stated that the primary obligation to release Osman Kavala, resultingfrom the initial judgment, continued to exist.

7. The Assembly notes that Article 46(4) judgments are extraordinarily rare; the Kavala judgment is onlythe second such judgment ever and this is the only case of a member State failing to implement a judgmenteven following an Article 46(4) judgment.

8. The Assembly is deeply concerned that, despite the clear obligation on Türkiye to immediately releaseOsman Kavala, he remains in prison. The continued refusal by the Turkish authorities to effectively executethis judgment is not only a personal tragedy for Osman Kavala and his family; it is a tragedy for the rule of lawand justice in Türkiye. Domestic courts, in the various judgments relating to Osman Kavala, have notmeaningfully engaged with the findings of the European Court of Human Rights when reviewing his case andhave certainly not respected those judgments. Given that the Turkish Constitution gives precedence to theprovisions of international treaties duly in force in the event of a conflict as to the scope of fundamental rightsand freedoms between the treaty and a domestic statute, this is difficult to understand.

9. Following the recent Court of Cassation judgment, which did not even mention the Kavala judgments ofthe European Court of Human Rights, Mr Kavala’s conviction has become final and the Turkish courts thatdealt with Mr Kavala’s case have proved themselves neither capable nor willing to respect Türkiye’sinternational human rights obligations in this matter. Although Mr Kavala may now avail himself of the right toindividual application to the Constitutional Court, it is questionable whether he has a real prospect of successgiven the Constitutional Court’s decision on his previous application concerning the unlawfulness of hisdetention.

10. The Assembly insists that it is incumbent upon the Turkish authorities, at the highest levels, to take swiftand meaningful action to comply with the Court’s judgment and to release Osman Kavala immediately.Türkiye has an obligation to execute binding judgments of the Court and a refusal to do so is incompatiblewith its international obligations. Such a refusal casts a shadow on the commitment of Türkiye to respectingthe rule of law, human rights and democratic values, which are central to all Council of Europe memberStates. Thus, in light of the exceptional circumstances present, the Assembly believes that the time has nowarrived to take steps to initiate the complementary joint procedure foreseen in its Resolution 2319 (2020).

11. The Assembly regrets the role played by Turkish prosecutors and judges who dealt with OsmanKavala’s case, in ensuring, through misuse of the law, his unlawful detention, prosecution and conviction. It isincumbent upon Türkiye to ensure that prosecutors and judges exercise the powers that have been bestowedupon them in full compliance with the rule of law, the interests of justice and human rights.

12. This truly exceptional case is undermining the basis of the Convention system as a whole. It isimperative that action is taken swiftly to secure the release of Osman Kavala and to ensure that Türkiyeupholds the rule of law and human rights and implements the two Kavala judgments of the Court.

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