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Remedies for Bad Faith ViolationsBa#ak Çal# 2021-10-13T14:01:44In this blog post, I discuss how the Committee of Ministers (CoM) has developedthe Article 18 remedial jurisprudence in the field of individual measures through itsmonitoring of the execution of Kavala v Turkey and Demirta# v. Turkey No (2) GC.Given that none of the individual measures indicated by the CoM’s decisions in thesetwo cases had been executed at the time of writing, I also look at what lies ahead.Kavala v. Turkey and Demirta# v. Turkey (GC): The JudgmentsThe European Court of Human Rights (ECtHR) has to date delivered two Article 18judgments in conjunction with Article 5 against Turkey: a chamber judgment in thecase of Kavala, human rights philanthropist and defender, and a grand chamberjudgment in the case of Demirta#, former leader of the second largest oppositionparty in Turkey, the HDP, and former member of parliament. In both cases theongoing pretrial detentions were the subject matter of Article 18 analysis.  In bothof the cases, the ECtHR has found that not only were the applicants detained inviolation of Article 5 of the European Convention on Human Rights (ECHR), but alsothat these detentions pursued, ab initio and continuously, ulterior political purposesand, therefore, violated Article 18 of the ECHR in conjunction with Article 5.In Kavala, the Court held that the arrest and extended detention of the human rightsdefender served the ulterior purpose of reducing him to silence and to create achilling effect on civil society. In Demirta#, the Court found that lifting parliamentaryimmunity by way of a constitutional amendment which led to both the detentionand criminalisation of Demirta# for his political speech did not meet the ‘prescribed-by-law’ requirement under Article 10 of the Convention. It further held that thepolitician’s ongoing pre-trial detention served the ulterior motive of stifling pluralismand limiting freedom of political debate in Turkey.  Significantly, in a rare move, theCourt ordered that, under Article 46 of the Convention, both applicants must bereleased immediately from detention. This was a change from previous decisions.For example, in  Mammadov v. Azerbaijan the Court was silent on individualremedies when finding an Article 5 violation in conjunction with Article 18. Thisremedial silence led to a protracted execution process before the CoM. Whilst theCommittee decisions called for the release of the applicant in the light of the totalityof the findings by the Court, the Azeri authorities argued that since no remedy wasprescribed, they did not have an obligation to release Mammadov. This led to thefirst ever infringement proceedings before the European Court of Human Rights,where the Court stated that its original judgment did indeed require the release ofthe applicant. As is well known, Mammadov was released after the initiation of theinfringement proceedings by the CoM, but before the Court decided on them.Turkey’s Conduct in the Execution Process: No Release of the Applicants- 1 -At the time of writing, neither Kavala nor Demirta# have been released. Turkeyhas, instead, put forward a novel argument, persistently maintaining in itscommunications to the CoM (see: here, here and here) that because the legalgrounds for the continuing detention of the applicants changed after the judgmentswere delivered, the judgments were no longer capable of execution.In the case of Kavala, Turkey argues that the applicant was acquitted in relation tothe detention order reviewed by the Strasbourg Court. On the day of his release,he was detained anew on a separate charge. This, according to Turkey, makes itimpossible to release Kavala because he is no longer subject to the detention orderreferred to in the Court’s judgment. In the case of Demirta#, too, Turkey held thatthe reasons for continuing to deprive him of his liberty have changed several timesand he is no longer detained for the reasons that were part of his case before theECtHR. This, too, argues the Turkish government, makes the judgment ‘impossibleto execute’ on grounds that it is in fact already executed.The Committee of Ministers’ Handling of the Execution of the Turkish Article18 CasesThe core legal question before the Committee of Ministers in monitoring theimplementation of these two judgments has been whether Turkey’s argumentsoutlined above are within their scope or not. In both cases, the Committee ofMinisters offers clear answers and, in so doing, significantly develops the remedialjurisprudence of Article 18.There are three distinct ways in which these two cases developed the remedialjurisprudence of the CoM:• through asking whether new legal reasons of detention concern factual contentalready assessed by the Court in Article 18 cases,• through the continuous review of domestic court decisions with a view toestablishing whether they take the Article 46 obligations of states to abide by theConvention in the light of established Article 18 violations into account,• through the expansion of Article 18 monitoring not only to fresh detentionorders, but also to convictions and prosecutions.New Legal Grounds, but Same Factual Content TestThe CoM now employs a well-defined test in response to arguments of ‘new legalgrounds of deprivation of liberty making Article 5/18 judgments impossible toexecute’. This test concerns asking whether the grounds for ongoing deprivationsof liberty concern the same factual content earlier reviewed by the Court so as toconstitute continuing violations under Article 18. For example in the case of Kavala,in its September 2020 decision and in the December 2020 interim resolution, theCommittee of Ministers held that ‘the information available to the Committee raises astrong presumption that his current detention is a continuation of the violations foundby the Court’. In its June 2021 decision on Demirta#, the Committee of Ministersalso held that ‘the continuation of the applicant’s pre-trial detention, on groundspertaining to the same factual content, would entail a prolongation of the violation of- 2 -the applicant’s rights as well as a breach of the obligation of the respondent State toabide by the Court’s judgment.’Article 18 Review of Domestic Judicial Decisions Concerning New DetentionOrdersIn both cases, fresh grounds of arbitrary deprivation of liberty have been reviewedand approved by domestic courts as lawful thus far. The CoM closely engages withthese judicial decisions. It now holds that domestic judicial reviews of finding newlegal grounds of detention as lawful cannot bring these cases outside of the scopeof the Committee’s review. The Committee reserves the right to review  reasonedjudgments from domestic courts to establish whether they are capable of bringingthe case outside of the scope of Article 18 monitoring. The CoM stated this clearly inits June 2021 decision in the case of Kavala:‘The applicant has been detained continuously since 18 October2017 and remains in detention as a consequence of the failure of thedomestic courts to take into account the European Court’s findings and theobligation of restitutio in integrum under Article 46 of the Convention, andthat he is still pursued in criminal proceedings for charges which have beencriticised by the European Court or are based on evidence found insufficientby that Court to justify his detention.’‘the continuing arbitrary detention of the applicant, on the basis ofproceedings which constitute a misuse of the criminal justice system,undertaken for the purpose of reducing him to silence, constitutes a flagrantbreach of Turkey’s obligation under Article 46 § 1 of the Convention toabide by the Court’s judgment and is unacceptable in a State subject to therule of law’.In addition, the CoM clearly underlines the role of constitutional courts as corecompliance partners in the execution of Article 18 judgments. This is seen inits assessment of the Turkish Constitutional Court’s decision which found thenew grounds of detention of Osman Kavala lawful in Aprtil 2021. In this case theCommittee of Ministers specifically held that:‘The [Turkish] Constitutional Court’s reasoned ruling finding the applicant’s currentdetention lawful is based on the same evidence examined or referred to by theEuropean Court, and concluded that the Constitutional Court’s reasoning does notcontain any indication to refute the above presumption of a continuing violation’.Expansion of Monitoring from Post-Judgment Detentions to Prosecutions andConvictionsFinally, the CoM’s remedial jurisprudence as developed by Kavala and Demirta#further shows that if applicants are detained for the same facts under new legalpretences, execution of the judgments requires the elimination of all the negativeconsequences of these new legal pretences on the applicants’ enjoyment ofConvention rights, be they new grounds for detentions or subsequent convictions.- 3 -This was clearly underlined in the June 2021 decision in the case of Demirta#. Inthis, the CoM stated that ‘the obligation of restitutio in integrum calls for the negativeconsequences of the violation to be eliminated without delay, including as regardsthe two sets of proceedings pending before the Ankara Assize Court (concerningthe thirty-four investigation reports and the events of 6-8 October 2014) and theappeal proceedings pending before the Istanbul Assize Court (against the applicant’sconviction for disseminating propaganda in favour of a terrorist 4rganization duringa meeting held in March 2013)’.   In response to the news that one of Demirta#’sconvictions was upheld by the Court of Cassation in April 2021, the CoM furthernoted that this case saw not only Article 5 and 18 violations, but also an Article 10violation. The reasoning for extending monitoring of this case from detentions toconvictions merits quoting in full: ’…. The heart of the violation of Article 10 found by the Court was thatthe unprecedented, ad homines amendment of Article 83 § 2 of theTurkish Constitution on 20 May 2016 unforeseeably deprived the applicantof parliamentary inviolability in respect of statements he made as amember of Parliament; concluded therefore that the obligation to providehim with restitutio in integrum in respect of this violation requires theremoval of all the negative consequences for the applicant’s freedom ofexpression which resulted from the constitutional amendment, in particularthe consequences of criminal prosecutions in respect of statements madeby him which would otherwise have been protected under Article 83 § 2 ofthe Constitution;…..called, therefore, for the applicant’s immediate release, the quashing ofhis conviction by the Istanbul Assize Court, and termination of the criminalproceedings pending before the 22nd Ankara Assize Court, togetherwith the removal of all other negative consequences of the constitutionalamendment’.What Now? My analysis above shows that the Kavala and Demirta# cases have significantlydeveloped the Committee of Ministers’ remedy jurisprudence under Article 18 notonly concerning situations where states furnish new legal grounds for deprivationof liberty of applicants but also as to the facts already reviewed by the  ECtHR inits judgments as a whole. In cases where Article 5/18 violations are found, the CoMoperates with a strong presumption that new detentions may indeed be continuationsof original bad faith detentions. In turn, it requires domestic authorities (domestic andconstitutional courts in particular) to show that the new grounds for detention rely onnew facts – not the same set of facts already reviewed in Strasbourg. Finally, theCoM extends the purview of restitutio in integrum duties of domestic courts beyondquashing detention orders to quashing convictions or ending prosecutions to fullyimplement the spirit of ECtHR judgments.- 4 -Thus far, ongoing legal proceedings before Turkish domestic courts and theConstitutional Court have not substantively engaged with these three dimensions ofArticle 18 remedy jurisprudence. A central question, therefore, is what further actionneeds to be taken so that the Turkish courts take their Article 46 obligations seriouslyin the light of these Article 18 judgments and the remedy jurisprudence of the CoM?In the case of Kavala, the September 2021 decision was a ‘final warning’. TheCoM has stated that if he is not released by 30 November 2021, the Committee ofMinisters will give formal notification of infringement proceedings against Turkeyin its December 2021 session. Whilst infringement proceedings, used only onceagainst Azerbaijan, are generally seen as a major embarrassment and loss ofreputation for Council of Europe member states, it is a slow process. The likelyoutcome of these proceedings is the ECtHR finding  that Turkey is in violation ofArticle 46 of the Convention. If the notification of infringement proceedings is given inDecember 2021, there is also a risk that Mr. Kavala may continue to remain behindbars until the proceedings are complete. It is not likely that the ECtHR could sayanything new in this case given that it has already called for Kavala’s release inthe light of the totality of its assessment of the violation of his Convention rights. IfKavala is kept behind bars, even after the decision of the Court, the CoM will haveto decide if it will choose to opt for hard sanctions against Turkey, in the form ofsuspension of membership or expulsion.In the case of Demirta#, a ‘final warning resolution’ is not yet in view – even if it isclear that this case, too, is heading in the same direction so long as the domesticauthorities and courts continue to defend the same line of argument before the CoMand refuse to take the Grand Chamber judgment and the decisions of the CoM intoaccount.There is, of course, another way: that domestic courts take their constitutionalobligations towards the ECHR and their Article 46 obligations seriously. To dothis, they need to release and fully reinstitute the rights of these two applicants inaccordance with being ‘a State subject to the  rule of law’.- 5 -

Remedies for Bad Faith Violations

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Remedies for Bad Faith Violations

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