by Leo Kendrick
Following a meeting this past Friday (2 December), the Council of Europe (CoE) announced that Turkey will face infringement proceedings for its refusal to release jailed businessman and philanthropist Osman Kavala. Turkish courts had voted last Monday (29 November) to keep Kavala behind bars. Friday’s decision by the Council of Ministers of the CoE to initiate infringement proceedings passed by a roughly two-thirds vote, with 35 countries voting in favor of the decision. Notable dissenting voices included Turkey, Hungary, and Azerbaijan.
Turkey claims that the original 2019 ruling by the European Court of Human Rights demanding Osman Kavala’s release is not binding, and that the final decision must be made by Turkish courts. Although last Friday marked the beginning of infringement proceedings due to Turkey’s refusal to release the incarcerated philanthropist and businessman, the Council of Europe has given Turkey until 19 January to submit its final view on the case, seen as a last chance before sanctions, financial penalties, or other disciplinary measures are implemented. This 19 January deadline happens to fall two days after the next scheduled hearing in the Kavala case.
The Turkish Foreign Ministry released a statement following last Friday’s announcement saying: “In line with the principle of respect for pending judicial proceedings, we call on the Council of Europe to avoid taking further steps. which would mean interference in the independent judiciary. Any, and above all, the Committee of Ministers of the Council of Europe should respect and trust in legal proceedings conducted by independent and impartial courts.” The foreign ministry’s characterization of the Turkish court system and proceedings against Kavala as independent and impartial runs counter to observers who have noted that the charges against him are politically motivated and that the country’s judiciary have come under the thumb of President Recep Tayyip Erdoğan and the ruling Justice and Development Party (AKP).
After the announcement of the CoE decision last Friday, Medyascope’s Murat Türsan interviewed Emma Sinclair-Webb, a researcher for Human Rights Watch and expert in European and Central Asian human rights, on the latest developments in the Osman Kavala case during the weekly This Week in Turkey segment. Sinclair-Webb noted that this decision by the CoE had not been unexpected, after indicating in September that infringement proceedings were likely if Turkey failed to release Kavala by 30 November, saying the news was “Expected but welcome.”
In the wake of Friday’s decision, much attention has turned to how potential proceedings and disciplinary measures against Turkey might play out. Although the initiation of infringement proceedings indicate that some sort of sanctions are likely, it remains unclear exactly what they may look like. According to Sinclair-Webb, the Council of Ministers will convene once again on 2 February, in which the council will refer its decision back to the European Court of Human Rights. The ECHR will then issue a judgement deciding whether Turkey has followed through on the CoE request for Kavala’s release. In the event that Turkey has still failed to release Kavala, which is the most likely scenario, the ECHR judgement will then be sent back to the Council of Ministers, who will then decide on disciplinary measures for Turkey. Possible sanctions, according to Sinclair-Webb, include financial penalties, prevention from voting at the parliamentary assembly of the Council of Europe, or in an extreme case, expulsion from the CoE. Sinclair-Webb noted that this last scenario is unlikely and would probably occur down the road once the Council has exhausted other disciplinary options.
Despite likely penalties, chances of Turkish compliance with the ECHR and CoE requests remain slim. The Council has previously issued 8 requests that Kavala be freed, none of which Turkey has complied with. The ECHR has also insisted that in addition to being freed, all charges and proceedings against the businessman be dropped. As such, expectations that the CoE inspires significant changes in the Kavala case continue to be low. Nevertheless, it is worth noting the significance of Friday’s decision, as it is only the second time infringement proceedings have ever been initiated by the Council of Europe. Highlighting the importance of this last point, Sinclair-Webb said “Turkey has to wake up to the fact that this is not something that the Council of Europe does easily. It is a measure of how degraded the rule of law is in Turkey, that it has come to this point.”