CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 11 juillet 2022

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font-size:10pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }     GRAND CHAMBER PROCEEDINGS UNDER ARTICLE 46 § 4, IN THE CASE OF KAVALA v. TÜRKİYE (Application no. 28749/18)     JUDGMENT   Art 46 § 4 • Infringement proceedings against Türkiye for failure to abide by Court’s final judgment explicitly indicating applicant’s immediate release • Continued detention on insufficient grounds pertaining to exactly the same factual context • Finding of a violation of Art   5 §   1, taken alone and with Art   18, in the final judgment vitiating any measure resulting from the impugned charges • Mere reclassification of same facts incapable of modifying the basis for conclusions of final judgment in the absence of other relevant and sufficient circumstances This version was rectified on 1 September 2022 under Rule 81 of the Rules of Court.   STRASBOURG 11 July 2022   This judgment is final but it may be subject to editorial revision.   In proceedings under Article 46 § 4 of the Convention in the case of Kavala v. Türkiye, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Robert Spano, President,   Jon Fridrik Kjølbro,   Síofra O’Leary,   Georges Ravarani,   Marko Bošnjak,   Egidijus Kūris,   Yonko Grozev,   Carlo Ranzoni,   Stéphanie Mourou-Vikström,   Pauliine Koskelo,   Jolien Schukking,   Arnfinn Bårdsen,   Raffaele Sabato,   Saadet Yüksel,   Peeter Roosma,   Kateřina Šimáčková,   Davor Derenčinović, judges, and Abel Campos, Deputy Registrar, Having deliberated in private on 8 April, 4 May and 9 June 2022, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     Under the terms of Article 46 § 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), the Committee of Ministers referred to the Court, on 2 February 2022, the question whether the Republic of Türkiye had failed to fulfil its obligation under Article 46 § 1 of the Convention to abide by the Court’s judgment in the case of Kavala v. Turkey (no. 28749/18, 10 December 2019). 2.     In the Kavala judgment (cited above), the Court found violations of Articles 5 §§ 1 and 4, and Article 18 taken in conjunction with Article 5 §   1 of the Convention, with regard to the criminal charges brought against Mr   Kavala in October 2017 and his subsequent and continued pre-trial detention. That judgment became final on 11 May 2020, at which point it was transmitted to the Committee of Ministers under Article 46 § 2 of the Convention for supervision of its execution. The Committee of Ministers repeatedly examined the case at its Human Rights and ordinary meetings between September 2020 and February 2022 (see paragraphs 70-81 below). At its 1423rd Human Rights meeting (2 February 2022), exercising its powers under Article 46 § 4 of the Convention and Rule 11 of its Rules for the supervision of the execution of judgments and of the terms of friendly settlements, the Committee adopted an Interim Resolution by which it decided to refer its question to the Court under Article 46 §   4 (CM/ResDH(2022)21 – see Annex). 3.     On 21 February 2022 the referral was filed with the Registrar by the Committee of Ministers in accordance with Rule 100 of the Rules of Court and subsequently allocated to the Grand Chamber of the Court, in accordance with Rule 101. 4.     The composition of the Grand Chamber was determined in accordance with Article 31 (b) of the Convention and Rule 24 of the Rules of Court. 5.     The Committee of Ministers, the Turkish Government (“the Government”) and Mr Kavala each submitted written comments (Rules 102 and 103 § 1). 6.     The Commissioner for Human Rights of the Council of Europe (“the Human Rights Commissioner”) submitted written comments (Rule 99 in fine , read together with Rule 44). 7.     Having deliberated in private on 8 April 2022, the Grand Chamber decided to dispense with a hearing (Rule 103 § 2). The Government and Mr   Kavala each submitted further written comments in response to the first round of written comments. THE FACTS the CIRCUMSTANCES OF the CASE Mehmet Osman Kavala and the events leading up to his pre-trial detention General overview 8 .     Mr Kavala, a businessman, is a human-rights defender in Türkiye. He has been involved in setting up numerous non-governmental organisations (“NGOs”) and civil-society movements which are active in the areas of human rights, culture, social studies, historical reconciliation and environmental protection (see Kavala , cited above, § 12). 9.     Mr Kavala was deprived of his liberty, without interruption, between 18 October 2017 and – at the least – 2 February 2022, the date on which the Committee of Ministers decided to refer the matter to the Court under Article   46 § 4 of the Convention. On the latter date, his pre-trial detention had lasted four years, three months and fourteen days. During the investigations and criminal proceedings instituted against him, orders for placement in pre ‑ trial detention were issued in respect of Mr Kavala on three occasions (1   October 2017, 19 February 2020 and 9 March 2020) and three orders were made for his release on bail (11 October 2019, 18 February 2020 and 20   March 2020). 10 .     Mr Kavala was initially suspected of having committed two offences: attempting to overthrow the Government through force and violence (Article   312 of the Criminal Code) and attempting to overthrow the constitutional order in the context of the failed coup attempt of 15   July 2016 (Article 309 of the Criminal Code). The first charge, under Article 312 of the Criminal Code, was related to the Gezi Park events. These events occurred between May and September 2013 and were marked by a series of demonstrations triggered by an urban development project which included the construction of a shopping centre on the site of Gezi Park. The protest movements were initially led by ecologists and local residents objecting to the destruction of the park. On 31 May 2013, however, the police intervened violently to remove the persons occupying the park. There were confrontations between the police and the demonstrators. The protest movement escalated in June and July and spread to several towns and cities in Türkiye, taking the form of meetings and demonstrations which sometimes led to violent clashes. Violent groups joined the demonstrators and committed acts of violence. Four civilians and two police officers were killed, and thousands of people were wounded (for further information about these events, see Kavala , cited above, §§   15-22). The second charge, under Article 309 of the Criminal Code, was related to the violent attempted coup of 15 July 2016, which led to the declaration of a state of emergency in Türkiye from 20 July 2016 to 18 July 2018 (for further information about these events, see Kavala , cited above, §§ 24-28). On 18 February 2020 Mr Kavala was acquitted of the charge related to the Gezi events. The decision to release him on bail, delivered on the same date, did not lead to his actual release. He was placed in police custody on the same date, and on the following day he was placed in pre-trial detention in relation to the attempted coup; his release was ordered on 20 March 2020. Since 9   March 2020, Mr Kavala has been held in pre-trial detention for military or political espionage, an offence listed in Article 328 of the Criminal Code. When the Committee of Ministers referred the question to the Court, Mr   Kavala’s pre-trial detention was based on this charge. 11 .     On 4 March 2022, after the Committee of Ministers had referred the question to the Court under Article 46 § 4 of the Convention, the prosecutor’s office made submissions to the Istanbul 13th Assize Court, requesting that Mr   Kavala be convicted of attempting to overthrow the Government through force and violence (Article 312 of the Criminal Code), primarily in the context of the Gezi Park events. On 25 April 2022 the Istanbul 13th Assize Court found Mr Kavala guilty of the charge under Article 312 of the Criminal Code and sentenced him to aggravated life imprisonment pursuant to that provision. In addition, it ordered that he continue to be held in pre-trial detention on that charge. It also decided to acquit him of the charge of military or political espionage (Article 328 of the Criminal Code) and ordered his release in connection with that particular charge. The criminal proceedings are still pending before the domestic courts. The relevant facts may be summarised as follows. Mr Kavala’s arrest and placement in pre-trial detention until the first charges were brought against him on 19 February 2019 12.     Following his arrest on 18 October 2017, under Articles 312 and 309 of the Criminal Code, Mr Kavala was questioned by the Istanbul police on 31 October 2017 about the Gezi Park events (see Kavala , cited above, § 29), his relations with journalists, academics, numerous human-rights defenders and members or heads of NGOs, and his alleged contacts with Professor H.J.B., a former director of the Wilson Center in the United States, suspected, in particular, of being one of the instigators of the attempted coup of 15 July 2016, and against whom a criminal investigation was pending in that connection. 13.     On 1 November 2017 the public prosecutor’s office called for Mr   Kavala to be placed in pre-trial detention on the charges under Articles   309 and 312 of the Criminal Code. To justify the suspicions against him with regard to the Gezi Park events, it argued that Mr Kavala had led and organised those events, which it described as an insurrection aimed at overthrowing the Government and preventing it, through force and violence, from exercising its functions. It stated that numerous terrorist organisations had played an active part in these events. To substantiate the charges against Mr Kavala concerning the attempted coup, it relied on evidence from the case file which, in its opinion, showed that Mr Kavala had had intensive and unusual contacts with foreign nationals and especially with H.J.B., whom the prosecutor’s office suspected of having been one of the instigators of the attempted coup and of having stayed at a hotel on Büyükada (Istanbul) on 15   July 2016. The prosecution’s argument was based, in particular, on reports from base transceiver stations indicating that on 18 July 2016 Mr Kavala’s mobile telephone and that of H.J.B. had emitted signals from the same station. 14 .     On 1 November 2017 the Istanbul Magistrate’s Court ordered that Mr   Kavala be placed in pre-trial detention (see Kavala , cited above, §   38). 15.     On 13 November 2017 the 2nd Istanbul Magistrate’s Court dismissed an objection lodged before it, on the grounds that the contested decision had been compatible with the procedure and the law (ibid., §§ 39-40). 16 .     From 1 November 2017, date of Mr Kavala’s initial placement in detention, to 4 March 2019, when the bill of indictment of 19 February 2019 based on Article 312 of the Criminal Code was accepted by the assize court (ibid., §§ 41-46), the magistrate’s courts examined the issue of the extension of Mr Kavala’s pre-trial detention on numerous occasions. In their decisions, they referred not only to the evidence relied on in the decision of 1   November 2017, but also to a report by the Financial Crimes Investigation Committee (“MASAK”). 17.     On 21 November and 3 December 2018, that is, before the bill of indictment of 19 February 2019 was lodged, the President of the Republic made two statements about the charges directed against Mr Kavala (these statements are reproduced in the above-cited Kavala judgment, § 61). The criminal proceedings against Mr Kavala (a)    The initial phase of the criminal proceedings before the Istanbul 30th Assize Court, until the delivery of the Kavala judgment 18 .     On 5 February 2019 the Istanbul prosecutor’s office decided to sever the criminal investigation into the charge under Article 309 of the Criminal Code from the investigation into the charge under Article 312 of the Criminal Code (investigation no. 2018/210299), and to investigate separately the first of these offences (investigation no. 2017/196115). 19.     On 19 February 2019 the Istanbul public prosecutor filed a bill of indictment in respect of Mr Kavala and 15 other suspects, including actors, NGO leaders and journalists. It accused them, in particular, of having attempted to overthrow the government by force and violence within the meaning of Article 312 of the Criminal Code, and of having committed numerous breaches of public order – damaging public property, profanation of places of worship and of cemeteries, unlawful possession of dangerous substances, looting, etc. (for more information on the content of the bill of indictment, see Kavala , cited above, §§ 47-55). These charges concerned the Gezi Park events. 20.     On 4 March 2019, the 30th Assize Court accepted the bill of indictment and agreed to Mr Kavala’s committal for trial. The trial process thus began. 21 .     On 11 October 2019 the Istanbul public prosecutor’s office ordered, of its own motion, that Mr Kavala was to be released on bail in the context of the criminal investigation into the charge under Article 309 of the Criminal Code (no. 2017/196115). It noted that Mr Kavala had been placed in pre-trial detention in relation to the investigation into the Gezi Park events and that to extend his detention for an offence defined in Article 309 would be disproportionate in view of the state of the evidence. However, that decision had no effect, on account of the decision of 1 November 2017 placing Mr   Kavala in pre-trial detention in relation to the offence under Article   312 of the Criminal Code (see paragraph 14 above). 22.     On 10 December 2019 the Court delivered its judgment in the Kavala case, finding that there had been a violation of Article 5 §§ 1 and 4 of the Convention, and of Article 18 taken together with Article 5 § 1, and instructed that Mr Kavala’s “immediate release” was to be secured (see Kavala , cited above, § 240). 23.     On 24 December 2019 and 28 January 2020, the Istanbul 30th Assize Court ordered, by a majority, that Mr Kavala’s pre-trial detention be maintained. (b)    The subsequent phase of the criminal proceedings, following delivery of the Kavala judgment (i)       Acquittal and release on bail 24 .     By a judgment dated 18 February 2020, the Istanbul 30th Assize Court acquitted Mr Kavala on the charge of attempting to overthrow the government (Article 312 of the Criminal Code) and ordered that he be released on bail. In its reasoning, it noted, firstly, that the transcripts of telephone conversations that had been added to the case file were not legally valid evidence (“ hukuka uygun delil ”), and, secondly, that there was no evidence to establish that Mr Kavala had financed the Gezi Park events and that the materials he had provided had been used for violent purposes. In this connection, it noted, firstly, that the prosecution witness (see Kavala , cited above, §§ 36, 62, 147 and 148) had not referred to any concrete facts, secondly, that none of the other witnesses heard during the proceedings had made incriminatory statements and, thirdly, that the MASAK report (see paragraph 16 above; ibid., §§ 44 and 227) had not brought to light any activity capable of substantiating the charge that the defendant had provided financial support to the demonstrators. It found, in particular, that there was no legal, concrete and conclusive evidence to indicate that Mr Kavala had committed the alleged offence, within the meaning of Article 312 of the Criminal Code. It concluded that there was insufficient evidence to establish Mr Kavala’s guilt. (ii)     Return to pre-trial detention 25 .     Still on 18 February 2020, following the decision to release Mr   Kavala on bail, the Istanbul public prosecutor issued an arrest warrant and requested that Mr Kavala be returned to pre-trial detention in the context of investigation no. 2017/196115 (attempt to overthrow the constitutional order, Article 309 of the Criminal Code), which had been severed from the initial investigation (see paragraph 18 above). He therefore asked the Istanbul Magistrate’s Court to order that Mr Kavala be placed in pre-trial detention. In support of his request, he argued that H.J.B., who was under criminal investigation for the attempted coup and against whom an arrest warrant had been issued, had, firstly, been a member in the United States of the management board of the Rumi Foundation, whose honorary president was Fetullah Gülen, leader of the FETÖ/PDY (an organisation described by the Turkish authorities as FETÖ/PDY - “Fetullahist Terror Organisation/Parallel State Structure”-), and, secondly, had conducted lobbying activities in favour of the same Fetullah Gülen. According to the prosecutor’s office, H.J.B. had arrived in Istanbul on the morning of 15 July 2016 and had stayed in a hotel in the Büyükada district. On 18 July 2016 he had supposedly met Mr Kavala in a restaurant in the Karaköy district of Istanbul and had then left the country that same day. In addition, communications analysis showed that Mr Kavala and H.J.B. had been in very frequent contact before and after 15 July 2016, that they had met on 27 June 2016 in Mr Kavala’s office in Şişli (Istanbul), and that on 30 June 2016, in Diyarbakır, they had met persons who had a link with the PKK (Workers’ Party of Kurdistan, an armed terrorist organisation). These elements had justified the charge, brought against Mr Kavala, of participation in the decision-making process which led to the attempted coup. 26.     Still on 18 February 2020, although his release on bail had just been ordered by the 30th Istanbul Assize Court (see paragraph 24 above), Mr   Kavala was arrested and placed in police custody in the premises of the Istanbul police. 27 .     On 19 February 2020 the Istanbul 8th Magistrate’s Court heard Mr   Kavala. He submitted that the prosecutor’s request was based on charges which had already been examined by the Court, which, in its judgment of 10   December 2019, had concluded that there were no reasonable grounds to suspect that Mr Kavala had committed the offences with which he had been charged. He also argued that there was no evidence suggesting that he had had numerous contacts with H.J.B. Lastly, he noted that the maximum duration of pre-trial detention during the criminal investigation phase, set at two years under Article 102 § 4 of the Code of Criminal Procedure, as amended on 17 October 2019, had already been exceeded. 28.     On 19 February 2020 the Istanbul 8th Magistrate’s Court ordered that Mr Kavala be returned to pre-trial detention under Article 309 of the Criminal Code, although the prosecutor’s office had already ordered, on 11   October 2019, that he be released on bail (see paragraph 21 above). Relying on the evidence cited by the public prosecutor in his request for placement in pre ‑ trial detention (see paragraph 25 above), it noted that there existed concrete evidence suggesting that Mr Kavala had committed the offence of which he was accused. It also considered that there existed a risk that he would abscond, given the seriousness of the charges and the fact that the alleged offence was among the so-called “catalogue” offences. It concluded that a judicial supervision measure would be insufficient. 29.     Still on 19 February 2020, according to the information transmitted by the Committee of Ministers, the Council of Judges and Prosecutors began a preliminary examination to determine whether there were grounds for opening disciplinary investigations in respect of the three judges of the Istanbul 30th Assize Court who had delivered the acquittal judgment concerning the charges under Article 312 of the Criminal Code. The case file contains no information about the outcome of that examination. 30.     On 25 February 2020 Mr Kavala’s objection was dismissed. 31 .     On 9 March 2020 the Istanbul public prosecutor’s office requested that Mr Kavala be placed in pre-trial detention on charges of military or political espionage (Article 328 of the Criminal Code). In support of its request, it argued that additional research conducted in respect of H.J.B. had uncovered evidence suggesting that he was carrying out espionage activities for foreign States. In this connection, it noted, as in the request for the initial pre-trial detention of 18 February 2019 (see paragraph 25 above), that H.J.B., firstly, had been a member in the United States of the management board of the Rumi Foundation, whose honorary president was Fetullah Gülen, and, secondly, had conducted lobbying activities in support of the latter individual. According to the prosecutor’s office, H.J.B had arrived in Istanbul on the morning of 15 July 2016 and stayed in a hotel in Büyükada, Istanbul, using the pretext of his participation in an international meeting to dissimulate the true purpose of his visit. Participants in this meeting, which purportedly concerned the problems then facing the Middle East, had stated that H.J.B. was present and that the attempted coup had begun that day, during the meeting. A member of the hotel staff, questioned as a witness, had stated that H.J.B. was abnormally tense and anxious. This evidence showed that H.J.B.’s participation at the meeting in question had been a means of hiding his links to the perpetrators of the attempted coup. Furthermore, this witness stated that H.J.B. had talked with him and confided that, each time that he came to Türkiye, extraordinary events took place. During that conversation, the hotel employee had also asked H.J.B. about the attempted coup, and the latter had attempted to hide his participation by replying “it’s a game, a false coup, I don’t think that such a thing is happening”. Moreover, the communications analysis report had revealed the existence of a link between H.J.B. and Mr   Kavala, and it had been established that H.J.B and Mr Kavala had used telephone numbers registered in their respective names when contacting each other. Their respective mobile telephones had emitted signals from the same base transceiver station on 29 November 2014, as well as on 1, 3 and 5   June 2015 and on 7 and 9 March, 28 and 29 June and 18 July 2016, which showed that they also met in person for discussions. Mr Kavala’s statements indicated that he and H.J.B. had met in a restaurant on 18 July 2016, that is, after the attempted coup. In addition, the witness statement and the communications data proved that a relationship existed between H.J.B and Mr   Kavala. Investigations into this relationship were still ongoing. For these reasons, the prosecutor’s office concluded that there was evidence to suggest that Mr   Kavala was guilty of military or political espionage. 32.     On the same date the magistrate’s court heard Mr Kavala. He stated, among other points, that the base receiver station in question covered a large central zone in which numerous hotels and his office were located, and that it was completely normal that his mobile telephone, and that of H.J.B., had emitted signals from the same station. He further stated that he had not taken part in the meeting held on 15 July 2016, while specifying that it had been a legal meeting in which certain civil servants had also participated. He considered it abnormal that, two years after his placement in pre-trial detention on charges of attempting to overthrow the constitutional order, he was being accused of espionage on the basis of the same facts. Lastly, he submitted that there was no prima facie evidence against him concerning the offence in question, and that the purpose of the request was to circumvent the Court’s judgment. 33 .     Again on 9 March 2020, the 10th Magistrate’s Court ordered that Mr   Kavala be returned to pre-trial detention in relation to the offence of military or political espionage. In support of its decision, it referred to the evidence mentioned in the prosecution request (see paragraph 31 above). It considered that there was concrete evidence which could justify the suspicions against Mr Kavala. It also held that the detention measure was proportionate, having regard to the seriousness of the offence and the severity of the possible sentence. 34 .     On 20 March 2020 the magistrate’s court ordered that Mr Kavala be released on bail in the context of investigation no. 2017/196115 (Article   309 of the Criminal Code), on the grounds that he had been held in pre-trial detention for more than two years without having been charged in that respect. The relevant parts of the investigating judge’s decision read as follows: “Having regard to the existing reports, the statements made by the suspect and witnesses, the relevant reports and the case file as a whole, certain evidence gives rise to strong suspicion against [Mr Kavala] of attempting to overthrow the constitutional order. However, the suspect has been detained for more than two years in connection with this offence. For this type of offence, Article 102   §   4 of the CCP lays down that the maximum length of detention on remand during the criminal investigation phase is two years. Given that the suspect is in detention in relation to another offence, and that the evidence has been collected, in the absence of a risk that the suspect will tamper with the evidence and in view of the time that he has spent in detention, it is considered that a measure of pre-trial detention would be severe. In consequence, it has been decided to accept the opinion from the Istanbul general prosecutor’s office regarding the suspect’s release on bail in relation to the offence of attempting to overthrow the constitutional order, and to instruct, with immediate effect, that [Mr Kavala] be released on bail, unless he has been detained or convicted in connection with another offence...” However, this decision had no effect, on account of the decision of 9   March 2020 placing Mr Kavala in pre-trial detention in relation to the charge of military or political espionage (see paragraph 33 above). 35.     The magistrate’s courts re-examined Mr Kavala’s pre-trial detention on 27 March, 1 April, 7 April, 13 April, 6 May, 4 June, 29 July and 17   August 2020, either of their own motion or at his request, and on each occasion they ordered his continued detention. In support of their decision, they referred on each occasion to the existence of concrete evidence, the nature of the offence of which he was accused and the state of the evidence. They also referred to the likelihood that he would abscond and concluded that judicial supervision measures would be insufficient. (iii)    The criminal proceedings before the Istanbul 36th Assize Court (α)      The indictment of 28 September 2020 36 .     On 28 September 2020 the Istanbul prosecutor’s office issued an indictment against Mr Kavala in respect of charges of attempting to overthrow the constitutional order (Article 309 of the Criminal Code) and military or political espionage (Article 328 of the Criminal Code). In this indictment, the prosecutor’s office set out the charges against Mr   Kavala. It argued that on 8 October 2016 [1] Mr Kavala had had telephone conversations with H.J.B., the content of which was unknown. Their respective mobile telephones had allegedly emitted signals from the same base receiver station. In addition, Mr Kavala and H.J.B. had dined together in a restaurant on 18 July 2016, after the attempted coup. Mr Kavala had also carried out multiple visits abroad, at a more frequent pace than in the preceding years. He had founded and provided financial support to NGOs, under the guise of lawfulness but for illegal purposes, with a view to taking the pulse of society. During the Gezi Park events, Mr Kavala and H.J.B. had attempted to provide the left-wing terrorist organisations with an environment that was conducive to violence, by mobilising cells infiltrated into the NGOs. In Türkiye, Mr Kavala had collaborated with H.J.B., who had maintained an organic link with foreign intelligence services. With regard to the offence of espionage, the prosecutor’s office also submitted that the spying activities were not limited to gathering and analysing confidential information, but that they also consisted in exploiting, with the help of the security services of numerous States, civil society actors, with a view to exercising economic, cultural, ideological and military pressure on these States and bringing about social engineering through activities conducted by NGOs in receipt of foreign funding. It alleged that in many countries retired officials from the intelligence services participated in think tanks and carried out social, cultural and political research which was subsequently submitted to the secret services. The prosecutor’s office pointed out that Mr Kavala was the representative of the Open Society Institute, an entity set up by G.S., an American businessman who was also one of the founders of the Foundation for an Open Society in Türkiye. It submitted that in 2002 Mr Kavala had founded Anadolu Kültür , a non-profit-making association, in order to control his illegal activities in Türkiye. It concluded from a report, prepared on 16 October 2018 by the Directorate General for Foundations, that Mr Kavala conducted projects through funds provided by the Foundation for an Open Society. In addition to analysing, for the purpose of espionage, the social and cultural features of Turkish society, the projects in question were intended to incite Turkish citizens to hatred and hostility on the grounds of a distinction based on their connection with a language, race, relation, sect or region. It considered that the aim of the Foundation for an Open Society was to overthrow the government by encouraging division within society. The prosecutor’s office also argued that the non-profit association and the other NGOs founded or led by Mr Kavala had carried out extensive research on the characteristics of the Turkish people, and that the aim of this research was to foster division, influence governments and make contact with the authorities of foreign States and international organisations. Again according to the prosecution, these activities, on the pretext of protecting freedoms, were in fact intended, under the supervision of the secret services, to overthrow the legitimate government. In this context, Mr   Kavala had wished to create pockets of resistance in society, by conducting activities with the proclaimed aims of upholding women’s rights, protecting children from abuse, combatting violence against women, integrating minorities, and promoting freedom of expression and environmental protection. In so doing, he was attempting to group independent entities around these projects, with the aim of encouraging them, when the time came, to take part in mass demonstrations against the government. The prosecutor’s office argued that Mr Kavala had also funded, through his association Anadolu Kültür , many projects and documentary films on the origins of Turkish citizens, with the aim, firstly, of disseminating the belief that the Turkish State was assassinating citizens of Kurdish origin or subjecting them to serious human-rights violations, and, secondly, of provoking sympathy with regard to the PKK and its allies. In this connection, it referred to a series of reports and documentaries on the women’s section of the PKK, the situation of children in the south-east of Türkiye, the burning of villages and forced migration of populations, commemoration of the events in 1915 which had strongly affected the Armenian population, and the allegations of human-rights violations after the attempted coup, asserting that these reports and documentaries had been funded or supported by Mr Kavala or that they had been found on his smartphone or on the digital media found in his office. The prosecutor’s office also argued that during his visits to Germany Mr   Kavala had met C.D., a journalist who lived in that country and had been convicted in Türkiye of disclosing classified documents (espionage), and that they had communicated with each other on numerous occasions via WhatsApp. It also argued that Mr Kavala had played an active role at the preparatory stage of the attempted coup. In support of that allegation, it cited the evidence set out below and concluded that H.J.B.’s activities coincided with the preparations for the attempted coup to an extent that was not “consistent with the normal course of life”. It mentioned various trips that H.J.B. had made to Türkiye or different towns in Türkiye, and that Mr Kavala had made to foreign countries before the attempted coup. It also argued that H.J.B. had stayed in Istanbul from 7 to 9 March 2016 and that, during this period, his mobile telephone and that of Mr Kavala had on numerous occasions emitted signals from the same base receiver station. It claimed that on 8 October 2016 H.J.B had had three telephone conversations with Mr Kavala, which had lasted 28 seconds, 36 seconds and 193 seconds respectively. H.J.B. had travelled twice to Türkiye and during his stays, his and Mr Kavala’s mobile telephones had emitted signals from the same base receiver station, in two districts of Istanbul – Şişli, where Mr Kavala’s office is located, and Fatih. In 2015 and 2016 the two men’s mobile telephones had also emitted signals from the same base receiver station, located in Şişli, on numerous occasions. Mr Kavala and H.J.B had allegedly met on 18 July 2016 in a restaurant. In addition, Mr Kavala had allegedly travelled to Germany from 11 to 14   November 2015. A.Ö., who was accused of being one of the instigators of the attempted coup and of having acted on instructions from Fetullah Gülen, had travelled to the United States on 14 November 2015. The prosecutor’s office also argued that Mr Kavala had used another mobile telephone for two and a half months in 2015, that is, the year in which elections were held and the PKK had declared autonomy in the south-east of Türkiye. However, it noted that it had proved impossible to find this telephone and that Mr Kavala had used other telephone numbers in Germany. The prosecution further submitted that Mr Kavala had exchanged emails with A.V., the content of which had not been recovered. It claimed that A.V., who had participated in the meeting on Büyükada on 15 July 2016, was a member of a Brussels-based think tank founded by, among others, G.S. and a former ambassador, and that the latter [2] had facilitated Fetullah Gülen in obtaining a residence permit in the United States. The prosecutor’s office concluded from this evidence that Mr Kavala and H.J.B. had been informed in advance about the attempted coup and had established, in Türkiye and abroad, a network of contacts with the aim of creating the infrastructure for the attempted coup. It also considered that although it had been possible to bring to light only a limited number of direct exchanges between H.J.B and Mr Kavala, this was because H.J.B. was highly skilled in the tactics and procedures used by the secret services. The prosecution also argued that on 6 November 2015 G.S. had come to Türkiye and had met Mr Kavala, who had taken a photograph of him with I.A. According to the prosecutor’s office, I.A., a businessman, was close to Mr   Kavala, and was a representative of the Open Society Foundation in Türkiye and co-founder of the Foundation for an Open Society; he too had allegedly assisted Fetullah Gülen in obtaining his residence permit. Relying on the evidence set out above, the prosecutor’s office concluded that Mr Kavala and H.J.B. had committed the offences set out in Articles   309 and 328 of the Criminal Code. 37 .     On 8 October 2020 the 36th assize court granted the indictment. It dismissed the request for Mr Kavala’s release on bail and ordered that he remain in custody. (β)       Mr Kavala’s continued pre-trial detention 38.     On 6 November 2020 the 36th Assize Court dismissed the request for Mr   Kavala’s release on bail and ordered that he remain in custody. 39.     At the hearing of 18 December 2020, it heard Mr Kavala speak in his defence and questioned certain witnesses. It ordered that his pre-trial detention be extended, on the grounds that there was concrete evidence that could justify his detention. It also stated that not all the evidence had been gathered and that other witnesses had yet to be questioned. Lastly, it held that there was a risk of tampering with evidence and absconding, and that judicial supervision measures would be insufficient. 40.     On several occasions the Istanbul 36th Assize Court ordered that Mr   Kavala be kept in pre-trial detention, essentially reproducing the grounds on which its previous decisions had been based. (iv)   The quashing of the acquittal judgment 41.     On 22 January 2021, as the prosecutor’s office had lodged an objection to the acquittal judgment delivered on 18 February 2020 with regard to the charge under Article 312 of the Criminal Code (see paragraph   24 above), the 3rd Regional Court of Appeal quashed the judgment in question and remitted the case to the Istanbul 30th Assize Court. (v)     The proceedings before the 36th Assize Court and the closure of the proceedings before it 42.     On 5 February 2021 the Istanbul 36th Assize Court held a hearing, at the close of which it ordered that Mr Kavala’s pre-trial detention be extended. It also took note of the regional court of appeal’s judgment setting aside the assize court’s acquittal judgment and decided to join the criminal proceedings pending before it to the proceedings which were pending before the Istanbul 30th Assize Court, and to send the case file to that court. Thus, the criminal proceedings before the Istanbul 36th Assize Court were closed. (vi)   The quashing of an acquittal judgment in the Çarşı   proceedings 43 .     On 28 April 2021 the Court of Cassation set aside an acquittal judgment delivered by the Istanbul 13th Assize Court on 29 December 2015 in proceedings referred to as the “ Çarşı proceedings” (“the Çarşı proceedings”), with reference to a group of supporters of the Beşiktaş football team. In those proceedings, which had been opened on 11 September 2014, thirty-five persons (Mr Kavala was not one of their number) were accused, among other charges, of attempting to overthrow the government by force and violence in the context of the Gezi Park events (Article 312 of the Criminal Code). All had been acquitted on 29 December 2015. Also on 28   April 2021, the Court of Cassation requested that those proceedings be joined to those opened before the 30th Assize Court. (vii)   The proceedings before the Istanbul 30th Assize Court and the closure of the proceedings before it 44 .     On 5 March 2021 the Istanbul 30th Assize Court ordered, by a majority, that Mr Kavala’s pre-trial detention was to be extended, relying on the same grounds as those it had used in its previous decisions. 45.     At a hearing on 29 April 2021, it again ordered, by a majority, that Mr   Kavala was to remain in pre-trial detention. 46.     On 21 May 2021, after its judgment had been set aside by the regional court of appeal, a hearing was held, at the close of which it ordered, by two votes to one, an extension of Mr Kavala’s pre-trial detention in relation to the charge of political or military espionage. In reaching this decision, it began by scrutinising the judgment delivered by the Court in the Kavala case, noting that the violation found by the Court resulted from Mr Kavala’s detention in connection with the charges under Articles 309 and 312 of the Criminal Code. It noted that the measure in question had ended on 18 February and 20   March 2020 respectively. It also noted that Mr Kavala was in pre-trial detention in relation to a new charge, namely political or military espionage within the meaning of Article 328 of the Criminal Code, which had not been examined by the Court. In addition, it decided to obtain the file of the Çarşı proceedings (see paragraph 43 above), which was pending before the Istanbul 13th Assize Court, in order to assess whether it was appropriate to join the two sets of proceedings, in line with the request from the Court of Cassation. 47.     On 2 August 2021 the Istanbul 30th Assize Court held an audience and decided, by a majority, to join the proceedings before it to those which were pending before the Istanbul 13th Assi