The İstanbul 13th Assize Court on Tuesday unanimously rejected applications to suspend Osman Kavala’s sentence, release him and reopen his trial, and ordered that he continue serving aggravated life imprisonment.

It is the same court that convicted him on 25 April 2022.

On 25 August the Grand Chamber of the European Court of Human Rights held, by 15 votes to 2, that Türkiye must secure Kavala’s release at the earliest possible date and eliminate the consequences of his conviction, which it said was to be regarded under Convention law as null and void. The judgment is final.

The Grand Chamber found violations of Articles 10 and 11, of Article 6 § 1 as regards the independence and impartiality of the courts, the fairness of the proceedings and the rights of the defence, of Article 5 § 1, of Article 18 taken together with Articles 5 § 1, 6 § 1, 10 and 11, and of Article 3 on account of the absence of any review mechanism for an aggravated life sentence.

It held that his conviction rested on a flagrant denial of justice, that the measures against him were predominantly motivated by the ulterior purpose of punishing and silencing him for his role in the Gezi Park protests and his work as a human rights defender, and that the case illustrates a systemic problem. The violations, it said, revealed structural shortcomings in the guarantees of judicial independence that are likely to facilitate direct or indirect influence by the executive over decisions in politically sensitive cases.

In refusing the application, the İstanbul court said that the European Court is not an appeals court standing above Türkiye’s judiciary, that the assessment of evidence is a matter for domestic courts, and that domestic remedies had not been exhausted. The prosecutor’s office had urged rejection on the last ground, citing Kavala’s pending application to the Constitutional Court.

The Grand Chamber had already dealt with that argument. It expressly dispensed Kavala from awaiting the Constitutional Court, having regard to his continuous detention since October 2017, his consistent and unsuccessful use of every domestic remedy, the persistent failure to execute the Court’s judgments, and the excessive time taken over his pending applications.

The retrial application was made by his lawyer Ahmet Köksal Bayraktar under Article 311 of the Code of Criminal Procedure, which provides for reopening proceedings where a final judgment of the European Court finds that a conviction breached the Convention. An objection may be lodged with the İstanbul 14th Assize Court within two weeks of notification.

The refusal came one day before a deadline. In September the Committee of Ministers of the Council of Europe required Türkiye to explain, by 14 October, what concrete steps it had taken or planned in order to secure Kavala’s release. It restated that member states are under an unconditional obligation to comply with the Court’s judgments, and said it would consider further action at its December meeting.

Kavala, 68, has been in prison without interruption since 18 October 2017. He was acquitted in February 2020 and detained again before he could leave the prison. That acquittal was overturned. His conviction was upheld on appeal in December 2022 and by the Court of Cassation in September 2023.

The Court first ordered his release in December 2019. Türkiye’s refusal to comply led the Committee of Ministers to begin infringement proceedings under Article 46 § 4 — the only time this has been done against any state — and in July 2022 the Court held that Türkiye had failed to fulfil its obligation.

Three binding judgments now say he should be at liberty. The question put to the court this week was not whether he is guilty. It was whether the judgments would be applied.