Politically Motivated Detention and Article 3 ECHR: What Did Kavala v. Türkiye (No. 2) Leave Unanswered?

[Natalia Kubesch is a Legal Advisor at REDRESS and UK-qualified solicitor. She holds an LL.M. in International Law from the University of Cambridge and an MSc in Human Rights from the London School of Economics and Political Science.

Chris Esdaile is a Senior Legal Advisor at REDRESS and a UK-qualified solicitor. He has an LLM in International Human Rights Law at Queen Mary, University of London.

Hannah Bottarel is a summer legal fellow at REDRESS and a current student at Stanford Law School. At Stanford, she runs the immigration and prisoner legal services pro bono projects and works as a research assistant for Lucas Guttentag.]

The authors of this post work at REDRESS, which intervened in the case before the Grand Chamber.

For nearly nine years, Turkish human rights defender Osman Kavala has remained detained in Türkiye despite an acquittal (in the domestic courts) and two European Court of Human Rights (ECtHR) judgments finding his detention unlawful and politically motivated. In Kavala v Türkiye (No. 2) the Grand Chamber has again strongly condemned his imprisonment, describing the case as one of “exceptional gravity” and finding a number of violations of the European Convention on Human Rights (ECHR). The landmark judgment exposes a systemic problem in Türkiye involving the detention and prosecution of political opponents, human rights defenders and journalists.

However, it has left a critical question unresolved: can the severe psychological suffering caused by prolonged, arbitrary detention (inflicted for a deliberate purpose) itself amount to torture or other ill-treatment under Article 3 ECHR? This question matters beyond Mr Kavala’s case. Where detention is used to silence dissent, the arbitrariness of the detention will likely cause profound suffering reinforcing the relevance for assessment under Article 3.

REDRESS intervened on this issue before the Grand Chamber. This post outlines the arguments it advanced and explains why the Grand Chamber’s refusal to engage with them represents a missed opportunity to strengthen Article 3 protections for victims of arbitrary detention. 

The Grand Chamber’s Findings

Osman Kavala, a prominent Turkish human rights defender, has been deprived of his liberty since 2017 in connection with the Gezi Park events in 2013, and an alleged coup attempt in 2016. In its 2019 judgment, the ECtHR found his detention arbitrary and pursued for an ulterior purpose and indicated that Türkiye should take measures to secure his release. In 2022, the ECtHR found that Türkiye had failed to comply with the 2019 judgment because Kavala remained detained.  He subsequently brought a second application challenging the continuation of his detention. Given the significance of the issues raised, the case was referred to the Grand Chamber in December 2025.

In its judgment of 25th August 2026, the Grand Chamber reaffirmed that Mr Kavala’s deprivation of liberty since 10 December 2019 violated Articles 3, 5, 6, 10, 11 and 18 of the ECHR.

Under Article 5, the Grand Chamber held that his detention between December 2019 and April 2022 was arbitrary, lacked any reasonable basis and was maintained in bad faith through successive attempts to circumvent domestic safeguards and the Court’s earlier judgment (§§238-240). It further found that his post-conviction detention could not be regarded as “lawful” because it resulted from proceedings involving a flagrant denial of justice (§§247-248). The Chamber concluded that the measures taken against Mr Kavala formed part of a broader effort to ensure his continued detention despite previous findings that his detention was unlawful and politically motivated.

It also found a violation of Article 18, taken together with Articles 5, 6, 10, and 11, concluding that the measures imposed on Mr Kavala were predominantly motivated by an ulterior purpose: to punish him for his role in the Gezi Park demonstrations, to sanction his activities as a human rights defender, and to silence him. More broadly, the Grand Chamber characterised the case as emblematic of the political prosecution of political opponents, journalists and human rights defenders in Türkiye and the instrumentalisation of the criminal law to neutralise the authority of judicial decisions at both domestic and international level (§§276-279). 

Describing the circumstances as of “exceptional gravity”, the Grand Chamber emphasised the extraordinary duration of Mr Kavala’s detention, its continuation despite an acquittal and two ECtHR judgments, and the profound challenge this posed to the rule of law. It further highlighted the prolonged uncertainty and exclusion from public life to which he had been subjected (§§276-277). 

The Grand Chamber additionally found that Mr Kavala’s aggravated life sentence violated Article 3 because it offered no realistic prospect of release or review (§§288-289). Given the seriousness of the violations, the Grand Chamber ordered Mr Kavala’s release and declared his conviction null and void under Convention law (§§308-309).

The Article 3 Question Before the Court  

Important as these findings are, REDRESS’s intervention on Article 3 invited the Court to go further: to consider the cumulative impact of years of arbitrary detention maintained in defiance of binding judgments ordering Mr Kavala’s release, and whether this may itself engage Article 3. REDRESS argued (1) that such prolonged arbitrary detention may itself amount to torture or other ill-treatment and (2) that States may breach their positive obligations under Article 3 (for example, the obligation to prevent torture) when they refuse to implement judgments requiring the release of arbitrarily detained individuals. 

The Grand Chamber declined to consider either issue, deeming it “not necessary”. It reasoned that the lawfulness and arbitrariness of Mr Kavala’s deprivation of liberty, including the broader context in which it had been imposed, had already been examined in detail under Article 5(1), while the consequences of his detention had been sufficiently addressed under Article 18.  

The Court’s Narrow Approach to Article 3

The Grand Chamber found an Article 3 violation only because Mr Kavala’s aggravated life sentence offered no realistic prospect of release or meaningful review (§§288-289). This was despite its own findings under Articles 5 and 18 that the detention lacked any plausible legal basis, was exceptionally prolonged, and was sustained through repeated circumvention of judicial safeguards. The Grand Chamber also acknowledged the profound uncertainty surrounding Mr Kavala’s future and the significant impact of the detention on his life (§277), but did not examine whether those factors cumulatively caused suffering severe enough to constitute torture or ill-treatment under Article 3.

Prolonged arbitrary detention entails more than a loss of liberty. It may place an individual in a condition of extreme uncertainty, despair, and powerlessness, with no meaningful ability to understand, predict or influence their situation. Where authorities deliberately perpetuate that loss of liberty through arbitrary decision-making and the manipulation of legal processes, the resulting psychological suffering may cross the Article 3 threshold. 

A Missed Opportunity For the Development of International Human Rights Law

The Grand Chamber did not engage with a growing body of international jurisprudence recognising that prolonged arbitrary detention may, in certain circumstances, amount to torture or other ill-treatment. International human rights bodies have increasingly acknowledged that severe mental suffering may arise from sustained institutional arbitrariness. The UN Human Rights Committee has accepted that detention characterised by arbitrariness, indefinite duration, legal uncertainty and inadequate procedural safeguards can inflict serious psychological harm engaging the prohibition of torture and ill-treatment (see, for example, here and here). 

Similarly, in his 2020 report on psychological torture, then UN Special Rapporteur on Torture, Nils Melzer, explained that prolonged exposure to uncertainty and judicial arbitrariness may cause chronic anxiety, hopelessness, and lasting trauma. The report recognised that the deliberate instrumentalisation of arbitrary detention and related judicial or administrative arbitrariness may therefore constitute, or contribute to, psychological torture.

This does not mean that every arbitrary detention violates Article 3. It does, however, reflect an evolving consensus that prolonged arbitrary detention may inflict suffering of the required severity. Mr Kavala’s case provided a compelling opportunity for the Court to examine this point.

Non-compliance with ECtHR Judgments and Article 3

The judgment also leaves open whether a State’s persistent refusal to implement ECtHR judgments ordering an applicant’s release may engage Article 3. This issue was central to Mr Kavala’s case. The Grand Chamber repeatedly emphasised that his detention continued despite binding ECtHR judgments and characterised the situation as a particularly serious challenge to the rule of law (§276). Yet it did not consider this continued non-compliance as part of its Article 3 analysis.

Article 3 imposes obligations on States to prevent torture and ill-treatment and provide effective remedies to victims. In some circumstances, such meaningful protection may require implementation of a judicial decision intended to bring an ongoing violation to an end. This finds support in international jurisprudence. For example, in Assanidze v. Georgia, the ECtHR held that a judgment finding a Convention violation obliges the respondent State to put an end to that violation and remedy its consequences (§198). Similarly, in Guachalá Chimbo et al. v. Ecuador, the Inter-American Court of Human Rights stressed that compliance with judicial decisions is integral to access to justice and effective judicial protection, and that those guarantees become illusory if decisions remain ineffective (§210).

Against this backdrop, Mr Kavala’s case presented an opportunity to clarify whether a State’s refusal to implement a binding judgment ordering release engages Article 3 because it undermines effective judicial protection and knowingly prolongs the foreseeable risk of severe suffering arising from continued arbitrary detention. Recognising that connection would strengthen protection for victims of arbitrary detention, while reinforcing the authority of the Court’s judgments.  

Conclusion

The Grand Chamber’s judgment is an important and powerful condemnation of Türkiye’s use of arbitrary detention to silence dissent. Yet the Grand Chamber stopped short of addressing whether the suffering caused by politically motivated, arbitrary detention maintained in defiance of its judgments may itself amount to torture or ill-treatment under Article 3 ECHR. As governments worldwide increasingly rely on arbitrary detention to suppress dissent, Kavala offered the Grand Chamber a chance to clarify this issue, which remains, for now, an open question.