By Can Öztaş
In Pirates of the Caribbean, cornered by the Black Pearl, Elizabeth Swann invokes “parley” under the Pirata Codex. Barbossa, with the convenience of a man who commands the only ship in sight, decides the Code is not quite law. Closer, he explains, to guidance.
After the Grand Chamber of the European Court of Human Rights (ECHR) latest judgment in Osman Kavala's case, Turkey is relitigating that same distinction, minus the rum.
On Aug. 25, by fifteen judges to two, the Grand Chamber ordered Turkey to secure Kavala's release at the earliest possible date, undo the consequences of everything done to him since, and treat his conviction as null and void.
Ankara responded quickly, through a presidential adviser rather than the government itself, repeating the familiar arguments: Strasbourg is not a superior court of appeal, and an international judgment cannot erase the judgment of a national court. The novelty was the threat attached. If the court continued in this vein, Turkey might reconsider its membership of the convention, and the right of individual petition with it. The two arguments sit oddly together. A judgment that binds nobody rarely requires an exit strategy.
Turkey signed and ratified the European Convention on Human Rights, and there is no small print to hide behind. Article 46 is clear: states undertake to abide by the court's final judgments. A Grand Chamber judgment is final by definition.
EUROPE WITHOUT A SUPREME COURT
The ECHR is not a supreme court, and Europe offers no single constitutional route for giving its judgments effect. France ranks treaties above ordinary law but below its constitution. Germany gives the convention the status of federal legislation. Britain absorbed convention rights into the Human Rights Act while preserving parliamentary sovereignty.
The system has survived this disorder for seventy years, proof that order and tidiness were never quite the same project.
In the Görgülü case, Germany's Federal Constitutional Court defended its own autonomy and confirmed that Strasbourg cannot quash a German ruling directly. It added that German authorities remain bound by judgments against Germany and that an ongoing violation must be ended.
Britain supplied the more theatrical version. It resisted the Strasbourg ruling on prisoner voting in Hirst for over a decade: governments objected, parliament postured, compliance arrived at the pace of continental drift, and administrative tweaks were eventually pronounced sufficient. The Committee of Ministers closed the file in 2018.
Both cases make the same point. Strasbourg is not a superior court. Its verdicts are nevertheless not opinions. Disagreement, delay and breach are one thing. The absence of an obligation is quite another. The ability to break a rule has never been especially persuasive evidence that the rule does not exist.
THE ROUTE AND THE DESTINATION
International law generally lets states choose their own route to compliance. Strasbourg follows the same principle in the execution of its judgments. A state may amend legislation, reopen proceedings, adjust administrative practice, pay compensation or take individual measures. The route belongs to the state. The destination does not.
Turkey's own constitution complicates the sovereignty argument further. Article 90 gives ratified international agreements the force of law and, where a fundamental-rights treaty conflicts with ordinary legislation, gives the treaty priority. Convention law is not an external visitor occasionally knocking at the door of the Turkish legal order. Turkey let it in and gave it a key.
Kavala's case has already tested this. Strasbourg ordered his release in 2019. In 2022, after the rarely used infringement procedure, the Grand Chamber found that Turkey had failed to abide by that judgment. The proceedings continued regardless and ended in an aggravated life sentence. August's ruling is the third Strasbourg judgment in the same chain, and again requires his release.
This leaves little room for the claim that domestic reconsideration, on its own, amounts to execution. A national court keeps its place in the domestic order. What it cannot do is convert the freedom to choose its means into the freedom to keep the result Strasbourg has ordered undone.
Which brings us back to Barbossa. His dismissal of the Code works beautifully while Elizabeth is his prisoner and he commands the only ship in sight. But he does not stay outside the Code forever. He cannot. Later, in At World's End, with the Brethren Court divided over its powers, it is Barbossa who sends for Captain Teague, Keeper of the Code. The great Pirata Codex is carried into the chamber and opened.
The irony does not whisper. The pirate who once called the Code mere guidance now stands before it and waits, like everyone else, for it to rule.
