Case Summary and Outcome

The Turkish Constitutional Court held that the right to life had not been violated by Turkey’s inability to effectively investigate and prosecute those responsible for Saudi journalist Jamal Khashoggi’s murder. Khashoggi had left the Kingdom of Saudi Arabia due to his views opposing its government and he was killed at the Saudi Arabian Consulate General in Istanbul. The Saudi Arabian Public Prosecutor’s Office, in a press statement, indicated that a decision had been made to kill Khashoggi if he could not be persuaded to return to Saudi Arabia during a meeting at the Consulate, where a brawl occurred, resulting in Khashoggi’s death. The Turkish authorities had attempted to extradite those responsible to stand trial in Turkey, but the Saudi officials refused to comply. The Court held that these failures were not due to fault on the part of Turkish officials, and so the right to life had not been violated. The Court declined to hear arguments on the infringement of the right to freedom of expression on the grounds that they had not been aired fully in the lower courts. It did, however, confirm that Khashoggi had been killed because of his public criticism of Saudi Arabia’s government.

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Facts

On October 2, 2018, Jamal Khashoggi, a Saudi writer and journalist, was killed in Istanbul, Turkey. Khashoggi, who had written for the Al-Hayat magazine, which started publication in Lebanon and continued in the Kingdom of Saudi Arabia, had raised concerns about the restrictive practices on freedom of expression by the changing administration in Saudi Arabia, which had prompted him to move to the United States in 2016. Khashoggi then wrote for the Washington Post and continued his criticism of the government of Saudi Arabia by emphasizing the need for democratization and expansion of freedoms in the Middle East. He also took part in the establishment of an association called Democracy for Arab World Now (DAWN). Khashoggi had received threats against his life because of his writings and speeches criticizing Saudi Arabia.

Khashoggi met Hatice Cengiz who became his fiancée in Istanbul in May 2018. On September 28, 2018, the couple initiated marriage procedures and Khashoggi visited the Saudi Arabian Consulate in Istanbul to obtain a document confirming his bachelor status. As Khashoggi was to travel to London imminently, the document could not be issued on the same day. Therefore, on October 2, 2018, Khashoggi and Cengiz visited the Consulate again to obtain the document, although Khashoggi entered the Consulate alone, leaving his mobile phone with Cengiz. After Khashoggi did not exit the Consulate, Cengiz called Turkish authorities.

The Turkish Public Prosecutor’s Office initiated an investigation into the incident. Due to the diplomatic nature of the location, the Public Prosecutor’s Office, through the Ministry of Foreign Affairs, requested permission from Saudi Arabian authorities for searches and evidence examination. On October 15, 2018, the Public Prosecutor’s Office was notified that this request was accepted.

The Prosecutor’s Officer scrutinized security camera footage in the Consulate building and its annexes to identify the individuals entering and leaving the Consulate building. It also assessed the security footage to investigate these individuals’ movements including their arrival and departure from airports and hotels and their entry and exit to the Consulate building. In addition, statements from Khashoggi’s fiancée and other witnesses, phone records, HTS analysis reports, and flight reports were examined. Three distinct groups, totaling fifteen people were identified as arriving in Turkey from abroad and all of them arrived at the Consulate at the same time on October 2, 2018, at 12:40. Khashoggi entered the Consulate at 13:08 on the same day. The Prosecutor’s Office determined from the footage that three of the people who arrived at the Consulate left it through the rear door shortly after Khashoggi’s arrival. One of them wore the clothes Khashoggi had on when he entered the Consulate and another carried a bag. It transpired that the person who was wearing Khashoggi’s clothes later changed his clothes and left Turkey.

No footage was found showing Khashoggi leaving the Consulate building. It did show that after Khashoggi entered the Consulate, luggage was taken out of two Consulate vehicles and taken to the Consulate residence. Consulate officials stated that the security cameras from inside the Consulate residence and building were malfunctioning and that those records could not be examined.

Later examination of Khashoggi’s phone and computer revealed that he had faced death threats due to his criticisms of the Saudi Arabian government.

The Public Prosecutor’s Office issued arrest warrants for the various suspects involved in Khashoggi’s disappearance, and their extradition to Turkey was requested. There is no extradition treaty between Turkey and Saudi Arabia. Saudi Arabia rejected the extradition requests on the grounds that the suspects were Saudi Arabian citizens. The Public Prosecutor’s Office’s request for judicial assistance from Saudi Arabian authorities was not responded to.

The Saudi Arabian Public Prosecutor’s Office issued a press release, stating that the Saudi Arabian Intelligence Deputy Chief had ordered Khashoggi to be brought to Saudi Arabia through persuasion, and if he could not be persuaded, to use force. It mentioned contacting a forensic expert to erase potential biological traces in case force was necessary. Additionally, it explained that communication with a collaborator in Turkey had been established to secure an appropriate location in the event that persuasion failed but that it had been deemed impossible to secure a suitable location and it was decided to kill him if persuasion failed. Later a decision was made to execute him and during the altercation that occurred in the Consulate, Khashoggi was first tied up and then died due to the high dose of sedative injected into him.

The press release also indicated that the order to kill Khashoggi was given by one person, and five individuals carried out the order. It stated that the body of Khashoggi was dismembered and taken out of the Consulate building by these people, that one person left the consulate wearing Khashoggi’s clothes, another person disabled the security cameras in the Consulate building and other people provided logistical support to the perpetrators.

The Public Prosecutor’s Office issued two indictments on Khashoggi’s death. The first indictment was issued on March 24, 2020, against twenty suspects, and the second on September 28, 2020, against six suspects charging them with the crimes of murder (committed with premeditation, brutally or through torment) and destruction, concealing or altering evidence. It was stated that the suspects, including Saudi generals, colonels, and soldiers with various specialties—such as intelligence officers and military training experts—, came to Turkey just before the incident and left as soon as possible after it, playing a role in the murder of Khashoggi.

The indictments mentioned that some of the suspects had been sentenced to death in Saudi Arabia (one was sentenced to ten years imprisonment and two to seven years imprisonment) on December 23, 2019. For some suspects, there was insufficient evidence of their involvement, resulting only in Saudi Arabia imposing travel bans.

On March 13, 2022, the Saudi Arabian judicial authorities requested the transfer of the prosecution to their jurisdiction based on the principle that a person cannot be tried twice for the same crime. They also requested the removal of 26 suspects from the Interpol red notice list which had been issued on October 27, 2020, on request from the Istanbul 11th Assize Court.

At the hearing held at Istanbul 11th Assize Court on March 31, 2022, the Prosecutor’s Office requested the transfer of the prosecution to Saudi Arabian judicial authorities because the defendants’ statements could not be heard since they were foreign nationals, and the proceedings were protracted. The Ministry of Justice issued its opinion regarding the transfer of the prosecution. On April 1, 2022, the Ministry of Justice stated that there was no bilateral treaty between Turkey and Saudi Arabia on the transfer of the proceedings. It was indicated that the extradition request was rejected by the Saudi Arabian authorities, that the statements of the defendants could not be received, and that the transfer of the proceedings was deemed appropriate.

On April 7, 2022, the Istanbul 11th Assize Court decided to abate the prosecution and transfer the case to the Saudi Arabian judicial authorities. The appeal against this decision was rejected by the Istanbul 12th Assize Court. On 23 May 2022, Cengiz submitted her first individual application to the Constitutional Court.

On June 17, 2022, the Istanbul 11th Assize Court dismissed the case and dropped all prosecutions against the suspects. On September 8, 2022, the Istanbul Regional Court of Appeals rejected the appeal against this decision.

On April 6, 2022, Cengiz also initiated an administrative case before the Ankara 14th Administrative Court, claiming that the opinion of the Ministry of Justice regarding the transfer of the proceedings was unlawful and conditions for transferring the case were not met. On April 15, the Ankara 14th Administrative Court dismissed the case without examining the merits. It argued that the opinion of the Ministry was related to the judicial proceedings carried out by the Istanbul 11th Assize Court and did not have the nature of a proceeding that could be subjected to an administrative case. On 18 July, the Ankara Regional Administrative Court 10th Administrative Chamber dismissed the appeal against this decision.

On August 16, Cengiz submitted her second individual application to the Constitutional Court and the Court decided to examine these two applications jointly.

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Decision Overview

On May 10, 2023, the Constitutional Court of Turkey delivered its judgment. The main issue under consideration was whether Turkey’s unsuccessful investigation and prosecution efforts regarding journalist Khashoggi’s murder were an infringement of the right to life.

Cengiz argued that the defendants accused of Khashoggi’s death—high-ranking officials in Saudi Arabia—would not undergo a trial in their home country that would reveal the truth. Cengiz submitted that the transfer of the case was done not to fulfill Turkey’s positive obligations in relation to the right to life but as a result of the efforts to improve the relations between Turkey and Saudi Arabia. She further submitted that the conditions for the case’s transfer were not met and that the manner in which Khashoggi was killed and the treatment he endured were inhumane. She contended that the lack of an effective trial and extradition process constituted a violation of the prohibition of torture and inhumane treatment. 

Furthermore, Cengiz argued that Khashoggi was killed due to his political views, and highlighted Turkey’s obligation to prevent his death and impose adequate penalties on those responsible. She maintained that her appeals had been unjustifiably rejected, and said that the transfer decision was politically motivated and that following it, some defendants were reportedly acquitted, and no prosecution was carried out against other defendants. Moreover, the plaintiff alleged that the lack of an effective trial regarding Khashoggi’s death and the failure to punish those responsible violated Turkey’s positive obligations on freedom of expression.

Cengiz contended that the Ministry of Justice’s opinion on the transfer of the proceedings was unlawful and lacked an assessment of the conditions for the case’s transfer. However, her arguments were rejected by unjustified decisions that breached the right to a fair trial, legal remedies, the principle of equality, and the prohibition of discrimination.

For its part, the Turkish Ministry of Justice argued that the investigation was conducted independently under the supervision and oversight of the public prosecutor, ensuring Cengiz’s participation in the process. It submitted that although it had sought the extradition of the defendants, this was not feasible and that to prevent the proceedings from lingering, a decision was made to transfer the prosecution.

The Court held that the allegation of a violation of the right to freedom of expression would be excluded by the Court since this complaint—that Khashoggi was killed for expressing his opinions and that his freedom of expression was violated due to the failure to prevent the attack and to conduct an effective trial—had been first raised in an individual application only after the decision to transfer the trial. The Court found that Cengiz had not provided sufficient information and documents regarding any prior application to any authority before the Constitutional Court on the obligation to prevent the attack, and so had not exhausted all available remedies before bringing this matter before the Constitutional Court.

The Court stated that its examination would focus on whether the obligation to conduct an effective criminal investigation, within the scope of the right to life, was violated.

The Court held that there was no dispute over the fact that Khashoggi left his country initially due to his dissenting opinions against the Saudi Arabian government.

Regarding the fact that examinations could not be conducted by Turkish judicial authorities at the Consulate after Khashoggi’s death, the Court found that these issues were related to the privileges and immunities granted to consulates, and Turkish authorities were not at fault. The Court noted that the efforts of Turkish judicial authorities led to the issue gaining international attention and the appointment of a special rapporteur by the United Nations Human Rights Council, who visited Turkey with a delegation.

The Court found that the proceedings’ transfer to another State was a form of international judicial cooperation. Accordingly, it held that despite Turkish authorities’ efforts for over two years to apprehend the defendants during the prosecution stage, the failure of Saudi authorities to extradite the defendants hindered the progress of the trial, and Turkish judicial authorities were not at fault.

Accordingly, the Court held that there was no violation of the procedural aspect of the right to life, as Turkish judicial authorities fulfilled their obligations taking all reasonable measures to ensure effective international cooperation and effective criminal proceedings.

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