Information Note on the Court’s case-law 27

February 2001

Ecer and Zeyrek v. Turkey - 29295/95 and 29363/95

Judgment 27.2.2001 [Section I]

Article 7

Article 7-1

Heavier penalty

Imposition of a penalty heavier than that applicable at the time of commission of the offence: violation

Facts : The applicants were arrested in September 1993 on suspicion of aiding and sheltering members of the PKK. During their interroga tion, they allegedly confessed to involvement with the PKK since 1988. When questioned by the public prosecutor and when subsequently brought before the Magistrates' Court, they denied any involvement with the PKK. In October 1993 the Chief Public Prosecut or at the State Security Court lodged an indictment in which the applicants were accused of having assisted and sheltered members of the PKK between 1988 and 1989. The applicants maintained their innocence, denying that they had confessed during their inte rrogation. In May 1994 the State Security Court convicted them. It considered a sentence of three years to be appropriate but increased this by half in application of S. 5 of the Prevention of Terrorism Act 1991, and then reduced it by one sixth pursuant t o a provision of the Criminal Code. The applicants' appeals were rejected by the Court of Cassation.

Law : Article 7 § 1 – Since the applicants complain that a heavier penalty was imposed on them than that applicable at the time of commission of the offence , the relevant principle is nulla poena sine lege , the only question being whether the 1991 Act was applied to offences committed before it came into force. With regard to the Government's assertion that the offence was a continuing one and that the refere nce to 1988-89 related only to the commencement of the offences, the principle of legal certainty requires that the acts which make up a continuing offence be set out clearly in the indictment and the court's decision must also make clear that the convicti on and sentence are based on a finding that the elements of a continuing offence have been made out by the prosecution. In this case, since the indictment referred to offences committed "between 1988 and 1989" and the State Security Court's judgment stated the applicants were convicted for acts committed "in 1988 and 1989", it appears that the applicants were tried in respect of offences committed in that period and the dates cannot be regarded merely as the starting point of continuing offences. The Govern ment's reference to the introduction of evidence of a continuing offence is inconsistent with the very terms of the indictment. It can reasonably be considered that the applicants prepared their defence only in relation to the offence as specified in the i ndictment and moreover it does not appear that any offences they may have committed after that time constituted the basis of their conviction by the State Security Court. Consequently, the applicants were subjected to the imposition of a heavier sentence t han the one to which they were exposed at the time of commission of the offences.

Conclusion : violation (unanimously).

Article 41 – The Court awarded each of the applicants $7,500 (USD) in respect of non-pecuniary damage. It also made an award in respect o f costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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