Communicated on 28 November 2016

SECOND SECTION

Application no. 3722/11 Mehmet ARSLAN against Turkey lodged on 30 November 2010

STATEMENT OF FACTS

1. The applicant, Mr Mehmet Arslan , is a Turkish national, who was born in 1964 and lives in Diyarbakır. He is represented before the Court by Mr M. Biçen , a lawyer practising in Diyarbakır.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. On 25 April 1995 the Malatya State Security Court convicted the applicant of membership of an illegal organisation and sentenced him to imprisonment of 12 years and 6 months and placed a permanent restriction on the exercise of his civil and political rights. On 15 December 1995 the Court of Cassation upheld this judgment.

4. Meanwhile, following the entry into force of the new Criminal Code in 2005, the 3 rd Chamber of the Malatya Assize Court reviewed the applicant ’ s conviction of 15 December 1995 and his sentence in the light of the provisions of the new Code. On 13 July 2005 the court amended the applicant ’ s sentence and imposed on him six years and three months ’ imprisonment, holding that the new Code provided more favourable conditions for the applicant. This judgment became final on 20 July 2005. The operative part of the court ’ s judgment also provided that:

“As a result of the sentence of imprisonment, the applicant is restricted from exercising his civil and political rights as set out in Article 53 of the [new] Criminal Code for the duration of his sentence.”

5. The applicant completed serving his sentence on 10 August 2005.

6. On 21 July 2008 the applicant lodged an application with the 3 rd Chamber of the Malatya Assize Court and requested his conviction to be deleted from his criminal record and for his forfeited rights to be restored.

7. On 23 July 2010 the court dismissed the applicant ’ s claims, holding that the conditions for deleting his past conviction from his criminal record and for the restitution of his forfeited rights had not been fulfilled. The reasoning of the court was as follows:

“Pursuant to section 13/A of Law no. 5352, the court has carried out the necessary examination by having regard to the relevant police records and noted that the applicant participated in a demonstration in support for PKK/KONGRA-GEL on 23 September 2005 which resulted in the instigation of criminal proceedings against him before the Ergani Assize Court. Following the lack of jurisdiction decision of the Ergani Assize Court, the file was sent to the Diyarbakır Assize Court. It is reported that the applicant has an active role in the events [of the proscribed organisation] and that he supports the terrorist organisation...

Regarding the deletion of the conviction from the applicant ’ s criminal record, the applicable provision is to be found in the provisional section 2 of Law no. 5352 which refers to the relevant provisions of the former Law no. 3682 in respect of the offences committed before the entry into force of new Law no. 5352 [1 June 2005]. Having regard to section 8 of Law no. 3682, the court finds it established that the applicant has not yet completed the rehabilitation period and therefore his conviction is not yet ‘ spent ’ .

Regarding the restitution of the applicant ’ s forfeited rights ... Section 13/A of Law no. 5352 requires that the applicant must not have committed a new offence during a period of three years after completing his sentence. Following the examination of the police records on the applicant, the court notes that the applicant has committed a new offence. Furthermore the court does not consider that the applicant was of good behaviour during the three-year period.”

8. The applicant lodged a complaint against this decision with the 4 th Chamber of the Malatya Assize Court and argued that the 3 rd Chamber had acted unlawfully by having regard to the police records and had therefore contravened his right to the presumption of innocence as the criminal proceedings regarding those allegations were still pending before the courts. He further submitted that the 3 rd Chamber had erred in its application of the law.

9. On 28 September 2010 the 4 th Chamber of the Malatya Assize Court dismissed the applicant ’ s complaint, holding that the decision of 23 July 2010 was in accordance with the law.

10. On 15 November 2012 the Ergani Assize Court suspended the proceedings in respect of the alleged participation of the applicant in an illegal demonstration, pursuant to Provisional Article 1 of the Law no. 6352 which had entered into force recently and which provided for suspension of criminal proceedings for certain offences.

B. Relevant domestic law

11. The relevant domestic law on the restriction of civil and political rights as a result of criminal conviction can be found in Murat Vural v. Turkey , no. 9540/07 , § 33, 21 October 2014.

12. Conviction for certain types of offences entails further consequences, particularly with regard to the exercise of certain activities governed by special legislation. These restrictions concern the right to found or join political parties (Law no. 2820, section 11 § 2-5), the right to stand for election to Parliament, to the post of Mayor, or to the City Council (Article 76 of the Turkish Constitution, section 11 of Law no. 2839 and section 9 of Law no. 2972), and eligibility for employment in public service (section 48 of Law no. 657) or other regulated professions (i.e. section 5 of the Lawyer ’ s Act).

13. The relevant domestic law on deleting past convictions from an individual ’ s criminal record following a conviction can be found in Imrek v. Turkey ( dec. ), no. 38276/02, 24 June 2008. In addition, according to section 8 of the former Judicial Records Act (Law no. 3682), which was applied in the domestic proceedings at the applicant ’ s request, a conviction is considered to be ‘ spent ’ and the criminal record to be expunged after the lapse of five years from the end of sentence for imprisonment of five years or more. On the other hand, past convictions continue to remain on the person ’ s archived record which is accessible to the individual himself, public prosecutors, courts of law, election boards and authorized public bodies (sections 10 and 12 of the Law on Criminal Records (Law no. 5352)). A person ’ s archived criminal record is requested in determining his or her eligibility to exercise the rights and privileges that are also the subject of the restitution procedure. Section 12 of Law no. 5352 sets out the relevant time periods after which a person ’ s archived data may be completely removed. The relevant parts read:

“The archived data relating to past convictions to which statutory consequences other than the ones found in the Criminal Code, including Article 76 of the Constitution are attached, may be completely deleted:

...

Fifteen years following the judgment restoring the forfeited rights;

Thirty years [after the end of the sentence] where no such judgment was rendered.”

14. The provision setting out the restitution of forfeited rights can be found in Section 13/A of Law no. 5352:

“Without prejudice to Article 53 §§ 5 and 6 of the Criminal Code, and in cases where a person ’ s rights and privileges have been restricted as a statutory consequence of the imposition of a sentence other than those provided for in the Criminal Code, those forfeited rights may be reinstated provided that:

a) the [convicted] person has not committed a new offence during the period of three years following the completion of his sentence;

b) the court forms a favourable opinion regarding the [convicted] person ’ s conduct.

...

(4) The court may examine the request without holding a hearing or by hearing the public prosecutor and the applicant...”

COMPLAINTS

The applicant complains under Article 6 of the Convention that the domestic court ’ s decision of 23 July 2010, which pronounced him guilty of an offence for which he had not been found guilty, violated his right to the presumption of innocence.

QUESTIONS TO THE PARTIES

Was the applicant ’ s right to the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected by the 3 rd Chamber of the Malatya Assize Court in its decision of 23 July 2010? In particular, was the conclusion that the applicant had committed an offence in respect of which the criminal proceedings against him were pending, in compliance with Article 6 § 2 of the Convention?