FIFTH SECTION

Application no. 17103/10 Zekeriya KARAMAN against Germany lodged on 22 March 2010

STATEMENT OF FACTS

The applicant, Mr Zekeriya Karaman , is a Turkish national, who was born in 1952 and lives in Istanbul . He is represented before the Court by Mr O. Isfen , a lawyer practising in Wetter, North Rhine-Westphalia, and professor at Bochum University .

A. The circumstances of the case

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

1. Background to the case

The applicant is the founder of the Turkish TV station Kanal 7 and director of the management board of its operating company Yeni Dünya Iletisim A.S. Kanal 7 programme contents are broadcasted nationwide in Turkey as well as in Germany through the TV station Kanal 7 Int. The latter is operated by private limited liability companies established under German law, since 2001 by Euro 7 Fernseh -und Marketing GmbH ( Gesellschaft mit beschränkter Haftung ) with the applicant as one of its shareholders. The applicant alternately occupied the position of either managing director ( Geschäftsführer ) or authorised signatory ( Prokurist ) in such companies.

Since 1998 a specified programme slot in the channel ’ s broadcasting schedule was attributed to the association “ Deniz Feneri Yardimlasma Dernegi ” founded, inter alia , by the Kanal 7 head of human resources who was also member of the association ’ s board of directors. Within the scope of the related programme, broadcasted in Turkey as well as in Germany , the association reported on aid projects implemented by it and called for donations with respect to their financing. In 1999 a similar association was founded in Germany under the name of “ Deniz Feneri Dernegi e.V .” (hereinafter “ Deniz Feneri ”) by G., one of the further shareholders and managing directors or, alternately, authorised signatories of Euro 7 Fernseh -und Marketing GmbH. G. was also appointed chairman of the association and remained in this position until 2006. In its donation appeals on television Deniz Feneri emphasised that funds donated would be directly and exclusively used for the support of persons in need as well as for the financing of social projects.

In 2006 the Frankfurt am Main prosecution authorities ( Staatsanwaltschaft ) started investigations against the applicant and several co-suspects, including G., on suspicion of having fraudulently used the better part of funds donated to the associations for commercial purposes and their own benefit.

In the middle of 2008 criminal investigations based on the same allegations of fraud were also initiated against the applicant in Turkey .

2. The criminal proceedings against the co-suspects

By a judgment of 17 September 2008 (file no. 5/26 Kls 63 50 Js 203391/06 4/08), the Grand Chamber for Economic Crimes ( Große Strafkammer als Wirtschaftsstrafkammer ) of the Frankfurt am Main Regional Court convicted two of the applicant ’ s co-suspects, G. and T., of aggravated fraud ( Betrug in einem besonders schweren Fall ) acting as members of a joint criminal enterprise with its leaders in Turkey. The further co-accused E. was convicted of having aided and abetted in the commission of the offence. G. and T. were sentenced to prison sentences of five years and ten months and two years and nine months respectively, while E. was sentenced to a suspended prison sentence of one year and ten months.

The Regional Court found it established that G. had created and maintained a complex structure for the purpose of concealing that the better part of donations obtained for charitable purposes advertised by Deniz Feneri was in reality designated and used for the financing of entrepreneurial activities of private companies in which G. and the applicant, among others, became shareholders. At G. ’ s request T. had contributed to the fraudulent misrepresentation by, inter alia , fabricating minutes of virtual association meetings of Deniz Feneri in order to conceal the unauthorised use of donation funds from the tax authorities. E. on his part, also acting upon instructions by G., had omitted to disclose the actual use of the donations in the association ’ s official accounts and had documented them in separate unofficial accounts ( Nebenbuchhaltung ).

The court ’ s findings were primarily based on confessions made by T., E. and G. following a plea bargain reached between the court, the prosecution authorities and the defence as well as on further evidence obtained in the course of the trial. Whereas G. maintained that he alone had decided on the use of the donated funds without having consulted any contact persons in Turkey , T. and E. testified that G. had been integrated into a criminal organisation ’ s hierarchy which had its leaders in Turkey and in which the applicant had occupied a leading role. According to T. and E. ’ s testimony G. had to obtain the applicant ’ s prior approval with respect to all essential decisions relating to the use of donations obtained by the association. The court was therefore convinced that G. had not been at the top of the criminal gang ’ s hierarchy but had depended on the orders of its leaders residing in Turkey .

The judgment refers on several occasions to the role the heads of the criminal organisation in Turkey played in connection with the use of donated funds for non-charitable purposes. In this context the applicant ’ s full first and last name is mentioned numerous times in the judgment running to some thirty-two pages. The most relevant passages of the judgment (pp. 8, 9, 10, 11, 12, 15, 21 to 23 as well as 28 to 31) read as follows:

“It were not the association ’ s chairman nor the registered members of the association [ Deniz Feneri ] who decided on the use of funds obtained on behalf of the association but the accused G. in coordination with and upon instruction by the separately prosecuted ( gesondert Verfolgte ) Zekeriya Karaman , ..., ..., as well as ..., ...

...

The accused G. as well as the persons in charge of Kanal 7 in Turkey were ... aware that donations collected in the German association ’ s [ Deniz Feneri ] name would only be used in part for persons in need or social projects. At any rate, since the year 2002 it was the intention of G. and the separately prosecuted persons behind the scenes ( Hinterleute ) to also use a large part of the collected funds for economic activities, in particular for the start-up financing of entrepreneurial projects of private law companies in which G. or the separately prosecuted Zekeriya Karaman , ..., ..., as well as ... became shareholders.

....

For this reason, the accused G. and the separately prosecuted Zekeriya Karaman instructed the co-accused E. to keep unofficial accounts ( Nebenbuchhaltung ).

...

Every month the contents of the unofficial accounts in Germany were coordinated between G. and ..., ... or Zekeriya Karaman .

...

According to the entries in the unofficial accounts a total amount of 4,504,000 euros was handed over to the separately prosecuted Zekeriya Karaman .

...

The separately prosecuted Zekeriya Karaman , ..., ..., ..., and ... decided on the use of the funds collected by means of donations. In his capacity as director of the management board of Yeni Dunya Iletisim A.S., Zekeriya Karaman was accorded a preeminent role in this respect.

...

The accused T. was not aware of the exact amount of donated funds that have been used for non-charitable purposes. He however endorsed appeals for further donations while knowing that they were to a large extent going to be used for unauthorised purposes... Following G. ’ s arrest in April 2007 he was the contact person of Zekeriya Karaman with respect to all matters related to Deniz Feneri in Germany . The latter provided him with a mobile phone with prepaid card in view of suspected telephone surveillance.

...

The Chamber did not follow G. ’ s submissions that he alone had decided on the unauthorised use of donated funds without consulting the persons behind the scenes in Turkey . The accused E. as well as the accused T. had stated within the scope of their confessions during trial as well as on the occasion of previous police interrogations that G. had been integrated into a hierarchy and had to coordinate all essential decisions with the separately prosecuted Zekeriya Karaman , ... and ..., while Zekeriya Karaman , in his capacity as director of the management board of Yeni Dunya Iletisim A.S., occupied a preeminent role.

Such integration into a structure controlled from Turkey as described by the two co-accused is sufficiently proved by the implementation of an unofficial accounting system, a parallel structure of television station and the association Deniz Feneri in Germany and Turkey for the collection of donations, the shareholding in the companies funded by donations, as well as the fact that cash withdrawals had been handed over at the premises of Kanal 7 in Turkey. By assuming sole responsibility for the donation appeals and the unauthorised use of the donated funds, the accused G. apparently tried to protect the persons behind him in Turkey from criminal prosecution in Germany and/or Turkey .

...

The accused T. is guilty of fraud committed in his capacity as successive joint offender ( in sukzessiver Mittäterschaft ) pursuant to Articles 263, 25§2 of the German Criminal Code. T. did not only want to support the actions of others but wanted to make a contribution to a joint operation ( gemeinschaftliche Tätigkeit ) together with G. and the persons behind the scene in Turkey .

...

Furthermore, it had to be considered in his [ G. ’ s ] favour that he was not positioned at the top of the hierarchy having organised the fraud ( Spitze der Organisation des Betrugs ) but depended on the instructions by the persons behind the scenes in Turkey. He could not decide alone on the unauthorised use of the donated funds but only develop ideas that ultimately had to be approved by the persons behind the scenes in Turkey . He was an executing organ rather than a decision maker ( mehr ausführendes als bestimmendes Organ ).

...

His [ T. ’ s ] confession was not limited to his own participation in the commission of the offence but he also revealed his knowledge regarding the background and in particular concerning the persons behind the scenes. His knowledge was limited since G. and the persons behind him deliberately only granted him a restricted insight. In the hierarchy he was placed far below G. and the responsible persons in Turkey .

...

By keeping unofficial accounts he [E.] made a significant contribution to the functioning of the overall system. The fact that he was not only requested by G. but also directly by the separately prosecuted Karaman to keep off the record accounts demonstrates the importance of such unofficial accounting.

...

The persons behind the scenes in Turkey had previously attempted to prevent him [E.] from testifying before the investigative authorities by establishing contact with his first counsel and his family members.“

According to an article published by the German newspaper Frankfurter Rundschau on the internet on 18 September 2008 the acting presiding judge of the Frankfurt am Main Regional Court ’ s Grand Chamber for Economic Crimes had stated on the occasion of the judgment ’ s pronouncement that the donated funds had been used by the persons behind the scenes for a mixture of own economic and political purposes even though a part of the money had indeed been spent on aid projects. The same newspaper had reported in an article published on the internet on 15 September 2008 that the prosecution authorities ( Staatsanwaltschaft ) had referred to the applicant as the “main perpetrator and leader ( führender Kopf ) of the whole organisation”. Similar quotations were published in several Turkish newspapers on 17 and 18 September 2008. For instance, according to an article published in the Turkish newspaper Hürriyet on 18 September 2008, the presiding judge had declared on the occasion of the judgment ’ s pronouncement that “the strings were pulled at the level of Kanal 7. G. and T. acted in accordance with instructions they had received from Kanal 7, in particular from Zekyria Karaman , ..., ... and ...The main persons in charge were located in Turkey .”

The judgment was published on the Regional Court ’ s website on 25 November 2008. In the judgment ’ s internet version the names of the accused and separately prosecuted were replaced by letters and the names of the companies involved by numbers. The introductory remarks to the internet publication included a paragraph stating that the judgment had become final and was binding only in relation to the three convicts. It was specified that references and findings in the judgment with respect to the actions of other persons, in particular those separately prosecuted, were not binding in relation to these persons and that the latter still benefited from the presumption of innocence. The text of the judgment itself does not contain a similar specification.

The judgment became f inal on 13 November 2008.

3 . The applicant ’ s constitutional complaint

By written submissions dated 16 December 2008 the applicant lodged a complaint with the Federal Constitutional Court . He argued that the references in the reasoning of the Regional Court ’ s judgment of 17 September 2008 assuming his participation in the fraudulent use of the donated funds had violated the principle of presumption of innocence which constituted one of the aspects of the constitutionally guaranteed right to a fair trial taken in conjunction with the principle of the rule of law.

By a decision of 3 September 2009, served on the applicant on 25 September 2009, the Federal Constitutional Court dismissed the complaint as inadmissible (file no. 2 BvR 2540/08).

The Constitutional Court found that while it was not categorically excluded to challenge a judgment resulting from proceedings conducted against third persons, it was however decisive whether an applicant who had not been party to these proceedings could claim to be directly affected in his or her legitimate interests by the impugned decision and not only in an indirect, de facto manner. The Constitutional Court further reiterated its established case-law that, by virtue of the constitutionally guaranteed principle of presumption of innocence, no measures amounting in effect to a penalty may be taken against an accused without his guilt having been established beforehand in the course of a fair trial. Furthermore, a respective finding of guilt had to become final before it could be held against the person concerned. However, in the context of criminal proceedings the presumption of innocence did not prevent the law enforcement authorities from making an assessment whether and to what degree a person could be suspected of having committed a criminal offence.

Turning to the circumstances of the case at hand the Constitutional Court pointed out that the presumption of innocence did at the outset not protect the applicant from any factual impacts resulting from statements made within the scope of a judgment rendered in criminal proceedings against third persons with respect to his own involvement in the commission of the offence. Such a judgment did not constitute a decision that required a determination of the applicant ’ s guilt or exposed him to disadvantages amounting to a conviction or sentence. Statements made in criminal proceedings against third persons did not have a binding effect on the courts or the prosecution authorities, neither with respect to still pending preliminary proceedings against an applicant nor in relation to any other court or administrative proceedings to which an applicant might possibly become a party in the future. On the basis of such judgment the applicant could not be treated as guilty but was still protected by the principle of presumption of innocence. The fact that the establishment of facts by the Regional Court did not only concern the accused who had been convicted as a result of the terminated proceedings but also the applicant was an inevitable consequence of the fact that in complex criminal proceedings it was hardly ever possible to conduct and terminate the proceedings against all the accused simultaneously.

4 . Subsequent developments

In 2010 the Frankfurt am Main prosecution authorities brought charges against the applicant and further three co-accused in connection with the events at issue. No information with respect to the conduct of these proceedings was submitted to the Court.

B. Relevant domestic law

1. The Federal Constitutional Court Act

The relevant provisions of the Federal Constitutional Court Act ( Bundesverfassungsgerichtsgesetz ) read as follows:

Article 90

(1) Any person who claims that one of his basic rights or one of his rights under Articles 20 (4), 33, 38, 101, 103 and 104 of the Basic Law has been violated by public authority may lodge a constitutional complaint with the Federal Constitutional Court.

(2) If legal action against the violation is admissible, the constitutional complaint may not be lodged until all remedies have been exhausted. However, the Federal Constitutional Court may decide immediately on a constitutional complaint lodged before all remedies have been exhausted if it is of general relevance or if recourse to other courts first would entail a serious and unavoidable disadvantage for the complainant.

...

Article 93 a

(1) A constitutional complaint shall require acceptance.

(2) It shall be accepted

(a) in so far as it has fundamental constitutional significance,

(b) if this is indicated in order to enforce the rights referred to in Article 90 (1) above; this can also be the case if the complainant suffers especially grave disadvantage as a result of refusal to decide on the complaint.”

2. The principle of presumption of innocence

According to the established case-law of the German Federal Constitutional Court (see, for instance, BVerfGE 7 4, 358, 370 et seq. and 82, 106, 114 et seq.) the principle of being presumed innocent until proved guilty according to law derives from the principle of the rule of law, and in interpreting its content and scope regard shall be had to the Convention and to the case-law of the European Court of Human Rights. The principle of presumption of innocence is closely linked to the right of a person charged with a criminal offence to defend him or herself within the scope of a fair trial. B y virtue of such principle no measures amounting in effect to a penalty may be taken against a defendant without his guilt having been established beforehand at a proper trial. The principle further requires that guilt be proved according to law before it can be held against the person concerned. A finding of guilt will accordingly not be legitimate for this purpose unless it is pronounced at the close of a trial which has reached the stage at which a verdict can be given.

COMPLAINT

The applicant complains that the incriminating statements in the Regional Court ’ s judgment of 17 September 2008 with respect to his alleged involvement in the offence had disregarded the principle of presumption of innocence enshrined in Article 6 § 2 of the Convention. In the judgment rendered against his co-suspects the separately prosecuted applicant was described as occupying a leading role in the organisation of the offence without having been granted an opportunity to comment on the accusations brought against him. The judgment had not only set a factual precedent as regards the further course of the proceedings against the applicant in Germany and Turkey but had also led the public to perceive the applicant as the head of a criminal organisation established for fraudulent purposes.

QUESTIONS TO THE PARTIES

1. Is Article 6 § 2 of the Convention applicable in the instance case and may the applicant claim to be a victim of a violation of the principle of presumption of innocence, within the meaning of Article 34?

2. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case?