Lexploria

Information Note on the Court’s case-law 186

June 2015

Dicle and Sadak v. Turkey - 48621/07

Judgment 16.6.2015 [Section II]

Article 6

Article 6-2

Presumption of innocence

Use of the expression “the accused/convicted person” following reopening of trial, and reference to the applicants’ criminal conviction after the proceedings had been reopened: violation

Article 3 of Protocol No. 1

Stand for election

Refusal of candidatures for parliamentary election on grounds of the candidates’ criminal record, after their trial had been reopened: violation

Facts – The applicants were MPs in the Turkish Grand National Assembly and members of the political party DEP (Party of De mocracy), dissolved by the Constitutional Court. They were sentenced by the Security Court in December 1994 to 15 years’ imprisonment for membership of an illegal organisation.

In the judgment Sadak and Others v. Turkey of 17 July 2001, the European Court, on an application from the applicants and two other individuals, found violations of Article 6 § 1 on account of a lack of independence and impartiality of the State Security Court, and a violation of Article 6 § 3 (a), (b) and (d) of the Convention, take n together with paragraph 1, on account of the failure to inform the applicants in a timely manner of the reclassification of the charges against them, together with their inability to examine or have examined witnesses against them.

In February 2003 a law reforming a number of laws came into force. It provided for the reopening of criminal proceedings following a finding of a violation by the Court. The applicants, relying on the Court’s judgment in their case, requested the reopening of their trial.

In April 2004, after deciding that the applicants’ trial should be reopened, the Security Court reiterated its judgment of 8 December 1994. In its reasoning it mainly used the terms “the accused/convicted person” to refer to the applicants . In June 2004 the applicants appealed on points of law against that judgment. In the same month the Court of Cassation ordered the applicants’ release. Then in a judgment of July 2004 it quashed the judgment of April 2004, finding that the violation found by the European Court in its judgment of 17 July 2001 had not been remedied.

The case was referred to the Assize Court. In March 2007, after taking note in particular of the Court of Cassation’s argument that the procedure for re-opening the judgment was a procedure that was completely independent of the first, the Assize Court confirmed the applicants’ convictions of December 1994. It nevertheless reduced their prison sentence to seven years and six months. It referred to them in its judgment as “the accu sed/convicted person”.

In the meantime, in June 2007, the applicants registered their names as independent candidates to stand in the parliamentary elections of July 2007. Among other things they provided a criminal record, which showed their conviction in December 1994 by the State Security Court and the Assize Court’s decision of May 2007 refusing to rule on the request of the first convicted applicant to obtain a document certifying that he had served his sentence in full.

In a decision of July 2007 the Higher Electoral Board refused their candidatures on the ground that their criminal convictions precluded their eligibility.

Law

Article 6 § 2 of the Convention

(a) Concerning the use of the term “the accused/convicted person” instead of merely the term “the accused” – In July 2004 the Court of Cassation had indicated that the reopening of the proceedings constituted a procedure that was completely independent of the initial proceedings against the applicants. All the procedural rules had to apply as if it were a new case, when it came to hearings, the notification of the indictment to the applicants or the new interviews to be conducted.

The Assize Court had certainly noted that the reopening of the trial constituted a procedure that was completely independent of the first. That being said, it had nevertheless continued to refer to the applicants as “the accused/convicted person” when it had not yet ruled, in the light of the evidence and the submissions for the defence, on their guilt. In the context of the reopening of the proceedings, the applicants’ guilt was not legally established until 27 February 2008, when the Court of Cassation upheld the Assize Court judgment of 9 March 2007.

The fact that the applicants had been recognised as guilty and sentenced to seven and a half years’ imprisonment could not remove their initial right to be presumed innocent until the legal establishment of their guilt.

Thus, the use by t he courts, in the context of the reopening of the proceedings, of the term “the accused/convicted person” to refer to the applicants, even before any judgment on the merits of their case, had impaired the applicants’ right to be presumed innocent.

(b) Con cerning the indication of the criminal conviction on the applicants’ criminal record after the reopening of the trial – The indication of the first conviction had been maintained on the applicants’ criminal record even though the Court had found a violatio n of certain provisions of the Convention in its judgment, which had led to the acceptance by the competent domestic courts, in accordance with the law in force, of the request for the reopening of the trial submitted by the applicants.

Therefore, accordin g to the Court of Cassation, where the proceedings were reopened, the case was to be heard as if it were being adjudicated upon for the first time. The European Court of Human Rights took the view that the new proceedings were independent of the first.

The indication in question, which presented the applicants as guilty whereas, in the context of the reopening of the proceedings, they should in principle have been regarded merely as presumed to have committed offences for which the judgment still had to be rendered, raised an issue with regard to the applicants’ right to be presumed innocent, as guaranteed by Article 6 § 2 of the Convention.

Consequently, the Government’s assertion that the deletion of the applicants’ first conviction from their criminal rec ord could take place only after the sentencing in the reopened proceedings was problematic. It ran counter to the Court of Cassation’s reasoning and the Court’s well-established case-law in such matters. In that connection there was a fundamental differenc e between the fact of saying that someone was merely suspected of committing a criminal offence and an unequivocal declaration, in the absence of a final conviction, that the person had committed the offence as charged. In the present case, the indication on the criminal record had had such declaratory value.

Conclusion : violation (five votes to two).

Article 3 of Protocol No. 1: The applicants had each submitted their candidature to the Higher Electoral Board to stand for the parliamentary elections of Jul y 2007 as independent candidates. The Board had rejected their candidatures on the ground that their criminal records showed their convictions by the Security Court in December 1994 and that they did not therefore fulfil the statutory requirements.

There h ad thus been interference with the applicants’ exercise of their right to stand for election under Article 3 of Protocol No. 1.

The legal question to be settled was thus whether the considerations of the Assize Court in its decision of May 2007, according to which the applicants had not yet served the totality of their prison sentences imposed by the Security Court in December 1994, satisfied the requirements of the law.

The Court examined the applicants’ complaint in the light of the reasoning it had devel oped under Article 6 § 2 of the Convention. When proceedings were reopened following a judgment of the European Court finding a violation, the question arising was that of the foreseeability of the effects of the national law. In that connection, it could be seen from the Court of Cassation’s judgment of July 2004 that where proceedings were reopened the case had to be heard as if the proceedings were completely independent of the first. The case in question thus had to be heard as if the court were adjudic ating upon it for the first time. The Court found that the retention of the applicants’ initial conviction on their criminal record, after the reopening of the proceedings, had breached their right to be presumed innocent under Article 6 § 2.

That being sa id, the Court was of the opinion that, first, the application by the Assize Court in its decision of May 2007 of the statutory provisions in question and the interpretation by the Court of Cassation in its judgment of July 2004 concerning the consequences of the reopening of proceedings following a finding of a violation by the European Court and, second, the retention of the impugned indication on the applicants’ criminal record, did not satisfy the criterion of foreseeability of the law within the meaning of the Court’s case-law. The interference was not therefore prescribed by law. Accordingly, it was not necessary to ascertain whether the interference pursued a legitimate aim or if it was proportionate to that aim.

Accordingly, the manner in which the i mpugned national legislation in force at the material time had been applied in the present case had restricted the applicants’ rights to stand for election under Article 3 of Protocol No. 1 to the point of impairing those rights in their very substance.

Co nclusion : violation (five votes to two).

Article 41: EUR 6,000 to each of the applicants for non-pecuniary damage.

(See Sadak and Others v. Turkey (no. 1) , 29900/96 et al., 17 July 2001, Information Note 32 )

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