JOINT PARTLY DISSENTING OPINION OF JUDGES SPANO AND KJØLBRO

I. Preliminary remarks

1. Article 6 § 2 of the Convention provides that everyone charged with a criminal offence is to be presumed innocent until proved guilty according to law. We are unable to agree with the majority that there has been a violation of this provision on the facts of the present case, taking particular account of the specific features of the Turkish system for the reopening of criminal proceedings. The same applies to the majority ’ s finding of a violation of Article 3 of Protocol No. 1, as it is closely connected to the reasoning underlying the breach of Article 6 § 2. We agree, however, with the Court that there has been no violation of Article 13 in the present case.

II. Turkish system of reopening of criminal proceedings

2. As a correct understanding of the Turkish system of reopening of criminal proceedings, after final conviction, is crucial for the resolution of this case, we will start by giving an overview of the main elements of this system.

3. The pertinent provisions of Turkish law dealing with the reopening of criminal proceedings are described in paragraphs 32-36 of today ’ s judgment. The essential features of this system are as follows. Firstly , a judgment that has acquired res judicata may be reopened if certain conditions are fulfilled. Secondly , if the request for reopening is deemed admissible, the court assigns a judge rapporteur who is responsible for obtaining evidence and holding a public hearing. After the closure of argument, the court decides whether to confirm the original judgment or to annul it.

4. Furthermore, it follows from the Cour t of Cassation ’ s judgment of 13 July 2004, in the first reopening proceedings in the applicants ’ case, as described in paragraph 17 of the judgment, that upon the reopening of criminal proceedings the new proceedings are fully independent and the accused person has to be afforded all the procedural rights and safeguards that flow from the right to a fair trial.

5. It is important for the present case that, in its judgment of 2004, the Court of Cassation did not discuss the legal consequences for the status of the previously convicted person, upon the reopening of his case, as regards the res judicata force of the original conviction. As is clear from the provisions of the Code of Criminal Procedure referred to in the judgment (cited in paragraph 3 above), where new proceedings have been instituted, the conditions for reopening being fulfilled, the original conviction nevertheless remains in force, having binding legal effect, until the court seised in the reopening proceedings decides to confirm or annul it. In our view, this reasonable interpretation of domestic law is confirmed by the Assize Court ’ s judgment in the first applicant ’ s case dealing with the dispute on his eligibility to stand as a candidate for the Parliamentary elections in 2007. In the judgment of the Assize Court of 15 May 2007, as described in paragraph 24 of the present judgment, it is clearly stated that the original domestic judgment, convicting the first applicant, had acquired res judicata , the binding nature of which was still in force, and the Assize Court did not make any allowances in this regard for the fact that the request for reopening had been granted.

6. In sum, under the applicable Turkish law, as interpreted and applied by the domestic courts, the decision to reopen the criminal proceedings in the applicants ’ case did not, in and of itself , alter the legally binding force of the original conviction of 1995. In our view, the examination of the applicants ’ complaints under Articles 6 § 2 and Article 3 of Protocol No. 1 to the Convention must take place within this domestic legal context, as we will now explain in more detail.

III. Complaint under Article 6 § 2 of the Convention

7. The relevant general principles of the Court ’ s case-law under Article 6 § 2 of the Convention are set out in paragraphs 50-54 of the Court ’ s judgment. We note that it is a general and necessary element in the Court ’ s development of its jurisprudence in this field that the presumption of innocence is meant to protect individuals from being proclaimed publicly, characterised or treated by the domestic authorities as guilty of criminal acts if they have not been found guilty in accordance with the law. We note that there is nothing in the case-law, as it stands, to preclude member States from setting up a system, like Turkey has, whereby the original conviction retains binding legal force pending the outcome of new proceedings after reopening. Of course, as correctly stated by the majority in paragraph 55 of the judgment, in the new proceedings the accused must be afforded all the relevant procedural safeguards of a fair trial and to be presumed innocent. However, and importantly, the fact that a person has initially been convicted of a criminal act may have a bearing on the assessment of his legal situation in other contexts, even though the proceedings have been reopened, for example as regards his eligibility to stand for elections, at least until the new proceedings have been concluded and the initial conviction set aside, if that is the case.

8. As described in paragraph 56 of the Court ’ s judgment, the applicants ’ complaint under Article 6 § 2 of the Convention has two limbs. Firstly , the question arises whether, by using the words “accused/convicted person”, instead of only “accused”, in its judgment, the Assize Court regarded the applicants as being guilty of the offence for which they were charged before their guilt had been legally established. Secondly , it must be examined whether it was incompatible with the presumption of innocence to maintain information on their initial conviction in the criminal record after the decision to reopen their case.

9. As to the first limb , the majority rely heavily on the reasoning given by the Court of Cassation in its judgment of 13 July 2004 (see paragraphs 57 ‑ 59) where that court established (see paragraph 4 above) that the new proceedings, upon reopening, were to be considered fully independent from the initial proceedings and, therefore, that the applicants should be afforded all procedural safeguards as if the criminal charge were being examined for the first time. The majority continue by stating that the Ankara Assize Court, which decided the issue anew after the Court of Cassation ’ s judgment of 2007, confirmed that the fresh proceedings were to be considered completely independent from the original proceedings. However, the Court proceeds to fault the Assize Court for using the words “accused/convicted person” in its judgment, when their guilt had not been finally established in the new proceedings. The majority find this use of words by the Assize Court to constitute a violation of the right to be presumed innocent.

10. We disagree. The majority apply Article 6 § 2 of the Convention to the facts of the case without taking adequately into account the context of the new proceedings and the continued binding legal force of the original conviction in accordance with domestic law and practice. Firstly , the Assize Court found itself in a delicate situation whereby it attempted to balance the conflicting position of the applicants, who were still, as a matter of domestic law, regarded as having been convicted of a criminal act according to the conviction from 1995, but were, at the same time, accused persons in the new proceedings entitled to all the guarantees of a fair trial, including the presumption of innocence. The use of the words “accused/convicted person” must be assessed in this specific context. Secondly , and more importantly, the applicants do not, in any shape or form, make the claim that the use of this combination of words had any effect on the way the Assize Court applied the burden of proof, assessed the evidence or the way they were treated in the course of the proceedings. Nor is there any allegation made by the applicants that the terminology used in the judgment had any practical implications for them during the proceedings. On the contrary, as the majority themselves acknowledge (see paragraph 59 of the judgment and paragraph 9 above), the Assize Court clearly confirmed that the applicants had to be afforded procedural safeguards, as the new proceedings were completely independent of the initial proceedings, in conformity with the Court of Cassation ’ s judgment of 2004. In other words, no claim has been made by the applicants that the use of words “accused/convicted person”, which must, as previously mentioned, be understood in the light of the special features of the Turkish system of reopening of criminal proceedings, should in substance be understood to mean that the Assize Court did not presume them to be innocent.

11. To be clear, we certainly acknowledge that in the more traditional context of a criminal trial – one that does not involve new proceedings through the reopening of a case after final conviction, where the conviction retains legal force – the use of words of this nature by a court would be highly problematic under Article 6 § 2 of the Convention. But in the particular circumstances of this case, and for the reasons set out above, we fail to see how this wording constituted a violation of the principle of the presumption of innocence. That finding constitutes in our view an overly abstract and formalistic application of Article 6 § 2 which does not take account of the special context of the present case.

12. As to the second limb of the applicants ’ Article 6 § 2 complaint, the majority consider that the question to be examined is whether the reopening of the criminal proceedings should have led the domestic authorities to erase immediately from the criminal record the information about the applicants ’ original conviction from 1995 (see paragraph 63 of the Court ’ s judgment). Again, the majority rely almost exclusively on the Court of Cassation ’ s judgment of 13 July 2004 to answer that question in the affirmative. The majority consider that as the new proceedings were completely independent from the first, and as the applicants should have been presumed innocent in the course of the new proceedings, the retention of the information about the original conviction on the criminal record constituted, in and of itself, a violation of the right to be presumed innocent.

13. Again, with all due respect, the majority fail to appreciate adequately the way in which the Turkish system of reopening of criminal proceedings works. We reiterate that irrespective of the decision to reopen the case, the original conviction remains in force under Turkish law until the new proceedings are concluded by a final decision either to confirm or to annul it. Although it is clear under the Court ’ s case-law that full procedural safeguards must be afforded in the new proceedings, including the presumption of innocence, this does not mean that changes to a criminal record need to be made, thus erasing the existence of an original conviction that still retains binding legal force, immediately upon the reopening of a case. Nothing in the Court of Cassation ’ s judgment of 2004 suggests otherwise. Again, that court only dealt with the issue of what procedural safeguards should be afforded to the applicants in the new proceedings, as they were to be considered independent of the original proceedings. Thus, the Court of Cassation did not call into question the continued binding legal force of the original conviction or give an opinion on whether it could have legal significance in other contexts, for example as regards information being maintained on the applicants ’ criminal record. Lastly, on the facts of this case, no claim has been made by the applicants that the continued registration of the original conviction in the criminal register had any bearing on the conduct of the new criminal proceedings by the Assize Court. To conclude, we disagree with the majority that Article 6 § 2 of the Convention required, in the circumstances of this case and taking into account the applicable Turkish law, the erasure from the criminal register of the applicants ’ original conviction before the new proceedings were concluded by a final decision.

IV. Complaint under Article 3 of Protocol No. 1

14. The applicants also complained of a violati on of Article 3 of Protocol No. 1 as they were not considered eligible to stand as candidates for the Parliamentary elections in Turkey in 2007. We agree with the majority that the applicants ’ passive rights under the said provision have been interfered with but disagree that there has been a violati on of Article 3 of Protocol No. 1 on account of the lack of a foreseeable legal basis for the interference (see paragraphs 86-89 of the Court ’ s judgment).

15. At paragraph 87 of the judgment, the majority consider that the reasoning adopted by the Ankara Assize Court of 15 May 2007 (see paragraph 24), when deciding on the request of the first applicant to declare that he had served his original sentence in full, together with the Court of Cassation ’ s judgment of 2004, on the one hand, and the retention of the original conviction in the criminal record, on the other, did not comply with the conditions of foreseeability of domestic law under the Court ’ s case-law. The majority observe in this regard that there is seemingly an inconsistency between the laws in force at the material time, dealing with the conditions of eligibility to stand for elections, and the application of these laws by the different domestic courts. We understand the majority here to be stating that the way the Ankara Assize Court interpreted the relevant provisions of the electoral laws (see paragraph 24) did not comply with the interpretation given by the Court of Cassation in 2004 as to the independent nature of the new proceedings after reopening. In sum, the majority ’ s reasoning for its finding of a violation of Article 3 of Protocol No. 1 is intimately connected to its view of the application of Article 6 § 2 of the Convention to the facts of the case, in particular the retention of information about the original conviction in the criminal record after the reopening of the proceedings (see paragraph 86 of the judgment).

16. For the same reasons as those we have already set out above (see paragraphs 12-13), we cannot agree with the majority in this regard. Yet again, the majority overestimate the impact and scope of the Court of Cassation ’ s judgment of 2004. We reiterate that this court did not call into question the continued binding legal force of the original conviction or state an opinion on whether it could have legal significance in other contexts, for example as regards information being maintained on the applicants ’ criminal record for the purposes of standing in Parliamentary elections. It follows that the Ankara Assize Court ’ s interpretation of the applicable electoral laws, in particular section 11 of Law no. 2839, section 9 of Law no. 5352 and Article 53 of the Criminal Code, as described in paragraph 24 of the judgment, cannot in our view be considered manifestly unreasonable or arbitrary, taking into account the continued binding legal force of the original conviction of 1995. Accordingly, the majority do not present any persuasive arguments to the effect that the interference with the applicants ’ rights under Article 3 of Protocol No. 1 lacked a foreseeable legal basis.

17. In conclusion, we respectfully dissent from the view of the majority of our colleagues that there has been a violatio n of Articles 6 § 2 and Article 3 of Protocol No. 1 in the present case.