TrustHLT/LaCour huggingface dataset:
GR2 (Government): And in this context, I perhaps would also like to reply to Council Opposites who speak about the retroactive lifting of immunity.
GR2 (Government): The lifting of immunity basically is always retroactive because it concerns acts that appeared before the lifting of immunity.
GR2 (Government): Something happens, then the petition is made to parliament to lift immunity, and then the decision is made to lift immunity.
GR2 (Government): So the moment the act is committed, nobody knows whether immunity is lifted or not.
GR2 (Government): This is something that happens afterwards, and it is up to parliament to make that decision.
GR2 (Government): And I think that parliament has decided for a number of years not to lift immunity cannot establish a legitimate expectation on the part of individual members of parliament that immunity would never ever be lifted.
GR2 (Government): With regards to the question of the terrorist organization raised by Jotz Eicke, this is the hen and the egg question.
GR2 (Government): How do we know that someone is a terrorist leader who gives instruction?
GR2 (Government): Of course, we know that certain organizations are considered terrorist organizations such as the PKK, that is accepted by the United Nations as a terrorist organization, that is accepted by the European Union as a terrorist organization.
GR2 (Government): And there are procedures in Turkish law involving the Turkish judiciary by which terrorist organizations are determined.
GR2 (Government): The government would be happy to provide further information in writing if that is what is required by the court in the briefness of the time.
GR2 (Government): This is all we can say on this question.
Linos-Alexandre Sicilianos (JudgeP): There have been… Mr. Altıparmak, would you like to take the floor very briefly
Linos-Alexandre Sicilianos (JudgeP): to react to clarification questions?
AP4 (Applicant): As to the question whether we have evidence, yes we have and we will submit to the court.
AP4 (Applicant): In every single case the applicant under trial, he submitted that his speeches for within the scope of paragraph one of article 83.
AP4 (Applicant): Not only in the case that is pending before the court, but also other cases that are pending in different courts in different places.
AP4 (Applicant): Indeed, lawyers of the applicant even asked the courts to appoint an expert to compare the speeches at the parliament and outside the parliament to decide whether this falls within paragraph one article 18, sorry 83 of the constitution.
AP4 (Applicant): So we will provide this information to you.
AP4 (Applicant): Secondly, yes on 29th of July 2019, 2015 members of HDP presented a petition to the parliament to lift the immunity.
AP4 (Applicant): But I draw your attention, this was a political movement because on 28th of July, as we submitted in our visual aids, the president made a speech.
AP4 (Applicant): He invited parliament to lift immunities of HDP members to send them into prison.
AP4 (Applicant): As a reaction, as a political protest, HDP MPs submitted this petition to the parliament.
AP4 (Applicant): And yes, of course, facts cannot be changed, but the legal definition of an act can be changed at the judicial process.
AP4 (Applicant): However, the applicant first prosecuted for terrorist propaganda, then it was converted to membership, then it became running a terrorist organization.
AP4 (Applicant): We are talking about someone who became a candidate in presidential elections, who was the leader of the second largest party in the country.
AP4 (Applicant): And according to the government, he ran a terrorist organization for 12 years, and the government and all authorities ignored and waited the lift of immunity.
AP4 (Applicant): This is completely implausible.
AP4 (Applicant): And then a fast track of the case before the court of appeal was real or not.
AP4 (Applicant): At the last moment, the government presented a document to you, but now you have our document before you.
AP4 (Applicant): So I think they cannot deny the numbers in that.
AP4 (Applicant): An ordinary appeal before the court of appeals in Istanbul continues more than 350 days.
AP4 (Applicant): And after the judgment of the chamber, in 40 days, the applicant's conviction in a separate trial was approved by the court at Istanbul.
AP4 (Applicant): The government doesn't make clear what is the content of the cases submitted in this list.
AP4 (Applicant): Normally, a court of appeal in Istanbul cannot decide about terrorist propaganda case in 40 days.
AP4 (Applicant): Now I give the floor to Professor Cella.
AP2 (Applicant): Just a few points of clarifications from me.
AP2 (Applicant): Now, the government said that it is possible to propose a law.
AP2 (Applicant): You don't have to be physically in Parliament to actually do that.
AP2 (Applicant): This is a very abstract argument in many ways.
AP2 (Applicant): And there's one concrete example.
AP2 (Applicant): Mr. Demirtas wrote a speech that he
AP2 (Applicant): wanted to be read in Parliament on behalf of him.
AP2 (Applicant): So the way that this happens is that he's in detention in high security prison.
AP2 (Applicant): It's not that Mr. Demirtas has internet access, books,
AP2 (Applicant): and regular visitors.
AP2 (Applicant): He can only access lawyers.
AP2 (Applicant): He can only write things by hand.
AP2 (Applicant): And he passes these things on.
AP2 (Applicant): And even when he actually wrote a speech, the Parliament did not accept this piece of thing.
AP2 (Applicant): There was a huge difficulty of taking this document outside of prison.
AP2 (Applicant): These are all subject of pending court cases in domestic courts and in domestic constitutional courts.
AP2 (Applicant): So the story, the larger context, is much, much larger.
AP2 (Applicant): And there are lots of concrete evidence that the fact that you don't have to be physically in Parliament does not translate to anything concrete in the case and in a lot of other pending applications.
AP2 (Applicant): In the concept of who's a member of a terrorist organization, I also refer the court to Imret and Bakir judgments.
AP2 (Applicant): These are very recent judgments.
AP2 (Applicant): But it might also be helpful to go back in history just a little bit and maybe go back to the judgment of DTP.
AP2 (Applicant): This was a banning of a political party, a banning of a Kurdish political party case, where the court in great length discussed very similar issues that we are discussing here today way back in time.
AP2 (Applicant): I think you would also find the unforeseeability discussion.
AP2 (Applicant): What is a terrorist organization?
AP2 (Applicant): How do you get instructions and so on and so forth?
AP2 (Applicant): This sort of ambiguity is systematic.
AP2 (Applicant): And this is really running through the resources, the discussions of the court's case law for well over a decade.
AP2 (Applicant): Finally, on the question of instructions and this tweet and that the tweet's authenticity was not confirmed.
AP2 (Applicant): Now, the situation is respectfully slightly different.
AP2 (Applicant): Mr. Demirtas said this tweet is fake.
AP2 (Applicant): He's asked the court to verify its authenticity.
AP2 (Applicant): So he's demanded this, and the trial court hasn't done that.
AP2 (Applicant): So I think the argument is not that the tweet is real.
AP2 (Applicant): I think the more factually correct statement, if we go with the argument, is that its authenticity has never been verified.
AP2 (Applicant): This also goes with a lot of audio surveillance texts that you have read in the constitutional court judgments and respectfully, unfortunately, also in the chamber judgment, audio surveillance recordings about some conversations that took place in April 2013.
AP2 (Applicant): To this day, there is not a single verified authentic evidence that the speeches or the texts that you read relating to April 2013 are indeed the voice of Mr. Demirtas.
AP2 (Applicant): They were obtained through audio surveillance, and the courts to this day have not authenticated any of these audio surveillance tapes that the constitutional court and the chamber has used as evidence for detention of Mr. Demirtas.
Linos-Alexandre Sicilianos (JudgeP): Thank you. We have now come to the end of the hearing.
Linos-Alexandre Sicilianos (JudgeP): I thank the parties and the third party for their submissions and answers to the court's questions.
Linos-Alexandre Sicilianos (JudgeP): The court will now deliberate.
Dean Spielmann (JudgeP): Je vous prie de vous asseoir.
Dean Spielmann (JudgeP): Je déclare ouverte l'audience publique sur le fond de l'affaire del Río Prada contre Espagne.
Dean Spielmann (JudgeP): L'affaire a été introduite devant la Cour le 3 août 2009 par une ressortissante espagnole, madame Inés del Río Prada, en vertu de l'article 34 de la Convention.
Dean Spielmann (JudgeP): Elle a été attribuée à la troisième section de la Cour, conformément à l'article 52, paragraphe 1, du règlement de la Cour.
Dean Spielmann (JudgeP): Le 10 juillet 2012, une chambre de la troisième section a rendu son arrêt dans l'affaire.
Dean Spielmann (JudgeP): Le 4 octobre 2012, le gouvernement a demandé le renvoi de l'affaire devant la grande chambre, conformément à l'article 43 de la Convention, et cette demande a été acceptée par le collège de la grande chambre le 22 octobre 2012.
Dean Spielmann (JudgeP): Le gouvernement est représenté par monsieur Francisco Sanz Gandasegui, agent, et monsieur Isaac Salama, agent, ainsi que par monsieur Jaime Requena Juliani et monsieur Javier  Nistal  Burón, conseiller.
Dean Spielmann (JudgeP): La requérante est représentée par maître Mark Muller QC, maître Sudhanshu Swaroop et maître Michael Ivers, conseiller, ainsi que par maître Amaia Izko, maître Urko Aiartza et maître Didier Rouget, conseiller.
Dean Spielmann (JudgeP): Je salue également une délégation du Haut conseil des juges et des procureurs de Turquie, une délégation de la Cour de cassation française, une délégation de juges russes, ainsi qu'une délégation de juges ukrainiens en visite à la Cour européenne des droits de l'homme.
Dean Spielmann (JudgeP): Ayant consulté l'agent du gouvernement et les représentants de la requérante, j'ai fixé ainsi l'ordre de parole.
Dean Spielmann (JudgeP): Nous entendrons successivement maître Muller, maître Swaroop, maître Ivers pour la requérante, puis monsieur Salama pour le gouvernement.
Dean Spielmann (JudgeP): Je dois expliquer qu'en plus de l'interprétation dans les deux langues officielles de la Cour, l'anglais et le français, l'interprétation en espagnol a été autorisée à la demande du gouvernement espagnol.
Dean Spielmann (JudgeP): En outre, l'interprétation en turc et en russe a été autorisée au profit des groupes de magistrats turcs et russes.
Dean Spielmann (JudgeP): La parole est à maître Muller.
AP3 (Applicant): Mr. President, distinguished judges, I will address you briefly on what we say this case
AP3 (Applicant): is about and how the applicant meets the government's principal points of appeal.
AP3 (Applicant): Mr. Swaroop will then address you on Article 7, followed by Mr. Ivers on Article 5 and
AP3 (Applicant): 46.
AP3 (Applicant): But perhaps I can just start my address with this brief observation.
AP3 (Applicant): Mrs. Rio del Prado did not select her final sentence.
AP3 (Applicant): It was imposed upon her.
AP3 (Applicant): All we ask is that that sentence be implemented in accordance with the rule of law.
AP3 (Applicant): Nothing more, nothing less.
AP3 (Applicant): There shall be no special pleading on her behalf.
AP3 (Applicant): This case concerns the legality of an increase in the length of sentence imposed upon her as a consequence of the so-called Parrot ruling, which redefined the penalty to which her remission applied.
AP3 (Applicant): It ruled that remission was to henceforth apply to individual sentences originally imposed upon the applicant, and not to the combined sentence of 30 years that was fixed and notified to her at the end of a sentencing procedure under Articles 72 and 100 of the 1973 Criminal Code, which governed multiple offending.
AP3 (Applicant): In doing so, it overturned 30 years of administrative, prison and judicial practice, resulting in the applicant losing nine years' remission without further inquiry.
AP3 (Applicant): Unsurprisingly, she appealed to this Court, where the Third Section unanimously concluded that Spain had violated Articles 5 and 7.
AP3 (Applicant): The redefinition of the penalty for the purposes of calculating remission led to a retroactive extension in the scope of the penalty, inconsistent with the quality of law which was unforeseeable when the applicant's sentence was combined, fixed and notified to her.
AP3 (Applicant): It follows that it is for the Government to demonstrate why this judgment is wrong and involves important points of law that affect the operation of the Convention.
AP3 (Applicant): We submit that the Chamber's treatment of the facts and the application of jurisprudence was entirely proper, and that, stripped bare from the surrounding politics, this is a very simple case indeed, albeit one that strikes at the very heart of the rule of law.
AP3 (Applicant): What this case is not about is politics or the applicant's political affiliation.
AP3 (Applicant): Neither is it about terrorism or the ability of the State to deal with new social realities.
AP3 (Applicant): Rather, it is about the universal application of the rule of law and the lawful circumstances in which a State is permitted to deprive a person of his or her liberty.
AP3 (Applicant): The applicant's case can be summed up by a single maxim uttered by Thomas Jefferson 240 years ago.
AP3 (Applicant): It is more dangerous that even a guilty person be punished without the forms of law that he should escape.
AP3 (Applicant): This principle of legality underpins all civilised systems of justice, and it is one that Europe jettisons at its peril.
AP3 (Applicant): Article 5 and 7 both prohibit without qualification any form of punishment or infringement of liberty without forms of law.
AP3 (Applicant): They stand as a bulwark against State arbitrariness.
AP3 (Applicant): The entitlement to be sentenced to a fixed, final and clearly defined legal penalty is a principle that applies in every Member State.
AP3 (Applicant): If ever there was a court that was brought into existence to uphold Jefferson's maxim, it is this one, and that is why we commend the section judgment to this court.
AP3 (Applicant): The Government's case would appear to have three strands to it.
AP3 (Applicant): As regards Article 7, it submits that the Chamber failed to distinguish between penalty and an execution, thereby trespassing upon the right of States to set their own remission and parole policies.
AP3 (Applicant): The 2006 ruling, they say, merely clarified the rules relating to remission as opposed to the imposition of a penalty.
AP3 (Applicant): Accordingly, Article 7 should never have been invoked.
AP3 (Applicant): To that we say, the ruling did not just clarify the rules relating to remission, it redefined the penalty to which those rules applied.
AP3 (Applicant): It switched a fixed, combined, notified and unitary term of 30 years' imprisonment to which remission singly applied for eight separate sentences that operated consecutively and to which, as a consequence, remission applied consecutively.
AP3 (Applicant): The switch extended the scope of the penalty.
AP3 (Applicant): That is why the Chamber held that even if it accepted that the calculation of remission fell outside the scope of Article 7, and I quote, the way in which the provisions of the Criminal Code of 73 were applied went beyond this.
AP3 (Applicant): The new means of calculating remission, and I quote, not only concerned the execution of the applicant's sentence, the measure also had a decisive impact on the scope of the sentence imposed.
AP3 (Applicant): Mr President, Mr Swarup will develop this point, but it is important to note at the outside that the last sentence in court judicially accumulated all the individual cases together after concluding there was a sufficient nexus between the offences in accordance with the Code.
AP3 (Applicant): As a result, it fixed and notified the applicant of a final sentence of 30 years, which the Supreme Court's own 1990 Order identifies as the penalty to which rules concerning execution apply.
AP3 (Applicant): Thus, the 2008 ruling against our client either applied remission to a penalty not notified to her when she was finally sentenced, or redefined the penalty retrospectively.
AP3 (Applicant): Either way, Article 7 is invoked.
AP3 (Applicant): Further, where the penalty and rules relating to execution are so entwined, the first test to apply is the legality test.
AP3 (Applicant): The Chamber held the distinction between the scope of the sentence imposed on the applicant and the manner of its execution was not immediately apparent within the meaning of cas caris.
AP3 (Applicant): It therefore sought to ascertain whether the penalty was sufficiently clear, ascertainable and foreseeable as to satisfy the quality of law.
AP3 (Applicant): The redefined penalty was not foreseeable given the 35-year long administrative and court practice of applying remission to the combined sentences under the 1973 Code.
AP3 (Applicant): Thus, while the Chamber agreed with the Government that Spanish law was sufficiently formulated within the meaning of cas caris when the decision to combine the sentences were pronounced, it concluded that it was difficult or even impossible for the applicant to foresee the Supreme Court's departure from precedent.
AP3 (Applicant): Boiled down, the Government's case rests upon the assertion that the applicant knew she had to serve the imposed penalties successively in order of severity.
AP3 (Applicant): She did not, and could not know, this at the time when she was finally sentenced, even with appropriate legal advice for the reasons set out by the section in its judgment.
AP3 (Applicant): Thus, the execution point has little relevance as the measure falls at the first hurdle of not satisfying the quality of law.
AP3 (Applicant): Even if it didn't, not one of the cases relied upon by the Government are analogous as the 2008 ruling altered the penalty notified to the applicant.
AP3 (Applicant): The complaints about misapplication of case law are therefore erroneous.
AP3 (Applicant): More devastatingly, the execution distinction is totally irrelevant to Article 5.
AP3 (Applicant): All that need be established is that the infringement of liberty was not prescribed by law.
AP3 (Applicant): That is akin to the quality of law test.
AP3 (Applicant): The Government's failure to engage with Article 5 is deafening and determinative of the case, irrespective of its points under Article 7.
AP3 (Applicant): In conclusion, the imposition of a nine-year imprisonment breached both Articles as remission was either applied to a penalty not previously fixed or notified, or one rendered so unforeseeable by the departure from precedent as to no longer satisfy the quality of law.
AP3 (Applicant): Now Mr Sarup will deal evidentially with the Government's argument about the legitimate expectation concerning ETA and the failure to apply for remission.
AP3 (Applicant): I simply note that the remission system was not discretionary but applied automatically to all prisoners who came within its terms, and that the test of foreseeability relates to the penalty imposed for the act committed and not to the policy of an armed group towards its execution.
AP3 (Applicant): That leaves the allegation that the Chamber improperly interfered with precedent and the ability of the courts to adapt the interpretation to deal with new social realities.
AP3 (Applicant): This submission is unsupported by any facts or law.
AP3 (Applicant): Left unbounded, it strikes at the very core of the rule of law.
AP3 (Applicant): The role of the court is to apply and interpret law.
AP3 (Applicant): It is not to adapt the interpretation of previously settled case law to deal with new social realities which society has failed to legislate for.
AP3 (Applicant): That is the preserve of the legislature and executive.
AP3 (Applicant): In this case, Parliament brought in a new Code in 1995 that abolished remission for multiple offenders but left undisturbed the previous practice for those sentenced under the 1973 Code.
AP3 (Applicant): What the parent ruling did was legislate through the back door what the Executive and Parliament failed to do through the front.
AP3 (Applicant): The Government cannot point to a single case where a court is permitted to do the same.
AP3 (Applicant): In every case it cites, the changes of remission occurred by way of legislative order.
AP3 (Applicant): Even if some new social reality existed, by itself this could not justify the reinterpretation of law, so as to apply retrospectively or to breach the Scopala Edict to apply the most lenient sentencing regime.
AP3 (Applicant): Even in combating terrorism, the UN 2005 Global Strategy makes clear that measures should not be introduced that breach fundamental principles of justice.
AP3 (Applicant): So in conclusion, we say the simple question in this case is whether Spain was entitled to impose an additional nine years of imprisonment on an applicant by retrospectively using original and harsher penalties for the purposes of calculating remission when those penalties were neither foreseeable, fixed or notified to the applicant at the time her individual sentences were combined by the last sentence in court in accordance with the Code.
AP3 (Applicant): To that we submit the answer is manifestly no for all the reasons we cite in our addresses and our pleadings.
AP3 (Applicant): I call upon Mr Swarup to develop those arguments.
Dean Spielmann (JudgeP): Thank you Mr. Muller. I give the floor to Mr. Swaroop.
AP2 (Applicant): I will address the applicant's claim under Article 7.
AP2 (Applicant): I have three points to make.
AP2 (Applicant): First, as indicated by Mr. Muller,
AP2 (Applicant): the government's case in relation to the penalty execution distinction is, with respect, flawed.
AP2 (Applicant): The government argues that there has not been any change to the penalty imposed on the applicant, that the measures at issue concern only rules as to the execution of the penalty, and that, therefore, there was no breach of Article 7.
AP2 (Applicant): The issue requires an analysis of Articles 70 and 100 of the Spanish 1973 Criminal Code.
AP2 (Applicant): Article 70, paragraph 2, provided, broadly speaking, that where, as in this case, multiple sentences were imposed, the maximum term to be served was 30 years.
AP2 (Applicant): Article 100 governed the question of remission.
AP2 (Applicant): It stated literally that remission was applied only to, I quote, the penalty imposed.
AP2 (Applicant): The government itself makes this point in paragraph 14 of its submissions.
AP2 (Applicant): From the time of the applicant's offenses, at the time of her convictions, and at all times thereafter, at least until 2006, it was the practice of the Spanish courts and authorities in the case of multiple offenses to treat the 30-year maximum term under Article 70 as the penalty imposed, and therefore, the penalty to which remission applied under Article 100.
AP2 (Applicant): That much does not appear to be seriously in dispute, as recorded in paragraph 41 of the section judgment.
AP2 (Applicant): Quote, the government admitted that prior to the Supreme Court judgment of 2006, it was the practice of the prisons and the courts to consider the 30-year time limit established in Article 70, paragraph 2, as a sort of new independent sentence to which prison benefits should be applied.
AP2 (Applicant): I also refer to the facts and matters set out in paragraph 23 of our submissions.
AP2 (Applicant): These include the Supreme Court's own 1990 order, which determined that the combining of sentences under Article 70 concerned not the execution, but the fixing of the sentence, involving, quote, a decision on the final determination of the penalties.