SECOND SECTION
CASE OF EKŞIOĞLU AND MOSTUROĞLU v. TURKEY
(Applications nos. 2006/13 and 10857/13)
 
 
 
 
JUDGMENT
 
STRASBOURG
15 June 2021
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Ekşioğlu and Mosturoğlu v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
 Valeriu Griţco, President,
 Branko Lubarda,
 Pauliine Koskelo, judges,
and Stanley Naismith, Section Registrar,
Having regard to:
the applications (nos. 2006/13 and 10857/13) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr İlhan Yüksel Ekşioğlu and Mehmet Şekip Mosturoğlu (“the applicants”), on 30 November 2012;
the decision to give notice to the Turkish Government (“the Government”) of the complaints concerning independence and impartiality of the Arbitration Committee and access to a court, the use of intercepted telephone conversations in those proceedings and the applicants’ right to presumption of innocence on account of the reasoning and the wording of the Arbitration Committee decision and to declare inadmissible the remainder of the applications;
the parties’ observations;
Having deliberated in private on 18 May 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applicants are former executives of a football club in Turkey. The cases concern disciplinary proceedings against them before the Arbitration Committee of the Turkish Football Federation on the charge of influencing match results. THE FACTS
2. The applicants were born in 1966 and live in Istanbul. The first applicant was represented by Mr E. Şen, a lawyer practising in Istanbul. The second applicant was represented by N. Karakaya, another lawyer practising in Istanbul. 3. The Government were represented by their Agent. Circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows. Background of the case: criminal proceedings against the applicants and telephone tapping measures
5. In the context of several criminal investigations initiated on an unspecified date in 2011 concerning an organised crime activity including match-fixing and fraudulent dealings within the football community, fixed and mobile telephone numbers of certain football players, coaches and club executives, including the applicants, were tapped pursuant to decisions of the Istanbul Assize Court. The tapping the first applicant’s telephone lines was authorised on suspicion of the offence of setting up a criminal organisation and was granted initially for three months on 22 February 2011 and extended until 22 August 2011. It appears that the tapping of the second applicant’s telephone line was also authorised on 15 March 2011 on suspicion of the offence of setting up a criminal organisation but the parties did not submit to the Court the relevant judicial decision or specify for how long the measure had been authorised. 6. On 7 July 2011 the applicants were placed in pre-trial detention. 7. On 2 November 2011 the Istanbul public prosecutor filed a bill of indictment in respect of ninety-three suspects with the Istanbul Assize Court. The applicants were charged under Article 220 of the Criminal Code (Law no. 5237) with setting up, or taking part in, an organisation with a view to committing offences, and under Article 158 § 1 (d) with aggravated fraud, and under section 11 §§ 1, 4(b) and (c), and 5 of Law no. 6222 on the Prevention of Violence and Disorder in Sports with match-fixing in a number of matches played in the super league and giving incentive bonuses to players with a view to influencing the match results. 8. On 2 July 2012 the Istanbul Assize Court sentenced the applicants to one year and three months’ imprisonment pursuant to Articles 220 § 2 and 62 of the Criminal Code for being members of a criminal organisation with a view to influencing match results in the Turkish professional super league. The court decided to suspend the pronouncement of the judgment in respect of those convictions. As to the charges of match-fixing and giving incentive bonuses under section 11 of Law no. 6222, it sentenced the first applicant to one year twenty-five months and fifteen days of imprisonment and a judicial fine of 900,000 Turkish liras (TRY) on account of fixing matches that had taken place on 15 and 22 May 2011 respectively and for providing incentive bonuses to players in respect of matches that had taken place on 17 and 22 April 2011 and 15 May 2011. The court sentenced the second applicant to one year four months and fourteen days of imprisonment and a judicial fine of TRY 100,000 on account of attempted fixing of the matches that had taken place on 8 and 15 May 2011 respectively, and of the offence of providing incentive bonuses in respect of the match of 22 April 2011. The court acquitted the applicants of the same charges in respect of matches that had taken place on various dates between 22 February to 9 April 2011 on account of the fact that Law no. 6222 which criminalised the act of match-fixing and providing incentive bonuses post-dated those matches. The court further banned the applicants from serving in the executive or supervisory organs of sports clubs and federations during the execution of their sentences. 9. On 17 January 2014 the Court of Cassation upheld the first applicant’s conviction of the offences under section 11 of Law no. 6222 and quashed the second applicant’s conviction under Law no. 6222. 10. In the meantime, by way of an amendment to Articles 135 and 140 of the Code of Criminal Procedure (CCP) on 21 February 2014, offences regulated under Article 220 of the Criminal Code were removed from of the catalogue list of offences for which interception, monitoring and recording of communications could be authorised. 11. On an unspecified date the first applicant made a request for the reopening of the criminal proceedings on the basis of the amendments made to Articles 135 and 140 of the CCP. 12. The Istanbul Assize Court granted the first applicant’s request for reopening and continued the examination of the case against the applicants under the same file. On 9 October 2015 the court acquitted the applicants of the offences of match-fixing and providing incentive bonuses. At the time of the parties’ submissions to the Court the appeal proceedings were ongoing before the domestic courts. 13. Furthermore, criminal proceedings known as the “conspiracy case” (kumpas) were brought against the people allegedly involved in irregularities committed during the criminal proceedings against the applicants and other defendants. At the time of the parties’ submissions to the Court this trial was ongoing before the domestic courts. Proceedings relevant to the cases: disciplinary proceedings against the applicants before the Turkish Football Federation
14. By letters of 16 August 2011 and 3 January 2012 the Turkish Football Federation referred the applicants to its Professional Football Disciplinary Committee (PFDK) in connection with the criminal investigation against them concerning match-fixing charges. 15. The applicants were asked to submit their defences in writing. Both applicants objected to the use of their tapped telephone recordings as evidence in the disciplinary proceedings. They argued in that respect that the act of match-fixing had not been a criminal offence before the enactment of Law no. 6222 on 14 April 2011 and that therefore any use of the records of their telephone conversations prior to that date had been unlawful. Secondly, for the period concerning 14 April 2011 to 3 July 2011 they submitted that the authorisation to intercept their communications had been given only for the offence of setting up a criminal organisation and not for match-fixing, and in this respect too, the obtaining and use of the communications had been unlawful. They further noted that the match referees’ and observer reports and match recordings should have been the primary evidence for the proceedings in question but that the disciplinary investigation had made no use of them. 16. On 6 May 2012 the PFDK decided by a majority to sanction the first applicant with three years’ suspension for attempting to influence matches that had taken place on 7 March 2011, 22 April 2011 and 15 May 2011 and the second applicant with one year suspension for attempting to influence the match played on 22 April 2011, pursuant to section 58 § 2 of the Football Disciplinary Regulations. In finding the applicants culpable of the offence, the PFDK relied to a great extent on the intercepted telephone conversations between 28 February 2011 and 18 May 2011 in respect of the first applicant and the telephone conversations of 15 May 2011 in respect of the second applicant and the physical surveillance records of other individuals allegedly going into the office of the first applicant. 17. On 19 May 2012 the applicants appealed against the decision of the PFDK to the Arbitration Committee. On an unspecified date the president of the Arbitration Committee recused himself from the case. 18. On 4 June 2012 the Arbitration Committee unanimously dismissed the appeal, considering that the TFF authorities were not bound by any rules on evidence in disciplinary proceedings so long as the evidence in question was not unlawfully obtained. In that respect the Arbitration Committee considered that the use of intercepted telephone conversations of the applicants as evidence of influencing match results could not be qualified as unlawful on account of the provisions of the Criminal Code of Procedure (CPP), which allowed the use of evidence that had been obtained during surveillance of communications that did not relate to the measure for which surveillance was authorised but nevertheless gave rise to a suspicion that a catalogue offence had been committed. The Arbitration Committee considered therefore that even though the interception of the applicants’ telephone conservations had been authorised on account of suspicion of setting up a criminal organisation, the evidence obtained during surveillance had given rise to suspicion of the offence of match-fixing, which was an offence for which surveillance could be authorised. The Arbitration Board’s decision was final and not subject to any judicial review pursuant to Article 59 of the Constitution. RELEVANT LEGAL FRAMEWORK
Turkish football federation
19. The TFF was established in 1923 to govern football in Turkey. As the sport’s national federation, it is the highest authority regulating and overseeing all aspects of professional and amateur football in the country. The relevant legal framework concerning the resolution of football disputes and the exclusive jurisdiction of the Arbitration Committee of the TFF in the resolution of disputes relating to administration and discipline of football can be found in Ali Rıza and Others v. Turkey, nos. 30226/10 and 4 others, §§ 45- 22, 28 January 2020. 20. Section 58 of the Football Disciplinary Directive, as in force at the relevant time, defined the disciplinary offence of influencing a match result as exerting or attempting to exert an unlawful or undue influence incompatible with sports ethics. Providing an incentive bonus to a player or a sports club was also considered as culpable behaviour in this context. The corresponding sanction for influencing a match result ranged from one year to three years of suspension for real persons and relegation to a lower league for sports clubs. Section 99 defined the scope of the sanction of suspension by stating that those who are banned cannot participate in football matches, cannot carry out administrative, sporting or any other activity relating to football and cannot enter stadiums.
relevant criminal law Provisions
21. The relevant provisions of Law no. 6222 on the Prevention of Violence and Disorder of Sports, which entered into force on 14 April 2011, provide as follows:
“11- Match-Fixing and Incentive Bonus
1. Any person who gives financial advantage or other gain for another person in exchange for influencing the result of a sporting competition shall be liable to a term of imprisonment of one to three years and a judicial fine of up to twenty thousand days. Those on whom a financial advantage or other gain is given shall be considered as accomplices. An agreement on financial advantage or other gain shall suffice for commission of the offence.
... 3. If no agreement is reached but an offer to provide financial advantage or other gain is made, provisions relating to attempt shall apply.
4.  ... the penalty should be increased by half in the event that the offence is committed
 (b)  by executives of the Federation or a sports club... (c)  within the activities of an organisation set up with a view to committing crimes. 5. If the offence is committed by means of providing or promising an incentive bonus in order for a sports team to prevail in a match, the penalty shall be reduced by half.
.... 9. The suspension of pronouncement of judgment provisions [...] shall not be applicable in respect of the offences herein.”
“23 – Provisions regarding proceedings
... 2. Article 135 of the Criminal Code of Procedure shall be applicable in respect of the offences listed in section 11 of this law...”
22. Article 135 of the CPP (Law no. 5271) concerning the interception and recording of communications and Article 138 § 2 governing the case of “coincidental evidence” obtained during interception that does not relate to the offence for which authorisation was given but to another catalogue offence listed in Article 135 can be found in the Karabeyoğlu v. Turkey (no. 30083/10, §§ 39-48, 7 June 2016). THE LAW
JOINDER OF THE APPLICATIONS
23. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 2 OF THE CONVENTION
24. The first applicant, under Article 6, and the second applicant under Articles 6 and 13 of the Convention, complained that the Arbitration Committee lacked independence and impartiality on account of the Turkish Football Federation’s management and influence on the Board. They further complained that the recusal of the Arbitration Committee’s president, without disclosing the reasons for doing so, had been incompatible with the same provision of the Convention. They further complained under Article 6 § 2 of the Convention that their right to be presumed innocent had been violated in the proceedings before the Turkish Football Federation on account of the reasoning and wording employed by the Arbitration Committee before the criminal proceedings on identical charges were final. The Court considers that these complaints fall to be examined under Article 6 §§ 1 and 2 only (see Sukhorubchenko v. Russia, no. 69315/01, § 60, 10 February 2005; mutatis mutandis, Assanidze v. Georgia [GC], no. 71503/01, § 187, ECHR 2004‑II; and Popov v. Moldova (no. 1), no. 74153/01, § 58, 18 January 2005), the relevant part of which reads as follows:
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
25. The Government contested the applicants’ complaints. AdmissibilityApplicability ratione materiae of Article 6 § 1 to disciplinary proceedings before the TFF

26. The Government considered that Article 6 § 1 of the Convention was not applicable to the proceedings before the TFF. They submitted that disputes concerning the administration and discipline of sports activities were of exclusive concern to the sports community and could not be characterised as falling within the scope of civil rights or obligations. 27. The applicants contended that the disciplinary proceedings concerned their civil rights in as much as they resulted in the temporary suspension from their executive duties. 28. The Court notes that the proceedings at issue did not relate to the determination of a criminal charge, and for this reason the criminal limb of Article 6 § 1 does not apply (see, mutatis mutandis, Denisov v. Ukraine [GC], no. 76639/11, § 43, 25 September 2018). 29. However, the Court has consistently held that disciplinary proceedings in which the right to continue to exercise a profession is at stake give rise to disputes (“contestations”) over civil rights within the meaning of Article 6 § 1 (see, inter alia, König v. Germany, 28 June 1978, §§ 87-95, Series A no. 27, and Di Giovanni v. Italy, no. 51160/06, § 36, 9 July 2013). Since the applicants’ right to continue to serve as executive officials in the sports club was at stake in the disciplinary proceedings against them, the Court considers that Article 6 § 1 is applicable under its civil head. 30. The Court therefore finds that Article 6 is applicable ratione materiae to the disputes forming the subject matter of the disciplinary proceedings before the TFF to which the applicants were parties. Applicability of Article 6 § 2 in the context of the disciplinary proceedings before the TFF
31. Article 6 § 2 safeguards the right to be “presumed innocent until proved guilty according to law”. The Court has acknowledged in its case-law the existence of two aspects to the protection afforded by the presumption of innocence: a procedural aspect relating to the conduct of the criminal trial, and a second aspect which aims to ensure respect for the applicant’s established innocence in the context of subsequent proceedings where there is a link with criminal proceedings which have ended with a result other than a conviction (see, generally, Allen v. the United Kingdom [GC], no. 25424/09, §§ 93-94, ECHR 2013). Under its first aspect, the principle of presumption of innocence prohibits public officials from making premature statements about the defendant’s guilt and acts as a procedural guarantee to ensure the fairness of the criminal trial itself. However, it is not limited to a procedural safeguard in criminal matters: its scope is broader and requires that no representative of the State should say that a person is guilty of an offence before his guilt has been established by a court (Konstas v. Greece, no. 53466/07, § 32, 24 May 2011). In that connection, the Court reiterates that Article 6 § 2 applies where a court decision, rendered in proceedings which were not directed against the person concerned in his or her capacity as an “accused” but nevertheless concerned and had a link with criminal proceedings simultaneously pending against him or her, may have implied a premature assessment of the person’s guilt (see El Kaada v. Germany, no. 2130/10, § 37, 12 November 2015 with further references). 32. As to the period of time during which the presumption of innocence is applicable, the Court reiterates that Article 6 § 2 applies to everyone “charged with a criminal offence” within the autonomous meaning of this notion in the Convention, that is to say as of the official notification given to an individual by the competent authority of an allegation that he or she has committed a criminal offence (see Bikas v. Germany, no. 76607/13, § 30, 25 January 2018) or from the point at which his or her situation has been substantially affected by actions taken by the authorities as a result of a suspicion against her or him (see Simeonovi v. Bulgaria [GC], no. 21980/04, §§ 110-11, 12 May 2017 and the case-law cited therein). 33. Turning to the circumstances of the present case, the Court notes that the applicants were placed in pre-trial detention on 7 July 2011 and charged with, inter alia, match-fixing offences in the bill of indictment lodged with the criminal court on 2 November 2011. Following their placement in pre-trial detention and the commencement of criminal proceedings, the TFF started a disciplinary investigation against the applicants. The Court notes in that connection that the parties do not dispute the fact that the disciplinary proceedings against the applicants leading to their suspension from their executive duties were directly related to the events leading to the criminal proceedings. The fact that the disciplinary authorities of the TFF examined the criminal file and based their reasoning solely on its contents – and specifically on the transcripts of the applicants’ tapped telephone conversations which had been authorised for the criminal proceedings – is sufficient to enable the Court to conclude that a strong link existed between the criminal and disciplinary proceedings that rendered Article 6 § 2 applicable in the context of the latter. Thus, the authorities in the disciplinary proceedings, including the Arbitration Committee, were under a duty not to call into question the applicants’ innocence vis-à-vis the offences they had been charged in the criminal proceedings. It therefore follows that this part of the applications is not incompatible ratione materiae with the provisions of the Convention. Exhaustion of domestic remedies
34. The Government argued that the applicants had not exhausted the available remedies against the Arbitration Committee’s decision. While they admitted that the Arbitration Committee’s decision had been final and not amenable to any appeal, they argued that the applicants could have requested the reopening of the proceedings. 35. The applicants submitted that an application to reopen the proceedings could not be considered an effective remedy in their case. They argued that such applications were only admissible if there were valid grounds justifying the reopening of the proceedings. According to section 93 of the disciplinary regulations, only a situation where evidence previously relied on by the disciplinary authorities was perjured or new evidence came to light that could affect the outcome of the proceedings or amendments were made to legislation providing for favourable provisions could be considered as valid grounds. In their case, while their criminal conviction had been overturned, the proceedings before the criminal courts had still been ongoing and were not final and for this reason they could not request a retrial of the disciplinary proceedings. 36. The Court refers to its well-established case law concerning the obligation to exhaust domestic remedies, as summarised, for instance, in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). The Court reiterates that Article 35 § 1 of the Convention, which sets out the rules on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming non‑exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement. 37. The Court notes that the decision of 4 June 2012 of the Arbitration Committee was not susceptible to appeal before any court, including the Constitutional Court, and therefore was final. The provisions allowing for reopening do not suggest that a non-final acquittal in the criminal proceedings could be considered as valid grounds for reopening of disciplinary proceedings arising out of the same events. Furthermore, the Government have not provided any example from the practice of the PFDK in which a plea based on non-final acquittal in criminal proceedings has been successfully relied on in a situation comparable to that of the applicants. The Court therefore rejects the Government’s objection on the ground of non–exhaustion. Conclusion as to admissibility
38. The Court notes that the above-mentioned complaints made by the applicants are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. MeritsIndependence and impartiality of the Arbitration Committee

39. The Court observes that it has already examined the same grievance in the case of Ali Rıza and Others (cited above, §§ 201-222). In that judgment, the Court held that the Arbitration Committee could not be considered to have been independent and impartial within the meaning of Article 6 of the Convention because of the Board of Directors’ – the executive body of the TFF – had significant influence over the Arbitration Committee’s organisation and functioning. The Court further noted that the TFF law did not provide appropriate safeguards to protect members of the Arbitration Committee from any outside pressure and neither was there a specific procedure to deal with challenges to an Arbitration Committee member on the ground of lack of independence and impartiality (ibid., §§ 212 and 215). 40. The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned Ali Rıza and Others judgment (ibid., § 222).
41.

Outcome for Article 6: violation