ITEMID: 001-96484
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MAKARENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 5 - Right to liberty and security;Violation of Article 5 - Right to liberty and security;No violation of Article 6 - Right to a fair trial;No violation of Article 10 - Freedom of expression -{General}
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1949 and lived until his arrest in the town of Smolensk. He is a former deputy governor of the Smolensk Region.
6. On 24 October 2002 criminal proceedings were instituted against several officials of the Smolensk Regional Council on suspicion of money laundering and fraud.
7. On 2 December 2002 the applicant was arrested in the Smolensk Regional Prosecutor's office where he had been invited for questioning. He was transferred to the Smolensk Regional Department of the Federal Security Service (hereinafter – the FSB). A record of his arrest, drawn up at 2 p.m. on the same day and produced by the Government, indicated that certain documents were found and seized from the applicant's office. Those documents and other evidence, including witness statements, linked the applicant to or placed him in charge of private and State-owned enterprises implicated in money laundering and fraudulent activities and served as the basis for suspecting the applicant of having participated in an aggravated fraud. The relevant part of the record read as follows:
“[The applicant], who is suspected of having committed a serious criminal offence, was arrested according to subparagraphs 1, 2 and 3 of paragraph 1 of Article 91 of the Russian Code of Criminal Procedure, and because the pre-trial investigating authorities have sufficient grounds to believe that, if released, he may abscond..., threaten witnesses, destroy evidence or in any other way obstruct the investigation in the present case.”
The applicant signed the record, making a handwritten objection to his arrest and the accusations against him.
8. On the following day a senior investigator of the Smolensk Regional FSB Investigative Division, with the consent of the acting Smolensk Regional Prosecutor, lodged an application with the Leninskiy District Court of Smolensk, seeking authorisation for the applicant's detention on remand. The application contained a lengthy description of the fraudulent activities of a number of private and State-owned enterprises in which the applicant had allegedly taken part. The senior investigator also drew the District Court's attention to other circumstances warranting the applicant's detention, namely the likelihood that he would abscond and pervert the course of justice.
9. On 3 December 2002 the Leninskiy District Court authorised the applicant's detention, finding that he was accused of having committed a serious crime and that, if released, he might threaten witnesses, destroy evidence and obstruct justice.
10. The applicant's lawyer appealed against the decisions authorising the arrest and detention. In particular, she complained that there was no evidence which could serve as grounds for the applicant's arrest and that if such evidence did exist, it had not been listed in the record of the applicant's arrest. According to the lawyer, the authorities did not put forward any evidence justifying the conclusion that the applicant was liable to abscond or obstruct justice.
11. On 11 December 2002 the Smolensk Regional Court upheld the decision of 3 December 2002, holding as follows:
's application is substantiated because [the applicant] may threaten witnesses, destroy evidence in the case and obstruct adjudication of the case.”
12. Two weeks later, on 26 December 2002, the Leninskiy District Court rejected the lawyer's complaint concerning the applicant's arrest, finding that the arrest had been effected in compliance with Article 91 § 1 of the Russian Code of Criminal Procedure.
13. On 6 February 2003 the Smolensk Regional Court, endorsing the reasons given by the District Court, upheld the decision of 26 December 2002.
14. On 31 January 2003 the Leninskiy District Court extended the applicant's detention until 24 April 2003, holding that there were no grounds warranting his release.
15. The applicant's lawyer appealed. In particular, she complained that the District Court had not put forward any reason necessitating the extension of the applicant's detention.
16. On an unspecified date the Smolensk Regional Court upheld the decision of 31 January 2003.
17. On 22 April 2003 the Leninskiy District Court extended the applicant's detention until 1 June 2003, reasoning that additional time was required to perform certain investigative actions. The District Court further held as follows:
“[The applicant] is accused of having committed a serious criminal offence; the court remanded him in custody because he was charged with a serious criminal offence, thus, there are no grounds for a change or annulment of [the preventive measure].
The court takes into account that the detention is extended only for one month and eight days.
The court takes into account that [the applicant] has minor children, however, in determining the issue of the extension of detention, the court has regard to the fact that [the applicant] is charged with an offence under Article 159 § 3 (b) of the Russian Criminal Code, that is with having committed a serious crime for which the most lenient penalty is five years' imprisonment.”
18. The decision of 22 April 2003 was upheld on appeal.
19. On 30 May 2003 the Leninskiy District Court extended the applicant's detention until 1 September 2003, citing the same reasons as in the decision of 22 April 2003.
20. On 9 June 2003 the Smolensk Regional Court upheld the decision of 30 May 2003, accepting the District Court's reasoning that the applicant was charged with serious criminal offences and that the investigating authorities needed additional time.
21. On 2 July 2003 the applicant's lawyer applied for the applicant's release under his own recognisance not to leave the town. The lawyer argued that the need to hold the applicant in custody had long ceased to exist as the pre-trial investigation had been closed. The lawyer further pointed to circumstances making the applicant's absconding improbable: the applicant had three minor children and permanent places of residence and work, and before his arrest the investigating authorities had summoned him on several occasions and he had never defaulted.
22. On 11 July 2003 the Leninskiy District Court dismissed the request for release. It held that the applicant had been charged with aggravated fraud, money laundering, unlawful possession of ammunition and forgery of documents. A month later the Smolensk Regional Court upheld the decision, endorsing the District Court's findings.
23. On 25 September 2003 the Leninskiy District Court held a preliminary trial hearing, at which the applicant's lawyers petitioned for the applicant's release and discontinuation of the criminal proceedings against him. The District Court dismissed the request for release because the applicant was charged with serious criminal offences, and if released, could abscond or obstruct establishment of the truth. The District Court listed the first trial hearing for 8 October 2003.
24. The applicant's lawyers, Ms Liptser, Ms Karlova and Mr Kravchuk, appealed.
25. On 13 October 2003 the Leninskiy District Court returned the statement of appeal to Ms Liptser, stating that the applicant had refused her services.
26. Ten days later the president of Lawyer's office no. 10 of the Moscow City Bar Association informed the District Court that Ms Liptser and the applicant had signed an agreement according to which Ms Liptser had been entrusted with the authority to appeal against the decision of 25 September 2003. Ms Liptser's statement of appeal against the decision of 25 September 2003 was enclosed.
27. On 30 October 2003 the Leninskiy District Court accepted Ms Liptser's statement of appeal and sent it to the Smolensk Regional Court. Five days later the Regional Court, having heard the arguments by Ms Karlova and Mr Kravchuk, upheld the decision of 25 September 2003. The appeal statement lodged by Ms Liptser was examined by the Regional Court on 30 December 2003 and dismissed as unsubstantiated.
28. At the trial hearing on 8 October 2003 the Leninskiy District Court dismissed the applicant's lawyer's application for the applicant's release.
29. A week later the lawyer lodged an appeal against the District Court's decision.
30. On 18 November 2003 the Smolensk Regional Court, relying on Article 355 § 5 (2) of the Russian Code of Criminal Procedure, discontinued the appeal proceedings, finding that the release application had been examined and dismissed at the trial hearing and that such a decision was not amenable to appeal.
31. On 13 November 2003 the Leninskiy District Court held a trial hearing. At that hearing the applicant's lawyer asked for the applicant's release under his own recognisance. The District Court dismissed the request, noting that there were no grounds for the release.
32. The applicant's lawyer, invoking Article 5 § 3 of the Convention, appealed against the decision of 13 November 2003.
33. On 30 December 2003 the Smolensk Regional Court upheld the decision of 13 November 2003. The Regional Court held that the grounds warranting the applicant's detention had not changed and, thus, the request for release had been dismissed lawfully.
34. On 19 November 2003 the Leninskiy District Court dismissed another application for the applicant's release. It held that no new grounds authorising the applicant's release had been established. That decision was upheld on appeal on 30 December 2003 by the Smolensk Regional Court, which endorsed the District Court's reasoning.
35. On 24 November 2003 the applicant's lawyer requested the applicant's release on a written undertaking not to leave the town. The Leninskiy District Court refused to examine the request, finding that it was a mere restatement of the lawyer's previous release applications.
36. At the trial hearing on 29 December 2003 the applicant unsuccessfully asked the District Court to release him. On 6 April 2004 the Smolensk Regional Court examined the lawyers' appeal against the decision of 29 December 2003, upholding that decision as lawful. The Regional Court confirmed the District Court's opinion that there were no grounds authorising the applicant's release.
37. On 30 January 2004 the District Court adjourned the proceedings because the applicant's co-defendant was ill. The lawyers unsuccessfully petitioned for the applicant's release. On 16 March 2004 the Regional Court upheld the decision of 30 January 2004 because there were no new grounds justifying the release.
38. On 26 February 2004 the Leninskiy District Court extended the applicant's detention until 26 May 2004. The relevant part of the decision read as follows:
“[The applicant] is accused of having committed intentional mercenary and serious crimes. The circumstances which served as the basis for remanding [the applicant] in custody have not changed. New circumstances justifying [the applicant's] release ... have not appeared.
The trial investigation has not been finished, [the court] continues to examine the evidence. If released, the accused may obstruct establishment of the truth in the case, abscond or commit new crimes.”
39. On 30 March 2004 the Smolensk Regional Court endorsed the reasons given by the District Court on 26 February 2004 and upheld that decision.
40. On 26 May 2004 the Leninskiy District Court extended the applicant's detention until 26 August 2004 for the same reasons as in the decision of 26 February 2004. That decision became final on 6 July 2004, when the Regional Court upheld it on appeal, finding that the District Court had taken into account all relevant factors, including the applicant's personality, and that it had lawfully extended the detention.
41. On 28 June 2004 the Leninskiy District Court found the applicant guilty of aggravated fraud, unlawful possession of ammunition and forgery of documents and sentenced him to five years' imprisonment.
42. On 12 October 2004 the Smolensk Regional Court amended the judgment of 28 June 2004, discontinued the criminal proceedings on the forgery charge due to the expiration of the statutory limitation period and reduced the sentence by two months.
43. On the morning of 16 May 2002 the applicant's car was shot at several times. The applicant, his five-year old daughter, his bodyguard and his driver were in the car. The applicant was wounded, his bodyguard received serious injuries and the driver was killed.
44. On the same day the applicant gave a press conference, at which he accused Mr M., an FSB general and candidate in the upcoming election of the Smolensk Regional Governor, of having tried to kill him.
45. A complaint lodged by Mr M. with the Smolensk Regional Prosecutor led to the institution of criminal proceedings against the applicant on a charge of criminal libel on 18 May 2002.
46. On 19 August 2002 the applicant, in the presence of his lawyer, Ms Karlova, was served with the final text of the bill of indictment and was questioned as the accused. On the same day Ms Karlova began studying the case file, in compliance with the requirements of Article 53 of the Russian Code of Criminal Procedure. Two days later the applicant and Ms Karlova finished reading the file and made handwritten notes to that effect in a case file record.
47. On 29 August 2002 the applicant was committed to stand trial before the Justice of the Peace of the 7th Court Circuit of Smolensk, which, at the applicant's and Ms Karlova's request, fixed a preliminary hearing for 19 November 2002.
48. At the first trial hearing, held on 19 December 2002, the applicant successfully asked the Justice of the Peace to adjourn the proceedings to allow his lawyer to study the case file. On 22 January 2003 the Justice of the Peace granted another request by the applicant and allowed two other lawyers retained by the applicant to enter the proceedings.
49. A number of trial hearings were held between 22 January and 12 February 2003, at which the applicant was mostly represented by Ms Karlova.
50. At the trial hearing on 6 February 2003 the applicant notified the Justice of the Peace that he no longer intended to participate in the trial and that he had terminated his contracts with all his lawyers. On the same day the Justice of the Peace decided to proceed with the examination of the case in the applicant's absence, dismissed two of the applicant's lawyers from the proceedings and ordered that Ms Karlova, the applicant's third counsel, should continue representing him. The Justice adjourned the hearing until the afternoon of the same day. After the lunch break, the hearing resumed. Ms Karlova read out the applicant's repeated refusal of her services and left the courtroom, without waiting for the Justice's response to it.
51. On 7 February 2003 the Justice of the Peace held that Ms Karlova had committed contempt of court because she had left the courtroom without permission. The Justice also sent a notification to the President of the Smolensk Regional Bar Association concerning Ms Karlova's actions and asking him to ensure that she attended the following hearing.
52. Ms Karlova attended the following hearing. She informed the Justice that she refused to assist the applicant, referring to his refusal of her services.
53. At the following hearing, on 12 February 2003, Ms Karlova defaulted. The Justice of the Peace issued an interim order and again notified the Smolensk Regional Bar Association of Ms Karlova's actions.
54. On the same day the Justice of the Peace found the applicant guilty of aggravated libel and sentenced him to one year's probation. The Justice of the Peace based its judgment on testimonies by the victim and four witnesses who had attended the press conference given by the applicant, a written record and audio and video recordings of the press conference, a letter from the Smolensk Regional Police Department indicating that it had no information concerning participation by Mr M. in any illegal activities and a record of the applicant's questioning. The Justice of the Peace held, in particular:
“...the court characterises the actions of [the applicant]... as dissemination of false information defaming the honour and dignity of another person and damaging his reputation, connected to accusation of that person of having committed an especially serious criminal offence, because he, by oral statements [addressed] to a number of persons, disseminated false information concerning the organisation by Mr M. of the attempted murder of [the applicant]. He disseminated that information in an affirmative rather than a presumptive manner. Furthermore, [the applicant] knew that Mr M. was a top ranking governmental official who, at the time the statement was made, was running for election as Governor of the Smolensk Region, thus any discreditable information could damage his reputation in some way. The statements made by [the applicant] were false... unfounded and unsubstantiated: at the time the statements [were made] no criminal proceedings were instituted against Mr M. and no other investigative measures were taken by law enforcement agencies; the statement did not contain references to any reliable evidence or documents proving the truthfulness of the statement, or any reference to sources of information on the basis of which [the applicant] had concluded that Mr M. had participated in the criminal offence committed against him. Undisputedly, [the applicant] understood that, but he publicly and intentionally made the above-mentioned statement in the presence of representatives of the mass media, accusing Mr M. of having committed an especially serious crime, thereby defaming the victim, his honour and his dignity, and [the applicant], in his official position as the deputy Governor of the Smolensk Region, must have been aware of that.
At the meeting of the administration of the Smolensk Region of 16 May 2002, [the applicant] only put forward one piece of evidence to substantiate his statement about Mr M.'s involvement in the attempted murder: two days before the [attempted murder] General M. had threatened him ([the applicant]) in the presence of a deputy president of the Smolensk Regional Court, Mr A., and a deputy prosecutor of the Smolensk Region, Ms P. This submission ... was examined in the course of the trial but was not proven, because Mr A. and Ms P., questioned as witnesses in open court, did not confirm it. The court does not see any reason not to trust those witnesses. No other evidence proving the truthfulness of [the applicant's statement] was presented.
The court also notes that [there is evidence confirming] the defendant's intention to disseminate the false statements publicly (whatever his reasons) and thus to negatively influence people's opinion of the victim, in order to damage his reputation before the election: firstly, the affirmative, rather than presumptive character of the statement; the content of the [the applicant's] speech before and after the libellous statement; the dissemination of the false information at the meeting of the administration of the Smolensk Region, that is, to individuals who had no right to institute criminal proceedings and verify the statement; the fact that the statement was made on several occasions... after the attempted murder... and in the course of the pre-trial investigation... Moreover, the false character of the statement made by [the applicant] was confirmed by his confession made at a press conference on 28 May 2002, during which he had confirmed that as far as he knew Mr M. had not participated in the attempted murder, and [the applicant] had apologised.”
55. The applicant and his three lawyers appealed against the judgment of 12 February 2003. In particular, they complained that the Justice of the Peace had proceeded with the trial after the applicant refused to participate, and that it had forced Ms Karlova to represent the applicant despite the fact that he had refused the assistance of his three lawyers, including Ms Karlova. Ms Karlova also filed a separate appeal against the interim orders of 7 and 12 February 2003.
56. On 21 November 2003 the Leninskiy District Court of Smolensk, in the presence of the applicant and his three lawyers, upheld the judgment of 12 February 2003. As regards the applicant's complaint concerning his defence rights, the District Court held that under Russian law a lawyer could not refuse to represent a defendant if he had already undertaken such a responsibility. However, the defendant could refuse legal assistance. Such a refusal would not be binding on the court, if the defendant, at the same time, asked for the case to be determined in his absence. Thus, the Justice of the Peace had lawfully ordered that Ms Karlova should continue representing the applicant because the latter had not wished to participate in the trial, had refused the assistance of his lawyers and had not asked the trial court to appoint another lawyer.
57. On the same day the Leninskiy District Court upheld the interim orders of 7 and 12 February 2003.
58. On 27 January 2004 the Smolensk Regional Court, in the final instance, upheld the judgments of 12 February and 21 November 2003 and the interim orders of 7 and 12 February 2003. The applicant and two of his lawyers attended the hearing.
59. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”).
60. “Preventive measures” include an undertaking not to leave a town or region, a personal guarantee, bail and remand in custody (Article 89 of the old CCrP, Article 98 of the new CCrP).
61. The Russian Constitution of 12 December 1993 provides that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22).
Under the old CCrP, a decision ordering detention could be taken by a prosecutor or a court (Articles 11, 89 and 96).
The new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor, supported by appropriate evidence (Article 108 §§ 1, 3-6).
62. When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial, obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge, information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP, Article 99 of the new CCrP).
63. Before 14 March 2001, remand in custody was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the old CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years' imprisonment, if they had previously defaulted, had no permanent residence in Russia or their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had allegedly committed. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available.
64. The Codes make a distinction between two types of remand in custody, the first being “during investigation”, that is, while a competent agency – the police or a prosecutor's office – is investigating the case, and the second being “before the court” (or “during judicial proceedings”), at the judicial stage. Although there is no difference in practice between them (the detainee is held in the same detention facility), the calculation of the time-limits is different.
65. After arrest the suspect is placed in custody “during investigation”. The maximum permitted period of detention “during investigation” is two months but this can be extended for up to eighteen months in “exceptional circumstances”. Under the old CCrP, extensions were authorised by prosecutors of ascending hierarchical levels, but they must now be authorised by judicial decisions, taken by courts of ascending levels (under the new CCrP). No extension of detention “during investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP).
66. The period of detention “during investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP).
67. Access to the materials in the file is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, at the request of a prosecutor, may grant an extension of the detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could not be granted for longer than six months.
68. Under the old CCrP, the trial court was entitled to refer the case back for “additional investigation” if it found procedural defects that could not be remedied at the trial. In such cases the defendant's detention was again classified as “during investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for additional investigation but the investigators had already used up all the time authorised for detention “during investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month, starting from the date on which he or she received the case. Subsequent extensions could only be granted if the detention “during investigation” had not exceeded eighteen months (Article 97).
69. From the date the prosecutor refers the case to the trial court, the defendant's detention is classified as “before the court” (or “during judicial proceedings”).
70. Before 15 June 2001 the old CCrP set no time-limit for detention “during judicial proceedings”. On 15 June 2001 a new Article, 239-1, entered into force which established that the period of detention “during judicial proceedings” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant's release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or at the request of a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences.
71. The new CCrP provides that the term of detention “during judicial proceedings” is calculated from the date the court received the file up to the date on which judgment is given. The period of detention “during judicial proceedings” may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
72. Under the old CCrP, the detainee or his or her counsel or representative could challenge the detention order issued by a prosecutor, and any subsequent extension order, before a court. The judge was required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The review was to be conducted in camera in the presence of a prosecutor and the detainee's counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances, if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee's release (Article 220-1). An appeal to a higher court lay against the judge's decision. It had to be examined within the same time-limit as appeals against a judgment on the merits (Article 331 in fine).
73. Under the new CCrP, an appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must rule on the appeal within three days of its receipt (Article 108 § 10).
74. Upon receipt of the case file, the judge must determine, in particular, whether the defendant should be held in custody or released pending the trial hearings (Article 222 § 5 and Article 230 of the old CCrP, Article 228 (3) and Article 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP).
75. At any time during the judicial proceedings the court may order, vary or revoke any preventive measure, including remand in custody (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberation room and signed by all the judges on the bench (Article 261 of the old CCrP, Article 256 of the new CCrP).
76. An appeal against such a decision lies to a higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against the judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP).
77. Under the old CCrP, within fourteen days after receipt of the case file (if the defendant was in custody), the judge was required to do one of the following: (1) to fix the trial date; (2) to refer the case back for further investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court having jurisdiction to hear it (Article 221). The new CCrP empowers the judge, within the same time-limit, (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing; or (3) to fix a trial date (Article 227). In this last case, the trial proceedings must begin no later than fourteen days after the judge has fixed the trial date (Article 239 of the old CCrP, Article 233 § 1 of the new CCrP). There are no restrictions on fixing the date of a preliminary hearing.
78. The duration of the entire trial proceedings is not limited in time.
79. Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days after it was lodged. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court this period could be extended by up to two months (Article 333). No further extensions were possible.
The new CCrP requires the appeal court to start examining an appeal no later than one month after it is lodged (Article 374).
80. Article 51 of the new CCrP, in so far as relevant, reads as follows:
“1. Participation of legal counsel in the criminal proceedings is mandatory if:
1) the suspect or the accused has not waived legal representation in accordance with Article 52 of this Code;
2) the suspect or the accused is a minor;
3) the suspect or the accused cannot exercise his right of defence by himself owing to a physical or mental handicap;
3.1) the court proceedings are to be conducted [in the absence of the accused] in accordance with Article 247 § 5 of this Code;
4) the suspect or the accused does not speak the language in which the proceedings are conducted;
5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty;
6) the criminal case falls to be examined by a jury trial;
7) the accused has filed a request for the proceedings to be conducted [without a hearing] under Chapter 40 of this Code;
2. ...
3. In the circumstances provided for by paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons at the request, or with the consent, of the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure participation of legal counsel in the proceedings.”
81. Article 52 of the Code provides that a suspect or an accused may refuse legal assistance at any stage of criminal proceedings. Such a waiver may be accepted only if made on the initiative of the suspect or the accused. The waiver must be filed in writing and must be recorded in the official minutes of the relevant procedural act. The refusal of legal assistance may not strip the suspect or accused of the right to ask to be assisted by counsel during further procedural actions in the criminal case. The admission of a lawyer may not lead to the repetition of procedural actions which have already been performed by that time.
82. The presence of a defendant at the trial is mandatory unless, in a case which does not concern a grave criminal offence, the defendant petitions the court for the case to be examined in his absence (Article 247 §§ 1 and 4 of the new CCrP).
83. Chapters 43-45 of the new CCrP regulate procedure for lodging and examining appeals against judgments taken by justices of the peace. In particular, Article 365 of the Code establishes that a district court, when examining an appeal against a judgment taken by a justice of the peace, should conduct a judicial investigation which includes examination of the parties' submissions and evidence, including the hearing of witnesses, experts, and so on. The district court may, at the parties' request, hear new witnesses, authorise an expert examination, and collect material evidence and documents, even if the justice of the peace previously refused to perform those procedural actions. The district court may not dismiss a party's request pertaining to examination of new evidence on the ground that such a request was also dismissed by the justice of the peace.
VIOLATED_ARTICLES: 5
NON_VIOLATED_ARTICLES: 10
5
6


ITEMID: 001-58278
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF SÜREK AND ÖZDEMIR v. TURKEY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Not necessary to examine Art. 18 (second applicant);Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Pecuniary damage - financial award (first applicant);Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland;Luzius Wildhaber;Paul Mahoney
TEXT: 8. At the material time, the first applicant, Mr Kamil Tekin Sürek was the major shareholder in Deniz Basın Yayın Sanayi ve Ticaret Organizasyon, a Turkish company which owns a weekly review entitled Haberde Yorumda Gerçek (The Truth of News and Comments), published in Istanbul. The second applicant, Mr Yücel Özdemir was the editor-in-chief of the review.
9. In the 31 May 1992 and 7 June 1992 issues of the review, an interview with a leader of the Kurdistan Workers’ Party (“the PKK”), an illegal organisation, was published in two parts. In the edition of 31 May 1992 a joint declaration by four socialist organisations was published.
10. The relevant parts of these publications read as follows (translation):
“Q: What do you mean when you say [the elections present] dangers?
A: The US say: ‘The Kurds are oppressed. Saddam is slaughtering them. We are protecting the Kurds against Saddam’s massacres. Their survival is in our safekeeping.’ But it is quite obvious that this is a big swindle. If they were really protecting the Kurds against massacre as they claim, they ought to be protecting them against the Turkish State, too. Since the massacre which the Turkish State is carrying out against our people in the North is as horrible as that of Saddam. In fact, there are practices which are much more extreme than those of Saddam. So the US ought to be doing the same thing against Turkey. The double standard is clear for all to see. The US take action against Saddam, but support Turkey’s massacres against the Kurdish people in both the North and the South. There have been many signs of this and our people are aware of it. They want to make the Kurds an instrument for gaining their own ends. Their aim in the elections is both to contain the positive developments in the South through the organisations they want to promote and to block the fight for independence and freedom which is developing in Kurdistan in general. They want to bring all the Kurdish movements under the control of those two organisations already controlled by them [the US]. So that is why they all present a danger for the Kurdish people.
Q: Laws will be enacted once a parliament has been established in Southern Kurdistan. Treaties will be signed, on the one hand with neighbours, i.e. Turkey and Iraq, and, on the other hand, with the US. Turkey can have only one demand from these countries, that the PKK be excluded. If Kurdish parties take part in such an environment, what would be the PKK’s attitude?
A: It is a well-known fact that Turkey and/or imperialism wants to divert our people from its national identity and struggle. But we want to achieve our identity as a nation and have a fatherland. That is what we are fighting for. They want to uproot us and drive us out of our territory; they want to annihilate us or force us to change. But we fight to live in freedom in our own territory. If either the US or Turkey or any other power which claims to be acting in the name of Kurdish identity attempts to force us out of any part of our country, we will fight in order to stay where we are. That is what we are fighting for right now. The Turkish State wants to oust us from our territory. It is driving people out of their villages. It wants Kurdistan to become a totally uninhabited area. But we are resisting. No one can tell us or ask us to get out. We are not on anyone else’s territory; we are on our own territory. No one can tell us to leave our own territory. We make no distinction between the North and the South; we are in Kurdistan. We are amongst our own people. If they want us to leave our territory, they must know that we will never agree to it. We are a people who have lost everything we had and who are fighting to regain what we have lost. That is the purpose of our action. We have nothing to lose. We shrink from nobody and are afraid of no one. All we can lose is our slavery. That is why we act without fear.
Q: It is said that broadcasting programmes in Kurdish on Turkish State television would be interpreted as making a concession to the PKK. Could that be true? It is also rumoured that the PKK is going to set up a TV station. Is that right?
A: It is not true that the PKK is going to broadcast on television. We have no such facilities. Television broadcasting either by satellite or through any other channel is not an issue for the PKK. It was Turgut Özal who brought up the issue of Kurdish TV in Turkey when he went to the US. That is what is being debated. A very small fraction of people say that Özal was right, but a very large proportion are against it. Those who are suggesting Kurdish TV are doing so deliberately. The aim is supposedly to influence and win over the masses and thus to isolate the PKK. That is what the idea is. But even if Kurdish TV became a reality, it would do them no service. That is why they are against it. The purpose of those who want to create Kurdish TV is to isolate the PKK. For there is no mention of any argument such as ‘Here is a people who have their own language and we must broadcast in their language. There is need for respect for that people. It is wrong to ban a people’s language, that also harms the Turkish people.’ Far from it. The debate has revealed the real intentions: ‘How can we wipe out the influence of the PKK? How can we isolate the PKK? How can we pull the wool over the Kurdish people’s eyes?’ It is a tactical approach. It is a trick. But no matter what steps they take, they will be working to the advantage of the PKK. The Turkish State has now lost Kurdistan. That is a fact. Any move the State makes in Kurdistan after this will turn out to the advantage of the PKK and to the disadvantage of the Turkish State ... .The Turkish press has no principles. We consider that there is no longer any point in communicating with that unethical press. We shall not be satisfied with abstaining from any contact with the press; we shall endeavour to stop the press from entering Kurdistan.
Q: A different tactic was applied in the Uludere attack. Previously, attacks were always carried out at night. But this time, the attack was carried out during the day and the clashes continued throughout the day. It is said that this entails more risk for the guerrillas. What was the reason for it?
A: What they say is right. Our combat has reached a certain level. Tactics have to be developed which match that level, because it is a mistake to wage war with less developed tactics. Progress can be achieved in the war by using tactics in keeping with the level of warfare which has now been reached. That is why an action of that nature was planned. The idea was to attack in the morning and hold our ground, continuing the clashes throughout the day – and it was successful in the end. It was an experiment. From our point of view there are conclusions to be drawn from it. We are studying the matter. We shall benefit from that in the actions we carry out in the future.”
“Q: What do you think about the assassinations by unknown perpetrators in Kurdistan and the actions ascribed to the ‘Hizbi-contra’?
A: It is true that there is an organisation known as Hizbullah. But it is a weak organisation. It is not that organisation which is carrying out the massacres, contrary to what is being said. Since the organisation is weak, the Republic of Turkey has captured its members in many places. Many massacres are carried out in the name of that organisation, but it is actually the Turkish State itself which is doing the killings. We say this to the members of Hizbullah: ‘If you are really Muslims, [you should know that] the Islamic faith is against repression and injustice and advocates what is right and just.’ It is a well-known fact that the Turkish State is repressive and carries out massacres and inhuman actions. They [the Hizbullah] must respect those who oppose these acts. If they want to wage war, they must join forces with them. That is what we are asking of them. We warn them as friends that they must throw out the contra-guerrillas who infiltrate their ranks. For unless they do that, they will come to grief. We have not, as yet, reacted more seriously, we have just warned them. We say that that phenomenon has served the Turkish State and we have received a favourable response from certain quarters. They have said that Hizbullah people or Muslims have not in fact been involved in that sort of action and that the acts have not been carried out by Hizbullah people. That is favourable as far as we are concerned. But it [the State] is still carrying out massacres in some places in Hizbullah’s name...
Q: On what lines will the struggle be carried out from now on?
A: The climate does affect a war, although the effects are not decisive. The 1991-92 winter was very hard and that affected our movements, the capacity for combat and caused several difficulties – both for us and for the Turkish State. But they have the advantage of using technology and they used that advantage to the full. To no avail, however. They intended to deal us murderous blows last winter. They thought they would have overthrown us and ousted us by the spring. But they did not achieve what they wanted. Our capacity for movement was reduced by the hard winter conditions and, as a result, steps could only be taken late as compared to previous years. The season is gradually becoming more suitable, however. There is still snow on the ground in many places, but it is presenting less and less of an obstacle. 1992 will be more different compared to other years, but we never say: ‘Let us improve our armed combat, let us expand it further.’ If we continue the war, we do so because we have to. Because there is no possibility of achieving a different life and developing. All roads have been blocked for us. We are waging war because we are forced to. Any further expansion of the war will depend on the attitude of the Turkish State. The State is intensifying the war. So we have to extend the war to that degree. The war will escalate. Before the PKK, there was a one-sided war being waged in Kurdistan. In the last few years that war has begun to be a two-sided war. In the old days, the Turkish State used to achieve whatever ends it intended to achieve in the war it was waging, and the Kurdish people was being rapidly wiped out as a result. But the Kurdish people have begun to say ‘Stop!’. They began to resist in order to avoid annihilation. It was the State which started the war and the ending of the war will also depend on the Turkish State. We did not start the war. We developed a defensive war against the war of annihilation that was being waged on us. This war will continue as long as the Turkish State refuses to accept the will of the people of Kurdistan: there will be not one single step backwards. The war will go on until there is only one single individual left on our side. …
The State colonialist authority has completely disappeared in some places … As the government of war we want the people’s will, which makes itself increasingly known, to be able to express itself officially. We shall make our way towards that objective one step at a time. We shall reach it by destroying or weakening the sovereignty of the State different ways and in various forms, by setting up a popular regime in certain places and favouring a dualistic regime in others. That is what we call the power of the people, the government of war. …
The PKK encounters all kinds of problems and resolves them. No questions are put to the Turkish State. No one speaks to it. Everyone speaks to the ERNK Committee or the local ERNK official. The ERNK is considered competent. For the moment, we are in the process of electing the representatives of the people.”
“The Central Committees of the Revolutionary Communist Party of Turkey (TDKP), the Communist Labour Party of Turkey (TKEP), the Turkish Organisation for the Liberation of Northern Kurdistan (TKKKÖ) and the Communist Party/Marxist-Leninist Movement of Turkey (TKP/ML Hareketi) have called on all revolutionaries and democrats to unite forces.
‘Let us unite against State terrorism, against the repression and oppression of the Kurdish people, against the massacres, the street killings, the dismissals and unemployment; let us unite and step up our efforts for freedom, democracy and socialism!’ Such is the heading of the appeal in which it is stated that the only means of action for the ruling classes is that of force and violence. And the ‘democratisation’ initiatives of the DYP and SHP government are described as a manoeuvre, purely a means of concealing their attacks.”
The appeal goes on to state the following views:
“Workers, labourers and young people of the Kurdish and Turkish nation!
It is possible and perfectly feasible for us to drive back the attacks levelled on us by imperialism and the collaborating ruling classes and to obtain our economic and political rights and freedoms. To do so we must rally our forces around our common demands and join battle. Aware of its historic revolutionary role, the working class must take action, must lead that action, must call the bluff of the trade union bosses of every camp and smash the barriers they have put up to curb our movement and must develop the fight and action.
- The Turkish army must withdraw from Kurdistan. Action must be taken to put an end to the double standards in the legal system and all Kurdish prisoners must be released.
- The Turkish parliament must end its authority over Kurdistan. Kurdish people must be free to determine their own destiny, including the establishment of a separate State.
- The State terrorism and street executions, carried out by MİT [State Intelligence Organisation] agents, contra-guerrillas and special squads, must stop immediately and they must be called upon to account for the massacres and murders.
- The servicing of external debts to imperialists must be stopped, and those resources must be used for the benefit of the proletariat.
- Dismissals must be stopped and sacked workers must be given their jobs back. All the obstacles which have been placed in the way of trade union organisation must be removed and the right to organise without restriction must be granted.
- Measures must be taken to prevent the State Economic Enterprises, which are the resources of the country and of the people, from being sold for a song to imperialists. Labour sub-contracting, which is a means of eliminating trade union coverage, must be stopped immediately.
- The strike bans must be lifted and lockout must be prohibited. The right to hold general strikes, political strikes, strikes to obtain rights and sympathy strikes must be recognised. And all the bans on freedom of assembly, freedom to demonstrate, freedom of opinion and of the press must be ended.
- Act no. 657 pertaining to civil servants must be repealed and all working people must be granted the right to join a trade union with the right to strike and to conclude collective agreements.
- All working people must have insurance coverage; all workers must be granted unemployment insurance and the facilities must be provided for free health services and health care for everyone.
- The discrimination based on sex which prevails in working and social life and the pressure exerted on working women must be ended.
- The YÖK [High Council for Education] must be done away with and young people in higher education must be allowed to have a say and to participate in decision-making in university administration. All the obstacles that have been placed on youth organisations must be removed and education and training must be free of charge at every level.
- Education boards must be given full autonomy; textbooks must meet contemporary requirements and must be re-written with democratic contents.
- All debts owed to the State by the peasantry must be cancelled and the rural population must be allowed to set the minimum prices of products.”
11. On 1 June 1992 the Istanbul National Security Court (Istanbul Devlet Güvenlik Mahkemesi) ordered the seizure of all copies of the 31 May 1992 issue of the review, since it allegedly contained a declaration by terrorist organisations and disseminated separatist propaganda.
12. In an indictment dated 16 June 1992 the Public Prosecutor at the Istanbul National Security Court charged the applicants with having disseminated propaganda against the indivisibility of the State by publishing an interview with a PKK leader and a declaration made by four terrorist organisations. The charges were brought under sections 6 and 8 of the Prevention of Terrorism Act 1991 (hereinafter “the 1991 Act”: see paragraph 23 below).
13. In another indictment dated 30 June 1992, the applicants were further charged on account of having published the second part of the interview in the issue of 7 June 1992 with disseminating propaganda against the indivisibility of the State. The charges were brought under section 8 of 1991 Act.
14. On 4 February 1993 the criminal proceedings were joined in view of the fact that the incriminated articles were considered to constitute a single interview published in two parts.
15. In the proceedings before the Istanbul National Security Court, the applicants denied the charges. They pleaded that the interview had been published with the aim of providing the public with information within the scope of journalism and the freedom of the press. As regards his freedom of expression, the first applicant referred to the Convention and the case-law of the Commission and the Court. He stated that pluralism of opinion was essential in a democratic society including opinions which shock or offend. He argued that the provisions of sections 6 and 8 of the 1991 Act restricted freedom of expression in contravention of the Turkish Constitution and the criteria laid down in the case-law of the Commission and the Court.
16. In a judgment dated 27 May 1993 the Istanbul National Security Court found the applicants guilty of offences under sections 6 and 8 of the 1991 Act. The first applicant was sentenced under section 6 to a fine of 100,000,000 Turkish liras and under section 8 to a further fine of 200,000,000 Turkish liras. The second applicant was sentenced under section 6 to a fine of 50,000,000 Turkish liras and under section 8 to six months’ imprisonment and a further fine of 100,000,000 Turkish liras.
17. In its reasoning, the court held that the interview with the PKK leader was published in the form of a news commentary. It further held that the interviewee had referred to a certain part of Turkish territory as “Kurdistan”, had asserted that certain Turkish citizens who are of Kurdish origin form a separate society and that the Republic of Turkey expels Kurdish people from their villages and massacres them. The court further considered that the interviewee had praised Kurdish terrorist activities and had claimed that the Kurds should form a separate State. On these grounds, the court found that the interview, as a whole, disseminated propaganda against the indivisibility of the State. The court further held that another page of the review contained a declaration by terrorist organisations and its publication constituted a separate offence under section 6 of the 1991 Act.
18. The applicants appealed against their conviction. In addition to the defence which they invoked before the Istanbul National Security Court, their legal representative emphasised that in a democratic society opinions must be freely expressed and debated. Noting that there had been no prosecutions for the publication of other interviews with the leaders of the PKK in other newspapers or magazines, the applicants’ representative asserted that the applicants had not been convicted for having published the incriminated interview, but for publishing a Marxist review.
19. On 4 November 1993 the Court of Cassation dismissed the appeal. It upheld the Istanbul National Security Court’s assessment of the evidence and its reasons for rejecting the applicants’ defence.
20. Following the amendments made by Law no. 4126 of 27 October 1995 to the 1991 Act (see paragraph 24 below) the Istanbul National Security Court ex officio re-examined the applicants’ cases. The court confirmed the sentences imposed on them.
21. The relevant provisions of the Criminal Code read as follows:
“Where the legislative provisions in force at the time when a crime is committed are different from those of a later law, the provisions most favourable to the offender shall be applied.”
“The term ‘heavy fine’ shall mean payment to the Treasury of from twenty thousand to one hundred million Turkish liras, as the judge shall decide...”
“In the event of conviction, the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence…”
“Harmful propaganda
1. A person who by any means whatsoever spreads propaganda with a view to establishing the domination of one social class over the others, annihilating a social class, overturning the fundamental social or economic order established in Turkey or the political or legal order of the State shall, on conviction, be liable to a term of imprisonment of from five to ten years.
2. A person who by any means whatsoever spreads propaganda in favour of the State’s being governed by a single person or social group to the detriment of the underlying principles of the Republic and democracy shall, on conviction, be liable to a term of imprisonment of from five to ten years.
3. A person who, prompted by racial considerations, by any means whatsoever spreads propaganda aimed at abolishing in whole or in part public-law rights guaranteed by the Constitution or undermining or destroying patriotic sentiment shall, on conviction, be liable to a term of imprisonment of from five to ten years.
…”
“Public incitement to commit an offence
Where incitement to commit an offence is done by means of mass communication, of whatever type – whether by tape recordings, gramophone records, newspapers, press publications or other published material – by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled…”
“Non-public incitement to commit an offence
A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months’ and two years’ imprisonment and a heavy fine of from six thousand to thirty thousand Turkish liras.
A person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years’ imprisonment and a fine of from nine thousand to thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one third to one half.
The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.”
22. The relevant provisions of the Press Act 1950 read as follows:
“For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals.
‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it.
An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.”
“Where distribution of the printed matter whose distribution constitutes the offence is prevented … by a court injunction or, in an emergency, by order of the principal public prosecutor … the penalty imposed shall be reduced to one third of that laid down by law for the offence concerned.”
23. The relevant provisions of the Prevention of Terrorism Act 1991 read as follows:
“It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person’s ... identity is divulged provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target.
It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to print or publish declarations or leaflets emanating from terrorist organisations.
…
Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the sales of the previous issue if the periodical appears monthly or less frequently, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched. However, the fine may not be less than fifty million Turkish liras. The editor of the periodical shall be ordered to pay a sum equal to half the fine imposed on the publisher.”
“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras.
Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched2. However the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.”
“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a re-offender may not be commuted to a fine.
Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.
Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras…
…”
“The penalties for the offences contemplated in the present law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.”
“The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.
However, the provisions of this section shall not apply to convictions pursuant to section 8.”
“Persons convicted of the offences contemplated in the present law who ... have been punished with a custodial sentence shall be granted automatic parole when they have served three-quarters of their sentence, provided they have been of good conduct.
…
The first and second paragraphs of section 19 … of the Execution of Sentence Act (Law no. 647) shall not apply to the convicted persons mentioned above.”
24. The following amendments were made to the Prevention of Terrorism Act 1991 following the enactment of Law no. 4126 of 27 October 1995:
“In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to section 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment … to section 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections 4 and 6 of Law no. 647 of 13 July 1965.”
25. The following provisions are relevant to sentences in respect of offences under the Press Law:
“The execution of sentences passed on those who were convicted under Press Law no. 5680 or other laws as editors for offences committed before 12 July 1997 shall be deferred.
The provision in the first paragraph shall also apply to editors who are already serving their sentences.
The institution of criminal proceedings or delivery of final judgments shall be deferred where no proceedings against the editor have not yet been brought, or where a preliminary investigation has been commenced but criminal proceedings have not been instituted, or where the final judicial investigation has been commenced but judgment has not yet been delivered, or where the judgment has still not become final.”
“If an editor who has benefited under the provisions of the first paragraph of section 1 is convicted as an editor for committing an intentional offence within three years of the date of deferment, he must serve the entirety of the suspended sentence.
The part of the postponed conviction which was served by the responsible editor until the date on which this Law enters into force shall be deducted from the sentence to be served as indicated in section 1. The provisions concerning conditional release are reserved.
Where there has been a deferment, criminal proceedings shall be instituted or judgment delivered if an editor is convicted as such for committing an intentional offence within three years of the date of deferment.
Any conviction as an editor for an offence committed before 12 July 1997 shall be deemed a nullity if the aforesaid period of three years expires without any further conviction for an intentional offence. Similarly, if no criminal proceedings have been instituted, it shall no longer be possible to bring any, and, if any have been instituted, they shall be discontinued.”
26. The Execution of Sentences Act provides inter alia:
“The term ‘fine’ shall mean payment to the Treasury of a sum fixed within the statutory limits.
…
If, after service of the order to pay, the convicted person does not pay the fine within the time-limit, he shall be committed to prison for a term of one day for every ten thousand Turkish liras owed, by a decision of the public prosecutor.
…
The sentence of imprisonment thus substituted for the fine may not exceed three years…”
“… persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served half of their sentence, provided they have been of good conduct...”
27. The Code of Criminal Procedure contains the following provisions:
“An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment.
Non-application or erroneous application of a legal rule shall constitute unlawfulness.”
“Unlawfulness is deemed to be manifest in the following cases:
1- where the court is not established in accordance with the law;
2- where one of the judges who have taken the decision was barred by statute from participating;
…”
28. The Government supplied copies of several decisions given by the prosecutor attached to the Istanbul National Security Court withdrawing charges against persons suspected of inciting people to hatred or hostility, especially on religious grounds (Article 312 of the Criminal Code), or of disseminating separatist propaganda against the indivisible unity of the State (section 8 of Law no. 3713 – see paragraph 23 above). In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor’s decision included such considerations as the fact that the proceedings were time-barred, that some of the constituent elements of the offence could not be made out or that there was insufficient evidence. Other grounds included the fact that the publications in issue had not been distributed, that there had been no unlawful intent, that no offence had been committed or that those responsible could not be identified.
29. Furthermore, the Government submitted a number of decisions of the National Security Courts as examples of cases in which defendants accused of the above-mentioned offences had been found not guilty. These were the following judgments: 19 November (no. 1996/428) and 27 December 1996 (no. 1996/519); 6 March (no. 1997/33), 3 June (no. 1997/102), 17 October (no. 1997/527), 24 October (no. 1997/541) and 23 December 1997 (no. 1997/606); 21 January (no. 1998/8), 3 February (no. 1998/14), 19 March (no. 1998/56), 21 April 1998 (no. 1998/87) and 17 June 1998 (no. 1998/133).
30. As regards more particularly proceedings against authors of works dealing with the Kurdish problem, the National Security Courts in these cases have reached their decisions on the basis of the absence of the element of “propaganda”, an element of the offence, or on account of the objective nature of the incriminated parts.
31. The constitutional provisions governing judicial organisation of the National Security Courts are worded as follows:
“In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law.
No organ, authority, ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars or make recommendations or suggestions to them.”
“Judges … shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution…”
“National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security.
National Security Courts shall be composed of a president, two other regular members, two substitute members, a prosecutor and a sufficient number of assistant prosecutors.
The president, one of the regular members, one of the substitutes and the prosecutor, shall be appointed from among judges and public prosecutors of the first rank, according to procedures laid down in special legislation; one regular member and one substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges.
Presidents, regular members and substitute members ... of National Security Courts shall be appointed for a renewable period of four years.
Appeal against decisions of National Security Courts shall lie to the Court of Cassation.
...”
“Military legal proceedings
The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve in the performance of their non-judicial duties shall also be regulated by law...”
32. Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts provide as follows:
“In the capitals of the provinces of … National Security Courts shall be established to try persons accused of offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free, democratic system of government and offences directly affecting the State’s internal or external security.”
“The National Security Courts shall be composed of a president, two other regular members and two substitute members.”
“The president of a National Security Court, one of the [two] regular members and one of the [two] substitutes ... shall be civilian … judges, the other members, whether regular or substitute, military judges of the first rank…”
“The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in the Military Legal Service Act.
Except as provided in the present Law or other legislation, the president and the regular or substitute members of the National Security Courts … may not be appointed to another post or place, without their consent, within four years…
…
If, after an investigation concerning the president or a regular or substitute member of a National Security Court conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of the person concerned, the duty station of that judge or the duties themselves … may be changed in accordance with the procedure laid down in that legislation.”
“National Security Courts shall have jurisdiction to try persons charged with
(a) the offences contemplated in Article 312 § 2 … of the Turkish Criminal Code,
…
(d) offences having a connection with the events which made it necessary to declare a state of emergency, in regions where a state of emergency has been declared in accordance with Article 120 of the Constitution,
(e) offences committed against the Republic, whose constituent qualities are enunciated in the Constitution, against the indivisible unity of the State – meaning both the national territory and its people – or against the free, democratic system of government and offences directly affecting the State’s internal or external security.
…”
“The Court of Cassation shall hear appeals against the judgments of the National Security Courts.”
“The rules governing the rights and obligations of … military judges appointed to the National Security Courts and their supervision …, the institution of disciplinary proceedings against them, the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession…
The observations of the Court of Cassation on military judges, the assessment reports on them drawn up by Ministry of Justice assessors … and the files on any investigations conducted in respect of them … shall be transmitted to the Ministry of Justice.”
“A National Security Court may be transformed into a Martial Law Court, under the conditions set forth below, where a state of emergency has been declared in all or part of the territory in respect of which the National Security Court concerned has jurisdiction, provided that within that territory there is more than one National Security Court…”
33. The relevant provisions of the Military Legal Service Act provide as follows:
“The aptitude of military judges … appointed as regular or substitute members of the National Security Courts that is required for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Law and the Turkish Armed Forces Personnel Act (Law no. 926).
(a) The first superior competent to carry out assessment and draw up assessment reports for military judges, whether regular or substitute members … shall be the Minister of State in the Ministry of Defence, followed by the Minister of Defence.
…”
“Members … of the National Security Courts belonging to the Military Legal Service … shall be appointed by a committee composed of the personnel director and the legal adviser of the General Staff, the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence…”
“Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval, in accordance with the provisions on the appointment and transfer of members of the armed forces…
…
The procedure for appointment as a military judge shall take into account the opinion of the Court of Cassation, the reports by Ministry of Justice assessors and the assessment reports drawn up by the superiors…”
“The rules governing the salary scales, salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers.”
“The Minister of Defence may apply to military judges, after considering their defence submissions, the following disciplinary sanctions:
A. A warning, which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties.
…
B. A reprimand, which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy.
…
The said sanctions shall be final, mentioned in the assessment record of the person concerned and entered in his personal file…”
“When military judges … sit in court they shall wear the special dress of their civilian counterparts…”
34. Article 112 of the Military Code of 22 May 1930 provides:
“It shall be an offence, punishable by up to five years’ imprisonment, to abuse one’s authority as a civil servant in order to influence the military courts.”
35. Under section 22, the First Division of the Supreme Military Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their professional advancement.
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22577
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: BUTLER v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Nicolas Bratza
TEXT: The applicant is a British national, born in 1956 and living in London, England. He is represented before the Court by Mr Keir Starmer, barrister-at-law, instructed by Messrs Hughmans, Solicitors, London. The respondent Government are represented by their Agent, Mr C. Whomersley, Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a heavy gambler on horses and often held large sums of money in cash for this purpose. Apart from his winnings, the applicant also inherited a large sum in cash from his father in 1990 and in 1992 realised a substantial profit on the sale of a house which he bought and had refurbished.
The applicant states that he has never been convicted of any drugs-related offences and maintains that he was wrongly prosecuted and convicted in relation to the handling of cash stolen from a post office in 1985. He was given a five-year prison sentence and was released in 1988.
In July 1994, and in order to avoid off-course betting duty, the applicant decided to open an account under a pseudonym with a specialist bookmaker who conducted business inside racetracks. The applicant on occasions attended race meetings carrying large sums of money. According to the applicant, in July 1994 he had, mainly through his winnings, over GBP 600,000 available to him for betting.
The applicant also used his bookmaker’s account for placing bets over the telephone. Such bets were deemed to be off-course bets and were thus subject to tax. Having ascertained that he could avoid tax on off-course betting by gambling off-shore as a non-resident, the applicant decided to buy property in Spain and contacted a lawyer in Spain to this end.
The applicant arranged a meeting with the lawyer in Spain for 23 September 1996. After the meeting the applicant intended to go to a race meeting in Paris.
Having discovered that his partner’s brother, H, was intending to take a holiday in Spain, and being nervous about taking the money himself, the applicant enlisted H’s help in taking GBP 240,000 to Spain as a favour. According to the applicant, he wanted to look at properties in southern Spain in the price range GBP 40,000 to GBP 150,000 and required the rest for the race meeting in Paris. The applicant arranged to meet H in Spain.
On 17 June 1996 H, who was driving a hired car, was stopped at Portsmouth by a Customs and Excise Officer. When asked how much cash he was carrying, H replied GBP 500. A subsequent search of the boot of the car revealed GBP 240,000 in a green hold-all. H stated that the sum in question belonged to a friend who was meeting him in Spain.
H was subsequently questioned about the money by Customs and Excise officials. H stated that the money belonged to the applicant, that he was taking it out of the country for the applicant, that the latter wanted to use it to buy an apartment in Spain and that he was travelling to Madrid and Barcelona.
The money seized was sent for forensic testing and the sum of GBP 239,010 was deposited with the Midland Bank on 20 September 1996.
The applicant contacted the Customs and Excise authorities to reclaim the money and attended voluntarily for interview on 4 October 1996 together with his solicitor. On that occasion the applicant was told that he was not under arrest. He answered the questions put to him and gave permission to examine his bank accounts as well as his account with his bookmaker.
An order for the detention of the applicant’s money was granted by Portsmouth Magistrates’ Court on 19 September 1996 on application of the Customs and Excise authorities pursuant to section 42(2) of the Drug Trafficking Act 1994. A further order was made on 17 October 1996.
In February 1997 the Customs and Excise authorities made an application under section 43(1) of the Drug Trafficking Act 1994 for the forfeiture of GBP 239,010 seized from the applicant on the grounds that its officers believed that the money was directly or indirectly the proceeds of drugs trafficking and/or was intended for use in drug trafficking. On 25 and 26 June 1997 the Portsmouth Magistrates’ Court made an order for the confiscation of the sum in question and ordered the applicant to pay the costs of the hearing.
The applicant’s appeal was heard before Portsmouth Crown Court on 2 and 3 October 1997. The court upheld the forfeiture order and made an order that the applicant pay a further amount towards costs.
In the applicant’s opinion, the Crown Court did not find that he or H were going to use the money to purchase drugs but that it was satisfied, on the civil standard of proof, that some unidentified third party was going to use it for this purpose. The Government draw attention to their view that the Crown Court did find that the cash was intended for use in drug trafficking. According to the Government, the Crown Court noted that the money was contaminated to a limited extent by cannabinoids and that H had with him in the hire car a plan showing a route through Spain to Malaga. The Government further observe that the cash seized included a large proportion of Scottish notes, which are typically used by drug-traffickers to finance drug deals conducted abroad, and that the south coast of Spain is known to Customs officials as the source of a large number of consignments of drugs destined for the United Kingdom. For the Government, and having regard to the strong circumstantial evidence, the Crown Court found the explanations given by the applicant and H as to why cash was being carried by H to Spain wholly unbelievable. Thus, the Crown Court concluded:
“We do find it more probable than not that this money was to be used for trafficking.”
The applicant observes that the Crown Court would appear not to have commented on precisely who they believed would be responsible for using the money for drug purchase.
The Government also point out that, as regards the applicant’s claim that he had over GBP 600,000 available to him for gambling in 1994 (see above), the only documentary evidence produced by him in relation to his finances showed that he had lost approximately GBP 160,000 between 1991 and 1993, a further GBP 500,000 in 1994, and a further GBP 11,000 in 1995. The Government state that the applicant has produced no evidence at all to substantiate his claim that he made substantial winnings on cash bets since 1994. According to the Government, at the time of the forfeiture of his cash the applicant was receiving social security benefits of approximately GBP 47 per week.
Section 42(1) of the Drug Trafficking Act 1994 provides as follows:
“A customs officer or constable may seize and, in accordance with this section, detain any cash which is being imported into or exported from the United Kingdom if -
(a) its amount is not less than the prescribed sum - and
(b) he has reasonable grounds for suspecting that it directly or indirectly represents any person’s proceeds of drug trafficking, or is intended by any person for use in drug trafficking.”
The term “exported” has an extended meaning and includes cash “being brought to any place in the United Kingdom for the purpose of being exported” (section 48(1)). The prescribed sum referred to in section 42(1)(a) is GBP 10,000.
Section 42(2) of the same Act states:
“Cash seized by virtue of this section shall not be detained for more than 48 hours unless its continued detention is authorised by an order made by a justice of the peace...; and no such order shall be made unless the justice ... is satisfied that
(a) that there are reasonable grounds for the suspicion mentioned in subsection (1) above; and
(b) that continued detention of the cash is justified while its origin or derivation is further investigated or consideration is given to the institution (whether in the United Kingdom or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.”
The order cannot endure longer than three months (section 42(3)), but further orders can be made by the court provided the total period of detention does not exceed two years from the date of the first order (section 42(3)). These powers may be used even if no criminal proceedings have been instituted (or even contemplated) against any person for a drug trafficking offence in connection with the money seized.
The person from whom the cash was seized, or any person on whose behalf the cash was being exported or imported, may apply to the magistrates’ court for the money to be released on the basis that there are no reasonable grounds for suspecting that it directly or indirectly represents any persons’ proceeds of drugs trafficking or is intended by any person for use in drug trafficking (sections 42(6)(2) and (1)). Where an application is made to forfeit the money, the cash seized and detained is not to be released until the relevant proceedings have been concluded (and so overrides the two-year restriction set out in section 42(3)).
Section 43 of the Act provides:
“(1) A Magistrates’ court ... may order the forfeiture of any cash which has been seized under section 42 of this Act if satisfied, on an application made while the cash is detained under that section, that the cash directly or indirectly represents any person’s proceeds of drug trafficking, or is intended by any person for use in drug trafficking.
...
(3) The standard of proof in proceedings on an application under this section shall be that applicable to civil proceedings; and an order may be made under this section whether or not proceedings are brought against any person for an offence with which the cash in question is connected.”
Direct evidence is not required to establish that cash seized pursuant to section 42 of the 1994 Act is the proceeds of drug trafficking or is intended for use in drug trafficking. The court may draw inferences from circumstantial evidence, so long as the evidence is sufficient to establish the case to the requisite (civil) standard of proof, namely the balance of probabilities. According to domestic case-law, this is a flexible test which is to be adapted to meet the nature and seriousness of the allegations made (see Re H [1996] AC 563, per Lord Nicholls).
The legal burden of proof rests on the relevant authorities seeking a detention or forfeiture order.
An appeal against the making of a forfeiture order by a magistrates’ court lies to the Crown Court. Appeals to the Crown Court are by way of rehearing. A party to proceedings may apply to a magistrates’ court for an order permitting the use of cash which has been seized and detained to pay for legal representation on appeal before the Crown Court (section 44(4)).
A party to the proceedings who wishes to appeal the decision of the Crown Court to make a forfeiture order may apply to the High Court by way of case stated. The High Court on an appeal by way of case stated may overturn the decision of the Crown Court if it is erroneous in law or in excess of jurisdiction (section 28(1) of the Supreme Court Act 1981). A party to the proceedings may also apply to the High Court by way of judicial review to have the decision of the Crown Court quashed on established public law grounds including error of law, procedural unfairness or irrationality (section 29 of the Supreme Court Act 1981). A further appeal lies (with the permission of the court) from the High Court to the Court of Appeal and then to the House of Lords.