Download the PDF - Ankara Barosu

Ankara Bar Review Vol.6 Issue.2 2013 www.ankarabarreview.org

Ankara Bar Review is a peer reviewed and scientific law journal which is indexed at the

TÜBİTAK–ULAKBİM database.

Ankara Bar Review

TÜBİTAK–ULAKBİM

Veri Tabanında indekslenmekte olan hakemli ve bilimsel bir hukuk dergisidir.

The Owner on Behalf of Ankara Bar Sema AKSOY [email protected]

Managing Editor Gökhan CANDOĞAN [email protected]

Editor in Chief Dr. Gökhan GÜNEYSU [email protected]

Editorial Board Chair

Vice Chair

Onur KILIÇ [email protected]

Burhan Doğuş AYPARLAR [email protected]

Member Ecem ALTUN [email protected]

Technical Board Graphic & Layout Design

Web Design & Programming

Ali Kemal ÇERŞİL [email protected]

Eren AYDIN [email protected]

Articles and letters that appear in the Ankara Bar Review do not necessarily reflect the official view of Ankara Bar Association and their publication does not constitute an endorsement of views that may be expressed. Readers are invited to address their own comments and opinions to our contact shown below. Publication and editing are at the sole discretion of the Board of Editors. Ankara Bar Review is published biannually in English.

Print date 2013 Printed by Mattek Matbaacılık Ağaç İşleri San. Sit. 1354 (Eski 21. Cadde) 1362. Sokak No: 35 Yenimahalle – İvedik /ANKARA T +90.312.433.2310 (pbx) F: +90.312.434.0356 www.mattekmatbaa.com Contact Ankara Barosu Başkanlığı, Adliye Sarayı Kat: 5 Sıhhiye, Ankara, TURKEY T: +90.312.416.7200 (Pbx) F: +90.312.309.2237 www.ankarabarreview.org info@ ankarabarreview.org

Board of Advisors F

A ABDULHAKİMOĞULLARI

Erdal

Assoc. Prof. Dr.

FEYZİOĞLU,

AĞAR,

Serkan

Dr.

G

AKKAYA,

Mustafa

Prof. Dr.

AKINCI,

Müslüm

Assoc. Prof. Dr.

AKSAR,

Yusuf

ALTAŞ,

Hüseyin

ARAT,

Tuğrul

Metin

Prof. Dr.

GEMALMAZ,

Burak

Assist. Prof. Dr.

GÖKTÜRK,

Neslihan

Assist. Prof. Dr.

Prof. Dr.

GÖLE,

Celal

Prof. Dr.

Prof. Dr.

GÖNENÇ,

Levent

Assoc. Prof. Dr.

Prof. Dr.

GÜNAL,

Nadi

Prof. Dr.

GÜNDAY,

Metin

Prof. Dr.

GÜNEYSU,

Gökhan

Dr. iur.

GÜNEYSU BORAN,

Nilüfer

Dr. iur.

GÜNGÖR,

Gülin

Prof. Dr.

GÜRTEN

Kadir

Assoc. Prof. Dr.

GÜVEN,

Kudret

Prof. Dr.

HAKERİ,

Hakan

Prof. Dr.

HASPOLAT,

Mehmet Emin

Assoc. Prof. Dr.

İNAN,

Ali Naim

Prof. Dr.

İŞGÜZAR,

Hasan

Prof. Dr.

KABOĞLU,

İbrahim Özden

Prof. Dr.

KANADOĞLU,

Korkud

Prof. Dr.

KARAGÖZ,

Kasım

Assoc. Prof. Dr.

KARAKAŞ,

Fatma

Assist. Prof. Dr.

KARAKEHYA,

Hakan

Assoc. Prof. Dr.

KARAN,

Hakan

Prof. Dr.

Prof. Dr.

KENT,

Bülent

Assist. Prof. Dr.

Prof. Dr.

KILIÇOĞLU,

Ahmet

Prof. Dr.

KOCA,

Mahmut

Prof. Dr.

KOCAOĞLU,

A. Mehmet

Prof. Dr.

KOCAOĞLU,

N. Kağan

KOCAOĞLU,

S. Sinan

Assist. Prof. Dr.

KORKMAZ,

Fahrettin

Prof. Dr.

KORKUT,

Levent

Assist. Prof. Dr.

KUÇURADİ,

İonna

Prof. Dr.

KÜÇÜKGÜNGÖR,

Erkan

Prof. Dr.

MOLLAMAHMUTOĞLU,

Hamdi

Prof. Dr.

MUMCUOĞLU,

Maksut

Prof. Dr.

Ayşe

Prof. Dr.

ARSLAN,

Ramazan

Prof. Dr.

ARTUK,

Mehmet Emin

Prof. Dr.

ASLAN,

Zühtü

Prof. Dr.

AVCI,

Mustafa

Assist. Prof. Dr.

B BAŞPINAR,

Veysel

Prof. Dr.

BAŞTERZİ,

Süleyman

Assoc. Prof. Dr.

BAYKAL,

Ferit Hakan

Prof. Dr.

BAYKAL,

Sanem

Assoc. Prof. Dr.

BIÇAK,

Vahit

Prof. Dr.

BÜYÜKTANIR,

Burcu

Dr.

CAŞIN,

Mesut Hakkı

Prof. Dr.

CENTEL,

Nur

Prof. Dr.

CENTEL,

Tankut

Prof. Dr.

CİN,

Halil

Prof. Dr.

ÇALIŞKAN,

Yusuf

C-Ç

ÇEÇEN, ÇETİNER,

Anıl Selma

Assoc. Prof. Dr.

D DEMİR,

Mehmet

Prof. Dr.

DEMİRAY,

Nezahat

Assist. Prof. Dr.

DEMİRBAŞ,

Timur

Prof. Dr.

DEMİRCİOĞLU,

Reyhan

Assist. Prof. Dr.

DÜLGER,

İbrahim

Assoc. Prof. Dr.

DÜLGER,

Volkan

Assist. Prof. Dr.

E ERDEM,

Mustafa Ruhan

Prof. Dr.

EREN,

Fikret

Prof. Dr.

ERGİL,

Doğu

Prof. Dr.

EROĞLU,

Muzaffer

Assist. Prof. Dr.

ERTEN,

Rıfat

Assoc. Prof. Dr.

ERZURUMLUOĞLU,

Erzan

Prof. Dr.

H-İ

K

Dr. , Esq.

M

N NUHOĞLU,

O-Ö

ŞEN,

Murat

Prof. Dr.

ODYAKMAZ,

Zehra

Prof. Dr.

ŞENOCAK,

Kemal

Prof. Dr.

OKUR,

Ali Rıza

Prof. Dr.

T

ONAR,

Erdal

Prof. Dr.

TAN,

Ayhan

Prof. Dr.

OZANSOY,

Cüneyt

Assoc. Prof. Dr.

TERCAN,

Erdal

Prof. Dr.

ÖKÇESİZ,

Hayrettin

Prof. Dr.

TEZCAN,

Durmuş

Prof. Dr.

ÖZBEK,

Mustafa S.

Assoc. Prof. Dr.

TİRYAKİ,

Betül

Assist. Prof. Dr.

ÖZBEK,

Veli Özer

Prof. Dr.

TURANBOY,

Asuman

Prof. Dr.

ÖZBUDUN,

Ergun

Prof. Dr.

TÜZÜNER,

Özlem

Assist. Prof. Dr.

ÖZCAN,

Fatma

Assist. Prof. Dr.

U-Ü

ÖZEL,

Çağlar

Prof. Dr.

ULUŞAHİN,

Nur

Assist. Prof. Dr.

ÖZGENÇ,

İzzet

Prof. Dr.

USAN,

Fatih

Prof. Dr.

ÖZKAN,

Işıl

Prof. Dr.

UYGUR,

Gülriz

Assoc. Prof. Dr.

ÖZTÜRK,

Bahri

Prof. Dr.

ÜÇIŞIK,

Fehim

Prof. Dr.

ÜNVER,

Yener

Prof. Dr.

ÜYE,

Saim

Assist. Prof. Dr.

ÜZÜLMEZ,

İlhan

Assoc. Prof. Dr.

P PAZARCI,

Hüseyin

Prof. Dr.

R RUHİ,

Ahmet Cemal

Assist. Prof. Dr.

Y

S-Ş

YENGİN,

Halisan

Dr. iur.

SAYGIN,

Assist. Prof. Dr.

YILDIRIM,

Turan

Prof. Dr.

Ejder

Prof. Dr.

Engin

SEZGİNER,

Murat

Prof. Dr.

YILMAZ,

SOYASLAN,

Doğan

Prof. Dr.

YONGALIK,

Aynur

Prof. Dr.

SÜRAL,

Nurhan

Prof. Dr.

YUSUFOĞLU,

Fülürya

Dr. iur.

ŞAHİN,

Cumhur

Prof. Dr.

Z

ŞEN,

Ersan

Prof. Dr.

ZABUNOĞLU,

Yahya

Prof. Dr.

C o n t e n t s Foreword Sema AKSOY President of the Ankara Bar Association

9

Peer Re vie wed Articles An Evaluation Of Evidence Obtained Through Electronic Surveillance In Criminal Procedure And Its Status Within Disciplinary Law Assoc. Prof. Dr. Çetin ARSLAN

13

On the Apolitical Character of International Law (or Lack Thereof) Dr. Gökhan GÜNEYSU

35

Intelligence In Criminal Procedure Law Assoc. Prof. Dr. Çetin ARSLAN

49

MAGISTRATE: The Most Important Political Body of Roman Republic Assoc. Prof. Dr. Ahmet KARAKOCALI

65

New Religious Movements and Freedom of Thought, Conscience and Religion in the European Convention on Human Rights’ Jurisprudence Asst. Prof. Dr. Joseph ZAND

83

Comparative Analysis Of The UK And Turkey In Terms Of The Question: Can The UK’s Human Rights Law Be A Model For Turkey To Overcome Its Violations Of Article 3 And Article 10 Of The European Convention On Human Rights? Devran ÜNLÜ

111

Articles Constitutional Complaint And Individual Complaint In Turkey Nazlı Can ÜLVAN

179

Is Conditionality For Loans From International Financial Institutions A Legitimate Way To Influence National Policies? Devran ÜNLÜ

187

For ewor d Dear Colleagues, Ankara Bar Review is a comprehensive legal journal supported and published by Ankara Bar Association. I am personally proud to announce that Journal’s second issue for 2013 is now available. I am of the opinion that Turkish legal community is presently in the middle of a severe turmoil. There are rumours and allegations about some important legal cases being manipulated by some cliques. In addition to that, we witness alarming signs of interference with judicial processes. Ankara Bar Association needs to highlight the importance of rule of law and inviolability of human rights. Governments and judges, civil servants and military personnel, all have to obey the letter and spirit of law. I feel obliged to reiterate that Turkish Constitution recognizes international human rights as an important yardstick in the furtherance of human rights in Turkey and individuals have to act in accordance with these provisions. Ankara Bar Association, with its vast experience and owing much to its learned members, is ready to make the needed contributions in the cause of the promotion of human rights and liberties in Turkey. It is a pleasure to present the articles published in this issue. As always, our Journal attracted well-prepared papers of esteemed individuals from academia and practice. I would like to enjoy this opportunity to thank all these colleagues once again. Associate Professor Dr. Cetin ARSLAN contributed to this issue with two papers dealing with important matters of criminal law, whereas Assistant Professor Dr. Joseph ZAND succinctly elaborates on “New Religious Movements”. Dr. KARAKOCALI has enriched this issue with his delicate analysis of Magistrates in Roman law. I firmly believe that 2013/2 Issue of Ankara Bar Review is an invaluable contribution to the Turkish and international legal community. I would like to thank and appreciate Journal’s Editor in Chief Assistant Professor Dr. Gokhan GUNEYSU and the learned members of the Editorial Board of ABR for their unyielding energy and cooperative mind-set. I would like to remind our readers as well as legal scholars that ABR is a part of a very select group of legal journals, which are indexed at the TUBITAK-ULAKBIM database. With great satisfaction, I would like to inform our readers that ABR has been accepted by the ASOS Index as well.

9

Another source of excitement for us in this regard, is our upcoming International Law Congress, which will take place during the following weeks. We have achieved a multi-dimensional, enriched programme, which includes a wide array of International Legal Issues; ranging from International Migration Law to Electronic Communications Law and I warmly invite all our colleagues to participate in this important occasion. I believe that both the Congress and the Review will be beneficial to all colleagues and to our country, which has not only been a stage for untolerable attacks on democracy and human rights but also proved to be a land of hope and resistance during the year, 2013. Yours sincerely, Attorney at Law Sema AKSOY President of the Ankara Bar Association

10

Peer Reviewed Articles

PEER REVIEWED ARTICLE

An Evaluation Of Evidence Obtained Through Electronic Surveillance In Criminal Procedure And Its Status Within Disciplinary Law* Assoc. Prof. Dr. Çetin ARSLAN**

* This article is based on a paper titled: “Under the New Criminal Justice System in its 4th Year- The Protection of Private Life, Problems in Practice, and its Solutions” submitted during the International Conference organized by the colaborations of University of İstanbul, İstanbul Kültür University, Giessen University and the City Bar of İstanbul (İstanbul 30.05.09–02.06.09) [SEE: Fasikül Aylık Hukuk Dergisi (CAHAMER), Yıl 2, Sa. 3 (Special Edition), Seçkin Yayınevi, Ankara 2010, p. 20-30]. ** Hacettepe University, Faculty of Law.

Peer Reviewed Article

Assoc. Prof. Dr. Çetin ARSLAN

ABSTR ACT Act(s) which constitute the basis of criminal procedure, may also result in a disciplinary obligation, due to the legal status of the Actor. When this occurs, then the question is: whether the evidence that is obtained through communication surveillance during criminal procedure, may it be admissable during disciplinary procedure, or not. If the answer is ‘yes’, then the next question is: under which conditions would it be possible to admit this evidence in? This is a subject of ongoing discussion. The reform that is made, regarding the illegal/inadmissible evidence within the criminal procedure law, is not completely reflected upon administrative law. For this reason, within disciplinary law, the evidence obtained through communication surveillance is admitted in without any restrictions. Scholars have not conducted much research on this subject. In this article we have examined this subject under the light of the Council of State and Court of Cassation’s decisions; and we also have made some suggestions on this subject. Keywords: Communication Surveillance, illegality, crime, punishment, offense, disciplinary, evidence

2013/ 2 Ankara Bar Review

15


An Evaluation Of Evidence Obtained Through Electronic Surveillance In Criminal Procedure And Its Status Within Disciplinary Law

A

I. Prologue

n act which would be the subject of investigation and/or prosecution, because it is claimed to be potential a crime, may concurrently be evaluated from the perspective of disciplinary law (See: 657 numbered law, article 131). The act that is presumed to have been committed by the accused, due to his/her legal status in the social group he/she belongs to, may constitute a crime, both within the meaning of criminal law, and also within the meaning of disciplinary law. In this case, it may need to be established from the perspectives of both legal disciplines, whether the act has been committed or not. If it is established that the act has been committed, then it needs to be established what type of enforcement it would require. In principle, even though they are independent of each other, especially on the subjects of whether the crime has been committed or not; if it has been committed the manner that it has been committed; the time it has been committed, and such elements; the incidents established during the course of criminal trial, and evidence regarding this, might be the determining factors regarding a disciplinary investigation. As it is often seen in practice, the evidence admitted in criminal trial, may subject not only the suspects but also third parties to an disciplinary investigation. In this regard, this evidence would constitute the basis of a disciplinary investigation, and furthermore, during the stage of judicial scrutiny, they would form the basis of the Court’s decision. Parallel to legal developments, and advances on the subject of illegally obtained evidence during criminal procedure, there has been noticably positive theoretical, and practical improvements. Even so, this subject is quite novel in terms of different legal disciplines are concerned; especially in terms of private, and disciplinary law[1]. Even so, as far as we can tell both from the news, and [1]

E.g. SEE: Tanrıver, Süha, “Türk Medeni Usul Hukuku Bağlamında Hukuka Aykırı Yollardan Elde Edilen Delillerin Durumunun İrdelenmesi”, TBB Dergisi, Sa. 65, Temmuz-Ağustos 2006, p. 119–128; Ateş, Mustafa, “Hukuk Yargılamasında ve Özellikle Boşanma Davalarında Hukuka Aykırı Deliller”, Terazi Aylık Hukuk Dergisi, Yıl 3, Sa.18, Şubat 2008, p. 89–114; The Court of Cassation examines whether the evidence is obtained through illegal means or not: After the conclusion of the above dated trial, appealing party asked the decision that is rendered by the local Court, to be examined through legal enforcement. On 10.14.2008, the appealing party A.I.D and his/her Council Attorney G.T. went before the Court. The other did not show up even though they have been process served. The Court decided to render its decision to a later date, after hearing the present party before the Court. Today, after reading all the documents the following decision is rendered: In the incident, the CD containing the sound recordings that the Defendant-the Plaintiff’s husband has submitted as evidence to the Court, has been obtained illegally through Plaintiff’s invasion of privacy. The Plaintiff argured that for this reason, it cannot be asdmitted in as evidence. The Court stated that ‘this information that is submitted in as evidence by the Defendant-husband, has been obtained, through illlegal means, through invasion of privacy, without the Plaintiff’s knowledge, for that matter it may not be taken account’. The Court further stated that there was no other evidence to

16

Ankara Bar Review 2013/ 2

also from the judicial decisions, the disciplinary, as well as the administrative authorities, use evidence obtained through communication surveillance as a basis for their decisions, without investigating and evaluating its legitimacy. Let us emphasize that, it is not advisable to utilize all the communication records, and/or documents that are in the criminal investigation and/or criminal prosecution files, as a basis for a disciplinary investigation; without making a legally

indicate that the Plaintiff did violate the obligation of fidelity. For the foregoing reasons, the Court dismissed the counter claim in the divorce case that the Defendant –husband initiated against his wife. The submitted evidence was obtained without the Plaintiff’s knowledge, within the mutual home of the spouses, through a system prepared by the husband without the Plaintiff’s knowledge. Following an expert witness investigation, it was found that the the sound recordings in the CD were original; there were no additions, substractions, clippings, and duplications on the CD. Respondent Plaintif did not claim that the recorded conversations were not hers, she objected to this evidence stating that it is obtained through invasion of privacy. If the means a piece of evidence is obtained is through violation of personal rights guaranteed under the Constitution, there is no hesitance that this evidence is obtained through illegal means. If there are legal means that the evidence is obtained, then the illegality does no longer exist. There is no doubt that under the Constitution, every individual has a right to ask for respect in his/her private, and family life. Secrecy of private life, and family life may not be invaded (Constitution art. 20/1). However, within a family union, the spouses are required to remain true to one another by law (TCiv.C. art. 185/3). The private life of one of the spouses, interests the other spouse as if it were his/her own. For this reason, in a marriage, the area of legal obligations regarding a marriage union, is not an area of one of the spouse’s private life, it is a mutual area of family life. Regarding this area, not the privacy of the individual lives of the spouses, but the privacy, and sanctity of the family union is important, and takes precedence. Therefore, legal obligations of the marriage union, is not privileged from the perspective of the other spouse. For this reason, the Respondent-Plaintiff who is suspicious of his spouse’s infidelity, who placed a recording device in the mutual home of the couple, and recorded the secret conversations of his spouse, and who established the infidelity of his spouse, could not have invaded the privacy of his spouse, and this act would not have been deemded to be illegal. To the contrary, when the Respondent in the counter claim, invited people to the mutual home of the couple for an illegal purpose, she has invaded the privacy of the marriage union. For this matter, it is not possible to allege that the afore mentioned evidence is obtained illegally. Therefore, the investigation conducted, and the evidence gathered, established that the Plaintiff-Respondent in counterclaim, has invited her friends including, friends from the opposite sex, to the mutual home, and she has acted contrary to the obligation of fidelity. Thus, it is established that between the couple there is irreconciliable differences, which would shake the marriage union fundamentally, and which would prevent the continuance of the marriage union. Under the circumstances, the Plaintiff has a right to initiate the counterclaim. Since there is no legal reason to force the couple to live together; the husband, the Defendant’s-the Plaintiff in the counterclaim must be sustained, and the petition of the wife is dismissed. “RESULT: The Plaintiff in the counterclaim-the Defendant husband’s objections to appeal must be sustained, and the rendered decision MUST BE VACATED for the reason explained above...” (2nd. Office of the Court of Cassation, 10.20.2008, decision 2004/635 E, 2007/387). In the same way, the Court of Cassation HGK (General Civil Board) previously decided that for a piece of evidence to form the basis of a judgment, it must not be illegal. (SEE: 02.26.2002, 2002/2–617, 648)


17





sound differentiation on the subject; just based upon the tenet that they were obtained through a Court order. No doubt, this happened as a result of wide-spread use of evidence obtained through communication surveillance, which is a by-product of light speed advances in technology. This type of evidence is admitted in, not only in the area of criminal law, but also in other areas of law, without investigating, and evaluating its legibility. As far as we can tell from the news, and from the judicial decisions that we were able to analyse, both the disciplinary authorities, and the administrative judicial authorities use this evidence obtained through communication surveillance, as a basis for their decisions. They base their decisions, upon this kind of evidence, without investigating, and evaluating the legitimacy of this evidence. Let us emphasize that, in a disciplinary action, it is not advisable to rest one’s opinion on all the records of communication in the criminal investigation and/ or criminal prosecution file, without making a sound distinction on the subject; and just based upon the reasoning that they were obtained by a Court order. Here we are going to refer to the main points on the subject, based upon the decisions of the Council of State, and we shall try to initiate a discussion on this subject.

II. Decisions Of The Council Of State On This Subject A. DECISION I “...The lawsuit was initiated by the Plaintiff, who worked as a customs officer for the Office of the General Director of the Customs and Guard, in Gaziantep. He was punished by dismissal from his duties as a civil servant on 02.15.2007, by process number 2007/8, under article 125/E-g of the 657 numbered Law. Later, this decision was vacated, and the Plaintiff initiated a lawsuit in order to receive backpay, and other additional wages, plus its legal interests which accrued as a result of this process. 12.25.2007 dated, and E:2007/199, K:2007/1307 file numbered decision of the Gaziantep 2. Administrative Court stated that: even though the Plaintiff had telephone conversations with an individual who was claimed to have been involved in smuggling, the expressions he used did not rise to the level, and severity to call for the penalty of dismissal from the position of civil servant. Other than the expressions he used during the telephone conversations, and claims on the indictment, there was no clear finding that he had committed the crime of moral turpitude, that would rise to the level of being in conflict with a civil servant’s position. On the other hand, it is clear that the actions

18


of the Plaintiff, might fall under other provisions of the 657 numbered law, regarding disiplinary penalties. Following this reasoning, it is decided that: the process which was based upon the legal suit must be vacated; and his salary, and other employee benefits must be calculated by the Administrative Office, and paid to the Plaintiff. The Respondent on appeal- the Administrative Office, argued that the decision of the Administrative Court is against the law, and the procedure. The Administrative Office requested that the decision should be reviewed, and vacated on appeal. Under article 125/E-g of the 657 numbered Law, to behave in disgraceful, and dishonorable ways and measures that would conflict with the title of civil servant, is designed as a disciplinary regulation which would result with the disciplinary penalty of dismissal from civil service. After reviewing the file: During the investigations conducted by the Gaziantep Police Department Unit for Combatting with Smuggling and Organized Crimes, the police received some information regarding some suspects, who were residing in the city of Gaziantep, at Etiler ditrict, on Türkmenler Street. These individuals owned some businesses in Küsget Industrial Site. According to this information, the suspects brought large amounts of petroleum, and other items from Syria, and Iran, into Gaziantep, without paying their customs; and they sold them in the market. After receiving this information, a systematic operation under the code name the ‘Black Mine’ was conducted, for nearly 6 months. After legal wire tapping, and physical pursuits, it is established that an operation was conducted. Suspects, including the Plaintiff among them, have been apprehended, and taken into custody. They have been prosecuted for organized smuggling, and organized aiding in smuggling. A separate prosecution for bribery was initiated against the Plaintiff, and four other people. According to the disciplinary investigation conducted, when various communication records recorded between the dates of 02.23.2006-05.13.2006 were examined, it is established that a person named Ö.G has been involved in organized smuggling for a number of times. Ö.G, accepted to help the trucks which were carrying fuel oil, and accepted to take money in the amount of 300-400 (the currency is not indicated), per truck. Through the telephone conversations, it is established that Ö.G, helped to direct foreign truck, and trailer drivers who brought him smuggled fuel oil, to the Plaintiff. Also, when the Plaintiff said: “give 150 million in expenses”, Ö.G accepted this offer. It is established that, Ö.G talked to the driver named Hüseyin over the phone, and directed the driver to the Plaintiff to help him smuggle 40-45 galons of fuel oil, and he even gave instructions to the driver such as: “give 300-400 per truck”. The phone conversations the Plaintiff had with Ö.G, and the expressions he used during these conversations, established


19





that the Plaintiff had an illegal association with Ö.G, and the Plaintiff helped this individiual in order to fulfill his act. None of these conducts, and acts are compatible with the office of a civil servant. For the stated reasons, it is decided that the Plaintiff must be punished by removal from the duties of a civil servant, under Article 125/E-g of the 657 numbered law. As far as the criminal charges, it is decided for the Plaintiff to be acquitted for lack of evidence. Under the file numbers of 2005/988 and 2006/460 of Gaziantep 1. Magistrate’s Court, file number 2006/9 of the 3.Magistrate’s Court, file number 2006/766 of the 4. Magistrate’s Court’s joint decisions, when the cellular telephone conversations of the individuals who have been accused of being involved in organized smuggling were intercepted, and when the communication records were analysed, it was discovered that the Plaintiff held telephone conversations with Ö.G., an individual who is a known smuggler, on more than 10 occasions. From the content of these phone conversations, it is established that he is in an illegal association with this individual, and he has helped this individual during the commission of his activities. In this case, under article 125/E-g of the 657 numbered Law, it is understood that the penalty of removal from civil service is not contrary to law. Therefore, the decision of the Administrative Court vacating the process, that is the subject matter of the lawsuit, is not legally correct. For the reasons explained above, the Defendant Administrative Office’s request for appeal has been sustained. 25.12.2007 dated, and E:2007/199, K:2007/1307 numbered decision of the Gaziantep 2. Administrative Court is vacated, based on article 49, section 1/b of the 2577 numbered Administrative Adjudication Procedure Law. based on the same article, Section 3 of the 3622 numbered law, and for the reasons stated above on 12.24.2008, it is decided by unanimous votes, for the file to be remanded to the aforementioned Court, for the Court to reach a new decison (Danıştay 12. Dairesi, Esas No: 2008/2568, Karar No: 2008/7255)[2]. As far as it can be understood from the decision: 1. The measure of surveillance of communication is not for the civil servant who received disciplinary penalty. 2. The civil servant was acquitted both, of the crimes of bribery, and smuggling. 3. The authority that enforced the disciplinary penalty, the Local Administrative Court, and also the Council of State admitted in evidence, which was [2]

For a much recent decision on the same subject SEE: Council of State12. D, 04.02.2011 T, 2010/64 E, 2011/474 K (http://dhb.aile.gov.tr, 07.10.13). This decision was the subject of domestic news due its importance: “…Council of State 12th Office, ‘it is decided that the evidence obtained through technical surveillance, and wire tapping which is not used in criminal prosecution, may be used for disciplinary investigaions …” (http://www.hurriyet. com.tr/gundem/18401157.asp, 07.10.13).

20


obtained through communication surveillance. Without questioning whether the measure of communication surveillance of the other defendant(s) would conform to article 135 of the CCP or not, the evidence that was obtained through communication surveillance was admitted in, to define the disciplinary penalty and/or to form the basis of the judicial review. The local administrative Court- the authority which carried out the disciplinary penalty, and also the Council of State, used the evidence obtained through communication surveillance to assess the disciplinary penalty, and/or for the stage of judicial review, without investigating whether the measure for communication surveillance conformed to article 135 of the CPC. B. DECISION II “...The Plaintiff, who worked as a customs inspection officer at the Gaziantep Office of the General Director of Customs and Protection, petitioned to have the process dated 02.15.2007, and numbered 2007/8 vacated, which resulted his removal from the position of civil servant. Gaziantep 2nd. Administrative Court’s 12.25.2007 dated, E:2007/194, K:2007/1306 numbered decision stated that no further prosecution is necessary after reviewing the file. The Court stated that the Plaintiff who worked as a customs inspector at the Gaziantep, Customs, and Protection Office, was not found guilty of the crime of receiving bribes, following the operation code named ‘the Black Mine’. For this reason the Court found that there was no ground to prosecute him for this crime. His prosecution for the crime of aiding in smuggling was still pending at the Gaziantep 1st Magistrate Court. In the investigation report number 31, prepared on the date of 10.18.2006, among the allegations in the indictmens; and also 11.17.2005 dated, and 2005/988 numbered decision of the Gaziantep 1st Magistrate Court to allow wire tapping revealed that on numerous occasions the Plaintiff (on appeal) has had various conversations, with an individual named Ö.G. After evaluating these phone conversations it is decided that his demeanour, behaviour, and actions were not compatible with the identity of a civil servant. He was found to have committed the offense of exhibiting disgraceful, and dishonorable behaviour incompatible with his identity as a civil servant. For this reason, under article125/E-g of the 657 numbered Law, the authorities moved to remove him from his duties as a civil servant. As a result of this, Prime Ministry Undersecretary of Customs, Office of High Disciplinary Council with its 2.15.2007 dated, and 2007/8 numbered decision penalized him by removing him from his position of civil servant. A law suit was initiated to vacate this decision. It is decided that in the incident that is the subject matter of the dispute, even though, it has it has been established that, the Plaintiff had telephone conversations with the individual who is accused of being engaged in smuggling. However, the expressions that are on the records of communication, do not rise to the level, and


21





gravity of his removal from his duties. Other than the expressions used during the telephone conversations, and the allegations within the indictment there is no other material evidence that would indicate that the Plaintiff engaged in alleged activities. For this reason, the procedure implemented is not agains the law; and it is decided to vacate the procedure, which was the subject matter of the legal dispute. Defendant- the Administrative Offce, claimed that the procedure against the Plaintiff was not against the law, and begged for the decision to be vacated on appeal. Disciplinary penalties are administrative enforcements, that have been imposed on civil servants, who act unruly; without paying attention to the work order, and who would perform acts that would conflict with the nature of the civil service. Disciplinary penalties, have a wide range of severe penalties including permanent suspension from civil service. Due to their gravity, and their importance, disciplinary penalties, are treated under Article 38 of the Constitution, regarding crimes, and penalties. In many of its decisions, the Constitutonal Court has evaluated the disciplinary penalties, under Article 38 of the Constituton, that is within general principles regarding crimes and penalties. In its 4.19.1988 dated, and E:1987/16,K:1988/8 numbered decision, the Constituonal Court stated that: Administrative sanctions are among the mandatory decisions, and procedures, and the crimes and penalties are going to be imposed based on their compatibility with the Constitution. In a state ruled by laws, under the principle ‘no crime, and no penalty without law’, the necessity for every act which would fall under the definition of crime to be defined, and to be set forth, is emphasized. When a civil servant commits a public offense, and his/her offense is established by a duly conducted investigation; the offense he/she has committed must be established clearly. He/she must be penalized under the relevant law, which would penalize the stated offense. If the offense that the civil servant is accused of committing does not fit any of the descriptions stated in the law, then the disciplinary penalty would be illegal, and it must be dismissed. On the other hand, article 125/C-ı, of the 657 numbered law, states that the offense of a civil servant who behaves in a dishonourable, and untrustworthy manner, during the commission of his/her duties, will be penalized by garnishing his/her salary. As it has been established by the Administrative Court, the Plaintiff had telephone conversations with the individual who is accused of being engaged in smuggling. However, the expressions that are on the records of communication, do not rise to the level, and gravity of his removal from his duties. Since there is no other material evidence on this matter, the process regarding the penalty by his removal from civil service is not against the law.

22


However, when the transcripts of the telephone conversations are examined, it is clear that the Defendant behaved in a conflicting way that would disredit the reputation and trustworthiness of a civil servant; thus, it is clear that he has committed the disciplinary offense under 657 numbered law, which is described above. For this reason, since the Defendant’s act fell under article 125/C-ı of the 657 numbered law, the decision of the Administrative Court has been correct. For the reasons stated above, on 12.31.2008 with majority of votes, it is decided to dismiss the Defendant-the Administrative Office’s request for appeal. It is also decided that Gaziantep 2. Administrative Court’s 12.25.2007 dated, and E:2007/194, K:2007/1306 numbered decision must be sustained as to its final decision. The expenses for appeal must be on the appealing party, the Defendant- Administrative Office (Council of State 12th. Office, Decision No.: 2008/2516, Decision No: 2008/7455)[3]. As far as we can tell from this decision: 1. The measure of communication surveillance is not regarding the civil servant who received the disciplinary penalty. 2. Regarding the civil servant’s case for the crime of receiving bribes, an additional decision of dismissal was rendered. The prosecution for the crime of ‘aiding an organized smuggling’ case is still pending. 3. The authority implementing the disciplinary penalty, the local Administrative Court, and the Council of State took this type of evidence as a basis for the designation of the disciplinary penalty, and judiciary review. They reached their decisions without investigating whether the conditions of communication surveillance implemented on the other Defendant(s) during criminal procedure complied with the provisions under article 135 of the CPL, or not.[4] [3]

[4]

The dissent in this decision is as follows: “Through the evaluation of the data, and the documents obtained both during the disciplinary, and criminal investigations, it is established that the Plaintiff has not abided by the obligations set forth under Law Number 5607, Article 19 of the Combating with Smuggling Law. Not only that, but also he was in contact, in association with people who are in the business of smuggling, he even helped those individuals. These acts are so disgraceful that, it is clear that they are not compatible with the identity of a civil servant. For this reason, the procedure that was decided earlier was legally correct. We do not agree with the decision of the majority regarding affirmation of the judgment. Member A.Ç.Z) Member (M.Ç).” Court of Cassation’s approach is also in this manner, even though it may be in a circumstantial. Indeed, in some of its decisions even if the Court of Cassation has decided that evidence obtained by chance may not be used for criminal prosecution, from the perspective of disciplinary punishment the Court has rendered some decisions that would conflict with this decision. Thus: in one of the decisions it rendered the Court of Cassation (5th Criminal Office 06.14.2006 dated, 06/6–4 numbered decision of the Court of Cassation): ...”A prosecutor of the Republic who is acquitted becase of inadmissable evidence... it is decided that his/


23





III. EVALUATION A. 1.- Criminal Procedure investigates to find out whether an incident that has claimed to have happened in the past, has actually happened; if it has happened, whether it was perpetrated by the suspect/Defendant, or not; and to define the ramifications of this act with regards to criminal law[5]. When this is done, the same tools are used in order to represent and, to re-play the disputed incident, during the prosecution phase. These tools are called “evidence (proof/means of evidence)[6]. Even though, in theory, there are different classifications, representing different perspectives; according to a classification prepared by Kunter there are three kinds of evidence. These are: “declarations”, “documents”, and “manifestations”. “Declaration”, and “document” evidence refer to the present case, which help to prove it directly. “Declarations” are divided into three among themselves: “Defendant’s/accused’s declaration”, “declaration of the witness”, and “declaration of the parties other than the Defendant” (e.g. involved, financially responsible, etc.). “Documents”[7] are also divided into three among themselves: “Written Documents”, “Documents identifying shapes”, and “Documents identifying sounds”. The third kind of evidence, “manifestations”[8] is divided into two: “natural manifestations” (e.g. blood, sperm), and “artificial manifestations” (e.g. uniform that is donned, monograms indicating the owner of the property)[9]. 2.- During criminal procedure material facts are investigated, therefore as a rule everything can be used as evidence. There is no requirement for certain facts to be proven, with only certain type of evidence (principle of freedom of her actions must be evaluated from the perspective of disciplinary offense under article 87th of the Act No. 2802, and therefore it must be submitted to the discretion of the High Commision of the Judges, and the Prosecutors....” With this decision (in my opinion, wrongfully so) the Court imputed a value to the inadmissable evidence in the file, from the perspective of the disciplinary offense. (SEE: Öztunç, Özgün, “Ceza Muhakemesi Açısından Yasak Deliller ve Disiplin Soruşturması Açısından Yasak Deliller ile Tesadüfen Elde Edilen Delillerin Değerlendirilmesi Sorunu”, http:// www. ozgunlaw. com/ articles/ Makale22072011 _DrOzgun Oztunc.pdf, 07.10.13, p. 6). Let us emphasize that Court of Cassation’s 07.03.2007 dated, and 2007/5 MD-23 E. and 2007/167K numbered decisions follow the same practice. (www.kazanci.com). [5] Centel, Nur/ Zafer, Hamide, Ceza Muhakemesi Hukuku, 6. Bası, Beta Basın Yayın Dağıtım A.Ş, İstanbul 2008, p.197. [6] Centel/ Zafer, Ceza Muhakemesi Hukuku, p.197; In the dictionary ‘evidence’ is defined as: “a clue, an indication that leads a person to the truth he is seeking” (http://www.tdk.gov.tr/, 24.05.09) [7] “A Document”, a man-made proof, that represents the material case. It can be divided into two: “formal” it is valid until its contrary is proven, and valid until it is proven that it is fraudulent; or it may be of a “private” nature. [8] “Indication”, is any kind of clue, or trace that is the residue of the incident. [9] Kunter, Nurullah/ Yenisey, Feridun/ Nuhoğlu, Ayşe, Muhakeme Hukuku Dalı Olarak Ceza Muhakemesi Hukuku, 15. Baskı, Beta Basın Yayın Dağıtım A.Ş, İstanbul 2006, p. 612 et seq.; Turhan, Faruk, Ceza Muhakemesi Hukuku, Asil Yayın Dağıtım, Ankara 2006, p. 156 et seq.

24


evidence). We must emphasize that in criminal procedure in order to prove that the Act has been committed by the accused/the Defendant, the adjudicator must reach a totally discretionary decision through the aid of instruments, which are within acceptable within legal norms. If not, if the doubt cannot be completely overcome, the under the principle of “Defendant benefits from doubt”, a decision must be reached for the Defendant. 3.- Even though, everything can be used as evidence during criminal procedure, it is still mandatory that this evidence would have certain properties. In this regard, the evidence: must be real, wise, representing the incident, unanimously approved[10], and also it must be admissable[11]. If the evidence is obtained illegally, this would be “inadmissable evidence”, and it would be impossible to take this evidence as a basis for the discretionary decision to prove the alleged crime. Under our Constitution’s article 38/6, which has been amended on the date of 10.03.2001, by article 15th of the 4709 numbered Law states that: “Evidence that is obtained illegally, may not be admitted in as evidence”; this is quite wide. Article 217/2 of the CPL states that: “Alleged crime, may be proven by any kind of legally obtained evidence”[12]. Let us indicate that, according to the Constitutional Court, and the Court of Cassation the term “contrary to law”, has a much wider context than the term “illegality”. Texts on positive law, and regarding contrary behaviour against fundamental human rights and freedoms, we can mention “contrary to law”. In this regard, contrary practices to the Constitution; to the international treaties ratified under the law; to the regulations; to the by-laws; to the decisions to join case laws; to the law of precedents; and to the general principles of law, they all would be within the concept of “contrary to law”[13]. B. An act, committed by a Clerk/ Civil servant, a lawyer, a notary public, a student, and even an individual who works as a labourer under the labour laws, may constitute a crime under criminal law, and also may be the subject of an investigation under disciplinary law. In this situation, criminal law, and disciplinary penalty law would be in conflict. Independent of one another, while the criminal prosecution is pending, disciplinary process is also pending at the same time. In this respect, an acquittal, a decision of ‘no reason for punishment’, [10] Not only the Judge, but also the Parties must know/learn content of the evidence. [11] Kunter/ Yenisey/ Nuhoğlu, Muhakeme Hukuku Dalı Olarak Ceza Muhakemesi Hukuku, p. 575–579; Turhan, Ceza Muhakemesi Hukuku, p. 155–156. [12] The subject is governed under article 254/2 of the CPL: “(Addendum clause 11.18.1992art.3842/24) Illegally obtained evidence by the Investigation, and Prosecution Authorities, may not be admitted in as evidence to form the basis of the decision.” For the detailed comparison of the mentioned regulations SEE:. Öztürk, Bahri/ Erdem, Mustafa Ruhan, Uygulamalı Ceza Muhakemesi Hukuku, 12.Baskı, Seçkin Yayınevi, Ankara 2008, p. 487–500. [13] Constitutional Court, 06.22.2001, RG, 01.05. 2002/24631 (repeated); Court of Cassation, General Penal Board (CGK), 29.11.2005/7–144/150 (zkr. Centel/ Zafer, Ceza Muhakemesi Hukuku, p. 653 ve dn.39).


25





a conviction, a decision for an injunction, dismissal or abatement of an action in the criminal case (CPL, article 223) is not going to be conclusive regarding the disciplinary investigation. As a rule the Administrative Office would not be bound by the decision of the criminal Court on the subjects of whether a disciplinary investigation should, or should not begin, and/or whether a penalty is due in a pending disciplinary investigation. In fact, the fundamental principle regarding the civil servants is regulated under article 131 titled: “Conducting Criminal Prosecution, and Disciplinary Investigation Concurrently”, of 657 numbered Law. Under this article[14]: “The fact that a criminal prosecution has been initiated against a civil servant on a given subject, cannot delay the disciplinary investigation on the same subject./Whether a civil servant is convicted, or acquitted under the criminal law provisions, could not have any bearing on the implementation of any disciplinary penalty against him./ (Addendum: 10.06.1983 – 2910/1 article). Under 160 numbered law regarding Establishing a State Staff Office, under article 4 Under the 4th article of the 160 numbered law, regarding the establishment of State Employee Office, in case that the employees who work in the referenced offices commit any offenses within the scope of their work, or if they commit any offenses within the course of their employment, and if they commit any other crimes outside the scope of their work, they will be investigated by Constitutional Prosecutors; Military Prosecutors; or investigator Magistrates. After the duly conducted investigation regarding the civil servant, any copies of decisions of dismissal, a judicial bar, indictment, a written motion, or a true bill, or copies of final judgments rendered by the related courts, will be sent to the ministry, establishment, or institute that this employee works for”[15]. Let us immediately emphasize, that even so, the disciplinary investigation is not totally independent of the criminal investigation and/or prosecution. For a decision of acquittal when it is established that the Defendant did not commit the crime, or a decision of conviction (CPL art. 223) when it is established that the Defendant committed the crime that he/she is being accused of, is going to bind the disciplinary authorities, regarding its content, and its nature (Constitution art.138/4). At the same time, the evidence obtained during criminal procedure, is going to form the basis of decisions rendered at the end of disciplinary investigations, and the judicial review thereof. This situation lays out the importance of the evidence obtained during criminal investigation, and its legitimacy; and the fact that this evidence’s importance not only from the perspective of criminal law, but also from the perspective of disciplinary law. [14] For similar regulations SEE: article 72, 96 of the 2802 numbered Law. [15] Under the 11.29.1984 dated, and article 55 of the 243 numbered Executive Order (KHK) referrals to the 12.13.1960 dated, article 4 of Act No., is considered to be referring to 6.8.1984 dated, 160, and 217 numbered of the KHK’s related article. Therefore, article 4th referred under this article, must be considered as article 2 of the 217 numbered KHK (http://mevzuat.basbakanlik.gov.tr/, 05.29.09).

26


B.1.- Regarding evidence that is contrary to law, there is no clear arrangement in disciplinary law[16]. However, this does not mean that evidence that is contrary to law could be used in this area of law; for many norms, and basic principles of law, starting with article 38 of our Constitution would be against this. Indeed, our Constitution’s article 38/6 that replaced article 15th of the Law number 4709, on the date of 10.03.2001, arranges that the evidence obtained contrary to law, could not be admitted in as evidence. This provision would be binding upon both criminal adjudication, and also other areas of adjudication[17]; and it would also be binding upon administrative establishments, and authorities on the subject[18]. Indeed under article 177/e of the Constitution: “The provisions of the Constitution which would be effective after the general vote of the people; and implementation of new laws regarding existing, and future institutions, and establishments, and if any amendments are required, processes that are related to these, provisions of Acts which do not violate the Constitution, or directly the provisions of the Constitution, under the 11th article of the Constitution...” will be applied. As we know, under article 11 of the Constitution, “provisions of the Constitution, are fundamental legal rules, which are binding upon the legislative, executive, and judiciary powers; administrative authorities; and other institutions, and individuals”. [19] Let us indicate that under article 176/2 of the Constitution, article side headings are not considered to be the Consitution. For this reason, the heading “Main points regarding Crimes and Punishments” does not have any binding effect, and does not have a limiting function[20]. Moreover, Constitutional Court’s 04.04.1991 dated, and 1990/12 E., 1991/7 K. numbered decision stated that: the essence of article 38 of the Constitution, does not only cover punishments under substantive criminal law, but it also covers administrative penalties (disciplinary penalties). [16] On this subject there is a clear provision, under the French Act of Criminal Proeedure, article 174, final clause. Under this provision even if illegally obtained evidence is inadmissable for purposes of criminal procedure, they may be used for the purposes of disciplinary investigation of the Judges, the Prosecutors, and the lawyers. (http:// legislationline.org/ download/ action/ download/ id/1674/ file/ 848f4569851e2ea7eabfb2ffcd70. htm/preview, 07.10.13). [17] Tanrıver, Türk Medeni Usul Hukuku Bağlamında Hukuka Aykırı Yollardan Elde Edilen Delillerin Durumunun İrdelenmesi, p. 122. [18] Öztürk/ Erdem, Uygulamalı Ceza Muhakemesi Hukuku, p. 498–502; Şen, Ersan, Türk Hukuku’nda Telefon Dinleme Gizli Soruşturmacı X Muhbir, 3. Baskı, Seçkin Yayınevi, Ankara 2009, p. 121–128; Kaymaz, Seydi, Ceza Muhakemesinde Telekomünikasyon Yoluyla Yapılan İletişimin Denetlenmesi, Seçkin Yayınevi, Ankara 2009, p. 449. [19] Agrees with the viewpoint of Private Law: Tanrıver, Türk Medeni Usul Hukuku Bağlamında Hukuka Aykırı Yollardan Elde Edilen Delillerin Durumunun İrdelenmesi, p. 122–123. [20] Öztürk/ Erdem, Uygulamalı Ceza Muhakemesi Hukuku, p. 502; Tanrıver, Türk Medeni Usul Hukuku Bağlamında Hukuka Aykırı Yollardan Elde Edilen Delillerin Durumunun İrdelenmesi, p. 122.


27





2.- An administrative adjudication authority, which reviews a disciplinary penalty that is rendered based upon an evidence contrary to law, is going to render its decision based upon article 11th of the Consitution. Under article 138/1 of the Constitution “A conscionable judgment, bound by the Constitution, and the law...” will be rendered. For this reason, the administrative adjudication authority will examine the legality of the instruments used to prove a disciplinary offense, which is an administrative process. In case they are illegal, it will adjudge to vacate the administrative process, in other words, to vacate the disciplinary penalty[21]. 3.- Under article 36/1 of the Constitution: Either a Plaintiff, or a Defendant, everybody has a right to a fair trial before the adjudication authorities; as long as he/she uses legal means, and methods. This provision governs an individual’s freedom to seek justice either as a Plaintiff, who puts forward a claim; or as a Defendant, who has a right to defend[22]. However, this freedom can only be exercised through legal instruments, and methods. An Administrative Authority’s disciplinary penalty which is based upon evidence contrary to law, cannot be accepted as a legal means of defense, when an individual against whom a disciplinary penalty is rendered appeals this decision. D.- Evidence obtained through communication surveillance during criminal procedure, may be subject of evaluation during a disciplinary investigation. Let us evaluate some of these possibilities: 1.- During the communication surveillance for the purpose of criminal investigation, or prosecution, the communication of an indivual who does not have a judicial injunction, may be identified, wire tapped, and/or recorded by mistake. In this case, if the information obtained raises doubt that a crime listed under article 135/6 of the CPL might have been committed, in such a situtation, it is going to be kept, and it will be assessed by the Prosecutor for the Republic, only within the context of a criminal investigation on the subject. It shall not be used in any other way, and it shall not constitute a basis for disciplinary penalty. Moreover, the information, or the content of wire tapping, is the kind that would form the basis of a crime other than what is listed under section 6, of article 135, and/or it is such that it would form the basis of a disciplinary offense, it cannot be used, assessed, expressed by anybody, or any institution, not even the by the Prosecutor for the Republic. It may not be shared by the third parties. For communication surveillance, is a protective measure which limits an [21] For similar findings, and evaluations, SEE: Gökpınar, Mahmut, Disiplin Hukukunda Yasak- Hukuka Aykırı Deliller (Anayasa Mahkemesi- Danıştay ve Yargıtay İçtihatları ile) Disiplin Suçu Genel Teorisi, İstanbul 2011, p. 13, etc. [22] Tanrıver, Türk Medeni Usul Hukuku Bağlamında Hukuka Aykırı Yollardan Elde Edilen Delillerin Durumunun İrdelenmesi, p. 124.

28


individual’s fundamental rights, and freedoms (especially the right to communicate, and the sanctity of private life) (Constitution art. 20–21), and these rights can only be limited by the principle of proportionality, and by law (Constitution art.13, 20, 22). For this reason, the communication surveillance which was provided by the lawmaker only for certain grave crimes, and only within the context of criminal procedure (CPL art.135–138), cannot be invoked for disciplinary law, which has a different purpose, different subject matter, and different method. 2.- The Respondent in a disciplinary investigation, is also the perpetrator of the crime in criminal procedure, and a decision of conviction rendered against him (CPL art. 223/5–6) has been finalized. In this situation, a final judgement of conviction, would be binding upon the Administration, as far as the disciplinary investigation goes. The Administrative Office conducting the disciplinary investigation is bound by the decision of conviction rendered by the Criminal Court; therefore, it may use the evidence obtained through communication surveillance that is within the file. However, the Administrative Court may not change the outline of the committed act, by evaluating the evidence in a different way. A contrary situation, would mean that the law is contradicting itself; and also it would mean that for the purpose of a disciplinary investigation it would be possible to use communication surveillance, which would result in obtaining evidence through illegal means. 3.- In the example -(b)-above, a judgement of acquittal was rendered since the accused was not the perpetrator of the alleged crime, and the decision has been finalized (CPL art. 223/2-b). In this case, for the reasons stated earlier, neither the decision of acquittal, nor the documents in the file regarding the communication surveillance, cannot consitute the basis for the disciplinary penalty. Because, with the decision of acquittal of the criminal Court, it is established that this individual did not commit this Act. This decision would be binding upon the Administrative Office. 4.- After the conclusion of criminal procedure, a judgment other than a judgment of conviction, or acquittal, which is mentioned above (e.g. a decision of abatement of action, dismissal of the administrative case, no reason to render a penalty on the Defendant) (See: CPL art. 223) may have been rendered. In this case, for the reasons stated above, the evidence obtained through communication surveillance, cannot form the basis of a disciplinary investigation; and procedures, and judgments rendered after its judicial review. 5.- Because of the importance of this subject, we briefly would like to mention, the view points of Judges, and Prosecutors on this subject. As you know, 02.24.1983 dated, and 2802 numbered “Judges and Proseutors Act” ( RG, 26.02.1983/17971), article 82nd , titled “ the Investigation” states that: “For an investigation, or examination to be initiated against the Judges, and Prosecutors, for the crimes that they have committed within the scope of, or within the commission


29





of their duties; or due to their demeanours, and behaviours which do not comply with their identity, or duties, a permission from the Ministry of Justice is required. “The Ministry of Justice may conduct the examination, and investigation, through Justice Inspectors, or through Judges, or Prosecutors who are seniors of the accused. The Judges, and the Prosecutors who will conduct the investigation, have the same authority that the justice inspectors have under article 101.” Article 101 that is referred to states that: “Justice inspectors hear, or depose the individuals that they deem necessary to hear, or depose; and if the investigation requires it, they search. They collect the evidence to prove the Act, directly from all the offices, and establishments. Related establishments, and individuals have to submit the requested evidence.” When we look at the above referenced provisions, the justice inspectors have the authority to conduct “searches” (See: CPL art. 90–140) under certain conditions; other than this protective measure they are not bestowed with any other protective measures, including communication surveillance. Let us emphasize that during a disciplinary investigation conducted against Judges, and Prosecutors of the Republic, protective measures such as communication surveillance; its recording; evaluation of its signal data; cannot be referred to, even with the decision of the Judge. Also the evidence obtained through communication surveillance during a criminal investigation, or prosecution, within the framework of articles 135-138 of the CPL, cannot form the basis of a disiplinary investigation, for the reasons stated above. 5271 numbered CPL, which was enacted after the 2802 numbered Law states that: The authority to search is essentially based on the decision of the Judge; when time is of the essence, this decision would be rendered by the Prosecutor for the Republic (art. 119). This provision is rather an assurance as far as the fundemental rights and freedoms are concerned, and it also conforms to the Constitution. Therefore, articles 82, and 101 of the 2802 numbered Law, have been annulled by implication. E.- When you examine these thoughts/principles that are explained in brief, and the above stated decisions of the Council of State, the first thing that catches your attention is that neither the administrative authority that implements the disciplinary penalty, nor the administrative Court that renders the decision, nor the Council of State that examines the decision on appeal, had investigated, or assessed the evidence-wire tapping, that formed the basis of the decision, from the perspective of the disciplinary law. However, as far as it is understood from the decisions, the person whose communication has been wire tapped was not the civil servant Defendant, who received the disciplinary penalty, but it was the other Defendant. In this situation, it was not possible to use this evidence against the civil servant, during criminal procedure[23]. As [23] Thus, within the doctrine, there is accurate findings, and critics stating the illegality of the similar practices.

30


you know, communication surveillance-when the other conditions stated under article 135 of the CPL exist-may only be used for criminal investigation, and prosecution; and in case there is strong probability that the accused committed the crime, and there is no other way to obtain any evidence. For this reason, both during the administrative process in the form of disciplinary penalty, and its judicial review, it is not legal to base the decisions on the evidence obtained through communication surveillance[24]. Let us state that in a similar situation, the Council of State, sustained the decision of the local Court. The local Court refused to vacate the decision of the administrative Court, that penalized a police officer by removal from his/her duties. The Plaintiff, the police officer was acquitted from criminal prosecution. The removal decision was based upon the conversations of the police officer, with another individual whose conversations were wire tapped, under an order of communication surveillance. However, two Court members dissented –rightfully so. They based their dissent on a precedent decision of the Court of Cassation, General Penal Board (CGK) 2006/162 E, 2007/167 numbered decision, a person who does not have an order of communication surveillance agasint him, who is a party to telephone conversations that are wire tapped, cannot be removed from his job based upon this evidence.

(Öztunç, Ceza Muhakemesi Açısından Yasak Deliller ve Disiplin Soruşturması Açısından Yasak Deliller ile Tesadüfen Elde Edilen Delillerin Değerlendirilmesi Sorunu, p. 6-9). [24] For the 12th Office of the Council of State, 24.09.2008 dated, and 1240/4858 E, K numbered decision, SEE: Meran, Necati, Adli ve Önleme Amaçlı İletişimin Denetlenmesi (Telefon Dinleme-SMS-MMS-E-Mail İzleme) Gizli Soruşturmacı Teknik Takip, Adalet Yayınevi, Ankara 2009, p. 263–264.


31





IV. CONCLUSION “Communication Surveillance”, has been approved by the law maker under strict scutiny, and limited to the crimes listed under articles 135/6 of the CPL. The basis for this limited approval is no doubt, the potential limitation of fundamental rights and freedoms of an individual, sanctity of the private life, and freedom to communicate. According to the lawmaker’s clear declaration of intent, due to the fact that it is not stated within the script of the law, and also due to the fact that its application would be against the order of democratic society, and the principle of proportionality (The Constitution art.13; ECHR art.8), a piece of evidence obtained through communication surveillance during criminal procedure, cannot be used during a disciplinary investigation. For this reason, it is important that the evidence is obtained through proper means. In case that the communication surveillance was conducted in a manner, either partially, or wholly contrary to the stated terms under the law, it is clear that this type of evidence would be illegal both from the perspective of disciplinary law, and also from the perspective of criminal law. A provision of the Constitution-the Supreme Law of the Land, states that illegally obtained evidence would not be admitted in as evidence (art.38/6), and that the provisions of the Constitution would be binding upon the powers of the judiciary; the executive; and the judiciary, and the administrative authorities, and other establishments, and individuals (art.11); and the fact that the Judges would base their decisions on the Constitution, on the laws, and on their own discretions based on the law (art.138); when we assess all of these provisions together, the evidence obtained through invasion of privacy, and through breach of freedom of communication, cannot be admitted in as evidence, within any branch of law including criminal law, private law, as well as disciplinary law. In this case, as far as a disciplinary investigation, and an imposition of penalty go, the administrative authorities, and the adjudicators , cannot base their decisions on any evidence obtained illegally in general; and in particular they cannot their base their decisions on documents that are obtained through communication surveillance.

32




BIBLIOGR APHY

Ateş, Mustafa, “Hukuk Yargılamasında ve Özellikle Boşanma Davalarında Hukuka Aykırı Deliller”, Terazi Aylık Hukuk Dergisi, Yıl 3, Sa.18, Şubat 2008. Centel, Nur/ Zafer, Hamide, Ceza Muhakemesi Hukuku, 6. Bası, Beta Basın Yayın Dağıtım A.Ş, İstanbul 2008. Gökpınar, Mahmut, Disiplin Hukukunda Yasak- Hukuka Aykırı Deliller (Anayasa MahkemesiDanıştay ve Yargıtay İçtihatları ile) Disiplin Suçu Genel Teorisi, İstanbul 2011. http:// legislationline.org/ download/ action/ download/ id/1674/ file/ 848f4569851e2ea7eabfb2ffcd70. htm/preview, 07.10.13. http://dhb.aile.gov.tr, 07.10.13. http://mevzuat.basbakanlik.gov.tr/, 25.05.09. http://www.hurriyet.com.tr/gundem/18401157.asp, 07.10.13. http://www.tdk.gov.tr/, 24.05.09. Kaymaz, Seydi, Ceza Muhakemesinde Telekomünikasyon Yoluyla Yapılan İletişimin Denetlenmesi, Seçkin Yayınevi, Ankara 2009. Kunter, Nurullah/ Yenisey, Feridun/ Nuhoğlu, Ayşe, Muhakeme Hukuku Dalı Olarak Ceza Muhakemesi Hukuku, 15. Baskı, Beta Basın Yayın Dağıtım A.Ş, İstanbul 2006. Meran, Necati, Adli ve Önleme Amaçlı İletişimin Denetlenmesi (Telefon Dinleme-SMS-MMSE-Mail İzleme) Gizli Soruşturmacı Teknik Takip, Adalet Yayınevi, Ankara 2009. Öztunç, Özgün, “Ceza Muhakemesi Açısından Yasak Deliller ve Disiplin Soruşturması Açısından Yasak Deliller ile Tesadüfen Elde Edilen Delillerin Değerlendirilmesi Sorunu”, http:// www. ozgunlaw. com/ articles/ Makale22072011 _DrOzgun Oztunc.pdf, 07.10.13. Öztürk, Bahri/ Erdem, Mustafa Ruhan, Uygulamalı Ceza Muhakemesi Hukuku, 12.Baskı, Seçkin Yayınevi, Ankara 2008. Şen, Ersan, Türk Hukuku’nda Telefon Dinleme Gizli Soruşturmacı X Muhbir, 3. Baskı, Seçkin Yayınevi, Ankara 2009. Tanrıver, Süha, “Türk Medeni Usul Hukuku Bağlamında Hukuka Aykırı Yollardan Elde Edilen Delillerin Durumunun İrdelenmesi”, TBB Dergisi, Sa. 65, Temmuz-Ağustos 2006. Turhan, Faruk, Ceza Muhakemesi Hukuku, Asil Yayın Dağıtım, Ankara 2006. www.kazanci.com, 07.10.13.


33


On the Apolitical Char acter of International Law (or Lack Thereof) Dr. Gökhan GÜNEYSU*

* Assistant Professor of International Law, Anadolu University, Faculty of Law, Eskisehir Turkey.


Dr. Gökhan GÜNEYSU

ABSTR ACT International law has an innate and seemingly unquestionable claim on its allegedly apolitical character. However, international law is far from being an apolitical domain. On the contrary, due to systemic influences or by way of politically-informed or other personal interpretations of law, international law proves to be a very political construct. Under the light of this revelation, one feels compelled to probe deeper into the political features of international law by way of theory and to debunk its mythological self-portrait of an apolitical benefactor of humanity. Doing this will enable the opening up of new perspectives for the much needed improvement of international law. Keywords: International Law, Critical Legal Studies, Feminist International Law, Theories of International Law


37


On The Apolitical Character Of International Law (or Lack Thereof )

I

Introduction

f you are willing to work as a professor of Public International Law in Turkey, it is imperative that you write a so-called Habilitationsschrift as well as some other additional academic papers, which are then going to be reviewed and evaluated by a jury of PIL Professors designated by a centralized governmental institution. During this process, one may be found lacking, which in turn will disqualify her and force her to write new book or papers. There are many cases where these refusals on behalf of juries to promote certain individuals are utterly and totally justifiable. However, there have been other cases, this author has heard of, in which some very successful and promising academics have been rejected solely due to the fact that the subjects of their submitted dissertations are just too theoretical for the liking of the jury. This means all the Koskenniemis, Slaughters or Miélvilles of the world, who are working diligently to produce high quality academic pieces, may be facing a big danger, if they happen to be working towards a full professorship at a Turkish university. Theoretical international law students are definitely running the risk of an elimination by a jury of five established professors, who would obviously tend to deem it more prudent and wise to write rather about “concrete” problems of international law. This approach cannot be said to be existent only in the Turkish school of international law.[1] This flaw is a characteristic of the international law circles all around the world as has been highlighted by the rather-theory-oriented students of the field. In this paper I shall try to probe into this problem and to highlight a major deficiency in the philosophical inquiries by students and experts of international law as to what international law should be like. Given this aim, this paper can by no means claim to be an original work, for this deficiency easily observable on the ontological and epistemological departments of international law has been succinctly elaborated by great legal thinkers like Koskenniemi or Kennedy, to name a few. I, in addition to the referred writers and their works, will try to justify my claim that this theoretical stagnation may be attributable to the peculiarities of a certain international system, i.e. the UN System.

[1]

I am not sure whether there is a Turkish school of international law. Berdal Aral probes into this “school” in his important article; Berdal Aral, “An Inquiry into the Turkish ‘School’ of International Law”, The European Journal of International Law, Vol. 16, No. 4, Oct. 2005, pp. 769-785.

38


The International System I am of the opinion that international law thought of today has been substantially shaped by the UN System. This system, which is essentially nothing but a series of refraining acts even from discussing the real and pressing problems of humanity and the earth, so that superpowers shall be appeased or (God forbid) not pushed into an unwanted friction against each other, must be the main culprit for our ideological timidity, each time we are called upon to discuss international law and its deontology. I feel it would be totally justified to claim that today’s international law had been determined, shaped and partially frozen in the formative years of the 20th Century, namely the short period of time following 1944. The universal system called into existence by the victor states of the 2nd World War was reflective of the state of affairs on the field. There were winners and losers; there were powerful states and others who were far from being a challenger to these mentioned powerhouses. What we know today as international system or UN System is a mélange of a face-saving idealism and a so-called realism. The latter should be read as meaning in actuality the prolongation of the national power and security concerns of “the victor states” right into the heart of the emerging universal structures. “When the American proposals were first made in 1943 and 1944 for a prospective world organization, there was obvious tension between the desires of the major powers to retain ultimate control over the organization’s biggest decisions and the need to gain widespread support among the small and medium states that were to be its rank and file.”[2] Blended with the above mentioned idealism and the sheer gladness to have an end to the terrorizing universal war, this nepotistic structuralization may have been neglected or simply ignored, for the lack of aggressive and deadly battles is in itself an end, especially for a world or states killing each other’s citizens in millions. In addition what followed the 2nd World War was a stagnative period of all the world states shaking under the fear of a nuclear exchange between the competing super-powers. This potentially ultra-dangerous war had to be avoided at all costs and this urge led to the freezing of many regional or local disputes, for these only too easily could have been promoted to a dispute with extinction at the end. Another symptomatic regularity was the need on behalf of the unimportant states to get along well with their sphere’s super power or other powerful and influential states like France or England. Security Council had five standing members, who had the veto power as well as military capabilities to back up [2]

Ian Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council, Princeton University Press, Princeton and Oxford, 3rd Printing, 2008, p. 20.


39





their legally created privileged positions. Though the Security Council was not directly in the business of lawmaking on a universal level, every member of the international community knew only too well who was who. Therefore it would be a misleading remark if we were to delimit the influence of the Security Council only to the fields of peace and security. Superpowers and other standing members of the Security Council were the deities of this secular cathedral, whose approval should have been secured at all times and costs by the lesser beings, i.e. other states. Then, a state who is willing to take part in the travaux préparatoires of a multilateral convention has to be very careful to avoid the situation of falling from grace in the eyes of the “boss”. This political and timid approach has had to inform the contributions of a major part of the states. The notes and remarks prepared by the foreign affairs ministries had to be evaluated again, solely in terms of their compatibility with the declared designs of the superpowers. There had to be necessary additions and also some roguelooking policy designs were to be chopped at a very early stage. If looking like a renegade in the eyes of the superpower was already eliminated, then the client state could have started the process of making its master glad. This hypocritical stance was ubiquitous and helped the formation of law, we are today operating under. Against this background, I argue that international law cannot be thought about in total separation from the political processes. Logically then, it would be wrong to believe that international law is an apolitical construct. Law, generally speaking, has to address the emerging problems of the society, in which it prevails. That said, we are still walking and talking in the dark, for, when the time comes to the lawmaking on an international level or better for the needs of an international society, we have to think within the parameters and act in accordance with the procedures, created with the rigid and hypocritical thinking of the post 2nd World War Era. Then, it is crystal clear that we have to increase the variety of the inputs into these lawmaking mechanisms, including some very welcome inputs to amend for the better these mechanisms and constructs. Theoretical contributions prove to be very important, so that all the possible scenarios as to what the world can look like tomorrow, can be heard of. With all these said, there is a vast collection of written rules and regulations in international law and these international rules have been forged during an era, which, by its very nature, restricted the options for what law should prescribe. An international law expert working for her country’s foreign affairs ministry has now to dwell upon this non-visionary and usually politically-informed body of rules. This modus operandi has to be seen as the most prudent form a methodological standpoint, since the rampant lawmaking has consolidated itself as the international law, recognizing no chance for the hitherto-suppressed or innovative modes of legal thinking.

40


However, in the light of the mentioned need for theory, one has to challenge this consolidated international law approach, which finds its embodiment, among others, in the 38th Article of the ICJ Statute.[3][4] This challenger, though, runs the very probable risk of being an outcast or even worse a “rebel”, who shall have a very hard time earning recognition as a professor of international law. In addition, this rebel and her works may be classified as fanciful imaginations that display no coherence with the “paradigmatic values” of the discipline and eventually scientific value, even the slightest of it, may be rejected to them.[5] In the light of this dogmatic intellectual environment, it is only logical to assume that there is a serious time-gap between what law is and what it really ought to have been, in order to be able to tackle the problems the international community is facing today. Human rights and international environmental law are two very cogent proofs of this belated nature of public international law. It is no coincidence that only after the structures of the cold war began to loosen up a little bit that the international community gained the momentum and raised the requisite awareness needed to create legal rules specifically to address matters of extreme importance, like the very survival of the planet, hence the birth of the international environmental law. Sadly enough, this relatively recent codification of international rules, too, has been a product of a completely political stage, which has its “alpha states” and other lesser entities. Against this background, one can only speculate on what international law could have looked like today if international decision and law-making mechanisms were not diluted by political calculations and endless efforts to appease the powerful states.

[3] [4] [5]

The Statute of the International Court of Justice, available at Erdem Denk tackles the racially biased structure of international law and also this very article in his thought-provoking work; Erdem Denk, “Güle güle uluslararası hukuk, cehenneme kadar yolun var”, Birikim, Vol. 190, February 2005, pp. 71-96. Thus, international law students are strongly called upon to produce and reproduce “normal science” in the Kuhnian sense, i.e. in strict compatibility with the pre-set paradigmatic values and boundaries. According to Kuhn; “Normal science, the activity in which most scientists inevitably spend almost all their time, is predicated on the assumption that the scientific community knows what the world is like. Much of the success of the enterprise derives from the community’s willingness to defend that assumption, if necessary at considerable cost. Normal science, for example, often suppresses fundamental novelties because they are necessarily subversive of its basic commitments.” Thomas S. Kuhn, The Structure of Scientific Revolutions, The University of Chicago Press, Chicago and London, 3rd. Edition, 1996, p.5.


41





Theory and its Benefits Where does the theory fit in against this background? As can be seen, theory is needed to inform the speculation to guess those parallel international laws with a view to converging today’s law to the ideal one, at least to that extent as this could be possible. With a blooming academic subfield in international law and with the ever increasing number of theoretical works, international law is opening itself up to the probability that “a different world is possible”. From the feminists it learns how intrinsically value-laden and gendered it is; and how these laden masculine values are intrinsically working as root causes of the reification and justification of “social, political and economic inequalities”.[6] Feminist international lawyers, “seek to expose and question the limited bases of international law’s claim to objectivity and impartiality and insist on the importance of gender relations as category of analysis”.[7] Another significant opportunity of soul-searching for the international lawyers would be provided by the Critical Legal Scholars and their studies regarding international law.[8] According to CLS scholars that are preoccupied with the problems of international law, this domain of law is in a constant pendulum movement, acting at times as solid expressions of a consolidated legal structure.[9] While this is the hard side of this Janus-faced construct, at other times this body of rules can deteriorate into mere idealistic-looking rhetoric. This arbitrary bifurcation renders it possible for the states to act as they politically deem fit; sometimes as the benefactors of universal idealistic values and humanistic calls and sometimes as stone-hearted actors jockeying for more power, who would solely be willing to be bound by those rules, to which they expressly consented. This debunking of international law by the critical lawyers is a convincing illustration of how shaky its solid-looking foundations actually are. In addition to these, international law has the chance to find out (owing to the theory) how racially or culturally biased it can be, or failing thereof, it at times runs this risk of carrying these biases without ever knowing it.[10] [6]

Hilary Charlesworth, “Subversive Trends in the Jurisprudence of International Law”, American Society of International Law Proceedings, Vol. 86, 1992, p. 128. [7] Hilary Charlesworth, “Feminist Methods in International Law”, American Journal of International Law, Vol. 93, April 1999, p. 379, cited in Noellë Quevinét, “Feminist Scholars and international (humanitarian) law: Are their claims justified?”, Humanitäres Völkerrecht, 4/2002, p. 228. [8] David Kennedy, “A New Stream of International Scholarship”, Wisconsin International Law Journal, Vol. 7, Number 1, Fall 1988, pp. 1-49 ; Nigel Purvis, “Critical Legal Studies in Public International Law”, Harvard International Law Journal, Vol. 32, Number 1, 1991, pp. 81-128. [9] Necati Polat, Ahlak Siyaset, Şiddet: Bir Kuram Olarak Uluslararası Hukuk, Kızılelma Yayıncılık, İstanbul, 1999, pp. 83-94. [10] For a succinct elaboration of Eurocentric tenets of international law, Martti Koskenniemi, “Histories of International Law: Dealing with Eurocentrism” Rechtsgeschichte, Zeitschrift

42


International law inherently has a claim stemming from liberal thought that forms its basis. According to this, law has the capacity to bring about objective rules that foresee legal solutions to international disputes. International judge has to determine the rule applicable to the dispute at hand and justice will be served in this allegedly objective manner. According to ICJ, “the Court is not a legislative body. Its duty is to apply the law as it finds it, not to make it”.[11] However, even the most obviously drafted legal rule requires some level of interpretation inevitably during its application. Therefore, interpretation emerges as a necessity not only in relation to those rules that are simply ill-prepared or not-so-meticulously drafted or those that carry an innate ambivalence. This kind of rules are deemed by the international law and its academia to be the only rules in international law that require an interpretation. That said, in reality every legal rule necessitates an interpretation. At the final analysis, it all comes down to the judge invited to apply these rules. If there is a serious probability of prejudice on behalf of judges then the liberal understanding of international law faces a huge challenge in its claim of absolute objectivity. As a matter of fact, it is reported that the Court has gone beyond “the law as it found” and rendered decisions on issues where ambivalence reigned rampant.[12] If, by way of interpretation, law can be re-created according to personal designs and/or perceptions of judges, then it would be very difficult to accept this claim of purported legal objectivity dominant on international fora, which brings us to the conclusion that it is wrong or at least objectionable to define international law as a sphere of ontological objectivity with no political strings attached to it. As observed, political considerations may be at play either on systemic level (i.e. states’ politically-informed contributions to international law’s making) or on personal level (i.e. perceptions and political inclinations of the international Judge). These studies and contributions along with many insights they provide, may eventually enable the international legal system to make it up for the long period of stagnation and to turn itself into a fitter system so as to meet the needs of the international community.

des Max-Planck-Instituts für europäische Rechtsgeschichte, 19/2011, pp. 152-176. [11] South West Africa (Second Phase), Judgment of 18 July 1966, ICJ Reports, s. 48. [12] Necati Polat, “Uluslararası Hukukta İçerik Sorunu: Ege Uyuşmazlığı Örneği”, in İhsan Dağı (Ed.), Türk Dış Politikasında Gelenek ve Değişim, Siyasal Kitabevi, Ankara, 1998, p. 223.


43





Instances of International Injustice That the system has failed many times in duly meeting the needs of the international community as a whole may be highlighted by a series of cases or advisory opinions of the International Court of Justice. Among these, Nuclear Weapons Advisory Opinion[13] merit a special attention, for in it the misery of the Court is definitely most visible. As known by the community of legal scholars, the Court juxtaposed some humanitarian rules, which it defined as “cardinal rules” of great significance. The Court then went on to add that employment of nuclear weapons shall definitely violate some of the most important general rules of this “humanitarian” law. All of a sudden however, the Court changed its course and direction and left the humanitarian concerns definitely unattended by claiming that if the survival of the state is threatened, that state may use nuclear weapons without heeding the general rules of humanitarian conventions, some of which may even make the final list of the so-called jus cogens rules one day.[14] To put it bluntly, the Court refrained from calling spade a spade. Two things may be aimed by this; the reiteration of the prestigious and privileged position of the states and their security concerns in the international platforms and secondly the unmistakable effort of the court to give “alpha states” some leverage in their decisions as to their nuclear weapons, for the possession of nuclear capabilities is a persuasive sign of your membership in the most coveted fraternity of states, at least from a security-related viewpoint. Another instance of blatant injustice is the ICJ’s decision in Nicaragua.[15] According to the Court, if one state is supplying arms to terrorist groups or other groups using lethal force against other states, this state cannot be held responsible for the severe violations of international humanitarian committed by these non-state actors, for the ICJ sought for that responsibility that the sponsoring state has to have effective control over the actions of that armed non-state actor. This is too high a threshold for the effective employment of international legal mechanisms to combat illegal military action. However, if the arming state is “the state” in the international system, the impunity is only too easily attached to that superpower. Afghanistan makes the case more understandable. There, the issue was the un-condonable activities of the Al Qaida terrorist organization. As we all know this armed and ideologically motivated Islamist group attacked USA and killed thousands of civilians and caused [13] The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports, pp. 223-267. [14] Distinction in military targeting could be one these cardinal rules. However, in the employment of WMD’s like nuclear weapons the line between combatants and civilians will be irreparably trespassed. [15] Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) Merits, Judgment of 27 June 1986, I.C.J. Report, p. 14.

44


extremely high material loss. Justifiably, the international community reacted to this bloodshed with fast declarations of solidarity with USA and creative usage of international rules. The best example for this creativity should be the invoking of the 5th Article by the NATO members, which foresee the case of an attack on a member state. In the case of an attack against a NATO member, this attack will be accepted as one against the whole body of the members. As far as this author is concerned, this was the right legal solution at the face of a ruthless attack, which definitely satisfied the requirements of an armed aggression with the massive damage it inflicted on US soil. In turn, the regime in power back then in Afghanistan “acknowledged and adopted”[16] the attacks of this bloody terror organization, which eventually caused the basis of its own guilt. The international community reacted swiftly and decisively. As to legality of the war in Afghanistan there is little doubt in the academic literature, and this author finds no reason to place the legality of this war under further elaboration. That said, the vigor with which states have acted against this state is appalling, since the Taliban regime might have had no effective control over the activities of Al Qaida cells all over the world. The effective control that the ICJ sought in the Nicaragua case was definitely not available. The regime’s overt willingness to support and encourage Al Qaida in rhetoric and to provide them with safe haven and training facilities in deed bound Taliban to the activities of Al Qaida, and thus caused the international responsibility of Afghanistan. These actions were identical with or at the very least reminiscent of what the USA operators had provided for the non-state armed groups back then in Nicaragua case. The international judges or the decision-makers seem to be enjoying the latitude to pick from different legal standards, which may substantially vary and change the legal outcome at the end of the process, according to the identity of the accused parties in different cases. I am of the opinion that the legal reasoning as regards the Al Qaida and Afghanistan relation was the right solution to the paramount use of force by non-state actors and “the globalization of the informal violence”.[17] As conscious actors in the field, international legal personalities (i.e. states) are capable of knowing what the real motives of their non-state partners are and they should be in a position to foresee or at least guess what these groups are going to do with the military training or equipment they are receiving form their sponsoring states. Right at this point, it has to be accepted that the sponsoring state [16] I am referring to the exact wording of the Article 11 of ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts. According to mentioned Article “Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own”. [17] Robert O. Keohane, “The Globalization of Informal Violence, Theories of World Politics, and the “Liberalism of Fear”, Dialogue IO, Vol.1, Issue 1, 2002, pp 29-43.


45





acknowledges and desires the continuation and committal of the aggressive operations of that non-state group. That is why the war in Afghanistan was a justified military intervention according to international rules, whereas the ruling in Nicaragua case was far from tackling the realities of the international relations. This was probably the least of the intentions, to tell the truth, since the accused party was the USA, i.e. the superpower, which one simply cannot afford to alienate.

I

Conclusion

n an ideal judicial setting, the standards used by the judges should not be altered by arbitrary or selective readings of law. However, the praxis is far from being even close to the ideal state of affairs. This fluctuation may be stemming from a systemic property of the international affairs such as the power relations that define the game as well as form the political/personal perceptions of the judge, who chime in to the system as a law-maker under the disguise of a legal interpreter. This leads to the conclusion that international law, not only in its making (informed by the interest-maximizing states’ behavior) but also in its application, is an extremely politicized domain. This conclusion is a striking negation of the image the community of international lawyers is conveying. International law is anything but apolitical. Therefore, it needs proper and miscellaneous (even iconoclastic if necessary) input from theoretical inquiries to find guidance and improvement in the light of the pressing needs of the humanity.

46




BIBLIOGR APHY

Aral, Berdal. “An Inquiry into the Turkish ‘School’ of International Law”, The European Journal of International Law, Vol. 16, No. 4, Oct. 2005, pp. 769-785. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) Merits, Judgment of 27 June 1986, I.C.J. Report. Charlesworth, Hilary. “Feminist Methods in International Law”, American Journal of International Law, Vol. 93, April 1999, pp. 379-394. Charlesworth, Hilary. “Subversive Trends in the Jurisprudence of International Law”, American Society of International Law Proceedings, Vol. 86, 1992, pp. 125-130. Denk, Erdem. “Güle güle uluslararası hukuk, cehenneme kadar yolun var”, Birikim, Vol. 190, February 2005, pp. 71-96. Hurd, Ian. After Anarchy: Legitimacy and Power in the United Nations Security Council, Princeton University Press, Princeton and Oxford, 3rd Printing, 2008. Kennedy, David. “A New Stream of International Scholarship”, Wisconsin International Law Journal, Vol. 7, Number 1, Fall 1988, pp. 1-49. Keohane, Robert O. “The Globalization of Informal Violence, Theories of World Politics, and the “Liberalism of Fear”, Dialogue IO, Vol.1, Issue 1, 2002, pp. 29-43. Koskenniemi, Martti. “Histories of International Law: Dealing with Eurocentrism” Rechtsgeschichte, Zeitschrift des Max-Planck-Instituts für europäische Rechtsgeschichte, 19/2011, pp. 152-176. Kuhn, Thomas S. The Structure of Scientific Revolutions, The University of Chicago Press, Chicago and London, 3rd. Edition, 1996. Polat, Necati. “Uluslararası Hukukta İçerik Sorunu: Ege Uyuşmazlığı Örneği”, in İhsan Dağı (Ed.), Türk Dış Politikasında Gelenek ve Değişim, Siyasal Kitabevi, Ankara, 1998, pp. 217-247. Polat, Necati. Ahlak Siyaset, Şiddet: Bir Kuram Olarak Uluslararası Hukuk, Kızılelma Yayıncılık, İstanbul, 1999. Purvis, Nigel. “Critical Legal Studies in Public International Law”, Harvard International Law Journal, Vol. 32, Number 1, 1991, pp. 81-127. Quevinét, Noellë. “Feminist Scholars and international (humanitarian) law: Are their claims justified?” Humanitäres Völkerrecht, 4/2002, pp. 227-233. South West Africa (Second Phase), Judgment of 18 July 1966, ICJ Reports, s. 48. The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports. The Statute of the International Court of Justice,


47


Intelligence In Criminal Procedure Law* Assoc. Prof. Dr. Çetin ARSLAN**

* This article is a substantially revised version of the paper written and presented in Turkish language originally at the “Legal Studies, and Current Developments in Law” panel (Ankara, November 27, 2010), which was organized by the Legal Scholars’ Society, and Turkish Legal Institution [For the text of that presentation see: Aylık Hukuk Dergisi (CAHAMER), Yıl 3, Sa. 22, Seçkin Yayınevi, Ankara 2011, p. 10-14]. ** Hacettepe University, Faculty of Law.



Abstr act Under the practice of Turkish Criminal law, matters that are generally assessed under the concept of “intelligence”, such as an “informant’s declaration”, “eavesdropping for intelligence”, “declaration of a secret witness”, “information gathered by the police force from various different sources”, constitute the basis for many criminal procedures such as prosecution, judgment of conviction; searches and seizures, arrest. Due to its nature, since intelligence is “one sided”, “circumstantial”, “secret”, “its truth cannot be proven”, and “data which has been processed in a certain way”, and in reality since it exists as a “police activity pertaining to the period before the perpetration of the crime”, there is a debate whether it could be used as evidence in criminal procedure, and if it would be accepted as evidence, under what conditions this could be possible. In this paper, this subject is examined with a view of the approaches in the doctrine, and of the applications of the Court of Cassation. Keywords: Intelligence, criminal procedure, evidence, secret witness, (x) informant.


51


Intelligence In Criminal Procedure Law

I. Prologue Especially during the recent years, under the Turkish Criminal Procedure, both during the investigation stage, and also during the prosecution stage, among the evidence that would constitute the basis of various procedures, the Judge’s decisions or the Court’s decisions, judgments, and even decrees of the Court of Cassation, there is information and/or documents that would generally be referred under the concept of “intelligence”[1] such as “declaration of the informant”, “gathered information”, “intelligence”, and “hearsay”[2]. On the other hand, especially during the recent years, within the concept of crimes of terror, within the trend coined as the “enemy combatant law” in the doctrine, there is a tendency to put more emphasis on the preparation stage; and thus there is a tendency to widen the boundaries of punishment[3]. Parallel to this tendency, in the area of criminal procedure, there is a tendency to utilize “prosecution of reactionary crimes”; to combat with crime, through crime prevention methods”, and “measures of prosecution”. In this juncture, starting with the subject of communication surveillance during the investigation of a crime, on the subject of “wiretapping for intelligence”, and on the subject of “utilization of intelligence during criminal investigation, and prosecution, there are heated debates especially on the subject of relinquishing some procedural guarantees[4]. In the law of criminal procedure views and applications such as “utilization of intelligence” and/or “widening the boundaries of intelligence”, reveal the [1] [2]

[3]

[4]

52

We can add declarations of “the secret witness” to these. There is no official statistics, or scholarly research on this subject. Thus, the author bases his opinion upon the decisions of the Court of Cassation, and upon the files, which he had a chance to observe during the course of his nearly 25-year career, the last 10 years of which he spent with a tenure as a Prosecutor at the Court of Cassation (Ex. See: CGK, 06.03.2012, 2011/10-387, 2012/75). On this subject, See: Sınn, Arndt, “Modern Suç Kovuşturması- Düşman Ceza Hukuku Yolunda mı? (Çev. Yener Ünver)”, in: Terör ve Düşman Ceza Hukuku (Proje Yöneticisi: Kayıhan İçel, Editör: Yener Ünver), Seçkin Yayıncılık, Ankara 2008, p. 614-615; Foster, Susanne, “Birleşik Krallıkta Terörle Mücadele- Suç Sonrası ve Önleyici Çözüm Arayışları”, Risk Altındaki Global Dünya Toplumu ve Ceza Hukuku (Criminal Law in the Global Risk Society) (Eds. Ferudun Yenisey- Ulrich Sieber)”, Max Planck Enstitüsü ve Bahçeşehir Üniversitesi Yayınları, İstanbul 2011, p. 433-441; Müller, Tim Nikolas, “Ceza Hukuku Vasıtasıyla Terörizmi Önleme” (Çev. Ayşe Nuhoğlu), Risk Altındaki Global Dünya Toplumu ve Ceza Hukuku (Criminal Law in the Global Risk Society) (Eds. Ferudun Yenisey- Ulrich Sieber)”, Max Planck Enstitüsü ve Bahçeşehir Üniversitesi Yayınları, İstanbul 2011, p. 453-462. On these subjects, See: Jill E.B. Coster van Voorhout, “Intelligence as a Legal Evidence”, Volume 2, Issue 2 (December) 2006, p. 119-144 (http:// www. utrechtlawreview.org, 23.08.10); Albrecht, Hans-Joerg, “Almanya’daki Gizli Soruşturma Tedbirleri Hakkında” (Çev. Ferudun Yenisey), Risk Altındaki Global Dünya Toplumu ve Ceza Hukuku (Criminal Law in the Global Risk Society) (Eds. Ferudun Yenisey- Ulrich Sieber)”, Max Planck Enstitüsü ve Bahçeşehir Üniversitesi Yayınları, İstanbul 2011, p. 521- 545; Özbek, Veli Özer, Ceza Muhakemesi Hukuku, Seçkin Yayınevi, Ankara 2006, p. 159 vd.


importance, and the trendiness of this subject[5]. In our paper, we examine this subject broadly, based upon the applications of the Court of Cassation.

II. Intelligence and Related Concepts In order to assess the problem, and lay out the solutions, at first, it will be useful to look up the meanings of the umbrella concept of “intelligence”, and some related terms. The word “intelligence”[6] means: 1. Newly obtained information, news, hearsay. 2. Gathering Information, receiving news; whereas, “hearsay” means: 1. Hearsay 2. News, its veracity (truth) cannot be confirmed, intelligence. “Informant” that is closely related with this concept means: “1. Conveyor of News, informant. 2. A person informing the authorities regarding an illegal situation, informant”[7] Intelligence which is technically the same thing in essence is described as: -“a product obtained through continuous processing according to the needs designated by the State, and it is composed of news, information, documents obtained from disclosed or undisclosed sources”[8]. Intelligence is a multi faceted concept which is divided into classifications such as: “military intelligence”, “political intelligence”, “economic intelligence”, “social and cultural intelligence”, “technological intelligence”, “scientific intelligence”, “electronic intelligence”, “cyber intelligence”, and “biographic intelligence”, based upon its subject[9]. Intelligence in the context of criminal procedure can appear [5] [6]

[7] [8]

[9]

In Germany, it is currently discussed whether the intelligence bodies’ areas of duty, should be broaden to include general crimes [See: Albrecht, Almanya’daki Gizli Soruşturma Tedbirleri Hakkında, p. 521]. On the subject of intelligence, many different explanations from different perspectives have been made in the doctrine. On this subject See: Köseli, Mutlu, İstihbarat Temel Hususlar ve Güncel Konular, Ankara 2011, p. 7-12; Acar, Ünal/Urhal, Ömer, Devlet Güvenliği İstihbarat ve Terörizm, Adalet Yayınevi, Ankara 2007, p. 191-195. See: http://tdkterim.gov.tr, 20.11.10. http://www.mit.gov.tr/isth-olusum.html, 23.11.10; Same way: Bıçak, Vahit, Suç Muhakemesi Hukuku, Seçkin Yayınevi, Ankara 2010, p. 268. Thus under the 2000/284 numbered, and 02.14.2000 dated In fact, Council of Ministers regulation “Regulation Regarding Security Investigation, and Archive Examination” dated 02.14.2002 and numbered 2000/84 intelligence is described as follows: “ intelligence means the result of the classification of information, recording, evaluation, and interpretation, which is gathered through various sources, in various means”. Acar/Urhal, Devlet Güvenliği İstihbarat ve Terörizm, p. 204-208. Furthermore, intelligence is divided into sub groups depending on the nature of the act: “military intelligence”, “civil intelligence”, “counter intelligence (resisting intelligence)”; depending on the nature of the danger posed: domestic intelligence, foreign intelligence; depending on the way it is obtained: “positive (combatant) intelligence, negative intelligence; depending on the time period that it is obtained: “strategic intelligence”, “tactical intelligence”, “operational intelligence”; according to the means that it was obtained, and its functions: “human


53





as: “declaration of informant”, “information that the police gathered from various sources”, “wiretapping for intelligence purposes”, “declaration of a secret witness”. In our law there are various provisions regarding intelligence and related concepts, which we shall mention hereinafter, as we see fit.

III. Application of Intelligence in Criminal Procedure As we have mentioned earlier, due to its nature, intelligence is the compilation of information that is “one sided, circumstantial, secret, its veracity cannot be confirmed, and processed in a certain way (impure/not raw)[10]. For this reason, intelligence data are circumstantial evidence, and on their own they form the basis of the final judgment (8. CD, 20.09.2007, 2813/7030)[11]. However, as we have mentioned above, within the system of Turkish Criminal Procedure, it is quite common to utilize intelligence (and data that have similar attributes). A. Utilization of Intelligence before the Perpetration of the Crime (During Pre-Crime Investigation / During Preliminary Inquiries) As we know, “Criminal Procedure” consists of “investigation” and “prosecution” stages. Under the CPL, “investigation”, covers the period starting with the time when the authorities became aware of the suspicion of crime, and ending with the admittance of indictment (article 2/1-e); whereas “prosecution”, “covers the period starting with the admittance of indictment, and ending with the final sentence” (article 2/1-f ). In order to start the investigation there must be “suspicion of an overt act”, in other words, there must be substantial evidence that the crime has been committed. On the other hand, for preemptory intelligence operations to take place, it is not necessary for the crime to have been committed; and with this attribute, intelligence cannot have a place within the existing stages of criminal procedure. As a result of this situation, a new stage is being tried to append to criminal procedure, which is called: “pre-crime investigation stage/ preliminary inquiry stage”. Let us emphasize that the purpose for the preliminary inquiries is to prevent the perpetration of the crime, and to take precaution, for the intelligence”, “image intelligence”, “open source intelligence”, and “signal intelligence” (See: Acar/Urhal, Devlet Güvenliği İstihbarat ve Terörizm, p. 208-214). [10] Thus intelligence emerges after a certain process: Köseli, İstihbarat Temel Hususlar ve Güncel Konular, p. 65- 112. [11] Bıçak, Suç Muhakemesi Hukuku, p. 376. Thus, a member of the Court of Cassation Ali Kınacı, makes very appropriate assessment in a dissenting opinion he has written: ...” Intelligence data, is the information that is obtained by the police force, through hearsay, rumour, opinions, and presumptions. Since its sourc is not based upon a certain person, or a tangible event, intelligence data is not evidence. It is a vehicle to obtain the evidence....” (10. CD, 28.06.2013, 2012/490, 2013/6666).

54


prosecution of the crimes that will be perpetrated in the future[12]. Since the crime has not yet been committed during the pre-crime investigation stage, crime investigative bodies/prosecutors do not have any authority; and as a result, they cannot resort to secret investigation measures which are cited under CPC article 135 and the following. Even so, under Turkish law (2559 numbered PVSK art. amendment ; 2083 JTGYK art. numbered 5; 2937 numbered DİHMİTK art. 6) under certain circumstances, in order to prevent the perpetration of certain types of crimes, a limited number of secret investigation measures are allowed. These are: “surveillance through telecommunication, wiretapping; evaluating, recording, and wiretapping of signal data with the aid of technical instruments”[13]. According to the provisions mentioned above, records obtained through the above cited activities may only be used for preemptory purposes, to take precautionary measures, and to promote security. They may not be used for other reasons, and they especially may not be used as evidence during the crime investigation, and prosecution (excluding a suspicion of an overt action) stages. This is mandatory under the clear evidence rule under these provisions[14]. B. Utilization of Intelligence after the Perpetration of the Crime, for the Purpose of Initiating the Investigation (Suspicion of an Overt Act) It is possible to use intelligence in order to initiate the investigation. Through the intelligence he/she obtained, or he/she received, if the prosecutor gets the impression that a crime has been committed. Under article 160/1 of the CPC titled “The duty of the prosecutor”, he/she must immediately start the investigation under the following provision: “as soon as he/she learns, either through an informant’s notice, or through another way, that a crime might have been committed he/she immediately starts to investigate to find the truth”. However, in order to start this investigation, it has to include ‘concrete data’, and it must not be based upon abstract thoughts such as guess, or criminal hypotheses. Let us emphasize that it is the decision of the prosecutor, not the decision of the police that would make it possible to initiate the investigation stage based upon intelligence data[15]. [12] Özbek, Ceza Muhakemesi Hukuku, p. 159. [13] MIT is not awarded resorting to this one last measure. For extensive information on the subject, see. Özbek, Veli Özer/ Kanbur, Nihat/ Doğan, Koray/ Bacaksız, Pınar/ Tepe, İlker, Ceza Muhakemesi Hukuku, 3. Baskı, Seçkin Yayınevi, Ankara 2012, p. 179-190; Yüksel, Saadet, “Intelligence Surveillance of Wire Communications under Turkish Law”, İstanbul Üniversitesi Hukuk Fakültesi Mecmuası, Prof. Dr. Fusun Sokullu- Akıncı’ya Armağan (2. Cilt), Cilt LXXI, Sa. 1, İstanbul 2013, p. 1313-1326. [14] Opposite: Yüksel, Intelligence Surveillance of Wire Communications under Turkish Law, p. 1320. [15] Due to the fact that the rule under article 156 of the CPL does not exist in the CC (Criminal Code), in essence, this situation applies to all the crimes (Özbek, Ceza Muhakemesi


55





C. Utilizing Intelligence for the Purpose of Taking Cautionary Measures, after the Perpetration of the Crime Before sentencing, in order to expedite criminal procedure, and to enforce possible sentences which would follow, it is possible to utilize some legal measures that would interfere with basic rights and freedoms, which are broadly called “protective measures”[16]. In order to apply a protective measure, along with other conditions for example : - For arrest “facts which would support strong suspicion of crime” (CPC art. 100/1), - In order to attach real estate, and expropriate claims and credits “reason for strong suspicion that the subject of the crime that is under investigation, and prosecution has been committed, and (real property, claims, and credits) have been obtained through perpetration of these crimes” (CPC art. 128/1), - To detect, eavesdrop, and record communications (CPC art. 135/1), to employ a secret investigator (CPC art. 139/1), for surveillance with technical device (CPC art. 140/1), there must exist reasons for strong suspicion, and there must be no other means of obtaining evidence[17]. Due to their nature, intelligence data/ intelligence are impossible to contain elements that would reveal the existence of strong presumption of guilt. In my opinion, for this reason, they lack the probative value of evidence that would constitute the basis for the application of the afore-mentioned measures. D. Utilization of Intelligence for the Initiation of Prosecution Under article 170/2 of CPC: “if the evidence gathered at the end of the investigation stage raise reasonable doubt that the crime has been committed” prosecutor, initiates the public case by preparing an indictment. On its own, intelligence/intelligence data cannot prove that a crime has been committed, and for this reason they cannot be entered as evidence to initiate the prosecution of a public case. E. Utilization of Intelligence for the Sentencing Article 217 of CPC states that: “(1) Judge can base his/her decisions only upon evidence submitted in Court, and discussed in his presence. This evidence is evaluated freely, with the breast of Court. / (2) Burden of guilt, may be proven by all kinds of evidence obtained through legal means”. Hukuku, p. 187). [16] The main reasons to resort to protective measures are: “the existence of a suspicion of guilt, the existence of the appearance of being right, conforming to the rule of proportionality, due to its being regulated by laws, and the possibility of danger in case of delay”. [17] For the decision of arrest: “this measure must be mandatory regarding the investigation, and there must be indications to believe that the person has committed a crime (CPL article 91/2); for searches, there must be reasonable doubt that the person could be apprehended, or the crime evidence could be obtained” (CPL article 116).

56


As a natural result of this provision, intelligence/ intelligence data which may not be brought to Court, and which may not be discussed, even if it brought to Court, cannot be entered in as evidence. For example, evidence which an informant submits to the police, but who may not be able to testify in Court either because his/her identity is unknown, or he/she would not want his/her identity to be revealed, cannot be entered in[18]; this data can only be utilized to reach the evidence[19]. IV. Applications of the Court of Cassation on the Subject Court of Cassation has very important duties and responsibilities such as the promotion of the right way of understanding and application of law; promotion of homogeneity in case law; finding discrepancies of law in Court decisions, and eliminating them. Thus, it is very important to designate whether intelligence data may be used as evidence in criminal procedure or not; if it may be used, it is quite important to designate under what conditions it may be used. Following are the decisions that we were able to identify, which we pass on as systematically as possible; and subsequently, we state the results, and suggestions regarding the subject. A. Intelligence Data 1. Decisions Stating that Intelligence Data cannot be used as Evidence “The fact that during all the stages, the defendants admitted having used narcotics (marijuana) constantly, but they denied trading in narcotics; the fact that the blood samples taken from the defendants CK and UT contained the material THC (marijuana); the fact that net 1.2 gr. which is the amount of marijuana seized from the defendants was within the personal usage limits; the fact that [18] Under article 14 of the 3713 numbered TCC titled: “Disclosure of Informants’ Identities”: “The identities of the informants who inform about the crimes and the criminals who would fall under the provisions of this law may not be disclosed, unless they give their permission, or unless the content of the information submitted would establish a criminal activity on their part”. Similarly, under article 19/4 of the 5607 numbered KMK; “the identities of the individuals who report on smuggling, may not be disclosed without their permission, or unless the content of the information submitted would establish a criminal activity on their part. Provisions regarding witness protection would be applicable to these people.” Article 18 of the 3628 numbered law, titled “information regarding a crime” states that: “Information regarding the above referenced crimes shall directly be submitted to the Chief Prosecutors’ Offices. With the submission of the information, an information record is immediately prepared, and a copy of this is handed to the informant. In situations when haste is required, and time is of the essence, record keeping may be left for a future date. The identities of the informants may not be disclosed without their permission. If the information is found to be without basis, the informant’s identity is disclosed upon the accused’s wish. [19] See: Emel Özgan and Ali Kınacı’s reasons for dissent (10. CD, 19.11.2009, 2009/11363, 2009/18079).


57





the searches of the defendants and searches in their homes did not reveal any other narcotic-stimulant materials; the fact that the narcotics were stored in an easily accessible way, within two packages of cigarettes; when we evaluate all of these together, and could not find any evidence contrary to the defense of the defendants, other than the intelligence data, the claim that the suspects committed the crime of trade in narcotics is only a suspicion. Under one of the most important principles of criminal adjudication, ‘in dubio pro reo’ that is ‘when in doubt, for the accused’, the only way for the defendant to be punished for the crime he/she is accused to have committed, is to prove the guilt with such clarity, so that there would be no room for doubt. Events and claims that are doubtful to have happened, and could not have been completely clarified, cannot be used against the defendant to lead to his/ her conviction. This principle has quite a wide range of practice areas. It may be utilized when answering whether a crime has been committed or not, or if a crime has been committed but there is doubt about the way that it has been committed; it may also be utilized when determining the nature of the crime. Criminal conviction must not be a probable discretionary decision that is reached on the basis of allowing some evidence gathered during the trial stage, but ignoring some others. Criminal conviction must be based upon definite and clear proof. This proof must be so clear that it must leave no doubt for any other possibility....” (CGK, 18.09.2012, 2012/10-1253, 2012/1769). “...The incident of arrest, and the record of seizures; the manner which, the subject matter of the crime, the narcotics, have been seized; the defense of the defendant; and by looking at the contents of the whole file, the defendant who did not have any narcotics on him, contrary to his defense and outside the intelligence data received, and without having enough, and definite proof which would go beyond the limits of suspicion, he would not have any connection with the narcotics found in the air ducts on the channel walls. Without paying attention to the maxim “in dubio pro reo”, a decision for the conviction of the defendant. ...” (10. CD, 04.10.2010, 2008/1301, 2010/20309). “...Since the declarations of the complainants, which they changed subsequently, were based upon hearsay, and since these declarations could not be substantiated by other evidence; and since the reason for the start of the fire could not be determined with certainty, the claim that the incident happened due to the defendant’s fault is just a mere suspicion. A written judgment is given that there is not enough evidence to convict the defendant....” (9. CD, 25.12.2006, 2006/5789, 2006/7738). 2- Decisions Stating that Intelligence Data can be admitted in as Evidence “...During the investigations to gather data, since information has been obtained that the defendant sold narcotics, a search has been conducted in the defendant’s house, and 29.530 gr. total weight of marijuana divided into 33 small packets, and a nylon bag containing 41 gr. of marijuana have been found. Other than

58


this, in the search of his person, a total weight of 5.170 gr. of marijuana divided into 5 packets have been found. Considering the nature of the intelligence received, considering the incident, and the number of small packets seized, a written decision has been reached without considering the fact whether the defendant’s actions constituted the crime of trading in narcotics or not....” (10. CD, 08.10.2010, 2008/4339, 2010/20882). “....Considering the nature of the intelligence data regarding the defendant, the way that the narcotics have been seized, and the amount of narcotics seized, without considering that the defendant’s confession would not help, and aid in the revelation of his crime, the application of the provision of active repentance [sentence reduction] under article 192/3 of the 5237 numbered TCC, since there was no appeal, it is not used as reason to vacate the judgment…” (10. CD, 10.13.2010, 2008/14287, 2010/21588). B. Secret Witness and (X) Informant 1- Decisions Stating that it is not admitted in as Evidence “.....Without considering that the declaration of a witness who is protected under the witness protection program cannot constitute the sole evidence for reaching a decision, the decision was made based upon the declaration of this witness only. This was against article 9/8 of the 5726 numbered Law of Witness Protection, and therefore called for a quash...a decision to quash as stated in the notice...” (1. CD, 03.03.2010, 2009/4015, 2010/1277). “...During the investigation stage, the wiretapping was not carried out in the acceptable method. Even so, the declarations of the informants whom the police heard as ‘secret witnesses’ could not constitute the basis for the decision. Considering this, the defendant Ü.Ç’s, legal position must be decided according to the other evidence presented.....” (10. CD, 27.03.2008, 2007/25667, 2008/4879). “....According to a police informant’s declaration the defendant sold narcotics. Under article 58 of the CPL, the informant must have testified as a witness, and according to this testimony the nature of the defendant’s crime must have been assessed. However, the decision stated that the investigation was incomplete...” (10. CD, 20.10.2010, 2010/25370, 2010/22325). “...According to the incident, and the declaration of the informant (X) kept in the file: there were a great number of weapons in the defendant’s residence and his sibling’s residence. When the informant declared that they would be transporting the weapons to another location, a search was conducted in the defendant’s residence. During this search, 5 ordinary guns, and 5 clips belonging to these guns were discovered. Other than the fact that the defendant kept and carried 5 ordinary guns, and 5 clips, there was no clear evidence free from doubt, and no believable evidence to prove that the defendant engaged in arms trade. A written decision of conviction under article 12/1 of the 6136 numbered was delivered, without evaluating whether this act was against article 13/2 of the same law, and with reasoning


59





which would be discrepant with the contents of the file…” (8. CD, 11.3.2008, 2008/980, 2008/1880). “...Other than the subjective declarations of the informants X-1 and X2, on the record of incident, defendants’ defenses, and other information and documents that are in the file, there were no absolute, and persuasive evidence to indicate that the defendants committed the crime. Even so, instead of acquitting the defendants, a decision of conviction was given....” (10. CD, 11.10.2010, 2008/17744, 2010/21139). “....On the record of the incident, identification, arrest and seizure; the amount of narcotics which constituted the subject matter of the crime, and the way that they were seized; and the contents of the whole file, there is no sufficient, and absolute evidence that would raise reasonable doubt that the defendant used the narcotics which were seized from his home, in another way other than his personal consumption. The only evidence against the defendant’s testimony is the subjective declaration of the informant. A written decision was given without considering the fact that the defendant’s actions constituted the crime of keeping narcotics for personal consumption....” (10. CD, 11.10.2010, 2010/30011, 2010/20947). 2. Decisions Stating to Admit it in as Evidence “.....According to the contents of the record of incident, and arrest dated 12.24.2006; and according to the documents and information in the file, the farm which belonged to defendant M.N. was used as a place for production of narcotics. The machines seized in the farm were used in the production of narcotics; the report of the Department of Forensics 5th committee of experts, stated that the production of narcotics had occurred; the number of defendants and the hierarchical structure among them; the declaration of the informant (X) stating that he carried supplies to the defendants on four, or five occasions, indicated the production of narcotics. When all of these were evaluated together, they pointed out to the fact that the defendants committed the crime within an organization which was specially formed to commit this crime. The defendants must have been convicted under articles 188/1-5, 62, and 220 of TPC; instead of a conviction, a written decision is delivered / Against the law, the objection of appeal of the defense attorneys representing the defendants M.N.Y, S.Y., B.B, and the objection of appeal of the public prosecutor have been sustained for this reason, and the convictions have been vacated against the objections.....” (10. CD, 17.09.2008, 2008/6060, 2008/13283). As you see-even though there are decisions to the contrary-the Court of Cassation adopts the view that the intelligence data may be used either on its own, and/or even though it is not direct it may be used in connection with other evidence, in criminal procedure. Therefore, it accepts the intelligence data as a legally admissable way of proof. Our view is further confirmed by the following statement of the Plenary Committee of Crimes, of the Court of Cassation: “...The incident, that is considered to be definite by the Plenary Committee of

60


Crimes,....have been understood to have happened through the informant’s record of registration; through the incident report; through identification records; through the decisions of technical surveillance; and through records of phone conversations, through records of arrests, through reports prepared by the Department of Forensic Medicine, and through defendants defenses, and other such legally admissable evidence which would verify, and complement one another….” (CGK, 03.04.2007, 2006/10-253, 2007/80). V. Approach of European Court of Human Rights (ECHR) to the Same Subject In cases where the only evidence consisted of declarations of the witnesses, European Court of Human Rights, concludes that the witness or the witnesses must testify during the trial stage, and a right to interrogate must be awarded to the defendant, or to the counsel for the defense (it states that a contrary situation would be against the right of a fair trial) (examples: Kostovski/ Holland Decision, 20.11.1989, 11454/85; Unterpetinger/ Austria, 24.11.1986; Lüdi/ Switzerland, 15.06.1992; Van Machelen vd/ Holland 23.04.1997); otherwise, in case there is other evidence, other than the declarations of the witnesses, the European Court of Human Rights concluded that this discrepancy would be important and severe (ex. Doorson/ Holland Decision, 26-03-1996; Artner/ Austria, 28.08.1992).When the decisions of the ECHR regarding secret witnesses are evaluated as a whole, the following observations can be made: - The Court views the concept of witness, as an autonomous concept, independent of the national laws. -According to the Court, the power to make a decision on the subject of admissability of evidence, is a subject that would fall under the jurisdiction of the national laws; and as a rule, the conclusiveness of evidence would also fall under the jurisdiction of the national courts. Therefore, the main concern of ECHR is not whether the evidence is evaluated according to the procedure, or not; but, whether the whole adjudication conforms to article 6 of the ECHR, including the presentation of evidence. - In reality all of the evidence, must be submitted and discussed in open court in the presence of the defendant/the counsel for the defendant. However, as long as the right to defense is not curbed, the utilization of the testimony of witnesses which were taken before the trial, would not adduce evidence to be inadmissable (illegal) on their own. -A deprivation decision may not be given, only due to the declaration of a secret witness. Along with this, there must be other evidence that is credible, absolute, and reinforcing. -It is possible to hide the identity of the witness, when there are enough reasons to believe that there will be possible life threatening, and property threatening dangers forthcoming from the defendant. The existence of this in


61





the material case, must be presented with its reasons, and basis. In this situation, the undisclosed witness must testify in another location (other than the Court), and his/her testimony must be submitted to the defendant and/or to the counsel for the defendant, through technical means, and they must be awarded the possibility of questioning the witness. VI. Conclusion and Evaluation As we know, the subject of criminal procedure is to decide whether a certain event that is claimed to have happened in the past, has actually happened; and if it has happened whether it has carried been out by the defendant or not. Criminal procedure has also a purpose of determining the results of the incident from the perspective of criminal law. During criminal procedure material facts are investigated. For this reason, everything is considered as evidence, and as a rule, there is no oto prove obligation to prove certain elements with certain evidence (principle of freedom of evidence). In criminal procedure, even if everything may be used as evidence, it is still mandatory for the evidence to have certain qualities. In this regard, evidence must be realistic; wise; it must represent the incident; it must be collective; and besides, it must not be illegal. As long as the evidence grouped under the heading of intelligence possess these qualities, as a rule, they shall be used as proof in criminal procedure. However, as we have stated earlier, since the data possessing these qualities is “one sided, circumstantial, secret, its veracity cannot be definitely confirmed, and it has been processed in a certain way (in other words: it lost its originality), on its own it would not have any meaning. It must be supported with supplementary evidence, if not; we can state that the right to a fair trial (AİHS md.6) would have been breached.

62




BIBLIOGR APHY

Acar, Ünal/Urhal, Ömer, Devlet Güvenliği İstihbarat ve Terörizm, Adalet Yayınevi, Ankara 2007. Albrecht, Hans-Joerg, “Almanya’daki Gizli Soruşturma Tedbirleri Hakkında” (Çev. Ferudun Yenisey), Risk Altındaki Global Dünya Toplumu ve Ceza Hukuku (Criminal Law in the Global Risk Society) (Eds. Ferudun Yenisey- Ulrich Sieber)”, Max Planck Enstitüsü ve Bahçeşehir Üniversitesi Yayınları, İstanbul 2011. Bıçak, Vahit, Suç Muhakemesi Hukuku, Seçkin Yayınevi, Ankara 2010. Centel, Nur/ Zafer, Hamide, Ceza Muhakemesi Hukuku, 6. Bası, Beta Basın Yayın Dağıtım A.Ş, İstanbul 2008. Dutertre, Gilles, Avrupa İnsan Hakları Mahkemesi Kararlarından Örnekler, Avrupa Konseyi Yayınları, Ankara 2007. Foster, Susanne, “Birleşik Krallıkta Terörle Mücadele- Suç Sonrası ve Önleyici Çözüm Arayışları”, Risk Altındaki Global Dünya Toplumu ve Ceza Hukuku (Criminal Law in the Global Risk Society) (Eds. Ferudun Yenisey- Ulrich Sieber)”, Max Planck Enstitüsü ve Bahçeşehir Üniversitesi Yayınları, İstanbul 2011. Güvenlik Soruşturması ve Arşiv Araştırması Yönetmeliği (RG, 12.04.2000/ 24018). http://tdkterim.gov.tr, 20.11.10. http://www.mit.gov.tr/isth-olusum.html, 23.11.10. Jill E.B. Coster van Voorhout, “Intelligence as a Legal Evidence”, Volume 2, Issue 2 (December) 2006, s. 119-144 (http:// www. utrechtlawreview.org, 23.08.10). Köseli, Mutlu, İstihbarat Temel Hususlar ve Güncel Konular, Ankara 2011. Kunter, Nurullah/ Yenisey, Ferudun/ Nuhoğlu, Ayşe, Muhakeme Hukuku Dalı Olarak Ceza Muhakemesi Hukuku, 15. Baskı, Beta Basın Yayın Dağıtım A.Ş, İstanbul 2006. Müller, Tim Nikolas, “Ceza Hukuku Vasıtasıyla Terörizmi Önleme” (Çev. Ayşe Nuhoğlu), Risk Altındaki Global Dünya Toplumu ve Ceza Hukuku (Criminal Law in the Global Risk Society) (Eds. Ferudun Yenisey- Ulrich Sieber)”, Max Planck Enstitüsü ve Bahçeşehir Üniversitesi Yayınları, İstanbul 2011. Özbek, Veli Özer, Ceza Muhakemesi Hukuku, Seçkin Yayınevi, Ankara 2006. Özbek, Veli Özer/ Kanbur, Nihat/ Doğan, Koray/ Bacaksız, Pınar/ Tepe, İlker, Ceza Muhakemesi Hukuku, 3. Baskı, Seçkin Yayınevi, Ankara 2012. Sınn, Arndt, “Modern Suç Kovuşturması- Düşman Ceza Hukuku Yolunda mı? (Çev. Yener Ünver)”, içinde: Terör ve Düşman Ceza Hukuku (Proje Yöneticisi: Kayıhan İçel, Editör: Yener Ünver), Seçkin Yayıncılık, Ankara 2008, s. 614-615. Şen, Ersan, Türk Hukukunda Telefon Dinleme Gizli Soruşturmacı X Muhbir, 4. Baskı, Seçkin Yayınevi, Ankara 2010.


63



Turhan, Faruk, Ceza Muhakemesi Hukuku, Asil Yayın Dağıtım, Ankara 2006. Yüksel, Saadet, “Intelligence Surveillance of Wire Communications under Turkish Law”, İstanbul Üniversitesi Hukuk Fakültesi Mecmuası, Prof. Dr. Fusun Sokullu- Akıncı’ya Armağan (2. Cilt), Cilt LXXI, Sa. 1, İstanbul 2013.

64



MAGISTR ATE: The Most Important Political Body of Roman Republic Assoc. Prof. Dr. Ahmet KARAKOCALI*

* Anadolu University, Faculty of Law, Eskisehir Turkey.


Assoc. Prof. Dr. Ahmet KARAKOCALI

ABSTR ACT However Roman State were based on monarchy when it was founded, the Romans needed transition to democracy regime and they preferred the Republic. Roman republic period had been the longest period in Roman political history. Roman government structure had been affected not only for the period of Republic but also in Principatus period. This situation shows us how the Roman government structure under the republic built on a steady foundation. In this period, structure of government changed and tree main bodies had been effective on government: Magistrate, The Senate and The Assembly. A complex constitution gradually developed, centered on the principles of a separation of powers and checks and balances and executive branch had been exercised by magistrates. Keywords: Roman Law, Republic Period, Magistrate, Powers, Inspection and Deposition of Magistrate


67


MAGISTRATE: The Most Important Political Body of Roman Republic

W

INTRODUCTION

hen we talk about Roman law, the Roman private law system is the one which comes into our mind first. Roman private law system has an impression as it affected other private law systems throughout the centuries. Roman public law system had also an advanced structure. If some wants to study and research about Roman public law, he or she has to deal with Roman political periods at first hand. One of these periods is the Roman Republic period, in other words Consuls’ period, was effective between 509 B.C. and 27 B.C. and started with the deposing the Last King from his office by civil revolution. In this work, we will examine the Roman magistrate which is the striking political body of Roman Republic period and we will try to underline the significance of magistrates in Roman history. 1. The Functions, Significance and Place of Magistrates in Roman History Before we talk about governmental structure of Roman Republic period we have to mention cursus honorum which constitutes the main structure of Roman administration. Cursus honorum means; the list of necessary things to be elected as an official on many levels and shows the sequential order of public offices held by aspiring politicians in both the Roman Republic and the early Empire[1]. Cursus honorum of Republic period’s magistrates was not required apprenticeship, probation or salary. These important positions of government were filled up with brave and attractive men of Roman society which wanted to rise in political positions and desire of a political career. In addition to political aspects of cursus honorum, there was military aspects of it too[2]. First of all, each position had its own election age. Performing the same duty in same position was forbidden. The people who wanted to rise in these positions first had to end his last duty and gave a break in order to keep on working in a higher position. Magistrate was the name of government leaders in different periods, at the same time magistrate was still a part of three significant bodies of Republic and Principatus periods[3]. Magistrates were functionally executive bodies in Roman history especially in Republic period. They were performing duties in administrative, political, military aspects and they were able to give decision in [1] [2] [3]

Umur, Ziya. Roma hukuku lügatı. İstanbul: Fakülteler Matbaası, 1975, p 53. Ihne, W. Researches into the history of the Roman constitution with an appendix upon the Roman knights. London: William Pickering, 1853, p. 45. Brennan, T. Corey. The praetorship in the Roman Republic. Oxford: Oxford University Press, 2000, p.3; Abbott, Frank Frost. A history and description of Roman political institutions,. 3rd ed. Boston: Ginn & Co., 1911.s. 150; Loewenstein, Karl. The governance of Rome. The Hague: Nijhoff, 1973, p.42.

68


court as a judge. They could give the right to sue and make law[4]. Magistrate which was one of the most important political institutes of Republic period ceased in Dominatus period but in this last period of Roman Politics it was not effective as it was before and was just a political symbol of Republic period[5]. Magistrates were the members which were respected by Roman society. Before they were selected as magistrate they were either senatus or knight. After magistrates finished their office term which was one year, they gave a ten year break in order to be elected again[6]. Magistrates were political institutions and they were performing their duties in accordance with the division of tasks. But division of tasks did not mean division of decision making. In other words their authority was equal[7]. In Roman language many classifications for magistrates were in use like; magistratus maiores/minores, patricii/plebeii, cumimperio/sine. The most-preferred one is magistratus cum imperio and sine imperio, this is for the discrimination of magistrate who has imperium or not[8]. Magistrates in the Republic period, were classified according to authorities called imperium or potestas. In this period dictator, consul and praetor were the magistrates who had imperium. Censor, quaestor, aedilis curulis, tribunus plebis and aedilis plebis were the magistrates who had no imperium but had potestas. Consul was the highest magistrate. At the beginning of the Republic period there were just two consuls and they had wide authority. By the time the national borders had been enlarged not to be ruled by two consuls from one center and new magistrates came into power in order to administrate local areas. Dictator was one of those and their duty was to keep in safe the boundaries and handle some kind of military issues. Preatorship established with a law named Liciniae Sextiae in 367 B.C and had a significant judiciary duty. They were empowered with this law and ranked after consuls. The most authorized member of the government were praetor urbanus in other words urban praetor in absence of consuls. B.C. second century is the time when praetor peregrinus in other words foreigners’ praetor established. Praetors can be described as the head of the Roman law system. They were taking the main roles of Roman law system and were given imperium power to praetors in 327 B.C. Imperium had greatly helped praetors in judicial and administrative matters. There were just two of them in Republic period than the number had changed increasingly. In 244 B.C. they were two and in 227 B.C. two more preators had been assigned in [4] [5] [6] [7] [8]

Abbott, p.150. Berger, Adolf. Encyclopedic dictionary of Roman law. Philadelphia: American Philosophical Society, 1953, p.571; Brennan, p.3. Umur Lügat, p.173. Ramsay, William, and Rodolfo Amedeo Lanciani. A manual of Roman antiquities. 17th ed. London: C. Griffin and Co., 1901, p.135. Abbott, pp.152-153.


69





order to handle military matters in Sicily and Sardinia. With the participation of the new states their number increased to six. At that time their number was thought to be enough but in 81 B.C. their number increased again and they were finally sixteen. Moreover, propraetors whose tenures were extended for one year had used for the administration of Rome. Also they were assigned as a judge and they were on duty in permanent criminal courts which founded at the end of Republic period. Censors were different than other magistrates since their office term was five years and mostly they were responsible in social and economic areas for the checking moral and financial matters of Roman families[9]. In Principatus period magistrates’ functions and powers had decreased[10]. Moreover new magistrate, named as Princeps came to power. In Dominatus period, magistrates were in use but they were not as important as before since the most powerful authority at that time was the emperior himself. Magistrates were elected by Roman citizens and they were representing directly the citizens[11]. However, tribunus plebis and aediles plebis were not accepted as magistrate in this sense as they were elected by plebs. On the other hand dictators were directly assigned by consul as magistrate and he had extreme powers. Although dictatorship was described as a Republic institution, it had characteristics of kingdom. Dictators were not elected by citizens, however they were assigned by consul. Consuls were elected by citizens so it was thought that dictators had been representing citizens’ rights. So they might had been described as magistrate[12]. Each magistrate was described as they had maior potestas so they had important powers. Because of being in different levels, magistrates could have been evaluate as effective and less effective. Giving potestas power to magistrate was the right of Roman citizens[13]. The most wide one of potestas was imperium. It shows a sign of reliance to the administrators who were elected by citizens[14]. 2. “Imperium” Authority In narrow sense imperium means the power given to magistrate about military issues. Imperium in broad sense is the political leadership in the state administration as a symbol of the judicial authority[15]. It contains many authorizes almost in all areas, e.g. ius militare commanding the army, ius agendi cum popula and agendi cum senate calling the citizens or senate to the assembly, ius [9] [10] [11] [12] [13]

Brennan, p. 3-8; Abbott, p.150-153; Ramsay, pp.153-154; Loewenstein, p.44. Ramsay p.155. Loewenstein, p.42. Abbott, a.g.e. pp. 151-152; Lowenstein, p.43. Lintott, A. W. The constitution of the Roman Republic. Oxford [England: Clarendon Press, 1999, p.95; Abbott, p. 151. [14] Loewenstein, p.45. [15] Ramsay, p.134; Loewenstein, p.45.

70


dicendi declaring laws and other rules, publishing edictums, creation of interdictums which means orders and prohibitions, iudices privati assignment of private judges to solve disputes between the parties, ius coercitionis preparing official orders and instructions to protect public peace and order[16]. By using this power, magistrates were able to fine somebody[17], garnishment of movable property (pignoris capio[18]), protect private property owned by persons, asking for implementation of imprisonment (in vincula deductio[19]), flogging (verberatio /castigtio[20]). Potestas authority was including shortly ius dicendi and ius coercitionis [21]. First, consuls were able to have imperium. Then praetors and dictators were able to have imperium[22]. Magistrate’s imperium authority was quite broad and unlimited while the magistrate was outside of the city of Rome. However, within the borders of the city of Rome, the idea which states imperium is broad and unlimited authority was not accepted. Thus, the freedom of the citizens living in Rome was protected against magistrates’ oppressive government[23]. Magistrates’ oppressive governments stemmed from their coercitio authority. Coercitio is the public authority to use force or threat against people to do or not to do something. The executive authority of magistrates which is more in the public sphere results from imperium and potestas which they have[24]. Magistrates’ coercition authority, with some exceptions, could be used almost everyone[25]. However all citizens living in the city of Rome had the right to apply against the authority coercition of magistrates which called as provocatio[26].The use of coercitio was not limited outside of Rome[27]. 3. Magistrates’ Jurisdiction Authority (Iurisdictio) In the division of judicial functions between the Magistrates and Iudex (private judge) consisted what is called the Ordo Iudiciorum Privatorum, which existed [16] Kunkel, Wolfgang, and J. M. Kelly. An introduction to Roman legal and constitutional history. Oxford: Clarendon Press, 1966, p.15. [17] D. 50.16.131.1 [18] Gai. Inst. 1.200; Iust. Inst.1.24.3 [19] D. 48.19.8.9; Iust. Cod. 9.47.6 [20] D. 2.1.12; D. 11.7.8.2 [21] Plescia, Joseph. “Judicial Accountability and Immunity in Roman Law,” The American Journal of Legal History, Vol. 45, No. 1: 51-70, 2001. p.52.;Loewenstein, pp. 45-48; [22] Brennan, p.3. [23] Abbott, p.153. [24] Plescia, p.52. [25] All magistrates had coercitio authority which ensured the power to impose sanctions. Coercitio was being used by Magistrates in order to ensure the continuity of public order. Lintott, pp.97-99. [26] Mackay, Christopher S. Ancient Rome: a military and political history. Cambridge: Cambridge University Press, 2004, p.135; Ramsay, p.141. [27] Loewenstein, p.48; Plescia, p.55.


71





in the early periods of Rome, and continued till the time of Constantine. Ordo Iudiciorum Privatorum which is a period in Roman procedural law period there were two phase and first of it was named as ‘iniure’.The iure word in this expression does not mean right, It was used to specify the authority to whom the right claimed. The authority to whom the right claimed in in uire expression was magistrate[28]. Iurisdictio is one of the powers in imperium[29]. The meaning of it is to say law, in other words ius dicare[30]. But in Roman law texts, it was used in order to express jurisdiction of magistrates[31]. It can be also defined as the authority to determine the rules to be applied in a matter. In this sense, it could be thought that magistrates were able to use iurisdictio in all kinds of his judicial activities[32]. However, magistrates were using his jurisdiction authority in two ways: identifying the dispute that was claimed by the person who applied for the recognition of the right to sue (dare iudicium) and after that, to give the judging duty to the judge on which parties agreed (iudicare iubere)[33]. Dig. 2.1.3[34] Ulpianus 2 de off. quaest. “iurisdictio est etiam iudicis dandi licentia.” “Jurisdiction includes the power of appointing a judge.” The content of the jurisdiction of the magistrate was not final decision of the dispute. It was including the determination of dispute and assignment of the judge. So iurisdictio did not provide to make trial as judge (iudex) and reach a verdict for magistrates[35]. Iudicare or iudiciatio words were used to describe the judges’ activities. Iudicare means to reach a binding and reasonable verdict for parties[36]. The difference between magistrates’ jurisdiction and [28] Çelebican, Özcan. Roma hukuku: tarihi giriş-kaynaklar genel kavramlar- şahsın hukuku hakların korunması. Cebeci, Ankara: Yetkin, 2005, p.273. [29] Buckland, W. W. Equity in Roman law. London: University Press, 1911, p.20. [30] Kunkel, p.82. [31] ”The debate about the origin of this authorization are made around the occurence of the cases that appeared in iurisdicto’s Roman law period. Many roman jurists accepts that this authotiy was first belonged to kings, then the consuls and later, the praetors had it. .But some believe that this authority occured with the acceptance of preators in 367 B.C.” Alessandro Corbino, “Roma’da Arkaik ve Cumhuriyet Dönemlerinde, Anayasal-Politik Dengeler-Hukuksal Gelişim, Hukukçuların Hukuk Yaşamındaki Rolleri,” Çev. Özcan Çelebican. AUHFD, Cilt no 44, Sayı no 1: 61-79, 1995. p. 74. [32] Umur, Ziya. Roma hukuku: tarihı giriş, kaynaklar, umumı mefhumlar, hakların himayesi. İstanbul: Fakülteler Matbaası, 1979, p.201. [33] Kaser, Max. Roman private law. 2nd ed. London: Butterworths, 1968, p.345. [34] For Roman Law texts in Latin, we applied to the website, “http://faculty.cua.edu/Pennington/ Law508/Roman%20Law/RomanLawTexts.htm”. English texts of Justinian’s Digest, check the websites; “http://droitromain.upmf-grenoble.fr/Anglica/digest_Scott.htm” http://www. constitution.org/sps/sps.htm [35] Kunkel, p. 82. [36] Umur, p.96.

72


iudex’s jurisdiction was expressed by using two different words as iurisdictio and iudicare[37]. But in early times and especially in criminal courts, magistrates had the right of decision-making authority as a judge[38]. While magistrate was in trial, he were getting the opinion of jurists since magistrate stands out with his politician identity. A committee (consilium) composed of expert jurists were ready to help magistrate on his judicial duty[39]. Magistrate could make his own decisions without considering the opinion of expert jurists but his decisions were in the same way as the committee did. In this way, the combination of the public power represented by magistrates and consilium’s opinions created the rules of law used in practice. The effect of praetors declarations - named as edictum - in making of laws was pretty much. The praetor declared the rules and implementations in judicial affairs by means of his edictum[40]. The principles in his edictum also had a leading function for parties. However, edictum was not a law itself, it was only binding for praetor who declared it[41]. The new praetors were changing the edictum of previous ones’ partially. However, by the time the edictums were accepted as concrete rules of law in practice and were enough not to be changed anymore[42].Thus edictums provided the needs of rule of law and ensured the judicial continuity[43]. As a result of edictums which had become one of the important aspects of Roman law[44], a new judicial system named ius praetorium or ius honorarium [37] Schulz, Fritz. Classical Roman law. Oxford: Clarendon Press, 1951, p.13. [38] Umur, Hakların Himayesi, p.196. [39] Moreover, in B.C. 2. the documents of jurists were the ones which helped magistrate to perform his job. Corbino, p.77. [40] Sohm, Rudolf, and James Crawford Ledlie. The Institutes of Roman law. Oxford: Clarendon Press, 1892, .p.49. [41] Sohm p.54. [42] However, it is not considered as one of the sources of Roman law. Girard, Paul Frédéric, and A. H. F. Lefroy. A short history of Roman law. Toronto: Canada Law Book Co., 1906, p.81. [43] In B.C.130 emperor Hadrianus, in order to make edictum permanent, gave a task to one of the great jurists of the period, his name was Salvius Iulianus. The purpose of emperor Hadrianus was to inhibit another judicial system’s develop that were possible to established by praetors at that time. In order to give the edictum a permanent specification Salvius Iulianus combined other edictums and created one general edictum. Lately this new edictum was approved by senatus and named edictum perpetuum, in other words permanent edictum. Thus the monopoly of the law for the emperor was easier. Because, the praetors had to obey the permanent edictums. So, the effect of edictums in this time was decreased on the rules of law. Girard, p.109-110; Sohm, p. 56. [44] In addition to recognition of the right to sue and appointment of the judge, praetors had some other rights in jurisdiction. Interdictum was another way of legal protection. It was a verbal order given by praetor.It was a pre-offer for solution asked before starting of the court. Other protective applications are stipulationes pratoriae, in integrum restitutio and missio possessionem. So praetors brought innovations in all areas of private law. Kaser, p. 357-359; Schulz, p. 51; Buckland, pp. 21-39.


73





emerged in the field of law[45]. The idea of fairness takes place on the basis of ius honorarium. Praetor was considered to be as the main source of farness in this new judicial system. Praetor also had been accepted as legistrator[46]. As a temporary legal system, the general characteristics of ius honorarium is explained in the text below written by Papinianus. Dig. 1.1.7.1 Papinianus 2 def. “Ius praetorium est, quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem publicam. quod et honorarium dicitur ad honorem praetorum sic nominatum.” “The Praetorian Law is that which the Praetors introduced for the purpose of aiding, supplementing, or amending, the Civil Law, for the public welfare; which is also designated honorary law, being so called after the “honor” of the Praetors.” Therefore, the basic function of ius honorarium which emerged from judicial activities of magistrates was to complete legal loopholes of ius civile and to resolve its contradictions. Ius honorarium was a temporary law and it was only applied to the cases in which magistrates used his authority[47]. Another specification of iurisdictio was that magistrates were able to hand over it someone for a while. Representative of praetors called as praefecti iure dicundo could take decisions in the city squares named as forum by using iurisdictio[48]. There were specific times for using this authority. It could not be applied in evil day called as nefasti but it could be applied in non evil day called as fasti which is declared by priests. 4. The Immunity of Magistrates Magistrates who were elected by citizens were not responsible against them and it was impossible to judge magistrates as defendant within the tenure of his office[49].Ulpianus clearly explains the immunity of magistrate in the text below. Dig 2.4.2 Ulpianus 5 ad ed. “In ius vocari non oportet neque consulem neque praefectum neque praetorem neque proconsulem neque ceteros magistratus, qui imperium habent, qui et coercere aliquem possunt et iubere in carcerem duci;” “Neither a Consul, a Prefect, a Proconsul, nor any other magistrate who exercises authority, and has the power of restraining others and ordering them to be confined in prison, can be summoned to court;” Roman magistrates were the persons whose tenure of office was limited with [45] [46] [47] [48] [49]

74

Kaser, p.15-16. Buckland, p.5. Corbino, p.76. Umur, Hakların Himayesi, p.203. Plescia, p.46.


one year and as a rule they had privilege of immunity in this time. Magistrates could not be deprived of their official rights. However, in terms of their duties or transactions they may been subjected to various control mechanisms. They could have been prisoned with control mechanisms but they would continue to have duties and powers to some extent[50]. This situation clearly indicates us that in Roman law, magistrates had a broad immunity related to their duties and powers. Dig. 47.10.32. Ulpianus 42 ad sab. “Nec magistratibus licet aliquid iniuriose facere. Si quid igitur per iniuriamfecerit magistratus vel quasi privatus velfiducia magistratus, iniuriarum potest conveniri. Sed utrum posito magistratu an vero et quamdiu est in magistratu? Sed verius est, si is magistratus est, qui sine fraude in ius vocari non potest, exspectandum esse, quoad magistratu abeat. Quod et si ex minoribus magistratibus erit, id est qui sine imperio aut potestate sunt magistratus, et in ipso magistratu posse eos conveniri.” “Magistrates are not allowed to do anything by which an injury may be caused. Therefore, if a magistrate, either as a private individual, or in his magisterial capacity, is instrumental in committing injury, he can be sued for injury. But will it be necessary to wait until he has relinquished his office, or can the suit be brought while he still holds it? The better opinion is, that if he is a magistrate who cannot legally be summoned to court, it will be necessary to wait until he relinquishes his office. If, however, he is one of the inferior magistrates, that is to say, one of those not invested with supreme jurisdiction or authority, he can be sued, even while he is still discharging his judicial duties.” Considering the passage stated above, it is understood that magistrates who had imperium as dictator, consul, praetor, proconsul, propreator and magistrates who had potestas as censor, aedilis curulis and tribunus plebis were exempted from judgment within the tenure of his office. With the end of tenure of his office magistrates could have been judged by questiones perputuae[51] (permanent [50] Plescia, pp. 51-52. [51] Iudicia populi,is the name of the popular assembly which was serving as judiciary committee. The functions of this assembly increased B.C. second century in Roman law. In addition to its politic tasks, other various tasks had been given, so the name of the assembly was called as high court of parliament. Their main task was to examine the objections made against the decisions of the criminal courts. Shortly after the second century A.D. the effectiveness of the proceedings of this assembly gradually decreased. The main reason of that was the regulations made by Sulla in criminal justice system in 81 B.C. (questionis peerpetuae). Another reason is that the cases were being completed in approximately four months. Besides that the number of cases which parliament was dealing with were too much and to vote in parliament was impossible since the population was too much. Lastly, Sulla had brought some restrictions which reduced the effectiveness of the public assembly in Roman law. Duncon Cloud, The Cambridge Ancient History, The Last Age of The Roman Republic (146-43 B.C.) Vol. IX. Cambridge: Cambridge University Press, 1994, p. 501-503; Bauman, Richard A. Crime and punishment in


75





criminal court) which is a court consisted of senate members and iudicia populi[52] (tribun court or public court). However, throughout the history of Rome, a small number and details as a sample of magistrates’ trial had arrived in present day, except Sulla[53] case in 87 B.C[54]. 5. Inspection of Magistrates 5.1. With Provocatio Throughout the history of Rome, restriction of individual freedoms and rights which stemmed from misapplication of magistrates’ power of imperium and potestas caused an unpleased situation among Roman citizens and as a result of that disputes between Roman public authorities and people triggered the need of new forms of magistrates’ inspections. The law named lex valeria de Provocatione (Valeria Act which provides right to appeal) had been the corner stone for the freedom of the Roman citizens who were subjected to the unfair use of public powers by magistrates[55]. With this law, Roman citizens who were convicted by death penalty or chaining had the right to appeal at people’s assembly.The most important way to inspect magistrates’ was called provocatio[56] which was a guaranty for fundamental rights and freedoms of Roman citizens against unfair punishment of magistrates. Dig. 1.2.2.16 Pomponieus 1.S enchir. “Exactis deinde regibus consules constituti sunt duo: penes quos summum ius uti esset, lege rogatum est: dicti sunt ab eo, quod plurimum rei publicae consulerent. qui tamen ne per omnia regiam potestatem sibi vindicarent, lege lata factum est, ut ab eis provocatio esset neve possent in caput civis romani animadvertere iniussu populi: solum relictum est illis, ut coercere possent et in vincula publica duci iuberent.” “After the kings were expelled two consuls were appointed, and it was established by law that they should be clothed with supreme authority. They were so called ancient Rome. London: Routledge, 1996, pp. 21-22. [52] Plescia, pp. 54-55. [53] In 87 B.C. after Sulla left to Rome, Cinna who was elected as consul changed the system of Sulla and adopted a completely opposite policy .Meanwhile in absence of Sulla he had declared to be a traitor. For more detailed information, check http://penelope.uchicago. edu/Thayer/E/Roman/Texts/Plutarch/Lives/Sulla*.html [54] Plescia, pp. 54-55. [55] It is known as Provocatio ad populum. Roman law texts include the Lex Valeria de Provocatione which is a law that regulates the right to appeal. This law that determines the provocatio had lead the new laws as Lex Valeria Horatia in 449 B.C..and Lex Valeria in 300 B.C. [56] Provocatio is the source of today’s English and American law systems by means of ’ habeas corpus’, which is translated as “your body belongs to you”.

76


from the fact that they specially “consulted” the interests of the republic; but to prevent them from claiming for themselves royal power in all things, it was provided by enactment that an appeal might be taken from their decisions; and that they should not be able, without the order of the people, to punish a Roman citizen with death, and the only thing left to them was the exertion of force and the power of public imprisonment. ‘’ Upon the request of the citizen, until the final decision of the people’s assembly was confirmed, magistrate could not use this authority entirely against the citizen. Provocatio was not a method applied against magistrate’s transactions outside the borders of Rome since magistrate’s coercitio authority was unlimited and non-restricted outside the borders of Rome[57]. At first times provocatio was perceived as an inspection way of magistrate’s coercitio authority. It became different with the changes in the structure of the criminal courts. Towards the end of the Republican era, the idea of the establishment of the criminal courts emerged to restrict magistrate’s power. Investigations about the bribery of the Roman administrators were left to a committee that consists of magistrate and five senators in 171 B.C. Then this committee started to investigate the demands which could be claimed as lawsuits with a law named Lex Calpurnia de repetundis in 149 B.C.[58] and it gained a permanent statute. Another change come with this law was that the Roman citizens could ask to be revised the criminal sanctions applied to them by magistrate in people’s assembly with provocatio[59]. Magistrate’s punishment authority was not restricted theoretically but the establishment of the criminal courts and its decisions restricted this authority practically. As magistrate was the head of these courts, it could be accepted that he was more effective than the other members of courts in trial but the judges in this court were more than a consultant. These judges were also highly important in jurisdiction because they were investigating all the events and evidence in trial and the decision was taken by the majority of the votes[60]. However, these privileged inspection way named as provocatio was limited for only major punishments like death penalty or heavy fine[61]. In case of lenient punishments such as imprisonment, small fine and confiscation of property which are respectively light, application to the people’s assembly was not allowed. When we considered that in early years of the Republic period there were [57] Lintott, pp. 101-102. [58] Davidson, James Leigh. Problems of the Roman criminal law. Oxford: Clarendon Press, Vol. I. 1912, pp.223-227. [59] Loewenstein, p. 45 [60] Davidson, James Leigh. Problems of the Roman criminal law. Oxford: Clarendon Press, Vol. II. 1912. pp. 45-50. [61] Girard, p. 43-44.


77





no way for the inspection of the power and discretion of the magistrates, restriction of magistrates’ abused application using his power and discretion by provocatio was an important development in Roman Law. In early years of the Republic period, traditional structure of Kingdom’s period did not ceased. This is the reason of how magistrates applied arbitrary penalties with his power of coercitio without any limitation. Any limitation would be contrary to the purpose of giving public administration to the magistrates. During the first four hundred years of Roman law, since the use of public authority was left to the magistrate by citizens, he should respect fundamental rights and freedoms of citizens who chose him. However, arbitrary applications of magistrates were often seen in this period[62]. 5.2. Other Inspection Ways Inspection of magistrates with other ways was possible. One of this ways called as collega or collegialitas means that inspection of one magistrate by other magistrate. Each magistrate had the authority to veto the decisions of others. It can be understood that this authority shows the interventions of magistrates to each other by using their veto rights. Two conditions were necessary for the use of this way. First one is; the verdict of magistrates should have been uncompleted or inaccurate so the other magistrate could interfere it. The second one is; veto could only be used by equal or higher magistrates[63]. The main purpose of this control way is to protect citizens against arbitrary applications of one magistrate. However, the veto power which was used by another magistrate who is equal or higher, does not mean that one magistrate’s decisions subjected to approval of equal or higher magistrates. In principle, magistrates were independent in his transactions’ and decisions[64]. Veto power was considered as a caveat which sent magistrate to take decisions according to law but it had not significantly affected the final decisions given by magistrates. For that reason equal or higher magistrate would use his veto power rarely[65]. In later times to prevent the conflicting decisions between two equal magistrates, provincia was accepted. Provincia was the term which was used to express the regional administration of the lands and regions outside the boundaries of Italy which were seized by Romans in war. In another meaning, provincia expresses province of a high degree official’s[66].When it is used [62] [63] [64] [65] [66]

78

Strachan Davidson, Vol. I., pp. 96-110. Girard, p.43; Abbott, p.154. Loewenstein, pp.48-49. Abbott, p. 154. Halil Demircioğlu, “Roma Devletinin Eyalet Sistemi,” AÜDTCFD, Cilt no 5-6, Sayı no 8-11: 443-459, 1967-1968, p. 443.


for Roman magistrates, it has to be accepted with this second meaning. This could also be considered as another way to inspect magistrate’s authority since magistrate was not able to use his authority out of his province[67]. 6. Deposition of Magistrates Magistrates could only be judged in terms of private or public law at the end of their term of office when their applications were contrary to law and equality. Deposition of magistrate was not possible with a court decision. Higher magistrates, senate or public assembly were entitled deposition of one magistrate from his office. In addition, magistrates’ office could have been ended by dictators[68]. There is no sample of deposition of magistrate until B.C. 1st century. The best known samples of dismissed or punished magistrates were the judgment of Lentus Sura in 63 B.C.[69] and Gallius in 43 B.C.[70] In addition, some censors served in 169 B.C. and Appius Claudius Pulcher in 57 B.C. were the samples of magistrates who were judged or resigned by their own will before the end of their term of office[71].

[67] Lintott, p. 102. [68] Plescia, p.55. [69] T. P. Wiseman, The Cambridge Ancient History, The Last Age of The Roman Republic (146-43 B.C.) Vol. IX. Cambridge: Cambridge University Press, 1994, pp.225, 344 and 354-356. [70] “In 43 B.C. Praetor Gallius, had been judged and deposited from his office since he made an attempt at Octavius’s life. After that, he was mystically found dead in the sea. Levick, Barbara. Tiberius the politician. Rev. ed. London: Routledge, 1999, p.19. [71] Plescia, pp. 55-56.


79





R

Conclusion

oman Republic was the period in which the government adopted a republic-like regime. Traditional roman structure has changed with the senate and the magistrates who were elected by citizens and who headed the strong government system. This model evolved gradually and adopted the principle of separation of powers. Magistrates appeared to be the leading organ of the government on the way of adopting Republic and served as executive branch of government. Especially considering the imperium which facilitates their rights and powers, we can conclude that the most powerful organ of this period had been magistrates. Although we can not accept that literally there were a Republic regime in Rome as today’s states have, as being executive organ of this period magistrates served and took place in a critical position during the Roman Republic period.

80




REFERENCES

Abbott, F. F. (1911). A history and description of Roman political institutions, (3rd ed.). Boston: Ginn & Co.. Bauman, R. A. (1996). Crime and punishment in ancient Rome. London: Routledge. Berger, A. (1953). Encyclopedic dictionary of Roman law. Philadelphia: American Philosophical Society. Brennan, T. C. (2000). The praetorship in the Roman Republic. Oxford: Oxford University Press. Buckland, W. W. (1911). Equity in Roman law. London: University Press. Crook, J. A., Lintott, A. W., & Rawson, E. (1994). The Cambridge ancient history (2nd ed.). New York: Cambridge University Press. Çelebican, Ö. (2004). Roma hukuku: tarihi giriş-kaynaklar genel kavramlar- şahsın hukuku haklarınn korunması. Ankara: Yetkin. Davidson, J. L. (1912). Problems of the Roman criminal law. Oxford: Clarendon Press. Demircioğlu, Halil (1967-1968) “Roma devletinin eyalet sistemi,” AÜDTCFD, Vol. 5-6, No. 8-11: 443-459, Girard, P. F., & Lefroy, A. H. (19061905). A short history of Roman law. Toronto: Canada Law Book Co.. Ihne, W. (1853). Researches into the history of the Roman constitution with an appendix upon the Roman knights. London: William Pickering. Kaser, M. (1968). Roman private law (2nd ed.). London: Butterworths. Kunkel, W., & Kelly, J. M. (1966). An introduction to Roman legal and constitutional history. Oxford: Clarendon Press. Levick, B. (1999). Tiberius the politician (Rev. ed.). London: Routledge. Lintott, A. W. (1999). The constitution of the Roman Republic. Oxford [England: Clarendon Press. Loewenstein, K. (1973). The governance of Rome. The Hague: Nijhoff. Mackay, C. S. (2004). Ancient Rome: a military and political history. Cambridge: Cambridge University Press. Plescia, Joseph. (2001) “Judicial accountability and immunity in Roman law,” The American Journal of Legal History, Vol. 45, No. 1: 51-70. Ramsay, W., & Lanciani, R. A. (1901). A manual of Roman antiquities (17th ed.). London: C. Griffin and Co.. Schulz, F. (1951). Classical Roman law. Oxford: Clarendon Press.


81



Sohm, R., & Ledlie, J. C. (1892). The Institutes of Roman law. Oxford: Clarendon Press. Umur, Z. (1975). Roma hukuku lügatı. Istanbul: Fakülteter Matbaası. Umur, Z. (1979). Roma hukuku: tarihi giriş, kaynaklar, umumi mefhumlar, hakların himayesi. İstanbul: Fakülteler Matbaası

82



New Religious Movements and Freedom of Thought, Conscience and Religion in the European Convention on Human Rights’ Jurisprudence Asst. Prof. Dr. Joseph ZAND*

* Faculty of Law, Inonu University, Malatya, Turkey; [email protected]


Asst. Prof. Dr. Joseph ZAND

Abstr act This paper critically examines the attitude of the Council of Europe through the jurisprudence of the European Court of Human Rights in relation to New Religious Movements (NRMs) sometimes referred to as ‘cults’. On the whole, in contemporary Europe, NMRs seem to have been particularly vulnerable to persecution especially since the collapse of the Soviet Empire and the subsequent integration of many Eastern European states into the Council of Europe. Even though the Strasbourg organs initially limited religious freedoms to the individual, it now accepts that a religious organization also enjoys the right to religious freedom as representative of its members. In spite of this, by and large, NRMs have been denied recognition as bona fide religious institutions in Europe. This is mainly due to the fact that the European Court allows its member states a wide margin of appreciation in such matters. The Church of Scientology has been used as an example to illustrate the challenges faced by such organizations striving for recognition. This paper also considers the approach adopted by the British courts which represent a more moderate and measured approach towards NRMs. Keywords: New religious movements, European Court of Human Rights, Scientology, Freedom of conscience, Freedom of religion.


85


New Religious Movements and Freedom of Thought, Conscience and Religion in the European Convention on Human Rights’ Jurisprudence

Introduction

T

his paper will attempt to assess whether the phenomenon of New Religious Movements (NRM) has been treated harshly in Europe, with reference both to the case law of the European Court of Human Rights (the Court) and also that of the United Kingdom. This paper shall also concentrate on those groups, which the press and public often negatively describe as “cults”.[1] In recent times Europe has been ravaged by the conflict and persecution of minorities for their faith in such places as far apart as the Balkans, Northern Ireland and the Caucasus region. Respective communities are separated by differences of religion, ethnicity and race. However, hardly would any commentator admit that the conflicts fought are actually caused by religion. Moreover, in Europe there are groups often described as cults who claim to be persecuted simply because of their ‘faith’.[2] As a result of a glut of NRMs especially in the second half of the twentieth century in the “New Europe” the Court and the United Kingdom judiciary have been presented with a unique challenge. It will also be argued that the Strasbourg organs have been unwilling to recognise, and slow to protect, unconventional systems of belief, and that they have been willing to accord special dispensation to faiths, which have had long established history in Europe. The Church of Scientology will also be used as an example of an NRM, which, has been at the forefront of the campaign to be recognised as a bona fide Religion in Europe for the last 40 years. From the outset, it should be emphasised that NRMs are not splinter groups of existing churches, nor are they religions that may be identified with an “immigrant group”, such as, for instance, Islam, Sikhism or Hinduism.

[1] [2]

86

Generally see Daschke, D. and Ashcroft, W.M. (eds.), ‘New Religious Movements: A Documentary Reader’, New York University Press, 2005, p. 3; see also Arwick, E., ‘Researching New Religious Movements: Responses and Redefinitions’, Routledge, 2006. Cumper, P., ‘The Rights of Religious Minorities: The Legal Regulation of New Religious Movements, Minority rights’ in the ‘New’ Europe, 165-183, Kluwer Law International, 1999.


New Religious Movements Since the end of the Second World War the speed and scope of social changes in Europe may not have been as dramatic as in some other parts of the world but still have had profound repercussions.[3] As a response to these changes many people, mostly young people, joined various New Religious Movements (NRMs) established in Europe.[4] According to Barker: ‘The term new religious movement (NRM) is used to cover a disparate collection of organisations, most of which have emerged in their present form since 1950s, and most of which offer some kind of answer to questions of a fundamental religious, spiritual or philosophical nature.’[5] ‘NRM’ refers principally to groups, which have achieved most publicity and notoriety. They include the Unification Church (UC), the Children of God (COG) or Family of Love, the International Society for Krishna Consciousness (ISKCON), the Church of Scientology, the Divine Light Mission (DLM), Transcendental Meditation (TM), and the Rajneesh Foundation.[6] Since NRMs vary so vastly, impartial analysis of these groups is not an easy task, and as a result, our knowledge of some of these groups tends to be rather sparse. On occasions, NRMs have been responsible for truly dramatic situations.[7] They have also been the subject of innumerable studies and hours of debate by “politicians” all over Europe, as Iban has noted, ‘they (politicians) constantly appear in the mass-media, and yet not only would there appear to be no solution to the problem, but it does not seem possible to obtain a clear definition of what the problem actually is.’[8] Although, the general perception is that there are vast armies of people whose lives have been significantly affected by these movements, in reality, their number compared to more established religions is still relatively small.[9] In this regard, it has been observed that: ‘The real significance of NRMs lies not in their numerical strength, for NRMs in Europe have traditionally failed to emulate the success of their counterparts [3] [4] [5] [6] [7] [8] [9]

Melton, J.G., ‘An Introduction to New Religions’ in Lewis, J.R., (ed.), ‘The Oxford Handbook of New Religious Movements’, Oxford U.P., 2008, p. 19. Beckford, J, A., New religious Movements and Rapid Social Change, Sage Publications, 1988, pp. 32-34. Barker, E., ‘New Religious Movements: A Practical Introduction’, Rose of Sharon Press, 1989, p. 9. Generally see Lucas, P.C. and Robbins, T. (eds.), ‘New Religious Movements in the TwentyFirst Century: Legal, Political and Social Changes in Global Perspective’, Routledge, 2004. Gas attack on packed subway trains in central Tokyo by supporters of Aum cult leader Shoko Asahara, The Guardian, 21 March 1995, at 18. Also see a tragedy involving mass suicide/murder of members of one of NRMs movements in Switzerland, October 1997. Iban, I. C., ‘Religious Tolerance and Freedom in Continental Europe’, Ratio Juris. Vol. 10 No. 1 March 1997 (90-107). Barker, ‘NRMs: A Practical Introduction’, op. cit., p. 9.


87





in the United States, but to the extent in which they demonstrate Europe’s tolerance of religious diversity.’[10] It is interesting to note that the term NRM refers to the wide range of groups whose religious approaches are in evident contrast to the principles, of not only well established faiths, but also of those that have attained, or are in the process of acquiring a similar status.[11] Although, earlier generations of new religions could be recognised as ‘deviations’ or heresies within the JudaeoChristian tradition, a wide range of new practices have inspired new religious movements which are generally not considered praiseworthy in comparison to absolute values consolidated by the established churches in the west.[12] Iban has noted that: ‘… This is only the case, I insist, if this behaviour is backed by ‘good reason’, namely patriotism, religion, charity, solidarity, culture, etc. It would seem, therefore, that the values behind the new religious movements are not included in what we class as ‘good reasons’ that justify exceptional treatment.’[13] From the onset, it has to be pointed out that there are stark differences between NRMs. They mainly encompass movements, which are stigmatised, and yet wish to be recognised as genuine ‘religions’ in Europe.[14] The concept of NRM is a problematic one in that it refers to organised attempts to mobilize human and material resources for the purpose of spreading new ideologies and sensibilities of a religious nature.[15] The term “new” is historically relative and no longer applies to many religious groups that traditionally have been considered as such.[16] The NRMs under consideration have to be distinguished from longer established movements such as the Church of Jesus Christ of Latter-day Saints (Mormons), Jehovah’s Witnesses and other Christian denominations which fairly recently have established themselves as bona fide religions mainly in Western Europe.[17] This is [10] Ibid. [11] Chryssides, G.D., ‘Historical Dictionary of New Religious Movements’, 2nd edition, Scarecrow Press, 2011, pp. 4-5. [12] Chryssides, G. & Wilkins, M.Z. (eds.), ‘Reader in New Religious Movements: Readings in the Study of New Religious Movements’, Continuum International Publishing, 2006, especially Chapter 4 on ‘New Religions and the Churches’, p. 396; see also Wilson, B. R., “The Social Dimensions of Sectarianism – Sect and NRMs in Contemporary Society, Oxford U.P., 1992. [13] Iban, ‘Religious Tolerance and Freedom in Continental Europe’, op. cit., p. 100. [14] Cumper, ‘the Rights of Religious Minorities’, op. cit., p. 166. [15] Beckford, J. A., New Religious Movements and Rapid Social Change, op. cit., p. 29. [16] Lucas and Robbins, ‘New Religious Movements in the Twenty-First Century’, op. cit., p. 227. [17] See e.g., Kuznetsov v. Russia, no. 184/02, paras 73-74, 11 January 2007, in which the Court held that the action taken by a regional human rights commissioner in breaking up a Jehovah Witnesses’ meeting had no legal basis and had been in pursuit of her private ends …’ Appleby, R. S., ‘The Ambivalence of the Sacred: Religion, Violence, and

88


notwithstanding the fact that some of the abovementioned groups are still persecuted in some parts of Europe.[18] As stated above the number of NRM’s membership is still relatively small and some sociologists such as Barker attribute this lack of success simply to the fact that the reaction to the movements is more significant than the movement themselves.[19] It has even been argued that the reason for the apparent lack of enthusiasm on the part of the public in Europe is that due to the adverse publicity it tends to be wary of such movements.[20] In fact, this sentiment has been accentuated by the media’s portrayal of NRMs worldwide.[21] It has also been noted elsewhere that the public at large tend to believe that NRMs preside over a process of ‘brainwashing’.[22] Moreover, leadership of NRMs is another source of controversy. Since the leaders of such movements are mostly charismatic and powerful personalities, the public perception of NRMs is synonymous with such characters such as David Koresh, Baghwan Rajneesh, Reverend Moon and Aum cult leader Shoko Asahara.[23] Indeed, the media tend to portray such leaders as powerful individuals who lack accountability and more often than not indulge in excessive practices.[24] Cumper has noted that: ‘Some leaders portray themselves as ‘father figure’ and emphasise the primary duty of members is to the group has led to charges that NRMs are socially divisive and disrupt the traditional family unit.’[25] However, it is pointless to discuss the possible lack of freedom of the members of the NRMs, or the sincerity of their leaders, since this is something that cannot possibly be proven.[26] Reconciliation’, Rowman & Littlefield, 1999, p. 264. [18] Lucas and Robbins, ‘New Religious Movements in the Twenty-First Century’, op. cit., p. 21. [19] Barker, E., “New Religions Movements’ in Smelser, N. J. & Baltes, P. B. (eds.), International Encyclopaedia of the Social and Behavioural Science’, 16: 10631-34, Oxford: Elsevier. [20] Cumper, ‘the Rights of Religious Minorities’, op. cit., p. 167. [21] In fact, in recent years some American writers have also warned of the danger of NRMs and their social repercussions. Generally see Martin, W. R., ‘The Kingdom of the Cults’, Bethany House, 2003; Gallagher, E. V., ‘The New Religious Movements Experience in America’, Greenwood Press, 2004. [22] Lewis, ‘The Oxford Handbook of New Religious Movements’, op. cit., p. 3; see also Richardson, J., ‘The Deformation of New Religions: Impact of Societal and Organizational Factors’, in Robbins, W., Shepherd, W. C. & McBride, J. (eds.), ‘Cults, Culture and the Law: Perspectives on New Religious Movements’, Scholars Publishing, 1985. [23] Wessinger, C., ‘Charismatic Leaders in New Religions’, pp. 80-96 in Hammer, O. and Rothstein, M. (eds.), ‘The Cambridge Companion to New Religious Movements’, Cambridge University Press, 2012; Lewis, J. R. and Lewis, S. M., ‘Sacred Schisms: How Religions Divide’, Cambridge University Press, 2009, p. 129. [24] Lewis, J. R., ‘Violence and New Religious Movements’, Oxford U.P., 2011, p. 23-25. [25] Cumper, ‘The Rights of Religious Minorities’, op. cit., p. 168. [26] Iban, ‘Religious Tolerance and Freedom in Continental Europe’, op. cit., p. 100.


89





Europe’s Attitude to NRMs At this stage it is worth mentioning that the apparent inconsistency in attitudes towards NRMs in Europe is due to cultural, legal, political, historical and constitutional diversity.[27] Hence, in some European countries the NRMs face much sterner opposition than others.[28] A high-level Enquete Commission on the so-called Sects Psycho-groups indicates the concern about NRMs in Germany.[29] According to a survey compiled by Richardson and Van Driel regarding the attitude of governments and the public in Europe towards NRMs, the Netherlands was the most tolerant country followed by Britain, France and Germany.[30] Indeed, public response reflects many complex factors and is an important aid to understanding the NRMs varying fortune around Europe.[31] One of the best examples of this is Germany’s treatment of the Church of Scientology which prompted a number of Hollywood celebrities to write a letter to the then German Chancellor Helmut Kohl, denouncing the German treatment of the Church of Scientology, accusing it of “a shameful pattern of organised persecution”, and likening the treatment of Scientologists to that of Jews under Hitler.[32] Furthermore, the German government claimed that the Church of Scientology “engendered a marked friend-foe mind-set in its members”, which may result in severance of family ties.[33] Whilst it seems that in France the real opposition [27] Evans, C., ‘Freedom of Religion under the European Convention on Human Rights’, Oxford U.P., 2001, at 21. [28] See Garay, A., “Liberte religieuse et proselytisme: 1’experience Europeene”, Revue trimestriclle des droits de l’homme 17. Garay provides a study of European National Constitutions and legislations in which he concludes that Religious expression is generally protected and religious minorities do not generally suffer in Europe due to a refusal to recognize their spiritual identity; they suffer because respective societies are organized in a way that reflects the dominating religious cultures. [29] Deutscher Bundestag, Final Report of the Enquete Commission on ‘So-called Sects and Psychogroups’: New Religions and Ideological Communities and Psychogroups in the Federal Republic of Germany, available at: < http://www.agpf.de/Bundestag-Enqueteenglish.pdf>. [30] Richardson, J. T. and Van Driel, B., ‘Journalists’ Attitudes towards New Religious Movements’, Review of Religious Research, Vol. 39, No. 2, Mass Media and Unconventional Religions (Dec. 1997), pp. 116-136. [31] Introvigne, M., ‘Something Peculiar about France: Anti-Cult Campaigns in Western Europe and French Religious Exceptionalism’, in Lewis (ed.), ‘The Oxford Handbook of New Religious Movements’ op. cit., pp. 206-119. [32] “US stars accuse Bonn of Nazi View on Scientology”, The Daily Telegraph, 10 January 1997, at 14. [33] ‘The Scientology Organisation’, paper submitted by the German delegation at the OSCE Human Dimension Seminar on Constitutional and Administrative Aspects on the Freedom of Religion, Warsaw, 16-19 April 1996, cited by Cumper, ‘the Rights of Religious Minorities’, op. cit., p. 166.

90


to NRMs (in particular scientology) comes from the families of the converted members who claim that ‘belonging to an NRM seems to imply both a rejection of the family and a questioning of its social role.’[34] In a reaction to the phenomenon of NRMs a report to the Parliamentary Assembly of the Council of Europe headed by the British Conservative member concluded that, “as the 21st century approaches, sects [in Europe] are proliferating”.[35] The report also said that although this ‘phenomenon may not be a new one … it is growing and spreading internationally’.[36] The report provided two reasons for the increase in these non-traditional religions. Firstly, ‘a waning interest in and support for churches of the traditional kind’, which has significantly resulted in leaving ‘a yawning gap in the field of spiritual quest.’[37] Secondly, the public has failed to consider secular alternatives to religion, which has “left an ethical void”.[38] Hence, the report concluded that, ‘the sects have taken advantage of the vacuum left by waning interest in the traditional institutions.’[39] However, this has not deterred NRMs to seek recognition across Europe for a variety of reasons especially by litigation through the European Court of Human Rights.[40] Cumper has observed that: ‘In Europe a number of NRMs are involved in campaigns to win official recognition from the state as bona fide religions. The advantages of this may range from tax benefits (e.g., charitable status) and making it easier to hold public meetings (e.g., in a few European countries, places of religious worship must be registered with the state), to tangible benefits, such as a higher public profile, an improved image, and welcome publicity for the group.’[41]

[34] Ibid. [35] Parliamentary Assembly Report on Sects and NRMs, Rapporteur: Sir John Hunt, 29 November 1991, Doc. 6535, at 4. [36] Ibid. [37] Ibid. [38] Ibid. [39] Wilson, ‘the Social Dimensions of Sectarianism’, op. cit., p. 239. [40] Anagnostou, D. and Psychogiopoulou, E. (eds.), ‘The European Court of Human Rights and the Rights of Marginalized Individuals and Minorities in National Context’, Martinus Nijhoff Publishers, 2009, p. 111. [41] Cumper, ‘the Rights of Religious Minorities’, op. cit., p. 169.


91





NRMs and Eastern Europe Needless to say, NRMs face persecution in many European countries, but their treatment in Eastern European countries has particularly been harsh, where the authorities have questioned their practices.[42] Since the Collapse of the Soviet Empire many NRMs have attempted to establish themselves in Eastern Europe with varying degree of success.[43] In fact, NRMs in the 1990s were discriminated against and denied privileges in Eastern European countries such as Bulgaria, Latvia, Lithuania, Poland and Rumania by laws which distinguish between their officially recognised religious groups and those which are not so classified.[44] It is worth mentioning that this is in the light of the fact that Eastern European churches play a more prominent role in their societies in the post-communist era and have put respective governments under pressure to legislate to maintain the status quo.[45] One of the best examples of such draconian measures is the law passed in Russia in September 1997, which protects the legal status of the official religions (the Orthodox Church, Islam Judaism and Buddhism) and any other faith registered in Russia in the last fifteen years.[46] The case of Kimlya and others v Russia, was instigated by the Church of Scientology of Nizhnekamsk, which had been denied registration by the local authorities on the grounds that it had been in existence in the locality for less than required fifteen years.[47] The Court held that the interference with the applicants’ rights to freedom of religion and association cannot be said to have been “necessary in a democratic society”, and that there had also been violation of Article 9 of the Convention, interpreted in the light of Article 11.[48]

[42] Sweeney, J.A., ‘The European Court of Human Rights in the Post-Cold War Era: Universality in Transition’, Routledge, 2011, pp. 215-16. [43] Generally see McKay, G., ‘Subcultures and New Religious Movements in Russia and East-Central Europe’, Verlag Peter Lang, 2009. [44] Moreno, P., The Status of Religious Freedom in OSCE Countries, (the Rutherford Institute) 1997. [45] See e.g. the case of Jehovah Witnesses of Moscow and Others v. Russian, 10 June 2010 (No. 302/02), para 99; in which there was allegations that the Russian Orthodox Church had exerted pressure on the Ministry of Justice to prevent some religious organizations from obtaining their registration. [46] The law on Freedom of Religion of December 1990 enacted by the USSR was replaced by the Russian Federation on 26 September 1997 by a new federal law on freedom of conscience and religious associations (no. 125-FZ of 26 September 1997). Many observers have criticised this legislation home and abroad on the basis that it disregards the equality of religions. See Cole-Durham, W. and Ferrari, S. (eds.), ‘Law on Religion and the State in Post-Communist Europe’, Peeters Publishers, 2004, p. 297. [47] Kimlya and others v. Russia, no. 76836/01 and 32782/03, 1 October 2009, para 102. [48] Ibid.

92


Is There a Christian Bias? As noted above, traditionally very few cases on the basis of infringement of Art 9 of the Convention reached the Strasbourg organs (Court and Commission). As a result, in recent decades, a burgeoning and often controversial jurisprudence related to this article has begun to develop.[49] Although, the more established NRMs such as Jehovah’s Witnesses have managed to obtain redress under the Convention newer NRMs such as the Church of Scientology have been unable to achieve recognition.[50] However, ‘this contrasts sharply with the deference accorded to state churches and in particular to adherents of Christianity by the European Commission and the Court.’[51] This has prompted some observers of accusing Strasbourg organs of Christian bias.[52] It is a truism that the drafters of the Convention were very much influenced by Judeo-Christian tradition in Europe in 1950s.[53] At the one end of the European spectrum there are countries such as France and Turkey that the concept of secularism (separation of religion and state) is enshrined in their constitutions.[54] While most other states do not have provisions that so vigorously promote secularism as does the French Republic (1958), which describes it as ‘a Republic, indivisible, secular, democratic and social.’[55] At the other end of the spectrum, some constitutions reveal strong links between the state and a church or religion.[56] The Constitution of Greece (1975/1986), for example begins ‘In the name of the Holy, Consubstantial Indivisible Trinity.’[57] The United Kingdom has established the Church of [49] Controversial cases such as Leyla Şahin v. Turkey (GC), 18 March 2011 (No. 30814/06) and discussed in Altıparmak, K. & Karahanoğulları, O., ‘After Şahin: the Debate on Headscarves is not Over’, European Constitutional Law Review 2 (2006) 268; McGoldrick, ‘Human Rights and Religion: the Islamic Headscarf Debate in Europe, Oxford: Hart, 2006). [50] Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria (no. 40825/98), 31 July 2008; this case was based the fact that the Austrian authorities granted Jehovah’s Witnesses legal personality twenty years after their first request to be recognized as a religion and had therefore treated them differently than any other religious community. See also [51] Cumper, ‘The Rights of Religious Minorities’, op. cit., p. 174. [52] Gunn, J., ‘Adjudicating Rights of Conscience under the European Convention on Human Rights’, in ‘Religious Human Rights in Global Perspective: Legal Perspectives’, Van de Vyver, J.D. and Witte Jr., J. (eds.), the Hague, M. Nijhoff, 1996, p. 329. [53] Adhar, R. and Leigh, I., ‘Religious Freedom in the Liberal State’, Oxford U.P., 2nd ed., 2013, pp. 23-50; see also Evans, ‘Freedom of Religion under European Convention on Human Rights’, op. cit., pp. 19-22. [54] Constitution of the Republic of Turkey, Law No. 2709 of 7 November 1982 as amended by Law No. 3361 of 17 May 1987. Article 2 describes the Republic of Turkey as a ‘democratic, secular and social state’ and Article 4 renders these principles irrevocable. [55] Constitution of Republic of France, promulgated on 4 Oct. 1958, preamble. [56] Doe, N., ‘Law and Religion in Europe: a Comparative Introduction’, Oxford U.P., 2011, pp. 40-44. [57] It goes on to proclaim that ‘the prevailing religion in Greece is that of the Eastern Orthodox


93





England to the extent that the Monarch is the ‘Supreme Head of the Church of England.’[58] Therefore, there are a variety of relationships between the church and the state in the member states of the Council of Europe.[59] While with the exception of Turkey, Albania and Bosnia, the majority of the High Contracting Parties of the European Council share a Christian heritage this does not disguise the fact that member states adopt different legal approaches towards NRMs. As a result of the diversity and lack of uniformity of approach, the Court has granted the high contracting states a wide margin of appreciation.[60]

The Church of Scientology In the twenty-first century the Church of Scientology is one of most controversial NRMs, which has been denied the status as a “religion” in Europe.[61] The Church of Scientology was founded by L. Ron Hubbard in early 1950s.[62] Although, the Church of Scientology enjoyed some initial success in the early years of its establishment but ‘one could have hardly predicted Scientology’s meteoric rise or its history of public conflict from its modest beginning.’[63] Scientology is perhaps ‘the best-known NRM for using legal action as a way to deter detractors and promote its organisation.’[64] In spite of stating its case forcefully, it has found it difficult to secure the recognition as a bone fide religion in Europe.[65] The Church of Scientology claims to be the fastest growing

[58] [59] [60] [61] [62] [63] [64] [65]

94

Church of Jesus Christ … acknowledging our Lord Jesus Christ as its head, is inseparably united in doctrine with the Great Church of Christ in Constantinople and with every other Church of Christ of the same doctrine, observing unwaveringly, as they do, the holy apostolic and Synodal canons and sacred traditions.’ Article 3 of the Constitution of Greece, 7 June 1975 (as amended). Hill, M., Sandberg, R. and Doe, N. (eds.), ‘Religion and Law in the United Kingdom’, Kluwer Law International, 2011, p. 65. Evans, ‘Freedom of religion Under the European Convention on Human Rights’, op. cit., p. 21. Yourow, H. C., ‘The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence, Kluver Publishers, 1996, p. 12. Luca, N., ‘Is there a Unique French Policy of Cults? A European Perspective’, in Richardson, J. T. (ed.), ‘Regulating Religion: Case Studies from around the Globe’, pp. 58-59. Generally see Lewis, J. R. (ed.), ‘Scientology’, Oxford U.P., 2009; which provides a collection of scholarly writings regarding Scientology. Melton, G. J., ‘Birth of a Religion’, pp. 17-33, in Lewis, J.R. (ed.), ‘Scientology’, ibid, p. 17. Richardson, J. T., ‘Law’, pp. 227-240, in Ebaugh, H. R. (ed.), Handbook of Religion and Social Institution’, Springer, 2005, p. 236. Melton, G. J., ‘Scientology in Europe: Testing the Faith of a New Religion’ in Davis, D. and Besier, G., ‘International Perspectives on Freedom and Equality of Belief ’, Baylor U.P., 2002, pp. 69-84.


religion in the world.[66] According to its official website, Scientology boasts 8 million members attending 2318 churches in 107 countries.[67] It has been described by its President as a “sincere and genuine religion in all respects”[68]. Yet, these sentiments are not shared within some of the member states of the Council of Europe such as Germany and France.[69] Furthermore, Scientology in the past has accused Germany of systematic persecution of its members, which prompted the United States government to criticise Germany in its annual human rights report for the treatment of Scientologists.[70] The criticism reached a peak when the US granted asylum to a German member of Scientology.[71] Nevertheless, in other jurisdictions such as Australia[72] and the United States[73] Scientology has had more favourable response and has been recognised as a bona fide “religion.” Now this paper would consider the legal approach adopted by both the European Court of Human Rights and the United Kingdom courts towards NRMs.

The Legal Approach to NRMs in Europe Article 9 of the Convention protects freedom of thoughts, conscience and religion and is one of the foundations of ‘democratic society within the meaning of the Convention.[74] It states: 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in a community with others and in public or private, to manifest his religion or belief in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedom of others. [66] Official Church of Scientology website: . [67] Ibid. [68] Ibid. [69] The German Government has accused Scientology of profiteering rather than straightforward religion (Submission to the OSCE Seminar on Religious Freedom, ‘Parliamentary Assembly Report on Sects and NRMs’, op. cit. [70] Germany, ‘country Reports on Human Rights Practices for 1998’, published by the Bureau of Democracy, Human Rights and Labour of the State Department, 26 Feb. 1999. [71] Franz, D., ‘US Immigration Court Grants Asylum to German scientologist’, New York Times, 8 Nov. 1997, at 13. [72] Church of the New Faith (Scientology) v. The Commissioner for Payroll Tax ALJRt 57 (1983) 785. [73] Founding Church of Scientology v. United States 409 F.2d 1146 (D.D.Cir. 1969). [74] Mowbray, A., ‘European Convention on Human Rights’, Oxford University Press, 3rd ed., 2012, p. 599; White, R.C.A. and Ovey, C., ‘The European Convention on Human Rights’, Oxford U.P., 2010, p. 402.


95





Moreover, Article 14 (prohibition of discrimination) of the Convention might be relevant to freedom of religion cases.[75] It is worth mentioning that more often than not Articles 8-11 of the Convention which enshrine rights in the first paragraph, set out possible qualifications to the right in their second paragraph as a means of right-restrictive measures.[76] In step with other international human rights instruments related to religious liberty,[77] Article 9(1) sets out a positive right to both the manifestation of religion or belief (the forum externum), and the freedom of thought, conscience and religion (the forum internum), a sphere of ‘inner belief ’ which is considered inviolable.[78] According to Sandberg: ‘The right to freedom of thought, conscience and religion is unqualified. This includes the right to hold a religion or belief and to change it. The right to manifest one’s religion or belief is qualified by Article 9(1) in that the manifestation must be “in worship, teaching, practice and observance” and, more importantly, by the possible qualifications in Article 9(2). These permit the state to interfere with the right if the three tests in Article 9(2) are met. The interference must be “prescribed by law”, have one of the legitimate aims listed in Article 9(2) and be “necessary in a democratic society.”’[79] On the face of it, it would seem that Article 9 of the Convention would provide enough protection for any NRMs. Nonetheless, due to intransigence of some of the member states of the Council of Europe this has not been as straightforward as it may seem.[80] Until the early 1990s the case-law related to the right to freedom of thought, conscience and religion was relatively sparse.[81] Although this may have been a reflection of religious freedom in Europe in contrast to many other parts of the world, the Court adopted a rather cautious approach to interpretation of the aforementioned Article.[82] [75] Knight, S., ‘Freedom of Religion, minorities, and the Law’, Oxford U.P., 2007, p. 56. [76] ECtHR, Al-Nashif v Bulgaria, 20 June 2002 (No. 50963/99). [77] Freedom of Religion is protected in all of the major international and regional human rights instruments, such as Article 18 of the International Covenant on Civil and Political Rights (ICCPR), Article 3 of the American Declaration of the Rights and Duties of Men (American Declaration), Article 12 of the American Convention on Human Rights (ACHR), and Article 8 of the African Charter on Human and Peoples’ Rights (ACHPR). [78] Evans, M.D., ‘Freedom of Religion and the European Convention on Human Rights: Approaches, Trends and Tensions’, in Cane, P., Evans, C. and Robinson, Z. (eds.), ‘Law and Religion in Theoretical and Historical Context’, Cambridge University Press, 2008, pp. 291-315, p. 292. [79] Sandberg, R., ‘Law and Religion’, Cambridge University Press, 2011, p. 82. [80] Kent, S. A., ‘The French and German versus American Debate over “New Religions”, Scientology, and Human Rights’, Marburg Journal of Religion, Vol. 6, No. 1, January 2001, p. 3. [81] Harris, D. J., O’Boyle, M., Bates, E. P., Buckley, C. M., ‘Harris, O’Boyle & Warbrick Law of the European Convention On Human Rights’, Oxford U.P., 2nd ed., 2009, p. 425. [82] Arrowsmith v. United Kingdom, No. 7050/75, Comm. Rep. 1978, 19 DR 5. This narrow

96


The first major decision related to the violation of Article 9 was only delivered in the much referred to Kokkinakis case in 1993.[83] Since then a rich and often controversial jurisprudence has developed.[84] It is worth mentioning that in that case only one judge (Judge Martens) did not mention the dangers of unscrupulous groups use the process of brainwashing to gain new converts.[85] Despite the importance and extent of the interests protected by Art 9 some scholars have argued that: ‘In spite of the clear breadth of interests protected by Article 9, this provision was not examined in detail by the European Court until 1993. Whilst this may have been a reflection of the fact that freedom of religion and belief is accorded much greater protection in Europe than in many other parts of the world, it was also, at least in part, almost certainly due to the Commission’s tendency to interpret Article 9 narrowly.[86] Consequently, Article 9 provides protection not only for established religions (Buddhism,[87] Christianity,[88] Hinduism,[89] Islam,[90] Judaism,[91] and Sikhism[92]) but also covers newer religious organizations such as Jehovah’s witnesses, and the Church of Scientology in spite of resistance on the part of some of the members of the Council of Europe such as France and Germany.[93] There is a general agreement that the right is fundamentally important despite a lack of agreement as to what it entails.[94] The Court has elaborated on the strong link between religion and democratic society, stating that, ‘freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention.’[95] Hence the Court has reiterated that Art. 9 is not simply ‘one of the most vital elements that go to make up the identity of believer’ but also ‘a precious asset for atheists, sceptics, and the unconcerned.’[96]

[83] [84] [85] [86] [87] [88] [89] [90] [91] [92] [93] [94] [95] [96]

approach by the Court has been criticized by some scholars; e.g. Evans, C., ‘Freedom of religion Under the European Convention on Human Rights’, op. cit., p. 115. Kokkinakis v. Greece (1994) 17 EHHR 379. Sweeney, J.A., ‘Freedom of Religion and Democratic Transition’, in Buyse, A. & Hamilton, M. (eds.), ‘Transitional Jurisprudence and the ECHR: Justice, Politics and Rights’, Cambridge University Press, 2011, p. 103. Kokkinakis v Greece, op. cit., at 438. Harris, et al., ‘Law of the European Convention on Human Rights’, op. cit., p 425. X v. UK No 5442/72, 1 DR 41 (1971). Stedman v. UK No 29107/95 hudoc (1997); 23 EHRR CD 168. ISKCON v. UK No 20490/92 hudoc (1994). X v. UK No 8160/78, 22 DR 27 (1981). D v. France No 10180/82, 35 DR 1993 (1983). X v. UK No 8231/78, 28 DR 5 (1982). Urban, H. B., ‘The Church of Scientology: A History of a New Religion’, Princeton University Press, 2011, p. 201. Harris, et al., ‘Law of the European Convention on Human Rights’, op. cit., p 425. Hasan and Chaush v. Bulgaria, 26 October 2000 (No. 30958/96) para. 60. Kokkinakis v. Greece, op. cit., para 31.


97





In Church of X v UK Britain had imposed restrictions on members of the Church of Scientology to enter UK as they were deemed to be dangerous.[97] The European Commission held that the Church could not bring a case since only a natural person could do so and not a legal body.[98] However, this rule has now been amended and legal bodies such as churches and organisations with religious and philosophical objects can now exercise their right under Art 9.[99] Hence, their collective interests and not only the interests of their members could be protected.[100] Indeed, Scientology was the first organised religion to benefit from the Commission’s reversal of earlier decisions to refuse to hear cases from churches complaining of a breach of their religious freedom as in the case of X and the Church of Scientology v Sweden where the Commission held that the Church of Scientology had a right to pursue an action in its own right.[101] Cumper encapsulates the cautious manner in which Strasbourg organs have interpreted and applied Art 9 in five stages as follows: (i) that the Strasbourg organs have refused to define the concept of religion or even listing the criteria of religion; (ii) deliberately, the Court has refused to recognise some NRMs (such as Scientology) as religions; (iii) they have accorded more rights to ‘traditional faiths’ through their case law; (iv) there has been a marked reluctance to refer to Art 9, rather they tend to call upon other provisions of the Convention; (v) and finally even when they have made a reference to Art 9 they have allowed states a wide margin of appreciation.[102] It is worth noting that no human rights treaty including the European Convention, has ever defined ‘religion or belief ’.[103] The Commission has generally performed the task of defining religion or belief in the context of Art 9.[104] In many domestic legal systems that protect freedom of religion in constitutional or legislative regimes, the issue of what constitutes religion has been of great controversy.[105] However, in other Jurisdictions such as the US there has been far greater willingness to recognise NRMs than its European counterparts.[106] Although, the reluctance of the Strasbourg organs to define ‘religion’ is understandable, the [97] Church of X v. the United Kingdom, app. No. 3798/68, 13Y.B. Eur. Conv. On H.R. 306. [98] Ibid. [99] Chappell v. UK Application No. 12587/86 (1987) 53 DR 241. [100] Cumper, ‘the Rights of Religious Minorities’, op. cit., p. 172. [101] X and the Church of Scientology v. Sweden, App. No. 7805/77, 16 Eur. Comm’n H.R. Dec. & Rep. 68, 70 (1978). [102] Cumper, ‘The Rights of Religious Minorities’, op. cit., p. 173. [103] Evans, ‘Freedom of Religion under European Convention on Human Rights’, op. cit., p. 51. [104] Harris, O’Boyle, Warbrick, at 357-8. [105] Greenawalt, K., ‘Religion as a Concept in Constitutional Law’, 72 California Law Review, 753 (1984). [106] Thomas v. Review Board, 450 U.S. 707 (1981), at 714.

98


same could not be said of their failure to list the characteristics of a ‘religion’.[107] In X v UK the Commission failed to recognise Wicca (an ancient religion of Celtic people) as a religion and in that case prison authorities to register Wicca as his religion had refused the applicant.[108] The Commission adopted the same approach in cases involving Druidism[109] and the Devine Light Zentrum (DLZ).[110] Finally, when the European Commission considered the sale of a religious artefact, it refrained from commenting whether scientology was a religion.[111] Although Strasbourg in its early case-law limited the enjoyment of religious freedom to the right of individuals, it has now adopted an approach which is more attuned to the collective right of religious freedom.[112] The turning point in the attitude of the Court came in 2000, with its decision in the case of Hasan and Chausch v. Bulgaria, in which the Court recognized one of the two rival religious groups.[113] This indicated that the Court was no longer just concerned with the religious right of individual but the whole community. The Court’s case-law indicates that it has since devoted more attention to the collective religious right of communities especially in Eastern Europe.[114] The best manifestation of this legal approach could be discerned from the Court’s decision of Church of Scientology Moscow v. Russia.[115] After ten years of attempting to re-register as a religious institution through use of the legal system of Russia, Scientology took its case to the Strasbourg and was admitted by the European Court of Human Rights.[116] In April 2007, the Court ruled in favour of the Church of Scientology of Russia, finding a violation of Article 11 in light of Article 9 and ordered Russia to re-register Scientology as a religious organization.[117] [107] Cumper, ‘The Rights of Religious Minorities’, op. cit., p. 173. [108] X v. United Kingdom, 11 DR, at 55. [109] Chappell v. UK Application No. 12587/86 (1987) 53 DR 241. [110] Omkarananda and Devine Light Zentrum v. Switzerland Application No. 8118/77 (1981) 25 DR 105. [111] X and the Church of Scientology v. Sweden, op. cit, para 68. [112] Doe, ‘Law and Religion in Europe’, op. cit., p. 89. [113] Hasan and Chaush v. Bulgaria, 26 October 2000 (No. 30985/96), para. 29. [114] Metropolitan Church of Bessarabia and Others v. Moldova, 13 December 2001, No. 45701/99, Supreme Holy Council of the Muslim Community v. Bulgaria, 16 December 2004, No 39023/97; the Moscow Branch of the Salvation Army v. Russia, 5 October 2006, No. 72881/01; Gldani Members of Congregation of Jehova Witnesses v. Georgia, 3 May 2007, No. 71156/01; Svyato-Mykhaylivska Parafiya v. Ukraine, 14 June 2007, No. 77703/01; Religiongemeinschaft der Zeugen Jehovas v. Austria, 31 July 2008, No 40825/98; Kimlya and Others v. Russia, 1 October 2009, No. 76836/01; Mirolubovs and others v. Latvia, 15 September 2009, No. 798/05; and Holy Synod of the Bulgarian Orthodox Church v. Bulgaria, 16 September 2010, No. 35677/04. [115] Church of Scientology Moscow v. Russia, 5 April 2007, No. 18147/02. [116] Ibid. [117] Ibid.


99





Article 9 and the Margin of Appreciation The Strasbourg organs have traditionally granted national authorities in certain matters an element of discretion, subject to the general supervision of the European Court.[118] As a result, the Court has developed the concept that states have a ‘margin of appreciation’ in deciding whether a particular restriction on a right is required in the given circumstance.[119] If a constraint on religion or belief is prescribed by law, the Court then considers whether the law or the manner in which it was applied is ‘necessary in a democratic society’ for one of the reasons outline in Art 9(2). In the Handyside case the Court said: By reason of their direct and continuous contact with the vital forces of their countries, state authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirement as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ to meet them.’[120] Nevertheless, it is for the national authorities to make the initial assessment of the reality of pressing social needs implied by the notion of ‘necessity’. It has to be emphasised that the state does not have infinite elbowroom, in fact, ‘the domestic margin of appreciation thus goes hand in hand with a European supervision’.[121] In Otto-Preminger-Institute v Austria[122] the European Court upheld the ban on a motion picture, which had offended the local Catholic community by portraying Jesus as a simpleton and the Virgin Mary as sexually immoral. Also, in Wingrove v UK, the court upheld the ban granted by the British Government on showing of a short film about a nun’s erotic visions of Christ on the cross in order to protect the sensibilities of Christians.[123] As pointed out above, Germany has been one of the most vociferous states against recognition of Scientology in Europe. Nevertheless, if Scientology wishes to challenge the restrictions in Germany having exhausted domestic remedies, it may be able to rely on the case of Vogt v Germany.[124] In this case, a German teacher had been dismissed on the basis that her activities for the reformed Communist Party of Germany (DKP) were incompatible with her duty of political loyalty as a civil servant. She successfully managed to challenge the [118] Darby v. Sweden, Commission’s Report, 9 May 1989, A 187, para. 45. [119] Generally see Arai-Takahashi, Y., “The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR”, Cambridge University Press, 2002; also Shahpanahi, N., ‘Margin of Appreciation in Context of Freedom of Religion (Article 9 of the European Convention on Human Rights) in the Interpretation of the European Court of Human Rights’, University of Toronto, 2011. [120] Handyside v. United Kingdom, Judgement of 7 December 1976, Series A, No. 24; (1979-80) 1 EHHR 737. [121] Ibid, at 23. [122] Otto-Preminger-Institute v. Austria, (1995) 19 EHRR 34. [123] Wingrove v. UK, (1997) 24 EHRR 1. [124] Vogt v. Germany (1996) 21 EHRR 205.

100


decision. However, it is debateable whether Scientology can rely on Vogt, since the German Government can argue that Vogt is more applicable to Articles 10 and 11 rather than 9. Furthermore, the Government can also argue that the then Communist threat in Europe was a telling factor in Vogt, where it was distinguished from the earlier case of Glasenapp.[125] There is no question that the German government could also argue that after the end of the Cold War era, Scientology presents a threat and rely on Art 9(2).[126] Therefore Germany can claim that the restrictions on Scientology have a legitimate aim based on the public safety and also necessary in a democratic society. As this paper has attempted to illustrate the Court is very reluctant to challenge member states’ rationale as noted by some scholars that all cases relating to religious beliefs or religious activities relating to Germany were declared inadmissible on the basis of margin of appreciation.[127]

The British Approach The Courts’ attitude in the United Kingdom in recent years towards NRMs in general and the Church of Scientology in particular has been more tolerant than some of their European counterparts. The main reason for NRMs wishing to be recognised as a “religion” in the UK in particular is for tax exemptions as well as the prestige that it would bring with it. English law is particularly generous in favour of bona fide religions such as Judaism, Islam, Hinduism and Sikhism, which have been brought to the UK through its immigrant population mainly from its former colonies. It is worth mentioning that since the Reformation the Church of England has been the only lawful religion in the UK.[128] The reigning monarch is the head of the Church of England and the House of Lords the upper house of the parliament, includes bishops from the Church of England.[129] Inevitably, the Church of England’s status as the established church means that some preference in law is allotted to it over other denominations, although being [125] Glasenapp v. Germany (1987) 9 EHRR 25. [126] Yourow, H. C., ‘The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence’, Kluwer Publishers, 1996, p. 95. [127] Anagnostou, et al., ‘The European Court of Human Rights and the Rights of Marginalized’, op. cit., p. 111. [128] According to Sandberg ‘the constitutional position of religion differs in the four nations of the United Kingdom. While formerly there were established churches in all four nations, legislation disestablishing the national church has been enacted in respect of Ireland and Wales (Irish Church Disestablishment Act 1869; Welsh Church Act 1914). Two established churches continue to exist in England and Scotland.’ Sandberg, ‘Law and Religion’, op. cit., p. 81. [129] Boyle, K., and Sheen, J., Freedom of Religion or Belief: A World Report, Routledge, 1997. 316-17.


101





the established Church also carries some disadvantages too.[130] In this regard, Knights is of the opinion that: ‘Given the historical context of religious freedom, the dominance of Christian values as expressed in the legal system, and the position of the Church of England, other religions and their adherents were at risk of less favourable treatment than that afforded to the established church, its followers and the majority of the population.’[131] The United Kingdom’s Government does not recognise the Church of Scientology as a religious organisation.[132] According to a decision by the Charity Commission for England and Wales in 1999, the Church of Scientology’s application for charity status in England and Wales was rejected.[133] The Charity Commission held that the Church of Scientology would not be accepted as a charity in the UK since it was not deemed to be an organisation established for the charitable purpose of the advancement of religion even though ‘it is accepted that Scientology believes in a supreme being’, and ‘the core practices of Scientology, being auditing and training, do not constitute worship as they do not display the essential characteristics of reverence or veneration for a supreme being.’[134] Nevertheless, in 2000, since it was deemed to be a nonprofit-making organisation the Church of Scientology received exemption from the value added tax in the UK.[135] Moreover, it is significant to point out that the UK Defence Ministry has stated that Scientology is considered as a religion in the Royal Navy. On the other hand, the Prison Service in the UK does not recognise Scientology as a religion per se but those inmates who are registered Scientologists have the right to practice their religion and have access to the Church’s representatives should they wish to consult them. It is often claimed that since the implementation of Human Rights Act in 1998 there has been a substantial shift in the interface between law and religion in the UK.[136] This is significant in light of the fact that prior to this no special provision dealing with religion in the UK existed and religious freedom existed mainly in common law as a broad and largely negative freedom rather than a

[130] Sandberg, ‘Law and Religion’, op. cit., pp. 25-26. [131] Knight, ‘Freedom of Religion, Minorities, and the Law’, op. cit., p. 22. [132] See Lord Justice Buckley’s definition of worship in the Court of Appeal of England and Wales, R v. Registrar General, ex parte Segerdal [1970] 2 QB 679, at 707. Also U.S. Department of State, 2007 Report on Religious Freedom: United Kingdom available at: < http://www.state.gov/j/drl/rls/irf/2007/90206.htm>. [133] . [134] Ibid. [135] U.S. Department of State, 2010 Report on Religious Freedom: United Kingdom available at: < http://www.state.gov/documents/organization/171729.pdf>. [136] Sandberg, ‘Law and Religion’, op. cit., p. 81.

102


positive right.[137] Prior to the HRA 1998, the legislative framework in the UK contrasted directly with the positive right to freedom of religion existing in many of the bills of rights and constitutions around the world.[138] Nevertheless, before the enactment of the HRA 1998, there was recognition on the part of the judiciary of the importance of freedom of religion.[139] The Human Rights Act 1998 (HRA 1998), section 13 states that a ‘particular regard’ is to be paid to the importance of the right to freedom of thought, conscience and religion when court decisions are taken affecting the exercise of that right by religious organisations. The phrase “religious organisation” used by section 13 is a much wider definition than the words “religion” or “church”. Cumper has noted: ‘Whilst the term “religious organisations” does include mainstream churches and religious charities, the extent to which it covers NRMs remains to be seen. In this, and in all other areas of the Human Rights Act, British judges must look to the ECHR.’[140] Jack Straw the then Home Secretary stated that Section 13 of the HRA 1998 reflected the Convention, in particular, he was confident ‘that the term “religious organisation” is recognisable in terms of the Convention.’[141] However, it is interesting to note that both the Commission and the Court have refused to define “religion” in step with other international instruments in the past.[142] Therefore, British judges would have to develop their own definition of religion for determining which groups including NRMs come under Section 13. It is debateable whether that would be of any assistance to NRMs to secure recognition in British courts as bona fide religious institutions.[143]

[137] For a brief history of development of freedom of religion in the UK see Hamilton, C., ‘Family, Law and Religion’, Sweet & Maxwell, 1995, pp. 1-11. [138] Knight, ‘Freedom of Religion, Minorities, and the Law’, op. cit., p. 22. [139] R v. Secretary of State for the Home Department, ex parte Moon (1995) 8 Admin LR 477, 480; and also Ahmed v Inner London Education Authority (1978) QB 36, 41. [140] Cumper, P., ‘The Protection of Religious Rights under Section 13 of the Human Rights Act 1998’, [2000] Public Law, 254. [141] “20 May, 1998” Parliamentary Debates (Hansard) (House of Commons) Vol. 312 cc 989-1076. [142] Evans, ‘Freedom of Religion under the European Convention on Human Rights, op. cit., p. 51. [143] See the recent case of the High Court in England, R (Hodkin and Church of Scientology Religious Education College Inc.) v. Registrar General for Births, Deaths and Marriages, Dec 12, [2012] EWHC 3635 Admin.


103





Conclusion

F

reedom of religion or belief is a fundamental human right that protects a vital aspect of human integrity and autonomy.[144] The European Convention from its inception has set out to uphold all the values that are precious to the Europeans including freedom of religion. However, the Strasbourg organs have been reluctant to allow cases relying on Article 9 to reach its courts and have shown a certain degree of eagerness to rely on other articles of the Convention. Nevertheless, as the case law of the Court illustrates, no NRM until recently had ever managed to successfully petition the Court. This is contrary to the spirit of new Europe and its commitment to human rights, which will be measured by its treatment of minorities (including NRMs). It could also be concluded that the ambivalent attitude adopted by the Court and many members of the Council of Europe is a reflection of their protectionism towards the well-established state Churches, which play a major part in maintaining the status quo as well as consolidating their hegemony over their respective societies. This in some cases creates an impossible situation for NRMs to achieve recognition as a religion in those countries. Nonetheless, the case of Scientology is a ray of hope for many other law abiding NRMs for what they have achieved in other jurisdiction such as in the United States and Australia that one day could be the same recognition in law as a bona fide religious organisation.

[144] Evans, ‘Freedom of Religion under the European Convention on Human Rights, op. cit., p. 200.

104




Bibliogr aphy

Adhar, R. and Leigh, I., ‘Religious Freedom in the Liberal State’, Oxford University Press, 2nd ed., 2013. Ahmed v Inner London Education Authority (1978) QB 36, 41. Al-Nashif v Bulgaria, 20 June 2002 (No. 50963/99). Altıparmak, K. & Karahanoğulları, O., ‘after Şahin: the Debate on Headscarves is not Over’, European Constitutional Law Review 2 (2006) 268. Anagnostou, D. and Psychogiopoulou, E. (eds.), ‘The European Court of Human Rights and the Rights of Marginalized Individuals and Minorities in National Context’, Martinus Nijhoff Publishers, 2009. Appleby, R.S., ‘the Ambivalence of the Sacred: Religion, Violence, and Reconciliation’, Rowman & Littlefield, 1999. Arai-Takahashi, Y., “The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR”, Cambridge University Press, 1st ed., 2002. Arrowsmith v. United Kingdom, No. 7050/75, Comm. Rep. 1978, 19 DR 5. Arwick, E., ‘Researching New Religious Movements: Responses and Redefinitions’, Routledge, 2006. Barker, E., ‘New Religious Movements: A Practical Introduction’, Rose of Sharon Press, 1st ed., 1989. Barker, E., “New Religions Movements’ in Smelser, N.J. & Baltes, P.B. (eds.), International Encyclopaedia of the Social and Behavioural Science’, 16: 10631-34, Oxford: Elsevier. Beckford, J, A., New religious Movements and Rapid Social Change, sage Publications, 1st ed., 1988. Boyle, K, Sheen, J., Freedom of Religion or Belief: A World Report, Routledge, 1997. 316-17. Chappell v. UK Application No. 12587/86 (1987) 53 DR 241. Chryssides, G. & Wilkins, M.Z. (eds.), ‘Reader in New Religious Movements: Readings in the Study of New Religious Movements’, Continuum International Publishing, 2006. Chryssides, G.D., ‘Historical Dictionary of New Religious Movements’, 2nd edition, Scarecrow Press, 2012. Church of Scientology Moscow v. Russia, 5 April 2007, No. 18147/02. Church of the New Faith (Scientology) v. The Commissioner for Payroll Tax ALJRt 57 (1983) 785. Church of X v. the United Kingdom, app. No. 3798/68, 13Y.B. Eur. Conv. On H.R. 306. Cole-Durham, W. and Ferrari, S. (eds.), ‘Law on Religion and the State in Post-Communist Europe’, Peeters Publishers, 2004.


105



Cumper, P., ‘The Protection of Religious Rights under Section 13 of the Human Rights Act 1998’, [2000] Public Law, 254. Cumper, P., ‘The Rights of Religious Minorities: The Legal Regulation of New Religious Movements, Minority rights’ in the ‘New’ Europe, 165-183, Kluwer Law International, 1999. D v. France No 10180/82, 35 DR 1993 (1983). Darby v. Sweden, Commission’s Report, 9 May 1989, A 187. Daschke, D. and Ashcroft, W.M. (eds.), ‘New Religious Movements: A Documentary Reader’, New York University Press, 2005. Deutscher Bundestag, Final Report of the Enquete Commission on ‘So-called Sects and Psychogroups’: New Religions and Ideological Communities and Psychogroups in the Federal Republic of Germany, available at: < http://www.agpf.de/Bundestag-Enquete-english.pdf>. Doe, N., ‘Law and Religion in Europe: a Comparative Introduction’, Oxford University Press, 2011. Evans, C., ‘Freedom of religion Under the European Convention on Human Rights’, Oxford University Press, 1st ed. 2001. Evans, M.D., ‘Freedom of Religion and the European Convention on Human Rights: Approaches, Trends and Tensions’, in Cane, P., Evans, C. and Robinson, Z. (eds.), ‘Law and Religion in Theoretical and Historical Context’, Cambridge University Press, 2008, pp. 291-315. Founding Church of Scientology v. United States 409 F.2d 1146 (D.D.Cir. 1969). Franz, D., ‘US Immigration Court Grants Asylum to German scientologist’, New York Times, 8 Nov. 1997, at 13. Garay, A., “Liberte religieuse et proselytisme: 1’experience Europeene”, Revue trimestriclle des droits de l’homme 17. Germany, ‘country Reports on Human Rights Practices for 1998’, published by the Bureau of Democracy, Human Rights and Labour of the State Department, 26 Feb. 1999. Glasenapp v. Germany (1987) 9 EHRR 25. Gldani Members of Congregation of Jehova Witnesses v. Georgia, 3 May 2007, No. 71156/01. Greenawalt, K., ‘Religion as a Concept in Constitutional Law’, 72 California Law Review, 753 (1984). Gunn, J., ‘Adjudicating Rights of Conscience under the European Convention on Human Rights’, in ‘Religious Human Rights in Global Perspective: Legal Perspectives’, Van de Vyver, J.D. and Witte Jr., J. (eds.), the Hague, M. Nijhoff, 1996. Hamilton, C., ‘Family, Law and Religion’, Sweet & Maxwell, 1995, pp. 1-11. Handyside v. United Kingdom, Judgement of 7 December 1976, Series A, No. 24; (1979-80) 1 EHHR 737. Harris, D.J., O’Boyle, M., Bates, E.P., Buckley, C.M., ‘Harris, O’Boyle & Warbrick Law of the European Convention On Human Rights’, Oxford University Press, 2nd ed., 2009.

106


Hasan and Chaush v. Bulgaria, 26 October 2000 (No. 30958/96). Hill, M., Sandberg, R. and Doe, N. (eds.), ‘Religion and Law in the United Kingdom’, Kluwer Law International, 2011, p. 65. Holy Synod of the Bulgarian Orthodox Church v. Bulgaria, 16 September 2010, No. 35677/04. Iban, I, C., ‘Religious Tolerance and Freedom in Continental Europe’, Ratio Juris. Vol. 10 No. 1 March 1997 (90-107). Introvigne, M., ‘Something Peculiar about France: Anti-Cult Campaigns in Western Europe and French Religious Exceptionalism’, in Lewis (ed.), ‘The Oxford Handbook of New Religious Movements’, Oxford University Press, 2008, pp. 206-119. ISKCON v. UK No 20490/92 hudoc (1994). Jehovah Witnesses of Moscow and Others v. Russian, 10 June 2010 (No. 302/02). Kent, S.A., ‘the French and German versus American Debate over “New Religions”, Scientology, and Human Rights’, Marburg Journal of Religion, Vol. 6, No. 1, January 2001. Kimlya and others v. Russia, no. 76836/01 and 32782/03, 1 October 2009. Knight, S., ‘Freedom of Religion, minorities, and the Law’, Oxford University Press, 2007. Kokkinakis v. Greece (1994) 17 EHHR 379. Kuznetsov v. Russia, no. 184/02, paras 73-74, 11 January 2007. Lewis, J.R. (ed.), ‘Scientology’, Oxford University Press, 2009. Lewis, J.R. and Lewis, S.M., ‘Sacred Schisms: How Religions Divide’, Cambridge University Press, 2009. Lewis, J.R., ‘Violence and New Religious Movements’, Oxford University Press, 2011. Leyla Şahin v. Turkey (GC), 18 March 2011 (No. 30814/06). Luca, N., ‘Is there a Unique French Policy of Cults? A European Perspective’, in Richardson, J.T. (ed.), ‘Regulating Religion: Case Studies from around the Globe’, pp. 58-79, Springer, 2013. Lucas, P.C. and Robbins, T. (eds.), ‘New Religious Movements in the Twenty-First Century: Legal, Political and Social Changes in Global Perspective’, Routledge, 2004. Martin, W.R., ‘The Kingdom of the Cults’, Bethany House, 2003; Gallagher, E.V., ‘The New Religious Movements Experience in America’, Greenwood Press, 2004. McGoldrick, ‘Human Rights and Religion: the Islamic Headscarf Debate in Europe, Oxford: Hart, 2006. McKay, G., ‘Subcultures and New Religious Movements in Russia and East-Central Europe’, Verlag Peter Lang, 2009. Melton, G.J., ‘Scientology in Europe: Testing the Faith of a New Religion’ in Davis, D. and Besier, G., ‘International Perspectives on Freedom and Equality of Belief ’, pp. 69-84, Baylor U.P., 2002, pp. 69-84. Melton, J.G., ‘An Introduction to New Religions’ in Lewis, J.R., (ed.), ‘the Oxford Handbook of New Religious Movements’, Oxford University Press, 2008.


107





Metropolitan Church of Bessarabia and Others v. Moldova, 13 December 2001, No. 45701/99, Supreme Holy Council of the Muslim Community v. Bulgaria, 16 December 2004, No 39023/97. Mirolubovs and others v. Latvia, 15 September 2009, No. 798/05. Moreno, P., The Status of Religious Freedom in OSCE countries, (the Rutherford Institute) 1997. Mowbray, A., ‘European Convention on Human Rights’, Oxford University Press, 3rd ed., 2012. Official Church of Scientology website: at 07 November 2013. Omkarananda and Devine Light Zentrum v. Switzerland Application No. 8118/77 (1981) 25 DR 105. Otto-Preminger-Institute v. Austria, (1995) 19 EHRR 34. Parliamentary Assembly Report on Sects and NRMs, Rapporteur: Sir John Hunt, 29 November 1991, Doc. 6535. Parliamentary Debates (Hansard) (House of Commons) “20 May, 1998” Vol. 312 cc 989-1076. R (Hodkin and Church of Scientology Religious Education College Inc.) v. Registrar General for Births, Deaths and Marriages, Dec 12, [2012] EWHC 3635 Admin. R v. Registrar General, ex parte Segerdal [1970] 2 QB 679. R v. Secretary of State for the Home Department, ex parte Moon (1995) 8 Admin LR 477, 480. Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria (no. 40825/98), 31 July 2008. Richardson, J., ‘the Deformation of New Religions: Impact of Societal and Organizational Factors’, in Robbins, W., Shepherd, W.C. & McBride, J. (eds.), ‘Cults, Culture and the Law: Perspectives on New Religious Movements’, Scholars Publishing, 1985. Richardson, J.T. and Van Driel, B., ‘Journalists’ Attitudes towards New Religious Movements’, Review of Religious Research, Vol. 39, No. 2, Mass Media and Unconventional Religions (Dec. 1997). Richardson, J.T., ‘Law’, in Ebaugh, H.R. (ed.), Handbook of Religion and Social Institution’, pp. 227-240, Springer, 2005, p. 236. Sandberg, R., ‘Law and Religion’, Cambridge University Press, 2011. Shahpanahi, N., ‘Margin of Appreciation in Context of Freedom of Religion (Article 9 of the European Convention on Human Rights) in the Interpretation of the European Court of Human Rights’, University of Toronto, 2011. Stedman v. UK No 29107/95 hudoc (1997); 23 EHRR CD 168. Svyato-Mykhaylivska Parafiya v. Ukraine, 14 June 2007, No. 77703/01. Sweeney, J.A., ‘Freedom of Religion and Democratic Transition’, in Buyse, A. & Hamilton, M. (eds.), ‘Transitional Jurisprudence and the ECHR: Justice, Politics and Rights’, Cambridge University Press, 2011, P. 103. Sweeney, J.A., ‘The European Court of Human Rights in the Post-Cold War Era: Universality in Transition’, Routledge, 2011.

108


The Moscow Branch of the Salvation Army v. Russia, 5 October 2006, No. 72881/01. ‘The Scientology Organisation’, paper submitted by the German delegation at the OSCE Human Dimension Seminar on Constitutional and Administrative aspects on the Freedom of Religion, Warsaw, 16-19 April 1996. Thomas v. Review Board, 450 U.S. 707 (1981), at 714. U.S. Department of State, 2007 Report on Religious Freedom: United Kingdom available at: at 07 November 2013. Urban, H.B., ‘The Church of Scientology: A History of a New Religion’, Princeton University Press, 2011, p. 201. US stars accuse Bonn of Nazi View on Scientology, The Daily Telegraph, 10 January 1997, p.14. Vogt v. Germany (1996) 21 EHRR 205. Wessinger, C., ‘Charismatic Leaders in New Religions’, pp. 80-96 in Hammer, O. and Rothstein, M. (eds.), ‘The Cambridge Companion to New Religious Movements’, Cambridge University Press, 2012. White, R.C.A. and Ovey, C., ‘The European Convention on Human Rights’, Oxford U.P., 2010. Wilson, ‘the Social Dimensions of Sectarianism’, op. cit., p. 239. Wilson, B, R., “The social Dimensions of Sectarianism – Sect and NRMs in Contemporary Society, OUP, 1st ed. 1992. Wingrove v. UK, (1997) 24 EHRR 1. X and the Church of Scientology v. Sweden, App. No. 7805/77, 16 Eur. Comm’n H.R. Dec. & Rep. 68, 70 (1978). X v. UK No 5442/72, 1 DR 41 (1971). X v. UK No 8160/78, 22 DR 27 (1981). X v. UK No 8231/78, 28 DR 5 (1982). Yourow, H.C., ‘The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence, Kluver Publishers, 1996.


109




Compar ative Analysis Of The UK And Turkey In Terms Of The Question: Can The UK’s Human Rights Law Be A Model For Turkey To Overcome Its Violations Of Article 3 And Article 10 Of The European Convention On Human Rights ? Devran ÜNLÜ*

* Treasury lawyer.


Devran ÜNLÜ

ABSTR ACT This dissertation presents the human rights problem in Turkey and it aims to suggest a new way forward which has not proposed previously. Although Turkey has made several legal reforms related to its prohibition of torture, inhuman and degrading treatment and freedom of expression violations, such violations have continued to pose a problem. Consequent to a comparison of the human rights policies of the United Kingdom and Turkey, this paper suggests that the incorporation the European Convention on Human Rights into Turkish domestic law could be beneficial for the country. The United Kingdom’s law is a convincing example of the advantages of incorporating the Convention. The comparison of the legal frameworks, case law and the statistics of the European Court of Human Rights provide an evidence to underpin this thesis. Consequently, the research concentrates on whether the United Kingdom’s law can be a guide for Turkey to cope with its human rights law deficiencies. Keywords: European Convention on Human Rights, Torture, Inhuman Treatment Freedom Of Expression, Human Rights Act.


113


Comparative Analysis Of The UK And Turkey In Terms Of The Question: Can The UK’s Human Rights Law Be A Model For Turkey To Overcome Its Violations Of Article 3 And Article 10 Of The European Convention On Human Rights?

M

1. Introduction

ore than a half century time has passed since the European Convention on Human Rights (hereinafter the Convention) became effective in 1953. Since Turkey accepted the right of individual petition to the European Court of Human Rights (hereinafter the Court) in 1987, an internationally challenging period started for the Turkish legal system. Especially violations of Article 3 (prohibition of torture, inhuman and degrading treatment) and Article 10 (freedom of expression) of the Convention have become the focal point of the concerns of international organizations. The consistent criticisms of the Court and the European Union (hereinafter EU) on human rights issues led this research to investigate how Turkey could overcome its human rights deficiencies. Despite the fact that Turkey has endeavoured to implement most of the recommendations of international organizations, it remains that human rights conditions in Turkey has been far from satisfactory. Indeed, although Turkey has tried to reform its human rights law since the military coup in 1980, the facts have indicated that these reforms are not adequate and Turkey needs more fundamental legal changes. It is worth explaining that there is a common confusion relating to the difference between the Convention and EU law. First of all, the Convention was constituted by the European Communities (Council of Europe), a larger institution than the EU. Secondly, the judicial organ of the EU is the European Court of Justice[1]. Nonetheless, the Convention plays a crucial role within the EU[2]. In this dissertation, a theoretical and conceptual framework will be set up by comparing the human rights situations of the UK and Turkey. Although there is a comprehensive literature about human rights conditions in Turkey, it seems that there is a paucity of literature around what Turkey can do to enhance this situation. The dissertation aims to add value to the current state of knowledge by critically evaluating the existing literature on this area. The research was carried out in five sections. After a brief background about the topic, the legal frameworks of Turkey and the United Kingdom will be compared in terms of prohibition of torture, inhuman and degrading treatment and freedom of expression. In the second section, the decisions of the Court about Turkey and the UK will be compared to understand their degrees of protection. In the third section, the statements of international organizations will be presented to see the changes year on year. Lastly, in the last section, the question of what Turkey can do will be investigated in the case of Turkey deciding to follow the UK’s human rights law as a guide. A comparative approach was decided upon [1] [2]

114

Steve Foster, Human Rights & Civil Liberties (2nd edn Pearson Education Limited, Essex 2008) p.21-22. Brice Dickson, Human Rights and the European Convention (Sweet&Maxwell, London 1997) p.15


for the research methodology to demonstrate how the legal systems of the UK and Turkey have addressed the problems. This methodology will allow a clearer presentation of which aspects the UK has more sophisticated human rights regime. This dissertation mainly suggests that Turkey should follow the UK’s human rights law and incorporate the European Convention on Human Rights into its domestic law. As a result of these evidence,the research topic is “Comparative analysis of the UK and Turkey in terms of the question: Can the UK’s human rights law be a model for Turkey to overcome its violations of the Article 3 and Article 10 of the European Convention on Human Rights?”

2. Comparison Of The Legal Frameworks Of Turkey And The UK In Terms Of Prohibition Of Torture, Inhuman And Degrading Treatment (Article 3) And Freedom Of Expression (Article 10) 2.1 Prohibition of Torture, Inhuman and Degrading Treatment or Punishment At the outset, Article 3 of the Convention states that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment[3].” Like the right to life, Article 3 of the Convention charges the member states with the duty of protecting people against foreseeable threats of torture, inhuman and degrading treatments or punishments[4]. It is emphasised that some of the rights under the Convention and its protocols are regulated as absolute rights, whereas other rights are conditional. The prohibition of torture, inhuman and degrading treatment is an absolute right. Therefore, this right must not be breached under any situation such as the fight against terrorism[5]. Furthermore, Spencer maintains that that even in the war or threat of war situation, no exceptions or limitations are allowed on this right[6]. Neither torture nor inhuman and degrading treatment is defined in the Convention[7]. However, in the Court rulings, torture is designated as the [3] [4] [5] [6] [7]

Council of Europe, ‘Convention for the Protection of Human Rights and Fundamental Freedoms’ (2010) accessed 29 August 2011. David Feldman, Civil Liberties and Human Rights in England and Wales (2nd edn Oxford University Press, Oxford 2002) p. 257 citing Judgment of A v UK 23 September 1998, 27 EHRR 611. Steve Foster (n1) p.72 Maureen Spencer and John Spencer, Human Rights Law in a Nutshell (3rd edn Sweet & Maxwell, London 2007) p. 86-87 A H Robertson and J G Merrills, Human Rights in Europe; a Study of the European Convention on Human Rights (3rd edn Manchester University Press, Manchester &


115


Devran ÜNLÜ



procedures which cause severe and cruel physical or mental suffering[8]. It is a deliberate act to break resistance of the victim[9] for obtaining information or a confession[10]. Inhuman treatment is defined as an act that causes physical or mental suffering (such as incommunicado detention)[11]. Lastly, degrading treatment is explained as an act that stimulates in the victim a feeling of grief, anxiety, fear or inferiority capable of humiliating the victim and eliminating his or her resistance[12]. As a threshold standard, the treatment or punishment is supposed to reach ‘a minimum level of severity’[13]. For instance, in the Ireland v. the United Kingdom Case, the Court stressed the duration of the treatment[14]. 2.1.1. Turkey The Turkish governments have alleged, at different times, that Turkish law had adequate measures to thwart torture, inhuman and degrading treatment[15]. As can be seen below, Turkish law also avoids defining torture and ill treatment[16]. 2.1.1.1. Turkish Constitutions Article 17 of the Constitution of Turkish Republic (1982) pronounces that “no one shall be subjected to torture or ill-treatment; no one shall be subjected to penalties or treatment incompatible with human dignity.[17]” Similar provisions were also regulated in the previous Constitution (1961). Actually, Article 14 of the Constitution of Turkish Republic (1961) maintained that “No individual shall be subjected to ill-treatment or torture. No punishment incompatible with human dignity shall be imposed.[18]” As being the first Turkish Republic Constitution, New York 1993) p.36 Mark W. Janis, Richards Kay and Anthony W. Bradley, European Human Rights Law Text and Materials (2nd edn Oxford University Press, New York 2000) p. 102 [9] Keir Starmer, European Human Rights Law ( Legal Action Group, London 1999) p. 91 [10] David J Harris and others, Law of the European Convention on Human Rights (2nd edn, Oxford University Press, 2009) p.72-73 [11] David Feldman (n4) p. 124 [12] Ibid [13] Ibid [14] Aisling Reidy, ‘A Guide to the Implementation of Article 3 of the European Convention on Human Rights’ accessed 09 September 2011. [15] Commission of the European Communities, ‘ 2009 Progress Report’ (Brussels, 2009) accessed 25 August 2011. [16] Criminal Codes, ‘Legislation Online’ accessed 13 September 2011. [17] Turkish Republic, ‘Constitution’ (As amended on May 22, 2004, Article 17) accessed 29 August 2011. [18] Sadik Balkan, Ahmet E. Uysal and Kemal H. Karpat, ‘Constitution of the Turkish Republic’ (Ankara, 1961) accessed 12 September 2011. [8]

116


Article 74 of the 1924 Constitution stipulated the prohibition of torture and ill-treatment[19]. Also Article 90 of the Constitution of Turkish Republic (1982), entitled “Ratification of International Treaties”, grants international agreements a superior position by stating that “international agreements duly put into effect bear the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. In the case of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.[20]” Correspondingly, the Convention can be directly invoked before Turkish tribunals[21]. 2.1.1.2. Turkish Criminal Codes Parallel to the Constitution (1982), the third section of the Turkish Criminal Code (2004- Law no 5237) regulates prohibition of torture and torment. Article 94 of the Turkish Criminal Code (2004) prohibits torture. Article states that “any public officer who causes severe bodily or mental pain, or loss of conscious or ability to act, or dishonors a person, is sentenced to imprisonment from three years to twelve years.[22]” Additionally, according to Article 95, in case of loss of bodily functions, the sentence will be increased[23]. Torture and ill-treatment were also prohibited in the scope of the article 243 and article 245 of the abolished Turkish Criminal Code (1926-Law no 765)[24]. However the maximum limit of the torture’s punishment was eight years[25]. Moreover, Article 135 of the Code of Criminal Procedure (Law no 5271) underlines that, even with the consent of the testifying person, any testimony which is made under the physical or emotional interventions such as ill-treatment, torture or forceful administration of medicine shall not be taken into account as evidence[26]. Article 354 of [19] Constitution of the Republic of Turkey (1924) accessed 14 September 2011. [20] Turkish Republic, ‘Constitution’ (n17) [21] United Nations, ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (Periodic Reports, 2001) accessed 10 September 2011. [22] Criminal Codes, ‘Legislation online’ accessed 13 September 2011. [23] Ibid. [24] Mark W. Janis, Richards Kay and Anthony W. Bradley (n8) p. 398 [25] United Nations, ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (Periodic Reports, 2001) accessed 10 September 2011. [26] Rhona K M Smith, Texts and Materials on International Human Rights( 2nd edn


117


Devran ÜNLÜ



the Turkish Criminal Code (2004) points out that producing falsified medical report by physicians, pharmacists or other health professionals is an offence. It is momentous because it is a caution against concealing signs of torture and ill-treatment[27]. Although Turkey has improved the prohibition of torture and ill-treatment conditions, it is generally accepted by the doctrine and non-governmental organizations that torture and ill-treatment is still endemic and widespread. In particular, members of the Kurdish Workers Party (PKK) continue to be subjected to torture and ill-treatment by the security officers[28]. Indeed, a circular published by the Interior Ministry in 2001 acknowledged that a serious number of violations of Article 3 of the Convention not only damaged Turkey’s reputation, but also caused high amounts of compensation paid to litigants[29]. This suggests that inclusion of these prohibitions at constitutional level is an essential element in ensuring the prevention of torture and ill-treatment. Yet, although all of the member states include these prohibitive norms in their jurisdiction, it seems that existence of such regulations is not enough to meet the obligations imposed by the Convention[30]. 2.1.2. The United Kingdom It is generally asserted that the United Kingdom has an unwritten constitution on the basis of several documents comprising the principles of constitutional practice. Indeed, the leading principles of constitutional practice are upheld in several documents such as Acts of Parliament, common law and constitutional treaties. For this reason practitioners prefer to use “uncodified” terms instead of “unwritten”[31]. As the French philosopher Montesquieu argued in the Spirit of Laws in 1748, England’s “uncodified” constitution has provided English law with a deep legal infrastructure[32]. The first instrument which subsumed essential human Routledge, London&New York 2010) p.112 [27] Hikmet Sami Turk, ‘Human Rights in Turkey’ (December 1998 - February 1999) Volume III - Number 4 J.Int’l Aff. < http://www.sam.gov.tr/perceptions/Volume3/Dec1998Feb1999/turk.PDF > accessed 13 September 2011. [28] Mark W. Janis, Richards Kay and Anthony W. Bradley (n8) p.398 Commission of the European Communities, ‘Commission Staff Working Document Turkey, 2010 Progress Report’ (Brussels, 9 November 2010) accessed 22 August 2011. [29] United Nations, ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (Periodic Reports, 2001) accessed 10 September 2011. [30] Aisling Reidy (n14) [31] House of Commons, ‘The Bill of Rights 1689’ accessed 14 September 2011. [32] Mark W. Janis, Richards Kay and Anthony W. Bradley (n8) p.5 citing Montesquieu, ‘l’esprit des lois’, (euvres completes 527 (editions de seuil 1964).

118


rights is accepted as the Magna Carta, whose first version was promulgated in 1215[33]. The second historic document which formulated the rights and obligations of the individuals against the Crown is hypothesised as the Bill of Rights 1689[34] [35]. The Bill of Rights 1689 is another important instrument to provide an impediment against monarchical authorities’ recurrence of abuses and to guarantee the fundamental human rights of the citizens[36]. Lastly, the Human Rights Act 1998 can be added to these basic constitutional documents[37]. Actually, the Human Rights Act 1998 maintains the prohibition of torture, inhuman and degrading treatment by incorporating the Convention[38]. Torture was outlawed as an instrument of investigation in the United Kingdom by the abolition of the Star Chamber in 1641. This prohibition was mostly implemented through the Treason Act 1708[39]. In spite of the prohibition, it is obvious from the historical records that torture was still implemented in the United Kingdom in the 16th and 17th centuries[40]. Still, in the recent English criminal law, torture and ill-treatment has already been regulated as a crime[41]. Section 134(1) of the Criminal Justice Act 1988 regulates torture as an offence by stating that “a person who commits the offence of torture shall be liable on conviction on indictment to imprisonment for life.[42]” Torture is defined as a crime in English Law wherever in the world it is committed and whatever the nationality of the offender[43]. Moreover, evidence which is obtained by torture and inhuman or degrading treatment is regarded as unreliable[44]. Similarly, Feldman highlights that English police has an obligation to investigate allegations of torture and inhuman or degrading treatment immediately[45]. More recently, the Terrorism Act 2000 came into force in 2001[46]. Further, terrorism legislation followed with [33] [34] [35] [36] [37] [38] [39] [40] [41] [42] [43] [44] [45] [46]

David Feldman (n4) p.70-71. The others are the Petition of Right (1627) and the Act of Settlement (1700). House of Commons, ‘The Bill of Rights 1689’ (n31) David Feldman (n4) p.70-71 House of Commons, ‘The Bill of Rights 1689’ (n31) Edwin Shorts and Claire de Than, Human Rights Law in the UK (Sweet & Maxwell, London 2001) p.21. Rangzieb Ahmed and Habib Ahmed v. The Queen [2011] EWCA Crim 184 accessed 14 September 2011. Omar Othman (aka Abu Qatada) v. Secretary of State for the Home Department, SC/15/2005, United Kingdom: Special Immigration Appeals Commission (SIAC) accessed 13 September 2011. D. Hoffman and J. Rowe, Human Rights in the UK an Introduction to the Human Rights Act 1998 (3rd edn Pearson Education Limited, Essex 2010) p.152. Criminal Justice Act 1988 c.33 s.134 < http://www.legislation.gov.uk/ukpga/1988/33/ section/134 > accessed 14 September 2011. Rangzieb Ahmed and Habib Ahmed v. The Queen [2011] EWCA Crim 184 accessed 14 September 2011. D. Hoffman and J. Rowe (n41) p.168. David Feldman (n4) p. 260. D. Hoffman and J. Rowe (n41) p. 371.


119


Devran ÜNLÜ



the Terrorism Act 2006 and the Counter-Terrorism Act 2008[47]. However, even though there tends to be a temptation to infringe Article 3 of the Convention, there is a wide consensus in the doctrine that these legislations do not include provisions which directly inhibit the practice of prohibition of torture and ill-treatment[48]. In A v Secretary of State for the Home Department Case[49], the House of Lords underlined that even in an emergency situation such as terrorism; courts should interpret and apply the existing law[50]. In this case, the reliability of the evidence obtained by torture was evaluated[51]. The Appeal Court tended to confirm the admissibility of this kind of evidences which were obtained by the torture of another state. Nonetheless, the House of Lords unanimously overruled that although the United Kingdom was not accepted as responsible for the torture, evidence obtained through torture as jus cogens must be assessed as unlawful, regardless of by whom and wherever the evidence had been procured. Therefore, evidence obtained through torture must not be used also against a third person[52]. 2.2. Freedom of Expression The doctrine evaluates freedom of expression as one of the crucial principles of democracy[53]. Actually, freedom of expression enables individuals to contribute to conflicts about social, political and moral issues. It is mostly suggested that the ideal method to reach the most prudential solution of debates is to allow the widest range of opinions to circulate[54]. According to Foster, freedom of expression ensures investigation of the best recipe of the debates[55]. It also reinforces the development of people intellectually and spiritually[56]. Additionally Janis claims that freedom of expression strengthens the safeguard of broadmindedness and pluralism[57]. Freedom of expression is classified as a conditional right. This means that it should be examined with other interests of the public. For this reason, in democratic systems, sensible limitations towards expressions have been established by the law[58]. In plain words, it cannot be implemented certainly in [47] [48] [49] [50] [51] [52]

[54] [55] [56] [57] [58]

Ibid p. 372. ibid p.373. A v Secretary of State for the Home Department [2005] 2 AC 68 (HL) Steve Foster (n1) p.9 D Hoffman and J Rowe (n41) p.168 Tobias Thienel , ‘The Admissibility of Evidence Obtained by Torture under International Law’ (2006) 17 EJIL 2 < http://www.ejil.org/pdfs/17/2/78.pdf> accessed 17 September 2011. Dirk Voorhoof, `Freedom Of Expression Under The European Human Rights System` (2010) accessed 22 August 2011. David Feldman (n4) p. 763-764 Steve Foster (n1) p.354 ibid p. 355 Mark W. Janis, Richards Kay and Anthony W. Bradley (n8) p. 280 M Spencer and J Spencer (n6) p.17-18

120


[53]

every situation such as obscenity, slander or libel[59]. The doctrine argues that there are several derivatives of freedom of expression[60]. For instance it is propounded that seeking, propagating or receiving information contributes to improvement of freedom of expression. Indeed, as well as expressing the ideas, freedom of expression involves the freedom to hold and receive opinions[61]. On the other aspect, it is deemed that media and press serve as “public watchdog” force which is vital to social consciousness. The press and media reinforces to effective process of democracy by revealing the performance and omissions of the government[62]. 2.2.1. Turkey 2.2.1.1. Turkish Constitutions Freedom of expression is regulated under the title of ‘Freedom of Expression and Dissemination of Thought’ on the article 26 of the Turkish Constitution (1982)[63]. Article 26 of the Turkish Constitution (1982) states that “everyone has the right to express and disseminate his thoughts and opinion by speech, in writing or in pictures or through other media, individually or collectively.[64]” In the second and third paragraphs of the article 26, the right is limited by maintaining that “the exercise of these freedoms may be restricted for the purposes of protecting national security, public order and public safety, the basic characteristics of the Republic and safeguarding the indivisible integrity of the State with its territory and nation, preventing crime, punishing offenders, withholding information duly classified as a state secret, protecting the reputation and rights and private and family life of others, or protecting professional secrets as prescribed by law, or ensuring the proper functioning of the judiciary. The formalities, conditions and procedures to be applied in exercising the right to expression and dissemination of thought shall be prescribed by law.[65]” Similar provisions were also regulated in the previous Constitution (1961). Actually, Article 20 of the Constitution of Turkish Republic (1961) maintained that “every individual is entitled to have his own opinions and to think freely. He is free to express his thoughts and opinions singly or collectively, through word of mouth, in writings through pictures or through other media. No individual shall be coerced to disclose his thoughts and opinions.[66]” [59] Ibid p. 72. [60] David Feldman (n4) p. 781. [61] John Wadham, Helen Mountfield and Anna Edmundson, Blackstone’s Guide to The Human Rights Act 1998 (5th edn Oxford University Press, Oxford, 2009) p. 169-170 [62] David J Harris and others (n10) p. 465 [63] Arkadiusz Stokłosa, ‘Human Rights in Turkey’ (2009) accessed 14 September 2011. [64] Turkish Republic, ‘Constitution’ (n17) [65] ibid [66] Sadik Balkan, Ahmet E. Uysal and Kemal H. Karpat, ‘Constitution of the Turkish Republic’ (Ankara, 1961) < http://www.anayasa.gen.tr/1961constitution-text.pdf > accessed 12


121


Devran ÜNLÜ



It is also noteworthy that Article 28 of the Constitution (1982) analyses freedom of media. The Article provides that the media is free and no censorship shall be applied[67]. In doctrine, it is critiqued that Turkish Constitution (1982) grants the executive and judicial organs power to restrain political expressions if the unity of the state is perceived to be threatened. For instance, for a long time, using the word “Kurdistan” was accepted as treason offense[68]. Especially, paragraph 5 of the preamble of the Constitution (1982)[69] has become the focal point of these criticisms[70]. 2.2.1.2. Other Acts Article 301 of the Turkish Penal Code (2004- Law no 5237) has been a basic resource in the practice of freedom of expression in Turkey[71]. Article 301 of the Turkish Criminal Code (Law no 5237), entitled ‘Insulting Turkishness, the Republic, the organs and institutions of the State’, enacted as “any person who publicly denigrates Turkishness, the Republic or the Grand National Assembly of Turkey shall be sentenced to 6 months to 3 years of imprisonment. Any person who publicly denigrates the Government of Republic of Turkey, the judicial institutions of the State, the military or security organizations shall be sentenced to 6 months to 2 years imprisonment. Where denigration of Turkishness is committed by a Turkish citizen in another country, the sentence shall be increased by one third. Expression of thoughts intended to criticize shall not constitute a crime.”[72] September 2011. [67] Paul J. Magnarella, ‘The Legal, Political and Cultural Structures of Human Rights Protections and Abuses in Turkey’ * (1994) 3 J. Int’l L. & Prac. 439 accessed 14 September 2011. [68] Nicole F. Watts, ‘Allies and Enemies: Pro-Kurdish Parties in Turkish Politics, 1990-94’ (1999) 31 Int. J. Middle East Stud. 631 accessed 14 September 2011. [69] Preamble regulates that “[N]o protection shall be afforded to thoughts or opinions contrary to Turkish national interests, the principle of the existence of Turkey as an indivisible entity with its state and territory, Turkish historical and moral values, or the nationalism, principles, reforms, and modernism of Ataturk, and that as required by the principle of secularism, there shall be no interference whatsoever of sacred religious feelings in state affairs and politics; …” [70] Paul J. Magnarella (n67). [71] Jahnisa Tate, `Turkey’s Article 301: A Legitimate Tool for Maintaining Order or a Threat To Freedom Of Expression?` (2008-2009) 37 Ga. J. Int’l & Comp. L. 181 accessed 18 July 2011. [72] Criminal Codes, ‘Legislation online’ accessed 13 September 2011.

122


Article 159 of the first Criminal Code of the Turkish Republic (Law no.765 – 1926), as amended in 1936, maintained that “those who publicly insult or ridicule the moral personality of Turkishness, the Republic, the Parliament, the Government, State Ministers, the military or security forces of the state, or the Judiciary will be punished with a penalty of no less than one year and no more than six years of maximum security imprisonment. If insulting Turkishness is carried out in a foreign country by a Turk the punishment given will be increased from one-third to one-half.”[73] In 2002, a democracy package was voted by Parliament which reduced the punishment for Article 159 of the Turkish Criminal Code (1926) from a maximum of six years to three years[74]. Furthermore, by this reform, the regulation below was added to Article 159 of the Turkish Criminal Code (1926); “written, verbal or pictorial expressions of opinion which are intended solely to criticize, without insulting and criminal intent, the bodies and establishments detailed in the first paragraph shall not incur punishment.”[75] Article 301 has been amended seven times up to now[76]. In 2005, Article 301 amended after one year later its enactment. The new version stated that “a person who explicitly insults being a Turk, the Republic or Turkish Grand National Assembly, shall be imposed a penalty of imprisonment for a term of six months to three years. A person who explicitly insults the Government of the Republic of Turkey, the judicial bodies of the State, the military or security organisation shall be imposed a penalty of imprisonment for a term of six months to two years.”[77] Still, the regulation included vague notions[78]. The Progress Report of the European Parliament (2005) stressed that in many cases, non-violent expressions of the intellectuals and journalists were punished in Turkey on the grounds of Article 301 of the Turkish Penal Code (2004)[79]. [73] U.S. English Foundation Research, Turkey Legislation < http://www.usefoundation.org/ view/878> accessed 15 September 2011. [74] Human Rights Watch, ‘Questions and Answers: Freedom of Expression and Language Rights in Turkey’ (2002) < http://www.hrw.org/legacy/press/2002/08/turkeyqa041902. htm > accessed 15 September 2011. [75] Official Gazette Law on Changes made to Various Laws (Law no. 4771 Adopted: 03.08.2002) accessed 19 August 2011. [76] World Law Direct, ‘Article 301 of Turkish Penal Code’ accessed 09 September 2011. [77] Christian Christensen, ‘Breaking the News: Concentration of Ownership, the Fall of Unions and Government Legislation in Turkey’ accessed 17 August 2011. [78] The Representative on Freedom of the Media Miklos Haraszti, ‘Review of the Draft Turkish Penal Code: Freedom of Media Concerns’ (2005)< http://www.osce.org/fom/14672> accessed 12 September 2011. [79] European Parliament, ‘Turkey Human Rights’ (Brussels, 10.03.2006) accessed 19 August 2011. [80] Commission of the European Communities, ‘Commission Staff Working Document Turkey, 2006 Progress Report’ accessed 21 August 2011. [81] Arkadiusz Stokłosa (n63) [82] Commission of the European Communities, ‘Commission Staff Working Document Turkey, 2008 Progress Report’ (Brussels, 5.11.2008) < http://ec.europa.eu/enlargement/ pdf/press_corner/key-documents/reports_nov_2008/turkey_progress_report_en.pdf > accessed 24 August 2011. [83] Today’s Zaman , ‘EU Welcomes 301 Amendment But Calls For More’ (01.05.2008) accessed 13 September 2011. [84] Commission of the European Communities, ‘Commission Staff Working Document Turkey, 2007 Progress Report’ accessed 20 August 2011. [85] Commission of the European Communities, ‘Commission Staff Working Document Turkey, 2009 Progress Report’ (Brussels, 2009) accessed 25 August 2011. [86] Bulent Algan, ‘The Brand New Version of Article 301 of Turkish Penal Code and the Future of Freedom of Expression Cases in Turkey’ (2009) 12 German Law Journal 2237 accessed 24 April 2011. [87] Ibid. [88] Ibid. [89] David Feldman (n4) p.802

124


in 2001 State’s media watchdog RTUK imposed closure orders against BBC and the Deutsche Welle on the basis of their separatist broadcasts, which were thought that they were threatening the national unity (Article 26 of the RTUK Law ).[90] Lastly, the ‘Regulation of Publications on the Internet and Suppression of Crimes Committed by means of Such Publications’ (Law No. 5651) was enacted in 2007 to protect children from harmful contents[91]. However, it has been applied to block adult’s legal websites on the grounds of Article 301[92]. After criticisms of international organizations, in 2008, Article 301 of the Turkish Criminal Code was undertaken again by the law no. 5759[93]. Firstly, the amendment substituted the phrase “Turkishness” with “Turkish nation.” Secondly, maximum level of the penalty decreased from three to two years of imprisonment. It is an important reform because according to Turkish Criminal Law, execution of an imprisonment for a sentence to two years or less can be suspended for first time offenders on the discretion of the judge[94]. Thirdly, permission of the Justice Ministry for prosecutors became a requirement to proceed with a prosecution. In other words, prosecution became contingent on the Ministry’s approval. Lastly, the amendment repealed the increased penalty of the offense because of committing the crime abroad[95]. There is a wide consensus today that the 2008 reform of the Article 301 has not clarified the vague elements of the article. Interpretation of the article by Turkish judges plays a vital role to guarantee freedom of expression in Turkey[96]. These proceedings indicate that the Turkish law is not adequate to guarantee freedom of expression[97]. [90] Human Rights Watch, ‘Questions and Answers: Freedom of Expression and Language Rights in Turkey’ (2002) < http://www.hrw.org/legacy/press/2002/08/turkeyqa041902. htm > accessed 15 September 2011. [91] Murat Erdal, Gulşah Ekiz, Selim Aksin, and Necmi Murat Güngör, ‘Restricted Access and Blocking Websites, Internet Regulations and Turkey Practices’ (2010) < http://www. irma-international.org/viewtitle/43502/ > accessed 15 September 2011. [92] Freedom House, ‘Freedom on the Net: A Global Assessment of Internet and Digital Media’ accessed 13 September 2011. [93] Human Rights Watch, ‘Turkey: Government Amendments Will Not Protect Free Speech - Article 301 Should Be Abolished’ (17 April 2008) accessed 15 September 2011. [94] Kaan Karcılıoğlu, Article 301 of the Turkish Criminal Code Amended accessed 18 September 2011. [95] ibid [96] Bulent Algan, ‘The Brand New Version of Article 301 of Turkish Penal Code and the Future of Freedom of Expression Cases in Turkey’ (2009) 12 German Law Journal 2237 accessed 24 July 2011. [97] Commission of the European Communities, ‘Commission Staff Working Document Turkey, 2010 Progress Report’ (Brussels, 9 November 2010) accessed 22 August 2011.


125


Devran ÜNLÜ



Holly Cartner (Europe and Central Asia director of Human Rights Watch) discusses that Article 301 should be repealed immediately[98]. Also, the European Union expects Turkey to abolish the article[99]. However, Turkish government has asserted that norms similar to Article 301 have prevailed in many European countries[100]. Indeed, if we compare Article 301 of the Turkish Criminal Code with European Countries’ Criminal Codes, despite tolerance of them, it can be clearly seen that many European Country’s criminal laws imply same offense. For instance, Articles 290 and 291 of the Italian Penal Code, Article 133 of the Polish Penal Code, Article 543 of Spain Penal Code, Sections 90a and 90b of the German Penal Code and Article 110/e of the Denmark Penal Code include very similar provisions to Article 301[101]. On the other hand, it should be taken into consideration that Turkish figures published by Justice Ministry of Turkey demonstrated that 1533 people tried under this article in 2006. Conversely, in other European Countries, such laws have been used very rarely[102]. 2.2.2. The United Kingdom As a common view, protection of freedom of expression law has been prudential in the UK[103]. One of the cardinal principles of freedom of expression in English Law designates that members of the House of Commons and the House of Lords have an inviolability of saying anything in the Parliament[104]. Article 9 of the Bill of Rights 1689 has also provided political immunity by stating that “the freedom of speech and debate or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”[105] The significance of the freedom of expression has been concluded by Lord Steyn in Turkington and Others v. Times Newspapers Limited judgment as follows: [98] Human Rights Watch, ‘Turkey: Government Amendments Will Not Protect Free Speech - Article 301 Should Be Abolished’ (17 April 2008) accessed 15 September 2011. [99] World Law Direct, ‘Article 301 of Turkish Penal Code’ accessed 09 September 2011. [100] Human Rights Watch, ‘Turkey: Government Amendments Will Not Protect Free Speech - Article 301 Should Be Abolished’ (17 April 2008) accessed 15 September 2011. [101] World Law Direct, ‘Article 301 of Turkish Penal Code’ accessed 09 September 2011. [102] Human Rights Watch, ‘Turkey: Government Amendments Will Not Protect Free Speech - Article 301 Should Be Abolished’ (17 April 2008) accessed 15 September 2011. [103] David Feldman (n4) p. 801 [104] Robert Blackburn, Andrew Kennon, Sir Michael Wheeler-Booth, J.A.G. Griffith, and Michael Ryle, Parliament: Functions, Practice and Procedures ( Sweet & Maxwell, London 1989)p. 86-90 [105] David Feldman (n4) p.274

126


“Freedom of expression is, of course, intrinsically important: it is value for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market.’ Thirdly, freedom of speech is the lifeblood of democracy.”[106] In the UK Law, the scope of ‘expression’ also concerns pictures and acts which aims to express an idea or to lodge information[107]. On the other hand, it should be remembered that during the Thatcher administration, government attempted to supress the expression of the dissenting opinions[108]. According to UK’s law, education authorities and teachers are not permitted to propagate any partisan political concept during the teaching of any topic in the schools[109]. However, teachers could answer the political questions in lessons such as humanities and social studies. Moreover, teachers can follow a political party outside working hours[110]. The European Court of Human Rights evaluates such restrictions on political activity of civil servants justifiable[111]. Actually, in several cases, promoting politically neutral civil service to secure impartiality of the public servants was also found coherent to the provisions of the Convention[112]. Blasphemy law of the UK has generated ground-breaking debates in freedom of expression law. First of all, the capital punishment for blasphemy, heresy, schism and atheism was repealed by the Ecclesiastical Jurisdiction Act 1677 (29 Car.2 c.9)[113]. For a long time, it has been accepted that statements outraging the emotions of ordinary Christians, such as vilifying Christ by describing him as a wanton person, could not enjoy protection of freedom of expression[114]. In R. v. Chief Metropolitan Stipendiary Magistrate, ex parte Choubhury Case[115], a group of Muslims complaint against Salman Rushdie with blasphemous libel that his book , the Satanic Verses, attacks on the Islamic Religion. However, the magistrate held that the blasphemy law recognises only Church of England’s [106] Richard Clayton and Hugh Tomlinson, Privacy and Freedom of Expression (Reprinted from The Law of Human Rights Oxford University Press, Oxford 2006) p.115 [107] Stevens v United Kingdom (1986) 46 DR 245 [108] David Feldman (n4) p.800 [109] David Feldman (n4) p.787 [110] David Feldman (n4)p. 788 [111] David Feldman (n4)p. 792 [112] David Feldman (n4) p. 792 citing Vogt v. Germany, Eur. Ct. HR, Series A, No. 323, Judgment of 26 September 1995, 21 EHRR 205 and Rekvenyi v. Hungary, Eur. Ct. HR, App. No. 25390/94, Judgment of 20 May 1999 [113] UK Parliament, ‘Blasphemy’ accessed 18 August 2011. [114] R. v. Lemon [1979] AC 617, [1979] 1 All ER 898 HL [115] R v Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1991] QB 429, [1991] 1 All ER 306, DC


127


Devran ÜNLÜ



beliefs. The Division Court espoused the magistrate’s interpretation by ruling that incorporating other beliefs into blasphemy law would mean extending the courts’ power[116]. It is also noteworthy that after the BBC broadcasted Jerry Springer: The Opera in 2005, the fundamentalist group Christian Voice started a criminal proceeding against the BBC on the basis of depicting Christ as a homosexual[117]. Yet, City of Westminster magistrates’ tribunal held that blasphemy offenses did not subsume broadcasts[118] and stage productions[119]. More recently, in 1997, although the European Court of Human Rights critiqued the ambiguity of the UK’s blasphemy law, the court ruled that it was not in contravention of the Convention[120]. After the Human Rights Act 1998 was legislated, it has become an obligation for the courts to interpret blasphemy law consistent with the Convention. Therefore, since the statute was enacted, no blasphemy trial has been prosecuted in the United Kingdom[121]. Subsequently, Article 79 of the Criminal Justice and Immigration Act 2008 repealed offence of blasphemy and blasphemous libel. However, Article 74 of this act generated offense of incitement to hatred on the grounds of sexual orientation[122]. Inciting hatred has been another controversial issue of the right to freedom of expression in the UK. In Hammond Case, equalizing homosexuality with turpitude was held to be an insulting behaviour, which is not in the scope of the freedom of expression[123]. Analogously, in Norwood Case, holding all Muslims responsible for the September 11 terrorist attacks was construed as incompatible with the purpose of freedom of expression[124]. In 2006, inciting racial hatred [116] David Feldman (n4) p. 912 [117] R Green v. City of Westminster Magistrates’ Court & (1) Jonathan Murray Thoday (2) Mark Thompson [2007] EWHC 2785 (Admin) accessed 16 September 2011. [118] Section 6 of the Broadcasting Act 1990 (1990 c.42) accessed 13 September 2011. [119] Section 2(4) of the Theatres Act 1968 (1968 c. 54) accessed 13 September 2011. [120] Wingrove v. The United Kingdom [1996] ECHR 17419/90 accessed 21 August 2011. [121] UK Parliament, ‘Blasphemy’ office.co.uk/pa/ ld200203/ldselect/ldrelof/95/9515.htm#n137> accessed 18 August 2011. [122] The Criminal Justice and Immigration Act 2008 (2008, c.4) accessed 12 September 2011. [123] Harry John Hammond v Department of Public Prosecutions [2004] EWHC 69 (Admin) accessed 17 September 2011. [124] Mark Anthony Norwood v Department of Public Prosecutions [2003] EWHC 1564 (Admin) accessed 17 September 2011.

128


is elaborated in the Racial and Religious Hatred Act 2006[125]. Furthermore, incitement of the racial hatred has been a crime under the section 17 of the Public Order Act 1996[126]. In addition, section 1 of the Terrorism Act 2006[127] constituted new offenses such as inciting terrorism which has raised potential debates about these norms’ compatibility with the Human Rights Act[128]. Freedom of press has been accepted as companion of the freedom of expression. Indeed, the introduction of the printing press to the UK by William Caxton in 1477 was a milestone for illumination of the people[129]. In British Steel Corporation v. Granada Television Ltd. Case[130], Lord Wilberforce maintained that “freedom of the press imports, generally, freedom to publish without pre-censorship, subject always to the laws relating to libel, official secrets, sedition and other recognised inhibitions’. This was an unduly narrow view, which reflected the failure of the UK to provide protection for freedom of expression.”[131] In parallel, in Derbyshire Country Council v. Times Newspaper Case[132], the tribunal held that organs of the government must tolerate democratic criticism without claims of defamation[133].

3. Comparison of the Statistics and Case law of the European Court of Human Rights The Convention was signed by Belgium, Denmark, France, Germany, Iceland, Ireland, Italy, Luxemburg, Netherlands, Norway, Turkey and the United Kingdom on 4 November 1950. The Convention entered into force on 3 September 1953[134]. In the preamble, it is highlighted that the Convention purposes to secure universal human rights regulated by the Universal Declaration of Human Rights[135]. Apparently, the Convention has three sections; section I guarantees the rights and freedoms, section II concludes the European Court of Human [125] D. Hoffman and J. Rowe (n41) p.307 [126] Ibid. [127] Terrorism Act 2006 (2006 c.11) accessed 14 September 2011. [128] D. Hoffman and J. Rowe (n41) p.372 [129] David Feldman (n4)p. 807 [130] British Steel Corporation v. Granada Television Ltd. Case [1981] 1 All ER 417 at 455 [131] David Feldman (n4)p. 835 [132] Derbyshire County Council v Times Newspapers Ltd and Others [1993] AC 534, [1993] 1 All ER 1011, [1993] 2 WLR 449, 91 LGR 179 House of Lords [133] David Feldman (n4) p. 837 [134] House of Lords, ‘Debate on 19 May: the European Convention on Human Rights accessed 17 September 2011. [135] George Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 26(4) Oxford J. of Leg. Studies 705 accessed 28 September 2011.


129


Devran ÜNLÜ



Rights and its operation, section III regulates various norms such as reservations, signature and ratification[136]. In the first section, the Convention and additional protocols includes 26 rights and freedoms[137]. It maintains the right to life, liberty and physical integrity, protection of correspondence and housing, freedom of conscience and religion, freedom of thought and publication, freedom of assembly and association. It also guarantees the right to marriage and founding a family, the right to respect private life, family and the right to respect the property and science[138]. In the second section, it is highlighted that the basic mission of the Court is to monitor whether signatory states obey the Convention obligations[139]. One of the core norms of the Convention is Article 1, which imposes duty that every member state should ensure the application of the Convention in domestic law[140]. On the other hand, Article 15 of the Convention grants the derogation from obligations clause on the condition of war or other emergency situations threatening the existence of the nation[141]. It is also noteworthy that Turkish citizens have been able to apply to Court with the allegation of their rights are invaded since 1987[142]. However, United Kingdom citizens have been enabled to take their cases to the Court since 1966[143]. 3.1. Prohibition of Torture, Inhuman and Degrading Treatment or Punishment Article 3 of the Convention, which is entitled ‘Prohibition of Torture, covers that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.”[144] As it can be seen above, Article 3 regulates three different types of prohibited treatment and punishment: torture, inhuman treatment or punishment and degrading treatment or punishment.[145] [146] The Court [136] Keir Starmer, ‘The European Convention on Human Rights and the Human Rights Act 1998’ accessed 17 September 2011. [137] Arkadiusz Stokłosa (n63) [138] Ibid. [139] Ibid. [140] Steve Foster (n1)p.20-21 [141] Peter Rowe, ‘Control over Armed Forces Exercised by the European Court of Human Rights in Vankovska’ (eds), Legal Framing of the Democratic Control of Armed Forces and the Security Sector: Norms and Realities (Geneva Centre for the Democratic Control of Armed Forces 2001) 57-67 [142] Arkadiusz Stokłosa (n63) [143] British Council, ‘Overview of Human Rights in the United Kingdom’ < www.britishcouncil.org/governance-hrukoverview.doc > accessed 17 September 2011. [144] European Court of Human Rights, ‘Convention for the Protection of Human Rights and Fundamental Freedoms’ accessed 17 September 2011. [145] Keir Starmer (n9) p.91 [146] For the disparity of the concepts: see Section 2.1.

130


overemphasized that such treatments could not be justified even while fighting terrorism[147]. In Dougoz v. Greece Case[148], the Court established that detaining individuals in overcrowded and unsanitary lock-ups breached Article 3[149]. Signatory states also have the liability to maintain adequate measures and remedies against private persons’ inhuman or degrading treatments[150]. Additionally, it must be noted that Article 15(2) eliminates derogation rights of the states from Article 3[151]. 3.1.1. Turkey 3.1.1.1. The Statistics In this part of the dissertation, the statistical data of the Turkey will be analysed to designate the seriousness of the human rights conditions in Turkey. Also, the data of the United Kingdom will be explicated to proof that the United Kingdom law can be an appropriate guide for Turkish Law. Indeed, although the United Kingdom has experienced emergency situations because of the IRA and Al-Qaeda terrorist attacks[152], it has not failed to protect citizens’ rights regulated in Article 3 and Article 10 of the Convention. The statistical data will be discussed under ‘1959-2010’, ‘1999-2007’, ‘2008’, ‘2009’ and ‘2010’ tittles in an effort to show that there is a stability in the violation records of the Turkey (instead of development) and the UK. It should also take into consideration that even though the United Kingdom has 3600 pending applications, Turkey has 18450 pending application[153]. 3.1.1.1.1. 1959-2010 According to recent statistics, which were conducted in 2011 by the European Court of Human Rights, between 1959 and 2010, Turkey exhibited the highest number of violations of the Convention among the signatory states (2245 violations)[154]. Additionally, the Court found 27 breaches of the prohibition [147] Steve Foster (n1) p.27-28 [148] Steve Foster, ‘Prison Conditions and Human Rights: the Development of Judicial Protection of Prisoners’ Rights’ (2009) < http://webjcli.ncl.ac.uk/2009/issue1/foster1. html> accessed 27 September 2011 citing Dougoz v Greece [2002] 34 EHRR 61 [149] Steve Foster (n1) p.213 [150] David Feldman (n4) p.262 [151] Michael O’Boyle, ‘Torture and Emergency Powers under the European Convention on Human Rights: Ireland v. The United Kingdom’ (1977) 71(4) AJIL 674 accessed 17 September 2011. [152] Steven Foster, The Judiciary Civil Liberties and Human Rights (Edinburgh University Press, Edinburgh 2006) p. 21-22 [153] European Court of Human Rights, ‘Pending Applications allocated to a Judicial Formation’ accessed 18 September 2011. [154] European Court of Human Rights ‘Violations by Article and by Country’ (31.12.2010) accessed 18 September


131


Devran ÜNLÜ



of torture during the same period, which was also the highest number (total number of violations of all member states were 69 and Turkey had 27 violations)[155]. The statistics also indicates that between 1959 and 2010, Turkey broke the prohibition of inhuman and degrading treatment provision 207 times, which means after Russia, Turkey provided the worst conditions of inhuman and degrading treatment[156]. 3.1.1.1.2. 1999-2007 Between the 1999 and 2007, Turkey exhibited the highest number of violations of the Convention among the signatory states (1395 violations)[157]. Furthermore, 17 breaches of the prohibition of torture were found, which was also the highest number (total number of violations of all member states were 34 and Turkey had 17 violations)[158]. The statistics also indicates that between 1999 and 2007, Turkey invaded the prohibition of inhuman and degrading treatment provision 114 times, which indicates that Turkey provided the worst conditions of inhuman and degrading treatment among the signatory states[159]. 3.1.1.1.3. 2008 In 2008, Turkey presented the highest number of violations of the Convention among the signatory states (257 violations)[160]. Moreover, the Court found 3 breaches of the prohibition of torture and 30 breaches of the prohibition of inhuman and degrading treatment. This means that in terms of Article 3, after the Russia, Turkey demonstrated the worst performance[161]. 3.1.1.1.4. 2009 In 2009, Turkey exhibited the highest number of violations of the Convention among the signatory states (341 violations)[162]. Furthermore, 2 breaches of the prohibition of torture were found[163]. The statistics also indicates that Turkey invaded the prohibition of inhuman and degrading treatment provision 28 2011. [155] Ibid. [156] Ibid. [157] European Court of Human Rights ‘Annual Report 2010’ (2011) accessed 18 September 2011. [158] Ibid. [159] Ibid. [160] European Court of Human Rights ‘Violations by Article and by Country’ (2009) accessed 17 September 2011. [161] Ibid. [162] European Court of Human Rights ‘Violations by Article and by Country’ (2010) accessed 16 September 2011. [163] Ibid.

132


times, which indicates that after Russia, Turkey provided the worst conditions of inhuman and degrading treatment[164]. 3.1.1.1.5. 2010 In 2010, Turkey presented the highest number of violations of the Convention among the signatory states (228 violations)[165]. Moreover, the Court found 3 breaches of the prohibition of torture and 32 breaches of the prohibition of inhuman and degrading treatment. This means that in terms of Article 3, after the Russia, Turkey demonstrated the worst performance[166]. 3.1.1.2. The Cases It is hypothesised by doctrine that violation of human rights in Turkey has been generally related with combatting terrorism[167]. Indeed, it must be considered that Kurdish Workers Party (PKK) has been classified as a terrorist organization[168] [169]. For instance, in Dulas and Asker v. Turkey Case[170], the Court commented that the destruction of a citizen’s house by soldiers, while the householders were watching, constituted inhuman treatment[171]. In Aksoy Case (1995), in spite of Turkey’s derogation and pleading organized terrorism, which threats life of the nation, the Court clarified that torture and inhuman or degrading treatments were unacceptable under any circumstances[172]. On a general perspective, although Article 3 of the Convention and Turkish [164] Ibid. [165] European Court of Human Rights ‘Violations by Article and by Country’ (2011) accessed 17 September 2011. [166] Ibid. [167] Joan Fitzpatrick, ‘Speaking Law to Power: The War against Terrorism and Human Rights’ (2003) EJIL 14(2) 241 accessed 28 August 2011. [168] Stephen R. Barnhart, International Terrorism and Political Violence: The Entity of TransNational Criminal Organizations and New Terrorisms in the Balkans-Middle East and Eastern Europe, and Its Effect on the Entire World! (Trafford Publishing, 2002) accessed 18 August 2011. [169] United States Department of State, Country Reports on Terrorism (2007) accessed 18 August 2011 [170] Dulas v Turkey Case [2001] ECHR 25801/94 accessed 19 September 2011. [171] Aisling Reidy, A Guide to the Implementation of Article 3 of the European Convention on Human Rights accessed 09 September 2011. [172] Peter Rowe, ‘Control over Armed Forces Exercised by the European Court of Human Rights in Vankovska’ (eds), Legal Framing of the Democratic Control of Armed Forces and the Security Sector: Norms and Realities (Geneva Centre for the Democratic Control of Armed Forces 2001) 57-67


133


Devran ÜNLÜ



law on torture seems to be analogous, the Court decisions indicate that Turkish law do not overlap with the Convention. For instance, in Tekin v Turkey Case, the court maintained that the deficient conditions of jail formed inhuman and degrading treatment[173]. Correlatively, in Aydin v Turkey Case[174], the applicant complained that although she reported to the public prosecutor that she was exposed to torture (Palestinian hanging) and, inter alia, rape, her accusations were not investigated properly[175]. Thereupon, the Court stated that rape was a grave and abhorrent form of inhuman treatment. Correspondingly, the Court added that the existence of violation of Article 3 was obvious even in the absence of torture[176]. Moreover, in Dikme and Akkoc Cases, incommunicado detention and threats of reprisal against the detainee’s relatives were interpreted as mental torture[177]. In Cyprus v Turkey Case[178], the Court ruled that Turkey failed to take satisfactory disciplinary measures to prevent inhuman treatment of its soldiers. Therefore, Turkey was found responsible for the rapes (inhuman treatment) and deprivation of medical treatment, food and water (inhuman treatment) committed by its security forces[179]. More recently, in Umit Gul v. Turkey Case, the medical reports drawn up that while the applicant was in custody, he subjected to physical and psychological inhuman treatment. Additionally, he was not allowed to sleep. So the court declared that there was a violation of Article 3 and accepted eleven thousand euros non-pecuniary compensation claim of the applicant[180]. Lastly, in Jabari v. Turkey Case[181], the Court judged that the deportation of a person to Iran invades Article 3 because there was a predictable possibility that the complainant would be subjected to inhuman or degrading punishment in the deported State[182]. [173] Tekin v. Turkey [1998] 52/1997/836/1042 accessed 30 July 2011. [174] Aydin v. Turkey [judgment of 25 September 1997] 25 EHRR 251, at p. 1103-9 accessed 12 August 2011. [175] Mark W. Janis, Richards Kay and Anthony W. Bradley (n8) p. 844 [176] John Wadham, Helen Mountfield and Anna Edmundson (n61) p. 124 [177] David J Harris, MO Boyle, EP Bates and CM Buckley (n10) p.74-74 [178] Susan Marks, ‘Civil Liberties at the Margin: The UK Derogation and the European Court of Human Rights’ (1995) 15(1) Oxford J. of Legal Studies 69 < http://www.jstor. org/stable/764581> accessed 19 September 2011 citing Cyprus v Turkey Case (1982) 4 EHRR 482 [179] John Wadham, Helen Mountfield and Anna Edmundson (n61) p.126 [180] Ümit Gül v. Turkey [2009] Application no. 7880/02 accessed 19 September 2011. [181] Jabari v. Turkey (App.40035/98), Judgment of 11 July 2000 accessed 12 October 2011. [182] Clare Ovey and Robin White, Jacobs and White, The European Convention on Human

134


3.1.2. The UK 3.1.2.1. The Statistics 3.1.2.1.1. 1959-2010 According to recent statistics, which were conducted by the European Court of Human Rights in 2011, between 1959 and 2010, The United Kingdom violated the Convention 443 times[183]. Additionally, the Court found no breach of the prohibition of torture during the same period[184]. Lastly, the statistics also indicates that between 1959 and 2010, United Kingdom broke the prohibition of inhuman and degrading treatment provision 15 times[185]. 3.1.2.1.2. 1999-2007 Between the 1999 and 2007, United Kingdom infringed the rights under the Convention 160 times[186]. Furthermore, no breach of the prohibition of torture was found[187]. The statistics also indicates that between 1999 and 2007, United Kingdom invaded the prohibition of inhuman and degrading treatment provision 6 times[188]. 3.1.2.1.3. 2008 In 2008, United Kingdom presented 27 violations of the Convention[189]. Moreover, the Court found no breach of the prohibition of torture and 1 breach of the prohibition of inhuman and degrading treatment[190]. 3.1.2.1.4. 2009 In 2009, United Kingdom demonstrated 14 violations of the Convention[191]. Furthermore, no breach of the prohibition of torture was found[192]. The statistics also indicates that United Kingdom did not invade the prohibition of inhuman and degrading treatment[193]. Rights (4th edn Oxford University Press, Oxford 2006) p.105 [183] European Court of Human Rights ‘Violations by Article and by Country’ (31.12.2010) accessed 18 September 2011. [184] Ibid. [185] Ibid. [186] European Court of Human Rights ‘Annual Report 2010’ (2011) accessed 18 September 2011. [187] Ibid. [188] Ibid. [189] European Court of Human Rights ‘Violations by Article and by Country’ (2009) accessed 17 September 2011. [190] Ibid. [191] European Court of Human Rights ‘Violations by Article and by Country’ (2010) accessed 16 September 2011. [192] Ibid. [193] Ibid.


135


Devran ÜNLÜ



3.1.2.1.5. 2010 In 2010, United Kingdom presented 7 violations. Moreover, the Court found no breach of the prohibition of torture and 2 breaches of the prohibition of inhuman and degrading treatment[194]. Consequently by these records, it can be understood that United Kingdom’s human rights law can be a guide for Turkish law system. 3.1.2.2. The Cases As discussed above, despite the fact that the Court has never found the UK in breach of prohibition of torture, the government has infringed several times the prohibition of inhuman or degrading treatment or punishment under Article 3[195]. It has been hypothesised by the doctrine that the United Kingdom may be in contradictory attitudes which has a nexus with the concern of terrorism[196]. 3.1.2.2.1. Ireland v. United Kingdom[197] On 9 August 1971, 342 Irish, who were suspected of terrorist offences, were detained by UK’s police department[198]. The Irish newspapers published that whilst in custody, the detainees had been subjected to inhuman methods of interrogation to obtain confession about their affiliation with the IRA, which exacerbated the retaliation actions of the IRA, such as Birmingham pub bombings in 1974[199]. To investigate these allegations, a Commission of Enquiry, which was chaired by British Ombudsman Sir Edmund Compton, was set up[200]. In the report of the Commission, it was declared that this illicit questioning, which was also known as the five techniques; consisted of: (a) Wall-standing: the arrestees were forced to standing on their toes with the weight of their bodies for hours against the cell wall. (b) Hooding: putting a hood over the detainee’s head throughout the imprisonment except during interrogation. [194] Ibid. [195] Steve Foster (n1) p.27 [196] Claire de Than and Edwin Shorts, International Criminal Law and Human Rights (Sweet & Maxwell Limited, London 2003) p. 225 [197] Ireland v United Kingdom (1978) 2 EHRR 25 accessed 20 September 2011. [198] Claire de Than and Edwin Shorts, International Criminal Law and Human Rights (Sweet & Maxwell Limited, London 2003) p. 226-227 [199] Peter Rowe, ‘Control over Armed Forces Exercised by the European Court of Human Rights in Vankovska’ (eds), Legal Framing of the Democratic Control of Armed Forces and the Security Sector: Norms and Realities (Geneva Centre for the Democratic Control of Armed Forces 2001) 57-67 [200] Michael O’Boyle, ‘Torture and Emergency Powers under the European Convention on Human Rights: Ireland v. The United Kingdom’ (1977) 71(4) AJIL 674 accessed 17 September 2011.

136


(c) Subjection to noise: holding the arrestees in a room where they subjected to continuous loud and hissing noise to isolate them from communication. (d) Deprivation of sleep: The arrestees were deprived of sleep. (e) Deprivation of food and drink: depriving the detainees of sufficient nourishment[201]. The Commission especially emphasised that these techniques constituted inhuman treatment, but not brutality[202]. Additionally the report underlined that there was also implementation of torture[203]. The Convention maintains two kinds of application method: first, an interstate application (Article 24) brought by a signatory country against another on the grounds of a violations of commitments under the Convention and second, an application brought by an individual (Article 25) who alleges to be a victim of a violation[204]. So far, five interstate cases have been decided by the Court; Austria v. Italy[205], Denmark v. Greece[206], Greece v. United Kingdom[207], Ireland v. United Kingdom and Cyprus v. Turkey[208]. The Irish Government applied to the Court under Article 24 and Article 3 against the methods operated by the UK’s police officers[209]. The Court ruled that the practice of these techniques caused intense physical and psychological suffering, so they constituted inhuman and degrading treatment, but not torture[210]. 3.1.2.2.2. Other Cases Soering v. United Kingdom Case[211] has been a landmark verdict of the Court in terms of the responsibility of a signatory state for the violation of another state. At the outset, Jens Soering was decided to extradite by English Courts [201] Claire de Than and Edwin Shorts, International Criminal Law and Human Rights (Sweet & Maxwell Limited, London 2003) p. 226-227 [202] Michael O’Boyle, ‘Torture and Emergency Powers under the European Convention on Human Rights: Ireland v. The United Kingdom’ (1977) 71(4) AJIL 674 accessed 17 September 2011. [203] Claire de Than and Edwin Shorts, International Criminal Law and Human Rights (Sweet & Maxwell Limited, London 2003) p.227 [204] Michael O’Boyle, ‘Torture and Emergency Powers under the European Convention on Human Rights: Ireland v. The United Kingdom’ (1977) 71(4) AJIL 674 accessed 17 September 2011. [205] Austria v. Italy (1961) Application No. 788/60, 4 YEARBOOK 116 [206] Denmark v. Greece (1968) Application Nos. 3321, 3322, 3323, 3344/ 67, 11(2) YEARBOOK 690, 731 [207] Greece v. United Kingdom (1959) Application Nos. 176/56 and 299/57, 2 YEARBOOK 182, 186 [208] Cyprus v. Turkey (1975) Applications Nos. 5310/71, and 5451/72, 18 YEARBOOK 82 [209] Steve Foster (n1) p.27 [210] John Wadham, Helen Mountfield and Anna Edmundson (n61) p. 125 -126 [211] Soering v United Kingdom (1989) 11 EHRR 439 Appl. no. 14038/88 accessed 21 September 2011.


137


Devran ÜNLÜ



to USA under the Extradition Treaty (1972)[212]. At the next phase, applicant complained to the Court on the grounds that extradition request for an offence carrying the capital punishment was in contrast with Article 3[213]. The Court stated that notwithstanding high risk, the state that deported or extradited the victim was responsible for the persecution of the receiver state (violation of Article 3) because of not considering the results of the extradition[214]. In also Chahal v. United Kingdom Case[215], the domestic court connoted to deport Mr. Chahal on the grounds of being supporter of a radical Sikh separatist organization[216]. At the next session of the proceedings, the Indian Government guaranteed that he would not be subjected to torture or ill-treatment. Hence, although the risk of ill-treatment was imminent, the domestic court decided to refuse the asylum request and deport him[217]. Then Mr. Chahal applied to the European Court against the United Kingdom for subjecting to torture by the Indian Police officers[218]. The European Court stressed that there were obvious ‘rogue’ elements in the police department of Punjab Province[219]. Consequently, the Court, by twelve votes to seven, found the breach of the Article 3 on the basis that the United Kingdom could estimate that the complainant would face a real risk of torture or inhuman treatment where he extradited or deported[220]. In Keenan v. United Kingdom Case[221], although it was known that the prisoner had a mental illness (schizophrenia), it was diagnosed that effective medical care was not provided[222]. Additionally, he interned in segregation

[212] Ibid. [213] D. Hoffman and J. Rowe (n41) p.152 [214] Joachim Herrmann, ‘Implementing the Prohibition of Torture on Three Levels: United Nations –Council of Europe – Germany’ accessed 21 September 2011. [215] Chahal v United Kingdom [1997] 23 EHRR 413, Appl. No: 22414/93 accessed 20 September 2011. [216] D. Hoffman and J. Rowe (n41) p.151-152 [217] Joachim Herrmann, ‘Implementing the Prohibition of Torture on Three Levels: United Nations –Council of Europe – Germany’ accessed 21 September 2011. [218] European Court of Human Rights, ‘Chahal v. The United Kingdom’ (1997) 9 (1) Int J Refugee Law 86-121. accessed 21 September 2011. [219] Clare Ovey and Robin White, Jacobs and White, The European Convention on Human Rights (4th edn Oxford University Press, Oxford 2006) P.104-105 [220] Steve Foster (n1) p.27 [221] Keenan v United Kingdom [2001] 33 EHRR 38 Appl. no. 27229/95 accessed 21 September 2011. [222] David Feldman (n4) p.125

138


without adequate monitoring[223]. By the agency of this negligence, the prisoner committed suicide in custody by hanging himself. The court held that because of the lack of medical care and monitoring, the government could not thwart the suicide, which constituted the violation of the Article 3 by reason of neglect[224]. Corporal punishment has formed another argument of human rights in the UK. In Costello-Roberts Case[225], corporal punishment was used as a disciplinary measure in a private school against a seven year-old student. The headmaster of the school admitted that the student received three whacks of the slipper on his clothed buttocks for infringing school rules[226]. The Court held that corporal punishment could be accepted permissible in schools on condition that it did not reach the level of inhuman or degrading punishment[227]. In another ground-breaking case in the United Kingdom, a child was beaten severely by his stepfather[228]. Although a prosecution was started against him, the domestic court regarded this action in the limits of parental chastisement. The boy and his biological father started a case before the European Court, pronouncing that the UK’s law failed to provide appropriate norms against prohibition of inhuman treatment. The Court ruled in favour of the applicant and pointed out that States must provide vigorous measures within their jurisdiction to prevent inhuman treatments[229]. Analogously, in Z. v. United Kingdom Case, the Court found violation of Article 3 in consideration that the social services failed to provide protection of the complainant against abuses of her family[230].

[223] UK Parliament, ‘Human Rights Standards and Deaths in Custody’ accessed 21 September 2011. [224] Steve Foster (n1) p.213 [225] Costello-Roberts v. The United Kingdom [1993] Appl. No: 13134/87 accessed 21 September 2011. [226] D Hoffman and J Rowe (n41)) p.156 [227] House of Lords, ‘Judgments - Regina v. Secretary of State for Education and Employment and others (Respondents) ex parte Williamson (Appellant) and others’ (Session 20012002) accessed 21 September 2011. [228] A. v. United Kingdom [1998] Appl. No: 25599/94 accessed 21 September 2011. [229] Aisling Reidy, ‘The Prohibition of Torture’ (2003) accessed 21 September 2011. [230] Steve Foster (n1) p.199.


139


Devran ÜNLÜ



3.2. Freedom of Expression The first paragraph of Article 10 of the Convention provides that “everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.” In the second paragraph, it is stated that “the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”[231] There is wide consensus that Article 10 has served in the maintenance of tolerance and pluralism. Actually, permitting the ideas to circulate enables individuals to contribute to social or moral disputes[232]. Furthermore, freedom of expression has been one of the most influential tools of seeking the truth for promoting democracy[233]. It also serves individuals to improve them intellectually, morally and spiritually[234]. Therefore the Convention tends to extend the scope of freedom of expression[235]. For instance, the Convention has adopted access to information as a part of freedom of expression on the basis of providing accountability of the governments[236]. As a matter of fact, Article 10 aims to preserve all forms of expression[237]. However, academic expression has a privileged position in the case law of the Court[238]. Although in practice, the Court grants more vigorous protection to academic, political (such as Bowman v. United Kingdom Case: distribution of leaflets by abortion campaigner prior to general election[239]) and journalistic expression (such as Goodwin v. [231] Council of Europe, ‘Convention for the Protection of Human Rights and Fundamental Freedoms’ (2010) accessed 29 July 2011. [232] David Feldman (n4) p. 763-764 [233] Steve Foster (n1) p.354 [234] Ibid p.355 [235] Susan Marks, ‘Civil Liberties at the Margin: The UK Derogation and the European Court of Human Rights’ (1995) 15(1) Oxford J. of Legal Studies 69 < http://www.jstor.org/ stable/764581> accessed 19 September 2011. [236] David Feldman (n4) p. 781 [237] Keir Starmer, European Human Rights ( Legal Action Group, London 1999) p.607 citing (1988) 13 EHRR 212 [238] Michael O’Boyle, ‘Torture and Emergency Powers under the European Convention on Human Rights: Ireland v. The United Kingdom’ (1977) 71(4) AJIL 674 accessed 17 September 2011. [239] Bowman v. the United Kingdom [1998] 26 EHRR 1 (141/1996/760/961) accessed 23 September 2011. [240] Goodwin v. United Kingdom [1996] 22 EHRR 123 (17488/90) accessed 24 September 2011. [241] Wingrove v United Kingdom [1996] 24 EHRR 1 (17419/90) accessed 23 September 2011. [242] Colman v United Kingdom [1993] 18 EHRR 119 (16632/90) accessed 17 September 2011 43. Today’s Zaman, ‘EU Welcomes 301 Amendment But Calls For More’ (01.05.2008) accessed 13 September 2011 44. Turk Hikmet Sami, ‘Human Rights in Turkey’ (December 1998–February 1999) Volume III–Number 4 J.Int’l Aff. accessed 13 September 2011 45. UK Parliament, ‘Blasphemy’ accessed 18 August 2011

174


46. UK Parliament, ‘Human Rights Standards and Deaths in Custody’ accessed 21 September 2011 47. UK Parliament, ‘Select Committee on Religious Offences in England and Wales’ ( 2003, First Report) accessed 30 September 2011 48. U.S. English Foundation Research, ‘Turkey Legislation’ accessed 15 September 2011 49. Voorhoof Dirk, `Freedom Of Expression Under The European Human Rights System` ( 2010) accessed 22 August 2011 50. Watts Nicole F., ‘Allies and Enemies: Pro-Kurdish Parties in Turkish Politics, 1990-94’ (1999) 31 Int. J. Middle East Stud. 631 accessed 14 September 2011


175


Devran ÜNLÜ

Articles

Constitutional Complaint And Individual Complaint In Turkey Nazlı Can ÜLVAN*

* Attorney at law.

Nazlı Can ÜLVAN

I

n modern day states of law, giving people right to litigate in both general trial and administrative court provides the enlargement of the sphere of the judicial participation. Institution of constitiutional complaint, serves to this participation in the aspect of costitutional juristiction at important amounts. According to the article 90/1 of German Constitutional Court Law “Any person who claims that one of his basic rights or one of his rights under Articles (4), 33, 3 8, 101, 103 and 104 of the Basic Law has been violated by public authority may lodge a constitutional complaint with the Federal Constitutional Court.” The purpose of the constitutional complaint is not only protect rights of status navigatus but also rights of status positivus. The first aim of this institution is to protect and improve fundamental rights and freedoms via constitutional juristiction. On the other hand constitutional complaint also has objective functions like keeping the community legal order and developing the constitutional law. Consitional complaint is a legal remedy that intended to resolve violation of fundamental rights. Because of that, with that institution, legislation or paying compensation can not be taken into consideration.

Individual Complaint To make an individual complaint, complainant must asset that his rights has been violated by a public force. With the statement of public force legislative, executive and juristiction organs must be understood. Direct constitutional complaint against administrative actions can be made only exceptional situations of exhaustion of legal remedies condition. As a rule, only verdict of the court decision can be subject to the costitutional complaint. But if justification of the decision is creating an independent reason for complaint, complainant can also comlaint against that part. Again, as a rule, final desicions can be subject to the constitutional complaint. There must be an important and worth to protect value to become İnterim decisions subject to the constitutional complaint. In constitutional complaint lawsuits, there are no palintiff and defendant parties. İn constitutional complaint, respondent is neither public body which is the owner of the subject matter nor government. There is only demand for removal of the treatment/action/negligence. Although it is not technically true, the term plaintiff can be used for the person who applies constitutional court. If it is appropriate, fundamental rights are also efective for private law legal entities. Because of being carrier of the public force, public legal entities do not have capacity to become party in constitutional complaint as a rule. But this rule has exceptions arise from both some constitutional rules and qualifications of public legal entities.


181

Constitutional Complaint And Individual Complaint In Turkey

One must have legal interest to apply costitutional complaint. It is not enough to have right to litigation to sue. Moreover plaintiff must have judicial interest to sue. That is to say, right to litigation is limited by the judicial interest. Judicial interest must be personal, direct and up to date. To apply constitutional complaint, legal remedies must be exhausted. If it is possible for complainant to remove negligence which is occured from public force action in domestic court and he takes a valid legal means back or does not use it or aplication become invalid because of formal reasons, legal remedies are not exhausted. As a result of being last and extraordinary legal remedy to prevent violation of fundamental rights, condition of exhaustion of legal remedies is a natural consequence. According to article 93/I of constitutional court code , application of constitutional complaint must be done and justificate in one month. If it is done ex officio according to the relevant procedural law rule, duration starts from the date of notification or pronouncement. In other conditions, it starts with decleration of the decision or if decleration can not made, it stats form notification to the compainant in whichever way. According to the 93/III if constitutional lawsuit is against an enaction or a public force proceeding which there is no legal remedy against it, constitutional complaint application can be made in a year after inurement of code or public force proceeding happen. According to the article 95/I if constitutional complaint is accepted, which constitiutional rule is violated by which action or negligence should be indicated in the decision. When a constitutional complaint against a court decision is accepted, constitutional court reverses the judgement and sends the case to the competent court. When a constitutional complaint against a code is accepted, this code become void. The complainant may lodge the complaint himself. Should he require representation, this may in principle only be carried out by an attorney registered with a German court or by a lecturer of law at a German institution of higher education (Article 22 (1), sentence 1, BVerfGG). Other persons may only be permitted by the Federal Constitutional Court to act as counsel if it deems this necessary in exceptional cases (Article 22 (1), sentence 4, BVerfGG). The powers of attorney must be granted in writing and must relate expressly to the proceedings in hand (Article 22 (2) BVerfGG) The constitutional complaint must be lodged and reasons given in writing. These reasons must, at the very least, contain the following information (Articles 23 (1), sentence 2, 92 BVerfGG):

182


Nazlı Can ÜLVAN

1. The sovereign act (court decision, administrative act, law) against which the complaint is directed must be precisely described (in the case of court decisions and administrative acts the date, reference and day of proclamation or receipt must be given). 2. The basic right or similar right allegedly violated by the sovereign act under dispute must be named or at least described in terms of its legal content. 3. It must be stated in what individual areas the violation of the basic right is alleged. To this end the disputed court decisions, notices etc. must be attached as originals, certified copies or photocopies; at the very least their content must be definable from the content of the complaint. Proceedings before the Federal Constitutional Court are free of change. The Court may, however, charge the complainant a fee of up to 5,000 Deutsche Mark if the lodging of the complaint represents an abuse (Article 34 (2) BVerfGG).

Individual Complaint in Turkey The amendment of the Constitution from May 7, 2010 (No. 5982) has been introduced the constitutional complaint remedy which has to be concretised by the law on the Establishment and Rules of Procedure of the Constitutional Court. Constitutional complaint is one of the most effective remedies to protect the fundamental rights and freedoms. It constitutes a new challenge for the Turkish constitutional review system. Individual application was introduced into the Turkish legal system by the 2010 constitutional amendments and 23 September 2012 was determined as the first day of receiving applications. Article 148 of the Constitution stipulates that anyone who thinks that his/her constitutional rights set forth in the European Convention on Human Rights have been infringed by a public authority will have a right to apply to the Constitutional Court after exhausting other administrative and judicial remedies. The Law on Establishment and Rules of Procedures of the Constitutional Court (Law No: 6216), has been enacted and entered into the force. There are seven articles relating to the individual application in this Law. Jurisdiction of the Court ratione materia comprises fundamental rights which are regulated by both the Constitution and the European Convention on Human Rights. But some acts of public power exempted from the scope of individual application. Basically, direct individual applications against legislative acts and regulatory administrative acts are prohibited. The Constitutional Court judgments and the acts excluded from judicial review by the Constitution are also excluded from the scope of the individual application. The jurisdiction of the Court ratione personae comprises both real and legal persons. But, public legal persons cannot lodge individual applications while,


183


private-law legal persons may apply solely on the ground that their rights concerning legal personality have been violated. Foreigners may not petition individual applications concerning rights exclusive to Turkish citizens. According to the Law, individual applications are subject to payment of a fee. The amount of fee is determined by the Law as 172,50 Turkish Liras (approximately 100 US Dollars). Individual applications must be filed within thirty days after the notification of the final proceeding which exhausts legal remedies. Admissibility examination of individual applications is to be made by commissions. The structure of the commissions has not been regulated by the Law and it was left to the Rules of Procedure. A commission may decide that an application is inadmissible unanimously. The aim of the admissibility examination is to control whether the application is within the jurisdiction of the Court. But the Law empowered the Court to eliminate some unimportant applications. The Court may decide an application inadmissible if it is manifestly ill-founded or if it does not bear any significance for the interpretation or application of the Constitution or for the determination of the scope and limits of fundamental rights and the applicant did not suffer any significant damage. The rationale behind the recognition of these inadmissibility reasons is to protect the Court from excessive workload and to provide more time to deal with serious fundamental rights allegations. If an application is found admissible, it is examined by a section on the merits. The sections convene with four members under the chairmanship of a deputy president. Principally the examination is to be made on the file, but section may decide to hold a hearing if it deems necessary to do so. In order to prevent any conflict between the Constitutional Court and other courts both the Constitution and the Law provided that examination of the sections on the merits is limited to determine whether a fundamental right has been violated and they cannot examine the matters which will be dealt with at the appeal or cassation stages. This provision should be interpreted by the Constitutional Court in a manner that its role in examination of individual application consists solely of determining whether the applicant’s fundamental rights have been violated. But it should refrain from further commenting on the actions of the judicial bodies, the facts of the case and the proper interpretation of laws by other courts. At the end of an examination, the Constitutional Court decides whether the fundamental rights of the applicant have been violated or not. If it finds violation, it may also decide what should be done in order to redress the violation and its consequences. In case the violation has been caused by a court decision, the Constitutional Court sends the file to the competent court for retrial in order to restore the fundamental rights of the applicant. But if the Constitutional Court deems

184


Nazlı Can ÜLVAN

that there will be no use of a re-trial, then it may decide some compensation for the applicant or it may ask the applicant to file a case before the competent first-instance court to seek compensation for the damages s/he suffered. Finally, the Court may impose a fine of up to 2000 Turkish Liras in addition to the costs arising from the proceedings on the applicants who clearly abused the right of individual application. In Turkey, either court of appeal or council of state has a hesistation about constitutional courts’s power to reverse their decisions. For this reason intitution of constitional complaint is stirctly rejeted by this high courts. Constitutional complaint can not be affective untill this problem is solved. Besides that, legislator must revise his view about function and aim of the constitutional complaint for success of the intitution. Just an understanding of protecting fundemanetal rights and freedoms depends on European Court of Human Rights is not enuogh to built an effective protection system in domestic law in long term. Corporation between every instance of judicial body is needed for consitiutional court to use constitutional complaint as a effecitve appeal means.


185


Resources

Ece GÖZTEPE, An Assessment Of The Right To Constitutional Complaint In Turkey In Light Of The Law No. 6216, Union of Bar Associations Review, July-August 2011, Year:24, Issue:95 Ece Göztepe, Anayasa Şikayeti, Ankara Üniversitesi Hukuk Fakültesi Yayınları, No: 530, Ankara, 1998

186


Is Conditionality For Loans From International Financial Institutions A Legitimate Way To Influence National Policies? Devran ÜNLÜ*

* Treasury lawyer.

Devran ÜNLÜ

INTRODUCTION

T

he globalization of the international financial system continues rapidly. In the second part of the twentieth century, a new era started in the development of intergovernmental fiscal organizations with the foundation of the International Monetary Fund (hereinafter IMF) and the World Bank (hereinafter WB). Today, these international financial institutions (hereinafter IFI) play an indispensable role in the new globalized financial order. Day by day, the growing influence of the IFI has increased the number of disputes on this issue. One of the controversial issues is the conditionality policies of the IFI, and their relationship with democracy. Although it is alleged that conditionality is beneficial for the improvement of democracy, it seems that it is inimical to development of democracy. This essay will investigate whether these conditionality policies are legitimate ways to affect national policies.


189

Is Conditionality For Loans From International Financial Institutions A Legitimate Way To Influence National Policies?

BRETTON WOODS INSTITUTIONS’ CONDITIONALITY POLICIES IMF, which is one of the main intergovernmental economic organizations, was founded in Bretton Woods in December 1944 to conduct an exchange rates system, and thereby reinforce a more stabilized world order.[1] In the 1970s, the exchange rates system was abandoned.[2] Nowadays, the modern role of the IMF is to provide long-term loans for developing countries which have balance of payments problems.[3] The fundamental instruments of the IMF and WB to affect national policies are conditionality, which means the debtor country has to meet certain provisions and criteria.[4] In other words, the IMF and WB provide assistance to the debtor countries as long as their policies are implemented.[5] On the other hand, conditionality provides protection to the IFI that the credit is being utilized for the agreed intention and the debtor will be able to acquit its debt.[6] From the Fund’s perspective, if creditor countries adhere to its program, they will repay IMF loans.[7] Yet, after Argentina, Russia and Asia financial crises in the 1990’s, the IMF was charged with compelling useless policies,[8] and the assertion that conditionality serves to secure repayment is rebutted after fiascos of IMF policies.[9] It is also noteworthy that the World Bank stipulates fewer conditions than the IMF.[10] The essential aims of the IMF are regulated in Article 1 of the Articles of

[1]

Daniel Kalderimis, ‘IMF Conditionality as Investment Regulation: A Theoretical Analysis’ (Social & Legal Studies 2004 ) accessed 28 February 2011. [2] Daniel Kalderimis (n1) [3] Daniel Kalderimis (n1) [4] International Monetary Fund, ‘IMF Conditionality’ (September 27, 2010) accessed 07 March 2011 [5] Masood Ahmed, Timothy Lane and Marianne Schulze-Ghattas,’Refocusing IMF Conditionality’ (Finance & Development 38 no4 D 2001) accessed 01 March 2011 [6] ibid [7] Joseph J. Norton and Mads Andenas, International Monetary and Financial Law Upon Entering The New Millennium a Tribute to Sir Joseph And Ruth Gold (Sir Joseph Gold Memorial Series, British Institute of International and Comparative Law, London 2002) page 330 [8] Daniel Kalderimis (n1) (Stiglitz,2002; Mussa,2002; Sachs,1997; Killick,1997; Rodrik, 1990 at bibliography) [9] Ariel Buira, An Analysis Of IMF Conditionality (Oxford University, Department Of Economics Discussion, 104-2002) < http://www.economics.ox.ac.uk/Research/Wp/Pdf/ Paper104.Pdf > Accessed 11 March 2011 [10] Axel Dreher, ‘A public choice perspective of IMF and World Bank lending and Conditionality’ (2003) accessed 03 March 2011

190


Devran ÜNLÜ

Agreement of IMF (1945).[11] However, the ideal function of IMF is a polemical topic. These main divergences are focused on the concept of ‘adequate safeguards’ in Article I(v) and Article V(3)(a).[12] This concept grants IMF the right to demand conditions for the utilization of the IMF credit.[13] Indeed, the conditions established by IMF ensure that the debtor members implement necessary measures to solve their balance of payments problem that will enable the credit to be repaid.[14] Still, since the 1980s, IMF has been subjected to criticism for extreme interfering in the economic sovereignty of the countries.[15] Additionally, it has been stated that politically powerless countries have to accept more severe conditions.[16] Another general argument has been that the authority of IMF to designate the scope of the conditions is too broad.[17] Moreover, it is suggested that the conditionality has never been embodied overtly by the Articles of the Fund.[18] Despite the fact that conditionality is not regulated by Articles of Agreement, it has become a significant institutional policy and was rendered formal in 1968[19] and then applied in 1979.[20] This situation has enabled IMF to modify conditionality with the changes of the world economy.[21] Finally, some writers alleged that the policies of IMF and World Bank are directed by their chief members, especially by the USA government.[22] Stiglitz argues that Fund’s loan policy was manipulated by the United States’ domination.[23] [11] International Monetary Fund, ‘Articles of Agreement of the IMF(1945)’ accessed 08 March 2011 [12] Daniel Kalderimis (n1) [13] Daniel Kalderimis (n1) [14] International Monetary Fund, ‘Conditionality in Fund-Supported Programs’ (20 February 2001) accessed 04 March 2011 [15] Daniel Kalderimis (n1) (Taylor,1987; Gerster,1982; Williamson,1983) [16] Axel Dreher, ‘IMF conditionality: Theory and Evidence’ (2009) accessed 07 March 2011 [17] Jean Pierre Allegret and Philippe Dulbecco, ‘The Institutional Failures Of International Monetary Fund Conditionality’ (Rev Int Org (2007) 2:309–327) accessed 11March 2011 [18] Deepak Nayyar, Governing Globalization Issues and Institutions (Oxford University Press, 2002) page 220 Ariel Buira (n9) [19] Jacqueline Best, Legitimacy Dilemmas: The IMF’s Pursuit Of Country Ownership (Third World Quarterly, Vol. 28, No. 3, 2007, Pp 469 – 488) accessed 12 March 2011 [20] Jacqueline Best (n19) [21] Daniel Kalderimis (n1) .(Gold,1984: 439; Lowenfeld,2002: 545 at bibliography) [22] Axel Dreher (n10) (Goldstein,2000: 67; Frey,1997: 121; Vaubel,1991: 210 at bibliography) [23] Silvia Marchesi and Laura Sabani, IMF Concern For Reputation And Conditional Lending Failure: Theory And Empirics (Journal Of Development Economics 84 (2007) 640–666) accessed 11 March 2011 citing Stiglitz, J., 2002. Globalization and its Discontent. W.W. Norton, New York. Asif Quereshi and Andreas Ziegler, International Economic Law (2nd Edition ThomsonSweet Maxwell, London 2007) Page 208 Asif Quereshi and Andreas Ziegler (n24) page 233 Andreas F. Lowenfeld International Economic Law (2nd Edition Oxford University Press, UK 2008) Page 646 Asif Quereshi And Andreas Ziegler (n24) Page 232 Asif Quereshi And Andreas Ziegler (n24) Page 235 Daniel Kalderimis (n1) Daniel Kalderimis (n1) Daniel Kalderimis (n1) Daniel Kalderimis (n1) Jean Pierre Allegret and Philippe Dulbecco (n17) Jean Pierre Allegret and Philippe Dulbecco (n17) Daniel Kalderimis (n1) Richard Epstein Bargaining with the State ( Princeton University Press, Princeton 1993) page 39-41


Devran ÜNLÜ

have limitations.[37] For instance, “adequate safeguards” concept should not be exploited for externally sourced reforms;[38] otherwise, this interpretation would be destructive for the countries.[39] Similar institutions, such as the United Nations and the World Trade Organization are more democratic, so they have been rarely subjected to charges of extreme jurisdiction.[40] Criticisms about legitimacy of the conditionality mostly have pointed to a country’s economic sovereignty.[41] Dionne asserts that the IFI perform its objectives against national sovereignty by compelling its reforms on borrower countries.[42] The United Nations Charter of Economic Rights and Duties of States (1974) maintains that “Every State has the sovereign and inalienable right to choose its economic system as well as its political, social and cultural systems in accordance with the will of its people, without outside interference, coercion or threat in any form whatsoever.”[43] However, the conditionality inhibits ownership of the country, because if the country does not submit, the reforms may be nominal.[44] Conversely, if the country does submit, then the political authority will be transferred to the Fund.[45] This situation cannot be appropriate for democracy.[46] Neoliberal theorists allege that developed economic circumstances will provide more democracy.[47] Nevertheless, democratic implementations indicate that conditionality causes limitations on civil liberties to reduce public disturbance which is the result of structural adjustment.[48] For instance, the IMF program in Latin American countries from 1998 to 2003 demonstrates that the required structural reforms have a destructive influence on democratic development.[49] [37] Daniel Kalderimis (n1) [38] Daniel Kalderimis (n1) [39] Michael Mussa, ‘Reflections on the Function and Facilities for IMF Lending (Institute for International Economic, 2006) accessed 12 March 2011 [40] Daniel Kalderimis (n1) [41] Jean Pierre Allegret and Philippe Dulbecco (n17) [42] E.J. Dionne, Jr., The IMF & its critics (Commonweal, Jan 16, 1998) accessed 27 February 2011 > accessed 11 March 2011 [43] Daniel Kalderimis (n1) [44] Daniel Kalderimis (n1) [45] Daniel Kalderimis (n1) [46] Chelsea Brown, Democracy’s Friend or Foe? The Effects of Recent IMF Conditional Lending in Latin America (International Political Science Review 2009 30: 431) accessed 11 March 2011 [47] Chelsea Brown (n46) [48] Carlos Santiso, Good Governance and Aid Effectiveness: The World Bank and Conditionality (The Georgetown Public Policy Review, Volume 7 Number 1 Fall 2001, pp.1-22) accessed 11 March 2011 [49] Chelsea Brown (n46)


193


Indeed, IMF’s agendas generally regulate privatization, social welfare, foreign investment, taxes, basically everything related with government budget.[50] This means that the result of the election is trivial because all important issues will be fixed by the IMF policies.[51] Moreover, if the borrower member does not comply with the certain conditions, the agreed program will be halted.[52] Contrary to the United Nations, the representation system of the Fund is designated by economic power of members. For example, the United States has 16.17% voting power. However, India, Bhutan, Bangladesh and Sri Lanka collectively have 2.34% of the total votes.[53] The United States is the only country which has veto power.[54] Hence, western developed countries have been able to impose their economic systems on debtor countries by IMF policies.[55] Furthermore, by defending the Washington Consensus, the Fund’s reform perspective can be smoothly exploited by Western multinational companies.[56] Goldstein and Williamson assert that in some situations, Fund’s conditions have been directed by the desires of the G-7 countries.[57] It is not a surprise, because developed countries have a crucial benefit in affecting the investment policies of the developing countries, and IFI’s conditionality regimes make this feasible.[58] Conditionality cannot be coercive for countries such as Brazil, Korea or Mexico who have a strong connection with the international financial markets and a good macroeconomic situation.[59] This is because they will have a strong position in any negotiations with IMF.[60] However, if these countries were in the middle of a financial crisis, they might be compelled to comply with the conditions to access the Fund’s credit.[61] Volcker believes that “When the Fund consults with a poor and weak country, the country gets in line. When it consults with a big and strong country, the Fund gets in line”.[62] [50] Chelsea Brown (n46) [51] Chelsea Brown (n46) [52] Erica R. Gould, Money Talks: Supplementary Financiers and International Monetary Fund Conditionality ( International Organization Foundation, Vol. 57, No. 3 (Summer, 2003), pp. 551-586) accessed 15 February 2011 [53] IMF Executive Directors and Voting Power (March 03, 2011) http://www.imf.org/ external/np/sec/memdir/eds.htm accessed 10 March 2011 [54] Catherine H. Lee, To Thine Ownself Be True: IMF Conditionality And Erosion Of Economic Sovereignty In The Asian Financial Crisis (24 U. Pa. J. Int’l Econ. L. [ix] 2003) accessed 11 March 2011 [55] Daniel Kalderimis (n1) [56] Daniel Kalderimis (n1) [57] Daniel Kalderimis (n1) [58] Daniel Kalderimis (n1) [59] Ariel Buira (n9) [60] Ariel Buira (n9) [61] Ariel Buira (n9) [62] Paul A. Volcker and Toyoo Gyohten, “Changing Fortunes: The World’s Money and the

194


Devran ÜNLÜ

Despite the fact that the conditionality is determined to maintain macroeconomic stability and development, it has restricted debtor countries’ sovereignty.[63] Actually, although initially the Fund’s programs have been intended to fix balance of payment problems, the fund has expanded its mission to adjust also social ills.[64] Thereby, conditional lending has composed a domination of the IFI in national policies.[65] This is inherently dangerous for democracy.[66] Generally, loan negotiations conducted between the executive organs of the governments and IFI without participation of the legislature.[67] Thus, politicians generally hide conditionality debates from society.[68] Przeworski and Vreeland hypothesise that the Fund prefers authoritarian governments rather than democracies; because authoritarian regimes are more favourable to dictate antipathetic reforms.[69] In spite of these evidences, defenders of structural adjustment still allege that these conditions reinforce democracy by promoting political and economic stability.[70] Surprisingly, not do only fiscal reforms have a malevolent impact on democracy, but also legal and institutional reforms have a negative impact on democracy.[71] It is commonly accepted that although Bolivia, Argentina and Ecuador adapted IMF’s reforms, they could not note developments in democracy.[72] It is alleged that reforms may decrease corruption incidents which contribute to democratic development.[73] On the other hand, structural adjustments generate many damaging socioeconomic consequences that produce political

Threat to American Leadership” (Times Books, New York 1992) [63] Chelsea Brown (n46) citing Friedman, T. (2000). The Lexus and the Olive Tree: Understanding Globalization. New York:Random House. [64] Chelsea Brown (n46) [65] Erik Denters, New Challenges To IMF Jurisdiction (Netherlands Yearbook of International Law 1998) accessed 10 March 2011 [66] Chelsea Brown (n46) [67] Chelsea Brown (n46) citing Alexander, N. (2006). “Decentralization and Sovereignty: How Policy Space Is Eroded,” Social Watch Report 2006. Uruguay: The Third World Institute. [68] Chelsea Brown (n46) (Drazen, 2002; Przeworski and Vreeland, 2000 at bibliography) [69] Chelsea Brown (n46) (Przeworski and Vreeland, 2000 at bibliography). [70] Chelsea Brown (n46) citing Lipset, S.M. (1959). “Some Social Requisites of Democracy: Economic Development and Political Legitimacy,” American Political Science Review 53(1): 69–105.; Abouharb, R. and Cingranelli, D. (2006). “The Human Rights Effects of World Bank Structural Adjustment, 1981–2000,” International Studies Quarterly 50(2): 233–62; Abouharb, R. and Cingranelli, D. (2007) Human Rights and Structural Adjustment. Cambridge: Cambridge University Press; and Ethier, D. (2003). “Is Democracy Promotion Effective? Comparing Conditionality and Incentives,” Democratization 10(1): 99–120.) [71] Chelsea Brown (n46) citing Nooruddin, I. and Simmons, J. (2006). “The Politics of Hard Choices: IMF Programs and Government Spending,” International Organization 60(4): 1001–33. [72] Chelsea Brown (n46) [73] Chelsea Brown (n46)


195


dissatisfaction.[74] These outcomes compel the debtor countries to limit liberties for maintaining the authority and to reduce political transparency for prevailing in the elections.[75] For example; poverty, income inequality and unemployment rates grow after reforms.[76] Conversely, diminished social services, government expenditure and living standards can be generally observed distinctly.[77] Moreover, IMF’s market policies tend to marginalize domestic sectors which are not export oriented.[78] Government resources are spent on reducing the debt. Simultaneously, the government allocates fewer sources for long-term investments like infrastructure,[79] so the enlightenment of citizens is still disregarded. After criticisms about legitimacy of conditionality, the Fund changed its policies and attempted to implement the domestic ownership principle over the reforms.[80] The IMF claimed that the new policies were based on the consent of the debtor countries.[81] The ‘ownership’ concept is identified as “a commitment to a program of policies, by country official who have the responsibility to formulate and carry out those policies, based on their understanding that the program is achievable and is in the country’s best interest.”[82] Nobel laureate economist Stiglitz pronounces that, although the Fund insists that the conditionality policy has never been compelled on any country; a borrowing country has no bargaining chance because it needs the credit.[83] He also claims that the negotiations should have transparency rather than be bargained behind closed doors.[84] This discourse is compatible with the term of “the right to know of the citizens” of a borrowing state.[85] Indeed, although citizens of the member countries repay the debts, they have never have right to ratiocinate and decide the alternatives.[86] [74] Chelsea Brown (n46) citing Kurtz, M.J. (2004). “The Dilemma of Democracy in the Open Economy,” World Politics 56(2): 262–302.); Stallings, B. and Peres, W. (2000). Growth, Employment, and Equity: The Impact of the Economic Reforms in Latin America and the Caribbean. Washington, DC: Brookings Institution Press. [75] Chelsea Brown (n46) [76] Chelsea Brown (n46) citing Crisp, B. and Kelly, M. (1999). “The Socioeconomic Impacts of Structural Adjustment” International Studies Quarterly 43(3): 533–52; Garuda, G. (2000), “The Distributional Effects of IMF Programs: A Cross Country Analysis” [77] Chelsea Brown (n46) [78] Chelsea Brown (n46) [79] Chelsea Brown (n46) [80] Jacqueline Best (n19) [81] Jacqueline Best (n19) [82] Jacqueline Best (n19) citing Statement of the IMF Staff on Principles Underlying the Guidelines on Conditionality, Washington DC: International Monetary Fund, 2006, p 1. [83] Catherine H. Lee (n54) [84] Catherine H. Lee (n54) [85] Catherine H. Lee (n54) [86] Catherine H. Lee (n54)

196


Devran ÜNLÜ

According to the Article V(3), the IMF cannot violate jurisdictional barriers even with the aim of expanding economic assistance,[87] so issues within the national jurisdiction should not be dictated or advised.[88] For example, the Fund can stipulate a country to hold its budget deficit within six per cent of its gross national product (GNP); but the Fund cannot prescribe it.[89] Moreover, IMF was not founded to affect member countries’ national policies.[90] On the other hand, in reality the domestic economic matters cannot be separated from international policies.[91] Constraints of the Fund have intervened in the domestic policy matters of the member countries.[92] Eventually, this means hegemony of the Fund over borrower countries.[93] Further, almost in every situation there is no ratification of the programs by the national parliaments.[94] The negative consequences of the reforms in Malaysia and Thailand indicate that the IMF programs do not justify in the interference over the right to sovereignty.[95] Democracy refers to the legitimacy of government, which is elected by citizens or representatives of them.[96] Thence, the conditionality does not seem to be the most convenient method for strengthening democracy in developing countries.[97] Indeed, the fund should assure voluntary cooperation.[98] Elected legislation members are not a part of deciding Fund’s or WB’s programs.[99] In democratic systems, parliaments should be involved in the negotiating process and drafting the agenda.[100] National parliaments have not the ability to insist on changes of the reforms.[101] For instance in Ethiopia, although the constitution regulates that the national development projects have to be ratified by legislation, the parliament was not involved the negotiations.[102] Benin, Bolivia, [87] [88] [89] [90] [91] [92]

Erik Denters (n65) Erik Denters (n65) Catherine H. Lee (n54) citing Lowenfeld,(n26) at page 260. Erica R. Gould (n52) Catherine H. Lee (n54) Kerry Rittich, The Future Of Law And Development: Second Generation Reforms And The Incorporation Of The Social accessed 07 March 2011 [93] Kerry Rittich (n92) [94] Kerry Rittich (n92) [95] Catherine H. Lee (n54) [96] Carlos Santiso (n48) [97] Carlos Santiso (n48) [98] Randall W. Stone, The Scope of IMF Conditionality (April 10, 2008) accessed 11 March 2011 [99] Tim Jones and Peter Hardstaff, Denying Democracy -How The IMF And World Bank Take Power From People (May 2005) accessed 10 March 2011 [100] Tim Jones and Peter Hardstaff (n99) [101] Tim Jones and Peter Hardstaff (n99) [102] Tim Jones and Peter Hardstaff (n99)


197


Cameroon, Chad , Gambia , Ghana, Guinea, Honduras, Laos, Madagascar, Malawi, Mauritania, Mozambique, Rwanda, Senegal, Tanzania, Uganda, Zambia, Albania, Cambodia, Georgia, Kenya, Kyrgyzstan, Mongolia, Pakistan are the other examples of lack of participation of the legislature.[103] Parliaments are critical links between citizens and governments.[104] If the IFI ignores the involvement of parliaments, the citizens’ political rights will be usurped.[105] Collier aptly suggests that the conditionality can be abused for transferring of sovereignty, which is not unprecedented.[106] Another harsh criticism is about the transparency of IFI’s policies.[107] In modern democratic systems, citizens should be able to observe and know what decisions are taken and how and why they are fixed.[108] For instance, the Executive Board records of the IMF are revealed after ten years and archived documents are released after twenty years.[109] Especially, in the negotiations with indebted developing countries, the reforms debated only with their financial ministers.[110] Then, commonly financial ministers sacrifice their economic independence.[111] Generally, developing countries’ parliaments and citizens are excluded from the process.[112] Correspondingly, the budgets of such countries are prepared by IMF officers, who are not elected by citizens or not liable to them.[113] Consequently, the IFI designates their future, but the citizens are not aware of it.[114] Critics of the conditionality have been not just related with independence and sovereignty of the borrower countries.[115] There is also disproportion in the World Bank and IMF’s members voting rates.[116] Even though developed countries form the minority of the world’s population and these institutions’ [103] Tim Jones and Peter Hardstaff (n99) [104] Pippa Norris, ‘The Growth of Critical Citizens?’ (Harvard University, 1999) accessed 11 March 2011 [105] Tim Jones and Peter Hardstaff (n99) [106] Carlos Santiso (n48) citing Collier, Paul. 1999. “Learning from Failure: The International Financial Institutions as Agencies of Restraint in Africa’, in Andrea Schedler, Larry Diamond and Marc Plattner, The Self-Restraining State:Power and Accountability in New Democracies (Boulder and London: Lynne Rienner) [107] Tim Jones and Peter Hardstaff (n99) [108] Tim Jones and Peter Hardstaff (n99) [109] Tim Jones and Peter Hardstaff (n99) [110] Mac Darrow, Between Light and Shadow: Between Light and Shadow: The World Bank, the International Monetary Fund and International Human Rights Law( Studies in International Law Volume I, Hart Publishing, Oxford, 2003) [111] Mac Darrow (n110) [112] Mac Darrow (n110) [113] Mac Darrow (n110) [114] Jochen Hippler, ‘Democratisation of the Third World After the End of the Cold War’ (Pluto Press, London, 1995) page 104-105 [115] Andreas F. Lowenfeld (26) page 646 [116] Tim Jones and Peter Hardstaff (n99)

198


Devran ÜNLÜ

income, they hold nearly %60 per cent of the votes.[117] Further, US have generated legitimacy crises in the Fund by abusing its privileged role in favour of its interests.[118] Consequently, international financial institutions have played a pivotal role in international economic politics, but in an unfair way.[119]

CONCLUSION

I

n conclusion, IFI advocate that their remedies still shed light on the countries which struggle with fiscal crises. However, it is generally accepted by the doctrine that the conditionality is not a legitimate method to affect domestic policies. Indeed, the influence of the United States within the IFI creates a dilemma. Moreover, even though administrative international agreements can be implemented without ratification of national parliaments[120], it is not democratic if parliaments are excluded from the process. Although IFI’s endeavours to ensure economic growth and decrease poverty are unsuccessful, IFI insists on their macroeconomic policies. May be the judgement of Robert Joseph Barro should be reviewed “IMF doesn’t put out fires, it starts them,”[121]

[117] Tim Jones and Peter Hardstaff (n99) [118] Randall W. Stone (n98) [119] Randall W. Stone (n98) [120] Eva Riesenhuber, ‘The International Monetary Fund Under Constraint: Legitimacy Of Its Crisis Management’ (Kluwer Law International, The Hague 2001) page 268 [121] Olivier Jeanne, Jonathan D. Ostry, and Jeromin Zettelmeyer, ‘A Theory of International Crisis Lending and IMF Conditionality’ (October 2008, IMF Working Papers, Vol., pp. 1-33) < http://ssrn.com/abstract=1316704 > accessed 08 March 2011 citing Barro, Robert, 1998, “The IMF Doesn’t Put Out Fires, It Starts Them,” Business Week, December 7.


199


BIBLIOGR APHY

Abouharb, R. and Cingranelli, D. (2007) Human Rights and Structural Adjustment. Cambridge: Cambridge University Press Abouharb, R. and Cingranelli, D. (2006). “The Human Rights Effects of World Bank Structural Adjustment, 1981–2000,” International Studies Quarterly 50(2): 233–62 Masood Ahmed, Timothy Lane and Marianne Schulze-Ghattas,’Refocusing IMF Conditionality’ (Finance & Development 38 no4 D 2001) accessed 01 March 2011 Alexander, N. (2006). “Decentralization and Sovereignty: How Policy Space Is Eroded,” Social Watch Report 2006. Uruguay: The Third World Institute. Jean Pierre Allegret and Philippe Dulbecco, ‘The Institutional Failures Of International Monetary Fund Conditionality’ (Rev Int Org (2007) 2:309–327) accessed 11March 2011 Barro, Robert, 1998, “The IMF Doesn’t Put Out Fires, It Starts Them,” Business Week, December 7 Jacqueline Best, Legitimacy Dilemmas: The IMF’s Pursuit Of Country Ownership (Third World Quarterly, Vol. 28, No. 3, 2007, Pp 469 – 488) accessed 12 March 2011 Ariel Buira, An Analysis Of IMF Conditionality (Oxford University, Department Of Economics Discussion, 104-2002) Accessed 11 March 2011 Chelsea Brown, Democracy’s Friend or Foe? The Effects of Recent IMF Conditional Lending in Latin America (International Political Science Review 2009 30: 431) accessed 11 March 2011 Collier, Paul. 1999. “Learning from Failure: The International Financial Institutions as Agencies of Restraint in Africa’, in Andrea Schedler, Larry Diamond and Marc Plattner, The Self-Restraining State:Power and Accountability in New Democracies (Boulder and London: Lynne Rienner) Crisp, B. and Kelly, M. (1999). “The Socioeconomic Impacts of Structural Adjustment” International Studies Quarterly 43(3): 533–52; Mac Darrow, Between Light and Shadow: Between Light and Shadow: The World Bank, the International Monetary Fund and International Human Rights Law( Studies in International Law Volume I, Hart Publishing, Oxford, 2003) Erik Denters, New Challenges To IMF Jurisdiction (Netherlands Yearbook of International Law 1998) accessed 10 March 2011 E.J. Dionne, Jr., The IMF & its critics (Commonweal, Jan 16, 1998) accessed 11 March 2011 Drazen, A. (2002). “Conditionality and Ownership in IMF Lending: A Political Economy Approach,” IMF Staff Papers 49(1): 36–67.

200


Devran ÜNLÜ

Axel Dreher, ‘A public choice perspective of IMF and World Bank lending and Conditionality’ (2003) accessed 03 March 2011 Axel Dreher, ‘IMF conditionality: Theory and Evidence’ (2009) accessed 07 March 2011 Richard Epstein Bargaining with the State ( Princeton University Press, Princeton 1993) page 39-41 Ethier, D. (2003). “Is Democracy Promotion Effective? Comparing Conditionality and Incentives,” Democratization 10(1): 99–120. Frey, B.S. (1997). The public choice of international organizations. In D.C. Mueller (Ed.), Perspectives on public choice, 106–123. Cambridge: Cambridge University Press. Friedman, T. (2000). The Lexus and the Olive Tree: Understanding Globalization. New York:Random House. Garuda, G. (2000), “The Distributional Effects of IMF Programs: A Cross Country Analysis” Gerster, Richard (1982) ‘The IMF and Basic Needs Conditionality’, Journal of World Trade Law 16: 497–519. Gianviti, F. (1999) ‘The International Monetary Fund and the Liberalization of Capital Movements’, pp. 7–16 in Current Developments in Monetary and Financial Law. Washington, DC: IMF. Gold, Joseph (1996) Interpretation: The IMF and International Law. London: Kluwer Law International. Gold, Joseph (1984) Legal and Institutional Aspects of the International Monetary System: Selected Essays, Vol. II. Washington, DC: IMF. Goldstein, M. (2000). IMF Structural Programs. In M. Feldstein (Ed.), Economic And Financial Crises In Emerging Market Economies, 363–437. Chicago: University of Chicago. Erica R. Gould, Money Talks: Supplementary Financiers and International Monetary Fund Conditionality ( International Organization Foundation, Vol. 57, No. 3 (Summer, 2003), pp. 551-586) accessed 15 February 2011 Jochen Hippler, ‘Democratisation of the Third World After the End of the Cold War’ (Pluto Press, London, 1995) Holder, William (1999) ‘Fund Jurisdiction Over Capital Movements’, ILSA Journal of International Comparative Law 5: 407–15. IMF Executive Directors and Voting Power (March 03, 2011) http://www.imf.org/external/np/ sec/memdir/eds.htm accessed 10 March 2011 International Monetary Fund, ‘Conditionality in Fund-Supported Programs’ (20 February 2001) accessed 04 March 2011 International Monetary Fund, ‘IMF Conditionality’ (September 27, 2010) accessed 07 March 2011 Olivier Jeanne, Jonathan D. Ostry, and Jeromin Zettelmeyer, ‘A Theory of International Crisis Lending and IMF Conditionality’ (October 2008, IMF Working Papers, Vol. , pp. 1-33) < http:// ssrn.com/abstract=1316704 > accessed 08 March 2011


201


Tim Jones and Peter Hardstaff, Denying Democracy -How The IMF And World Bank Take Power From People (May 2005) accessed 10 March 2011 Daniel Kalderimis, ‘IMF Conditionality as Investment Regulation: A Theoretical Analysis’ (Social & Legal Studies 2004 ) accessed 28 February 2011. Killick, Tony (1997) ‘Principals, Agents and the Failings of Conditionality’, Journal of International Development 9: 483–95. Kurtz, M.J. (2004). “The Dilemma of Democracy in the Open Economy,” World Politics 56(2): 262–302.) Catherine H. Lee, To Thine Ownself Be True: IMF Conditionality And Erosion Of Economic Sovereignty In The Asian Financial Crisis (24 U. Pa. J. Int’l Econ. L. [ix] 2003) accessed 11 March 2011 Lipset, S.M. (1959). “Some Social Requisites of Democracy: Economic Development and Political Legitimacy,” American Political Science Review 53(1): 69–105. Lowenfeld, Andreas F. (2002) International Economic Law. New York: Oxford University Press.) Andreas F. Lowenfeld International Economic Law (2nd Edition Oxford University Press, UK 2008 Silvia Marchesi and Laura Sabani, IMF Concern For Reputation And Conditional Lending Failure: Theory And Empirics (Journal Of Development Economics 84 (2007) 640–666) accessed 11 March 2011 Mussa, Michael (2002) Argentina and the Fund: From Triumph to Tragedy. Washington,DC: Institute of International Economics. Michael Mussa, ‘Reflections on the Function and Facilities for IMF Lending (Institute for International Economic, 2006) accessed 12 March 2011 Deepak Nayyar, Governing Globalization Issues and Institutions (Oxford University Press, 2002) Nooruddin, I. and Simmons, J. (2006). “The Politics of Hard Choices: IMF Programs and Government Spending,” International Organization 60(4): 1001–33. Pippa Norris, ‘The Growth of Critical Citizens?’ (Harvard University, 1999) accessed 11 March 2011 Joseph J. Norton and Mads Andenas, International Monetary and Financial Law Upon Entering The New Millennium a Tribute to Sir Joseph And Ruth Gold (Sir Joseph Gold Memorial Series, British Institute of International and Comparative Law, London 2002) Przeworski, A. and Vreeland, J.R. (2000). “The Effects of IMF Programs on Economic Growth,” Journal of Development Economics 62: 385–421.

202


Devran ÜNLÜ

Asif Quereshi and Andreas Ziegler, International Economic Law (2nd Edition Thomson-Sweet Maxwell, London 2007) Eva Riesenhuber, ‘The International Monetary Fund Under Constraint: Legitimacy Of Its Crisis Management’ (Kluwer Law International, The Hague 2001) Kerry Rittich, The Future Of Law And Development: Second Generation Reforms And The Incorporation Of The Social accessed 07 March 2011 Rodrik, Dani (1990) ‘How Should Structural Adjustment Programs Be Designed?’, World Development 18: 933–52. Sachs, Jeffrey (1997) ‘The IMF is a Power Unto Itself ’, speech delivered at Harvard University. Available at http://pages.stern.nyu.edu/~nroubini/asia/AsiaCrisisSachsViewFT1297.html Carlos Santiso, Good Governance and Aid Effectiveness: The World Bank and Conditionality (The Georgetown Public Policy Review, Volume 7 Number 1 Fall 2001, pp.1-22) accessed 11 March 2011 Stallings, B. and Peres, W. (2000). Growth, Employment, and Equity: The Impact of the Economic Reforms in Latin America and the Caribbean. Washington, DC: Brookings Institution Press Statement of the IMF Staff on Principles Underlying the Guidelines on Conditionality, Washington DC: International Monetary Fund, 2006, p 1. Stiglitz, Joseph (2002) Globalization and its Discontents. New York: Norton & Company. Randall W. Stone, The Scope of IMF Conditionality (April 10, 2008) accessed 11 March 2011 Taylor, Lance (1987) ‘IMF Conditionality: Incomplete Theory, Policy Malpractice’, pp. 25–46 in Robert J. Myers (ed.) The Political Morality of the International Monetary Fund. New Brunswick, NJ: Transaction Books. Vaubel, R. (1991). The political economy of the International Monetary Fund: A public choice approach. In R. Vaubel and T.D. Willett (Eds.), The Political Economy Of International Organisations, 205–245. Boulder: Westview. Paul A. Volcker and Toyoo Gyohten, “Changing Fortunes: The World’s Money and the Threat to American Leadership” (Times Books, New York 1992) Williamson, John (1983) IMF Conditionality. Washington, DC: Institute of International Economics.

LEGISLATION / TREATIES International Monetary Fund, ‘Articles of Agreement of the IMF(1945)’ accessed 08 March 2011


203