Conviction for moral instigation in embezzlement by civil servant with aggravating circumstance despite the abolition of the latter by the introduction of a new law! Violation of Article 7 of the ECHR
JUDGMENT
Sinan Çetinkaya and Ağyar Çetinkaya v. Turkey 25.05.2022 (app. no. 74536/10 and 75462/10).
SUMMARY
Principle of retroactive application of the most lenient criminal law. Application of the principle to the aggravating circumstance.
The applicants in 1999 allegedly obtained loans from a state-owned bank using forged documents on behalf of 76 borrowers. This fraud was done in collaboration with the bank manager. They were convicted of moral instigation in embezzlement with the aggravating case of the performance by a civil servant (bank manager) despite the force of a more lenient criminal provision which provided for the aggravating case only for the natural perpetrator. They filed a complaint with the ECHR for violation of Article 7 of the ECHR.
The Court reiterated the principle of retroactivity of the more lenient criminal law, stressing that the courts must apply the law whose provisions are more favorable.
The ECtHR found that the applicants had been prosecuted and convicted as moral perpetrators of embezzlement committed by a civil servant despite the fact that this form of involvement in the crime had been abolished and under the new penal code only the natural perpetrator was punished. He held that the conviction for misconduct in embezzlement committed by a civil servant, by failing to apply the most lenient new penal code, violated Article 7 of the ECHR.
PROVISION
Article 7
PRINCIPAL FACTS
The applicants, Sinan Çetinkaya and Ağyar Çetinkaya, are Turkish nationals who were born in 1966
and 1964 respectively and live in Istanbul.
They were the general director and chairman of the board of directors of a car company and, in
1999, were charged with allegedly having obtained bank loans from the Ziraat Bank on behalf of
76 customers by using forged documents and for using those loans for personal purposes. In the
meantime, due to the introduction of a new law, the legal status of the Ziraat Bank changed from a
public bank into a public limited company, with the result that its employees were no longer considered public officials in respect of criminal prosecutions. The applicants were ultimately
convicted of embezzlement under a new Criminal Code even though embezzlement was a special
offence that could only be committed by a public official.
The applicants complain that their conviction for embezzlement despite the fact that they lacked the
status of public officials, and without there being a principal offender who was a public official,
lacked any legal basis in domestic law and gave rise to a violation of Article 7 (no punishment
without law) of the European Convention.
THE DECISION OF THE COURT…
The Court notes that the domestic courts found it established that the date of the commission of the offence attributed to the applicants was 14 May 1999 and eventually convicted them of the offence of embezzlement under Article 247 of the Criminal Code, which did not enter into force until 1 June 2005, that is, approximately six years after the date of the impugned acts. Those acts were punishable at that time (on 14 May 1999) under Article 202 of the previous Criminal Code. However, that situation pertained only until 25 November 2000, the date on which Law no. 4603 removed B.E.’s status as a public official, as a result of which it was no longer possible to convict him of embezzlement, which was a special offence that could only be committed by a public official. Moreover, even if those acts could potentially also have been punishable under section 22(3) of Law no. 4389, as suggested by the domestic courts, that provision only entered into force on 23 June 1999.
Be that as it may, the above considerations may not automatically be transposed to the applicants because they could have incurred criminal liability in respect of the offence of embezzlement as assistants or inciters. The Court will thus seek to ascertain the provisions governing their criminal liability in respect of special offences in order to determine whether the applicants’ conviction remained compatible with the requirements of Article 7 of the Convention.
In that connection, the Court notes that when the former Criminal Code was in force, that is to say, up until 1 June 2005, persons who were not public officials or members of a bank could incur either principal or secondary liability in respect of special offences (embezzlement and banking embezzlement in the instant case), as borne out by the Court of Cassation’s judgment dated 15 June 2006. However, the current Criminal Code narrows the scope of criminal liability in such cases to only secondary liability, that is to say inciting and assisting (Articles 38 and 39 of the Criminal Code), laying special emphasis on the fact that only those persons who satisfy the preconditions of becoming a principal offender in the case of special offences may be held criminally liable in that capacity (Article 40 § 2 of the Criminal Code).
Taken at face value, Article 40 § 2 of the current Criminal Code may appear to fall within the concept of “more favourable criminal law”, because it extinguished the applicants’ criminal liability as a principal or co-principal in respect of special offences. However, the applicants could still be convicted as inciters or assisters under that provision. Accordingly, the Court’s examination will focus on the domestic courts’ assessment with a view to ascertaining under which capacity they convicted the applicants of the offence of embezzlement. In that connection, the Court observes that in its judgment of August 2006 (that is, after the entry into force of the current Criminal Code), the Court of Cassation did not take Article 40 § 2 into consideration, as it held that the applicants “had shared a joint criminal intent and acted in concert with B.E.” and that they should thus have been treated as persons who had physically committed the offence (“principal material participation” – asli maddi iştirak). Thereafter, the trial court adopted an almost identical line of reasoning as contained in that judgment and eventually found the applicants guilty of embezzlement, holding that “the applicants had shared a joint criminal intent and acted in concert with B.E.”.
The Court attaches decisive importance to the fact that the trial court did not indicate that the applicants had incurred criminal liability as assistants or inciters, notwithstanding the fact that those were the only two capacities under Article 40 § 2 of the Criminal Code under which they could have been convicted of a special offence from 1 June 2005 (the date of the entry into force of the current Criminal Code) onwards. Importantly, this last point was also conceded by the Government. Neither did the Court of Cassation scrutinise this crucial point. It follows that the domestic courts’ failure to apply Article 40 § 2 of the Criminal Code effectively meant that the applicants’ criminal liability in respect of a “special offence”, namely embezzlement lacked a contemporaneous legal basis, as it was no longer possible to convict them as a principal or co-principal of that offence.
Consequently, there has been a violation of Article 7 of the Convention.
OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicants complained under Article 6 of the Convention of the unfairness of the criminal proceedings at issue, arguing in particular that they had not been given sufficient opportunities to submit their defence arguments after the reclassification of the charge against them, that the domestic courts had failed to provide adequate reasoning to show on what legal and factual grounds their acts had been considered to amount to aggravated embezzlement, that their requests for the hearing of their witnesses had been dismissed without the court providing any reasons, even though the prosecution witnesses had been taken into consideration, and that no independent expert opinion had been obtained despite the technical nature of the offence in question.
In view of the finding of a violation of Article 7 of the Convention, the Court considers that it is not necessary to rule on either the admissibility or the merits of the above-mentioned complaints under Article 6 of the Convention.
