Establishment of an extraordinary criminal court for a bank fraud trial with all the legal guarantees provided. Non-violation of the independence and impartiality of the court

JUDGMENT

Bahaettin Uzan v. Turkey 24.11.2020 (app. no. 30836/07)

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SUMMARY

The right of every person to be tried by an independent and impartial court operating and established legally.

The applicant was accused of participating in a banking fraud through software resulting in the interception of a large sum of money transferred from the bank to the account of the company in which he was a managing director. The 8th Istanbul Criminal Court was established by law to adjudicate the case. He was sentenced to a fine of 12,314,900,000 euros and 17 years in prison. He complained about the lack of an independent and impartial court.

The Court reiterated that according to Article 6 § 1 of the Convention, “the organization of the judiciary in a democratic society does not depend on the discretion of the executive, but is governed by a law of  the Parliament”.

In the present case, the ECtHR found that the establishment of the extraordinary court had a clear basis in law and was not arbitrary.

With regard to the complaint of impartiality of judges, the ECtHR found that the judges examining the applicant’s case in the 8th Criminal Court had the same status as any other judge serving in other courts and had the same constitutional safeguards and procedural rights, including , their promotion and dismissal, and an additional guarantee of a ban on reappointment for a period of three years in cases involving banking offenses.

The ECtHR therefore held that there had been no violation of Article 6 § 1 as regards the lawful establishment of the court and the impartiality of judges.

PROVISION

Article 6§2

PRINCIPAL FACTS

The applicant, Bahaettin Uzan, is a Turkish national who was born in 1942 and lives in Istanbul
(Turkey). His family, in particular his brother, ran one of the biggest conglomerates in Turkey,
operating in a variety of sectors, ranging from banking and finance to media and
telecommunications (“the Uzan Group”).

The case concerned the applicant’s complaint with regard to criminal proceedings brought against
him in what the Turkish courts had referred to as “the biggest banking corruption incident in the
country’s history”. In particular, an Uzan Group information-technology company, Merkez Yatırım
A.Ş. (“Merkez Yatırım”), had been accused of developing a software programme that had been used
to divert tremendous amounts of money from a bank belonging to the group, Türkiye İmar Bankası
T.A.Ş. (“İmarbank”).

Following an audit by the banking regulation authorities, criminal proceedings were brought against
25 people – board members and senior managers of İmarbank and Merkez Yatırım, including the
applicant and his brother – in connection with alleged bank fraud. The applicant, who was vice—
chairman of Merkez Yatırım, was arrested and placed in pre-trial detention in September 2003.
In December 2003 the Istanbul public prosecutor filed a bill of indictment in respect of the suspects
with the Istanbul 5th Assize Court. Following amendments to the relevant legislation, the applicant’s
case was transferred to the Istanbul 8th Assize Court, a specialised assize court designated to deal
with certain banking offences.

The defendants challenged the constitutionality of the Istanbul 8th Assize Court. However, in April
2004 the 8th Assize Court rejected their plea for referral to the Constitutional Court, ruling that such
specialised courts were required to deal with a new generation of complex economic crimes.
Moreover, the 8th Assize Court had been established by the High Council of Judges and Prosecutors
and functioned no differently to the ordinary assize courts.

In February 2006 the Istanbul 8th Assize Court convicted the applicant of membership of a criminal
organisation and of knowingly participating in the offence of aggravated embezzlement. He was sentenced to a fine equivalent to approximately 12,314,900,000 euros at the relevant time and to over 17 years’ imprisonment. The court, referring to a number of audit and on-site inspection
reports, found that the crimes had been facilitated by the software programme developed for
İmarbank by Merkez Yatırım. It also notably took into account the fact that the criminal enterprise
had been headed by the applicant’s brother, with whom the applicant had admitted to having very
close ties, including working relations, over many years, as well as his duties in the Uzan Group
companies.

Throughout the first-instance and appellate proceedings, the applicant denied the charges against
him. He argued that his participation in the Uzan Group companies, including Merkez Yatırım, had
been only symbolic, and that he had no knowledge or experience of banking or IT operations. He
also stressed that the Istanbul 8th Assize Court had been established by the High Council of Judges
and Prosecutors following a proposal of the Minister of Justice, who was a member of the ruling
party and a political rival of the Uzan family.

His appeal against the judgment of 2006 was however rejected by the Court of Cassation in 2007.

Relying on Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights, the
applicant complained of a breach of his right to an independent and impartial tribunal established by
law, mainly on account of the transfer of his case from the Istanbul 5th Assize Court to the Istanbul
8th Assize Court. He argued in particular that the Istanbul 8th Assize Court that convicted him had
been an extraordinary tribunal that had infringed the principle of trial before “a rightful judicial
authority” and that the President of the Istanbul 8th Assize Court had been biased.

THE DECISION OF THE COURT…

“Independent and impartial tribunal”

The Court notes that there are two aspects to the applicant’s complaint regarding the right to an “independent and impartial tribunal”. The first concerns the alleged lack of independence and impartiality of the President of the Istanbul 8th Assize Court in his individual capacity as judge from a subjective point of view, while the second mainly relates to the involvement of the Minister of Justice in the establishment of the 8th Assize Court, which, in the applicant’s opinion, had the effect of compromising the structural or objective independence and impartiality of the court . The Court will examine each aspect of the complaint separately.

As regards the first aspect relating to the independence and impartiality of the President the Court therefore concludes that that part of the application must be rejected under Article 35 § 1 of the Convention for non‑exhaustion of domestic remedies as argued by the Government.

“Tribunal established by law”

The Court reiterates that under Article 6 § 1 of the Convention, a tribunal must always be “established by law”. According to its case-law, the object of the term “established by law” is to ensure “that the judicial organisation in a democratic society does not depend on the discretion of the executive, but that it is regulated by law emanating from Parliament” (

On the present facts, the designation of a specialised court to deal with certain banking offences was brought about via the amendments to the Banking Act by Law no. 5020, which was a piece of legislation emanating from Parliament. It therefore clearly had a basis in domestic law.

The Court notes that the challenges brought by the applicant concerning the alleged unconstitutionality of the Istanbul 8th Assize Court were dismissed by both that court and the Court of Cassation. It thus follows that while the law did not provide any specific criteria that would justify the setting up of a new court, the discretion used in the instant case to put the 8th Assize Court into operation had an unequivocal basis in law and was not an arbitrary act.

The Court further observes from the information provided by the Government, which was not contested by the applicant, that the institution and functioning of the Istanbul 8th Assize Court was in line with the interpretation of the constitutional principle of “natural judge” by the Constitutional Court which in turn appears to be in compliance with the Convention standards.  The Court lastly notes that the applicant has not alleged any unlawful conduct in the actual composition of the bench that heard his case, which is one of the elements in determining whether a tribunal was “established by law”.  The Court considers, in the light of the foregoing, that there is no evidence in the case file to hold that the establishment of the Istanbul 8th Assize Court entailed an undue interference with the judiciary on the part of the executive that undermined the purpose of the right to a “tribunal established by law” within the meaning of the Convention   The Court therefore concludes that there has been no violation of the applicant’s right to a tribunal established by law under Article 6 § 1 of the Convention.

(b)  Independence and impartiality of the Istanbul 8th Assize Court

The Court notes in this connection that in determining whether a body could be considered “independent”, regard must be had to such factors as the manner of appointment of the body’s members, the duration of their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence . As regards the requirement of impartiality, the Court has established that there are two aspects to that requirement: first, the tribunal must be subjectively free of personal prejudice or bias; secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.

The Court reiterates in this regard that the reassignment to the 8th Assize Court was not specific to the applicant’s case, but applied across the board to all cases in Istanbul involving the relevant banking offences.

It further notes that the role played by the Minister in the establishment of the Istanbul 8th Assize Court had only been limited to making a proposal for that purpose, and that the actual decision to put that proposal into action was taken by the HCJP, which was an independent body with constitutional status. The Court also notes in that connection that the judges who dealt with the applicant’s case at the Istanbul 8th Assize Court had been appointed, like all other judges in Turkey, by the HCJP, following the same appointment procedure. They had equal status to any other judge serving in other assize courts and were entitled to the same constitutional safeguards and procedural rights, including as regards their appointment, promotion, and dismissal. The sole difference pointed out by the applicant was the prohibition on the reassignment of the judges overseeing the relevant banking offences for a period of three years. In the Court’s opinion, this “additional guarantee”, as the applicant refers to it, does not appear to cast doubt on the independence or impartiality of the judges in question; to the contrary, it may be taken to further reinforce the power of the relevant judges to rule independently.

The Court therefore considers that aside from its special jurisdiction, the Istanbul 8th Assize Court presented no significant differences to an ordinary assize court in its establishment or functioning.

Having regard to the foregoing, and on the basis of the material before it, the Court cannot find that the applicant’s case was reassigned to the Istanbul 8th Assize Court to affect the outcome of the case to his detriment, or that the Minister’s involvement in the establishment of the Istanbul 8th Assize Court entailed a relationship of subordination between the judges on the bench and the executive. The Court stresses in this regard that while it is not its role to assess whether there were valid grounds for the domestic authorities to assign a case to a particular court , it notes that the Government’s argument, according to which the decision not to allocate the relevant cases to the Istanbul 1st Assize Court had been driven by the legitimate need to ensure the effective administration of justice in the field of banking offences , is not unreasonable.

The Court therefore considers that the applicant’s doubts as to the lack of independence and impartiality of the Istanbul 8th Assize Court are not objectively justified in the circumstances. It concludes accordingly that there has been no violation of the applicant’s right to an independent and impartial tribunal under Article 6 § 1 of the Convention.

 


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