The validity of the presumption of innocence following a Strasbourg decision.

JUDGMENT:

Dicle and Sadak v. Turkey 16.06.2015 (no. 48621/07)

see here

SUMMARY:

The continuation of the conviction in the criminal record despite the commencement of the repeat procedure constitutes a breach of the presumption of innocence. This case concerned the consequences of the reopening of proceedings in the national courts of criminal jurisdiction following the finding of a violation of Article 6 of the ECHR.

COMMENT 

In the case of a repeat procedure, the sentence should not be entered in the criminal record. It constitutes a breach of the presumption of innocence.

PROVISION:

Article 6 § 2

PRINCIPAL FACTS 

The applicants are two Turkish nationals, Mehmet Hatip Dicle and Selim Sadak, who were born in 1955 and 1954 respectively and live in Diyarbakır and Şırnak (Turkey) respectively.

The case concerned alleged breaches of the right to be presumed innocent and the rejection of the applicants’ candidatures to the legislative elections of 2007 following their criminal conviction.
MPs in the Turkish Grand National Assembly and members of the political party DEP (Party of Democracy), dissolved by the Constitutional Court, Mr Dicle and Mr Sadak were sentenced in a final judgment of 26 October 1995 to 15 years’ imprisonment for membership of an illegal organisation.

In the judgment Sadak and Others v. Turkey of 17 July 2001, the European Court of Human Rights found violations of Article 6 (right to a fair trial) on account of a lack of independence and impartiality of the State Security Court, and the failure to inform the applicants in a timely manner of the reclassification of the charges against them, together with their inability to examine or have examined witnesses against them. Following that judgment, Mr Dicle and Mr Sadak had their trial reopened, under Article 327 of the Turkish Code of Criminal Procedure. On 9 March 2007 the Assize Court upheld the applicants’ convictions, referring to them in its judgment as “the accused (convicted persons)”, but reduced their prison sentence to seven years and six months. The Court of Cassation upheld that decision.

Mr Dicle and Mr Sadak wished to stand as independent candidates in the legislative elections of 22 July 2007. The higher electoral board refused their candidatures on the ground that their criminal convictions precluded their eligibility, even though since their initial conviction the proceedings had been re-opened and were still pending before the Assize Court at the time of the elections.

The applicants complained that the principle of the presumption of innocence protected by Article 6 § 2 of the Convention had been disregarded, particularly on account of the wording used in the judgment of the Assize Court dated 9 March 2007. Under Article 3 of Protocol No. 1 (right to free elections), they complained of a breach of their right to stand for election as independent candidates. Relying on Article 13 (right to an effective remedy) taken together with Article 3 of Protocol No. 1, they alleged that under Article 79 of the Constitution the decisions of the higher electoral board could not be appealed against to another body.

THE DECISION OF THE COURT 

Violation of Article 6 § 2

Violation of Article 3 of Protocol No. 1

No violation of Article 13

Just satisfaction: EUR 6,000 (non-pecuniary damage) each to Mr Dicle and Mr Sadak, and EUR 715 (costs and expenses) to both applicants jointly(echrcaselaw.com editing). 


ECHRCaseLaw

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