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ADRIAN EVITTS, MA, LLM, solicitor (not currently practising) This opinion was commenced on 7 July 2007 and concluded on 12 July 2007. Subject to obtaining waiver of client privilege, I have no objection to this opinion being reproduced in full for the world at large. I have had the benefit of receiving substantial materials from those instructing me, including a summary of the SRF case, which is included as Schedule 1. I enclose the following other Schedules: Schedule 2: Chapter 1, Abuse of Process in Criminal Proceedings, Corker, D. and Young, D. (Butterworths, London, second edition, 2003) Schedule 3 Pratt and Morgan v. The Attorney General for Jamaica and another Privy Council Appeal No. 10 of 1993 Schedule 4 Mansur v Turkey (1995), reference14/1994/461/542 _______ Şüphesiz güçlükle beraber bir kolaylık vardır. Surely with every hardship comes ease! Holy Qu’uran, Surat 94 (also called “Relief”) verses 5, 6 I was last consulted by the Science Research Foundation in connection with these proceedings seven years ago. I am still being consulted. Between 2000 and 2007, Turkey has made significant efforts to update its criminal justice system to bring it into greater step with those in other parts of Europe. And yet, if I can say this as respectfully as possible, this case appears to bear all the hallmarks of what still appears to be wrong: the sheer slowness of Turkish judicial machinery. I will be referring to Article 6(1) of the Convention on Human Rights and Fundamental Freedoms (“the ECHR” or “the Convention”) at some length, and thus will begin by reproducing it in part here. Turkey became a signatory to the Convention on 18 May 1954. The official Web site of the European Court of Human Rights, www.echr.coe.int, contains a copy of the Convention in Turkish. Article 6 (Right to a fair trial)
1. Delay 1.1 In a quotation attributed to Gladstone, it has often been said that ‘justice delayed is justice denied’. As a key supporter of, and signatory to, the Convention in the immediate aftermath of the Second World War, the United Kingdom chose to ensure compliance with the reasonable time requirement of Article 6 through evolving statute, but it has also allowed judges to develop the common law principle of “abuse of process”. Where sufficient delay amounts to what is unreasonable under Article 6, the remedy provided is to stay proceedings on the basis that a just outcome to proceedings has become impossible. The leading case on the application of abuse of process remains Bennett v Horseferry Magistrates' Court [1993] 3 All E.R. 138, 151, House of Lords. This case confirmed that an abuse of process justifying the stay of a prosecution could arise in the following circumstances: i. where it would amount to a misuse/manipulation of process because it ii. offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of the particular case. 1.2 As far as landmark decisions on delay is concerned, the most important authority remains, in my view, that of the Privy Council in Pratt and Morgan v. The Attorney General for Jamaica and another [Schedule 3 refers]. Their Lordships commuted sentences of death where there had been significant delay, concluding that “in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute ‘inhuman or degrading punishment or other treatment’" and therefore a breach of Article 3 of the Convention [page 26 of Schedule 3]. Today, of course, the decision would probably rely on the fact that the UK committed itself to complete abolition of the death penalty in 2004 as a signatory to Protocol No.13 of the Convention. So, Pratt and Morgan offers as guidance a figure of five years’ delay in respect of capital murder. But what about offences which are less serious, and for which punishment is not death? The "anguish and suffering" experienced by those awaiting a final outcome in criminal proceedings which do not attract such a penalty, and even where an appellant is subject to bail, are not usually so great, but nevertheless can be very substantial. Even in the UK, where delay is always treated seriously, there are significant numbers of suicides both in and out of custody, every year. But what about the fact that appellants may prolong proceedings by exhausting avenues of appeal? 1.3 Mansur v Turkey offers considerable assistance in answering the questions posed in 1.2 [Schedule 4 refers]. Mansur was accused of drug trafficking by the Turkish state. The Court offered the following guidance: "The reasonableness of the length of proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the [European] Court's case-law, in particular the complexity of the case, the applicant's conduct and that of the competent authorities" (para. 61) On the facts of Mansur, where the applicable delay was between seven and eight years (para. 60), the Court unanimously held that there had been a breach of Article 6 para. 1 of the Convention on account of the length of the criminal proceedings (para. 78.5) The Court said this at para. 68: “Article 6 para. 1 (art. 6-1) of the Convention guarantees to everyone against whom criminal proceedings are brought the right to a final decision within a reasonable time on the charge against him (see, among many other authorities, the Adiletta and Others v. Italy judgment of 19 February 1991, Series A no. 197-E, p. 65, para. 17). It is for the Contracting States to organise their legal systems in such a way that their courts can meet this requirement (see, mutatis mutandis, the Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).” “Final decision” does not simply include the trial at first instance, and the reasonable time requirement includes all appeal processes ancilliary to it. 1.4 In modern, civilised jurisdictions seven years, in my view, exceeds by some significant time the period of time which should elapse between making an accusation and the conclusion of subsequent proceedings in respect of any crime. In the overwhelming majority of English cases, they are finally concluded much earlier. Any exceptions to this statement to be found in any jurisdiction are, in my view, cause for great regret. Here, I urge the judicial authorities to consider very seriously putting an end to this case as quickly as possible. 2. No punishment without law 2.1 Article 7 of the ECHR (No punishment without law) 2.2 This Article seeks to ensure that a person is not tried for a crime which was not crime when it was allegedly committed. The qualification in Article 7(2) seeks to ensure that a defendant does not hide behind legal technicalities in order to avoid criminal liability for conduct which is clearly morally reprehensible. In my view, it covers situations where there was insufficient appropriate law in place at the time of the commission of alleged misconduct to enable the defendant to be properly tried. It would almost certainly contravene the principle of double jeopardy (Protocol No. 7, Article 4 of the ECHR) unfairly to change the definition of an offence, or some other material component of the process, after charge. I note that Turkey and the United Kingdom have both thus far failed to ratify Protocol No. 7. They are in the minority of all signatories to the Convention in failing to do so, and I look forward to a time when all signatories do. An example of a ECHR case where a violation of Article 7 was held to have occurred is the case of Welch v The United Kingdom (1995). 2.3 In the instant case, the Article 7(2) qualification cannot be invoked because all allegedly criminal behaviour was appropriately defined by Turkish law at the time of its alleged commission. Whilst there would appear to be no breach where law is re-enacted without changing it, any material change at all in the definition of a crime after it has been committed, accompanied by an attempt to implicate the defendant in the revised definition of the offence, would almost certainly invalidate proceedings as an abuse of process, and I can say that in the period running from 1992 to 2005 when, at various times, I was privileged to prosecute on behalf of the state in England and Wales, I cannot recall a single instance of this practice being adopted. The practice in England and Wales was and remains always to charge an offence in legal force at the date of its alleged commission, and the fact that the offence might subsequently be repealed or changed before the conclusion of proceedings would not, in itself, invalidate them: the state is simply put to proof of the offence as originally framed. 2.4 I have not attempted, as a native speaker of English, to consider whether the material change mentioned in paragraph 2.3 has in fact occurred. Something is always lost in translation, and I leave it to those instructing me to consider this question in the Turkish language alone. I find the issue of delay here to be much more serious and disconcerting. This opinion (consisting of SEVEN pages) was signed by Adrian Evitts on 12 July 2007:
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