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Virginia C. Lindsay 12 July 2007 TO: Fabio Maria Galiani Re: The Bilim Arastirma Vakfı (BAV) Case
Dear Mr. Galiani, You have asked that I provide a legal opinion concerning whether the prosecution of the Bilim Arastirma Vakfı (BAV) case can legitimately be advanced under Law No 4422. I have practiced Criminal Law for the past 20 years. I have appeared as Counsel in criminal cases in the District of Columbia Superior Court, the California Supreme Court, the United States Court of Appeal for the Fifth Circuit, the Federal District Court for the Southern and Northern Districts of Texas, and for the past five years, before the International Criminal Tribunal for the former Yugoslavia. I have taught seminars on federal procedures in U.S. courts at Southern Methodist University and St. Mary’s School of Law. I currently act as Legal Advisor to the International Criminal Bar and teach on their faculty leading seminars on the rules and procedures of the International Criminal Court. I have led seminars in Paris, France; The Hague, Netherlands; Montreal, Canada; Tokyo, Japan; Victoria, British Columbia. I teach a course on public international law at the American Graduate School of International Relations and Diplomacy in Paris, and am on the Board of Directors of the International Criminal Defense Lawyers Association. I have reviewed the decisions and verdicts of a number of Turkish courts which have considered this matter. Based upon my review of these decisions, it appears to me that the allegations at issue in the case involve acts committed between 1996 and 1997, and that the law under which the prosecution is based, Law No. 4422, was not adopted until August 1999. In addition, although arrests were made on these charges in November 1999, the defendants were subsequently released the same month, and the matter was found to have been barred by the applicable statute of limitations in November 2005. The sequence of proceedings in this case raise serious questions as to whether the present prosecution violates the principle of legality. Under this principle, persons may not be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under applicable law at the time when it was committed. This principle is widely accepted, and is enshrined in Article 49 of the European Charter of Fundamental Rights and Article 7 of the European Convention on Human Rights. In addition, considerations of fairness raise questions as to whether the passage of time has not made a fair trial on the allegations impossible. Article 47 of the European Charter of Fundamental Rights and Article 6(1) of the European Convention on Human Rights guarantee each person a fair and public hearing within a reasonable time. When, as in this case, ten years have passed since the acts which are alleged as the basis for the charges, there are serious questions as to whether justice is being done within a reasonable time. This is especially true when charges have been dismissed, and where it appears that the prosecution has failed to appeal the dismissal. For a court to re-institute charges on its own motion at such a late date appears to violate both the fair trial rights of the defendants and also the principle of legality.
CONCLUSION For the forgoing reasons, it would appear that in all fairness, the court considering this matter should enter a dismissal of the charges which are based upon acts pre-dating the adoption of Law No. 4422.
Respectfully Submitted:
Virginia C. Lindsay |
