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STUDIO LEGALE CONTRADA Avukat Lorenzo Contrada Legal Opinion The case submitted for a legal opinion pertains the article 1, paragraph 1 and 4 of the Turkish Law n. 4422. A case based on allegation of violation of such law was opened against the members of the Turkish non governmental organization, named "Foundation for the Scientific Search”. In particular, the accusation consisted into have formed a criminal association finalized to get illegitimate financial and sexual profits through the use of violence and threat. So, the trial established against the accused, after the President of the Court's recusation for his narrow bonds with the defender of the complainant - object of parliamentary interrogation and penal procedure -, it has been assigned to the 3rd State Security Court of Istanbul. The Court has held inconsistent the charge under the art. 1/1 and 4 L. 4422 and declared the lack of jurisdiction and has established that the contested facts were antecedent to the epoch of gone into effect of the Law de quo, noticing that as other two following episodes, they were however inconsistent. The restitution of the actions to the State Security Court Prosecutor, has involved the new treatment of the trial, after a series of pronunciations of territorial incompetence from different High Criminal Court, in front of the 2nd High Criminal Court. The last, after having requalified the presumed crime in the art.313 of the Turkish code, in date November 24 th 2005, declared the statutes of limitation of the contested crimes, excepted for six of the accused. The last ones were then acquitted in another procedure for penal irrelevance of the fact committed. The appeal proposed against the sentence with which the statute of limitations of the crimes had been declared with the retraining of the native charge, has required the intervent of the 8th Supreme Court of appeal; this last, absolutely irrefutably , annulled the declaratory sentence of the statute of limitation for the 18 accused holding subsisting the violation of the L. 4422, repealed and replaced with the art. 220 of the new Turkish penal code and it again returned the file to the 2nd High Criminal Court, to investigate in terms of art. 220 TCC. So, it is worth to premise that the question lately shown, imposes an analysis of some fundamental principles of the Italian juridical arrangement recognized at international level. To my opinion, in effects, a first problem of about the legitimacy of the prosecution is set whereas the crime object of the charge has been committed in an anterior date in comparison to the goes into effect of the contested norm; this in conformity with the phenomenon of succession of the laws disciplined by the principle of irretroactivity. "The law just provide for the future, it doesn't have retroactive effect" (art. 11 disps. Prel. c.c.); particularly, as regards to the penal law, the Italian arrangement attributes constitutional guarantee to the irretroactivity, providing that: "nobody can be punished if not in strength of a law that has gone into effect before the committed fact" (art. 25 paragraphs 2 Cost.). It must be observed, nevertheless, that the constitutional disposition doesn't rule all the different hypotheses of succession of the laws in the time, while a more detailed and punctual regulation can be found in the art. 2 c.p. italian What is relevant in our case it is what is stated in the I paragraph of the art. 2 c.p. that disciplines the phenomenon of the new incrimination, - both in the case in which the law introduces a figure of a crime non existent before, and in the case in which a new law introduces new constitutive elements in an already existing crime widening the course of it -, and it states the principle of the irretroactivity of the incriminating penal law. Therefore applying the first hypothesis just mentioned to the specific case, also in conformity with art.109 of the so called European constitution, which states that “nobody can be found guilty for an action or omission which, at the time it was committed, didn’t constitute a crime under domestic or international law (…)”, seems to be not legitimate the decision of the 8th Supreme Court of Appeal since the moment that, annulling the decision of the 2nd High Criminal Court, stated that there was a violation of Law n. 4422 by the accused. In truth, the object of the trial was already examinated by the 3rd State security Court, which legally applied the international principle of iretroactivity of the penal law, stating that the alleged facts were committed before the law invoked in the indictment entered into force; in this view it seems obvious that the accused can’t be tried for a crime which was not existing at the moment of the fact. Therefore, the recalled principle of iretroactivity of the incriminating penal law is complementary to the other fundamental principle of legality of which it constitute a corollary; the function of guarantees fundamental principle of this last mentioned principle, in its articulations of the reserve of law, of tassativity and of the forbid of analogy, would loose its meaning if it would be admitted the retroactivity application of new incriminating norms. Such principle of legality, furthermore, it is provided by the general and conventional international law; in particular by art.7 of European Convention of Human Right, and by art.11/2, of Universal declaration of human Rights. It will have to be concluded that what stated by the 8th Supreme Court of Appeal appear in evident contrast with the principle of legality. The decision of the 8th supreme court of appeal impose, furthermore, to valuate a second problematic, this time related to the effect of res judicata in criminal law, where it found a responsibility of the accused for the violation of the Law 4422, even if it was excluded by the 3rd State Security Court. Substantially the Court judged the same fact which was already judged, even if such previous judgement was definitive because not appealed and ratified by the 4th State Security Court. In this contest, t s obliged to recall the principles stated in art.649 of the Italian criminal procedural code -recognized at international level- which is called ne bis in idem, which provide the preclusive effect of a definitive decision, stating that “the accused acquittal or guilty with a definitive decision or a decree can’t be again trid for the same fact, even if such fact is differently qualified for the title, grade or circumstances, (…). The word title must be interpreted in the meaning f juridical qualification of the fact, with grade it is intended the major or minor gravity of the crime, manifested by the different between committee or attempted crime; circumstances are referring to the element which increase or decrease the penalties. The legislator, in practise, with such principle wanted to avoid that an accused can be under further proceedings for the same fact for which he was acquittal or guilty; that implies, therefore, the obligation for the Judge to pronounce (before or during the trial) a not proceeding decision (art.649, co.2, c.p. Italian). The forbid of a second judgment is subordinated then to the existence of two requisites, one of subjective nature and the other of objective nature: the first requires the identity between the persons already judged and the one under investigation or trial; the second requires the same historical fact. More in detail, it must be said that the forbid of a new proceeding applies not only when the historical fact appear the same, but also when that historical fact is the same, even if differently represented, meaning under different time and space modalities. It appear then the 8th Supreme Court of Appeal have proceeded for the same historical fact, when the trial was already defined with a previous judgement, trough a different juridical qualification of it, retaining subsisting art.220 of the new Turkish criminal code. So, even considering in mere hypothesis such crime committed by the accused, it must be excluded the possibility to proceed for that fact, since the moment that art.220 of new Turkish criminal code, introduced on the 1st June 2005,was not in force at the moment of the commission of the facts alleged. Such principle is provided in many domestic system of the world, and even by art.50 of the EU Chart of Fundamental Rights and other international conventions. On the end, it has to be observed that the 8th Supreme Court of Appeal formed its decision on the base of the confessions of the accused extorted trough tortures and inhuman treatment and the absolutely not utilizable. It is consolidated at international level the concept of moral freedom of the person-source of evidence; so it has to be guaranteed its integrity, and it can’t be used, even with the consent of the interested person, methods and technique which influence the free auto determination or which damage the capacity of remembering or valuing the facts. In the lights of what it has been said till now, the decision of the 8° Supreme Court of Appeal annulled the appealed decision, already definitive, it is clear the violation of the international principle of ne bis in idem, of the principle of the succeeding of dispositions in the time, and of the principle of legality stated by the Turkish law, and therefore the 2nd High Criminal Court, again assigned of the definitely decide case, will have to declare the to do not proceed or the acquittal of the accused. Fully respectful |
