REPORT IN RELATION TO THE TRIAL OF ADNAN OKTAR AND OTHERS IN THE STATE SECURITY COURT, ISTANBUL

Report of Professor A. J. Ashworth

This report summarises the certainty requirement of the European Convention on Human Rights. I have seen an English translation of article 4422, and also the scientific opinion of Professor Kay.

Requirements that criminal laws be sufficiently certain stem from two separate sources in the Convention. The principal source is Article 7, which in substance is a prohibition on retrospective criminal laws. It has long been accepted that an existing domestic criminal law would be regarded as operating retrospectively if it was too uncertain in its terms, and so a jurisprudence of certainty has grown up under Article 7. The second source is the so-called “quality of law” test developed by the Strasbourg court. Wherever a government seeks to rely on a “criminal offence” or “criminal proceedings” as part of its justification for certain powers or procedures (e.g. under Articles 5 or 6 of the Convention), it must be established that the offence with which the applicant is charged satisfies the “quality of law” test. One element of that test is that the law should be sufficiently certain in its terms.

In practice the two sources of the certainty requirement have coalesced to produce a single Strasbourg approach. The approach can be traced back to the judgments in Handyside v. U.K. (1976) 1 E.H.R.R. 737 and Sunday Times v. U.K. (1979) 2 E.H.R.R. 245. In the latter case the Court stated that

“a norm cannot be regarded as a `law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct.”

In essence this remains the criterion of certainty. The principle has been re-stated many times in similar terms, but it is fair to say that it has not been applied with as much vigour as its terms might suggest.

This is apparent from the decision in Steel v. U.K. (1999) 28 EHRR 603, where the Court set out the varying “definitions” of breach of the peace in English law and then held that the offence passed the “quality of law” test. Many of those “definitions” seem fairly imprecise, it must be said. The Court took the opportunity to explain this decision in the later case of Hashman and Harrup v. U.K. [2000] Crim L.R. 185, where the applicants had been bound over for behaving contra bonos mores . The Court held that this offence, described in English law as conduct which is wrong rather than right in the judgement of the majority of contemporary citizens, was not sufficiently certain to enable citizens to regulate their conduct. The Court distinguished Steel v. U.K. on the ground that the offence of conduct likely to provoke a breach of the peace is an offence which “describes behaviour by reference to its effects”, i.e. the tendency to provoke violence. The concept of conduct contra bonos mores fails to indicate the type of behaviour to be avoided. It therefore fails the quality of law test, and the “offence” cannot be used to justify detention under Article 5 or interference with any of the rights in Articles 8-11.

In relation to Article 7, the Court in Kokkinakis v. Greece (1994) 17 E.H.R.R. 397 declared that:

“Article 7.1 of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused's disadvantage. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ) and the principle that the criminal law must not be extensively construed to an accused's detriment, for example by analogy; it follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him liable.”

In Grigoriades v. Greece (1999) 27 E.H.R.R. 464 the applicant challenged a Greek military offence of “insulting the armed forces” on the ground that it was not lex certa and was therefore in breach of Article 7, but the Court held that, although “couched in broad terms”, the offence met the required standard since the ordinary meaning of the word was sufficient to encompass the applicant's conduct of writing a letter to a superior officer criticising the army. Once again, the application of the test in Strasbourg was relatively undemanding.

Application to article 4422

The article is intricate in its construction, as is apparent from the dissection of it by Professor Kay. The essence of the actus reus is twofold: first, the formation of a ring, which may be similar to conspiracy in English law; second, the employment of one or more methods of “terrifying, frightening or intimidating”, the methods enumerated being force or the threat of force etc. The essence of the mens rea is acting for one of the purposes articulated in the first four and a half lines of article 4422.

In general terms, it seems unlikely that an offence with this structure would fail to satisfy the certainty requirements of the Convention as interpreted by the Strasbourg Court because, under the terms of Hashman and Harrup v. U.K. , the offence attempts to describe behaviour by reference to its effects – or, at least, its intended effects, since it is worded as an inchoate or preliminary offence. No proof of the actual occurrence of the consequences set out in the first four lines of the article is required, although in practice a prosecution is more likely to succeed if actual effects can be shown. It is an offence of doing X for the purpose of achieving Y.

In my view the part of article 4422 that is most vulnerable to challenge is the reference to “building open or secret co-operation among its members.” It is unclear what forms of conduct are intended to be prohibited by these words. The idea of “building … co-operation” is nebulous: at its widest it could encompass even a casual conversation in which one person asks another whether he will be at a certain bar tonight. Moreover, in the structure of article 4422 this appears to be an alternative to the use or threat of force, rather than an additional element for the prosecution to prove. If one returns to the original principle as stated in the Handyside and Sunday Times cases, it is difficult to assert that this element in the definition is sufficiently precise to enable citizens to regulate their conduct. I would therefore conclude that there is a good ground for arguing that this element of the offence suffers from a form of uncertainty which fails to satisfy the “quality of law” test.

Andrew Ashworth,

Vinerian Professor of English Law, University of Oxford

31 July 2000