IN THE ISTANBUL STATE SECURITY COURT INDICTMENT No.: 2000/17

THE REPUBLIC OF TURKEY

– v –

ADNAN OKTAR and others

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OPINION

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I have had the benefit of reading English translations of the indictment and various documents relating to the allegations and counter-allegations made during the course of this prosecution. I have had sight of an English translation of the provision of the penal code under which the prosecution is brought, Act 4422.

I have tendered my advice based upon the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on the 4th day of November 1950 (“the Convention”), which sets out a basic and minimum standard of human rights to which the Republic of Turkey would be required to subscribe were it to be admitted to membership of the European Union.

The following Articles of the Convention appear to be relevant:

Article 3

No one shall be subject to torture or to inhuman or degrading treatment or punishment.

Article 5(1)

Everyone has the right to liberty and security of person. No one shall be deprived of that right save in the following cases and in accordance with a procedure prescribed by law: …

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.

Article 5(3)

Everyone arrested or detained in accordance with the provisions of paragraph (1)(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

Article 6(1)

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

The following observations are made:

1. All of the defendants in this prosecution should have been granted bail subject to conditions pending their trial rather than be remanded in custody. Nine months appears to be a somewhat excessive period for a remand in custody before trial. It does not, in any event, appear to have been necessary to deny any defendant his or her liberty in order to prevent offending whilst on bail or to ensure that he or she appeared for trial. Sureties would have addressed any appropriate concerns that the prosecution may have had.
2. Some of the prosecution evidence is alleged to have been obtained improperly. The Convention appears to require that the court of trial should exclude such prosecution evidence unless the court is sure that this evidence had not been obtained as a result of torture or inhuman or degrading treatment or punishment.
3. The trial should be held in public. There appears to be no justification whatsoever in this case to restrict access to the trial, or to hold it in private.

Adrian Evitts

Crown Prosecutor, Dyfed-Powys

Lecturer in Law, University of Wales, Aberystwyth

17 July 2000