Last Updated on May 8, 2019 by LawEuro
Communicated on 22 November 2018
SECOND SECTION
Application no. 76730/12
BurcuBALLIKTAŞ BİNGÖLLÜ
against Turkey
lodged on 25 September 2012
STATEMENT OF FACTS
1. The applicant, Mrs BurcuBallıktaşBingöllü, is a Turkish national, who was born in 1978 and lives in Istanbul. She is represented before the Court by Mr M. B. Mısır, a lawyer practising in Ankara.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 9 October 2001 the Istanbul State Security Court found the applicant guilty of the offence of membership of an illegal organisation and sentenced her to twelve years and six months of imprisonment. The court further held that she be banned from serving in the public service for life. Her conviction became final on 8 July 2002.
4. On 5 November 2004 the applicant was granted conditional release. By that time she had already served four years, seven months and twenty‑seven days of her sentence.
5. On 1 June 2005 a new Criminal Code (Law no. 5237) and Law no. 5252, setting out the rules and procedures for the application of the new Criminal Code, entered into force.
6. On an unspecified date the applicant requested that her case be re‑examined in the light of that new code to determine whether she could be granted the benefit of a more lenient provision.
7. On 5 June 2008 the Court of Cassation reduced the applicant’s sentence to six years and three months of imprisonment in the light of the more lenient provisions in the new Criminal Code. It further held that the deprivation of the applicant’s civil and political rights would be governed by section 53 of the new Criminal Code. On 11 October 2011 this decision became final in the absence of an appeal.
8. In the meantime, that is after she had been conditionally released, the applicant had graduated from a university and subsequently participated in an examination to be appointed to available posts in the public service as a research assistant. Having succeeded in the exam, she applied to a specific post in a public university in Ankara.
9. On 4 October 2011 the university informed the applicant that she could not be appointed to the said post in so far as her criminal record of conviction for an offence against the constitutional order of the State barred her from employment in the public service.
10. On 13 December 2011 the applicant went to the Beşiktaş court house in Istanbul to obtain a copy of the certificate in which the details of the execution of her sentence (“certificate of execution”) were indicated for the purpose of lodging a request for the restoration of her civil and political rights. According to the applicant, she was informed by an officer in charge of the execution of criminal court judgments in that court house that an error had been made in the calculation of her sentence when she had been granted conditional release and that she had five more days of her sentence to serve.
11. Accordingly the applicant was immediately taken to a prison where she was incarcerated for five days; she was released on 18 December 2011.
12. On 16 February 2012 the applicant lodged an application with the Ankara Assize Court and requested the restoration of her civil rights pursuant to section 13/A of Law no. 5352. She submitted that for the purposes of that provision her release date should be taken as 5 November 2004 and not as 18 December 2011 in so far as the error committed by the authorities should not be remedied at her expense.
13. On 19 March 2012 the 12th Chamber of the Ankara Assize Court dismissed the applicant’s request, holding that her sentence had not yet been executed. In that respect the court held that the applicant had been conditionally released on 18 December 2011 and her sentence would therefore be deemed to be executed officially on 11 July 2013.
14. The applicant lodged an objection against this decision with the 11th Chamber of the Ankara Assize Court and argued that the date taken as the release date by the first-instance court had disregarded the fact that she had in fact been released seven years ago on 5 November 2004. She submitted that the fact that the Ankara Assize Court considered her conditional release date and the final execution date of her sentence to be 18 December 2011 and 11 July 2013 respectively, without taking into account the mistake committed by the relevant authority, had grave consequences for her, such as the prolongation of the period in which she would be further prevented from exercising her civil rights. She therefore requested from the court to rectify her certificate of execution.
15. On 9 April 2012 the 11th Chamber of the Ankara Assize Court dismissed the applicant’s objections, upholding the reasoning of the 12th Chamber of the Ankara Assize Court. It was indicated that the decision was final.
16. The applicant’s similar applications to the Istanbul Assize Court were dismissed on 5 July 2012 and 31 August 2012 respectively. Those courts reiterated that 11 July 2013 would be the date when her sentence would be deemed to be officially executed and after that date the restriction on her civil rights would be ipso facto lifted in accordance with section 53 of Law no. 5237.
B. Relevant domestic law
17. Section 107 of Law no. 5275 on the execution of sentences and preventive measures provides as follows:
“Conditional Release
…
(2) … an offender who has served two thirds of his determinate sentence of imprisonment may be conditionally released.
…
(4) When conviction is for founding or managing an illegal organisation for the purpose of committing crime or for committing a crime for such an organisation … an offender who has served … three quarters of his determinate sentence of imprisonment may be conditionally released…
(6) An offender who has been conditionally released shall be subject to a period of supervision for half of the period equal to which he or she must serve before being released.
…
(14) The sentence shall be deemed to be executed if the offender has complied with the conditions of release and is of good behaviour during the period of supervision.”
18. The relevant provisions of section 53 of the Criminal Code (Law no. 5237) provide as follows:
“(1) As the statutory consequence of imposition of a prison sentence for an offence committed intentionally, the [convicted] person shall be deprived of the following [rights]:
a) Undertaking of permanent or temporary public duties, including membership of the Turkish National Assembly and all civil service and other duties which are offered through election or appointment by the State, city councils, town councils, village councils, or organisations controlled or supervised by them;
b) Voting, standing for election and enjoying all other political rights;
c) Exercising custodial rights as a parent; performing duties as a guardian or a trustee;
d) Chairing or auditing foundations, associations, unions, companies, cooperatives and political parties;
e) Carrying out a self-employed profession which is subject to regulation by public organisations or by chambers of commerce which have public status.
(2) The person cannot enjoy the [above-mentioned] rights until the prison term to which he or she has been sentenced as a consequence of the commission of the offence has been served.
(3) The provisions above which relate to the exercise of custodial rights as a parent and duties as a guardian or a trustee shall not be applicable to a convicted person whose prison sentence is suspended or who is conditionally released from prison. A decision may [also] be taken not to apply subsection 1 (e) above to a convict whose prison sentence is suspended.
(4) Sub-section 1 above shall not be applicable a person whose short-term prison sentence is suspended or to persons who were under the age of eighteen at the time of the commission of the offence.
(5) Where the person is sentenced for an offence committed by abusing one of the rights and powers mentioned in sub-section 1 above, a further prohibition of the enjoyment of the same right shall be imposed for a period equal to between a half and the whole length of the prison sentence…
…”
19. Conviction for certain types of offences entails further consequences, particularly with regard to the exercise of certain activities governed by special legislation. These restrictions concern the right to found or join political parties (Law no. 2820, section 11 § 2-5), the right to stand for election to Parliament, to the post of Mayor, or to the City Council (Article 76 of the Turkish Constitution, section 11 of Law no. 2839 and section 9 of Law no. 2972), and eligibility for employment in public service (section 48 of Law no. 657) or other regulated professions (i.e. section 5 of the Lawyer’s Act).
20. The provision setting out the procedure for the restoration of civil and political rights can be found in section 13/A of Law no. 5352:
“Without prejudice to Article 53 §§ 5 and 6 of the Criminal Code, and in cases where a person’s rights and privileges have been restricted as a statutory consequence of the imposition of a sentence other than those provided for in the Criminal Code, those forfeited rights may be reinstated provided that:
a) the [convicted] person has not committed a new offence during the period of three years following the completion of his sentence;
b) the court forms a favourable opinion regarding the [convicted] person’s conduct.
…
(4) The court may examine the request without holding a hearing or by hearing the public prosecutor and the applicant…”
COMPLAINTS
The applicant complains under Article 6 of the Convention that she was made to bear consequences of the mistakes committed by the relevant authorities which miscalculated her release date and that the courts examining her request for the restoration of civil and political rights and for the rectification of her certificate of execution decided in an excessively formalistic manner when dismissing her case. Under Articles 5 and 7 Convention she further complains that the revision of her certificate of execution amounted to a penalty since she was effectively put back in the conditional release regime and that the date when her sentence would deem to have been executed was unlawfully prolonged. In that respect she complains about the impugned measure causing serious implications in her private and professional life.
QUESTIONS TO THE PARTIES
1. Has there been a breach of the applicant’s right of access to a court within the meaning of Article 6 § 1 of the Convention on account of the dismissal of her request for the restoration of her civil rights on the ground that her sentence had not been executed? In particular was the courts’ approach in determining the date of the applicant’s conditional release and the final execution date of her sentence excessively formalistic given the fact that the delay in the execution of the applicant’s sentence was not objectively imputable to her?
2. Did the revision of the certificate of execution and more specifically its implications for the applicant amount to an interference of her private life within the meaning of Article 8 of the Convention? In that respect, had the alleged mistake not been made by the authorities what would have been the earliest date when the restriction on the applicant’s civil rights and obligations on account of her conviction expired within the meaning of Section 53 § 2 of Law no. 5237 or were removed within the meaning of Section 13/A of Law no. 5352?
The parties are requested to submit the certificate of execution (müddetname) when the applicant was first conditionally released in 2004 as well as the revised certificate of execution following her second incarceration in 2011.
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