ankarabarrevıew
HOW JUSTICE MAY BE REACHED THROUGH ADVOCACY
Published by the Ankara Bar Association Volume 2 • Issue 2 • July 2009
ISSN: 1308-0636 The Owner on behalf of Ankara Bar Association & Editor in Chief V. Ahsen Coşar Executive Editor Cemal Dursun Committee Chair Cemal Dursun Committee Vice-Chair Levent Aydaş Managing Editor Habibe İyimaya Kayaaslan, LL.M (UK) Technical Editor Larry D. White, JD Board of Editors Cemal Dursun, LL.M (The Netherlands) Levent Aydaş Nursel Atar, LL.M (USA) Altan Liman, LL.M (The Netherlands) Ş. Saadet Özfırat van Delft Ayşegül Özdemir, LL.M (UK) Ece Yılmaz, MA (Malta) Kadir Yılmaz, LL.M (UK) Sadık Onur Gelbal Cemre Kocaçimen, LL.M (Turkey) Özge Evci, LL.M (Turkey) Özgür Metin Cansu Akgün, LL.M (The Netherlands) Board of Advisors Sami Akl Mustafa Bozcaadalı Aidan Robertson Prof. Wendy Davis Prof. Yüksel Ersoy Prof. Arzu Oğuz Dr. Gamze Öz
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• Articles and letters that appear in the Ankara Bar Review do not necessarily reflect the official view of Ankara Bar Association and their publication does not constitute an endorsement of views that may be expressed. • Readers are invited to address their own comments and opinions to Ankara Barosu Başkanlığı, Adliye Sarayı, Kat: 5, Sıhhiye, Ankara Turkey or
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• ABR is available through HeinOnline
CONTENTS Foreword V. Ahsen COŞAR
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From the Editor Habibe İYİMAYA KAYAASLAN
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Opening Speech of the 47th Anniversary of the Foundation of the Constitutional Court (April 22, 2009) Haşim KILIÇ
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Pollution Fines in Turkish Waters Müge ANBER, Esq.
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Conflict of Laws on Environmental Liability Law Dr. Sema ÇÖRTOĞLU KOCA
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Insolvency of an EU Company May be Declared by a Court of Another Member State Agata ADAMCZYK
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Procedure and Basic Essentials for Extradition Requests Coming to the Turkish Republic Cenkalp DURAK
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The Role of Drugs in Terrorism and Organized Crime Engin DURNAGÖL
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The Case of Thomas Lubanga Dyilo: The Implementation of a Fair and Public Trial at the Investigation Stage of International Criminal Court Proceedings Yusuf AKSAR
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Transformation of Turkish Criminal Law From the Ottoman-Islamic Law to the Civil Law Tradition Dr. M. Yasin ASLAN
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Is Nihat Kahveci an EU-Footballer? the Path From His Request to the Legal End. Juan de Dios CRESPO PÉREZ
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The European Court of Justice’s Ruling in the Kahveci Case Lights the Way for Other Turkish National Sportsmen in the European Union Zeynep İlay GÜMRÜK What Civil Law Attorneys Should Know About the Common Law – Part II Larry D. WHITE
News
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Foreword ■■
by V. Ahsen COŞAR
President
tions and in time of trouble.
Dear Readers,
W
ellcome to the new issue of Ankara Bar Review. In this issue I want to write on the necessity of having a lawyer, the need for lawyer’s legal assistance, the professional legal ethics of lawyers, and censures and disbarment of a lawyer. In the words of the Chief Judge of the USA Supreme Court, Frederick M. Vinson, “Although the law is a highly learned profession, we are well aware that it is an intensely practical one.” In light of this maxim, we can claim that lawyers are the major and essential part of the legal profession, as well as the judges and public prosecutors. Unfortunately, some people are vaguely distrustful of lawyers and are reluctant to seek out legal advice when they need it. This is unfortunate, because your lawyer can be a real and sincere friend when you are in need – as helpful and important to you and your family as a doctor or clergyman or a financial consultant. S/he is a special trained person whose purpose in life is to serve his/her clients and the community in which s/he lives and to give you the best and true advice s/he can about some of the most complex problems of modern life. By describing what the lawyer does, we hope to make it easier for you to see him/her as a human being whom you can confide and trust and who may be of enormous help to you in ordinary transac-
How can you cooperate with your lawyer in order to achieve the best working relationship with him/her? For one thing, you should at all times be completely honest and open with him/her, disclosing to him/her every fact regarding the situation you are discussing. You should not be the one to judge whether a fact is legally significant or whether your interests will be better served by concealing it from your lawyer. S/he cannot do a thorough job for you unless s/he knows everything you know. You must then have confidence in his/her ability to do two things: to screen what is relevant from what is not relevant and to keep in confidence everything that you have told him/her. This applies whether you are talking about a contract or a lease negotiation, the defense of a criminal or tort suit or any other problem about which you are consulting him/her. To the extent that you fail to disclose information to your lawyer, you are acting as your own attorney, and you may be damaging your own position in the matter s/ he is handling for you. A second principle for working well with your lawyer is to follow his/her advice. You shouldn’t go to a lawyer in the first place unless you believe that you need his/her special knowledge and skills and unless s/he has been recommended to you. This principle carries even more weight when your relationship with your lawyer has become well established over a period of time. When you go to your family doctor to be treated, you would feel rather foolish if you didn’t follow whatever advice s/he gave you – you would have wasted his/her time
3 and your money. The same is true of a lawyer. If you should have the rare and unpleasant experience in which you believe you are not being properly treated or represented by your lawyer, you may of course change your lawyer with another one – as you may change your doctor or account. If you believe your lawyer’s conduct has been improper, unethical or illegal, you are entitled to complain. Here are some of the basic principles of professional ethics adopted by the Union of Turkish Bars: ♦ A lawyer should assist in maintaining the integrity and competence of the legal profession. ♦ A lawyer should never take advantage of his/her client’s confidence in order to realize some personal benefit or gain. ♦ A lawyer should promptly account for any money or property or funds belonging to the client that come into his/her possession. ♦ A lawyer should preserve the confidence and secrets of a client. So, a lawyer may never disclose any information about his/her client’s affairs that s/he learned in confidence while working with the client. ♦ A lawyer should never have a financial interest in the subject matter of any litigation that s/he is conducting or in which s/he is advising. ♦ A lawyer should avoid even the appearance of professional impropriety. ♦ A lawyer should exercise independent professional judgment on behalf of a client. ♦ A lawyer is also liable from the losses caused by her/his malpractice.
These principles are enforced by local Bar Associations all around the country; they receive complaints about lawyers in their area and conduct hearings if they believe the facts justify doing so. The vast majority of lawyers will do everything possible to avoid unfavorable publicity or censure by their fellow lawyers. In the rare case in which a lawyer’s conduct is a clear violation of professional ethics, the Board of Directors of the local Bar Association may send the complaint to the Disciplinary Board to seek an order censuring the lawyer or even disbarring him/her. A lawyer whose conduct is illegal, as distinguished from unethical, is subject to prosecution like any other person accused of breaking the law. In such a case, the local public prosecutor should prosecute the attorney after permission is obtained from the Ministry of Justice. If it is necessary, the public prosecutor may open a criminal lawsuit against the accused lawyer. A license to practice law is no cloak of immunity from violation of any law and this principle is known to all lawyers. See you in our next issue. Best regards.
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From the Editor ■■ by Habibe İyimaya Kayaaslan
T
he Republic is taking bold steps which may draw the attention of international observers: the so-called Ergenekon Case, which is named after a Turkish legend, and Kurdish initiatives, for example, so that the rule of law shall prevail. On the other hand is it that simple to define the rule of law! Yet rules are crystallized law, so how one can design them dynamic enough to balance counter opinions/interests constantly? Mr. Kılıç, quotes from Tolstoy “There are as many opinions as heads and are as much love as hearts”, which clearly underlines the colorfulness of a society’s natural structure and he proposes institutionalized pluralism and participation as the remedy for chronic depressions. The problematic issue would be to define the boundaries of tolerance of pluralism. Here Mr. Kılıç, offers human dignity as the main criterion to be respected at all times. However, as the concept of
human rights gets broader, the terrorist organizations get more organized and more transnational in the mean time, as evaluated by Mr. Durnagöl. Accordingly Mr. Durak emphasizes that it gets more complicated to secure global justice when the Sword of Damocles (ECHR) is above the head, in addition he suggests combating crimes with an international character can only be achieved by removing strict barriers of traditional principles with regard to competence (jurisdiction). Mr. Obama gave a remarkable speech at the Turkish Parliament in April 2009 touching on the very similar issues, stressing that international partnership is critical in rolling back a fringe ideology that people of all faiths reject. At this point you may find the overview of the revolutionary steps in Turkish criminal law given by Mr. Aslan useful. On the contrary, to strict security concerns, according to Mr.
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Aksar, the participation of victims in the investigation stage of proceedings shall be questioned in the context of fair trial, as discussed in Lubanga Case. Not only terror is transnational, unfortunately pollution is transnational, as well. You will read Ms. Anber demonstrating the pollution fines for sea-going vessels and Ms.Çörtoğlu Koca pointing out -- with regard to jurisdiction and applicable law -- that even if the pollution does fall within the permitted limitations, one can claim damages. In “What Civil Law Attorneys Should Know About the Common Law-Part II” Mr. White details the purpose and practice of the jury in the Common Law System. In this issue you will also find two EU related topics. First, an article written by Ms. Adamczyk on a unified system of the declaration of insolvency, which explores the concept of “centre of main interest”. The second topic is quite an exiting one for football fans; Ms. Gümrük lays out the legal basis of the recent ground breaking decisions which in a way derive from the distinction of national and non-national player limitation. And you will
read the inside story from Mr. Crespo Pérez, the actual Attorney of Nihat Kahveci, the football player. His adventurous expressions may take you to the fields with the Mexican wave. We wish you enjoyed the sun and will the ABR until our next issue in January 2010. Kind Regards.
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Opening Speech of the 47th Anniversary of the Foundation of the Constitutional Court (April 22nd, 2009) ■■ by Haşim Kılıç*1 Distinguished President,
I
would like to thank especially to You, to the esteemed chief judges coming from abroad as well as their accompanying delegates, and to all our guests for being here with us to share the pleasure of celebrating the 47th Anniversary of the Foundation of the Constitutional Court and opening of our new premise. The aim of the Constitutional Court is to perform the ‘rule of law’, to safeguard the ‘fundamental rights and freedoms’ of the people, and to make the ‘rule of law principle’ prevail over all public and state institutions. The most important function of a democratic constitution is to safeguard the fundamental rights and freedoms of an individual by way of restricting the political power effectively. This function of the constitutional laws is indeed the result of seeking a balance between freedoms and authority both of which are the prerequisites of the social living. It is obvious that individual freedoms can be assured only when the scale of the power is outlined and restricted with the legal rules. The history has witnessed that unlimited power can jeopardize the rights and freedoms severely. * Mr. Haşim KILIÇ is the is a high-ranked judge and the President of the Constitutional Court of Republic of Turkey
Opening Speech of the 47th Anniversary of the Foundation of the Constitutional Court
This also applies to modern democratic regimes which are built upon the majority principle. Democracy presupposes that the public holds the sovereignty; however, authority of power of a political majority which uses the sovereignty is not limitless. The ‘limit’ here is the rights and freedoms of an individual. However, it is an actual fact that substantial problems arise during the process of identifying and protecting these rights and freedoms. This also applies to modern democratic regimes which are built upon the principle of rule by majority. Democracy presupposes that the people hold the sovereignty; however, the authority of power of a political majority which uses this sovereignty is not limitless. The ‘limit’ here is the rights and freedoms of an individual. However, it is an actual fact that substantial problems arise during the process of identifying and protecting these rights and freedoms. As stated by one of the most important liberal philosophers of the last century, Friedrich Hayek, ‘how to restrict the willpower of public will without introducing a superior will over it’ constitutes the basic question of the democratic regimes. This question asked by Hayek actually outlines the existence and limits of the constitutional jurisdiction. Constitutional courts were established in order to restrict the powers of the legislative and executive branches which reflect the public will. The legitimacy of such courts has also resulted from the function of restricting the power of the majority in order to protect fundamental rights and freedoms. However, constitutional jurisdiction will face a crisis of legitimacy if the actors performing in the area of constitutional law – also called the “negative legislator” – diverge from the reason of their existence or when they do not duly protect the rights of individuals or otherwise attempt to place the democratic political will under guardianship. The sixth paragraph of the preamble to our Constitution states that “Each and every Turkish citizen has a natural right and authority to avail themselves of the fundamental rights and freedoms stated in this Constitutional Law without prejudice to equality and social justice; to live “AN HONORABLE LIFE” as shaped by the national culture, civilization and legal order; and to develop their tangible and intangible assets in this direction.” Such an understanding, which associates the development of tangible and intangible assets of a Turkish citizen with “an honorable life” is one of the most important constitutional elements which need to be considered. Until the 19th century, “human dignity” had been an ethical neces-
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ankarabarrevıew 2009/2 sity in the studies of philosophers and thinkers. However, “human dignity” started to have a political meaning following the social fractures after the introduction of industrialization, colonialism and national states. Ensuring that life and social conditions which comport with the human dignity turned into a discourse which would affect the post 19th Century period. Dignity came into existence with humans; although not called so initially, this basic value of dignity was already in the minds of all people. It was only in the 20th century that this basic value was adopted by state institutions and organizations, or in other words, incorporated into constitutional law. Constitutional laws and international documents generated in this century included the concept of human dignity. This concept reflected a historical knowledge in one way, but it was also a reaction against the huge disasters experienced in the same century. Nevertheless, it is not fully understood yet that ‘human honor and dignity’ must be recognized and safeguarded by the democratic systems by which the nations generate their constitutional laws and fundamental values with their own free will. A pluralistic society must protect some common, universal values despite opposite prejudices, beliefs, opinions and diverse life styles so that it can survive to be have a liberal and democratic structure based on the principle of the rule of law. Therefore, the concept of human dignity should be seen at the top of all these universal values reflecting social awareness and representing the response for the protection of human rights. There is no doubt that even feudal, militarist, theocratic or hierarchical states can claim the inclusion of the concepts of freedom, equality and fellowship. However, in such states, freedom applies to only some people, and equality and fellowship are available only among people who share common beliefs or ideologies. The fight against such systems was seen also when today’s pluralistic democracy was created, and it continues forward to the future. Human dignity constitutes the main axis of the Universal Declaration of Human Rights which was agreed to by the nations of the world following the devastating impact of militarist, autocratic and totalitarian systems. The first article of the Declaration states “All human beings are born free and equal in dignity and rights.” Our national law adopted this Declaration on 6 April 1949. Human dignity requires that no one can be owned, deprived of his/ her rights or be subject to degrading punishment or treatment; it also requires that torture be prohibited; ending someone’s life can not be
Opening Speech of the 47th Anniversary of the Foundation of the Constitutional Court
acceptable, and no one and no state institution can act against the belief that human life is the most valuable asset. Human dignity is such a fundamental value that not only privileged or reputable people have it but also any human being has it without condition or without necessarily being a member of any organization or institution. Human dignity does not segregate people according to their gender, ethnicity, religion, or philosophical or moral values. Dignified treatment does not require ethnic, religious or ideological homogeneity, either. Human dignity is such a value that no system or state can dare to defy it. Political systems must take human dignity as granted, respect it and dedicate themselves to protect it. Treatment of human beings is the one and only basis to value such systems. States, systems, justice and similar structures can be respected as long as they serve humans and their freedoms and maintain their dignity. The renowned philosopher Kant says that a “human being is the true end of nature; and in no circumstances can be used simply as a means. “ Human dignity can neither be nullified on the grounds of others’ fundamental rights nor be overridden by the prevailing “constitutional values” in the political structure. Constitutional norms actually indicate how far human dignity is protected. If human dignity is overridden in a constitution, then this law is not generated purely with the free will of that society. Fundamental values regarding rights and freedoms identify the content and the direction of political function. In pluralistic democracies, the fundamental values have been freedom and democracy since the French Revolution of 1789. In other systems however, such values are based on the ideologies which steer state organizations and institutions. From this perspective, we can say that human dignity can be made more visible by • Respecting and protecting the bodily integrity • Ensuring legal and social equality • Providing humanitarian living conditions and • Allowing the self determination of one’s identity and personality according to his/her preferences. This also complies with the historical development of the fundamental rights and freedoms. As stated by Mirandola, this is indeed the process of self-actualization and self-control of one’s destiny for the purpose of autonomy. Distinguished President,
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ankarabarrevıew 2009/2 Being the “core” element of rights and freedoms, human dignity has bonds with the stable features of the state. Pluralism, which already exists in human nature, does not allow single ideas or single beliefs. Democracy necessarily includes the existence of minorities and their right to express themselves. Democracy is based on diversity, which embraces tolerance and patience. A democracy which is devoted to such values should be given the chance to resolve its problems. Differences and diversities in social opinions, which exist in democratic regimes, are necessarily reflected in political life and are important to have a sound political life. Internal peace can be ensured in that way only. Institutionalized pluralism and participation will be the remedy for chronic depressions. It is now too late to turn around the Turkish people since they have already experienced democracy and have fundamental rights and liberty, along with democracy to guarantee their human dignity. Our people, who have made the principles of democracy a part of their way of life, cannot be dissuaded from these. Contrary to pluralism, single beliefs and single ideologies compel people into being hypocritical and to live a life that is not theirs. It would be completely irrational to say that democracy can allow such an attack on human dignity. Fanaticism, living in the concept of a ‘single truth,’ may establish an environment where ‘the different’ is transformed into ‘the other’ and destroyed. Each opinion, belief or ideology that defines its existence as the absence of ‘the other’ is clearly fanaticism. However, libertarian and pluralist democracy make it a must to conceive the existence of the different or “the other” as the warranty of its very existence. As long as we fail to establish a healthy relationship with ‘the other’ and do not deem it to be ‘a friend,’ it is impossible to reach the tolerance and pluralism required by contemporary democracies. Democracy is a technique for peace that, although it does not claim to dissolve tension and conflicts, persuades the parties to live together in a tolerant atmosphere. A statement by Tolstoy which says “there are as many opinions as heads and are as much love as hearts” clearly underlines this colorfulness of a society’s natural structure. Our great savior Gazi Mustafa Kemal, who said “I do not want dogmas, otherwise we would stand aghast,” as well points to a society that questions, criticizes and tries to find what it has lost on the bright way of science and draws the program of an honorable life of national will and democracy. Briefly, it can be said that a democratic, secular and social state of
Opening Speech of the 47th Anniversary of the Foundation of the Constitutional Court
law described in the Article 2 of our Constitution, takes its strength from the immunity of human dignity. Distinguished President, The concepts of religion and secularism, while supporting some political movements strategically and logistically, have caused some restrictions on individual rights and freedoms. Border conflicts involving religion and politics have abolished the sound basis for disputes. It is inevitable that politics live within religion as long as the problems concerning freedom of thought and faith are unresolved. Secular and democratic principles of our constitutional law make it a must that the state develops an objective and egalitarian attitude towards ideologies, beliefs and disbeliefs. The quality of being a state having the principle of rule of law means undertaking the mission to ensure impartiality. The people of Turkey, who are determined to protect the democratic and secular structure of the Republic despite all these challenges, are aware through experience that the fact that their social demands are perceived as hostility against the state only defers and aggravates problems. Government institutions cannot cause discrimination by declaring part of the society as their allies and part of it as their enemies. A psychological atmosphere in which a victory for a segment of the society is the defeat of another segment, while bringing about solutions to social problems, does not contribute to peace and democracy, but rather triggers revenge. “Establishing counter balances” that are required by democratic insight will facilitate the solution of these problems while ensuring social conciliation. Thus, attempts to solve each and every social problem on the basis of constitutional norms that depend on the power of quantitative majority, regardless of counter balances, have resulted in historical mistakes that are very difficult to fix in the short term. Beliefs and opinions hidden underground experience the advantage of a charm they do not deserve. Elimination of this unfair competition depends on the existence of a platform for discussion in a free atmosphere. The barriers against freedom of expression that force individuals to use pseudonyms should be abolished without harming human dignity. In this context, political parties continue to experience problems regarding freedom of expression. Although the unconstitutional actions of political parties are stated in paragraph four of Article 68 of the Constitution, judicial decisions are filled with ambiguities due to the fact that these unconstitutional actions are not explained in the Law on Political Parties.
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ankarabarrevıew 2009/2 The sanction of closing down a political party permanently should not be abolished, however, a framework should be adopted in accordance with the standards determined in the European Convention of Human Rights. The sanctions to be implemented should be adjusted without delay by separating actions and expressions involving terror, violence, pressure from peaceful actions; closure cases should not be instruments to shape democratic political life. Depriving treasury aid to political parties that act contrary to constitutional values under protection by Article 68 in the Constitution, instead of closing them permanently for these crimes by the Constitutional Court, is an interim sanction incompatible with the nature of a political crime. This is not a counterbalance and it needs to be reconsidered. Interim sanctions to be taken before closing down a party should be diversified depending on the severity of the offense and should be compatible and balanced with political concerns. Thus, there is no doubt that the inequality of sanctions in closure cases will be removed between political parties that receive treasury aid and those that do not. It may be appropriate to impose financial sanctions on political parties which have stated their accounts deficiently, incompletely or not at all during financial audits, but not otherwise. Neither the 10% election threshold applied in elections throughout the country nor the 7% vote threshold for financial aid to political parties from the treasury can be justified based on the principles of democracy and fair distribution. These arrangements can be changed without harming the essence of democratic participation. On the other hand, the link between human dignity and a state governed by the rule of law besides democratic and secular principles cannot be ignored. A state governed by the rule of law is a state in which rights and freedoms are assured, all actions and transactions of the government are subjected to judicial review and individuals are provided with legal security far from any kind of fear and concern. The state means power and authority. In cases where this is not limited and controlled, one can talk about arbitrariness and unlawfulness. The judiciary, as the fundamental element of the state governed by the rule of law, naturally decontaminates the society through the filter of law. There is no doubt that a judiciary that is not independent and impartial will increase the contamination rather than decontaminate the society. A strong and impartial judiciary is the guarantee of democracy, secularism and social state. The impartiality and independence of the judiciary which guides mavericks of law is vital to the authority of having the final word. The impartiality of a judge is his
Opening Speech of the 47th Anniversary of the Foundation of the Constitutional Court
dignity. The judge has to be indifferent to his feelings that will influence his impartiality, subjective opinion and anger in the court of his conscience. Feelings of friendship and hostility that affect the conscience of the judge remove his impartiality. The judge’s fear of isolation from the social environment in which he lives, due to unpopular decisions that he has taken or he will take, is a feeling that never suits professional dignity and the most significant contribution he can make to his impartiality would be to save himself from this social pressure. Since the duty to protect, seek and assure rights and freedoms, or in other words human dignity, has been consigned to the judiciary, this sacred duty can only be assured by the impartiality of the judge. Distinguished President, Although it is stated openly in Article 138 of the Constitution that “no body, authority, institution or individual can give orders and directives, send circulars, make recommendations or suggestions to courts and judges while exercising judicial power,” attempts to influence and orient the judiciary are still continuing. In every important case, while the judiciary is surrounded by political opinions, the ‘judges’ of the media and politics ‘take’ decisions and ‘conclude’ the case before the judges in court do. The efforts to orient and influence courts as well as the attempts to detract judges and prosecutors from their personal convictions by teasing out their private lives are simply crimes. Our prosecutors’ failures to act against these crimes are thought-provoking and sad. The dignity of people who are declared guilty without a judicial decision is destroyed; this is a crime against humanity. Negligence at the stage of implementing laws causes wounds on people’s dignity and honor that are difficult to recover from. Human dignity and personal immunity are the most important foundations of our system and declarations of human rights; it is the only value above the Constitution. Any kind of necessary adjustments should be made urgently before the anger caused by the destroyed human dignity turns into the feeling of revenge against democracy and state of law. Although it is openly stated in Article 153 of the Constitution that the decisions of the Constitutional Court bind legislative, executive and judiciary branches and all natural and legal persons, the fact that the grounds for decisions which are so clear as to not cause any reservations are reinterpreted and amended, changed, made inefficient and rendered meaningless, and that these attempts are supported, disables this Article. The conjectural tension in political life has not allowed the continuation of statements against such attitudes.
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ankarabarrevıew 2009/2 Distinguished President, The reform of the judiciary has turned into a symphony that has not ended for years. In almost every period, attempts and discussions have been made and statements have been issued on this topic, but the reforms have not yet been realized. Problems pertaining to the judiciary that have been postponed or concealed are growing year after year. Despite the fact that the court houses built all over the country for ameliorating the working conditions of the judges and prosecutors is a promising development that has increased motivation, delaying contemporary reforms regarding the functionality of the judiciary for years is upsetting. I do not want to talk about the structure of the Supreme Council of Judges and Public Prosecutors, the actions and transactions of some institutions that were excluded from the judiciary and problems regarding the discipline and promotion of judges like Presidents of the Court have insistently done in previous years. Yet all these problems are facts already known by those outside the world of law. However, the fact that the faith in law and justice has weakened, due to an important blockage in judicial and administrative justice as the workload has increased significantly in these institutions in recent years, is followed with concern and worry. I need to state immediately that the extraordinarily devoted efforts of our distinguished colleagues in judicial and administrative justice have not sufficed to decrease this rapidly increasing accumulation. Increasing the number of members of the judicial chambers has not contributed to the solution of the problem either. The “right to a fair trial” assured in our Constitution and fundamental human rights conventions to which we are a party is seriously violated when trials go on for years or lapse due to the increasing number of cases. In this context, it would be useful to examine the statistical situation of our country in terms of the applications and concluded cases in the European Court of Human Rights. According to the activity report of the European Court of Human Rights, among 97.300 pending claims at the Court at the end of 2008, 11.100 are applications against Turkey. Therefore, 11.42% of the claims that the Court deals with pertain to Turkey. It can be inferred from these numbers that Turkey, after Russia, is the country against which most applications have been made. In the last decade, 1652 of 8172 violation decisions made by the European Court of Human Rights pertain to our country and more importantly, half of these decisions are related to the violation of the right to a fair trial. In terms of
Opening Speech of the 47th Anniversary of the Foundation of the Constitutional Court
our country that has a rooted constitutional jurisdiction tradition, this situation indicates that it is a vital responsibility to remove the obstacles in a judicial system which should assure justice independently, impartially, rapidly, efficiently and effectively. The most important reason for this negative situation is, doubtlessly, the fact that the necessary internal auditing system has not been established and operating effectively. As correctly stated in various forums, the most important step that should be taken is made the “constitutional complaint,” which is a method to ensure that the applications are examined within domestic law before they are sent to the European Court of Human Rights. In order for the Turkish Constitutional Court, the 47th establishment anniversary of which we have reached today and which was established as the fourth such court after those of Austria, Italy and Germany, to conduct its function as the “court of freedoms” as expected in this process, the right of individual application is needed. The European Council Committee of Ministers mentioned in its advisory decision 2004/6 of the need to recognize the individual application method in domestic law in order to reduce the case load in the European Court of Human Rights. Likewise, the European Council Commission of Democracy through Law, otherwise known as the Venice Commission, expressed their positive opinion on a Constitutional amendment recommending the constitutional complaint that had been declared to the Turkish public in 2004. However, despite all these calls, assurance has been left only to the constitutional control of “laws” against the concrete, current and painfully recurrent violations of fundamental rights and freedoms through the actions of thousands of institutions. An individual application or constitutional complaint is defined as an extraordinary legal method that individuals resort to in cases when fundamental rights and freedoms guaranteed in the Constitution are violated by legislative, executive and judicial branches. The way to instigate an individual application differs from country to country, however, it has been implemented in countries such as Federal Germany, Austria, Spain, Russia, Hungary, Ukraine, Poland, Czech Republic, Slovakia, Switzerland, Belgium, Mexico, Chile, Brazil, Argentina and South Korea. The supremacy of human dignity should be effective not only against the legislative branch, but also against all authorities and persons using state power. In cases where social will cannot rule the state, it will not be possible to protect human dignity stated in constitutions because the state cannot take fundamental political decisions con-
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ankarabarrevıew 2009/2 cerning itself through its representatives, since it cannot know which powers belong to whom or the democratic control of these fields do not function properly or they have been transferred to bureaucratic mechanisms. This is because democracy is the way to attain and protect freedoms. This principle requires social pluralism to be reflected not only in the legislative branch but all other state institutions. For more than twenty years, Turkey has accepted the binding jurisdiction of the European Court of Human Rights, the judicial body of the European Council, of which Turkey has been a member since its establishment. While the violation decisions taken in the process that started with the applications of our citizens who have exhausted domestic remedies are enriching the case law of the European Court of Human Rights, they also contribute to the strengthening of fundamental rights awareness of individuals. This interaction process created opportunities for a social transformation in our country through legal and constitutional transformations through the contribution of international relations. Our citizens who saw that they are subjects of both their own state, and directly the international community, are pleased to be able to obtain legal protection through international institutions. However, this also has a sad aspect – although our citizens can sue for their fundamental rights and freedoms through international jurisdiction authorities, they do not have the opportunity for constitutional complaint through which they can sue for fundamental rights and freedoms here in Turkey. This is a deficiency that needs to be included in the Constitution and a negative limitation in terms of having a right to legal remedies. While this situation turns into a belief that they can only protect their fundamental rights and freedoms through international judicial bodies, it causes a lack of faith in their national institutions, and can also weaken the legitimacy of a political system that is indifferent to these demands. International judicial decisions do not have a direct effect in domestic law, but they lead to financial compensation for the victim. Besides this, with the binding effect of international relations, we are content with sometimes legal, sometimes constitutional adjustments here and there. However, when we look at the adjustments in our country, it is seen that the resistance is not against making amendments, but rather against reforms to better the practice of democracy and freedom. Despite the legislative will, it is quite difficult to overcome the habit of resistance in subjective “legal” perceptions by only making amendments. The internalization of fundamental rights and freedoms by institutions and having them practice it regularly can only be done through a sanction mechanism. Actually, in Germany where the indi-
Opening Speech of the 47th Anniversary of the Foundation of the Constitutional Court
vidual application method was implemented, the judicial system facilitated the authoritarian and totalitarian forces in Weimar period. However, only after 1949 did the judicial system play a role that advanced human dignity and freedoms, and it effectively influenced the case law of many national and international judicial authorities. Without a doubt, with the amendment of Article 90 of the Constitution in 2004, which prioritized international conventions vis-à-vis legislation, the basic constitutional infrastructure regarding individual applications already exists. However, the fact that international conventions which have the effect of domestic law rules do not change the situation in practice because international conventions too, like our constitutional norms, include abstract expressions and such abstract expressions require the case law to further develop the rules; decisions contrary to the international conventions make the amendments ineffective. However, with this 2004 amendment, the will of the legislator requires the international freedom standards to be considered. It is clear that unless the case law of the European Court of Human Rights of more than a half century is considered, it will be meaningless for our country to be a signatory to the European Convention on Human Rights. With the adoption of the individual application method, the practices in Turkey will be harmonized with international judicial practices, which are needed, and the demand for freedoms clarified through democracy will rule the state and society. The criticism against the institution of the constitutional complaint since the end of the 1980s when individual applications were accepted to the European Court of Human Rights is because this institution is not known well. It can be observed that the criticism depends on the false hypothesis that if Constitutional Court is given the authority to accept individual applications against court decisions, the Court could become a “supreme court.” Therefore, some points should be clarified. There is no doubt that it is not possible for the Constitutional Court to function as a court of appeals for individual applications. As stated by the doctrine and academics in previous Constitutional Law symposiums, an individual application can only be made if all legal remedies are exhausted, and the control of the Constitutional Court will be limited to whether the interpretation preferred in the application of laws violates the fundamental rights and freedoms guaranteed in the Constitution. The Constitutional Court will not make case analysis, defines legislatives acts or establish provisions in the law to be implemented under any condition. As one cannot talk about the intervention of the Constitutional Court in the powers of expert courts, a new method of appeal is not at stake either. There is no doubt that there need to be
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ankarabarrevıew 2009/2 arrangements to prevent possible power conflicts between the Constitutional Court and other courts and to prevent the Constitutional Court from turning into an extraordinary appeal authority. In the individual application method, the broad discretionary power to be assigned to “commissions” that will be formed specifically on the acceptability of the claims will function as a filter in eliminating unnecessary cases. The recommendation of the individual application method which will lead to significant progress in the protection of fundamental human rights in all state institutions as well as judicial system should be seen as a way to remove obstacles in freedoms. Making these recommendations the subject of inter-institutional competition will do nothing but leave our problems unsolved. Distinguished President, In respect of physical location, I would like to express that the Constitutional Court, going through a significant amelioration process in Turkey’s conditions with the great contributions of our State, has made considerable progress in becoming a rapid, efficient judicial body that concludes cases in periods envisaged by the Constitution with its efforts and decisions in the world of law. The devoted efforts of the officials of our Court indicate that the accumulation of cases due to various reasons will soon be cleared up. Distinguished President, distinguished presidents of courts coming from abroad and distinguished guests, You have honored us to share our happiness and joy; you gave strength to us. I would like to state that we are here to protect the eternal existence and integrity of Republic of Turkey and to protect the rights and freedoms of individuals in order for them to live in a state where the legal order prevails. I extend my regards to all of you on behalf of our court.”
Pollution Fines in Turkish Waters
Pollution Fines in Turkish Waters ■■ by Müge Anber, Esq.*
T
urkey considers sea pollution emanating from ships as a major threat to its waterways, and especially the Turkish Straits system. Therefore in Turkey the requirements of regulations concerning pollution caused by ships are very stringent. Fines are applied to tankers, ships and other sea-going vessels in cases where sea pollution is caused are set forth by the Environmental Act. The procedures for establishing sea pollution and the imposition of administrative fines are promulgated by the “Regulation on Determination of Breaches and Imposition and Collection of Administrative Fines as per the Environmental Law (“RDBCAF).”1 Under RDBCAF, direct or indirect discharge of ballast, bilge water, or any kind of pollutant, is prohibited within Turkish territorial waters, free and exclusive economic zones, internal waterways, streams, lakes, canals etc. The regulation, however, does not detail the actions which cause pollution or count the types of pollutants. The liability of the pollutant is strict, that is regardless of culpability. I. Fines imposed on the vessels causing sea pollution The amount of the administrative fine is compounded pro rata based on the polluting vessel’s gross registered tonnage (rather than the severity of pollution) and strictly imposed by the Council of Ministers. As per Article 20 of Environmental Act, as of 1 January 2009 fine amounts can be expected as follows: * 1
Claims Executive / Asst. Vice President Shipowners Claims Bureau Inc., managers for American Steamship Owners Mutual Protection and Indemnity Association, Inc. Published by the Official Gazette, edition 26482 dated 3 April 2007. Published by the Oficial Gazette, edition 27096 dated 30 December 2008. Administrative fine amounts may be updated by January 1st, 2010 via new regulations.
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ankarabarrevıew 2009/2 Petroleum and petroleum derivatives (crude oil, fuel, bilge, sludge, slop, refined product, oily waste etc.) discharged into sea by tankers: Gross Registered Tonnage 1,000 ton or less
Fine amount per gross ton 51.76 TRY
Between 1,000 and 5,000 ton
12.93 TRY (in addition to the above initial fine)
5,000 ton or more
0.127 TRY (in addition to the above initial fine)
Dirty ballast discharged into sea by tankers: Gross Registered Tonnage 1,000 ton or less
Fine amount per gross ton 38.11 TRY
Between 1,000 and 5,000 ton
7.75 TRY (in addition to the above initial fine)
5,000 ton or more
0.127 TRY (in addition to the above initial fine)
Petroleum derivatives (bilge, sludge, slop, fuel, oily waste etc.) or dirty ballast discharged into sea by ships or other sea-going vessels: Gross Registered Tonnage 1,000 ton or less Between 1,000 and 5,000 ton 5,000 ton or more
Fine amount per gross ton 25.88 TRY 5.17 TRY (in addition to the above initial fine) 0.127 TRY (in addition to the above initial fine)
Solid wastes or domestic waste waters discharged into sea by tankers, ships or other sea-going vessels: Gross Registered Tonnage 1,000 ton or less
Fine amount per gross ton 12.93 TRY
Between 1,000 and 5,000 ton
2570 TRY (in addition to the above initial fine)
5,000 ton or more
0.51 TRY (in addition to the above initial fine)
If the polluting vessel discharges any dangerous substances or disposals (defined as those which would have negative physical, chemical and/or biological effects on the local ecology) in to sea, the fine will be calculated 10 times the published rate for the category of petrol or petroleum products fines.2 Pursuant to the Environmental Act, should a ship repeat the pollution offense within 3 years, for the second offense the fine amount will 2 Environmental Act, Article 20.
Pollution Fines in Turkish Waters
be doubled, and fines imposed for further offenses will be twice that amount again. According to the relevant provisions, the samples taken (from the polluted site and the pollutant vessel) by the authorized inspection teams should be analyzed in an authorized laboratory, and should be checked and controlled to determine whether they contain pollutants.3 An Administrative Sanction Decree may be taken only upon evaluation of laboratory test results, and other relevant documents (such as photographs/videos of the polluted site and the pollutant vessel; Memorandum of Facts). Pursuant to the regulations, in order to impose the pollution fines these conditions precedent must be met: (1) official authorities must establish that the substance dumped from the vessel into sea must be included in the list of pollutants (as listed hereto above, as per Article 20), and (2) the substance discharged into the sea must have been dumped in such a manner so as to cause harm to the environment and in a breach of the standards specified by the relevant regulations. Notwithstanding, in practice, the official Authority issues its Administrative Sanction Decree before obtaining the analysis results, or even sending the samples to a laboratory. It is also of concern that the authorized laboratories, which analyze the samples, are not completely independent from the Authority that determines the amount of the penalty. II. Fines must be Settled by Cash to Release the Vessel The relevant laws and regulations are very strict. In order to allow the vessel to sail the fine must be settled. Even though the new regulations provide that certain types of guarantees, such as Bank Guarantees or Club Letters of Undertaking, would be acceptable to secure the shipowner’s obligation to pay the fines, in practice, immediate cash payment of the fine still seems to be only way of getting clearance to depart. The delay in payment of the fines extends the vessel’s detention time by the official authorities. If the fine is paid within 30 days of notification of the Administrative Sanction Decree, the ship owner may realize a benefit of 25% reduction off the total fine amount. In order to receive this reduction, we suggest our Members ensure settlement of the pollution fines within the specified period. III. Challenging the Fines may not be Feasible Payment of the fine is mandatory, but does not waive the ship owners’ rights to appeal the legal proceedings against the penalty decree. Commencing an action against the penalty will not stop the Authori3 See RDBCAF Articles 11(1), 13(3) and 14(1).
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ankarabarrevıew 2009/2 ties from collecting the fines. The pollution fines are appealable before the competent Administrative Court within 30 days from the notification of Administrative Sanction Decree issued by the Administrative Authority. However, the chance of success is very small in cases where the pollution is observed or established by the Authority. Also, even if the appeal concludes in the ship owner’s favor, a possible reimbursement will be made in Turkish Liras, without any interest. Furthermore, in order to collect the monies upon a successful appeal, the ship owner will have to initiate a separate action against the Authority. This judicial process to recover the fines paid by the ship owner could last for 1 or 2 years and the nominal amount reimbursed would be considerably devalued in the interim. Therefore, when pollution is evident or the recoverable amount is minimal appeal is not advisable to pursue. On the other hand, ship owners have succeeded in appealing several fines, which had been unsupported by evidence and arbitrarily imposed by the Authority. IV. Measures to Prevent the Fines The vessel’s agents, upon their nomination, often notify the ship owners or the masters of the vessels transiting or waiting at anchorage or calling at Turkish Ports, especially prior to the vessels entering Canakkale (Dardanelles) Straits, that the masters should take precautions not to cause any pollution incident. We have seen various incidents where the fines were imposed but the vessels did not indeed discharge polluting substance (listed by the regulations); for instance, washing accommodation decks and windows with sea water, discharging through the cooling seawater outlet, grey water discharge etc. In order to avoid the fines, masters of the vessels must pay utmost attention and take all steps not to cause any pollution by leakage or spillage of any kind of materials (i.e., paintings, oil, bilges, clean ballast, dirty ballast, all kind of residues, garbage, dirty waters, sewage waters, laundry waters with detergent, lavatory soap waters, shower waters, dust, rust etc.). Ship’s crews must be reminded what not to do while in Turkish waters and must be advised against spilling any water, either clear or dirty, over the ship’s side. We have been notified of the considerable increase of the number of the vessels charged with pollution fines at the Shipyard region Tuzla, Istanbul. Hence, it would be the ship owners benefit to agree on a clause to be inserted in the Job Agreement with the shipyard for the vessel’s repairs, where the shipyard will bear liability for any pollution incident and subsequent fines imposed against the vessel under the shipyards control.
Conflict of Laws on Environmental Liability Law
Conflict of Laws on Environmental Liability Law ■■ by Dr. Sema Çörtoğlu Koca* I. IN GENERAL:
N
owadays, environmental problems have become important due to their global impacts. The reason of this importance is that the consequences of the environmental pollution, caused by establishments or by other polluting operations, are not limited within the boundaries of the state where the pollution has emerged. When pollution act appears within the boundaries of more than one state, the same damage can bring about negative effects for other countries at large. Like in these transboundary pollution cases, country’s law that is applied here becomes a problematic area and in that case the rules of conflict of laws shall necessarily be applied. First of all, I would like to give a short description about environmental law and international environmental disputes. Environmental law comprises of a special body of official rules, decisions, and actions concerning environmental quality, natural resources, and ecological sustainability1. In other words, environmental law is the body of law, which is a system of complex and interlocking statutes, treaties, conventions, regulations and policies which seek to protect the natural environment which may be affected, impacted or endangered by human activities. Some of the environmental laws regulate the quantity and nature of impacts of human activities: for example, setting allow* 1
Instructor in the Department of Private International Law in Başkent University, The School of Law. CUNNINGHAM, W. P. / CUNNINGHAM, M. A. / WOODWORTH SAIGO, B. : Environmental Science: A Global Concern, 7/e,
, 27.04.2007.
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ankarabarrevıew 2009/2 able levels of pollution. Other environmental laws are preventative in nature and seek to assess possible impacts before human activities occur2. Environmental disputes do not only rest upon local problems, they involve generally universal problems3 thereby these problems cause international environmental disputes. International environmental disputes mean that any disagreement or conflict of views or interests between States relating to the change, through human intervention, of natural environmental systems4. II. ENVIRONMENTAL LIABILITY LAW: Environmental liability aims at making the causer of environmental damage (the polluter) pay for remedying the damage that he has caused5. Environmental damage makes an adverse change in natural resources, such as water, land or air, impairment of a function performed by such a resource for the benefit of another natural resource or the public, or impairment of the variability among living organisms6. Environmental regulation lays down norms and procedures which are aimed at preserving the environment. Without liability, failure to comply with existing norms and procedures may merely result in administrative or penal sanctions. In any case, unless liability is not added to the Regulation, potential polluters face also the prospect of having to pay for restoration or compensation of the damage they caused7. The costs of repairing environmental damage usually exceed the polluter’s ability to pay. Then government seeks out others to help finance the damage of bill8. Each state should adopt strict liability so that, if an accident occurs, the firm can be responsible for damages regardless of its level of care9. Liability is only effective where polluters can be identified, damage is quantifiable and a causal connection can be shown. It is therefore not suitable to diffuse pollution from numerous sources10. I would like to give three examples, the Trail Smelter cases, Chernobyl accident and Sandoz Chemical Fire case, are all about environmental liability law. The Trail Smelter arbitration decision is generally considered to be the leading case in the area of state liability for trans2 3 4
WIKIPEDIA: “Environmental law”, < http://en.wikipedia.org/wiki/Environmental_law >, 22.01.2009. GÜVEN, K. : General Principles of Turkish Law, March 2007, p. 250. BILDER, R. B. : “The Settlement of Disputes in the Field of the International Law of the Environment”, Recueil Des Cours, 1975 I, volume 144, p. 153. 5 COMMISSION OF THE EUROPEAN COMMUNITIES: “White Paper On Environmental Liability”, Brussels, 9.2.2000 COM(2000) 66 final, p. 11. 6 REGULATION (EC) No 864/2007 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), Official Journal of the European Union 31.7.2007, L 199 p. 41. 7 COMMISSION OF THE EUROPEAN COMMUNITIES, supra, p. 11. 8 DENT, G. W. Jr. : “Limited Liability in Environmental Liability Law”, Wake Forest Law Review, volume 26, 1991, p. 151. 9 ECKERT A. / R.T. SMITH/ H. van EGTEREN: “Environmental Liability in Transboundary Harms: Law and Forum Choice”, <www.uofaweb.ualberta.ca/economics//pdfs/WP-Eckert-SmithT-vanEgteren-JLEOrevision2. pdf>, 23.04.1007, p. 15. p. 1-44 10 COMMISSION OF THE EUROPEAN COMMUNITIES, supra, p. 3.
Conflict of Laws on Environmental Liability Law
boundary pollution. It resulted from injuries caused in the American state of Washington from sulfur dioxide released by a smelter plant in British Columbia, Canada, in the 1930s. After the diplomatic protests by the United States, the two countries agreed to submit the case to arbitration. In the arbitration decision; the tribunal proclaimed a general principle of international law that would be very helpful for establishing the liability of the United States for GHG emissions. It is stated that “[a] State owes at all times a duty to protect other States against injurious acts by individuals within its jurisdiction,” and went on saying that: No state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequences and the injury is established by clear and convincing evidence. State actions in more recent and well-known cases would not be as helpful as in demonstrating the pervasive acceptance of a principle of liability by states today. Most important is the Chernobyl nuclear accident where Ukraine refused to acknowledge liability and the international community paid for the costs of withdrawing from active service of the reactors. Another example is the Sandoz Chemical Fire case which involved a fire at a Sandoz corporation warehouse in Switzerland. The fire resulted in thousands of cubic meters of chemically contaminated water seeping into the Rhine and constituted one of the worst environmental disasters ever in Western Europe. None of the states affected brought claims against Switzerland. Both of these cases may be special by their complex set of facts. Ukraine was poor and unable to well-afford the cost of decommissioning the reactor on its own, and Sandoz privately provided compensation for individual victims of the disaster11. Because of the importance of regulating the evironmental liability, European Union countries made a directive in 2004. The reason to make this directive is an environmental damage in transboundary pollution. On Wednesday 13 November 2002, the Prestige, a Bahamas-registered, 26-year-old single hull tanker owned by a Liberian company and carrying 77 000 tonnes of heavy fuel oil, sprang a leak off the coast of Galicia. It eventually broke apart on 19 November and sank 270 km off the Spanish coast. Thousands of tonnes of heavy fuel oil spilled into the sea and polluted the Galician coastline. The pollution then spread to the shores of Asturias, Cantabria and the Spanish Basque country. In cases like this, there is clearly a need to ensure that the damaged environmental assets are restored; a better solution would be, and of course, that the damage does not even occur. For these reasons, prevention is also a valuable objective in this context. 11 STRAUSS, A. L. : “The Legal Option: Suing the United States in International Forums for Global Warming Emissions”, Environmental Law Reporter, volume 33, 2003, p. 10190.
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ankarabarrevıew 2009/2 When a significant environmental damage nevertheless occurs, the question inevitably arises of “who shall foot the bill”. The principle according to which the polluter should pay is at the root of Community environmental policy (Article 174 (2) EC Treaty); it shows that in many cases the operator who causes a damage should be held liable and be financially responsible. In April 2004 the Environmental Liability Directive entered into force following its publication in the Official Journal12. The law of environmental liability is regulated by the Turkish Act of Environmental Law in article 28. According to article 28/1; the person who pollutes or gives damage to the environment, is liable for damages caused by pollution and deformation even if he is not at fault. In this paragraph, objective liability is regulated. Second paragraph of article 28 is about reserving the compensation liability in Civil Law. According to article 28/2; compensation liability of polluter due to general rules of Civil Law is also reserved. Third paragraph of article 28 is about statute of limitations. According to article 28/3; the compensation claims due to the environmental damage will barred in five years after the aggrieved person learning the damage and obligator of compensation. III. INTERNATIONAL ENVIRONMENTAL AGREEMENTS: States make bilateral or multilateral agreements in order to prevent environmental pollution and to compensate the damage. There is a growing number of international conventions and protocols dealing with environmental liability in several fields. In the majority of these agreements, whereas the liability of the damage is charged to the state, the liability of individuals is not regulated. When there is no regulation about the related issue, the international rules should be applied to solve the problems. Because of this reason, in the case of trans-boundary pollution, Turkish national law should care not only for its domestic law principles but also for the principles of international agreements the Turkish government has signed. Turkey signed and ratified lots of international environmental agreements, for example; Convention for the Protection of the Mediterranean Sea against Pollution-Barcelona Convention13, The Protocol on the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft14, The Protocol on Co-Operation in Combating Pollution of the Mediterranean Sea by Oil and Other Harmful Substances in Cases of Emergency15 , The Protocol on the Prevention of and Response to 12 RATSIBORINSKAY, D. N. : “Environmental Liability” , 26.04.2007. 13 On 12.06.1981 Convention for the Protection of the Mediterranean Sea against Pollution-Barcelona Convention entered into force following its publication in the Official Journal (number 17368). 14 On 12.6.1981 The Protocol on the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft entered into force following its publication in the Official Journal (number 17368). 15 On 12.6.1981 The Protocol on Co-Operation in Combating Pollution of the Mediterranean Sea by Oil and Other
Conflict of Laws on Environmental Liability Law
Pollution of the Marine Environment from Sea-Based Activities16, International Convention for the Prevention of Pollution from Ships, (MARPOL)17, Convention for the Protection of the Ozone Layer- Vienna Convention18, The Montreal Protocol on Substances that Deplete the Ozone Layer- Montreal Protocol19, Convention for the Protection of the Black Sea against Pollution20, The Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal21. All these conventions or agreements are based on a strict but limited liability, and the concept of a second tier of compensation. And another important point is that international environmental conventions or agreements which Turkey is a party, have no rule about the applicable law to international environmental disputes. IV. ENVIRONMENTAL LIABILITY LAW ACCORDING TO TURKISH PRIVATE INTERNATIONAL LAW I would like to give information about some theories for tort liability on conflict of laws before examining the Turkish law. Firstly, the governing law should be the law of the forum; secondly, that it should be the law of the place of the tort, the lex loci delicti; and thirdly, that it should be the proper law of the tort, or the law of the country which the tort is most closely connected22. The first theory is that tort liability should be governed by the law of forum. The principal arguments in its favour are, first, that liability for tort is closely similar to liability for crime, where no one doubts that foreign law is inapplicable; secondly, that liability for tort is closely connected to the fundamental public policy of the forum and for this reason it must be governed by its law. Today these reasons are not convincing. The law of torts has long since been emancipated from the criminal law and has very different objectives. Another argument against the application of the law of the forum is that under the rules as to jurisdiction, the claimant may sometimes have a choice of forum in which to sue. From this point, to apply the lex fori is an encouragement to forum-shopping, the circumspect choice of a forum in order to attract the application of a system of law favourable to the claimant23. The second theory is the application of the lex loci delicti (the law Harmful Substances in Cases of Emergency entered into force following its publication in the Official Journal (number 17368). 16 On 15.3.1987 The Protocol on the Prevention off and Response to Pollution of the Marine Environment from SeaBased Activities entered into force following its publication in the Official Journal (number 19404). 17 On 24.6.1990 International Convention for the Prevention of Pollution from Ships entered into force following its publication in the Official Journal (number 20558). 18 On 8.9.1990 Convention for the Protection of the Ozone Layer- Vienna Convention entered into force following its publication in the Official Journal (number 20629). 19 On 8.9.1990 The Montreal Protocol on Substances that Deplete the Ozone Layer- Montreal Protocol entered into force following its publication in the Official Journal (number 20629). 20 On 6.3.1994 Convention for the Protection of the Black Sea against Pollution entered into force following its publication in the Official Journal (number 21869). 21 On 15.05.1994 The Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal entered into force following its publication in the Official Journal (number 21935). 22 McCLEAN, D. : Morris: Conflict of Laws, Fifth Edition, London 2000, p. 354. 23 McCLEAN, p. 354-355.
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ankarabarrevıew 2009/2 of the place of the tort). It can be justified by much more important arguments than those which support the law of the forum. The first of these is the argument from territorial sovereignty. To many lawyers, it has seemed natural to argue that the law of the place where events occur is the only law that can attribute legal consequences to them. Another argument in favour of the lex loci delicti is that its application usually accords with the legitimate expectations of the parties. The law of torts attaches certain liabilities to determined kinds of conduct and to the creation of certain social risks. Although there are situations in which strong arguments can be advanced against a mechanical application of the lex loci delicti to each and every issue arising out of each and every kind of tort. First, the place of the tort is, in modern conditions, often as occuring unexpectedly as the place of contracting is suitable to be. Secondly, the place of the tort may be ambiguous, as where the defendant’s acts take place in one country, and the ensuring harm to the claimant is sustained in another. Thirdly, and the most important of all, the application of the lex loci delicti regardless of the domicile and residence of the tortfeasor and his victim, and having no regard of the type of issue and the type of tort involved, may lead to results which shock one’s common sense24. Third theory is that tort liability should be governed by the proper law of the tort. The main point of this theory is that, while in many situations there would be no need to look beyond the place of wrong, we ought to have a conflict rule broad and flexible enough to take care of the exceptional situations as well as the more normal ones: otherwise the results will begin to offend our common sense. It was suggested that a proper law approach, intelligently applied, would furnish a much-needed flexibility and enable different issues to be separated, thus allowing a more suitable analysis of the social factors involved. It was also suggested that a proper law approach would facilitate a more rational solution of the problems that arise when acts are done in one country and harm follows in another. On the other hand, the proper law doctrine has been criticised by some because it sacrifices the advantages of certainty, predictability and uniformity of result which are claimed to follow from the application of the law of the place of the tort25. Since the environmental liability law creates the type of tort, in the area of conflict of laws born by environmental liability law, to which “lex loci delicti commissi” rule has been adopted by the majority of the legal systems. According to the Turkish law, the Turkish Code of International 24 McCLEAN, p. 355-356. 25 McCLEAN, p. 357-358.
Conflict of Laws on Environmental Liability Law
Private Law and Procedural Law (MÖHUK)26 Art 34 (1), the lex loci delicti is being applied in the area of tort. If the constitutive elements of liability comprising of act and damage took place within the boundary of one state, set of lex loci delicti would cause no problem. In that respect, the places of act and the damage would be identical and so “lex loci delicti” is obvious. There are some confronting views for the place of polluting act and of the environmental damage in a way that they are different cases but the most adopted view about this issue which is prescribed by the Turkish Code of International Private Law and Procedural Law Art 34(2) is that a place of harm accepted as lex loci delicti. On this account, in Chernobyl accident, for the envionmental damages in Turkey, according to article 34(2), Turkish law should be applied. And if there is an accident caused by a tanker in Istanbul Bosphorus, spring a leak off the coast of a counry of Black Sea, this State’s law should be applied for the environmental damages27. Nowadays, two matters are very important for the law of environmental liability. Firstly, the protection of injured party (victim) and secondly, public order where damages occur. Hence, the most convenient system is the principle of place of harm. According to the Turkish Code of International Private Law and Procedural Law Art 34(3); where it is clear from all the circumstances of the case that the tort is manifestly more closely connected with another country, the law of that other country shall apply. The application of lex loci delicti laws can be restricted in favour of the law of place with the manifestly closer connection. When the incidents and the parties have more common relationship with one state, then the law of the manifestly closer connection can be applied. Turkish courts have not applied “the law of the manifestly closer connection” up till now. For this reason we could not find any decisions which are applied “the law of the manifestly closer connection”. According to doctrine, if the courts would apply “the law of the manifestly closer connection”, they should look forward to two clauses, one is a positive, the other is a negative clause28. Firstly, the obligation relation which is about environmental damage should not have close connection with lex loci delicti in terms of event or parties. This clause is not mentioned explicitly in the Turkish Code of International Private Law and Procedural Law Art 34 (3)29. Secondly, the obligation relation which is about environmental 26 27 28 29
ERTAŞ, Ş.: Çevre Hukuku, İzmir 1997, p. 126-127. TURHAN, T. : Haksız Fiilden Doğan Kanunlar İhtilâfı Alanında İka Yeri Kuralı, Ankara 1989, p. 371- 381. TURHAN, p. 381. TURHAN, p. 381.
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ankarabarrevıew 2009/2 damage has a close connection with another country. This positive clause mentions expressly in the Turkish Code of International Private Law and Procedural Law Art 34 (3). In designating this law the court should take into account the following factors: •
The place where the damage occurs
•
The place where the tort occurs
•
The nationality of parties
•
The domicile or residence of parties
•
Before the tort, center of gravity of the transaction30.
There is a good example which the court applied “the law of close connection” rule. Ware v. Ciba-Geigy Corp. is a case which is about environmental tort liability arising from toxic waste generated in one state (New Jersey) and deposited in another state (Alabama). The defendants, New York based corporations that owned chemical plants in both New Jersey and Alabama, shipped waste produced in the New Jersey plants for disposal at the Alabama plants. The plaintiffs, who are Alabama domiciliaries living in the vicinity of the Alabama plants, claimed that they were exposed to toxic substances released by the defendants’ improper handling of hazardous waste. While they were seeking funds for future medical monitoring, they sued the defendants in New Jersey. However New Jersey law would allow the action, Alabama law would not because the plaintiffs did not claim a present physical injury. The New Jersey court found that Alabama was the state with “the greatest interest;” it applied Alabama law and dismissed the actions. The court thought it was important that, “[a]side from the issue of waste transportation, all of the dumping . . . occurred in Alabama.” The court mentioned that, although New Jersey “does have an interest in ensuring that companies that generate and transport hazardous [waste] within its borders conduct their business in accordance with New Jersey law and policies,” the plaintiffs’ exposure “came from the location and manner in which the waste was disposed . . . [and this] location . . . is a significant, if not the dispositive, factor.” The court also thought that the plaintiffs had “no contacts with New Jersey whatsoever” and had sued in New Jersey only because New Jersey law favored them. “[I]t is not clear,” said the court with feigned understatement, “that Alabama residents should receive the benefit of a favorable New Jersey law when they have no connection with the latter state.” The court also stated the practical difficulties of supervising a medical monitoring program in Alabama, hypothesizing that Alabama “may not want a New Jersey court to come into its territory and impose its law when its Supreme Court has determined 30 SYMEONIDES, S. C. : Choice of Law in the American Courts in 2005: Nineteenth Annual Survey, , 23.01.2009.
Conflict of Laws on Environmental Liability Law
medical monitoring should not be available . . . and may not want New Jersey law imposed onto resident businesses who may have located in Alabama because Alabama law was more favorable to their business needs”31. In the European Union, the important choice-of-forum and choiceof-law questions were addressed in Handelskwekeriz G.J. Bier B.V. and Another v Mines de Potasse D’Alsace S.A., Case 21/76 (1976) II ECJ Reports 1735. At issue were chloride emissions from a French mining company into the Rhine river. These emissions affected downstream water quality for a Dutch nursery company that used the water to irrigate its seed beds. In bringing a tort action a District Court in the Netherlands, the issue of jurisdiction arose. The defendant argued that the Dutch court did not have jurisdiction because of a treaty that affects the adjudication of transboundary disputes. The district court agreed and refused to hear the case. The plaintiffs appealed, and because of the jurisdictional issues involved, the Appellate Court in The Hague asked for clarification of the treaty from the European Court of Justice, whose job it is to ensure uniform interpretations of the European Union law. The European Court ruled that the key phrase at issue: “where the harmful event occurs,” means either where the tort occurred (France) or where the damages occur (The Netherlands). This decision resulted in the plaintiff acquiring the right to choose the forum in which an action could be brought and also the law which is to be applied in the case (choice of law)32. The New Turkish Code of International Private Law and Procedural Law includes the party autonomy in tort disputes. Art 34(5) states that the parties shall choose the applicable law explicitly after the tort has committed. In an environmental damage, parties enable to make an agreement, chosing the law applicable to a tort claim between them after the tort has occurred. But the parties can also choose the law for the environmental damage after the event giving rise to the damage has occurred. The New Turkish Code of International Private Law and Procedural Law also includes the admissibility of direct actions against liability insurers. Art 34(4) provides a special rule governing the availability to a tort victim of a direct action against the tortfeasor’s liability insurer. This rule enables an environmental damage victim to bring his claim directly against the insurer of the person liable to provide compensation, if either the law applicable to the tort arising out of environmental damage or damage sustained by persons or property as a result of such damage or the law applicable to the insurance contract so provides. There is similar rule in Article 18 of the EC Regulation 864/2007 on 31 ECKERT, A. / SMITH, R. T. / EGTEREN, H. van, p. 3-4. 32 STONE, P. : “The Rome II Regulation on Choice of Law in Tort”, Ankara Law Review, Vol.4 No.2 (Winter 2007), p. 129.
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ankarabarrevıew 2009/2 the Law Applicable to Non-contractual Obligations Regulation33. In the end, there is a need to indicate that the Environmental Act is a directly applicable law, therefore when the situations related to this law exist, the environmental law should be applied. It is more likely that such rules will be found in statutes. Statutes sometimes expressly give the rules they enact this mandatory character. Where the statute is silent the court will have to engage in a process of interpretation. The effect of Environmental Act provision ought, in principle, to provide for the application of mandatory rules of the law of the forum which either overrule the normal rules for the choice of law or designated by courts or modify these rules in some way34. The legal ground for applying the mandatory rules is that these rules are taking place in positive law and according to conflict of laws rules, in related subject, these rules are more private acts35. Because of its aim, the Environmental Act is a private act. The aim of the Environmental Act is to protect the daily interest of the country and determine the measures to be taken and regulations to secure and to develop the life standard, civilization, health of the generation in future according to the legal and tecnical rudiments. Turkish Act of Environment Articel 1 is about the aim of the Act. This article has been changed in 26.04.2006. According to the new Article 1, aim of this Act is to protect the joint asset of environment belong to all living beings, in accordance with the principles of sustainable environment and sustainable development. The scope of application of this Act covers all environmental pollution and damages which occur in land, earth and water. The aim and scope of application of this Act, we could mention that Environmental Act is a direct applicable Act and if the situations related to this law exist, the Act of Environment should be applied. On the other hand, if the Environmental Act did not regulate the issue, the authorities would apply to the competent law.
33 COLLINS, L. : Dicey and Morris on The Conflict of Laws, volume 2, London 2000, p. 1558-1559. 34 TEKİNALP, G.: Milletlerarası Özel Hukuk Bağlama Kuralları, İstanbul 2002, p. 44. 35 GÜVEN, supra p. 256.
Insolvency of a EU Company May be Declared by a Court of Another Member State
Insolvency of an EU Company May be Declared by a Court of Another Member State ■■ by Agata Adamczyk*1
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n the time of crisis, facing the risk of insolvency of the contracting party, it is worth to remember that such a matter is not only regulated by domestic law, but also by the European Law. The European Union has set out the aim of establishing an area of freedom, security and justice. The activities of undertakings have more and more cross-border effects and are therefore increasingly being regulated by the Community law. While the insolvency of such undertakings also affects the proper functioning of the internal market, there is a need for a Community act requiring coordination of the measures to be taken regarding an insolvent debtor’s assets. The proper functioning of the internal market requires that cross-border insolvency proceedings should operate efficiently and effectively. In order to achieve the aim of improving the efficiency and effectiveness of insolvency proceedings having cross-border effects, the provisions on jurisdiction, recognition and applicable law in this area have been contained in the Council Regulation (EC) No 1346/2000 which is binding and directly applicable in member states. Provisions of the Act allow a foreign court to declare the company insolvent and to conduct these proceedings. In case of determining that the core of the main interests of the *
Attorney-at-law, LLM, Krakow, Poland. She can be reached at: [email protected]
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ankarabarrevıew 2009/2 insolvent company, situated within the territory of a member state (for example Poland), is located within the territory of other member state of European Union (for example Germany) and from that place the debtor’s business is managed (generally in practice in the head office of the mother company), – there is a possibility of opening of the insolvency proceedings concerning such a Polish company before a foreign court. Territorial jurisdiction within Germany must be established by the Germany national law. The issue of determining the “centre of main interests” (COMI) is of a complex character. In accordance with the provisions of the Article 3.1 of the regulation, in case of the company, the place of its registered office shall be presumed to be the centre of its main interests. This presumption however may be abolished since in parallel with the abovementioned definition, the regulation provides that the expression “centre of the debtor’s main proceedings” refers to a place where a debtor conducts the administration of his interests on a regular basis and that fact is ascertainable by third parties. In practice the possibility of conducting the insolvency proceedings in other country than a country of the registered office of the company is sometimes abused by the foreign courts and the insolvency of companies was declared by foreign courts too hastily without necessary proper analysis of the debtor’s activity. It shall be underlined that the Court of Justice of the European Communities in its recent judgments stressed out that the presumption may be abolished solely in a case, where it is ascertainable by the third parties that the administration of the debtor’s interest is conducted in other country than a country of its registered office. The internal organization of the debtor’s activity (among others the fact that the decisions are being taken by persons residing in other member state) cannot be sufficient prerequisite if it is not obvious for third parties. There is no doubt that such a prerequisite is fulfilled in case of post-box companies which are only domiciled in another member state but in reality do not conduct activity in that state as effectively their business is carried out abroad. A situation will not be that obvious if a company employs workers, carries out production or provides for services in this member state. In such a case a third party may, and probably will, perceive this company as having its COMI in this member state even though the management is being carried out from the headquarters in another member state. Therefore, the courts shall thoroughly analyze where the centre of the debtor’s main interests is situated and such analysis shall be carried out from the point of view of third parties (clients, creditors). In case of determining that COMI of a debtor is situated in another member state, the insolvency proceedings may be opened and carried out by the foreign court. It is also worth to remember that such a court
Insolvency of a EU Company May be Declared by a Court of Another Member State
will open and carry out the insolvency proceedings in accordance with the substantive law of that foreign state (lex fori concursus). Essentially, the conditions for the opening of the proceedings will be determined in accordance with that law. Therefore, the German court may decide to open the insolvency proceedings of a Polish company if it fulfills the conditions of insolvency under German substantive law. It will be so even in situations, where – due to the differences between Polish and German substantive insolvency law - the insolvency conditions under Polish law are not fulfilled. It may lead to a situation where a party is not aware of the fact that its financial situation allows the foreign court to open the proceedings or even the party shall initiate the proceedings before a foreign court itself. On the other hand, the regulation aims at avoiding a situation where a party decides to transfer its assets or judicial proceedings from one state to another due to the fact that the latter state offers the more favorable legal possibilities (forum shopping). In some cases it may be more favorable for the debtor to have the insolvency proceedings opened and conducted in another member state. Since the foreign courts sometimes decide to open the proceedings without a previous careful examination of the case as to the place being the debtor’s centre of main interests, the aim of the Council Regulation will not be fully accomplished in that point. Not only the procedure, but the substantive law effects of the insolvency shall be subject to foreign law. In case the insolvency of the Polish company is declared by a German court the administration of the assets of the insolvent will be conducted by the German liquidator appointed by that court. The assets of the insolvent will be capitalized in accordance with German regulations, under which, in principle, the creditors will be satisfied. The main proceedings have universal scope, which means that they aim at encompassing all the debtor’s assets, regardless of the fact in how many and in which member states the assets are located. The liquidator may request the opening of so called “secondary insolvency proceedings” in the member state where the debtor has an establishment. The effects of secondary proceedings are limited to the assets located in that state and will be conducted by a court in this state in accordance with the substantive insolvency law in force in this state. However, it should be emphasized that opening of such proceedings is the liquidator’s right, not his duty. Therefore, it is possible, in case the secondary proceedings are not opened, that the whole insolvency proceedings of a Polish company will be conducted exclusively by the German court. In consequence, the insolvent’s creditor will face the necessity
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ankarabarrevıew 2009/2 of the assertion of his rights against the insolvent before the foreign court, particularly by lodging the claims to the assets. It shall be noted that such a lodging shall have an appropriate form, and that the time limit set out by the provisions of foreign law shall be kept. The non-compliance with such requirements results in the severe legal effects for the creditor, who finally may be satisfied in the subsequent priority or may not be satisfied at all. It is also worth mentioning that the regulation introduces the rule of the automatic recognition of insolvency proceedings. The effects attributed to the proceedings by the law of the State in which the proceedings were opened extend to all other member states. In practice it means that in case the German court declares the insolvency of Polish company, such a judgment is automatically recognized by other member states. Therefore, for instance there is no proceedings which allow the Polish court to verify such a decision. It may be solely questioned in front of the German court in accordance with the legal instruments provided by German law. Therefore all notices issued by the foreign insolvency courts or by the persons referring to their function as the liquidators in the foreign insolvency proceedings shall be treated with a particular attention. Disregard of them may lead in some cases to the irreversible consequences for the creditors.
Procedure and Basic Essentials for Extradition Requests Coming to the Turkish Republic
Procedure and Basic Essentials for Extradition Requests Coming to the Turkish Republic ■■ by Cenkalp Durak*1
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raditional criminal law is strongly imbued with the principle of the territorial sovereignty of the State. Combating crimes with an international character can only be achieved by removing strict barriers of traditional principles with regard to competence. Extradition is one of prominent procedures used to attain global justice. The following essay is particularly aimed at informing foreigners that the Republic of Turkey is not a haven for criminals. Criminality in modern society, particularly in the form of terrorism, illicit drugs and weapon trafficking, sexual exploitation of children and women, organized crime, money laundering and corruption, has reached an alarming rate recently and besides, the breaking of boundaries caused by new concepts of understanding, technological developments in the methods and means of transport, communications and transfer of money, have created the conditions for the internationalization of crime. Many of these crimes employ such sophisticated methods that they cannot be dealt with merely as local or even national problems. Now, it is more difficult for the State to impose its authority on persons and entities that fall under its jurisdiction. These reasons have caused and compelled States to develop international co-operation in criminal matters. Extradition, which may simply be defined as surrendering a fugitive * Attorney at Law, Member of Ankara Bar Association
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ankarabarrevıew 2009/2 (suspect or convicted person) to the State which seeks him, has always been the gem of international co-operation and apparently this situation is not about to change in the near future. I. TURKISH LEGISLATION ON EXTRADITION Even though the first written and formal extradition treaty was signed between the Ottoman Government and the United States of America in Istanbul on August 11, 1874, the descendants of the Ottoman’s had not been eager to enact a specific law on extradition in Turkey. Nevertheless they put into effect some principles of international law governing extradition in the form of scattered provisions in domestic legislation, such as Article 38 of the Turkish Constitution (no citizen shall be extradited to a foreign country on account of an offense) and Article 18 of the Turkish Penal Code (limits extradition rules). These provisions are rather brief and do not address all the problems that might arise from extradition. Therefore, one may say that there is a gap in this respect. The legislators might quite possibly have thought to fill this gap with the provisions of international instruments (bilateral treaties/multilateral conventions) made/acceded by the Republic of Turkey in the light of Article 90 of the Constitution (international agreements duly put into effect carry the force of law). A great majority of jurists and politicians are of the opinion that this is a logical solution to meet the requirements of rapid developments in international law and co-operation. Briefly, the rules of international law serve as a complement to domestic legislation. Article 18 of the Turkish Penal Code is the most prominent provision with regard to extradition. According to this article: A foreign suspect or convict may be extradited to a requesting foreign State. However extradition is not granted in the following cases: If the act for which extradition is requested is not considered to be a felony (offense) under Turkish laws, i.e. all the constituent elements of the offense allegedly committed in the requesting State must be encompassed by a specific provision of the criminal law of the Turkish Republic (so-called double criminality principle) or; is regarded to be an act of freedom of thought or to be of a political or purely military offence character; If the alleged act is committed against the security of the Turkish State or, the Turkish State or national or, legal entity founded according to Turkish laws; If the prosecution of the felony falls under Turkish jurisdiction; if the person becomes immune by reason of lapse of time from prosecution or punishment for the offense for which extradition is requested, if
Procedure and Basic Essentials for Extradition Requests Coming to the Turkish Republic
the person sought is a Turkish national (person-having more than one citizenship, one of which is Turkish nationality is considered to be a Turkish national) with the exception of obligations stemming from being a party to the International Criminal Court; if there are reasons of strong suspicion for believing that in the case of surrender, the person sought shall be prosecuted or punished because of his/her race, religion, nationality, political opinion or for being a member of a social group. II. STAGES OF EXTRADITION PROCEDURE a) Judicial Proceedings In the primary stage of an incoming extradition request, in urgent cases the provisional arrest requests for extradition are received by the Ministry of Justice (General Directorate of International Law and Foreign Relations) (central authority to receive and forward extradition requests) via the National Central Bureau of Interpol attached to the Ministry of Interior. On some occasions the person sought is apprehended upon red notices/diffusions issued and circulated by Interpol Headquarters. Interpol’s red notices/diffusions enable each of its member countries to learn that a national warrant has been issued for a person whose arrest is requested with a view to subsequent extradition. International arrest warrants issued by international criminal tribunals such as the tribunals established for the Former Yugoslavia and Rwanda are also circulated by Interpol as an exception. Interpol has no power to issue red bulletins on its own initiative. Red notices are designed to be of use, both to the police in that they provide detailed and accurate particulars of the fugitives’ identity, a photograph and fingerprints, and also to the judiciary. However the above mentioned method does not exclude receiving an extradition request through diplomatic channels. Immediately upon the receipt of a request for a provisional arrest, the Ministry of Justice makes a preliminary examination (eligibility test) to determine if the fugitive may be subject to provisional arrest and subsequent extradition in light of Turkish legislation and international law. Then, if the request is believed to have well-founded reasons for extradition which are liable to be accepted, the Ministry transmits the request to the Chief Public Prosecutor to be submitted to the local Criminal Court of First Instance where the fugitive is found. During the hearing, the Court first examines the identity of the fugitive who has been apprehended by police, as well as evaluates if there are grounds for arrest according to Article 100 of the Turkish Criminal Procedure Code or to put the fugitive under judicial control due to Article 109 of the same code. The court has the sole authority to evaluate the circumstances for arrest or judicial control. There is no specific and
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ankarabarrevıew 2009/2 detailed rule in Turkish legal system with regard to the duration of provisional arrest for extradition, therefore the provisions of international conventions are applied. Provisional arrest has a duration of eighteen days to await supporting documents for extradition from the requesting foreign State. In some occasions this period may be prolonged up to forty days upon the explicit request of the requesting State stemming from force majeure situations. These periods are provided by the European Convention on Extradition but actual periods vary from treaty to treaty. Within the provisional arrest period, if the Ministry of Justice has not received supporting documents for extradition from the requesting State, the fugitive is released. After the receipt of the supporting documents for extradition, with translations if needed (Turkey generally accepts documents in Turkish, English, and French, depending upon the convention) by the Ministry of Justice, these documents are again forwarded to the same Chief Public Prosecutor to be submitted to the competent Heavy Penal Court to render a decision for acceptability of extradition request in light of Article 18 of the Turkish Penal Code and concerned international treaty (bilateral/multilateral). This decision may be appealed. During extradition procedures, provisional arrest is evaluated as to whether the continuation of the status of arrest is necessary or not, either upon the request of the fugitive (Article 104 of the Turkish Criminal Procedure Code) or ex officio based on the time limits not exceeding thirty days (Article 108 of the Turkish Criminal Procedure Code). While a Criminal Court of First Instance is competent to make such evaluation before the receipt of supporting documents for extradition, only a Heavy Penal Court is competent to do so after the receipt thereof. Sometimes the request for extradition and provisional arrest is communicated simultaneously through diplomatic channels, e.g.. without the interference of Interpol. In such a case, the Ministry of Justice forwards the request for extradition and supporting documents to the Chief Public Prosecutor where the fugitive is found. Upon receipt of the request, if the fugitive has not already been taken into police custody, the Public Prosecutor shall issue an arrest warrant. In this respect, it is important that the believed whereabouts or place of residence of the fugitive is given as precisely as possible in the request for extradition. Following apprehension, the Public Prosecutor must submit written application to the competent Heavy Penal Court asking for provisional arrest of the fugitive and also to render a decision for acceptance of the extradition request. The decision of the Court may be appealed by the fugitive and/or Public Prosecutor within seven days following pronouncement of the decision (Article 291 of the Turkish Criminal Procedure Code). If the Heavy Penal Court rejects the request, the fugitive should be
Procedure and Basic Essentials for Extradition Requests Coming to the Turkish Republic
released without awaiting finalization. However, this should not prevent judicial authorities taking measures such as putting restriction on the fugitive leaving Turkey until finalization of the judgment. b) Administrative Proceedings When the Heavy Penal Court accepts the extradition request, the request is presented to the Council of Ministers by the Ministry of Justice to give political and final decision thereof according to Article 18 of the Turkish Penal Code. This decision may be appealed to the High Administrative Court (Danıştay). If the request for extradition is granted, either wholly or partly, the Ministry of Justice informs the requesting State through diplomatic and Interpol channels simultaneously to take the fugitived. The fugitive should be accepted on the appointed date (usually agreed upon by both States). If not, after the expiration of the time periods provided in international conventions, the fugitive should be released. The Turkish Ministry of Justice alone decides on any further request by the requesting State to reapprehend and surrender the fugitive after this situation. If reapprehension is approved, a decision for provisional arrest should be obtained again from the competent court. III. HUMAN RIGHTS DIMENSION OF EXTRADITION Before the ruling of the European Court of Human Rights (ECHR) in the prominent “Soering Case” (Publication of ECHR, 07 July 1989, series A, vol. 161) there had been no discernable tendency to protect fundamental human rights during the extradition process. The explicit link between the extradition process and human rights was established in this case, as the Court stated: “That the abhorrence of torture has such implications is recognized in Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that ‘no State Party shall (…) extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture’. The fact that a specialized treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 of the European Convention. It would hardly be compatible with the underlying values of the Convention that ‘common heritage of political traditions, ideals, freedom and the rule of law’ to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3, would plainly be contrary
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ankarabarrevıew 2009/2 to the spirit and intent of the Article, and in the Court’s view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment prescribed by that Article.” (paragraphs 34 – 35 the judgment). This case was the first recognition of this concept by an international court. According to the interpretation of the author, the decision of ECHR gives fugitives the ability to raise infringements of every safeguard of the European Convention on Human Rights, especially in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting State, as a barrier against extradition. Since the Republic of Turkey has been a party to the European Convention on Human Rights and recognized the right of individual petition, there should be the possibility to bring such infringement allegations before the European Court of Human Rights. IV. IMPLEMENTATION OF INTERNATIONAL CONVENTIONS ON EXTRADITION Provisions of international bilateral and multilateral conventions on extradition are applied directly to the extent that there is no domestic law provision in the same regard because, according to Article 90 of the Constitution, provisions of such conventions duly ratified by Turkish Grand Assembly become part of national law automatically. The most eminent and practiced international convention in Turkey is the European Convention on Extradition, which was opened for signature by member States of the Council of Europe on December 13, 1957. This multilateral Convention provides the general basis (principles) for extradition and procedures thereof. V. REQUIREMENTS OF THE CONVENTION FOR EXTRADITION Most States, like Turkey, volunteer to extradite fugitives in the absence of an extradition convention (Bert Swart, analysis in “Human Rights and the Abolition of Traditional Principles”, published in Principles and Procedures for a New Transnational Criminal Law, documentation of an International Workshop 1991 Freiburg im Breisgav, edited by Albin Eser/Otto Lagodny). However a small number of States, mostly common law countries, refuse to do so. Quite possibly the Turkish policy is logical and clear in this context for the following reasons: • The requirement for a convention for extradition seriously hampers international co-operation and attainment of criminal justice • Although conventions are important instruments of international co-operation, the provisions thereof do not always exhaust all mu-
Procedure and Basic Essentials for Extradition Requests Coming to the Turkish Republic
tual obligations. These instruments are sometimes far from eliminating difficulties that might arise (i.e. the Extradition Treaty between Republic of Turkey and United States of America has an appendix listing extraditable offenses and offenses not listed in the appendix fall outside of the scope of extradition). • The basic condition for genuine international co-operation is faith and confidence in other States criminal justice systems. Instead of an international instrument, sometimes a verbal note of the diplomatic mission of a foreign State ensuring reciprocity may be seen as an expression of trust and serve to the same purpose. • The Turkish people are against giving an impression to fugitives that Turkey is a haven from justice. • The Turkish people are of the opinion that no serious offense should remain unpunished regardless of where it has been committed. Therefore in case of the non-existence of a extradition convention, if the diplomatic mission a foreign State presents a verbal note promising that it shall grant extradition to Turkish competent authorities when required and without numerical limitation, such an official letter shall suffice in lieu of a convention and the rules of Turkish legislation shall apply together with the principles of international law. Nevertheless it is worth to list the foreign states having mutual contractual obligations with regard extradition. The Turkish Republic has concluded bilateral extradition treaties/agreements with United States of America, Algeria, Morocco, Iraq, Iran, Kazakhstan, Kuwait, Turkish Republic of Northern Cyprus, Libya, Lebanon, Egypt, Mongolia, Uzbekistan, Pakistan, Syria, Tajikistan, Tunisia, and Jordan. Besides, the Turkish Republic has acceded to the multilateral European Convention on Extradition to which Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxemburg, Malta, Moldova, Monaco, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Ukraine, United Kingdom, Israel, and South Africa have also acceded. VI. PROMINENT RULES OF EXTRADITION Non bis in idem: The most clear meaning of this rule is given in the first paragraph of Article 35 of the European Convention on the Transfer of Proceedings in Criminal Matters: “1. A person with respect to whom a final and enforceable criminal judgment has been rendered may for the same act neither be pros-
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ankarabarrevıew 2009/2 ecuted nor sentenced nor subjected to enforcement of a sanction in another Contracting State: • If he was acquitted; • If the sanction imposed: - has been completely enforced or is being enforced, or - has been wholly, or with respect to the part not enforced, - the subject of a pardon or an amnesty, or - can no longer be enforced because of lapse of time; • If the court convicted the offender without imposing a sanction...” The same wording appears in Article 2 of the Additional Protocol to the European Convention on Extradition. Simply to say, whoever has been sentenced with final and binding effect in a State shall not be prosecuted in another State for the same offense; if in the event of a conviction the sanction has already been executed or is in the process of being executed according to the law of the sentencing State, extradition shall not be granted. This universal principle of criminal law was enacted into domestic law by paragraph 7 of Article 223 of the Turkish Criminal Procedure as follows: “In cases where there is a previously rendered judgment, or a pending case against the same accused because of the same conduct, the case will be declared inadmissible”. Capital punishment (Death penalty): Many modern extradition conventions provide for an exception with respect to death penalty. This exception cannot, however, be said to be generally accepted worldwide. The Republic of Turkey abolished the death penalty in 1984 de facto and in 2002 de jure. Therefore where there is a substantial risk of the death penalty or so-called death row phenomenon, extradition shall be refused on account of the torture/cruel and unusual treatment and punishment clause of Article 3 of the European Convention on Human Rights. The same rule is applied when there is a risk of penalties like cutting off a hand for theft, whipping for adultery or for other offenses, for this reason. Rule of Speciality: This rule protects the fugitive from unexpected criminal charges once extradited and protects the requested State from abuse of its extradition processes and hence its sovereignty as well. The rule requires that once the fugitive has been surrendered following the extradition process, the requesting State may only prosecute him for his illegal act/acts for which extradition was/were granted unless the requested State consents for the extension of extradition for any
Procedure and Basic Essentials for Extradition Requests Coming to the Turkish Republic
offense/offenses falling out of the scope of initial extradition request, unless the person extradited has not left, having had the opportunity to do so, the territory of the State to which he was surrendered within forty-five days (this period varies according to the provisions of the controlling treaty) after his final discharge or if he has returned to that territory after leaving it. In this context, it is necessary to mention that if the extension of extradition includes several separate offences, the requested State has the sole right to grant extradition wholly or partly in accordance with its domestic legislation and also provisions of international convention or international criminal law. I am -personally- of the opinion that there are some gaps in Turkish domestic legislation with regard to the extradition process which should be filled as soon as possible. Serious problems and contradictory implementations arise especially when there is no international extradition treaty between Turkey and the foreign requesting State; in the absence of the international instrument, questions like “What is the period for provisional arrest?”, “Which authority is competent to receive and forward extradition request?”, “Which supporting documents are needed for extradition?”, “Which foreign authorities are considered as judicial authority to ask for extradition?”, and “Which commonly used language is mutually accepted for translation of extradition documents?” remain unanswered. International law does not mention explicit rules within this framework.
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The Role of Drugs in Terrorism and Organized Crime ■■ by Engin Durnagöl * INTRODUCTION
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ransnational organized crime, drug trafficking and international terrorism, which are described as “new risks” or “non-state actors” are, today, major challenges for internal and international security and stability. Although these three risks are not new, they have become global, multidimensional, and complicated. There is no doubt whatsoever that there is a strong linkage between non-state actors and national, regional and international security issues. For this reason, they have become much more important to understand than ever before if one is to effectively combat these problems. As Politi (1997) explained, these risks are major obstacles for nations because of some reasons. The first reason is the effect of different factors to the nation-state, from the local level to the global level, but the evolution of new forms of government should not become the victim to forces which will destroy every social, political, and cultural acquis. The second reason is that the establishment of democratic governance plays crucial role in new democracies and developing countries. At the beginning, this evolution is especially fragile to these non state actors. If developing countries do not succeed in making the transition, the developed countries will face more serious challenges such as violence, drugs, illegal immigration within their own borders and will have to spend much more money, resources and individual lives, in humanitarian and peacekeeping missions in an attempt to mitigate * Deputy Director General for Personnel Affairs in Turkish Ministry of Justice
The Role of Drugs in Terrorism and Organized Crime
the effects of international neglect. Thirdly, all countries are affected by the new risks. Transnational organized crime and illicit drug trafficking like mushroom are pervasive. All countries are affected by non state actors in other words; no country is immune from these. Transnational organized crime facilitates illegal drugs and immigration, human trafficking which can be thought as a new form of slavery. Fourthly, ordinary citizens are directly affected by mentioned risks and, their political choices are affected as well. If security becomes an obsession for the electorate and governments, rational and tolerant choices might be wishful thinking. Finally, the strategic feature of non state actors is being increasingly underlined by global actors like the United Nations (UN), European Union (EU) and by other security organizations. Illicit drugs and its trafficking could contribute to terrorism in at least five distinct ways in source, transit and consumer countries. First of all, it supplies cash for terrorism. Second, it creates chaos in countries where drugs are produced, through which they pass, or in which they are sold at retail and consumed. Sometimes chaos is deliberately cultivated by drug traffickers and terrorists and organized crime groups to provide an environment conducive to their illegal activities. Third, it generates corruption in law enforcement, military, and other governmental and civil institutions in some ways such as building public support for terrorist-linked groups or weakening the capacity of the society to combat terrorist organizations and actions. Fourth, it provides services which are useful for terrorist actions and movements of terrorist personnel and material, and also it supports a common infrastructure, such as smuggling capabilities, illicit arms acquisition, money laundering, or the production of false identification or other documents, capable of serving both drug-trafficking and terrorism purposes. Last one is competing for law enforcement and intelligence attention. (Kleiman 2004, CRS-2-3) In this research paper my aim is to examine the link between drugs, terrorism and organized crime; particularly, the role of drugs in terrorism and organized crime, the answer to why illicit drugs is important for terrorist and crime organizations, why they are interested in the illicit drug business, and what kind of relationships there are between them. This paper consists of three main chapters. In the first chapter terrorism is defined although it is possible to meet various sources and different approaches regarding the origin and cause of terrorism. In addition to this, international terrorism is examined and the factors have an impact on the international dimension of terrorism is emphasized. In the second chapter, after defining of organized crime, the simi-
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ankarabarrevıew 2009/2 larities and differences between terrorist organizations and organized crime groups are analyzed. In the third chapter which is called “the nexus of drugs and terror & crime organizations”, first of all, necessary information about illicit drugs and the illicit drug market is given in order to understand its dynamics and the reasons for its success. Then the diffusion of the drug business into the fiber of local and global economic life is examined under the sub-title of “no business like the drug business”. Next, the relationship between organized crime and illicit drugs, and the impact of illicit drugs and transnational organized crime on states, organized crime in drug trafficking are examined. Finally, after examining differences and similarities between terrorists and drug traffickers, the answer is given “why do terrorist organizations interest in drugs and its market?” And “Is there any risk for terrorist organizations in the drug business?” 1. TERRORISM 1. 1. Definition From the beginning of human history, we can see, more or less, traces of violence and terror everywhere. (Onat 2004, 8) Terrorism is as old as the history of mankind, from sociological, psychological, historical points of view. (Aydıner 2005, 1-7) But the first period of modern-era terrorism dates back to the aftermath of the French Revolution and the Napoleonic Wars.( Derlugian 2006, 425) Violence and terror now have a global dimension. They can no longer be isolated in a particular region, society or group of people. It is now a global issue that mankind has to face. (Onat 2004, 8) The definition of terrorism is difficult. However, defining terrorism is not a technical one but political issue. For instance “one man’s terrorist is other man’s freedom fighter.” (Derlugian 2006, 418) It is possible to find various definitions of terrorism in different sources. There is no doubt that terrorism is armed violent acts, but there are different approaches regarding the origin and cause of terrorism and what activities are defined as terrorist acts. (Dilmaç 2006, 450) There are many definitions of terrorism provided by governments and international organizations.1 Nonetheless, according to the Terror1
For instance, according to the European Parliaments definition (November 2001): “ Each Member State shall take the necessary measures to ensure that the following offences, defined according to its national law, which are intentionally committed by an individual or a group against one or more countries, their institutions or people with the aim intimidating them seriously altering or destroying in the fundamental freedoms, democracy, respect for human rights, civil liberties and rule of law on which our societies based will be punishable as terrorist offences.” (Wilkinson, 2005, 9)., and also according to United Nations (UN) Council Resolution 1566, October 2004: terrorism: “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature, and calls upon all States to prevent such acts and, if not prevented, to ensure that such acts are punished by penalties consistent with their grave nature…” http://www.treas.gov/offices/enforcement/pdf/unscr1566.pdf (accessed 01, 2008)
The Role of Drugs in Terrorism and Organized Crime
ism Act 2000 of the United Kingdom (UK), terrorism is defined as the following: “Terrorism: interpretation. 1) In this Act “terrorism” means the use or threat of action where a) the action falls within subsection (2), b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and ; c) the use or threat is made for the purpose of advancing a political, religious or ideological cause. 2) Action falls within this subsection if it— a) involves serious violence against a person, b) involves serious damage to property, c) endangers a person’s life, other than that of the person committing the action, d) creates a serious risk to the health or safety of the public or a section of the public, or e) is designed seriously to interfere with or seriously to disrupt an electronic system”. Professor Wilkinson defines terrorism briefly as “the systematic use of murder, injury, and destruction or threat of some to create a climate of terror, to publicize and cause and to intimidate a wider target into conceding to the terrorist’s aims.”(Wilkinson 2005, 9) Though some journalists and politicians have tried to use it as a synonym for guerilla warfare, terrorism is as a special mode of violence which since the late 1960s, has more often than not been used totally alone, in a pre-insurgency situation. It is this kind of attack-spasmodic bombings, shootings, kidnapping which have been the characteristics of modern pattern in western democracies. (Wilkinson 2005, 9) Although some try to argue that terrorism is purely a subjective experience and there is not any objective criteria which can be used by society as a whole to distinguish terrorism from other forms of violence, according to Wilkinson (2007) and Dr. Frédéric Esposito (2007, 19) terrorism is obviously a different form of violence from other types of violence and conflict such as riots and street violence or conventional wars. Dr. Esposito also distinguishes terrorism from other types of violence, on the basis of the characteristics formulated by Wilkinson (2007): • it violates the norms regulating disputes, protest and dissent, • it is premeditated and designed to create a climate of extreme fear,
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ankarabarrevıew 2009/2 • it is directed at a wider target than the immediate victims, • it inherently involves attacks on random or symbolic targets, including civilians, • it is considered by the society in which it occurs as “extra normal”, that is in the literal sense that it violets the norms regulating disputes, protest and dissent, • it is used primarily, though not exclusively, to influence the political behavior of governments, communities or specific social groups.” The objective of terrorist organizations is different from the ideology they adopt and the country they are active in. General purpose of terrorism seems like to overthrow its target regime and to establish a new system in the light of their ideology. (Dilmaç 2006, 451) In general we can list these purposes that seem merged into each other as (Dilmaç 2006, 451); • to coerce the target regime, the political system, and to weaken the existing authority and the thrust of the people towards the state, • to voice and to draw internal and external attention to their causes, • to weaken the resistance of the society by means of violence, and to eliminate the negative impact on their cause, • to damage the unity and the order of the society by bringing the groups that have different cultural infrastructure and understanding face to face to involve them in a fight against each other. If we think that terrorism is used as a tool to achieve some political and economic benefits, the purpose of terrorism will then be defined in a different way. In such cases purpose of terrorism is to create a specific environment in target country and society to have gains. Terrorists create reactions in accordance with their aim. The most interesting feature of this strategy is the indifferent attitudes of the terrorists towards their victims in all-terrorist activities. Not the acts, but the result of the act is important for the terrorists. (Dilmaç 2006, 452) 1. 2. Terrorism as a Major Challenge Terrorism also serves ideologies. The vast part of terrorist organizations rising in 1970s had a Marxist background and they identified themselves as part of a revolutionist anti-imperialist movement. (Başeren 2006, 14) Due to movements whose ideology based on Marxist-Leninist doctrines related to political developments (conflicts) after World War II, that time period may be named as Ideological Terror Wave of Terrorism. (Dilmaç 2006, 454) Owing to the fact that Marxist ideology was the source of the international terrorism during the Cold
The Role of Drugs in Terrorism and Organized Crime
War Era, it was assumed that terrorism received support from eastern bloc countries. But after the Communism Bloc collapsed, it has become nostalgic. Nevertheless, in various regions there are still some terrorist/domestic movements whose ideology is based on MarxistLeninist doctrines. (Dilmaç 2006, 454) After the collapse of the former Soviet Union, and after the threat of international communist was eliminated, the Islamic ideology is now occupies the center of the international terrorism stage. According to the new broad definition, terrorism is radical religious movements, and in accordance with its specific definition, terrorism is based on Islamic radicalism. (Dilmaç 2006, 455) On the other hand, according to Dilmac, (2006’455) those who consider the Islamic belief and or the Islamic radicalism as the current and the future source of terrorism exaggerate the issue. Also the Islamic world shows reactions to the identification of terrorism with Islam and governments of the Muslim countries consider that this identification harms the Islamic world and so they do not want the term of Islamic terrorism to be used. Realities revealed after attacks in the USA on September 11, 2001 which are the biggest terrorism activities known until now, had impact not only on the USA, but also whole world, and the world faced the global wave of terrorism. Although this al-Qaeda based attack was motivated by religion and, due to its international dimension, its asymmetric affects, multinational militant cadre and not being confined to one region or country, it was named as global wave of terrorism. (Dilmaç 2006, 455) There is no doubt whatsoever, 11 September was a turning point in dealing with international terrorism. The attacks showed that terrorism can lead to more casualties and destruction than conventional war conducted with technologically advanced systems. Current security structures are not enough to eliminate this threat and it is impossible to solve this problem just with the security measures. Up to now, terrorist and anti-terrorist activities were considered as regional efforts and were often ignored due to political reasons. Since 9/11 it has become the concern of the international community. For example, European countries raised their awareness on international terrorism after the 11 September and Madrid Attacks in March, 2004. Since terrorist bombs killed 191 people in Madrid, EU politicians have argued strongly in favour of the greater European co-operation in fighting terrorism. The attacks demonstrated that, terrorism in particular radical Islamist groups remain a serious threat in Europe and beyond. (Keohane 2005, 1; Onat 2004, 8) In the 21st century, terrorism has extended across a wide field, institutionalized, technologically upgraded, and has global influences.
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ankarabarrevıew 2009/2 Terrorist organizations broadcast their political message to large audiences via internet, TV and radio networks. They can raise funds and propagate their propaganda. (Aydin 2007, 243) It is agreed that terrorism has gained an international dimension and terrorist organizations, although they do not have very close relations with each other, they have contacts at a certain level. Because many events occurred in the world prove that the terrorist organizations are in cooperation with each other. So, terrorism appears to be not only a problem for a few countries, but also it is a problem affecting whole world. Violence and terror can no longer be isolated to a particular region or society or group of people, it is now a global issue with a global dimension. (Onat 2004, 8) Global terrorism does not necessarily determine specific states or military targets, it can determine any individual or institution or place as a target. In this context, all civil citizens, institutions and administrations view themselves as a potential target. (Çelik and Dağdeviren 2004, 23) 2. TERRORISM AND ORGANISED CRIME RELATIONS 2. 1. Definition of Organized Crime Transnational organized crime is both a key problem and a very complex phenomenon, overlapping and linked with warlordism and terrorism. Because each one feeds off the other. There is no commonly accepted definition of organized crime yet, owing mostly to the fast development and changing of the forms where organized crime appears. (Dobovšek 1996, 1) Academics, jurists and police forces are far from agreeing on the definition of transnational organized crime. However organized crime is a category based on several factors: (Bailey and Godson 2000, 599) • The number of participants perceived scale of illicit operations; • The level of business development and organizations attributed to the social agents who live off of the illegal business or who at some point participate in that business; • The danger these participants may pose in specific situations for the existence or effective exercise of the rule of law. There are many definitions of organized crime provided by governments and international organizations. But according to United Nations Convention on Transnational Organized Crime 2: “Organized criminal group’ shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indi2
For further information about “United Nations General Assembly Resolution 55/25, United Nations Convention on Transnational Organized Crime. Annex I, Article 2, Subsection A, 8 January 2001” see http://daccessdds.un.org/doc/ UNDOC/GEN/N00/560/89/PDF/N0056089.pdf?OpenElement
The Role of Drugs in Terrorism and Organized Crime
rectly, a financial or other material benefit…”. Organized crime has many forms and involves a wide variety of criminal activities. For instance, according to Hugo Brady, (2007, 5-6) there are four main types of gangs posing the most serious danger. First, there are the big domestic gangs such as the Italian camorra.3 Second, Albanian, Chinese, Turkish, Moroccan and Russian immigrants have formed violent ethnic gangs in several countries particularly in many EU member-states. This type of illegal organized crime organization accounts for much of the illegal drugs and human trafficking in their host countries and maintain strong links to their home countries. The third kind of group is disorganized crime: networks of perpetrators with little or no fixed organization, hierarchy or location. For example, Nigerian organized crime tends to follow this pattern. These groups may only come together on a crime-by-crime basis. Some may never even meet in person, communicating by phone, or through internet chat rooms or mail. Finally, there are the illegal motorcycle gangs. These gangs operate globally through strictly organized chapters. In this sense, Hells Angels4, Bandidos5, and Outlaws6 are dominant in Europe. These gangs which are active particularly in Belgium, Germany and the Nordic Countries combine strict organization with a large international presence and are involved in crimes ranging from drug smuggling to car theft to human trafficking and contract killings. 2. 2. Similarities and Differences Between Terrorist Organizations and Organized Crime Groups There are many similarities between terrorist organizations and organized crime groups. According to Uyar, (2006, 560-561) these stands as following: • First of all, both operate secretly. Although both terrorist groups and criminal organizations have a strong central leadership, they are mainly based on cell structures to achieve their own goals. Day to day operations are carried out by members of small cells. • Both use violence and produce mostly civilian victims. • Intimidation and fear are characteristics of both groups. • They use similar tactics, such as kidnapping, assassination, extortion. • Terrorist and crime group organizations use front organizations 3 4 5 6
For farther information see: http://en.wikipedia.org/wiki/Camorra ( accessed April 30, 2008) For further information see: http://news.bbc.co.uk/2/hi/programmes/this_world/3311057.stm (accessed April 30, 2008) For further information see: http://www.seattleweekly.com/2006-07-12/news/bad-boys.php?page=full (accessed April 30, 2008) “The Outlaws Motorcycle Club is partly responsible for the proliferation of cocaine in northwest Indiana, as well as Indianapolis. The Outlaws is one of the “Big Four” motorcycle clubs operating in the United States, and it deals mainly in cocaine. The Outlaws was formed in Joliet, Illinois, in 1959 and has approximately 60 chapters in the United States, Canada, Australia, and Europe. U.S. chapters account for 300 members” for further information see. http://www. usdoj.gov/ndic/pubs0/660/cocaine.htm (accessed April 30, 2008)
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ankarabarrevıew 2009/2 such as legitimate businesses or charities. • Both uses similar means to conceal profits and fund raising. • The activities of both groups are in cross the national-regionaltransnational divide; both groups require safe havens, and as a result both tend to take advantage of Diaspora communities. • Both groups are assisted by corrupt officials whose services provide mutual benefits, such as access to fraudulent documents, including passports and other identification and customs documents to smuggle goods and weapons. Experts and practitioners agree that the structures and practices of terrorism and organized crime continue to evolve and they are increasingly fluid and dynamic. Terrorist and organized crime groups have been more entrepreneurial than law enforcement, they have responded more quickly to changes in technology, markets, regulations and the dynamics of skilled labor markets. Both of them have become more diffuse and difficult to identify as the specialized knowledge and skills of participants are increasingly mobile. Explorations of the swarming characteristics and changing structures and alliances within terrorist and organized crime groups have valuable insights into the diffusion of skills and specialized knowledge for purposes of illicit and terrorist activities. (Mace 2007, 239) One can distinguish terrorist organizations from other type of organized crime groups, on the basis of the characteristics formulated by Uyar (2006, 561-562) • Terrorist organizations are generally ideologically, politically, or religiously motivated while organized crime groups are profitoriented. Unlike terrorist groups that usually have non-financial goals: publicity, dissemination of an ideology, the destruction of a society or regime, and simply spreading terror and intimidation, drug traffickers and organized crime groups first and foremost seek monetary gain. • Terrorist groups often wish to compete with governments for legality, but organized crime organizations do not. • While terrorist organizations usually enjoy media attention, organized groups do not. • In general terrorist victimization is less discriminate than the violence used by organized crime groups. Although terrorist groups have non-financial goals, the first and foremost goal and aim of organized crime groups is material, financial, monetary benefits. From this perspective for organized crime groups, drug trafficking is the most lucrative way to earn money among their
The Role of Drugs in Terrorism and Organized Crime
– legal and illegal- activities. On the other hand, for terrorist organizations dealing with drugs is not a main objective. For them, drug trafficking is a tool to earn money, to motivate militants and to undermine fundamentals of the society, to damage individuals. Otherwise, the huge profit from drugs may shift terrorist organizations towards more typical organized crime business than terrorism. In other words the dazzling revenue of illicit drugs can transform terrorist groups to organized crime. 3. THE NEXUS OF DRUGS, TERROR & CRIME ORGANIZATIONS 3. 1. Illicit Drugs 3. 1. 1. Global Outlook Around 92 per-cent of the world’s heroin (for no other drugs is production so concentrated in a single area) comes from poppies grown in Afghanistan. (UN World Drug Report, 2007) Annual demand for opium is about 4,500 tons. Last year a record of 6,100 tons were produced in Afghanistan alone. That country’s production is 30 percent more than the total world demand. (Costa 2007, A17) According to the UN World Drug Report 2007, in recent years, the world heroin market has been divided into three regional submarkets: • Afghanistan: its opiates have supplied the markets of neighboring countries, Europe, Africa, and the Middle East. • South-East Asia: its opiates have supplied the markets of China and other South-East Asian countries, Oceania as well. • Latin America: its opiates have supplied the North American market. Most of the world’s cocaine comes from coca leaf cultivated in Peru, Colombia, and Bolivia. Cocaine is often trafficked in to Europe via the Caribbean region and, increasingly, via Africa. The total consumer market for cocaine is estimated at 14 million people. While the consumer demand in North America has ceased to expand, cocaine is making worrying inroads into new and growing markets. North America and the EU are the first and the second largest consumer markets for cocaine, respectively. An estimated 250 tones of cocaine enter the Union annually via maritime shipments, air freight and air couriers. In 2004, 75 tones of cocaine was seized in the EU; about 65% of this amount was seized in Spain and the Netherlands. This underlines the prominent role of these countries as entry and subsequent distribution points for cocaine to other Member States. Consumption increased significantly in Europe, doubling or tripling in several countries over the last decade. In Africa, notably in the countries of West Africa, co-
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ankarabarrevıew 2009/2 caine use has also increased. (Europol Drugs, 2006) According the UN World Drug Report 2007, it is impossible to accurately estimate the location and total number of hectares under cannabis, because it is grown in at least 172 countries. Cannabis is the largest illicit drug marketed by far, including roughly 160 million annual consumers. The widespread nature of production and consumption make it very difficult to define and quantify. The production of cannabis resin (also known as hashish) is concentrated in North Africa (Morocco) and in the South-West Asia/Middle East region, particularly in Afghanistan and Pakistan. Resin production declined strongly, from 3,070 mt in 2003 to 1,070 mt by 2005. Most of this production is consumed in Europe. (UN World Drug Report, 2007) The largest production areas for methamphetamine continue to be in South-East Asia (including Myanmar, China and the Philippines) and in North America. Traditionally, the majority of methamphetamine in the United State of America (USA) was produced domestically, with the precursor chemicals smuggled into the US via Canada or Mexico. In South Africa, where methamphetamine is produced for the domestic market, both production and consumption have increased. The Oceania region, notably Australia and New Zealand, continue to be important producers and consumers of methamphetamine, but there are no indications that these drugs are exported from there. ( UN World Drug Report 2007) Amphetamine production continues to be primarily located in Europe, notably in the Netherlands and Poland, followed by the Baltic region and Belgium. ( UN World Drug Report 2007) “Europe is the world’s largest producer of illegal amphetamines, such as ‘ecstasy’. Illegal factories produce such drugs in the Baltic states, Belgium, Germany, Poland, the Netherlands and the UK.” (Brady 2007, 1) Amphetamine production also takes place in North America (notably in the USA) and in South-East Asia. Ecstasy production also continues to be largely concentrated in Europe, though the expansion of ecstasy production, in recent years, has mainly taken place outside Europe, notably in North America and in East and South-East Asia. Global demand for amphetamines (methamphetamine and amphetamine), which increased strongly in most parts of the world in the 1990s, is now showing signs of overall stabilization. At close to 25 million people, the global amphetamines consumer market is larger than the markets for cocaine or heroin. Between 15-16 million of these users are thought to consume methamphetamine. (UN World Drug Report 2007) According to the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), after cannabis, the most commonly used drugs in the EU are synthetic drugs, either amphetamine or ecstasy.
The Role of Drugs in Terrorism and Organized Crime
(Europol Drugs 2006) *Drugs consumption As you see on the chart 1, while a huge share of the world’s population which is about 5 per cent of the population between the ages of 15 and 64, uses illegal drugs each year, only a little share of these can be considered “problem drug users” (0.6%). (UN World Drug Report 2007) The second chart shows that about 200 million people use drugs each year worldwide. Not surprisingly, the main problem drugs at the global level continue to be the opiates (notably heroin), followed by cocaine. For most of Asia and Europe, opiates continued to be the key problem drug; in South-America, drug related treatment demand continued to be generally linked to the abuse of cocaine; and in Africa, the bulk of all treatment demand is linked to cannabis. (UN World Drug Report 2007)
*Annual prevalence is a measure of the number/percentage of people who have consumed an illicit drugs at least once in the monthperiod preceding the assessment. *source: UN World Drug Report 2007 3. 1. 3. No business like the drug business There are few businesses, whether legal or illegal, that are more lucrative than the drug trade. Every kind of drug trafficking offers sufficient profit at each stage of the trade, from cultivation or manufacture through to street-level dealing. It is the idea of profit that encourages the involvement of criminals of all levels. (Europol Drugs Information Bulletin 2003-04, 3) The Organization for Economic Cooperation and Development calculated in 1990 that as much as $122 billion was spent each year in the United States (US) and Europe on heroin, cocaine, and cannabis
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ankarabarrevıew 2009/2 which are the most popular illicit drugs. (Stares, 1996, 2-3) “In the 2005 World Drug Report, United Nations Office on Drugs and Crime (UNODC) valued the world narcotics trade at some US$320 billion, a figure in keeping with previous estimates from a variety of sources.” (UN World Drug Report 2007)
Cannabis
Amphetamine-type stimulants Amphetamines
Cocaine
Opiates
of which heroin
Ecstasy
(million people)
158.8
24.9
8.6
14.3
15.6
11.1
In % of global population age 15-64
3.8%
0.6%
0.2%
0.3%
0.4%
0.3%
According to these figures, the rewards of the drug trade are larger than the gross national product of three-fourths of the world. (Stares, 1996, 3) In other words the drug trade is one of the biggest commercial activities in the world. As you see the figure 3, in comparison with other illicit markets, illicit drug trade is also much more profitable. For instance, the International Labor Organization estimated the value of global human trafficking to be US$32 billion in 2005. Estimates of the value of the trade in conflict diamonds range between 1.5 - 2 per cent and 3 -15 per cent of the overall trade in rough diamonds. Small Arms Survey puts the value of the illegal firearms trade at no more than US$1billion. The relatively high value assigned to the drug trade is understandable due to the fact that, unlike human beings, diamonds or firearms, the drug supply is consumed each year and in need of continuous renewal. In summary, drug trafficking remains the single most lucrative sector of transnational criminality.( UN World Drug Report 2007, 170) 3. 1. 4. Globalization and drug trade Globalization has been simply widening, deepening and speeding up worldwide interconnectedness in terms of economical, cultural, political, social, and unfortunately criminal aspects. Worldwide economic integration has intensified as the spreading out of global commerce, finance, and production relations together the destiny of nations, communities, and households, across the world’s most important economic regions and beyond within an emerging global market economy.( Mcgrew 2006, 19-20) The net result of globalization is that the world is becoming more and more “borderless”. Non-governmental and
The Role of Drugs in Terrorism and Organized Crime
transnational actors play an ever-growing role in shaping the social, political and economic life of the earth. (Stares 1996, 5) The drug trade, as a consequence of globalization, has progressively become a more transnational forces and player. In reality, international criminal organizations have arguably been the main beneficiaries of economic integration and liberalization. Hence the global diffusion of technical expertise and internationalization of manufacturing have made it possible to cultivate and refine drugs in remote places of the world and still be within the reach of distant markets. Not only the expansion in trade, transportation network, tourism, but also expanding personal mobility, especially the growth of mass media, and global telecommunications, the growing integration of the global financial system which have provided opportunities to launder money, and invest in other licit or illicit activities has made easier for drug traffickers. (Stares 1996, 6; Patrick 2006, 19) It is a fact that globalization has pros and cons, in other words it has a dark side. As a consequence of overpopulation, it has created desperate conditions, environmental degradation, chronic under development, civil strife, civil war, terrorism, unemployment, and poverty in many parts of the world. On the supply side, dealing with drugs is an easy and profitable economic incentive for people living under these conditions, to cultivate and manufacture drugs because of livelihood they provide where few alternatives exist. In the global world, after the end of the Cold War, weak and failing states 7 have arguably become the most important problem for international order. Drug trafficking organizations have already created de facto sanctuaries in many weak and failing countries. (Stares 1996, 6) “Beyond posing terrorist or proliferation risks, weak, failing and postconflict states are said to provide ideal bases for transnational criminal enterprises involved in the production, transit or trafficking of drugs, weapons, people, and other illicit commodities, and in the laundering of profits from such activities.” (Patrick 2006, 19) 3. 2. Illicit Drugs and Organized crime 3. 2. 1. The impact of illicit drugs and transnational organized crime Transnational organized crime, and especially its association with 7
For the definition of “weak and failing states” see Patrick 2006, 7-12
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ankarabarrevıew 2009/2 drug trafficking, is an obvious threat not only for certain governments but also for all societies for the following reasons. • Worldwide transnational organized crime and drug trafficking and the production of illicit narcotics are serious security problems and also they are hazard to the foundations of civil society and sovereignty. (Bryan 2000, 2) The economic resources generated by drug trafficking and organized crime are directly and intentionally used for destabilizing the society, the political system, the administration and the economy of a country. (Politi, 1997) The transnational networks attack territorial integrity both within and at the borders of a given country. Whenever organized crime controls an area, transnational organized crime has free access and law enforcement finds a ‘no-go’ area which is also called ‘grey zones’ or is anyhow ineffective. (Politi, 1997) The lives lost or ruined during criminal confrontations or by drugs are not only a regular and high cost for a demographically stable population, but also directly or indirectly represent an economic gain for dangerous actors who challenge the authority of the state and the law, from beyond its borders. (Politi, 1997) • As a symptom of the failure of some economic development strategies and the lack of viable economic alternatives, drug trafficking has a negative impact on an economy. (Bryan 2000, 2) The huge amount of profits engendered through trafficking which can be used to destabilize economies. (A Report of the George C. Marshall European Center for Security Studies Conference on “Organized Crime” 1999, 19) “Criminal money may also destabilize the financial system of small countries and have a negative impact on savings and economic stability. The accumulated balances of criminal money could represent inflows that are larger than a country’s traditional annual inflows; these balances could be used to corner markets and dominate small economies. Furthermore, the proceeds of transnational crime are often invested in ways that are inconsistent with economic fundamentals. If an economy becomes contaminated by money controlled by criminal elements, there is an erosion of confidence in the markets. Moreover, rapid infusion of money from transnational crime may also contribute to the increased volatility of the aggregates in a country’s financial system. The money that criminals “invest” is actually flight capital, ready to be shifted via almost instantaneous wire transfer when better or less risky opportunities present themselves elsewhere. Large and irregular activities could distort the economic database, obscure the realities of national fiscal and monetary policies, and complicate economic policymaking. In turn, these could have consequences for
The Role of Drugs in Terrorism and Organized Crime
interest and exchange rate volatility. Consequently, containment in the growth of criminal capital formation is perhaps the major challenge confronting the international financial community at the start of the twenty-first century.” (Bryan 2000, 8) • The illegal drug trafficking and organized crime are the major contributors to corruption in national security. Illicit drug trafficking like transnational criminal activity is also fostering a worldwide “culture of corruption”. Corruption can be a significant tool and facilitator for crime groups that successfully corrupt government and law enforcement officials as well as various legitimate markets and businesses. Corruption is thus a barrier to economic, social, and political development, with repercussions such as the weakening of democracy, loss of integrity in the public services, distortion of the distributive role of the state, and waste of human and financial resources. (Bryan 2000, 7) • The narcotics trafficking generate and aggravate ordinary crime. (Bryan 2000, 2) • Illicit drug trafficking promotes substance dependency, diverts national funds. (Bryan 2000, 2) Insufficient and valuable national resources are diverted from infrastructure development, education, and health care to fighting the illegal drug problem. • Illegal drug trafficking and organized crime creates serious controversy in the relations among states. (Bryan 2000, 2) Many Central and Eastern European countries and some Mediterranean countries have been becoming less reliable partners, owing to the fact that organized crime and drug trafficking are undermining them, even if they might sometimes consider themselves merely countries through which drugs transit. (Politi, 1997) • Finally, the increasing links between organized criminal groups engaged in drug trafficking and insurgent and terrorist groups. The amount of profits earned through drug trafficking allows for the financing of insurgency movements. (Albini, Raven-Hansen, and Sullivan 1999, 19) 3. 2. 2. The relationship between illicit drugs and organized crime It is undeniable that there is strong relationship between illicit drugs and organized crime. For illicit drugs, organized crime is sine qua non. In other words, organized crime can exist without drug trafficking but illicit drugs can not live without organized crime. (Politi, 1997) It is a fact that, under the broad definition of the United Nations Convention against Transnational Organized Crime, almost all transnational drug trafficking is
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ankarabarrevıew 2009/2 conducted by organized crime groups. According to the Convention:8 “Organized criminal group’ shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit…”. It means, that transnational drug trafficking generally requires the involvement of at least three people, it requires some time, and is profit-motivated, so most drug trafficking groups would be considered organized crime groups under this schema. (UN World Drug Report 2007, 170) For organized crime dealing in illicit drugs is a perfect lucrative activity not only in legal but also in illegal activity. If we look at it from an international context we can see that in general, organized crime groups interest in profitable illegal sectors such as drug trafficking, money laundering, computer crimes, trade in light weaponry, the smuggling of people, commodity smuggling (vehicle theft, theft of intellectual property, “economic” citizenship (illegal passport). But, among these illegal activities, drug trafficking is the single most lucrative sector of transnational criminality. Because as mentioned above9 the rewards of the drug trade are larger than the gross national product of three-fourths of the world. Some argue that “the worldwide narcotics trade alone is estimated to be a $300-500 billion business, on a par with (at the low end) the global automobile industry and (at the top end) with the global oil industry.” (Patrick 2006, 19) Today drug trafficking groups appear across a broad spectrum. On the one hand, there are the groups which are thought as large, highlystructured, very old groups, the criminal equivalent of a transnational corporation, may be best typified by the Sicilian Cosa Nostra in its glory days. On the other hand, there are the small, elastic and impermanent associations of entrepreneurs and criminal service-providers generally labeled “criminal networks”, of which West African organized crime groups are often used as examples. Even less organized are those groups which, while they may fit the UN Convention definition10, engage a large number of people who would not consider themselves professional criminals, organized mainly by market forces. While all of these probable play a role in worldwide drug trafficking today, it remains ambiguous what shares of any given drug flow each group commands. (UN World Drug Report 2007, 170) According to Makarenko, (2002, 6-7) in terms of organized crime groups, there are two main actors in illicit drug trafficking. The first 8
For further information about “United Nations General Assembly Resolution 55/25, United Nations Convention on Transnational Organized Crime. Annex I, Article 2, Subsection A, 8 January 2001” see http://daccessdds.un.org/doc/ UNDOC/GEN/N00/560/89/PDF/N0056089.pdf?OpenElement 9 see “No business like drug business” ph. 14 10 United Nations General Assembly Resolution 55/25, United Nations Convention on Transnational Organized Crime. Annex I, Article 2, Subsection A, 8 January 2001,
The Role of Drugs in Terrorism and Organized Crime
group of actors is drug mafias / traffickers which are identified by their domestic base (they generally do not have an international network in place), and a membership normally restricted to specific clans or ethnic groups. Frequently they engage in unlawful trade at local markets in their particular country of operation. Their role in the drugs chain appears to be restricted to buying raw drugs from farmers and selling shipments to international buyers. Drug traffickers are thus considered nothing more than middlemen in the regional drug trade. Obviously they are motivated by criminal intentions. Drug mafias or traffickers are directly responsible for either distributing opium poppy seeds to local farmers, or for providing farmers with loans to plant opium poppy crops. These loans are then repaid in opium resin which is the raw form of opium. Furthermore, drug mafias constitute the first line of buyers in the international opiate trade and as such, they exercise a considerable degree of influence in countries.. Their situation has been further strengthened by their long-established relations with local elites and warlords. (Makarenko 2002, 6-7) The second group of actor organizations which engaged in the regional and international drugs trade is transnational criminal. These groups pose very important threat to the region which they are in, as they are composed of a chain of regional and international players including officials in several governments and in the security services. As a result of this, some transnational criminal groups entertain political motivations. As with most criminal organizations operating throughout history, transnational organized crime organizations use corruption and intimidation to establish and exert their influence. Given their membership base – including political, law enforcement, custom and military officials – the scale of intimidation and corruption perpetrated by this group of actors has been extensively more destructive for state and regional security than internal drug traffickers. Having displayed their propensity for using violence, transnational crime groups have established a more secure base from which they could effectively bribe officials. Faced with an option between death or injury to family members and bribery, many government and security officials have chosen the latter, particularly when the threats are combined with enormously low wages. (Makarenko, 2002, 8-9) Organized crime organizations to deal with drug trafficking also interested in other type of illegal sectors. (Europol Drugs Information Bulletin 2003-04, 4) For instance, for the time being the main uses of computer crime by organized and terrorist organizations are coded communications, the transmission of sensitive documents such as bomb fabrication or drug refining instructions, lists of adult and child prostitution centers, and, of course, money laundering which is intimately connected with computer crime, and represents in part the
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ankarabarrevıew 2009/2 intangible dimension of organized crime. Estimates of money laundered annually worldwide amount range from $300 to $500bn (3040% drugs-related). (Politi, 1997) Criminals are continuously trying to enter into new markets and so have adapted drug trafficking networks to facilitate illegal immigration, alcohol and tobacco smuggling and sex slave trafficking into the EU. (Brady 2007, 6) 3. 2. 3. Has organized crime become less organized in drug trafficking? Crime experts agree that the traditional image of organized crime groups as highly structured, hierarchical entities has become old-fashioned. Increasing emphasis is being placed on more flexible structures involving networks of skilled individuals. (UN World Drug Report, 2007, 171) In its 2006 Organized Crime Threat Assessment report, (The Threat from Organized Crime, 2006) EUROPOL remarks that organized crime groups in the EU are becoming more and more ‘heterogeneous and dynamically organized in structural terms, moving towards loose networks rather than pyramidal monoliths’. (Zaitseva 2007) Moreover, the consensus among experts seems to be that the global illicit drug trafficking has become more complex in recent years, with many groups emerging that are smaller, more flexible and more temporary than they were in the past.( UN World Drug report 2007, 171) “The old images of highly centralized and controlled drug distribution systems have largely disappeared in face of growing evidence of competitive violence and the failure of individual organizations to endure in dominant positions.” (Reuter, MacCoun, and Murphy 1990, 23) This decentralization has manifested itself in some new features: • Diversification of activities: Criminal activities are more and more diversified, with drug traffickers moving other forms of smuggled goods as well, and simultaneously engaging in lawful business. (UN World Drug Report 2007, 171) • Diversification of personnel: While ethnic relations remain important, many groups involve people of numerous ethnicities and nationalities. If any organized crime organization need expertise which lies outside the group, either alliances may be made with other organized crime groups or individuals, or may be contracted to do the work. Otherwise these service providers may be uninvolved in criminal activity and maintain an image of legitimacy. Furthermore individuals who are from non-criminal backgrounds may be recruited for specific tasks, such as murder. Also gangs from ethnic minority communities may be contracted to do the “dirty work” of majority organized crime groups. Transnational organizations may make alliances with domestic crime organizations to reach a new territory as a destination or a transit zone.(UN World Drug Report 2007, 171)
The Role of Drugs in Terrorism and Organized Crime
3. 2. 4. Nationality/ethnicity and organized crime in drug trafficking Criminal groups may be composed of persons of the same nationality or different nationalities. Most homogeneous organizations that operate in a particular member state are composed of nationals of that member state. On the other hand, by and large, international drug traffickers are composed of nationals from major source or transit countries. For instance Turkish and Albanian groups engaged in the trafficking of heroin; and Moroccan groups playing a role in the importation and distribution of cannabis; Jamaican, Colombian and Antillean groups involved in the importation and subsequent distribution of cocaine. (Europol Drugs Information Bulletin 2003-04, 3) Although there are certainly multinational and multiethnic organized crime and drug trafficking organizations, there remains a strong relationship between ethnicity/nationality and organized crime. Because of the transnational nature of crime, significant shares of the traffickers arrested each year are not nationals of the country where this arrest took place. For instance, of the 11,787 people arrested for cocaine trafficking by the federal authorities in the USA in 2004, 2,373 were foreign nationals (25%), including 1,410 Mexicans (12%). This does not include those US citizens of Mexican descent who are involved in domestic illicit drug markets. Old research has shoved that just under half of all federal drug arrestees were Hispanic, and people of Mexican descent comprise by far the biggest Hispanic group in the USA. Likewise, in Ecuador, of the 915 people arrested for cocaine trafficking in 2004, 227 were foreign (25%), including 117 Colombians (13%). In Spain, 34 per cent of cocaine trafficking arrests in 2004 involved foreigners, as did 32 per cent of drug trafficking arrests on the whole. Looking just at major seizures, of the 40 people arrested with more than 100 grams of cocaine in Nicaragua in 2004 and whose nationality was known, 14 were foreign nationals (35%), including eight Guatemalans and five Hondurans. (UN World Drug Report, 2007, 173) 3. 3. Illicit Drugs and Terrorism 3. 3. 1. Differences and similarities between terrorist and drug traffickers Although terrorists seek political power and the drug traffickers seek profit, there are some similarities between them.11 (Perl 2001) • Both terrorism and drug trafficking are typical examples of interdisciplinary issues. • Both operate worldwide and transnational and benefit from 11 For further information see “A National Symposium On Narco-Terrorism”, Hosted by the DEA Museum & Visitors Center, Tuesday, December, 4, 2001, http://www.usdoj.gov/dea/ongoing/symposium_transcript.doc, (accessed February 02, 2008)
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ankarabarrevıew 2009/2 trends associated with globalization and an open deregulated environment. • In the world which is a multiethnic, globally interconnected, seamless, both terrorists and drug traffickers try to merge into unsuspecting local, ethnic communities to provide a cover for their illicit activities. • Both terrorists and drug traffickers operate from base countries or regions not under strong government control. They seek weak states in which to develop and implement operations. • Both exploit porous borders and seek loopholes in immigration controls. Generally, they seek to take advantage of our trust and open society. • Both rely heavily on technology to network and avoid detection. Examples include use of the internet, use of encryption technology, use of satellite and cell phones, surveillance and eavesdropping technology. • Both types of organizations rely on the services of the underworld community. They need forged documents, safe houses, some items like stolen cars, guns, and they need money laundered. • Both bring violence which is an instrument to an end to cities. • They both seek to undermine rule of law. • Both seek to create a climate of intimidation and fear in societies. • Both are long-term, ongoing phenomena for which there are no quick fixes or all-decisive victories. • Both indiscriminately target populations. For both the determined drug trafficker and the determined terrorist, it is open season with the general population as fair game. • Both terrorists and drug traffickers target youth, especially as a source of recruitment to their ranks. Moreover, the determined terrorist often seeks to demoralize and intimidate a society by launching attacks against school children and a variety of youth locales, such as clubs and amusement parks. In the case of drugtrafficking organizations, youth are targeted for recruitment into long-term addiction. • Both terrorists and drug traffickers seek a world incompatible with democratic principles, with the types of values, with terrorists seeking to destroy Western democracies and the values they represent. Terrorist organizations seek to exploit and subordinate the individual to their rule and ideology. Drug-trafficking organizations seek to exploit and enslave the individual with their
The Role of Drugs in Terrorism and Organized Crime
drugs. In societies ruled by terrorists and in societies where drug addiction prevails, individuals are not free to act and develop their potential. 3. 3. 2. Illicit Drugs as Component of Terrorism 3. 3. 2. 1. Drugs as financial resource For terrorist organizations money is sine qua non. It plays a crucial role in terrorist organizations. They need money for: (Uyar 2006, 506; Poncy 2003,28: Sahin 2001, 19): • day–to-day operations of terrorist cells, such as buying food, hiring a vehicle or securing lodging, • weapons or other destructive instruments, • safe houses and medical treatment for terrorist, • terrorist training camps, • illegal and legal psychological propaganda activities, such as postings, booklets, internet, publications, media broadcasting, • recruiting new terrorist and terrorist supporters, • telecommunications or this kind of equipment such as computer, • political support or sanctuary within vulnerable populations or rogue states. • In terms of financing, the problem is where to find money which they need to continue to operate. The reality is all terrorist organizations are funded from various sources which are not in the same way. These are as follows: (Hardouin and Weichhardt 2003, 10; Uyar 2006, 561) • State, nongovernmental or community organizations: Terrorist organizations set up front organizations receiving funds from sister NGO’s in other countries or infiltrate established community organizations which receive grants. Besides, in addition to acquiring funding, terrorist organizations use their relationships with state sponsors to get access to secure territory or grey arms networks. • Legal investments and legitimate business, diverted charities: Legal business can be used by terrorist organizations and their supporters disguise a variety of criminal activity. Money earned from publications, restaurants, fast food stores etc. is used to acquire enterprises and engage in trade with profits being used to finance of terrorism. • Domestic, migrant communities or co-ethnic and co-religious support: Individual and corporate, voluntary contribution or coercive extortion.
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ankarabarrevıew 2009/2 • Illegal income generating activities: Fraud, illicit production and smuggling of drugs, kidnapping for ransom, smuggling, armed robbery, money laundering human trafficking and so on. Among illegal income generating activities, since it is a relatively easy way and more sustainable, mostly, narcotic money catches attention. For terrorists, drug trafficking is quite an easy way to earn significant sums of money, as well as to gather or distribute large sums of cash without being detected by authorities, given the well-organized and hard-to-detect financial networks of the narcotics trade. If one considers that worlds drug market is so huge (300- 500 billions $), this amount will not only sustain terrorist organizations but also entire countries. (Laçiner 2008; Vreja 2005, 93) While the importance of drug trafficking in terrorist organizations in respect to financing has increased, generally speaking, state sponsorship of terrorism has been decreasing significantly as groups find it harder to obtain state support and states not respecting international standards are less willing to risk exposure to broad-based and severe international sanctions. (Hardouin and Weichhardt 2003, 11) It means that there is a strong relationship between terrorist organizations and drugs and the role of drugs in terrorism is getting much more important in terms of financial resources. In this respect we should ask, how do terrorist organizations earn money from illicit drugs? What kind of links are between them? There is no doubt; there are reasonable links between terrorist and drug traffickers. These links take many forms ranging from facilitation to direct trafficking such as protection, transportation, and taxation by the terrorist organizations itself in order to finance their activity. (Hardouin and Weichhardt 2003, 15) The forms of terrorist groups’ involvement in the drug trade vary from selling drugs as such; to collecting taxes from people cultivating or processing illicit drugs on lands that terrorists control; to support from states funded by the drug trade (such as Afghanistan whose former Taliban rulers earned an estimated $40–50 million per year from taxes related to opium, Syria, or Lebanon). (Vreja 2005, 93) Another important point is that only a tiny fraction of the world’s drug dealing revenues flows to terrorist groups. (Kleiman 2004, CRS3) According to the Kleiman (2004, CRS-3) “in particular, groups that live by “taxing” or facilitating the production of raw drug crops which is where terrorist groups are most likely to be involved, are dealing with drugs at the point in the supply chain where their value is the least. However, even though only a tiny fraction of the world’s drug dealing revenues goes to benefit terrorist groups, that relatively small amount could still be a large fraction of the world’s terrorist revenues.” Nevertheless, by and large the dynamics of terrorist organizations’ involvement in drugs issue are illustrated at three levels: (Politi, 1997)
The Role of Drugs in Terrorism and Organized Crime
local tax on illicit crops, involvement in commercial networks and development of international networks. For instance, in Colombia, although there are a number of terrorist groups operating there, the three largest of which are the Revolutionary Armed Forces of Colombia12 (FARC), the United Self-Defense Groups of Colombia13 (AUC), and the National Liberation Army14 (ELN) which is the smallest and least-powerful of the three groups are all interested in illicit drugs. Revenue that they receive from narcotics cultivation, taxation, and distribution provides at least half of the funding that the FARC and AUC rely on to support their terrorist activities. (Mccarthy 2003; Hutchinson 2002) In Afghanistan the Taliban, the ruling authority at the time, benefited from the institutionalized taxation of heroin trafficking by taxing and, in some instances, being involved in drug trafficking. Taxation was institutionalized to the extent that they actually issued tax receipts when they collected the revenue from the heroin traffickers. Undoubtedly, at the same time, the al-Qaeda network flourished from the safe haven provided by the Taliban.(Hutchinson 2002) The al-Qaeda terrorist organization appears to have received millions of dollars per year through the production and distribution of opium. The opium grown in Afghanistan was smuggled through bordering states in Central Asia with a view of reaching the international market. (Hardouin and Weichhardt, 2003, 14) The Liberation Tigers of Tamil Eelam15 (LTTE) is deeply involved in massive drug trafficking with the Burmese regime in making and distributing heroin. The LTTE employed a number of money raising methods, one of which is the drug business. There are many reasons for the LTTE to get involved in the drug business. First feature is their geographical position, and operational areas. Second, they have operational bases, offices, and cells in 54 countries, some of them are main drug producing countries such as Burma, Afghanistan, Cambo12 “Established in 1964 as the military wing of the Colombian Communist Party, the FARC is Colombia’s oldest, largest, most capable, and best -equipped Marxist insurgency. The FARC is governed by a secretariat, led by septuagenarian Manuel Marulanda (a.k.a. “Tirofijo”) and six others, including senior military commander Jorge Briceno (a.k.a. “Mono Jojoy”). Organized along military lines and includes several urban fronts. In February 2002, the group’s slowmoving peace negotiation process with the Pastrana administration was terminated by Bogota following the group’s plane hijacking and kidnapping of a Colombian Senator from the aircraft. On 7 August, the FARC launched a largescale mortar attack on the Presidential Palace where President Alvaro Uribe was being inaugurated. High - level foreign delegations - including from the United States - attending the inauguration were not injured, but stray rounds in the attack killed 21 residents of a poor neighborhood nearby” for further information see: U.S. Department of Homeland Security U.S. Customs and Border Protection Office of Border Patrol. 2004. Terrorist Organization Reference Guide. http://www.mipt.org/pdf/terroristorganizationreferenceguide.pdf (accessed April 30, 2008) 13 For further information see: http://en.wikipedia.org/wiki/United_Self-Defense_Forces_of_Colombia (accessed April 30, 2008) 14 Marxist insurgent group formed in 1965 by urban intellectuals inspired by Fidel Castro and Che Guevara. Began a dialogue with Colombian officials in 1999 following a campaign of mass kidnappings -each involving at least one US citizen to demonstrate its strength and continuing viability and force the Pastrana administration to negotiate. Peace talks between Bogota and the ELN, started in 1999, continued sporadically but once again had broken down by year’s end.” For further information see: U.S. Department of Homeland Security U.S. Customs and Border Protection Office of Border Patrol. 2004. Terrorist Organization Reference Guide. http://www.mipt.org/pdf/terroristorganizationreferenceguide.pdf (accessed April 30, 2008) 15 “Within only three decades, the Liberation Tigers of Tamil Eelam has emerged as one of the most feared terrorist organizations in the world. They have assassinated heads of states and set up a global network to fund their terrorist activities. The Tigers spun a massive web. It ranged from the northern Sri Lanka to North America, there to Europe where ethno-religious and linguistic ties facilitated operations.” For further information see: (Sahin 2001, 52-68)
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ankarabarrevıew 2009/2 dia. Third, the LTTE operates a shipping fleet containing deep sea going ships, which is capable of not only shuttling between India and Sri Lanka, but charter operations. Fourth, 500,000 Tamil expatriates residing mainly in the developed drug consuming countries, which could help the LTTE operate in this countries easily carry out their secret drug business. Finally, their weapons trade and smuggling activities exercised on the same roads as heroin does. Many of these arms routes pass over, either directly or very close, the major drug producing and transit centers, including Burma, Thailand, Cambodia, southern China, Afghanistan and Pakistan. (Sahin 2001, 63-69) Another example, in Peru, through a tax on drug trafficking, Sendero Luminoso16 which is also called “Shining Path” gets an average of $5,000-10,000 (or the equivalent in arms) from Colombian ‘narcos’ for each small aircraft transporting drugs, with an estimated annual gain of around $10 million.(Politi 1997; Hutchinson 2002) In Europe, one of the most important regions of the huge market, Kurdistan Workers Party17 (PKK), time to time, has controlled 80 % of the drug market. At the beginning of 1980’s, the PKK started to act in both producing (hemp and opium poppy around the Lebanese camps such as Baelbek and Hermen that were under Syrian control) and transportation sectors of illegal drug business. In these years, because of Turkey’s lucky geographic position which is one of the most crucial routes for the European drug market, the PKK realized the huge wealth by controlling drug trafficking between the East and the West. Therefore, it began its operations by allowing transition and sustaining “security services” for ordinary smugglers. It was not difficult for the PKK to secure international drug transportation in the region and drug dispatching and distribution. Because “the PKK did not need an exclusive organizational structure to deal with drugs, its already existing migrant Diaspora of supporters in European countries was the necessary tool for street dealing and further, major drug [mainly heroin] routes toward the consuming zones were passing through its area of operation” (Sahin 2001, 39) and also it was organized almost in every district and villages of eastern Turkey, and in Istanbul and other western big cities in Turkey and Western European countries in which PKK had thousands of members and huge sympathizer network that assist it in drug business. Some times Kurdish immigrants were forced to help the PKK’s drug businesses in Western European cities. 16 Shining path: one of the most violent, ruthless and successful terrorist group among all the others was emerged in the Peruvian department of Ayacucho, high in the Andes, long ignored and the most impoverished in the country. It is one of the less known terrorist groups owing to its policy of silence rather than interacting with media which created an aura of mysticism blended with fear. For further information see: (Sahin 2001, 68-81) 17 “Founded in 1974 as a Marxist-Leninist insurgent group primarily composed of Turkish Kurds. The group’s goal has been to establish an independent, democratic Kurdish state in the Middle East. In the early 1990s, the PKK moved beyond rural-based insurgent activities to include urban terrorism.” For further information see: : U.S. Department of Homeland Security U.S. Customs and Border Protection Office of Border Patrol. 2004. Terrorist Organization Reference Guide. http://www.mipt.org/pdf/terroristorganizationreferenceguide.pdf (accessed April 30, 2008)
The Role of Drugs in Terrorism and Organized Crime
As there was no effective second group organized as the PKK within a short time, the PKK strengthened its power in the European drug market in terms of production, transportation, distribution and marketing. After capture of Abdullah Ocalan who was the head of the PKK, the organization began to give more importance to drug business than before. (Laciner 2008) “According to Interpol, in 1992, the PKK was orchestrating 80 % of the European drug market. This relationship was in the fields of processing, transportation, securing transportation, distribution, and marketing. With reference to 1992 Interpol data, the number of Kurdish organizations related with drug business was 178; and most of them were under the PKK control or they gave tribute to the PKK. Ikbal Huseyin Rivzi, Interpol’s chief narcotics officer, explained that the PKK was heavily evolved in drug trafficking as a means to support terrorism in Turkey. At the same year, the reports of the Italian police clearly showed that the PKK set up special teams for international drug business. German high rank officials also stated that the 75 % of heroin caught in this country in 1994 was belonging to Kurdish origin Turks. Moreover, 70 % of drug sale in Germany was made by the PKK. Other sources similarly indicate that the PKK controlled between 60 % to 70 % of the European illegal drug market in 1994. The number of the imprisoned PKK members related with drug crimes in Germany was 30 in 1994. In the same year, the amount of the captured PKK drug was nearly 1.6 ton.” (Laciner 2008). According to Laciner, (2008) “… the PKK has developed by narcotic money. In the mean time, a new kind of mafia emerged in drug, smuggling, and tribute \ robbery areas. This formation, can be called as ‘PKK mafia’, has developed its own mentality beyond terrorist organization’s classic mentality.” In general, there is a strong relationship between terrorists and organized crime groups which is called crime-terror nexus by Makarenko. Terrorist groups may themselves sell drugs for cash, or “tax” drug producers to get sufficient funds to finance their campaigns or arm the guerillas. So called narcoguerillas appear at the third link of the drug-crime nexus. In this context, a much discussed question concerns the links between illicit drug-trafficking organizations or trafficking itself and terrorism or insurgent groups in terms of financing operations, gaining political support or undermining an existing government. (Sahin 2001, 16) According to Makarenko, (2002) the crime-terror nexus refers to a security continuum that places traditional organized crime on one end of the spectrum, and terrorism at the other. In the middle of the spectrum is a gray area where organized crime and terrorism are indistinguishable from one another. There is huge gray area between legal and illegal transactions, a gray area that the illicit traders have turned to great advantage. (Naím 2006, 2) Again according to Makarenko (2002) the fulcrum of the spectrum refers to
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ankarabarrevıew 2009/2 three separate situations. First, it refers to traditional criminal organizations that initially use terror tactics as an operational tool, normally to get rid of competitors, but subsequently to seek political objectives (for example: the Russian mafia, Albanian criminal groups). Second, the fulcrum of the crime-terror nexus refers to terrorist groups who initially use criminal activities as a source of financing, but subsequently transform the focus of their ideological beliefs from political to financial (for example, Abu Sayyaf, the FARC). Finally, it may be applied to contemporary civil wars wars in which factions have evolved from basing their motivations on religion and ideology to crime (for example, the diamond wars of Sierra Leone and Angola). In Afghanistan and Central Asia the entire crime-terror continuum is represented. Thus, in addition to providing a base for organized criminal (drug mafias) and terrorist groups (al-Qaeda), this region is also home to groups that simultaneously appear to be criminal and terrorist in nature (the Islamic Movement of Uzbekistan). 3. 3. 2. 2. Drugs for motivation It is a fact that terrorists do not want and support drug use among their cadres [except for a motivational tool for suicide actions] and in the society they have been fighting for. (Sahin 2001, 85) But some times terrorist organizations use drugs as a motivational tool for suicide action and to encourage terrorists for certain actions against enemy targets. Drugs make this kind of an action easier. I do not argue that drugs play a main role in this type of motivation but perhaps has a secondary role. This method for the motivation is not new and surprising, because when we look at the history of terrorism we can see the example of the first narco-terrorist organization which was called Assassins. Hasan ibn-al-Sabbah (1034-1124) commonly known as Hasan-i-Sabbah was the first grand master of the order of Assassins. His feared organization’s sinister name came from its member’s ritual use of the drug hashish, which is called in Arabic hashshashin.18 Also for terrorist organizations drugs provide economic motivation, because people join terrorist organizations not only for their political, ideological or religious aim but also for economic reasons. For some terrorist coming from a poor family who is unemployed, being in a 18 “Hassan Ben Sabbah conditioned and organized a band of fearless political killers which had never seen before. His method of indoctrination was unique. He constructed a secret garden and furnished it with all the delights promised in the Koran to the faithful when they reached paradise. The chosen were drugged, one or two at a time, and taken to this garden by night. When they woke up in the morning they were surrounded by beautiful and scantily clad houris [in Muslim belief, women who live with the blessed in paradise] who would minister to their every need and desire. After being allowed to savor this false but pleasant and sensual paradise for a day or so, they were again drugged before being taken back to awaken in their own squalid hovel or cave dwelling. To them, it was as if it had been a vivid dream. Ben Sabbah then sent for them, told them Allah had given them a preview of paradise, and surprised them by telling exactly what each had been up to while in the secret garden. So successful was he in this method of conditioning and indoctrination that it was said he once astounded a visiting emir whom he wanted to impress with his power by sending for one of his men and ordering him to kill himself which he immediately did. When an Assassin was sent out by ibn-al-Sabbah to carry out some violent death, the Assassin was just as dedicated. So convinced were the Assassins that they would be rewarded in paradise that they never hesitated to fulfill their missions of murder, even though this often meant their victims’ bodyguards would kill them immediately afterward” http://www.skewsme.com/assassin. html (accessed April 01,2008)
The Role of Drugs in Terrorism and Organized Crime
terrorist organizations is a way to earn money for their family. For them, being a member of terrorist organizations is a financial issue. They provide money coming from the drug trade to their poor family, wife or children to provide a better life, health and education for them. From this perspective, terrorist organizations need much more money to keep terrorist militants within terrorist organizations. Besides thanks to the money coming from illicit drugs, the leaders and high level rulers of terrorist organization get rich, and gain affluence which provides them with prosperity and luxury. This is another important aspect of the role of drugs in terrorism. 3. 3. 2. 3 Drugs as a weapon against enemy As I mentioned above, it is an undeniable fact that, on the macro level, drug trafficking and the production of illegal narcotics such as heroin, cocaine, cannabis are a security problem as well as a hazard to the foundations of civil society and to sovereignty. It is also a indication of the failure of some economic development strategies and the lack of viable economic alternatives. (Bardy 2007, 2-3) It undermines public safety, law and order. On the micro level; drug abusers become slaves to their habits. They are no longer able to make a payment to the community. They do not have healthy relationships with their partners, friends, families and society. They are no longer able to use their full potential to create ideas or to energetically contribute to society, which is the genius of democracy. They become weak because of the mindnumbing effects of drugs. The entire soul of society is undermined and democracy is diminished by drug use.( Hutchinson, 2002) For this reasons, some terrorist organizations use illicit drugs as a weapon to make living environment and society insecure, to undermine the foundations of civil society and sovereignty, to make people and the younger generation some sort of slave, to create an unhealthy individual, generation, society. As an evidence for this, Deborah Mccarthy says that “Unlike other crime, drug trafficking often has a twofold purpose for some terrorists. Some terrorists do not only obtain operational funds through drugs, but also believe they can weaken their enemies by flooding their societies with addictive drugs. So while certain terrorist groups are increasingly involved in organized rackets in kidnapping, piracy, weapons trafficking, extortion, people smuggling, smuggling of cigarettes and other contraband, financial fraud, or other crimes, drug trafficking occupies a special position both in terms of profitability and as a perceived direct weapon used against the United States and certain other countries. Some terrorist groups in particular use this argument to rationalize their involvement in illicit activity to their membership or support base.” (Mccarthy, 2003) Another example for this situation is what British Prime Minister Tony Blair stated: the “arms the Taliban are buying today are paid
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ankarabarrevıew 2009/2 for with the lives of young British people buying their drugs on British streets”, and subsequently added that the Taliban and Usama bin Laden “jointly exploited the drugs trade.” (Makarenko 2002, 1) 3. 3. 2. 4. Drugs for political influence When we look at the purpose of terrorism we can see that it is to create a specific environment in target country and society. They want to win the public’s heart and mind in the target society which they have been fighting for. In the sensitive society which is against and suffers from drugs, they can manage to take their hearts and minds by combating drugs and its trafficking. That is kind of propaganda to influence public opinion. For instance “the Provisional IRA, largely on moral grounds, has always refused to deal in drugs of any kind, and they have been at the forefront of an underground war both the north and south of Ireland aimed at undermining the distribution network of drug dealers, but they use drugs to gain political influence. Kneecapping and kidnapping drug dealers has become commonplace, and the IRA calculated that, by attacking the drug business, they will win support among the more conservative working-class groups, who will then tend to view them more as guardians of the community than as terrorists. At the end, they shared the profits of drug dealers and smugglers in a way that also supplied them substantial political support.” (Sahin 2001, 85) 3. 3. 3. Pros and cons analysis Although illicit drugs and drug trafficking have got kind of values, benefits, they are not purely ways for terrorist organizations to use and make money because of some reasons. Firstly, drug trafficking is not a secure way for terrorist and their illegal organizations to earn money. Because, not only terrorism and organized crime, but also illicit drug and its trafficking as an internal and international security problems are on the top of the list in the international arena. In the world, “the war on illicit drug” has been started by the developed states such as the US and international organizations such as the UN and EU. So, in comparison with the other terrorist organizations which are not involved in drug trafficking, the terrorist organizations which are involved in drugs can come across police forces much easier. The risk can be doubled in the drug trafficking. In this sense another problem is that the links between some terrorists and drug trafficking may create exploitable vulnerabilities for the terrorist groups involved. Drug traffickers frequently offer information about one another to investigators, both to damage their commercial rivals and to build up their “favor banks with enforcement agencies, either for general future use or as a way of avoiding being charged in
The Role of Drugs in Terrorism and Organized Crime
a pending case. Terrorist groups generally have much less occasion to employ such tactics.” (Kleiman, 2004, 11) Secondly, it can be detrimental for their human and financial resources and reputation. Terrorist organizations have a specific aim based on political, religious and ideological values which might be against drugs and drug trafficking. Because of its specific aim the people which are called sympathizers or supporters try to support them by different ways such as propaganda, charity etc. If well educated and conscious supporters or sympathizers learn this situation: • They do not give money or logistic support. • They, who are against drugs and want to be a member of terrorist organizations, may not be supporters anymore. • Illicit drugs lead to confidence problem between supporters and terrorist organizations. Therefore for the terrorists, to make terrorist propaganda might have negative effects. Besides governments, local authorities may use anti propaganda against terrorist organizations involved in drugs or its trafficking in a sensitive society against drugs in terms of psychological war on terrorism at national and international level. It coluld easily be argued that terrorist are not “freedom fighters they are just drug traffickers...” or “they abuse ideological, religious and political values and innocent people’s sense to make money…” or “they are poisoning our children, our generation to earn money...” by showing enough evidence to the public and to other nations and international organizations. Also this is another negative consequence of dealing with illicit drugs for the reputation of terrorist organization. Thirdly, some states support terrorist organizations directly or indirectly by giving financial and logistic support or giving secure access to secure territories because of some reasons, such as historical, ideological, religious, ethnicity etc. In this sense they can defend themselves from international sanctions by using logical reasons due to lack of common definition of terrorism and its ambiguous character. But as I have mentioned above, the international community is now so sensitive about illicit drugs and terrorism. Under these circumstances, in comparison with the terrorist organization which is not involved in drug trade, it might be very difficult to conduct state-sponsored terrorism if that also means supporting narco-terrorist organizations. It is true that, there is always organized crime groups in the place in which illicit drug trafficking exist. Because they are like “twin brothers”. Drug trafficking needs organized crime groups. As I have mentioned above illicit drug and organized crime groups create chaos, security problems, corruption, crime, fear, instability etc. No state wants to see these kind of problems in its territory and society. If the
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ankarabarrevıew 2009/2 state giving secure access to secure territories for terrorist groups learn that a terrorist group is involved in drug trafficking, the state would withdraw its support. Therefore terrorist groups may lose their secure territories. For these reasons, illicit drugs have negative effect on the relationship between terrorist organizations and supporter states. They can lose their supporters state because of illicit drugs. Finally, terrorist organizations might be degenerated by illicit drugs because of its dazzling revenue. In the course of time, terrorist organizations can lose its political, ideological, or religious aim which makes them different from organized crime groups and might be transformed to organized crime organizations and their members can become drug traffickers. Because “in the case of drug organizations, the trade often becomes addictive to the people or the organization involved in the trade. And the danger to organizations such as al Qaeda, Hezbollah, or the FARC is that the trade becomes institutionalized and impossible to break away from.”(Perl 2001) “It is not surprising that in effect armed movements ‘degenerate’ and sink in the vicious circle of criminalizing resources. Beyond possible tactical alliances with criminal organizations, the most worrying feature is that armed movements acquire more and more ‘Mafia’ characteristics precisely because they become engaged in drug trafficking. The drawback for these movements is that in the longer run their legitimacy will be increasingly eroded in the eyes of dominated populations.” (Politi 1997) In summary, terrorist organizations involved in the drug business have both advantages and disadvantages. There is no doubt dealing in illicit drugs is the most lucrative way to make money for terrorist organizations. On the other hand we can not say that it is a secure and harmless way to earn money. Nonetheless, the disadvantages of illicit drugs are outweighed by its advantages. 4. CONCLUSION Transnational organized crime, drug trafficking and international terrorism are three main risks that must be fully included in the strategic picture of the world and European security. According to the definition of the United Nations Convention against Transnational Organized Crime, almost all transnational drug trafficking groups are also organized crime groups. Because transnational drug trafficking generally requires the involvement of at least three people, it requires some time, and is profit-motivated, so most drug trafficking groups would be considered organized crime groups under this schema. It is very difficult today to distinguish pure terrorist activities from other organized crime activities. Owing to the fact that terrorist benefit from the same methods, criminal organizations exploit access to
The Role of Drugs in Terrorism and Organized Crime
financial resources to commit their activities; terrorists also cooperate with other criminal organizations and they adopt both criminal and ideological objecktives side by side. Mutual financing methods dissolve terrorists` economic structures within organized crime organizations. In this sense, terrorist groups can be considered some type of organized crime or “suigeneris organized crime”. Of course it is not the same as ordinary organized crime. The main difference between terrorist and organized crime groups is that terrorist organizations are generally ideologically or politically, religious motivated while organized crime groups are profit-oriented. Although terrorist groups have non-financial goals, for organized crime groups the first and foremost goal and aim is material, financial, monetary benefits. From this perspective for organized crime groups, illicit drug is the most lucrative way to earn money among their – legal and illegal- activities. For illicit drug, organized crime is sine qua non. In other words, organized crimes can exist without drug trafficking but illicit drug can not live without organized crimes. On the other hand, for terrorist organizations drugs is not their first and foremost aim. For them, dealing in drugs is a tool to earn money, to motivate militants and to undermine structure of the society, to damage individuals. Otherwise, they become organized crime groups not terrorist organizations. If they have enough financial resources they do not care to deal in drugs. As a matter of fact, money plays crucial role in terrorist organizations. Terrorist organizations need money for day–to-day operations, weapons or other destructive instruments, safe houses and medical treatment for terrorist, terrorist training camps, the propaganda, recruiting new terrorist and terrorist supporters, telecommunications, political support or sanctuary within vulnerable populations or rogue states. Although they have various sources such as the support of state, nongovernmental or community organizations, legal investments, diverted charities, illegal income generating activities, these are not enough resources because of some reasons: Firstly state sponsorship of terrorism has been decreasing significantly. Due to the fact that groups find it harder to obtain state support, they want to feel free from any state, it means that they want to be independent from any actors. Besides, states not respecting international standards are less willing to risk exposure to broad-based and severe international suctions. Secondly, there is a strong struggle against financing of terrorism in international arena and among states .There exist strong common sense among states to cut down terrorist organizations’ financial resources. Therefore, to finding enough money for terrorist organizations is getting much more difficult. Thus, under these circumstances the importance of drugs is increasing. Because drug trafficking is quite an easy way to earn significant sums of money, as well as to gather or distribute large sums of cash without being detected by authorities,
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ankarabarrevıew 2009/2 given the well-organized and hard-to-detect financial networks of the narcotics trade. In summary, the illegal drug trade is the most crucial financial source of terror and tool to collapse the legal state in the target country. In order to end terror, as Laciner (2008) said, countries must succeed in ending drug smuggling; they will get more effective solutions than bombing terrorist camps. We, on the one hand, must eliminate the areas that are exploited by terrorists and extremists, and at the same time we must destroy financial infrastructure of terror and other crimes by cutting drug smuggling. Otherwise, we will continue to live with terror problems. In this respect, I would like to emphasize that the major threat to national and international security is not state sponsored terrorism anymore, but the terrorist acts carried out by terrorist groups or individuals increasingly motivated by the money obtained through organized criminal activity, particularly the traffic in illegal drugs. After the main role of drugs in terrorism which is financial, the secondary role of drug in terrorism is that terrorist organizations use drugs as a weapon to undermine certain society at macro level and to damage individuals at micro level. Because,on the macro level, drug trafficking and the production of illegal narcotics such as heroin, cocaine, cannabis are a security problem as well as a hazard to the foundations of civil society and to sovereignty. It is also an indication of the failure of some economic development strategies and the lack of viable economic alternatives. (Bardy 2007, 2-3) It undermines public safety, law and order. On the micro level; because the drug abusers become slaves to their habits in the course of time, they are no longer able to contribute to the community. Besides, they do not have healthy relationships with their partners, friends, families and society. Moreover, they are no longer able to use their full potential to create ideas or to energetically contribute to society, which is the genius of democracy. They become weak because of the mind-numbing effects of drugs. The entire soul of society is undermined and our democracy is diminished by drug use. (Hutchinson, 2002) Another important role of drugs in terrorism is that drugs might be used as a motivation tool to make militants brave before going to an action. In this sense, also money coming from the drug trade gives economic motivation to militants and its leaders to keep them whithin their terrorist organizations and to sustain terrorist organization as well. Also, surprisingly, sometimes terrorist organizations use drugs to gain political influence particularly in the societies which are sensitive and have been suffering from drugs by undermining the distribution network of drug dealers. However this paper argues that for terrorist organizations, getting involved in the drug business causes some disadvantages. There is no
The Role of Drugs in Terrorism and Organized Crime
doubt that dealing illicit drug is the most lucrative way to make money for terrorist organizations. On the other hand, we can not say that it is purely secure and harmless. Besides, it can be detrimental for their human and financial resources and their reputation. Moreover, illicit drugs lead to confidence problems between supporters (individuals and states) and terrorist organizations. Finally, terrorist organizations might be degenerated by illicit drugs because of its dazzling revenue Actually it is a “double-edged sword.” Nonetheless, the disadvantages of illicit drugs are outweighed by its advantages. As Makarenko explained, (2002) in illicit drug trafficking there are three main actors. The first group of actors drug mafias / traffickers which are identified by their domestic base, and a membership normally restricted to specific clans or ethnic groups. Frequently engaged in unlawful trade at local markets in their particular country of operation, to get raw drug from farmers and sell it to international buyers seems to be the most important role of them in the drugs chain. Thus, drug traffickers are considered to be middlemen in the regional drug trade. Drug mafias or traffickers not only distribute opium poppy seeds to local farmers, but also provide farmers with loans to plant opium poppy crops. These loans are then repaid in opium resin (the raw form of opium). Besides, drug mafias constitute the first line of buyers in the international opiate trade and, they exercise a considerable degree of influence in countries. Their long-established relations with local elites and warlords have strengthened their situation in drug trafficking. The second groups of actors are transnational criminal organizations which are engaged in the regional and international drugs trade. These groups pose a very important threat to the region which they are in, as they are composed of a chain of regional and international players including officials in several governments and in the security services. The last group is terrorist organizations /insurgents. Terrorist groups directly or indirectly involved in cultivating, manufacturing, transporting, or distributing illicit drugs. The relationship between drug-trafficking groups and terrorist organizations is a “mutually beneficial agreement”. They benefit from each other. For example, drug traffickers benefit from the terrorists’ military skills, weapons supply and access to secret organizations. Terrorists gain a source of income and expertise in illicit transfer and laundering of proceeds from illicit transactions. Drug traffickers may also gain significant freedom of movement when they operate in conjunction with terrorist who control huge amounts of territory. (Hardouin and Weichhardt 2003, 15) This paper argues that the connection between transnational organized crime, terrorism and illegal drug trafficking is a serious threat for the government, society and economy of countries because it can result in the marshalling of significant resources to impose on whole regions, or indeed to corrupt a government and destabilize an economy, creat-
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ankarabarrevıew 2009/2 ing ‘grey zones’. As Politi said; each time the international community refuses or fails to restore peace and order comprehensively, the area becomes prey to terrorist and organized crime groups and becomes a hub for trafficking (notably arms and drugs), directly endangering the world and European security. To effectively combat, transnational threats like organized crime and drug trafficking, international terrorism, must be met with multidimensional responses. Preventive, diplomatic, economic and political means will provide the ultimate and necessary answer to these complex problems, while repression can have a complementary role.
The Case of Thomas Lubanga Dyilo
The Case of Thomas Lubanga Dyilo: The Implementation of a Fair and Public Trial at the Investigation Stage of International Criminal Court Proceedings ■■ by Yusuf Aksar * INTRODUCTION
W
hen the Statute of the International Criminal Court (the ICC or the Court) was adopted by the international community on 17 July 1998, it was regarded as “a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law.”1 Having reached the 60th ratification of the Statute in a short period of time, the Court came into being on 1 July 2002. As of March 2009, there were four cases which were brought before the ICC. Three of them were self-referred by the Democratic Republic of the Congo,2 the Republic of Uganda3 and the Central Republic of Africa4 to the Court.5 The fourth one relates to the Sudan’s troubled *
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Associate Professor of International Law, Karadeniz Technical University, Faculty of Economics and Administrative Sciences. Email: [email protected] or [email protected]. Author would like to thank to the Turkish Academy of Sciences for its financial and moral supports without which such a work could not have been possible. Statement by the United Nations Secretary- General Kofi Annan at the Ceremony Held at Campidoglio Celebrating the Adoption of the Statute of the International Criminal Court (July 18, 1998); UN Press Release, Secretary-General Says Establishment of International Criminal Court is Major Step in March Towards Universal Human Rights, Rule of Law, UN Doc. L/ROM/23, (July 18, 1998). ICC Press Release, Prosecutor Receives Referral of the Situation in the Democratic Republic of Congo, (April 19, 2004), at http://www.icc-cpi.int/pressrelease_detaileds&id=19.html. ICC Press Release, President of Uganda refers situations concerning the Lord’s Resistance Army (LRA) to the ICC, (January 29, 2004), at http://www.icc-cpi.int/pressrelase_details&id=16&l=en.html.; ICC Press Release, Prosecutor of the International Criminal Court opens an investigation into Northern Uganda, (July 27, 2004), at http://www.icccpi.int/pressrelease_details&id=33&l=en.html. ICC Press Release, Prosecutor receives referral concerning Central African Republic, (January 7, 2005), at http:// www.icc-cpi.int/pressrelease_details&id=87.html. For a general assessment of the practice of ‘self-referrals’, see Paola Gaeta, “Is the Practice of ‘Self-Referrals’ a Sound Start for the ICC”?, Journal of International Criminal Justice, Vol. 2, 2004, p.949.; Antonio Cassese, “Is the ICC Still
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ankarabarrevıew 2009/2 region of Darfur which was referred to the Court by the UN Security Council Resolution 1593 (2005).6 The first decision of the Prosecutor of the ICC concerning the launch of an investigation, which related to the situation in the Democratic Republic of the Congo, was announced on 23 June 2004.7 One of the indictees, Thomas Lubanga Dyilo, allegedly responsible for the crimes committed in the Ituri region of the Democratic Republic of the Congo, was transferred to the ICC on 17 March 2006.8 He was the first suspect of the ICC. Actually, this was the starting point for the first trial of the ICC. There cannot be any doubt of the fact that the very first practice of the Court would have an immense value in creating precedence in international criminal law. The Lubanga Dyilo case would have a historical place in the practice of the ICC since it would be the first ever interpretation and application of the provisions of the Statute, Rules of Procedure and Evidence, and Regulations of the Court, which would provide a framework for the ICC in its future cases, as the international community has witnessed what the Tadic case was able to do for the International Criminal Tribunal for the Former Yugoslavia.9 Although the Lubanga Dyilo case is in the pre-trial phase of proceedings, it is now possible for the world community to see the firstever application of international human rights principles like granting a victim the status of a participant in the proceedings at the investigation stage of a case, which should be considered to be one of the highest levels of implementation of the principle of a fair and public trial in international criminal law. The aim of this paper is to examine the application of the principle of a fair and public trial, limited to the investigation stage of the Lubanga Dyilo case. Before looking at the practice of the ICC in this regard, it is necessary to briefly discuss the charges against Mr. Lubanga Dyilo and the policies employed by the Prosecution Service of the Court, which should also be considered as paving the way of for Court to implement the principle of fair and public trials. I. SUBJECT MATTER JURISDICTION IN THE LUBANGA DYILO CASE In accordance with Article 25 (3) (a) of the Statute of the ICC, the 6 7 8 9
Having Teething Problems”,Journal of International Criminal Justice, Vol. 4, 2006, p. 434, at 436. For a detailed work concerning the referral of the situation in Darfur by the UN Security Council Resolution 1593 (2005) of 31 March 2005 to the ICC, see Yusuf Aksar, “The UN Security Council and the Enforcement of Individual Criminal Responsibility: The Darfur Case”, African Journal of International and Comparative Law, Vol. 14, 2006, p. 104. ICC Press Release, The Office of the Prosecutor of the International Criminal Court opens its first investigation, (June 23, 2004), at http://www.icc-cpi.int/pressrelease_details&id=26&l=en.html. Human Rights Watch, Democratic Republic of Congo and the International Criminal Court Hearing to Confirm the Charges against Thomas Lubanga Dyilo, at 1, available at www.hrw.org/backgrounder/ij/lubangaqna1106/, (visited November 11, 2006). M. Cherif Bassiouni, “Where is the ICC Heading? The ICC- Quo Vadis?”, Journal of International Criminal Justice, Vol. 4, 2006, p. 421, at 425.
The Case of Thomas Lubanga Dyilo
basis for the individual criminal responsibility of Mr. Lubanga Dyilo was three different types of war crimes: a) enlisting children under the age of fifteen into armed groups,10 b) conscripting children under the age of fifteen into armed groups,11 and c) using children under the age of fifteen to actively participate in hostilities.12 As has been indicated by the prosecutor of the ICC, the charges brought against Mr. Lubanga, were, for the time being, limited to the crimes indicated above. In fact, this was the first time in international criminal law that an individual responsible for war crimes concerning children has been brought before an international criminal tribunal or court. The Lubanga Dyilo case, in the history of international criminal law, seems to be landmark decision in the fight against impunity for the crimes affecting children in time of armed conflicts.13 II. THE POLICY OF FOCUSED INVESTIGATIONS AND PROSECUTIONS The practice of the Prosecution Service of the ICC appears to be quite different from the practice of the ad hoc tribunals which were established by the UN Security Council for the prosecution of war criminals in the Former Yugoslavia and Rwanda.14 As ıt is well-known from the practice of the prosecution service of ad hoc tribunals, all crimes that have been allegedly committed by the suspect(s) were included in indictments. As an example of this practice, we can briefly discuss the first case of the International Criminal Tribunal for the Former Yugoslavia, the Tadic case: The First Indictment of the Prosecution Service was dated 13 February 1995.15 In a short period of time after the First Indictment, as a result of new information and evidence, the Office of the Prosecutor had to amend the indictments. For the Tadic case, it had to be done twice on 1 September and 14 December 1995.16 According to the crimes with which Dusko Tadic was charged: a) with grave breaches of the Geneva Conventions of 1949, including the acts of willful killing, willfully causing serious injury to the body or health, torture, inhuman treatment, and unlawful deportation, which are punishable under Article 2 of the Statute of the ICTY; b) with violations of the laws or customs of war, including the acts 10 11 12 13
It is a war crime punishable under Article 8 (2) (b) (xxvi) or Article 8 (2) (e) (vii) of the ICC Statute. It is a war crime punishable under Article 8 (2) (e) (b) (xxvi) or Article 8 (2) (vii) of the ICC Statute. It is a war crime punishable under Article 8 (2) (b) (xxvi) or Article 8 (2) (e) (vii) of the ICC Statute. ICC Press Release, Prosecutor presents evidence that could lead to first ICC trial, Doc. No. ICC-OTP-20061109-178En, (November 9, 2006), at http://www.icc-cpi.int/press/pressreleases/201.html. 14 The UN Security Council Resolution 827 of May 1993 establishing the International Criminal Tribunal for the Former Yugoslavia was adopted unanimously by the Security Council at its 3217 meeting, on May 25, 1993. SC Res. 827, UNSCOR, 48th Year, 1993 SC Res. & Dec. At 29, UN Doc. S/INF/49 (1993); The UN Security Council Resolution 955 of November 1994 establishing the International Criminal Tribunal for Rwanda was adopted by a vote 13-1-1 by the Security Council at its 3453rd meeting, on November 8, 1994. SC Res. 955, UNSCOR, 49th Year, 3453 meeting at 1, UN Doc. S/Res/955 (1994). 15 Prosecutor v. Dusan Tadic a/k/a/ “Dule” Goran Borvnica, Initial Indictment, Case No. IT-94-1-I (February 13, 1995). 16 Prosecutor v. Dusan Tadic a/k/a/ “Dule” Goran Borvnica, First Amended Indictment, Case No. IT-94-1-I, (September 1, 1995); Prosecutor v. Dusan Tadic a/k/a/ “Dule” Goran Borvnica, Second Amended Indictment, Case No. IT-94-1-I (December 14, 1995).
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ankarabarrevıew 2009/2 of murder, torture and cruel treatment, which are punishable under Article 3 of the Statute of the ICTY; and c) with crimes against humanity, including the acts of murder, inhumane acts, persecutions on political, racial and/or religious grounds and rape, which are punishable under Article 5 of the Statute of the ICTY. The methods by which all international crimes (war crimes, crimes against humanity and the crime of genocide) and the acts (like murder, torture and rape etc.) are included in indictments are too difficult to follow. The presentation of evidence, witnesses concerning each category of crime and each act both by the prosecutor and the defense make the job of ad hoc tribunals unimaginable. However, it should be noted here that the practice of ad hoc tribunals has produced a great deal of material and procedural law sources, all of which undoubtedly contributed to the development of international criminal law and also facilitated the work of the ICC.17 On the contrary, the method followed by the Prosecution Service of the ICC in the Lubanga Dyilo case is called “a policy of focused investigations and prosecutions.” In accordance with the policy in question, the prosecution service of the Court limits its charges to only the war crimes of enlisting and conscripting children under the age of fifteen and using them to participate actively in hostilities. However, the policy of focused investigations and prosecutions does not constitute an obstacle for the continuation of investigations of other crimes allegedly committed by the suspect/accused after the proceedings concerned are closed.18 According to the Prosecution Service of the ICC, the advantages of employing the policy of focused investigations are: limiting the length of trials, using shorter trials to use resources in a more efficient way, limiting the number of witnesses for each trial, and reducing the risk of reprisals against witnesses, victims and their communities.19 From the point of view of international criminal law, the method adopted by the Prosecution Service of the ICC should be welcomed. To justify this view, it would be sufficient to only look at the substantial pre-trial activities of the ICC since the transfer and initial appearance of Mr. Lubanga Dyilo in March 2006: inter alia, multiple filings from the parties and related decisions of Pre-Trial Chamber concerning the disclosure of evidence, the procedural challenges relating to victims’ participation in proceedings, disclosure and inspection of around 400 documents and more than 5,000 pages of information, including both 17 For the practice of ad hoc tribunals and their contribution to international criminal law and possible impact on the ICC, see, Yusuf Aksar, Implementing International Humanitarian Law: From the Ad Hoc Tribunals to a Permanent International Criminal Court, London and New York, Routledge, 2004. 18 ICC Newsletter November 2006 #10 (Special Issue), at 2, available at http://www.icc-cpi.int. 19 Ibid.
The Case of Thomas Lubanga Dyilo
incriminatory and exculpatory evidence.20 If for a while we think that in addition to the war crimes of enlisting and conscripting children under the age of fifteen and using them to participate actively in hostilities, the Prosecution Service of the ICC charged Mr. Lubanga Dyilo with some other crimes such as murder, torture, rape and mutilation, it would not have been possible to follow/implement the principle of a fair and public trial in the same manner that the international community has already been witnessing. It would not have been possible to grant the victims the status of participants in the proceedings at the stage of investigation. Of course, there cannot be any doubt of the fact that the Prosecution Service of the ICC will pursue more charges and perpetrators after the current proceedings are closed. In other words, the prosecution service prefers to bring charges before the ICC on a one-by-one basis through the use of focused investigations and prosecutions. III. THE PRINCIPLE OF A FAIR AND PUBLIC TRIAL As one of fundamental human rights contained both in customary and conventional rules of international law, everyone is entitled to a fair and public trial.21 The Statute, Rules of Procedure and Regulations of the Court include all the legal doctrine needed to implement the principle of a fair and public trial in the cases brought before it.22 However, the interpretation and application of these provisions by the ICC will be judged by the international community as to whether or not the trials are fair. Until now, the practice of the ICC in the Lubanga Dyilo case seems to be that the Court has fully committed itself to the conduct of a fair and public trial, according to which all parties in the proceedings have an opportunity to be heard.23 To justify such an idea, it would be enough to look at the method used in the investigation stage of the Lubanga Dyilo case by the Court. The application of the principle of a fair and public trial in the investigation stage of the ICC proceedings concerning the Lubanga Dyilo case can be examined in two different levels: a) the implementation of the principle of a fair and public trial before the hearing for the confirmation of charges, and b) the implementation of the principle of a fair and public trial at the hearing for the confirmation of charges. It is necessary to look at those levels in more detail. a) The Pre-Trial Chamber of the ICC in the Lubanga Dyilo case 20 Ibid. at 3. 21 Article 10 of the UN Universal Declaration of Human Rights (1948) provides: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”. Article 14 (I) (2) of the International Covenant on Civil and Political Rights provides: “In the determination of any criminal charge against him… everyone shall be entitled to a fair and public hearing by a … tribunal established by law”. Article 6 of the European Convention on Human Rights uses the same wording and indicates some of the rights in this regard. 22 Articles 55 and 67 of the ICC Statute indicate the rights of persons during an investigation and the rights of accused in respectively. All rights provided in this regard can be considered to be a reflection of the principle of a fair and public trial. 23 See Newsletter, supra note 18, at 1.
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ankarabarrevıew 2009/2 applied the highest standards of human rights, even before the hearing for the confirmation of charges, in implementing the principle of a fair and public trial. Amongst them, the arresting of the suspect by the decision of the Chamber, the initial appearance before the Pre-Trial Chamber, the temporarily appointment of counsel by the Registrar for the suspect, and the granting of participation to victims can be listed. The application of the Prosecution Service of the Court to the PreTrial Chamber for the issuance of a warrant of arrest against Mr Lubanga Dyilo was dated 12 January 2006. The arrest warrant was made public on 17 March 2006 when he was also transferred to the ICC. Mr Lubanga’s initial appearance before the Pre-Trial Chamber took place only three days after his transfer to the Court on 20 March 2006. At the initial appearance before the Pre-Trial Chamber, legal assistance to Mr Dyilo was provided by Mr Jean Flamme from Belgium who was appointed temporarily as duty counsel by the Registrar of the ICC.24 In protecting the the rights of the suspect and the interests of a fair trial, in the ICC practice, it is witnessed that in addition to the appointment of a defense counsel, legal assistants Ms Veronique Pandanzyla and Mr Geoff Roberts, were also assigned to assist Mr. Jean Flamme with the defense of Mr Lubanga Dyilo.25 The practice of the ICC with regard to the arrest of the suspect, appearance before the Court in a short period of time and legal assistance at the time of the investigation is clearly in accordance with international human rights instruments such as the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the American Convention on Human Rights.26 In ensuring the principle of a fair and public trial even before the hearing for the confirmation of charges, the decision of the Pre-Trial Chamber rendered on 17 January 2006 has a historical significance in international criminal law on the ground that it is the first time that victims could participate in an international criminal court/tribunal proceedings at the early stage of investigation.27 The legal basis of the decision of the Pre-Trial Chamber was Article 68(3) of the ICC Statute which provides: “where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to 24 See Newsletter,supra note 18, at 1. 25 In accordance with Rule 21 (2) of the Rules of Procedure and Evidence, the Registry has created a list of counsel. As of November 2006, 151 persons can be counsel before the Court. For the information about the Defence team, see Newsletter, supra note, at 6. 26 Article 14 (3) (a) of the International Covenant on Civil and Political Rights, Article 8 (2) (b) of the American Convention on Human Rights and Article 6 (3) (a) of the European Convention on Human Rights provide the right of suspects to be notified about charges at the time of investigation. Article 14 (3) (d) of the International Covenant on Civil and Political Rights and Article 6 (3) (b) of the European Convention on Human Rights include the right of suspects to have counsel at the time of investigation. Article 55 of the ICC Statute entitled “rights of persons during an investigation” provide the same rights to suspects. 27 Situation in the Democratic Republic of the Congo, Public Redacted Version, The Prosecutor v. Thomas Lubanga Dyilo, Decision on the Applications for Participation in the Proceedings of VPRS1, VPRS2, VPRS3, VPRS4, VPRS5 and VPRS6, Case No. ICC-01/04-101 (January 17, 2006). (Hereinafter Decision on the Applications for Participation).
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be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial …”. According to the ruling of the Pre-Trial Chamber, when two conditions are met victims can participate in proceedings at the investigation stage: the personal interests of the victims must be affected28 and applicants must have the status of victims.29 The participation of victims in investigation proceedings should be welcomed in international criminal law. As has been indicated above, their rights to defend their interests before an international criminal court/tribunal became possible for the first time at the international level. The rights of suspects/accused persons have been well-established both in international criminal law and in the practice of international tribunals/courts. However, until the decision of the Pre-Trial Chamber of the ICC, it was not possible for victims to participate in a personal capacity in the proceedings. When the practice of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda is examined, it can clearly be seen that victims could intervene only if the Prosecutor decided to call them as witnesses at trial.30 In other words, in the context of the procedure of the two ad hoc tribunals, victims did not have an opportunity to express their views, and concerns or to exercise their rights to defend their interests at the investigation proceedings nor did they have the right to participate in the trial proceedings. The practice of the ICC to allow the victims to participate in the investigation phase of proceedings in the Lubanga Dyilo case is a new concept, which has already been criticized by international lawyers.31 The participation of victims to express their views and concerns in the investigation stage of proceedings may be perceived as the judges exerting some pressure on the prosecution service to proceed with an investigation that might affect the impartiality and independence of the Prosecutor.32 Such a view may lead to an unacceptable conclusion that the prosecutor and judges of the ICC are in conflict. However, I believe that such a view is inconsistent with the purpose of the establishment of the ICC and the structure of the Court for the following reasons. First, the ICC was established in order to put an end to impunity 28 In relation to the condition that the personal interest of victims must be affected, the related part of the Pre-Trial Chamber can be quoted as follows: “the personal interest of victims are affected in general at the investigation stage, since the participation of victims at this stage can serve to clarify the facts, to punish the perpetrators and to solicit reparations for the harm suffered”. (See Decision on the Applications for Participation, supra note 27 at para. 63). 29 The Pre-Trial Chamber by means of interpretation of Rule 85 established four conditions in giving an applicant to the status of victim: a) applicant must be a natural person, b) applicant must suffer from harm, c) the alleged crimes by the applicant must be under the jurisdiction of the ICC, and d) there must be a casual link between the alleged crimes and the harm suffered by the applicant. (See Decision on the Applications for Participation,supra note 27 at para. 79. For the interpretation of these conditions, see at paras. 80-101). 30 Jerome de Hemptinne and Francesco Rindi, “ICC Pre-Trial Chamber Allows Victims to Participate in the Investigation Phase of Proceedings”, Journal of International Criminal Justice, Vol. 4, 2006, p. 342, at 346 (2006). 31 Ibid. at 347-349. 32 Ibid. at 346-347.
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ankarabarrevıew 2009/2 for the perpetrators of the most serious crimes of concern to the international community, and it was created as an independent permanent court with jurisdiction over the crime of aggression, war crimes, crimes against humanity and the crime of genocide.33 Second, the ICC was created in a way of providing the impartiality and independence of each body: The Presidency; An Appeal Division, a Trial Division and a Pre-Trial Division; the Office of the Prosecutor; and the Registry.34 The elections, qualifications and the duties of each body of the Court are governed by the detailed provisions of the Statute and the Rules of Procedure and Evidence. For example, Article 36 (3) (a) of the ICC Statute provides: “The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.” Furthermore, Article 40 (1) of the ICC Statute states that “the judges shall be independent in the performance of their functions.” Similarly, the Prosecution Service of the ICC is regulated in a manner that the Office of the Prosecutor will act independently as a separate body of the Court.35 The Prosecution Service of the ICC is mainly responsible for international justice and has to act independently and impartially in establishing the truth. That is why, in accordance with Article 54 (1) (a) of the Statute, the prosecutor is under the obligation investigate both incriminating and exonerating circumstances. In a sense, he/she is not a party to the case, but the representative of both sides and of the international community as well.36 The establishment of the truth can become a reality only as long as all the bodies of the ICC work together in cooperation, not in conflict. Third, as the practice of the Pre-Trial Chamber in the Lubanga Dyilo case has indicated, granting the right to victims to participate can speed up proceedings, which is one of the ways of ensuring a speedy trial37 and which is another aspect of the principle of a fair and public trial as included in the main instruments of international human rights.38 The idea that a large number of individuals claiming the right to participate might impinge on the efficiency and expeditiousness of the proceedings39 should not be supported in international criminal law. The use of the policy of focused investigations and prosecutions which is ex33 34 35 36
Preamble of the ICC Statute. Article 34 of the ICC Statute. Article 42 of the ICC Statute. Antonio Cassese, “The Statute of the International Criminal Court: Some Preliminary Reflections”, European Journal of International Law, Vol. 10, 1999, p. 144, at 168.; Christoph J. M. Safferling, Towards an International Criminal Procedure, Oxford, Oxford University Press, 2001, p. 86. 37 The Decision to Convene a Status Conference of the Pre-Trial Chamber can be accepted as one of the other practice of the ICC concerning the speeding up the investigations. Decision to Convene a Status Conference, Situation in the Democratic Republic of Congo, Case No: ICC-01/04 (February 17, 2005). For the criticism of the Decision, see Michela Miraglia, “The First Decision of the ICC Pre-Trial Chamber International Criminal Procedure under Construction”, Journal of International Criminal Justice, Vol. 4, 2006, p. 188. 38 Articles 9 (3) and 14 (3) (c) of the International Covenant on Civil and Political Rights; Articles 5 (3) and 6 (1) of the European Convention on Human Rights. 39 See Hemptinne and Rindi, supra note 30, at 348.
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plained above can be seen as paving the way for the ICC in this regard. Finally, the participation of victims in the investigation stage of proceedings should not be considered as affecting the balance between the rights of victims and suspects/accused. The rights of the suspects/ accused are well recognized in accordance with the principle of a fair and public trial. All international human rights and international criminal institutions exercise maximum care not to violate any of the rights concerned. On the contrary, it is not possible to say the same thing for the victims who have suffered from international crimes. As the practice of the ad hoc tribunals has shown, they can only participate in proceedings when they are called as witnesses to the case. Such a practice should not have been used by the ICC because it is supposed to reflect the highest level of human rights principles in its actions. There cannot be any doubt of the fact that the investigation stage is very significant for the suspects and they must have all their legal rights recognized, such as having legal assistance/counsel. However, it should also be noted that the victims should also have an opportunity to express their views and concerns through their legal representatives. By allowing victims to participate in proceedings before the Court, they become a participant in the case, not just a witness to be considered as evidence. In this sense, the decision of the Pre-Trial Chamber plays a vital role to show that justice not only be done but also that justice needs to be seen being done. b) The Decision on the Schedule and Conduct of the Confirmation Hearing of the Pre-Trial Chamber40 clearly sets out the procedure to be followed at the hearing for the confirmation of charges in the Lubanga Dyilo case. The method used by the Pre-Trial Chamber reflects the maximum care of the ICC in implementing the principle of a fair and public trial in the investigation phase of proceedings before the trial, through which all the participants – the prosecutor, the defense and the legal representatives of victims – have a chance to be heard in accordance with a detailed schedule: The hearing for the confirmation of charges against Mr Thomas Lubanga Dyilo started on 9 November 2006 and ended on 28 November 2006. As a principle, all hearings are conducted in public sessions unless otherwise decided by the Pre-Trial Chamber. In accordance with the Rules of Procedure and Evidence of the ICC, on 9 November 2006, the Presiding Judge opened the hearing and all the charges were read by the Registry.41 Then, all participants – the prosecutor, the legal representatives of victims and the defense 40 Situation in the Democratic Republic of the Congo, In the Case of the Prosecutor v. Thomas Lubanga Dyilo, Public Document, Decision on the Schedule and Conduct of the Confirmation Hearing, Case No: ICC-01/04-01/06, (November 7, 2006). (Hereinafter Decision on the Schedule and Conduct of the Confirmation Hearing). 41 Rule 122 (1) of the Rules of Evidence and Procedure.
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ankarabarrevıew 2009/2 counsel– made their opening statements.42 According to the Decision on the Schedule and Conduct of the Confirmation Hearing, the presentation of evidence by the Prosecution Service was planned to last from 10 to 16 November. Throughout the openning period, the prosecution had the opportunity to address the charges against Mr Lubanga Dyilo, the evidence relating to the UPC (Union des Patriotes Congoalis) and to the FPLC (Forces Patriotiques pour la liberation du Congo), the evidence relating to the alleged enlistment into the FPLC, conscription by the FPLC and active use in hostilities of children, the evidence relating to the alleged role of Mr. Lubanga Dyilo and evidence relating to individual cases. On 1516 November, the prosecution’s examination of one witness in public session was scheduled.43 After the prosecution finished its presentation of evidence and examination of witness, the defense had a chance to prepare for the examination of the witness from 16 November to 20 November 2006. On 20-21 November, the defense cross-examined the Prosecution witness in public session. Until 27 November, the defense team had opportunity to present its evidence and also to discuss the evidence provided by the prosecution.44 All participants, made closing statements on 28 November.45 According to Regulation 53 of the ICC, the Pre-Trial Chamber had to deliver its written decision concerning the hearing for the confirmation of charges against Mr. Lubanga Dyilo within 60 days of the date the confirmation hearing ends. In its decision, the Pre-Trial Chamber could: 1. confirm the charges in relation to which it has found sufficient evidence; 2. decline to confirm charges in relation which it has not found sufficient evidence; 3. adjourn the hearing and request the Prosecutor to consider providing further evidence or conducting further investigations; or finally, 4. adjourn the hearing and request the Prosecutor to consider amending a charge if the evidence appears to establish a different crime within the jurisdiction of the Court.46 As it is well known, Pre-Trial Chamber I confirmed the charges against Mr. Lubanga Dyilo on 29 January 200747 and the trial of Mr. 42 43 44 45 46 47
Rules 122 (2) and (3) of the Rules of Evidence and Procedure. See Decision on the Schedule and Conduct of the Confirmation Hearing, supra note 39, at 12. Ibid., at 12-13. Ibid., at 13-14. Article 61 (7) (a-c) of the ICC Statute. For the detailed decision of the ICC, see Situation in the Democratic Republic of the Congo, In the Case of the Prosecutor v. Thomas Lubanga Dyilo, Decision on the Confirmation of Charges, Case No.: ICC-01/04-01/06, (29 January 2007).
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Lubanga Dyilo started on 26 January 2009. From the perspective of international criminal law, whether the charges against Mr. Lubanga Dyilo were confirmed is not important. The real significance of the hearing confirmation lies in the fact that it is the first of its kind before the ICC and will undoubtedly establish precedence for the future cases of the Court. As long as the implementation of the principle of a fair and public trial is concerned, it can clearly be understood both from the Decision on the Schedule and Conduct of the Confirmation Hearing and the brief explanation made above that all fundamental principles concerning a trial, such as the principles of public trial, defendant being present during trial, speedy trial and equality of arms are respected even at the investigation stage of proceedings. Additionally, the victims, through their legal representatives, for the first time in international criminal law, were able to express their views and concerns both at the opening and closing sessions of the hearing for the confirmation of charges. CONCLUSION Undoubtedly, due to being the first case before the ICC, the Lubanga Dyilo case creates the same effect with the ICC as the Tadic case did for the International Criminal Tribunal for the Former Yugoslavia. In a sense, the construction of the ICC practice will be built upon the Lubanga Dyilo case, as has been in Tadic case. Thus, it would be expected that the Lubanga Dyilo case will have an immense precedential value for the future cases of the Court and will be referred to in almost every case. Some aspects of the precedential value could be examined, inter alia, in the employment of the policy of focused investigations and prosecutions as well as in victims’ participation in a personal capacity in the proceedings even in the investigation phase of proceedings. It will also be possible for the international community to witness that the ad hoc tribunals for the Former Yugoslavia and Rwanda will be affecting the interpretation and application of the principles of international criminal law provided by the ICC since the ICC has already getting the benefits of their practice. Hopefully, the practice of the ICC will even affect on domestic criminal law concerning international crimes in the near future since the jurisdiction of the Court is complementary to national criminal jurisdictions.
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Transformation of Turkish Criminal Law from the Ottoman-Islamic Law to the Civil Law Tradition ■■ by Dr. M. Yasin Aslan* I. INTRODUCTION
T
he Turkish Republic was established in 1923, after which it inaugurated a number of drastic reforms seeking to remake outmoded social and political institutions inherited from the Ottoman Empire. The new regime continued its efforts to modernize Turkish society by passing a series of laws. In 1926, the government declared that social changes made it necessary to discard religious rules of conduct and began a full scale reform of the legal system. The Criminal Code of Italy was adopted to replace the old Islamic Law. This was one of the major turning points in cutting ties with Islamic rule.1 The Turkish Penal Code of 1926 was revolutionary. It was intended to abolish prior law and substitute a new legal system. It purported to abolish all prior law in the field. In this paper I will briefly try to clarify the main themes of Turkish Criminal Law and compare it with some important features of Ottoman-Islamic Criminal Law. * 1
Major, Legal Adviser at the JFC HQ Legal Office, Naples/ITALY See Gabriel Baer, The Transition From Traditional to Western Criminal Law in Turkey and Egypt, 45 Studia Islamica [Paris], 139-158 (1977).
Transformation of Turkish Criminal Law From the Ottoman-Islamic Law
II. OTTOMAN-ISLAMIC CRIMINAL LAW SYSTEM: A. The “Millet” System The Ottoman Empire had Turkish roots and rested on Islamic foundations, but from the start it was a heterogeneous mixture of ethnic groups and religious creeds. 2 According to centuries-old tradition, the state religion of the Ottoman Empire was Islam. This fact found expression in the first written Constitution of the Empire in 1876. During the Ottoman Empire, the legal system was based on Islamic law.3 In spite of the acceptance of law from the continental European legal systems, Islamic law remained in force until the end of the Ottoman Empire. The Ottoman concept of the ideal law was traditional Islamic law: the Shari’a.4 However, the “Sultans” (kings) were nevertheless able to introduce and enforce their own secular laws.5 In the Ottoman Empire, the sultan acted in a number of capacities under a variety of titles, including judicial – ‘Judge’ was one of the sultan’s titles. The Ottoman Empire inherited many Byzantine (East Roman Empire) institutions that came to be overlaid with Islamic ideology and Turkish customs. The “ulema” (Islamic scholars and theologians) consisted of judges in the Shari’a courts.6 Under the influence of Islamic law for centuries, the Ottoman Empire tended to look upon a crime as a willful act and thus to assume that penalties were intended to punish the act and deter the similar acts. There had been a trend in Turkish institutions to see criminal acts as the products of social conditions in order to emphasize rehabilitation and reeducation. Unlike European countries, the Ottomans never used the law as a tool to prevent lower classes from taking the property of the upper class. Instead, Ottoman law was the tool to control the tendency to practice despotic ruling practice against the lower classes.7 “Millet” (nation) is an Ottoman term for a legally-protected religious minority. The concept was closely linked to Islamic rules regarding the treatment of non-Muslim minorities. The main millets were the Jewish, Greek, Armenian, and Catholic communities. Each millet was under the supervision of a leader, most often a religious patriarch, who reported directly to the Ottoman Sultan. The millets had a great deal of power; they set their own laws and collected and distributed their own taxes. All that was insisted upon was loyalty to the Empire. When a member of one millet committed a crime against a member of another, the law of the damaged person applied. The Muslim majority was seen as paramount and any dispute involving a 2 3 4 5 6 7
See Richard F. Nyrop, Turkey, A country Study 23-25 (1980). Niyazi Berkes, The Development of Secularism in Turkey 467 (1977). See generally Colin Imber, Ebu’s-su’ud and the Islamic Legal Tradition (1997); Haim Gerber, State, Society, and Law in Islam-Ottoman Law in Comparative Perspective (1994). Stanford J. Shaw & Ezel K. Shaw, History of the Ottoman Empire and Modern Turkey 273 (1977). Nyrop supra note 2, at 23-25. Id., at 296.
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ankarabarrevıew 2009/2 Muslim fell under Islamic law.8 In the Ottoman Empire, law, to a large extent, had also been the responsibility of the various millets. Even in religious law, borrowing law from other places was the primary instrument of the law’s development.9 The first Ottoman Criminal Code with European reforms was the 1858 Imperial Penal Code, which was the Turkish translation of the French Penal Code of 1810. This code remained in force until 1926 and abolished Islamic punishments. But the Capitulations10 exempted foreigners and those Ottoman citizens on whom foreign consuls confirmed protection from the application of criminal law. The millet system was altered by the increasing influence of European powers in the Middle East.11 B. Criminal Law in Islamic Perspective: Crime is considered as a serious moral problem in Islam, and is closely linked to peace and harmony of human life. Criminal actions were divided into four categories: 1. Crimes against physical life, such as injuring people or murdering them. 2. Crimes against property, such as robbery, vandalism, etc. 3. Crimes against descendents, such as adultery. 4. Crimes against human virtues and chastity, such as false accusation of unchastity (gazaf), drinking alcohol or apostasy (murtad).12 Within the Shari’ a, the law on crimes is one of the least developed portions, in large part because various caliphs appropriated criminal jurisdiction to the state and relieved the “qadi” (judge) of exclusive control. The Shari’a categorizes crimes primarily according to a schedule of penalties: 1. Hadd crimes for which there is a fixed penalty; 2. Ta’zir crimes for which the penalty is variable; and 3. Jinayat, corporal interpersonal crimes for which the penalty is retaliation or a fixed compensation.13 1. Hadd Crimes Hadd crimes are called “Qur’anic offenses,” although the penalties for some have come to be different from those declared in the Qur’an (the holy book of Islam). Repentance or reparation by the convicted 8 See http://en.wikipedia.org/wiki/millet_(Ottoman Empire) (last visited April 15, 2009). 9 H. Patrick Glen, Legal Traditions of the World 189 (2001). 10 The Turkish Capitulations were granted by successive sultans to Christian nations, conferring rights and privileges in favor of their subjects who were resident or trading in the Otooman dominions, following the policy towards European states of the Byzantine Empire. http://em.wikipeia.org/wiki/Capitulations_of_the_Otoomen_Empire(last visited Apr. 28, 2009). 11 Feyyaz Golcuklu, Criminal Law, in Introduction to Turkish Law (Tugrul Ansay & Don Wallace, Jr. eds.) 165 (1996). 12 See http://www.brudirect.com/criminal/part1.htm (last visited April 10, 2009). 13 Sadiq Reza & David F. Forte, Islamic Criminal Law, Joint AALS, American Society of Comparative Law and Law and Society Association, Workshop on Islamic Law 1 (2004) at http://www.aals.org/am2004/islamiclaw/criminal.htm (last visited Nov. 20, 2008).
Transformation of Turkish Criminal Law From the Ottoman-Islamic Law
person cannot derogate from the severity of the sentence.14 Among offenses which are categorized as offenses punishable by hadd are robbery, fornication, false accusation of unchastity without valid evidence, drinking alcohol or apostasy from the religion of Islam. The offenses and their punishments are as follows: a. Adultery (zina): Death by stoning or a specified number of lashes.15 b. False Accusation (qadhf): Eighty lashes for free people or forty lashes for slaves. c. Drinking intoxicants (shrub al-Khamr): Eighty lashes for free people or forty lashes for slaves.16 d. Theft (sariqa): Amputation of a hand.17 e. Apostasy: Death. 2. Ta’zir Crimes All non-hadd crimes can incur discretionary punishment by qadi depending upon the circumstances of the crime, the offender, and his level of remorse or purpose of commission. The punishments cover a range of severity from private admonition to death. Under the Shari’a ta’zir crimes are not defined, and hence there is a problem of fair notice and due process.18 3. Jinayat Offenses Three kinds of punishments can be permitted in cases of proven homicide or bodily harm: retaliation (qisas), blood money (diya), and penitence (kaffara).19 Where the retaliation is applied, the guilty party is liable for the same degree of harm as he inflicted on his victim. The blood money was sometimes an alternative to retaliation, at the option of the nearest relative of the slain person or of the wounded victim. The penitence is never the sole required punishment. When imposed, it was attached in certain kinds of cases to the payment of blood money. An act of penitence consists of freeing a Muslim slave or, if one has no slaves, in fasting during daylight hours for two consecutive months.20 III. REVOLUTIONARY MOVEMENTS IN TURKISH CRIMINAL LAW Following the establishment of the modern republic, Turkey westernized and modernized its criminal law in the 1920s, along with other aspects of Turkish law.21 After the War of Independence, the Turk14 Nevin Ünal Bozkurt, “İslam Ceza Hukukunda Kadın,” Ankara Üniversitesi Hukuk Fakültesi Dergisi, Cilt 56, Sayı 2, 2007, p. 89. 15 For conviction, Islamic law requires either the testimony of four eyewitnesses, instead of the normal two, or the confession of the accused. See id. at 2. 16 This punishment is not prescribed in the Qur’an but was established later and analogized from the punishment for the qadhf. See id. at 3. 17 To be guilty of theft, one must be a competent adult and have the mental intention to steal. See id. at 2. 18 Id. at 3. 19 Ünal Bozkurt, “İslam Ceza Hukukunda Kadın,” p. 85-88. 20 Id. at 1. 21 Adnan Guriz, Sources of Turkish Law, in Introduction to Turkish Law (Tugrul Ansay & Don Wallace, Jr. eds.) 10 (1996).
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ankarabarrevıew 2009/2 ish Grand National Assembly passed a law abolishing the religious (Shari’a) courts in April 1924 because the religious courts were hindrances to the efforts to modernize the legal system. The Italian Penal Code of 1899 was adopted as the Turkish Criminal Code in 1926 and the Turkish Code of Criminal Procedure, adopted in 1929, was a translation of the German Code of Criminal Procedure of 1877. Both of these codes have been amended many times. It is important to understand that state positivism was much more sharply and consciously emphasized in Turkey during the period of revolutionary change. Turkish codification followed the rationalist and secular natural law thinking. The leaders of the new regime believed that “secularism” should be one of the most important aspects of the new state; Turkey today still has no officially-established religion. The principle of secularism in short requires a neutral position before any religious denomination. On 5 February 1937, the amendment of Article 2 of the Constitution represented a clear and positive step by the Turkish legislature towards the establishment of secularism in Turkey. Today, Turkey is administered by a totally modern civil law and no residue of Islamic law remains. Because a huge majority of Turkey’s population (99 percent) practice the Islamic faith, on one hand it sets Turkey apart from Western countries, and on the other hand the secular and liberal democratic nature of the Turkish state sets it apart from almost all other countries with Muslim majorities.22 The process that Bernard Lewis called the “victory of Turks over Ottomans” entailed a dramatic change in the concepts of the state, the nation, and the individual’s relationship to them.23 But secularism in Turkey does not mean that the law completely ignores religion because the Turkish revolution did not wage a war against Islam. Its attack was directed against those people who declared incorrect beliefs to be Islamic and considered all those who rejected them as irreligious. IV. PRESENT-DAY TURKISH CRIMINAL LAW SYSTEM A. Penal Law Turkey is a civil law country. Substantive criminal law in Turkey does not differ greatly from that of other civil law countries or even common law countries for that matter. Turkish culture has many similarities with European culture. The reason for this phenomenon may be found in historical and geographical factors. The same kinds of actions are considered criminal, and the same general approaches to punishment are discussed and debated as in Western culture. With some minor changes, the definition of offenses and criminal procedures derived from European models provide the basis for the systems instituted after the Turkish revolution.24 22 See generally Kemal H. Karpat (ed.), Social Change and Politics in Turkey: A Structural-Historical Analysis (1973); Andrew Mango, The State of Turkey, 13 Middle Eastern Studies [London] 261-274 (1977). 23 Nyrop supra note 2, at 69. 24 Id., at 290.
Transformation of Turkish Criminal Law From the Ottoman-Islamic Law
The legislature is the sole lawmaker.25 Discussions by scholars are regarded as a subsidiary source of Turkish law in view of the incompleteness of legislation and insufficiency of case law in the field. During the revolutionary term, customs did not take part in the creation of the new legal regime in Turkey. On the contrary, some of the new statutes have contained rules very much against the established customs of Turkish society.26 Crimes are defined as either felonies or misdemeanors, the latter including minor infractions such as traffic violations.27 Punishments for felonies are strict imprisonment, ordinary imprisonment, and heavy fines. The death penalty was abolished in 2001. Misdemeanors are punished with light imprisonment and lesser fines.28 The Penal Code does not permit indeterminate sentences. A sentence for an offense must fall between the minimum and maximum penalties specified for that offense, but the judge has the discretion to fix the penalty within those limits after considering several factors that are stated in the code.29 B. Criminal Procedure Criminal procedure has been essentially an independent field of regulation and study since the period of revolution. Like most civil law systems,30 the Turkish penal law includes separate codes of civil procedure and criminal procedure. The principal actors in the legal process under Turkish penal law are the judge, the prosecutor, and the attorney. Each is a specialist. The typical criminal proceeding in Turkish law can be thought of as being divided into two main parts: the investigative phase and the trial. Turkey abolished the examining phase in the 1970s. The investigative phase comes under the direction of the public prosecutor. The entire pretrial process is in the hands of the prosecutor and the police. The public prosecutor is like a district attorney in a typical American state. The public prosecutor is also a civil servant, and typically, he has two principal functions. The first is to act as prosecutor in criminal actions, preparing and presenting the state’s cases against the accused before a court. His second principal function, however, is quite different; he is called on to represent the public interest in judicial proceedings between private individuals. Trial procedures are flexible and relatively informal; they are open to the public except in specified circumstances.31 When the police believe that a person has committed a crime, the suspect is usually taken to the nearest police station for registration 25 Nevin Ünal Bozkurt, “Yargı Bağımsızlığı Açısından Osmanlı’da ve Günümüz Türkiyesi’nde Yargıya Genel Bir Bakış,” Ankara Üniversitesi Hukuk Fakültesi Dergisi, Cilt 57, Sayı 1, 2008, s. 236. 26 Tugrul Ansay, American-Turkish Private International Law 13 (1966). 27 Nyrop supra note 2, at 3. 28 Id. at 291. 29 Id. at 292. 30 John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America 111 (1985). 31 Nyrop supra note 2, at 293.
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ankarabarrevıew 2009/2 and interrogation. If evidence is found, the case is transmitted to the public prosecutor; otherwise the suspect is released. Arrest is not mandatory.32 Criminal offenses are tried before the courts of first instance, which are established in all districts and municipalities in varying numbers, depending on the size of the population.33 A trial begins with a reading of the indictment. The judge, as well as the prosecutor and the defense, then questions the defendant and the witnesses, experts, and accomplices. The defendant may retain and consult counsel at all stages of the proceedings. The defendant is entitled to know and challenge the admissibility of all evidence to be used against him at the trial.34 The trial ends with summary statements by the public prosecutor and the defendant and his counsel. The judge then renders a decision, stating the reasons for his judgment. Either the defendant or the public prosecutor may appeal the decision.35 The Turkish Court of Cassation (High Appeals Court – the Yargitay in Turkish) was created to overrule incorrect decisions on a question of law made by the lower courts. Like any other civil law country,36 the Court of Cassation in Turkey is not a source of law since judicial decisions are not a source of law. The civilian and military criminal systems have two separate sets of courts, each with its own jurisdiction, its own hierarchy of tribunals, its own judiciary, and its own procedures, all existing within the same nation. Offenses and disciplinary actions involving military personnel are handled by military courts. Appeals are referred to the Military Court of Cassation.37 V. CONCLUSION: Within a period of about twenty years, Turkey was transformed from an empire with Islamic laws and tradition into a republic with new secular laws and a new philosophy of government. Turkish legal development has continued progressively since then. As a candidate member of the European Union, Turkey is in the process of harmonizing its laws with European Union legislation. Therefore, the legislature is harmonizing the existing Penal Code and Criminal Procedure Code by bringing them to a level acceptable to the European Union. These changes will help Turkish legal system keep up with the requirements of global competition in a free market economy.
32 33 34 35 36 37
Id., at 292. Id., at 199. Id., at 293. Id., at 293. Merryman, supra note 26, at 46. Nyrop supra note 2, at 198.
Is Nihat Kahveci a Eu-Footballer?
Is Nihat Kahveci a EU-Footballer? The Path from His Request to the Legal End. ■■ by Juan de Dios Crespo Pérez*1
I
would like to deliver to my Turkish colleagues not all the legal grounds of the Nihat case, but my personal experience as his lawyer during all the years of dispute that we have both endured. I started the legal battle to obtain for Nihat Kahveci his football EU citizenship on season 2001-2002. When the President of his club at that time, the Real Sociedad of San Sebastián, in Spain, told me that he had more foreign players under contract than those accepted by the Spanish football rules and requested a report on which possibilities do the club have to tackle this problem, I began to wonder which road we should go in order to reach that target. I had been involved in several cases of Romanian and Bulgarian players who decided to request their “football EU citizenship” in Spain as per the Agreements signed by their countries with the European Union and was lucky enough to get some of them playing in Spain with the same rights as any Spaniard or citizen of the members of the EU. I then dug into the Communities-Turkey Association Agreement and its integrated part the Additional Protocol and thought that even though Turkey was not yet on the starting blocks to enter the EU, as Rumania and Bulgaria were, it was no way a different Agreement and if I have to be sincere, I even pretended that the Ankara Agreement was much more legally interesting for Nihat in order to became considered “as a EU citizen”. 1
Lawyer of Nihat and his Clubs Real Sociedad and Villarreal CF in the proceedings, Attorney at law at the RUIZ HUERTA & CRESPO SPORTS LAWYERS
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ankarabarrevıew 2009/2 The Spanish Football Association was then the first step to reach and a request was made by both the club and Nihat in order to be considered with the same rights of a EU citizen and thus to get the same type of license that could make him an alter ego of any Spanish, Italian or English footballer. Of course, the Spanish FA denied such a category and opened then the path to the long and winding road of the legal system. We had to go to the Superior Council of Sports – CSD- (from the then Ministry of Culture and Sport) on appeal and trying to reverse such the first decision. We had no chance to get a positive answer on that administrative way and when we were given a negative decision by the CSD, we hade no other route but to began the legal struggle before the Spanish Court, according to our system. The case was so unpopular within Spanish FA, as if Turkey citizens were to be considered with the same rights as EU members, it could not only open that door much before it was intended by the EU, but could also open other doors to countries with similar Agreements. The aim of the debate was to protect the “national product” and in fact is the same battle that today FIFA is trying to put back on the table with the famous 6+5 (6 nationals and 5 “non nationals”- including all of those that cannot play for the national teams). This is of course another debate and should need much more room but the idea was similar: close the doors or our national team will be weakened. Before closing this issue, we have to point out that Spain has won the European Nations UEFA Cup with the highest percentage of non-Spanish players in their teams, so may be FIFA is mistaken and Spanish FA was at that time mistaken too. And that clash was brought to the Courts with several issues on procedural matters, which gave us the opportunity to be in three different Courts before one of them (which previously denied its jurisdiction) accepted it finally. By that date two seasons have been finished and on July 2004, the Court denied a preliminary measure that we have requested in order to have Nihat playing “as a EU Citizen” while the case was under decision. I appealed such a denial and was given a positive answer on December 2004, by the very same Court and as for January 2005 Nihat Kahveci began to play football not only as a Turkish citizen but also with the same rights of a EU citizen. That decision was important as it permitted that Nihat did not play anymore as a “foreigner” and then the restricted quota was not anymore applicable to him. Of course, this was not the end of the proceedings as we still did not have a final decision on the request, but at least it gave us the tranquil-
Is Nihat Kahveci a Eu-Footballer?
lity to work without the Damocles’ sword of Nihat playing with full and with the sporting and contractual consequences both for him and his club. Nihat had even the time to switch from Real Sociedad to Villarreal CF that decided also to continue the legal struggle up to the end as the engagement with the player was based on his ability to play as a nonforeigner as the Villarreal quota for foreigner was replete. We finally request the Spanish Court (Tribunal Superior de Justicia de Madrid) to present a prejudicial question to the European Court of Justice, which was accepted and was filed under number C-152/08. The European Court of Justice finally answered the question on the 25th of July 2008 stating that the Agreement between the (then) EEC (now EU) and Turkey should be interpreted “in the sense that it OPPOSES the application to a sportsman of Turkish nationality, legally contracted by a club established in a EU member State, of a rule adopted by a sporting federation of the same State, in which the clubs can only play, in competitions of State level, with a limited number of players from third States that are not a part of the European Economic Space”. The said ECJ decision is not, in my opinion, a mere answer to the question, but has a erga omnes effect, in the sense that it clarifies that any professional sportsman from Turkey that is legally contracted in Spain will be considered as a EU citizen in his sport and that the decision is not framed within Spain but should be considered to have effect in all the members of the EU. Finally, on the 6th of March 2009, after quite eight years of legal struggling, the Spanish Court delivered its decision in which Nihat Kahveci was considered “as a EU citizen” in his rights and duties in Spanish football, opening the way to his colleagues not only in his sport but in all the professional ones as well for the other EU members. The conclusion can be that borders should not be of this world and it seems that only a clear (and legally binding) future message delivered by the European Union on the “specificity of Sport” in the sense of what FIFA is requesting with its 6+5 demand can avoid a future of non discrimination on the basis of nationality for sportsmen. In this sense, just think about the so-called “Cotonou agreement” between the EU and 77 States of Africa, the Caribbean and Pacific Ocean that permit to consider their citizens “as EU ones” also. But of course this is not the end of the debate and we will surely have future news in a sense or another soon as FIFA is trying that the European Parliament accepts its 6+5 idea and I have been myself before the Legal Commission of the Parliament last 30th of March giving a report on the opposite side...
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The European Court of Justice’s Ruling in The Kahveci Case Lights the Way for Other Turkish National Sportsmen in the European Union* ■■ by Zeynep İlay Gümrük ** I. INTRODUCTION
N
owadays, the European Court of Justice (ECJ)’s judgement in the Nihat Kahveci case1 has had broad repercussions in the press. Ntvmsnbc published the news as “Nihat, marked a new period in Spain.”2 Sabah reported it as “Nihat Kahveci entered into the European Union.”3 Nethaber announced the ruling with the heading “Nihat will not be treated as a foreigner anymore.”4 Indeed because it was an expected decision of the European Court, a ruling to the contrary would be surprising, because Nihat shared the same fate as Slovakian goalkeeper Marcus Kolpak on the German handball team and Russian professional football player Igor Simutenkov while playing with the Spanish football club Deportivo Tenerife. Their common interest was the limited number of players allowed from countries that are not parties to the Agreement on the European Economic Area. According to Yenişafak’s comment on 3 August 2008, Nihat paved the way for other * Two of the two Referees found this article appropriate for publishing. ** LL.M (International and European Labor Law). She may be reached at [email protected]. 1 Case C-152/08, Real Sociedad de Fútbol SAD and Nihat Kahveci v Consejo Superior Deportes and Real Federación Española de Fútbol, E.C.R. 2008, page 00000. 2 http://www.ntvmsnbc.com/news/253923.asp#BODY. 3 http://arsiv.sabah.com.tr/2004/01/22/spo112.html. 4 http://www.nethaber.com/Spor/70662/NIHAT-ARTIK-YABANCI-SAYILMAYACAK-Nihatin-AB-statusu.
The European Court of Justice’s Ruling ın the Kahveci Case Lights
Turkish national football players, for instance Mehmet Aurelio who is playing for Real Betis, İbrahim Kaş who is playing in Getafe and Ersen Martin from Recreativo.5 The ECJ’s judgement in the Kahveci case is encouraging for professional sportsmen who still do not hold a professional player’s license identical to the license held by Community players. The ECJ’s jurisdiction in these three cases leads to the conclusion that there is settled case law of the European Court in this subject and is worthy of consideration. II. THE KOLPAK CASE The ECJ’s ruling in the Kolpak case6 on 8 May 2003 is a reference for a preliminary ruling concerning the interpretation of Article 38(1) of the Association Agreement between the Communities and Slovakia. The questions were raised in a dispute between the German Handball Federation (the DHB) and Marcos Kolpak, a Slovak national living in Germany with a valid residence permit. He entered into a fixedterm employment contract for the post of goalkeeper on a German handball team, a club which plays in the German Second Division. The situation which gave rise to the dispute between parties was the rejection of Kolpak’s request for a professional player’s license which did not feature the specific reference to nationals of non-member countries. According to SpO (Federal Regulations Governing Competitive Games) Rule 15: (1) The letter A is to be inserted after the license number of the licenses of players (a) who do not possess the nationality of a State of the European Union (EU State), and (b) who do not possess the nationality of a non-member country associated with the EU whose nationals have equal rights regarding freedom of movement under Article 48(1) of the EC Treaty (after amendment Article 39 EC), (2) For teams in the federal and regional leagues, no more than two players whose licenses are marked with the letter A may play in a league or cup match. Kolpak defended his claim on the basis of Article 38(1) of the Association Agreement with Slovakia. Article 38(1) of the Association Agreement with Slovakia states: “Subject to conditions and modalities applicable in each Member 5 6
Case C-438/00, Deutscher Handballbund eV v Marcos Kolpak, E.C.R. 2003, page I-04135. Case C-265/03, Igor Simutenkov v Ministerio de Educación y Cultura and Real Federación Española de Fútbol, E.C.R. 2005, p. I-02579.
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ankarabarrevıew 2009/2 State: treatment accorded to workers of Slovak Republic nationality legally employed in the territory of a Member State shall be free from any discrimination based on nationality, as regards working conditions, remuneration or dismissal, as compared to its own nationals.” The ECJ first examined whether Article 38(1) of the Association Agreement with Slovakia is directly applicable. After evaluating all the circumstances, the European Court affirmed the relevant article as being directly applicable. It prohibits discrimination on the basis of nationality in clear, precise and unconditional terms. The European Court of Justice stated in its decision that Kolpak was not seeking access to the German labour market because he was already lawfully employed in Germany. He had a residence permit and a monthly salary which are evidence of his lawful access to the German labor market and workers once lawfully employed within the territory of a Member State have a right to equal treatment regarding the conditions of employment. To sum up, the ECJ commented that Article 38(1) of the Association Agreement with Slovakia was to be construed as precluding the application to a professional sportsman of Slovak nationality who was lawfully employed by a club established in a Member State, of a rule drawn up by a sports federation in that State under which clubs are authorized to field, during league or cup matches, only a limited number of players from non-member countries that are not parties to the EEA Agreement. III. THE SIMUTENKOV CASE The Simutenkov judgement7 of the European Court of Justice, on 12 April 2005, is a reference for a preliminary ruling concerning the interpretation of Article 23(1) of the Community-Russia Partnership Agreement. Questions had been raised in proceedings between Igor Simutenkov, the Ministry of Education and Culture, and the Royal Spanish Football Federation (the RFEF), concerning sporting rules which limit the number of players from non-member countries who maybe fielded in national competitions. Igor Simutenkov was originally a Russian national, living in Spain and employed as a professional football player under an employment contract entered into with club Deportivo Tenerife and holding a federation license as a non-Community player. He also had both a residence and a work permit. The trigger for all of these consequences was Simutenkov’s application to the RFEF for replacement of the federation license which 7
EEC-Turkey Association Agreement 1963, O.J. 1964, L. 217.
The European Court of Justice’s Ruling ın the Kahveci Case Lights
he held, with a license the same as that held by Community players, and the RFEF’s rejection of that application on the basis of its General Regulations and the agreement of 28 May 1999 which limited the number of players, not having the nationality of a Member State who were allowed to participate at any time in the Spanish First Division, to three for the 2000/-2001 to 2004/2005 seasons and, in the case of the Second Division, to three for the 2000/2001 and 2001/2002 seasons and to two for the following three seasons. Pursuant to Article 173 of the General Regulations: “Without prejudice to the exceptions laid down herein, in order to register as a professional and obtain a professional licence, a footballer must meet the general requirement of holding Spanish nationality or the nationality of one of the countries of the European Union or the European Economic Area.” Simutenkov contended that those rules discriminated between EU nationals or EEA nationals and nationals of non-member countries. In support of his claim, Simutenkov, so far as Russian players are concerned, relied on the Communities-Russia Partnership Agreement. Article 23(1) of the Communities-Russia Partnership Agreement provides: “Subject to the laws, conditions and procedures applicable in each Member State, the Community and its Member States shall ensure that the treatment accorded to Russian nationals legally employed in the territory of a Member State shall be free from any discrimination based on nationality, as regards working conditions, remuneration or dismissal, as compared to its own nationals.” The ECJ, in its jurisdiction, gave an answer to the national court’s question whether Article 23(1) of the Community-Russia Partnership Agreement was to be construed as to preclude its application to a professional sportsman of Russian nationality, who is lawfully employed by a club established in a Member State, because clubs may field in competitions at the national level only a limited number of players from countries which are not parties to the EEA Agreement. The ECJ, similar to its jurisdiction in the Kolpak case, first examined the direct effect of Article 23(1) of the Community-Russia Partnership Agreement, namely whether an individual before the courts of a Member State can rely on this provision. It is indicated in the judgement that according to the ECJ’s well-established case law, a provision in an agreement concluded by the Communities with a nonmember country must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which
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ankarabarrevıew 2009/2 is not subject, in its implementation or effects, to the adoption of any subsequent measure. Consequently Article 23(1) of the CommunitiesRussia Partnership Agreement lays down, in clear, precise, and unconditional terms, a prohibition precluding any Member State from discriminating, on the grounds of nationality, against Russian workers in comparison to their own nationals regarding working conditions, remuneration or dismissal and certainly individuals to whom that provision applies, namely Russian national workers who are lawfully employed in the territory of a Member State, are entitled to rely on it before a national court. Finally, the ECJ ruled that Article 23(1) of the Community-Russia Partnership Agreement did not preclude its application to and protection of a professional sportsman of Russian nationality, who is lawfully employed by a club established in a Member State, of a rule drawn up by a sports federation of that State which provides that clubs may field in competitions organized at the national level only a limited number of players from countries which are not parties to the EEA Agreement. IV. THE SIMILARITIES OF THE KOLPAK AND SIMUTENKOV CASES First, both the Kolpak case and the Simutenkov case are about third-country-national professional sportsmen (Slovakian and Russian respectively), employed in one of the Member States of the European Union (Germany and Spain respectively). Moreover, they were in conflict with rules drawn up by a sports federation of the Member State in question concerning the limit on the number of players who could be from countries which are not parties to the Agreement on the European Economic Area. The European Union has agreements with both of these countries in question – the Association Agreement between the Communities and Slovakia and the Communities-Russia Partnership Agreement. The ECJ, in the judgement in Simutenkov, addressed Article 23(1) of the Communities-Russia Partnership Agreement and found its wording very similar to Article 38(1) of the Communities-Slovakia Association Agreement. According to the ECJ, the difference between the wordings “the Community and its Member States shall ensure that the treatment accorded to Russian nationals … shall be free from any discrimination based on nationality” and “treatment accorded to workers of Slovak Republic nationality … shall be free from any discrimination based on nationality” is not a bar to the transposition of the interpretation upheld in Kolpak case; therefore, both provisions lay down, in clear, precise and unconditional terms, a prohibition of discrimination on the grounds of nationality.
The European Court of Justice’s Ruling ın the Kahveci Case Lights
According to Article 1 of the Communities-Russia Partnership Agreement, the purpose of the Agreement was to establish a partnership between the parties while Article 1(2) of the Communities-Slovakia Association Agreement states its purpose to be the establishment of an association with a view to gradual integration of Slovakia into the European Communities. The ECJ indicated that although the Communities-Russia Partnership Agreement was not intended to establish an association with a view to gradual integration of Russia into the European Communities, it does not mean the prohibition of discrimination in that agreement has a different meaning than the discrimination clause in the Communities-Slovakia Association Agreement. Also, the Simutenkov judgement indicated that although the Agreement is thus limited to establishing a partnership between the parties, without providing for an association or future accession of the Russian Federation to the Communities, this did not prevent its provisions from being directly effective. V. TURKEY’S POSITION As is known, the six founding countries – Belgium, France, Italy, Luxembourg, the Netherlands and Germany – signed on 25 March 1957 the Treaty of Rome which founded the European Economic Community. Right after the European Economic Community was established in 1959, Turkey requested to participate in the Community. Turkey’s challenging journey on the way of accession into the European Union was triggered by the conclusion of the Agreement Establishing an Association between the European Economic Community and Turkey,8 which was signed on 12 September 1963 in Ankara, and thus also became known as the Ankara Agreement. This agreement was the first concrete step towards Turkey-EU relations. The key actor in the European Union’s external relations and the basis for the Ankara Agreement is Article 310 of the Treaty Establishing the European Community. According to this Article, the Community may conclude with one or more States or international organisations agreements establishing an association involving reciprocal rights and obligations. A. Legal Basis The aim of the Ankara Agreement as stated in Article 2 is to promote the continuous and balanced strengthening of trade and economic relations between the European Economic Community and Turkey, while taking into account the need to ensure an accelerated development of the Turkish economy and to improve the level of employment and living conditions of the Turkish people. 8
Additional Protocol 1970, O.J. 1972, L 293.
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ankarabarrevıew 2009/2 As stated in Article 1 of the Ankara Agreement, an association is established between the European Economic Community and Turkey by the Agreement. Besides, Article 28 addresses Turkey’s potential accession to the Union with the condition of fulfillment of the obligations arising from the Treaty Establishing the European Community. Article 9 of the Ankara Agreement provides: “The Contracting Parties recognize that within the scope of this Agreement and without prejudice to any special provisions which may be laid down pursuant to Article 8, any discrimination on grounds of nationality shall be prohibited in accordance with the principle laid down in Article 7 of the Treaty establishing the Community.” Article 12 of the Ankara Agreement reads: “The Contracting Parties agree to be guided by Articles 48, 49 and 50 the Treaty Establishing the Community for the purpose of progressively securing freedom of movement for workers between them.” The wording of this article is very significant because the phrase “to be guided by” opens the door for the European Court of Justice to interpret the vague terms in the Agreement parallel to the Treaty Establishing the Community. An Association Council was introduced, on the basis of Article 6 of the Ankara Agreement, which had the duty to ensure the implementation and progressive development of the Association within the powers conferred upon it by the Agreement. Subsequent to the entry into force of the Association Agreement in 1964, the Additional Protocol to the Association Agreement, concluded between the EEC and Turkey, was signed on 23 November 1970 which facilitates the application of Ankara Agreement. To facilitate the application and clarification of the Ankara Agreement, Article 36 of the Additional Protocol states: “Freedom of movement for workers between Member States of the Community and Turkey shall be secured by progressive stages in accordance with the principles set out in Article 12 of the Agreement of Association between the end of the twelfth and the twenty-second year after the entry into force of that Agreement. The Council of Association shall decide on the rules necessary to that end.” The period specified in the Article expired on 1 December 198 but currently the Union does not recognize the free movement of Turkish workers within its Member States. Article 37 of the Additional Protocol to the Ankara Agreement states:
The European Court of Justice’s Ruling ın the Kahveci Case Lights
“As regards conditions of work and remuneration, the rules which each Member State applies to workers of Turkish nationality employed in the Community shall not discriminate on grounds of nationality between such workers and workers who are nationals of other Member States of the Community.” Another very significant document relating to Turkey-EU relations is the Association Council’s Decision 1/80.9 This decision is of vital importance to situation of Turkish migrant workers working in the Community’s territories. Article 10(1) of the Decision No 1/80 of the Association Council provides: “The Member States of the Community shall as regards remuneration and other conditions of work grant Turkish workers duly registered as belonging to their labour forces treatment involving no discrimination on the basis of nationality between them and Community workers.” B. Developments regarding the position of Turkish migrant workers in the European territories The European Court of Justice’s ruling in the Demirel case10 constitutes a cornerstone regarding the position of Turkish migrant workers in the European territories. Mrs. Demirel, who was the wife of a Turkish worker working in Germany, filed a legal action on the basis of Article 36 of the Additional Protocol, claiming that the period specified in the relevant article has expired on 1 December 1986 and consequently Turkish workers had acquired the right to move freely between the Member States of the Community. The ECJ decided that Article 12 of the Ankara Agreement and Article 36 of the Additional Protocol were not directly applicable in the internal legal order of the Member States because of its programmatic nature. In the case, it was emphasized that these provisions are not sufficiently precise and unconditional to be capable of directly governing the movement of workers.11 Unfortunately Mrs. Demirel could not get an affirmative response to her claim. However, from another perspective, the ECJ in the Demirel case affirmed that the Ankara Agreement and its complementaries form an integral part of the community legal system so that the ECJ is competent to hear cases regarding the application and clarification of the Ankara Agreement and its complementaries. In Articles 12, 13 and 14 of the Ankara Agreement, the wording “to be guided by” has significant importance. Martin Hedemann-Robinson, in his article, commented on this wording as follows: “This guid9 Decision No 1/80 of the Association Council of 19 September 1980 on the Development of the Association. 10 Case C-12/86 Meryem Demirel v Stadt Schwäbisch Gmünd, E.C.R. 1987, page 03719 11 Id., Para 23.
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ankarabarrevıew 2009/2 ance has had a significant influence on the ECJ’s approach to interpreting the scope of the association accords and instruments, notably where the arrangements are silent on definitions and explanations of various key phrases in the texts.”12 Article 6 of Decision No 1/80 dealt with Turkish migrant workers’ access to the labor markets of the Member States. In the Günaydın case, the ECJ states that Article 6 only regulates the situation of Turkish workers already integrated into the labor force of the host Member State and does not encroach upon the competence retained by the Member States to regulate both the entry into their territories of Turkish nationals and the conditions under which they may take up their first employment. 13 In conclusion, the first access to the labour market of the host Member State by an individual worker remains a sovereign power of the host Member State. However, Turkish nationals who are integrated into the labor market of the host Member State hold the right to equal treatment on the basis of nationality regarding remuneration and other conditions of work if they are duly registered as belonging to the labor markets of the Member States, as provided for in Article 10(1) of Decision No 1/80. The meaning given to the phrase “duly registered” is important. The ECJ, in the Kol case, defined legal employment to be a stable and secure situation as a member of the labor force in the host Member State and the existence of an undisputed right of residence.14 Kol obtained his residence permit by means of fraudulent conduct and consequently his situation was not stable and secure acording to the ECJ. Also the ECJ requires a close link with the territory of the host Member State and, according the Bozkurt case,15 when determining this, takes into account the place of hire, the territory where the paid employment is based, the applicable national legislation in the field of employment and the social security law. Another criterion, as stressed in the Günaydin case, is to determine whether the Turkish migrant worker is duly registered as belonging to the labor markets of the Member States is.16 Pursuant to this paragraph, the worker should be bound by an employment relationship covering a genuine and effective economic activity, pursued for the benefit and under the direction of another person for remuneration. 12 Martin Hedemann-Robinson, Common Market Law Review 38, 2001, Kluwer Law International, An Overview of Recent Legal Developments at Community Level in Relation to Third Country Nationals Resident within the European Union, with Particular Reference to the Case Law of the European Court of Justice, p. 542. 13 Case C-36/96, Faik Günaydın, Hatice Günaydın, Güneş Günaydın and Seda Günaydın v Freistaat Bayern, E.C.R. 1997, page I-05143, Para. 23. 14 Case C-285/95, Suat Kol v Land Berlin, E.C.R. 1997, page I-03069, Para 21. 15 Case C-434/93, Ahmet Bozkurt v Staatssecretaris van Justitie, E.C.R. 1995, I-01475. 16 Case C-36/96, Faik Günaydın, Hatice Günaydın, Güneş Günaydın and Seda Günaydın v Freistaat Bayern, E.C.R. 1997, page I-05143, Para. 34.
The European Court of Justice’s Ruling ın the Kahveci Case Lights
C. Comparative Facts of the Kahveci Case The European Court of Justice’s judgement in the Kahveci case17 concerned the interpretation of Article 37 of the Additional Protocol. Just like the related articles in the Kolpak and Simutenkov cases, this article prevents discrimination, on the basis of nationality, between Turkish migrant workers and workers who are nationals of the Member States of the Community. This reference was made in proceedings regarding a dispute between Real Sociedad de Fútbol SAD and Nihat Kahveci on the one hand and the Royal Spanish Football Association (the RFEF), on the other, concerning sporting rules which limit the number of players from non-member States who may be fielded in national competitions the same concern as in the aforementioned cases of Kolpak and Simutenkov. Nihat Kahveci was a Turkish national residing in Spain. He had a residence and a work permit. He was employed as a professional football player under a contract of employment and had a federation license as a non-Community player. When the ECJ’s case law is evaluated regarding Kahveci’s duly registration in the labor market of the host Member State, it is crystal clear that he had a stable and secure situation and an undisputed right of residence, holding a close link with the host Member State Spain and pursuing a genuine and effective economic activity for the benefit and under the direction of another person for remuneration. Along the same line as Simutenkov, Kahveci applied through his club to the RFEF for the replacement of his license with a professional player’s license identical to those held by Community players, on the basis of the Communities-Turkey Association Agreement and its integrated Additional Protocol. According to Juan de Dios Crespo, the lawyer in charge, Kahveci and his club together asked for the application of the Communities-Turkey Association Agreement because it is a labor matter from the perspective of Kahveci and a competition case from the perspective of his club. Unfortunately Kahveci’s application was rejected in exactly the same way as Simutenkov’s application, on the basis of Article 173 of the General Regulations which makes holding Spanish nationality or the nationality of one of the countries of the European Union or the European Economic Area a necessity in order to obtain a professional player’s license. It is more advantageous to obtain a Professional player’s license identical to those held by Community players because, according to the agreement of 28 May 1999, the number of players who are not Member State nationals who may be fielded simultaneously in the first 17 Case C-152/08, Real Sociedad de Fútbol SAD and Nihat Kahveci v Consejo Superior Deportes and Real Federación Española de Fútbol, E.C.R. 2008, page 00000.
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ankarabarrevıew 2009/2 division is limited to three for the 2000/2001 to 2004/2005 seasons. The national referring court sought an answer to the question whether a rule under which clubs may in national competitions use only a limited number of players from non-member States not belonging to the European Economic Area is contrary to Article 37 of the Additional Protocol to the Community-Turkey Association Agreement. The ECJ stressed in its judgement that this question is similar to that referred to the Court in the cases which give rise to the judgements in the Kolpak and Simutenkov cases. Provided in Article 104(3) of the Rules of Procedure, where the answer to a question referred for a preliminary ruling may be clearly deduced from existing case law, the ECJ may give its decision in which reference is made to its previous judgement. The ECJ did so and referred to its previous Kolpak and Simutenkov judgements in its decision. The ECJ compared Article 38(1) of the Association Agreement with Slovakia and Article 23(1) of the Communities-Russia Partnership Agreement with Article 37 of the Additional Protocol to the Community-Turkey Association Agreement. The ECJ observed that all these provisons are directly effective so that they may be relied on by individuals before the national courts and these provisions prohibit Member States in clear, precise and unconditional terms from discriminating, on grounds of nationality, against workers from the non-member State concerned regarding their conditions of work, remuneration and dismissal. After all, when the ECJ took all the things mentioned above into consideration, it concluded that Article 37 of the Additional Protocol and Article 10(1) of Decision 1/80 must be interpreted as to preclude the application to a professional sportsman of Turkish nationality legally employed by a club established in a Member State, of a rule laid down by a sports association in that State that clubs are authorized to field, in competitions organized at the national level, only a limited number of players from non-member States which are not parties to the Agreement on the European Economic Area. One last remark about the Kahveci case can be that Juan de Dios Crespo, the lawyer in charge, informed us that he has been notified that the Spanish Court followed the ECJ’s decision. VI. CONCLUSION With the 2004 enlargement of the European Union on 1 May 2004, the Union gained ten more Member States. Slovakia was one of these ten Member States, so as a corollary to this the treatment of Slovakia as a non-member State is history. The European Court of Justice’s judgement in the Kolpak case, before Slovakia’s accession into the European Union, lit the way for the Simutenkov case. Both these cas-
The European Court of Justice’s Ruling ın the Kahveci Case Lights
es encouraged and strengthened the hopes of third-country nationals who share a common fate with Marcos Kolpak and Igor Simutenkov. Today, Nihat Kahveci, who -unofficially- ranked as the top football player of the year 2004 in Spain,18 is the pioneer for future Turkish national professional sportsmen. Essentially, the ECJ’s ruling in the Kahveci case was an expected decision. The reason why this ruling had broad repercussions is in its being the very first and great white hope for other Turkish national sportsmen who do not hold a professional player’s license identical to the license held by Community players. It is clear that the Communities-Turkey Association Agreement and its integrated Additional Protocol, together with Decision No 1/80 of the Association Council, precludes the application, to a professional sportsman of Turkish nationality legally employed by a club established in a Member State, of a rule drawn up by a sports federation of a European Member State under which clubs are authorized to field, in competitions at national level or during the league or club matches, only a limited number of players from non-member countries which are not parties to the EEA Agreement. Consequently, the European Court of Justice’s ruling in the Kahveci case lights the way for other Turkish national sportsmen in the European Union who are being discriminated against on the basis of their nationality.
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http://spor.ekolay.net/Haber.asp?PID=2923&HaberID=525044.
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What Civil Law Attorneys Should Know About the Common Law – Part II ■■ by Larry D. White*1
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ne of the most distinguishing features of the common law is the concept of the lay jury – ordinary people deciding the portions of the case. The function of the jury is two-fold: to decide the facts of the case based on their common sense and to decide whether or not certain behavior is rationale or not based on their experience in society. One of the most asked questions is how jury members are selected. Although it varies from place to place, it often involves a double random process and then a third phase to root out any biases. Some jurisdictions will start with a list of citizens – like the voting list or the driver license list – and select people randomly to report for jury duty. Once at the courthouse, they are again randomly selected for individual trials. By the way, the document ordering a person to the courthouse for jury duty is called a “summons” or a “subpoena” (“under penalty”). If the person ordered does not show, they can be brought by the police and jailed or otherwise punished. Jury duty is a serious civic duty and must be performed in accordance with the law; deviations from jury duty standards are punished by the judge in the case. Once in the courtroom, potential jurors are questioned individually about potential bias in a process called “voir dire” (“to speak the truth”). If they know anyone connected with the case – the judge, defendant, prosecutor/plaintiff attorney or defense attorney – they may be excused for cause (valid reason). Otherwise, they are asked questions to determine if they have any bias that would affect the case. If such bias is shown, they are again dismissed for cause. As a final * Ankara University, Faculty of Law, Lecturer for Legal English.
What Civil Law Attorneys Should Know About the Common Law
step, each side may dismiss a number of jurors until the jury is the right number – normally 12. No bias is required to be shown to be dismissed at this stage and the choice of jurors to select for removal can be a matter of strategy for the attorneys. In the end, the jury will normally be composed of non-legal professionals. In fact, attorneys in a case will often dismiss a lawyer who may have been randomly selected because they fear that the jury members will automatically defer to the lawyer rather than making up their own minds. However, it is not necessary to have legal training to be a jury member for two reasons: the judge will tell them all the law they need to know and the judge will ensure that only reliable evidence is shown to the jury. The rules of evidence in a common law jurisdiction need to be fairly stringent because of the jury. In a non-jury jurisdiction, the judges are well-trained in the evaluation of evidence so a lot of the decisions regarding the credibility of evidence can be left to the discretion of the judge. However, for the jury, we need to make sure that the evidence they see is reliable. For that reason, a fairly detailed set of rules of evidence are used to control the types of evidence that the jury sees. Generally, any evidence that bears on the case can be admitted – relative evidence has the ability to either prove or disprove an element of the case – its “probative value.” However, if the evidence can be unfairly prejudicial, and if the prejudicial value outweighs the probative vale, then the judge may exclude (not admit) the evidence. One particular type of evidence can be excluded because it is considered to be inherently unreliable – and that is “hearsay” evidence. It is called hearsay because it is relayed from a third person – the witness “heard” it and now “says” it in court. The inherent reliability of such testimony (did the witness hear it right and remember it right?) led to the creation of a double-tiered use – if it is to be used to prove the content – it is not generally admissible – but if it is to be used for any other reason, it could be admissible. Any adult is considered to be competent to be a “lay witness” (ordinary witness) to testify as to something that they personally sensed – saw, heard, tasted, smelled, or felt. However, an expert witness is allowed upon the request of one party, and approved by the judge, after the other party has had a chance to object. Unlike civil law jurisdictions where the court will select the experts, normally both sides bring their own experts. The jury believes whichever one they want. The ultimate control of the trial is the responsibility of the judge who is there to make sure that the trial is fair. The admission of evidence is one way he or she does this so that the jury can make a sound decision based on reliable evidence.
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ankarabarrevıew 2009/2 LEGAL ASSISTANCE FOR THE VICTIMS OF HUMAN TRAFFICKING A Symposium on the issue of “Human Trafficking: Providing Legal Assistance to the Victims” was organized on 29 May 2009 in the Ankara Bar Association Training Center (ABEM) in collaboration with the International Organization for Migration (IOM). In the symposium, the socio-psychological dimension of human trafficking, where this act stands as a crime under the national positive law, how it is regulated by laws, and how it is combated and prevented by national mechanisms were topics discussed from both a legal and a criminal perspective. The president of Ankara Bar Association, A. Vedat Ahsen Coşar, made a speech in the symposium, in which the representatives of Sweden and the Dutch Embassies also participated, and he mainly pointed out that the elimination of this dis-
graceful act in which the human being is treated inhumanely is the duty and responsibility of all people, all public and private institutions and of all states. President Coşar also mentioned the contributions which the Ankara Bar Association (ABA) has been making in combating human trafficking and emphasized that the ABA has been working in collaboration with the IOM since October 2004, that they have been setting up and carrying out projects on this matter, that the ABA has been fully supporting the projects proposed and carried out by the IOM and that the bars of the countries which are members of the Black Sea Countries Bar Association were also included in combating human trafficking for the purpose of achieving greater results in the international arena.
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In the panel on “Crimes against Humanity and International Criminal Court,” organized by Human Rights Center of the Ankara Bar Association, Turkey was criticized for not recognizing the jurisdiction of the International Criminal Court (ICC). The president of the Human Rights Center, Attorney Kemal Akkurt, acting as the moderator of the panel, began his words with strong criticism against Turkey’s not recognizing the jurisdiction of the ICC. He said: “Up until now, 139 countries, including African and South American countries, have signed the Rome Statute; however Turkey has not signed yet and thus has not recognized the jurisdiction of the ICC. The opposing views, i.e. the opinions against signing of the Statute are mostly due to not truly under-
standing the duties and competency of the Court. Although the new Turkish Penal Act regulates genocide and crimes against humanity (Articles 76, 77, and 78) under the heading of “International Crimes,” the matter of Turkey still not recognizing the jurisdiction of the ICC constitutes not only a contradiction but also a considerable gap in this context.” Prof. Dr. Mithat Sancar, an assistant professor at the Ankara University School of Law, also took the floor and agreed with Akkurt’s views on the subject by stating “The belief of the ICC being in hands and controlled solely by powerful and dominant countries and thus the attempt to ignore its existence and not recognize its jurisdiction is completely wrong. To think in that way means disregarding, with prejudice to the
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TURKEY SHOULD RECOGNIZE THE JURISDICTION OF INTERNATIONAL CRIMINAL COURT
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ankarabarrevıew 2009/2 concept of the existence of universal justice, or in other words rejecting the pure justice away from the governance (pressure) of the powerful ones. The ICC and the universal justice, despite its all deficiencies, bring out a considerable possibility for the powerless ones to claim and grant their rights through legal means. Therefore the ICC and its existence should be handled and considered in this context.” The answer of why Turkey does not recognize the jurisdiction of the ICC was given by the President of Human Right Foundation, Attorney Öztürk Türkdoğan. He stated that “There is a prejudice in Turkey having its roots in the Ministry of Justice: It is the mistrust of the Court’s functioning.” If one would look into the Article 13 of the Turkish Penal Act, s/he would see
the provision prescribing that in case either a Turkish citizen or a foreign national in Turkey commits genocide and/or a crime against humanity in any of the countries throughout the world, s/he would be tried in Turkish courts. What this provision means is that our Penal Code grants the judicial power, which indeed is under the jurisdiction of another, to the Turkish courts. Moreover, Türkdoğan emphasized that the Turkish legal-criminal system lacks effective investigation and prosecution methods/procedures and sanctions, thus he expressed his opinion that recognizing the jurisdiction of the ICC would also be a great opportunity for Turkish citizens. “To know the existence of an international criminal judicial power other than judicial power of a citizen’s own country may be a massive inducement for some people to act lawfully. Thus, even such slow progress towards the increasing case law of the European Court of Human Rights indicates that we should place reliance on the international law on this subject.” Türkdoğan announced that the establishment of the International Criminal Bar will be brought to the agenda at the review conference in Uganda in 2010 and called his associates to deal with this matter. Attorney Özlem Altıparmak, branch chairperson of Amnesty International and coordinator of International Criminal Court Turkey Coalition, stated that a state which is not party but accepted the jurisdiction of the Court thereby may still be subject to the exercise of jurisdiction by the International Criminal Court.
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Ankara Bar Gölbaşı Facilities, which has fascinated guests with its new appearance, hosted jurist politicians yesterday. Vedat Ahsen Çoşar, president of Ankara Bar, and the members of Board of Directors and the Parliamentary Commission greeted the guests at the door for the dinner organized by the Ankara Bar Parliamentary Commission for jurist deputies in order to improve the dialog with the Turkish Grand National Assembly. State Minister Hayati Yazıcı, Interior Minister Beşir Atalay, Minister of Justice Sadullah Ergin, president of the Union of Turkish Bar Assosications Özdemir Özok and many jurist deputies attended the meal which was also attracted great attention – and drawn great interest by written and visual media.
The dinner was covered by more than 20 members of the media, including an outside broadcast team of Kanal B who also interviewed the guests during the night and tried to convey the meaning of the meeting
of jurist deputies and Ankara Bar to its audience. The ministries and the deputies, who adjourned the discussions on the mine draft law in the Parliament and attended the meeting of Ankara Bar, talked with President Çoşar of the Ankara Bar, President Özok of the Union of Turkish Bar Associations, and members of the Commission to try to relieve the exhaustion of the day. Deputy Prime Minister Cemil Çiçek attended the Ankara Bar dinner, albeit late due to the parliamentary discussions. Mr. Çiçek had a pleasurable time away from politics with the hosting by President Coşar and members of Board of Directors.
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MINISTERS MET AT THE DINNER OF ANKARA BAR
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ankarabarrevıew 2009/2 THE 30TH ORDINARY GENERAL ASSEMBLY MEETING OF THE UNION OF TURKISH BAR ASSOCIATIONS ENDED ON MAY 24TH AND ÖZDEMİR ÖZOK WAS AGAIN ELECTED PRESIDENT OF THE UNION OF TURKISH BAR ASSOCIATIONS
24 May 2009 – Özdemir Özok was reelected as the president of the Union of Turkish Bar Associations (UTBA) in the 30th Ordinary General Assembly Meeting of the UTBA. Of the 400 registered delegates, 392 voted in the election. Of these, 387 votes were accepted as valid
whereas 5 votes were found to be invalid. According to these results, Özok was reelected as the president of UTBA by acquiring 277 votes. Following Özok, was Cemal Inci, the president of Yalova Bar Association, who won 141 votes. The new com-
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The new elected UTBA committees of administration, discipline and audit visited Anitkabir on 30 May 2009 and they stood in silence in the presence of the tomb of the founder of the Republic of Turkey, Mustafa Kemal Ataturk. During the visit that started at 13:30, the president of UTBA, Özdemir Özok, wrote the paragraphs below into the special registry of Anıtkabir: “ATATÜRK THE GREAT, We are in your presence with respect as the newly elected committees of administration, discipline and audit of the UTBA. We are experiencing a movement in which all institutions and notions of the Republic are being eroded and emptied, the values and principles
of human rights, democracy, rule of law and state of law are being used and interpreted for some groups’ selfinterest, the common values such as our country, flag, national identity, independency, indivisible integrity are being made dirty unmercilessly while facing history and carelessness is too common. The people of the country do not ever deserve these experiences. Undoubtedly, the country will be rid of this movement by the bedrock discretion of our nation and the illuminated way you have shown us. We do not have any doubt we will achieve this because attaining the ideals of being the enlightened, contemporary and independent country that you shown us is our sole goal. We renew our loyalty to your principles and reforms once again with this sense and faith and we memorialize your mighty memorial with respect.”
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mittees of administration, discipline and audit of UTBA were comprised as indicated below. [THE VOTES DON’T ADD UP RIGHT!]
