In the case of Hamdi Akin Ipek v. Turkey, European Court of Human Rights delivered a staggering judgment that was among other things controversial with regard to principle of “Justice should not only be done but should manifestly and undoubtedly be seen to be done” (Lord Chief Justice Hewart, The King V. Sussex Justices; ECHR, Poppe v. The Netherlands, App. no. 32271/04), this is not the only problematic issue with the said judgment though.
Background of the case: The applicant Hamdi Akın İpek is a Turkish businessman, is one of the shareholders of Koza-Ipek group consisting of 18 companies including two tv channels, two newspapers and one radio channel. Over the groups broadcasting policy about “Gezi Park Protests (2013)” and particularly about 17-25 December 2013 corruption probe, and also for providing the opposition figures with a platform to express their opinions, the group was taken over by the Government over an Ankara Peace Criminal Judgeship’s order that was appointing trustees to all 18 group companies.
The said order based on an expert witness report alleging that there was reasonable suspicion of ongoing financial crimes within the group companies. The expert witness report was prepared by three people who were not in the official list of sworn expert witnesses, and handpicked by an Ankara prosecutor in charge of the investigation.
The president of the commission of experts was Ş.E.Ç was very controversial figure. And, among other issues he had been condemned to a custodial sentence for the offences of fraud and forgery however evaded from the sentence through the statute of limitations. Because while his appeal was waiting to be considered the statute of limitations expired.
Relevant Turkish law: According to Code of Criminal Procedures (‘CPC’), the experts shall be chosen from the list that is annually adopted and published the provincial judicial commissions. An expert, whose name is not listed, may be appointed only if the motive of this appointment is explained in the decision of the appointment (Art. 64).
According to arts. 24 and 69 of the same law, parties can ask the exclusion of a certain expert on the grounds that raise doubt concerning his impartiality.
According to Art. 223 § 9 of the CPC the decision to drop the case due to statute of limitation shall not be rendered where a decision of acquittal may be rendered promptly at that stage of the proceedings. And according to well-established case law of the Court of Cassation, the defendant can appeal the decision to drop the case due to statute of limitation if s/he believes the decision of acquittal is required.
Complaint: The applicant among other things complained that his Art. 6 of the Convention rights (right to a fair trial) had been violated, because he was subjected to the said take-over sanction over an expert witness report which was prepared by some-one who was once convicted for of fraud and forgery, and not fully exonerated. The applicant said, the domestic courts did not accept his appeals related to this issue.
The ECHR’s decision: The ECHR which constantly said “even appearances are of importance”, and “justice must not just be done but must be seen to be done”, did not see any problem of expert witness S.E.Ç’s past whose report played main role on taking over the applicant’s companies.
The Court said “As regards expert Ş.Ç., the magistrate examined the complaints against him and indicated that he had not been convicted of the acts complained of. Whatever the applicant may say, the fact that the Court of Cassation had found that the limitation period had expired without ruling on the merits could not constitute recognition of the factual nature of the acts complained of. Moreover, questioning the good character of an expert in the absence of a conviction could raise questions with regard to the presumption of innocence.”
Question: Who does want in his case an expert witness who was once sentenced for fraud and forgery and evaded from being a convicted felon due to statute of limitation?
In the sworn expert witness list of Ankara Provincial Judicial Commission, there are more than 1000 accountancy, tax and financial regulations experts. Having disregard of all those experts, and picking someone with a quite controversial past naturally calls the fairness of the proceedings into question.
In lieu of conclusion: Justice Lord Hodge said “An expert witness enjoys both privilege and also power. The expert’s specialist knowledge entitles him or her to give such opinion evidence which a lay witness may not. That is a privilege. The expert also has power. … With the power which an expert has to influence the decision of a fact-finding tribunal, whether judge or jury, goes responsibility. As some controversial cases have shown, the abuse by an expert of the power which he or she is given can cause serious harm and injustice.”
ECHR’s evaluation that the expert in question is innocent is might be accurate, but this evaluation does not discount the applicant’s overall complaint and questioning of the expert’s character. The expert’s past, when coupled with his nonexistence in the official sworn expert witnesses list, makes “appearance of the proceeding” not reassuring but shady. Therefore, whatever Strasbourg Court ruled, it fails to assure that justice manifestly and undoubtedly was done.