Toby Cadman* - Al Jazeera - 03 May 2014

Is it right for a Turkish court to sentence a defendant before it is proven that a crime was actually committed?

A Turkish sociologist and human rights activist has been convicted and sentenced, in her absence, to life imprisonment and it is questionable whether it has been established beyond reasonable doubt that a crime actually occurred. Evidence presented at trial is inconclusive and some experts believe that the tragicincident in 1998 in which seven people were killed was actually an accident rather than a terrorist attack. The case has been compared to the sensational Dreyfus Affair that polarised France at the turn of the 20th century.

On April 30, the Criminal Appeal Division of the Supreme Court of the Republic of Turkey considered the case of Pinar Selek, who has appealed against a previous decision of the Criminal Courts to convict her and sentence her to life imprisonment. That decision is expected on June 11.

In 1998, Selek was accused of supporting the Kurdistan Workers Party (PKK), and thereafter of being involved in a bombing of Istanbul's Egyptian Bazaar on July 9, 1998, which resulted in the deaths of seven people and at least a further 100 injured. It is alleged that the evidence against her was weak and inconclusive. The defence have argued that the case against her is illogical and is in contrast to the forensic evidence presented at trial. At the very least, it has been argued that the evidence presented demonstrates that the incident was the result of an accident, not a pre-planned terrorist attack.

Following the tragic incident in 1998, Selek was detained for two years, amid allegations of torture and ill treatment that led to her provisional release in 2000.

The chronology of events is difficult to follow and has caused the international legal community to question the legitimacy of the proceedings. In 2006, 2008, and 2011, the Istanbul High Criminal Court acquitted Selek of all charges citing lack of credible evidence linking her to the attack. However, the prosecution continually appealed against the acquittal to the Supreme Court, which has in turn quashed the acquittals.

On November 22, 2012, the Court took the extraordinary, and unprecedented step, of reopening the proceedings and convicted her and imposed a sentence of life imprisonment. What was particularly disturbing about this decision was that the new Presiding Judge, having replaced the previous judge, proceeded to sentence Selek without adjourning to a later date to hear from the accused or her lawyers. This extraordinary step is unprecedented in Turkish legal history and has been widely condemned by human rights groups. It is also important to note that Selek was tried in her absence, a process that under the Turkish criminal procedural laws, is no longer permitted.

The continual state of uncertainty, the length of the proceedings and the trial in absentia raise a number of human rights concerns and once again questions the legitimacy of the process. Human Rights Watch, in particular, stated in 2011 that the trial process "…is a perversion of the criminal justice system and abuse of due process".

The chronology of events in the case against Selek is perplexing and even more so when one considers that there appears to be little evidence to suggest that Selek is accused of a crime that never actually happened. It is right that there was an explosion as described; however, rather than a bomb causing the explosion, there are court investigations which largely confirm that there was no bomb, and that the explosion was caused by a gas leak and therefore entirely accidental. It was this forensic investigation that gave rise to her initial release. Further, the other defendant who had accused Selek during interrogation withdrew his statement during the trial.

Amnesty International has stated: "In the absence of any further conclusive and reliable evidence in the case of Pinar Selek, Amnesty International believes that any conviction would be unsound".

There is one expert who suggests that it might have been a crime, it might have been an accident, but he is not sure. The position adopted by the court therefore appears to be, that because there "might" have been a crime it will be treated as such. This is a very unsound basis upon which to rely and certainly not one that should be the foundation for a sentence of life imprisonment.

Before considering the whether judicial process has acted in accordance with the law, the difficult situation faced by Selek is that she is subject to a sentence of life imprisonment for an offence that cannot even be confirmed as actually having occurred. Those who are critical of this process consider that it is wholly inappropriate for anyone to be tried for an offence in such circumstances much less be subject to potential life imprisonment.

The Turkish Government frequently confirms its commitment to human rights; its commitment to democracy and its core principles. However, this case has the potential to undermine those core principles.

In considering the actual judicial process, one must have regard to the bank of criticism that has been levied on the procedural irregularities during the trial. One must also have due regard to fundamental principles of fair trial. It is often stated that it would constitute an abuse of process to put a person on trial in circumstances where the application of the highest standards of due process are no longer possible.

Lawyers acting for Selek have stated that should the Supreme Court uphold the conviction, the case will be taken to the European Court of Human Rights, and the Turkish Constitutional Court.

It is right to say that it is now for the Supreme Court to decide the matter in accordance with Turkish criminal law and applying the relevant human rights treaties to which Turkey is a signatory. In this regard, if the determination is made that there is evidence to suggest that the events of July 9, 1998 constitute a terrorist attack in which nine civilians were killed and hundreds injured and that there is evidence to suggest that Selek was involved, the proper procedure would be for the Supreme Court to overturn the prior conviction and order a retrial before a fresh panel of judges. Any retrial must be before a court that is independent and impartial and before judges that have had no prior involvement in the case. Any evidence called must be subject to the most stringent scrutiny and if it was obtained in breach of fundamental rights it must be rejected. If these criteria are not, or cannot be met, then Ms. Selek should not be put on trial for the fourth time.

It is often stated that adopting the right path is generally not considered to be the easiest path. Turkey is pushing for European integration and rightly so. It is a vibrant and developing economic power built on a system of democracy. There are of course criticisms aimed at the current administration, but its role in the Western and Middle Eastern politics cannot be underplayed. It is hoped that this current chapter does not tarnish the reputation and that Turkey adopts the road less travelled.

The decision of the Supreme Court is to be handed down on June 11. Whatever the outcome, Selek and her family, at the very least, deserve some finality.

* Toby Cadman is an international criminal law specialist. He is a Barrister member at Nine Bedford Row International Chambers in London and a member of the International Criminal Bureau in The Hague.