Communicated on 4 April 2018
SECOND SECTION
Applications nos. 2006/13 and 10857/13
İlhan Yüksel EKŞIOĞLU against Turkey
and Mehmet Şekip MOSTUROĞLU against Turkey
lodged on 30 November 2012 and 30 November 2012 respectively
SUBJECT MATTER OF THE CASE
The applications concern the disciplinary proceedings against the applicants, executives of a professional football club in Turkey, on match-fixing charges in parallel to criminal proceedings on identical charges. On 6 May 2012 the Professional Football Disciplinary Board of the Turkish Football Federation (“the Disciplinary Board”), mainly relying on the documents of the criminal investigation files, in particular the records of the telephone conversations of the applicants, found the applicants guilty of attempting to manipulate match results under the Football Disciplinary Regulation. The first applicant received a three-year suspension while the second applicant received a one-year suspension. Both applicants appealed against the Disciplinary Board’s decision to the Arbitration Board of the Turkish Football Federation (“the Arbitration Board”). On 4 June 2012 the Arbitration Board dismissed the applicants’ appeal and upheld the Disciplinary Board’s decision. The Arbitration Board based its decision on an assessment of the applicants’ telephone records, noting that Law no. 6222 on the Prevention of Violence and Disorder in Sports laid out the legal basis for the use of communication records as evidence in disciplinary proceedings. The Arbitration Board’s decision was final and not subject to any judicial review, under Article 59 of the Constitution.
The applicants complain that the Arbitration Board lacked independence and impartiality within the meaning of Article 6 § 1 of the Convention. They argue that the recusal of the Arbitration Board’s president, without disclosing the reasons for doing so, and the powers of the Turkish Football Federation’s management over the Arbitration Board undermined its independence and impartiality. Relying on Articles 6 and 8 of the Convention, the applicants further maintain that they were found guilty of the charges exclusively based on the records of their telephone conversations, which infringed their right to a fair trial as well as their right to respect for their private life and correspondence. They argue in particular that the interception of their communications was not in accordance with the law within the meaning of Article 8 § 2 of the Convention. The applicants also submit that their right to be presumed innocent was violated on the grounds that they were found guilty by the Turkish Football Federation before the criminal proceedings on identical charges were over. Lastly, the first applicant complains about his inability to challenge the Arbitration Board’s decision before the domestic courts.
QUESTIONS tO THE PARTIES
1. Was Article 6 § 1 of the Convention, under its civil limb, applicable to the disciplinary proceedings in the present case?
If yes, did the applicants have a fair hearing in the determination of their civil rights, in accordance with Article 6 § 1 of the Convention?
In that connection,
(i) Can the Arbitration Board be regarded as a “tribunal” for the purposes of Article 6 § 1 of the Convention? If so,
(a) Was the Arbitration Board independent and impartial as required by Article 6 § 1 of the Convention? Can the applicants’ doubts about the independence and impartiality of the Arbitration Board be regarded as objectively justified having regard to (i) the powers of the management of the Turkish Football Federation over the election, tenure and remuneration of the members of the Arbitration Board and (ii) the non-disclosure by the president of the Arbitration Board of the grounds for his recusal, which allegedly deprived the applicants of the possibility to request the removal of other members of the Board.
The Government are invited to clarify whether, under the legislation in force at the time of the proceedings, the applicants were able to challenge the president’s decision to recuse himself and to request the removal of other members of the Arbitration Board?
(b) Having regard to the fact that the recordings of the applicants’ telephone conversations played a decisive role in the decision of the Arbitration Board although the applicants expressly challenged their admissibility as evidence even in the context of criminal proceedings, did the disciplinary proceedings conducted before the Arbitration Board, as a whole, satisfy the requirements of a fair hearing within the meaning of Article 6 § 1?
(ii) Assuming that the Arbitration Board cannot be regarded as a “tribunal” under Article 6 § 1 of the Convention, was the right of access to court of the applicant in application no. 10857/13 breached on account of his inability to challenge the decision of the Arbitration Board before the domestic courts?
2. Has there been a violation of the applicants’ right to respect for their private life and correspondence under Article 8 of the Convention on account of the heavy reliance of the Disciplinary Board and the Arbitration Board on the records of the applicants’ telephone conversations in their decisions? In particular, was the interference in question in accordance with the law and justified in terms of Article 8 § 2 (see Karabeyoğlu v. Turkey, no. 30083/10, §§ 112-121, 7 June 2016) regard being had to the fact that the enactment of Law No. 6222, introducing the offence of “match-fixing” and allowing for the use of communication records as evidence, post-dated the interception of the applicants’ telephone conversations?
3. Having regard to the reasoning and the wording of the decisions delivered by the Disciplinary Board and the Arbitration Board, was the applicants’ right to be presumed innocent, guaranteed by Article 6 § 2 of the Convention, respected in the present case? In particular, did the disciplinary proceedings, which found it established that the applicants attempted to unlawfully manipulate the result of the matches of their club despite the fact that the criminal proceedings against the applicants on identical charges were still pending before a criminal court, contravene the applicants’ right under that provision?
Application no. 2006/13
İlhan Yüksel EKŞİOĞLU is a Turkish national who was born in 1966, lives in Istanbul and is represented by E. Şen.
Application no. 10857/13
Mehmet Şekip MOSTUROĞLU is a Turkish national who was born in 1966, lives in İstanbul and is represented by N. Karakaya.
Full & Egal Universal Law Academy