September 17, 2021
Aytekin Kaan Kurtul is a PhD candidate in the field of law at Middlesex University, London. His research interests include freedom of political expression, children’s right to free speech, presumption of innocence, peoples’ right to economic self-determination and unilateral coercive measures.
In the loving memory of my uncle, Orhan Kaçmaz (28. 02. 1957 – 16. 06. 2021), a die-hard Beşiktaş fan.
Background and facts
Football has always been more than just a game. This has never been truer for Turkey where politics and obscure cults have been deeply entrenched in the management of the lucrative football industry since the late 1990s. Hence, when the European Court of Human Rights (hereinafter “ECtHR” and “the Court”) received the applications of two executives of a popular sports club, it had to consider not only the structure of a sports governing body, but also a series of trials held in a volatile political environment. In consequence, in order to understand the significance of the ECtHR’s recent judgment in Ekşioğlu and Mosturoğlu v Turkey, it is important to recall what happened after the police raided the house of a 58-year-old businessman in 2011.
The man in question is Aziz Yıldırım: the (former) President of Fenerbahçe – one of Turkey’s biggest sports clubs. As it was later revealed, his phone had been tapped by the police due to Yıldırım being “suspected” of having “set up an armed criminal organisation” as per Article 220(3) of the Turkish Criminal Code. When his house was raided on 3 July 2011 with a large host of cameramen, it appeared as if the police were looking for illegal weapons. Subsequently, video clips of ballistics experts examining guns allegedly belonging to Yıldırım surfaced in pro-government media which depicted Yıldırım as the “head of an armed gang”. Not long after, it became clear that the video clips were manipulated as the guns in question did not belong to Yıldırım. Moreover, even though he was eventually charged with match-fixing and providing incentive bonuses, he has never been charged under Article 220(3). Nonetheless, in a clear violation of Turkish law and with complete disregard for the judgment of the ECtHR in (mutatis mutandis) Craxi v Italy (no 2), Turkish authorities continued to allow the pro-government press (which, at the time, included media affiliated with the Gülen cult) to disseminate information portraying Fenerbahçe executives as criminals. Consequently, even before the issuing of a bill of indictment, the Turkish Football Federation (hereinafter “TFF”) was pressured by both the media and the board of Fenerbahçe’s arch-rivals, Galatasaray, to punish Fenerbahçe swiftly.
It was in this climate that the applicants, (former) Fenerbahçe executives İlhan Ekşioğlu and Şekip Mosturoğlu, were subjected to disciplinary proceedings before the TFF. The TFF’s judicial structure consists of two levels of jurisdiction: the Professional Football Disciplinary Committee (hereinafter “PFDK”), which is the legal committee of first instance, and the Arbitration Committee which receives the appeals and whose judgments cannot be reviewed by ordinary courts. Much like Aziz Yıldırım, the applicants’ phones had been tapped by the police for the purpose of criminal proceedings and they were in custody awaiting trial when their dossiers were submitted to the PFDK. Despite the fact that they had not been convicted yet and that criminal proceedings against the applicants were still ongoing, both committees used the transcripts of the intercepted phone conversations as evidence and ruled that both applicants were guilty of attempting to influence match results, which also implied match-fixing and providing incentive bonuses.
As the decision of the Arbitrary Committee was final, the applicants brought the case to the ECtHR arguing that there had been a violation of Articles 6 and 8 of the European Convention on Human Rights (hereinafter “the Convention”). It is worth noting that, before the Second Section of the ECtHR delivered its judgment, the lengthy trials of Fenerbahçe executives were about to come to an end, with the Chief Prosecutor of the Turkish Court of Cassation (Yargıtay) requesting the affirmance of the acquittal of all defendants on all charges. Additionally, in the so-called “counter-trials” of Gülenist public officials, the police chief leading the investigations against Fenerbahçe executives, Nazmi Ardıç, has recently been sentenced to 1972 years and ten months in prison for 86 counts of “slander”, 148 counts of “forgery of official documents” and 74 counts of “violation of the confidentiality of communication” for his involvement in the “sham trial plot” against Fenerbahçe executives.
Prior to expressing its views on the merits of the case, the Court had to establish that Article 6 was applicable rationae materiae in the case at hand. In that regard, the Court admitted that disciplinary measures applied by the legal committees of a sports governing body did not amount to criminal sanctions. However, it nonetheless assessed the matter thoroughly, and addressed the applicability of Article 6 § 1 and Article 6 § 2 separately. As regards the applicability of Article 6 § 1, the Court stressed that it:
“[…] has consistently held that disciplinary proceedings in which the right to continue to exercise a profession is at stake give rise to disputes. Since the applicants’ right to continue to serve as executive officials in the sports club was at stake in the disciplinary proceedings against them, the Court considers that Article 6 § 1 is applicable under its civil head.” (§ 29)
As for Article 6 § 2, the Court pointed out that the disciplinary proceedings and the criminal proceedings against the applicants were intertwined, mainly due to the fact that both the PFDK and the Arbitration Committee had relied exclusively on the transcripts of the phone conversations that had been intercepted by law enforcement officers as evidence. Thus, the Court held that:
“The fact that the disciplinary authorities of the TFF examined the criminal file and based their reasoning solely on its contents – and specifically on the transcripts of the applicants’ tapped telephone conversations which had been authorised for the criminal proceedings – is sufficient to enable the Court to conclude that a strong link existed between the criminal and disciplinary proceedings that rendered Article 6 § 2 applicable in the context of the latter. Thus, the authorities in the disciplinary proceedings, including the Arbitration Committee, were under a duty not to call into question the applicants’ innocence vis-à-vis the offences they had been charged in the criminal proceedings.” (§ 33)
Furthermore, the Court accentuated that Article 6 § 2 also applied in cases where the outcome of a lawsuit of non-criminal nature would affect an individual’s right to respect for presumption of innocence (§ 31).
In addressing the admissibility of the applicants’ claims on grounds of Article 8, the Court rejected the Turkish government’s argument as to whether the applicants had lodged a compensation claim before an administrative court for unlawful interception of their communications. This was a “déjà vu moment” for the Court, as the Turkish government had resorted to a similar argument in Karabeyoğlu v Turkey and the outcome was not any different (§ 46 vis-à-vis § 60 in Karabeyoğlu). In sum, the Court held that the applicants had ultimately exhausted all national remedies.
With regard to the merits of the applications on grounds of Article 6, the Court referred to its previous judgment in Ali Rıza and others v Turkey. Indeed, in Ali Rıza and others, the Court had already established that the legal committees of the TFF were neither independent nor impartial within the meaning of Article 6 § 1 because the members of both committees were nominated by the Board of Directors upon recommendation of the President of the Federation. In Ekşioğlu and Mosturoğlu, the Court further clarified this point by noting that the TFF law did not provide “appropriate safeguards to protect the members of the Arbitration Committee from any outside pressure” and “neither was there a specific procedure” that the parties could follow when they sought to challenge the independence or impartiality of a member of the Arbitration Committee (§ 39). Moreover, in addressing the applicants’ right to the presumption of innocence, the Court referred to the lack of access to a court after the conclusion of disciplinary proceedings (ibid) which, according to the Court, would amount to an infringement of the applicants’ rights as per Article 6 § 1.
As a result of this assessment, the Court unanimously held that there had been a violation of Article 6 of the Convention.
As regards the merits of the applicants’ claims on grounds of Article 8, the Court underscored the fact that the tapping of the applicants’ phone lines “was authorised only for the purpose of a criminal investigation and in particular for the offence of setting up an organisation with a view to committing crimes.” (§ 53) Thus, in relation to the legality of the intervention, it noted that:
“No provision of domestic law allowed for the use of such data as part of a disciplinary investigation. It therefore follows that the use of recordings of their tapped telephone conversations was not in conformity with domestic legislation.” (ibid)
In conclusion, the Court unanimously ruled that there had also been a violation of Article 8 as far as the use of tapped phone conversations in disciplinary proceedings was concerned.
At first view, one may think that the Court’s judgment in Ekşioğlu and Mosturoğlu is an extension of Ali Rıza and others and Karabeyoğlu. In the former case, the Court had indeed addressed the question of whether the TFF’s legal committees complied with Article 6, while in the latter case, it had held that the use of tapped phone conversations as evidence in disciplinary proceedings was not provided for by Turkish law. However, the points that the Court raised in the case at hand with regard to the link between the disciplinary proceedings of sports governing bodies and criminal proceedings are novel. Indeed, as the Court addressed the applicability of Article 6, it emphasised that the committees in charge of disciplinary proceedings should not jeopardise the applicants’ right to the presumption of innocence as they stand trial. This is especially the case when the subject matter of the criminal charges and the disciplinary proceedings is the same.
In light of other controversial “match-fixing cases” across Europe, it is interesting to see how this judgement may influence the interaction between sports law and criminal law. For instance, if this judgment had been delivered prior to the more famous Calciopoli scandal in Italy, the legal committees of the Italian Football Federation (FIGC) would have thought twice before using tapped phone conversations as evidence in disciplinary proceedings, especially before the conclusion of the criminal proceedings against former executives of Juventus and AC Milan like Antonio Giraudo, Luciano Moggi and Leonardo Meani. Similarly, the legal committees of the Hellenic Football Federation (HFF) relied heavily on tapped phone conversations (hence the name “Koriopolis”) in building their case against the executives of Olympiacos Volos and Kavala, and delivered disciplinary sanctions against them before the criminal proceedings had ended.
Of course, the outcome of the case at hand does not mean that the use of tapped phone conversations as evidence in disciplinary proceedings ipso facto constitutes a violation of Article 8. Indeed, as specified by the Court, the reason why the interference with the applicants’ right to respect for private life in Karabeyoğlu and Ekşioğlu and Mosturoğlu amounted to an infringement is the fact that such an interference was not explicitly provided for by Turkish law. This was apparently the case in Italy as well when the Calciopoli scandal broke out back in May 2006, as the old Italian Code of Sports Justice (Codice di Giustizia Sportiva) only referenced those means of proof that the FIGC’s legal committees could obtain on their own. This has changed over the years, however, since Article 57 of the new Code of Sports Justice clearly states that the evidence obtained from ordinary courts can be used in disciplinary proceedings. Therefore, while one could have questioned the legality of using evidence obtained by prosecutors in match-fixing investigations in Italy fifteen years ago, such investigations can nowadays rely on tapped phone conversations without violating the ECtHR’s judgments. These investigations do, however, have to respect the rights of the accused in related trials.
Apart from its potential impact on the application of criminal law and sports law, the Court’s judgment in Ekşioğlu and Mosturoğlu may also influence international sports arbitration and more specifically the Court of Arbitration of Sport’s (hereinafter “CAS”) approach to human rights. Indeed, even though the CAS has addressed human rights issues pertaining to Article 6 of the Convention in several cases, in Fenerbahçe v UEFA (CAS 2013/A/3139), it grossly misinterpreted Article 6 § 2 by holding that “Article 6(2) is only applicable to criminal proceedings and the present proceedings are not of a criminal nature.” (§ 91) Unfortunately, this was not a one-off error by the CAS. In another appeal made by Fenerbahçe against a decision by UEFA (CAS 2013/A/3256), the sitting Panel ruled that “even if the Turkish Supreme Court would acquit (sic) all the persons accused, this would not have any influence on the conclusions of the Panel in these appeal arbitration proceedings” (§ 267).
In view of the foregoing, one cannot help but agree with Prof. John G. Ruggie’s FIFA report in which he noted that “while […] the CAS’ 300-plus arbitrators who sit at the peak of the system may be well equipped to resolve a great variety of football-related disputes, they generally lack human rights expertise.” Since the second appeal made by Fenerbahçe was directly linked to Ekşioğlu and Mosturoğlu, one may hope that the CAS arbitrators will take notice of the Court’s judgment and rectify their approach in future cases.
Finally, one could argue that the applicants failed to seize the opportunity to argue that the documents (including fake conversations) delivered to the press by Turkish authorities during both the disciplinary and criminal proceedings also constitute a violation of Article 6 § 2 of the Convention. The Court’s previous judgments in (inter alia) Bédat v Switzerland and the aforementioned Craxi v Italy (no. 2) were clear in establishing that national authorities are subject to a negative obligation not to knowingly share information protected by Article 8, as well as to the positive obligation to guarantee the effective protection of the accused person’s rights. As a consequence, the Court was unable to assess one of the most crucial aspects of the “Fenerbahçe case”, which could have strengthened the applicants’ position before both national courts and bodies like the CAS.
Football is more than just a game. Its protagonists willingly place themselves under the close scrutiny of the public and politics is more often than not involved in the management of the industry. As such, it is imperative that state authorities, sports governing bodies, and the arbitrators of international courts of sports arbitration do their utmost to respect the principle of the presumption of innocence when they deal with cases involving individuals standing trial. The example of Fenerbahçe vis-à-vis Ekşioğlu and Mosturoğlu may indeed seem extreme due to the ever-changing political conditions of Turkey, but it also demonstrates that both individuals and clubs may sustain irreparable damage when the former are “punished” for crimes they may have never committed.
As brilliantly expressed by William Blackstone in the Commentaries on the Laws of England, “it is better that ten guilty persons escape than that one innocent suffer.” Hopefully, the Court’s judgment in this case will serve to bring about a better understanding of this famous ratio by all judicial bodies.
 The affluent and influential religious cult led by US-based Islamist cleric Fethullah Gülen. Initially an ally of President Erdoğan, Gülen was accused by the former of having orchestrated the failed military coup of 15 July 2016. He is currently labelled “the leader of the Fetullahist Terrorist Organisation (FETÖ)” by Turkish authorities.
 In Greek, the name for “phone tap” or “bug” is “κοριός” whereas the addition of “πόλης” is a nod to the Italian match-fixing scandal, Calciopoli.