Forum Freiheit-für-Marco.de

[XY-Markus]

Dear all,

I've read and heard quite a few comments on the perceived speed with which cross-border judicial assistance is rendered by the UK, and some comments go as far as to blame the perceived slow work by the UK for the sluggishness of the criminal proceedings against Marco.

As you know, I'm not particularly fond of stereotypes, and I do not readily offer opinions on matters I don't have sufficient insight into. So to offer an objective outside view, I would like to share some of my experience with UK judicial assistance proceedings, particularly with taking evidence on commission, and the conclusions I'm drawing from that experience.

In my work as corporate counsel, I recently supported a rather complex intellectual property infringement litigation originating in Germany, and part of the corresponding court proceedings were judicial assistance requests to Austria, Italy, and the UK. For the UK, we requested the taking of evidence from six witnesses.

The motion to collect evidence included a questionnaire with 494 questions that was more than 150 pages long. It pertained to highly complex technical questions that often necessitated lengthy explanations by the witnesses. The UK had completed the request and delivered the certified translations of the transcripts of the evidence hearings within six weeks of the submission my application. All in all, the transcripts, which had been recorded verbatim, amounted to approx. 1.800 pages (and the volume is not astonishing, considering that the evidence hearings lasted approx. ten days). This kind of speed is quite remarkable, at least by my standards.

In addition, the judge presiding over the evidence hearings sent me (and counsel for the opposing party) the English verbatim transcripts by e-mail at the conclusion of each session to keep me up to speed, even though we were represented by counsel in all hearings, and the judge could certainly have relied on our counsel to relay to me a summary of each session.

Austria, incidentally, completed the request within three weeks, but of course, there were no translations necessary. Italy took ten weeks.

While I concede that the proceedings outlined above and those Marco is facing are not identical - mine was a civil proceeding, not a criminal investigation, after all, my experience is diametrically opposed to the notion of the UK being slow to respond to such requests. Lawyer colleagues in the UK with whom I have shared this experience confirm the same. They have no explanation why a comparatively simple taking of evidence with regard to the events of one night should take 6+ months.

I cannot, of course, be sure whether the slow proceedings are due to Turkey handling the request sloppily, or whether the delay was caused by reasons directly or indirectly attributable to the alleged victim, but to me it seems clear the UK legal system is not at fault, and this does not lead me to have high expectations for the next hearing on Friday.

Kind regards,
Markus

[Google]

[Henning]

As far as I have heard the Turkish judge issued the rogatory letters not earlier that the beginning of August. However, these are only rumours.

[XY-Markus]

Henning,

this would certainly be consistent with the sequence of events, given that any motion would need translating which would take additional time. The point you're raising corresponds nicely with another issue I haven't been able to fully understand in this case - I'm referring to the seemingly passive role of the prosecutors.

I haven't been able to ascertain whether the proceedings in Turkey are controlled by a panel of examining magistrates and only those judges have the power to order investigative measures; however, given the many statements that indicated the close resemblance of the Turkish and German codes of criminal procedures I tend to assume this is unlikely. If the proceedings prior to the arraignment are indeed controlled by the prosecutors, it seems odd to me that the only investigation ever to be conducted would be pursuant to orders of the court.

In Germany, prior to arraignment, the state attorney is responsible for conducting the investigation and using any such investigatory means as are stipulated by the code of criminal procedures (in principle, this also applies during the actual trial, but the responsibility is then shared with the court). Especially in cases where a suspect is held on remand, the investigations are to be expedited to the extent at all possible, and the state attorney would certainly order police to take evidence and have motions to take evidence on commission abroad issues forthwith, as appropriate. This doesn't seem to have happened here.

The image this conveys to me, and please permit me to be slightly more cynical here than usual, is that of a panel of judges that, a few minutes prior to the commencement of each session, are handed the case files, hold a session that is not aimed at conclusion or at a speedy resolution of any open issues they may see, and are chiefly interested in getting the case off their desks for as long as possible if they can't nail it down through a verdict - and if that means the defendant will spend a little more time behind bars, so be it.

I couldn't hope for more than to be totally mistaken here, but this is the impression I get, and this is what severely contributes to limiting my positive expectations for tomorrow's hearing.

Kind regards,
Markus

[Henning]

As far as I understood the collection and discovery of evidence in Turkey seems to be in the hand of the judges as this is the case in Spain because Charlotte has already given her incriminating statement to the police or public prosecutors. However, the medical expert has been heard by the court.

One must not forget either that there are a lot of countries in the world where the presumption of innocence in favour of the suspect is not adhered to in the the legal practice and implimented within the legal culture of the society although this may be stipulated in the criminal procedure rules.

I wonder why Marco´s release on bail seems not to have been discussed in the matter. Well, his father is a taxidriver. So maybe he could not afford it anyway.

[Henning]

The facts I collected from newspaper articles and telecasts lead me to the conclusion that the Turkish court has never requested judicial assisstance from the British legal authorities:

At first, Charlotte seems never to have been summoned by the Turkish court in order to deposit her testimony in person. Due to the fact that a court in a criminal procedure shall seek to take evidence directly, a recourse to other second best means such as the request for judicial assistance is taken after the failure of a hearing.

It is reported that Charlotte was interviewed in England by Interpol - a police authority - and not by a court at the 1st of October. When the interview took place her mother but not Marco´s defence counsel was present (he did not get a notice). The interview is said to be taken on video, and today it is reported that the lawyer (!) of the Turkish family Ömer Aycan handed out the minutes of this hearing to the court. It is reported that today the court ordered an adjournement of another 3 and half weeks due to the fact that this document of allegedly 170 pages is yet to be translated into Turkish.

I cannot believe that this is the way how rogatory letters are handled in Britain regularly. It rather seems that the Turkish court did not ask for judicial assistance and that Charlotte went to the British police voluntarily. The Turkish judges seem to mistrust the use their own official channels and hazard the consequence that this "evidence" is unusuable.

If you take into account that already it took a few months for the court to take up the case (the testimony of the doctor is said to have taken place at the beginning of August) one cannot help but think that this continuing delay is not only due to the incompetence of the court but also by a certain criminal intention of all actors including the Turkish lawyer of the English family and the British family itself.

[Henning]

I have heard in a TV report that the testimony that was furnished by the Turkish lawyer to the court was only a copy because the originals are still sticking in their official channels.