Individual Application

The Facts

At the material time, the applicant was the chairman of the board of directors of G. Tarım Ürünleri Pazarlama Sanayi ve Ticaret Anonim Şirketi (“the Company”), which was engaged in foreign trade. The Company purchased long and medium grain paddy from a company located in the United States of America and brought it to Mersin International Port on different dates. Following intelligence reports that some of the imported products were genetically modified organisms, samples were taken from the paddy and the products were seized by the officials as part of the investigation initiated by the Chief Public Prosecutor's Office against the company's executives, including the applicant, for acts contrary to Law no. 5977 on Biosafety.

The Scientific and Technological Research Council of Türkiye, which examined the samples, stated in its analysis report that it had found sequences indicating genetic modification. Expert reports prepared by experts from İstanbul Technical University also concluded that the products contained sequences suggesting that they had been genetically modified.

The Chief Public Prosecutor's Office filed a criminal case before the Assize Court, requesting that the applicant and several other persons be prosecuted, and that the seized paddy and rice-related goods be confiscated. In addition, once it was established that the paddy sold by the company to the Ministry of National Defence through a tender had not complied with the Regulation on Genetically Modified Organisms and Products, the Chief Public Prosecutor’s Office brought a criminal case for the prosecution of the applicant and other persons and the confiscation of the goods, and the case was accordingly joined with the other case before the Assize Court.

During the prosecution phase, some reports from a number of laboratories established that the products contained genetically modified organisms, however, it was not clear whether this was due to the rice itself or to contamination by the genetically modified organism. In his defence during the proceedings, the applicant claimed that the contamination of the products with genetically modified organisms could be attributed to transport or storage conditions.

The Assize Court imposed a sentence on the applicant and ruled that the rice in question be confiscated. After the Court of Cassation had upheld this judgment, with rectification, the applicant made an application to the Chief Public Prosecutor's Office of the Court of Cassation to lodge an appeal with the General Assembly of Criminal Chambers of the Court of Cassation (General Assembly of Criminal Chambers). Following an examination of the application, the Chief Public Prosecutor's Office of the Court of Cassation appealed to the General Assembly of Criminal Chambers requesting that the decision be overturned. The General Assembly of Criminal Chambers dismissed the appellate request of the Chief Public Prosecutor's Office of the Court of Cassation.

The Applicant’s Allegations

The applicant maintained that his conviction for breach of the biochemical safety regulation based on extended interpretation of the scope of the law, had constituted a violation of the nullum crimen, nulla poena sine lege principle. He also claimed a violation of the right to a fair trial due to an erroneous assessment of the evidence and the provisions of the law, and a violation of the right to property on account of confiscation of the product contaminated with genetically modified organisms.

The Court’s Assessment

In the present case, with regard to the nullum crimen, nulla poena sine lege principle, it was first examined whether the applicant’s sentence formalistically relied on a law. Article 15 § 1 of Law no. 5977, under which the applicant was sentenced, provides that the person who imports, produces or releases into the environment genetically modified organisms and their products in violation of the provisions of this Law shall be prosecuted, and in this context, it has been concluded that the applicant’s conviction formalistically relied on a law.

The nullum crimen, nulla poena sine lege principle may be violated if penal provisions are subject to a broad interpretation that diverges from the very essence of the law. Having examined whether the interpretations of the judicial authorities in the present case were of an expansive nature that deviated from the essence of the law, the Constitutional Court has pointed out that Article 15 § 1 of Law no. 5977 includes the phrase “those who import [genetically modified organisms] and their products in violation of the provisions of this Law ...”. The first paragraph of Article 2 of Law no. 5977 stipulates that the concepts of genetically modified organisms and their products and contaminants are defined separately. In light of these definitions, it is not deemed possible to recognise as a foreseeable interpretation that products containing substances defined as contaminants should be considered within the scope of the offence provided for in Article 15 § 1 of the Law. With regard to the definition of the contaminant in the Law, it has been concluded that it would be a far-fetched deduction to consider the products containing contaminants as falling within the scope of genetically modified organisms and their products and would constitute overinterpretation beyond the ordinary meaning of the Law.

In the present case, the Assize Court held that the concept of genetically modified organisms and their products had included not only products in the nature of genetically modified organisms, but also products contaminated by these organisms. The Assize Court did not attempt to determine whether the paddy was a genetically modified organism or a product contaminated with genetically modified organisms, and ruled that both situations fell within the scope of the impugned offence. The Court of Cassation also held that the sentence imposed had been in compliance with the law. In addition, the General Assembly of Criminal Chambers referred to the definition of “[genetically modified organisms] and their products” and concluded that this definition encompassed products contaminated with genetically modified organisms. In the final assessment of the appeal, it was concluded that the paddy imported by the company of which the applicant was chairman had been contaminated with genetically modified organisms, and a judgment had been rendered on the basis of this finding. In light of this information, it has been determined that the evaluation of the paddy product contaminated with genetically modified organisms as genetically modified organisms and their products is an expansive and unpredictable interpretation that deviates from the very essence of the legal regulation.

Consequently, the Court has found a violation of the nullum crimen, nulla poena sine lege principle.