CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 novembre 2020

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text-indent:14.2pt; text-align:justify; font-size:14pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   SECOND SECTION CASE OF KURBAN v. TURKEY (Application no. 75414/10)     JUDGMENT   Art 1 P1 • Peaceful enjoyment of possessions • Disproportionate character of ex tunc annulment of contract and retention of guarantee awarded by mistake due to belated notification about criminal proceedings against procurer • Award of and action under procurement contract constituting a legitimate expectation of a claim and property rights thereunder • Wide margin of appreciation in this area overstepped • Automatic and permanent annulment with no measures alleviating the financial burden placed on the applicant • Requirement that no individual and excessive burden is imposed when procurement authorities correct their mistakes in the interests of the public Art 6 § 2 • Presumption of innocence • No implication of or comment on applicant’s criminal guilt by domestic courts handling contractual dispute   STRASBOURG 24 November 2020   FINAL   19/04/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kurban v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Jon Fridrik Kjølbro, President,   Marko Bošnjak,   Valeriu Griţco,   Egidijus Kūris,   Pauliine Koskelo,   Arnfinn Bårdsen,   Saadet Yüksel, judges, and Stanley Naismith, Section Registrar, Having regard to: the application against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr   Dursun Ali Kurban (“the applicant”), on 22 September 2010; the decision to give notice to the Turkish Government (“the Government”) of the complaints concerning Article 6 § 2 and Article 1 of Protocol No. 1 to the Convention and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 13 October 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the annulment of the applicant’s public procurement contract and forfeiture of his guarantee on the grounds that an indictment against him had been filed with a criminal court in relation to an offence concerning previous public procurements. THE FACTS 2.     The applicant was born in 1947 and lives in Trabzon. He was represented by Mr Y. Kurban, a lawyer practising in Istanbul. 3.     The Government were represented by their Agent. 4.     The facts of the case, as submitted by the parties, and as they appear from the documents submitted by them, may be summarised as follows. I.     Crimınal ProceedinGs agaınst the applıcant 5.     On 15 March 2006 the applicant was questioned by the police on suspicion of having been involved in manipulating several public procurement processes. The applicant was released the same day after his questioning. The applicant submitted that a legal aid lawyer, A.B., had been appointed to be present during his police questioning. The Government did not contest this fact. 6.     It appears that on 10 July 2006 the public prosecutor filed an indictment with the Trabzon Assize Court, accusing the applicant and others of organised crime in relation to the corruption of six public procurement processes. The dates of the tenders in respect of each of those procurement processes were 11 November, 12, 26 and 30 December 2005, and 4 and 30   January 2006. The applicant was accused of bid-rigging in the tenders held on 12 and 30 December 2005 and 4 January 2006. 7.     On 24 July 2006 the Trabzon Criminal Assize Court issued a decision on jurisdiction, holding that the Erzurum Criminal Assize Court was competent to examine the case. This decision counted as the formal indictment. 8 .     The indictment and the notice of proceedings were served on the legal aid lawyer, A.B., on 26 July 2006. 9.     The applicant submitted that he had never been notified of the proceedings himself and that he had become aware of the criminal proceedings only when his public procurement contract was annulled (see paragraph 17 below). 10.     At the time of the parties’ submissions to the Court, the criminal proceedings were still pending before the domestic courts. II.     TENDER and PROCUREMENT CONTRACT 11.     On 19 September 2006 the Trabzon Regional Directorate of the State Hydropower Works (“the Trabzon Directorate”) put out to public tender the construction of a flood-prevention scheme for a local river basin. 12.     The applicant participated in the tender jointly with his partner, İ.Ç., who was designated as the lead contractor. 13 .     The applicant and İ.Ç. signed a public procurement contract on 31   October 2006 when it was announced that they had won the tender. Under the terms of the contract, the contractors were required to deposit a guarantee equivalent to 6% of the value of the contract, which was 5,924,905,58 Turkish liras (TRY – approximately 3,202,651 euros (EUR)) at the time), to ensure the contract would be fulfilled. Thus, at the signing of the contract, the applicant and his partner paid approximately the amounts of TRY 160,000 and 200,000 respectively as guarantees (approximately EUR 87,484 and 110,000 at the time). Under the terms of the contract, the guarantees would be returned to the applicant and his partner on the successful completion of the contract and provided that social security payments and taxes arising from the carrying out of the contract had been fully paid. 14.     On   8 November 2006 the construction began in the local basin. During the construction, the applicant and his partner issued three construction progress reports [1] , demonstrating the progress achieved in the project and the corresponding amounts they were entitled to recover from the Directorate. These were accepted and signed off by the procurement authority. 15.     On 15 January 2007 the Erzurum Criminal Assize Court notified the Trabzon Governor’s Office of the names of the people and the dates on which the indictment had been served in connection with public procurement offences. The applicant’s name and the date on which the indictment had been served on A.B., (see paragraph 8 above) were on that list. A.B. was indicated as the applicant’s lawyer. 16.     On 25 January 2007 the Trabzon Governor’s Office forwarded the information of 15 January 2007 to the Directorate and notified it that individuals who were being prosecuted in relation to public procurement offences were prohibited from participating in public tenders until the criminal proceedings were over. 17 .     When the Trabzon Directorate was informed of the charges against the applicant, it annulled the contract of 31 October 2006 by a decision of 25   January 2007 and informed the applicant and his partner of the decision to retain the guarantees indefinitely. In its decision, it referred to the relevant sections of the Public Procurement Act (Law no. 4734) and the Public Procurement Contracts Act (Law no. 4765) as well as the practice direction for the application of Law no. 4734 ( tebliğ ). III.     Proceedıngs before the trabzon commercıal court 18.     On 14 February 2007 the applicant and his partner lodged an action with the Trabzon Commercial Court, challenging the annulment of their contract and seeking the return of their guarantee. The applicant argued that the annulment of the contract and forfeiture of his guarantee solely on the basis that he had been charged with a criminal offence and in the absence of a final judgment establishing his guilt was not compatible with the principle of presumption of his innocence. He further argued that he had not been made aware of the criminal proceedings brought against him. He submitted in that connection that the indictment had not been served on him despite what was provided by Article 176 of the Criminal Procedure Act. Had he been apprised of the proceedings against him, he argued that he would have considered not participating in the public tender of 19 September 2006. He also asked the Trabzon Commercial Court to refer the matter to the Constitutional Court to test the constitutionality of sections 58 and 59 of Law no. 4734 and section 21 of Law no. 4735. 19.     On 16 May 2007 the Trabzon Commercial Court decided to refer the matter to the Constitutional Court to test the constitutionality of sections 58 and 59 of Law no. 4734 and section 21 of Law no. 4735, noting that there were serious doubts as to the compatibility of those provisions with the rule of law, equality and the principle of presumption of innocence and the Convention. 20.   However, as the Constitutional Court did not examine the questions referred to it by the Trabzon Commercial Court within the time-limits provided by law, the Trabzon Commercial Court decided to resume its examination of the case on the basis of the impugned provisions. 21.     Thus, on 27 January 2009 the Trabzon Commercial Court dismissed the action brought by the applicant but granted his partner’s claims in respect of the latter’s guarantee, holding that the applicable law and regulations at the time justified the exclusion of the applicant from the procurement process and the forfeiture of his guarantee to the authorities. The court noted that the applicable provisions did not allow for an exception from the rules when a contractor did not know that a criminal case had been brought against him before he had entered into a procurement contract. According to that court, when it became apparent that a person was being prosecuted for charges relating to a procurement offence, the procurement authorities were obliged to annul the contract and keep the guarantee. As regards the applicant’s argument that he had been unaware of the criminal charges against him before his participation in the procurement process, the court held that the applicant had been questioned by the police in the presence of a lawyer in relation to those charges prior to the bidding process and that therefore he could have acted prudently and refrained from participating in the tender. In that connection, it reasoned that the applicant, who was in the business of participating in public tenders frequently, could have taken into account the possibility that a criminal case could be brought against him. 22.     One of the sitting judges wrote a dissenting opinion, expressing his view that the conclusion with respect to the applicant was contrary to Article 6 § 2 of the Convention. 23.     On 11 March 2009 the applicant appealed against the decision, submitting, inter alia , that he had not been notified of the indictment and notice of proceedings against him and that the serving of those documents on the legal aid lawyer appointed during his police questioning had been unlawful. He further drew attention to the fact that the prosecution authorities had not acted diligently and quickly enough to notify the procurement authorities of the charges against him; as a result, he submitted that he had been penalised through no fault of his own and in contravention of Article 6 § 2 of the Convention. 24.     On 26 June 2010   the Court of Cassation dismissed the applicant’s appeal without responding to his arguments, holding that the Trabzon Commercial Court’s decision had been in accordance with law and procedure.   IV.     Constıtutıonal Court’s decısıon of 14 January 2010 25.     In its decision of 14 January 2010, published in the Official Gazette on 28 April 2010, the Constitutional Court dismissed an objection concerning the constitutionality of section 59 of Law no. 4734 by nine votes to two and unanimously in respect of section 21 of Law no. 4735. 26.     The scope of the Constitutional Court’s examination was limited to the part in section 59(2) of Law no.4734 that read “in respect of those persons against whom a criminal case has been brought on account of a criminal investigation in the scope of procurement processes within the scope of this Law ...” and to section 21(1) of Law no. 4735. 27.     As regards the impugned provision set out in section 59(2) of Law   no. 4734, the majority held that prohibiting a person from participating in a public tender on account of pending criminal proceedings against him or her was a preventive administrative measure and did not constitute a penalty or go against the principle of presumption of innocence. The Constitutional Court noted that the preventive measure pursued the legitimate aim of preserving public order and in particular ensuring the security and integrity of the procurement process. Having regard to the temporary nature of the administrative measure, which was equal to the duration of the criminal proceedings in question, the majority took the view that it was not disproportionately restrictive. One of the dissenting judges took the view that the preventive measure, while being characterised as an administrative measure, did not grant any discretion to the administration in its application since it was laid out by the legislature and therefore excluded its judicial review and for that reason was incompatible with the rule that all acts of the administration would be amenable to judicial review. Secondly, in view of the reality that criminal proceedings took a long time, it could not be said that the measure was proportionate. The other dissenting judge expressed the view that the measure was a penalty, which was attached to the fact that criminal proceedings had been lodged. In consequence it was, in his view, incompatible with the presumption of innocence. 28.     As regards section 21(1) of Law no. 4735, the Constitutional Court unanimously held that the retention of the guarantee by the administration when it had become known that the participant had engaged in prohibited acts or behaviour during the procurement process had been lawful since such acts and behaviour had rendered the contract void. The fact that it had not been possible to detect the said acts or behaviour before the signing of the contract had not bestowed an acquired right on the contractors for the contract to be upheld. In a concurring opinion, one member of the Constitutional Court agreed with the bench’s conclusion on separate grounds. According to him, the retention of the guarantee had not been unconstitutional as long as there had been a judicial decision showing that the participant had engaged in prohibited acts or behaviour. Subsequent to a judicial decision, and only as a consequence of conviction, keeping of the guarantee would be a consequence of conviction which was compatible with the general principles of criminal law. RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic law and practice Public procurement regulations 29.     The relevant provisions of the Public Procurement Act (Law   no.   4734) as in force at the time read as follows: Section 11 – Ineligibility to participate in the procurement “The following persons are prohibited from directly or indirectly participating in the procurement process on their own behalf or on behalf of others: a)     Those who have been prohibited by [an administrative decision] or by a court decision from participating in public procurement processes on a temporary or permanent basis in accordance with a provision of this Law or another ... Bidders who participate in the procurement process despite these prohibitions shall be disqualified and their guarantee shall be registered as revenue. Moreover, where a contract is awarded to such a bidder and where his or her ineligibility has not been discovered during the evaluation process, the procurement shall be annulled and the guarantee shall be retained and registered as revenue.” Section 14 – Joint ventures “A joint venture in the form of a consortium or partnership may be created by more than one real or legal person ... Partners in a partnership shall accomplish the work together whereas the members of a consortium may each be responsible for the accomplishment of a specific task ... In the case of a partnership, the partnership agreement must provide for joint and several responsibility of all the partners for the completion of the business venture.” Section 17 – Prohibited acts and behaviours “The following acts and behaviours are prohibited: a)     manipulating or attempting to manipulate the procurement process by fraudulent, coercive or collusive practices, including bribery and conspiracy. b)     Influencing or preventing bidders from participating in the procurement, bid-rigging and other behaviour to influence competition or the procurement decision. c)     Use or attempted use of forged documents or guarantee agreements ( teminat ). d)     Except for the allowed practice of alternative bidding, making more than one offer directly or indirectly, on his or her or others’ behalf. e)     Participating in the procurement process despite the prohibitions listed in section 11.” Section 30 – Preparation of Offers and Bids “... Once an offer has been submitted [to the procurement authority] ... it may not be retracted or modified expect where the conditions of tender have been modified by the procurement authority [ zeyilname ].” Section 40 – Awarding the tender and approval “ ... Before approving the decision to award the tender to the bidder, the bidding authority shall verify whether the bidder is subject to any prohibition to participate in the tender within the scope of Section 58 and annex this verification to the decision to award the tender.” Section 43 – Non-provisional guarantee “A guarantee equivalent to 6% of the tender value shall be required from the winning bidder in order to secure the carrying out of the contract and its conditions ...” Section 44 – Obligation to sign the contract “The winning bidder is under an obligation to sign the contract and secure it with the required guarantee set out in sections 42 and 43. In the event of a failure to sign the contract or meet its conditions, the provisional guarantee shall be retained without any additional action on the part of the [responsible authority]. ...” Section 46 – Procurement leading to the procurement contract “The procurement process shall lead to the conclusion of a contract. All contracts shall be prepared by the [relevant authority] and signed by the contractor and the procurement authority. If the contractor party is a joint venture, all partners must sign the contract ...” Section 58 – Decision to ban bidders from participating in public procurement “Those who are found to have engaged in the prohibited acts or behaviour listed in section 17 of this Law shall be banned from participating in public procurement processes for a period of no less than one year and up to two years depending on the nature of the committed acts or behaviour. Those who won a public contract but failed to sign it, excepting in the case of force majeure , shall be banned from procurement for a period of no less than six months and up to a year. ... In the event where it is discovered during or after the procurement process that a person has engaged in prohibited acts and behaviour, he or she shall neither be allowed to participate in that procurement nor ... allowed to participate in another tender put out by the same procurement authority until the decision to ban them from the procurement process has taken effect. The decision to ban a person from procurement processes shall be given no later than forty-five days from the date when the prohibited act or behaviour has been discovered. This decision shall be forwarded within fifteen days for publication to the Official Gazette and shall take effect from the date of its publication. ...” Section 59 – Criminal liability “A request to initiate a criminal investigation should be lodged with the competent public prosecutors in respect of real or legal persons who have engaged in the prohibited acts and behaviour listed in section 17 that constitute a criminal offence, even in cases where procurement has been completed by the contractor. In addition to the penalty [following conviction], such persons shall [also] be excluded from participating in any procurement processes for no less than one year and up to three years from the date following the administration’s decision to ban the persons temporarily from procurement processes in accordance with section 58 of this Law. Persons against whom a criminal case has been brought on account of a criminal investigation in the scope of procurement processes within the scope this law following the request filed with the public prosecutor under paragraph 1, ... cannot participate in procurement processes. Public prosecutors shall notify the Central Procurement Authority and the relevant professional organisation of the persons who are banned from participating in procurement processes by a court order. ...” 30.     Section 21 under law on Public Procurement Contracts (Law   no.   4735) as in force at the time provided as follows: “In the event that it is discovered after the signing of the contract that the contractor has engaged in a prohibited act or behaviour set out in Law no. 4734, the contract shall be annulled and wound up in accordance with general provisions and the guarantee registered as revenue. Provided that 80% of the contract has been completed and there exists a public benefit in its completion, and one of the following conditions below are fulfilled a)     due to the urgency and lack of sufficient time to start the procurement process anew b)     impossibility to assign the procurement to another contractor c)     the prohibited act or behaviour manifested by the contractor is not of a nature to prevent the contract from being completed, the [relevant authority] may ask the contractor to finish the contract. In this case ... the contractor shall be subject to a penalty equal to the amount of the guarantee and a supplementary guarantee.” 31 .     Section XV of the Public Procurement Circular, issued by the Ministry of Finance and published in the Official Gazette on 25 July 2005 in respect of the application of Law no. 4734 provided, in so far as relevant, as follows: “I. 2.     ... In order for the procurement authority to comply with the verification requirement in the last paragraph of section 40 of Law no. 4734, public prosecutors must communicate to the procurement authority without delay the names of persons against whom a criminal case has been brought or those that have been banned from participation in procurement processes by a court order by dispatching the indictment and the court order respectively. ...” Relevant judicial practice 32 .     In a case involving an administrative decision to exclude an economic operator from procurement processes for a period of two years on account of him having knowingly participated in a tender despite the fact that he was being prosecuted for a procurement-related offence at the time, the Supreme Administrative Court’s General Assembly of Administrative Proceedings Divisions ( Danıştay İdari Dava Daireleri Genel Kurulu ) held that the administrative decision had been unlawful since the economic operator had not known of the prosecution at the time he had participated in the tender (decision of 13 February 2013, E. 2008/3128; K. 2013/480). The General Assembly held in that connection that the economic operator had not been notified of the criminal proceedings against him and that therefore he could not be held accountable under section 59(2) of Law no. 4734. The General Assembly also dismissed the relevant authority’s argument that the economic operator should have been aware of the criminal proceedings against him since he had been asked for a statement in the course of the criminal investigation because, in the General Assembly’s reasoning, not all criminal investigations led to a suspect’s being indicted. Code of Criminal Procedure 33 .     Relevant provisions of the Code of Criminal Procedure (“the CPP”) provide as follows: Article 150 “(1)     The suspect or the accused shall be asked to choose defence counsel to act on his or her behalf. In cases where the suspect or accused declares that he or she is not able to choose defence counsel, ... counsel shall be appointed on his or her behalf, if he or she so requests. (2)     If the suspect or the accused who does not have defence counsel is a minor, or an individual who is disabled to the extent that he or she cannot provide his or her own defence, or is deaf or mute, then defence counsel shall be appointed whether or not he or she has requested representation. (3)     During the investigation or prosecution of offences entailing a sentence of more than five years’ imprisonment, the provision in paragraph 2 shall also be applied. ...” Article 175 “(1)     With the admission of the indictment, the prosecution begins and the criminal case is brought. (2)     The court sets a date for a hearing after the admission of the indictment and summons the individuals who are to be present at the hearing” Article 176 “(1)     The bill of indictment shall be notified to the accused along with a summons to appear before the court. ...” 34 .     The Regulation on the assignment of defence counsel in accordance with Article 150 of the CPP provides as follows:   Section 5 – Assignment of defence counsel “... (2)     If ... the suspect or the accused is being investigated or prosecuted for an offence entailing a sentence of more than five years’ imprisonment, the Bar Association shall be asked to appoint defence counsel irrespective of whether the suspect or the accused has requested such assistance and provided that the suspect or the accused does not already have counsel. ... (6)     Appointment of defence counsel from the Bar Association shall be requested by the authority or the judge in charge of the investigation during the investigation stage and by the courts in the prosecution stage. Section 6 – Principles governing appointments (1)     The defence counsel who has been appointed in the investigation shall preferably be appointed at the prosecution stage. ...” Section – End of mandate “(1)     The mandate of defence counsel shall come to an end: (a)     at the investigation stage, with the decision not to prosecute becoming final, with the pronouncement of the decision on lack of competence or jurisdiction, or in the case of bringing a criminal case, with the acceptance of the indictment [by the criminal court]. b)     at the prosecution stage with the decision on lack of competence or jurisdiction, with the decision on the merits becoming final or with the decision to transfer the case [to another jurisdiction]. c)     with the death of the defence counsel or the suspect or the accused. ç)     with the voluntary appointment of other defence counsel. (2)     Where assistance by defence counsel is mandatory, such defence counsel may not be dismissed.” Compensation Commission 35.     The Compensation Commission was set up in accordance with Law   no. 6384 in order to provide for the settlement, by means of compensation, of applications lodged with the Court concerning length of judicial proceedings and non-enforcement or delayed enforcement of judicial decisions. A full description of the relevant domestic law may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26   March 2013). 36 .     The Compensation Commission’s competence was extended by the presidential decree no. 809 of 7 March 2019, published in the National Gazette on 8 March 2019. Accordingly, the Compensation Commission is now entitled to examine and grant compensation to applicants in cases where the Court has found a violation of Article 1 of Protocol No. 1 without rendering a decision on compensation or in cases where it has reserved the question under Article 41 of the Convention (see Kaynar and Others v.   Turkey , nos. 21104/06 and 2 others, § 24, 7 May 2019). International law European Union Law 37.     European Union Directive 2014/24/EU (“the Directive”) lays down general rules applicable on the award of public procurement contracts. It repealed the previous procurement directive (2004/18/EU) and came into force on 26 February 2014. The Directive contains, inter alia , rules on mandatory and facultative grounds to exclude an economic operator from participating in a procurement procedure. 38.     The following recitals of the Directive are relevant: “... (100)     Public contracts should not be awarded to economic operators that have participated in a criminal organisation or have been found guilty of corruption, fraud to the detriment of the Union’s financial interests, terrorist offences, money laundering or terrorist financing. ... (101)     Contracting authorities should further be given the possibility to exclude economic operators which have proven unreliable, for instance because of ... grave professional misconduct, such as violations of competition rules ... Bearing in mind that the contracting authority will be responsible for the consequences of its possible erroneous decision, contracting authorities should also remain free to consider that there has been grave professional misconduct, where, before a final and binding decision on the presence of mandatory exclusion grounds has been rendered, they can demonstrate by any appropriate means that the economic operator has violated its obligations ... ... In applying facultative grounds for exclusion, contracting authorities should pay particular attention to the principle of proportionality. Minor irregularities should only in exceptional circumstances lead to the exclusion of an economic operator. ... (102)     Allowance should, however, be made for the possibility that economic operators can adopt compliance measures aimed at remedying the consequences of any criminal offences or misconduct and at effectively preventing further occurrences of the misbehaviour. Those measures might consist in particular of personnel and organisational measures such as the severance of all links with persons or organisations involved in the misbehaviour, appropriate staff reorganisation measures, the implementation of reporting and control systems, the creation of an internal audit structure to monitor compliance and the adoption of internal liability and compensation rules. Where such measures offer sufficient guarantees, the economic operator in question should no longer be excluded on those grounds alone. Economic operators should have the possibility to request that compliance measures taken with a view to possible admission to the procurement procedure be examined.” 39.     Articles of the Directive 2014/24/EU read, in their relevant parts, as follows: “Article 57 Exclusion grounds 1.     Contracting authorities shall exclude an economic operator from participation in a procurement procedure where they have established, by verifying in accordance with Articles 59, 60 and 61, or are otherwise aware that that economic operator has been the subject of a conviction by final judgment for one of the following reasons: (a)     participation in a criminal organisation, as defined in Article 2 of Council Framework Decision 2008/841/JHA (32); (b)     corruption, as defined in Article 3 of the Convention on the fight against corruption involving officials of the European Communities or officials of member States of the European Union (33) and Article 2(1) of Council Framework Decision 2003/568/JHA (34) as well as corruption as defined in the national law of the contracting authority or the economic operator; (c)     fraud within the meaning of Article 1 of the Convention on the protection of the European Communities’ financial interests (35); ... 4.     Contracting authorities may exclude or may be required by member States to exclude from participation in a procurement procedure any economic operator in any of the following situations: ... (c)     where the contracting authority can demonstrate by appropriate means that the economic operator is guilty of grave professional misconduct, which renders its integrity questionable; (d)     where the contracting authority has sufficiently plausible indications to conclude that the economic operator has entered into agreements with other economic operators aimed at distorting competition; ... Article 73 Termination of contracts Member States shall ensure that contracting authorities have the possibility, at least under the following circumstances and under the conditions determined by the applicable national law, to terminate a public contract during its term, where: ... (b)     the contractor has, at the time of contract award, been in one of the situations referred to in Article 57(1) and should therefore have been excluded from the procurement procedure; ...” OECD Recommendation 40.     The OECD Recommendation on Public Procurement, which was adopted by the OECD Council on 18 February 2015, provides, in so far as relevant, as follows: “III.     RECOMMENDS that Adherents preserve the integrity of the public procurement system through general standards and procurement-specific safeguards. To this end, Adherents should: ... iv)     Develop requirements for internal controls, compliance measures and anti-corruption programmes for suppliers, including appropriate monitoring. Public procurement contracts should contain “no corruption” warranties and measures should be implemented to verify the truthfulness of suppliers’ warranties that they have not and will not engage in corruption in connection with the contract. Such programmes should also require appropriate supply-chain transparency to fight corruption in subcontracts, and integrity training requirements for supplier personnel. ... XII.     RECOMMENDS that Adherents apply oversight and control mechanisms to support accountability throughout the public procurement cycle, including appropriate complaint and sanctions processes. To this end, Adherents should: ... ii)     Develop a system of effective and enforceable sanctions for government and private-sector procurement participants, in proportion to the degree of wrong-doing to provide adequate deterrence without creating undue fear of consequences or risk-aversion in the procurement workforce or supplier community.” THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 2 of THE CONVENTION 41.     The applicant complained in substance under Article 6 § 2 of the Convention about the annulment of the contract of 31 October 2006 and the forfeiture of his guarantee. Notably, he alleged that those measures had been unlawful and contrary to the principle of presumption of innocence. 42.     Article 6 § 2 provides as follows: “2.     Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” Admissibility The parties’ submissions 43.     The Government considered that Article 6 § 2 of the Convention had not applied to the proceedings before the Trabzon Commercial Court. In their view, those proceedings had not given rise to a “criminal charge” as they had been solely concerned with the question of whether the conditions of the annulment of the applicant’s contract and of the retention of the guarantee had been realised. They furthermore considered the impugned measures to have been preventive in nature irrespective of a finding of guilt. The Government also considered inapplicable the second aspect of the presumption of innocence, which became relevant when proceedings subsequent to criminal proceedings had a link with the latter so as to make the protection enjoyed under Article 6 § 2 relevant in those other proceedings. According to the Government, neither the Trabzon Commercial Court’s decision nor its reasoning had contained an opinion on the applicant’s liability in respect of criminal law. For these reasons, the Government considered that Article 6 § 2 had not been applicable to the proceedings before the Trabzon Commercial Court. 44.     The applicant argued that the authorities had sanctioned him only because a criminal case had been brought against him. In his view, the annulment of his contract and the retention of his guarantee had been a penalty that had derived from the sole fact of his being accused in criminal proceedings. Such a harsh consequence did not coincide with the principle that an accused should be presumed innocent until proved guilty. Furthermore, the applicant considered that his situation had been exacerbated because he had not even known that a criminal case had been lodged against him until the Directorate’s decision of 25 January 2007. The Court’s assessment 45.     Article 6 § 2 safeguards the right to be “presumed innocent until proved guilty according to law”. The Court has acknowledged in its case-law the existence of two aspects to the protection afforded by the presumption of innocence: a procedural aspect relating to the conduct of the criminal trial, and a second aspect which aims to ensure respect for the applicant’s established innocence in the context of subsequent proceedings where there is a link with the criminal proceedings which have ended with a result other than a conviction (see, generally, Allen v. the United Kingdom [GC], no. 25424/09, §§ 93-94, ECHR 2013). Under its first aspect, the principle of presumption of innocence prohibits public officials from making premature statements about the defendant’s guilt and acts as a procedural guarantee to ensure the fairness of the criminal trial itself. However, it is not limited to a procedural safeguard in criminal matters: its scope is broader and requires that no representative of the State should say that a person is guilty of an offence before his guilt has been established by a court ( Konstas v. Greece , no. 53466/07, § 32, 24 May 2011). In that connection, the Court reiterates that Article 6 § 2 applies where a court decision, rendered in proceedings which were not directed against the person concerned in his or her capacity as an “accused” but nevertheless concerned and had a link with criminal proceedings simultaneously pending against him or her, may have implied a premature assessment of the person’s guilt (see El Kaada v. Germany , no. 2130/10, § 37, 12 November 2015 with further references). 46.     As to the period of time during which the presumption of innocence is applicable, the Court reiterates that Article 6 § 2 applies to everyone “charged with a criminal offence” within the autonomous meaning of this notion in the Convention, that is to say as of the official notification given to an individual by the competent authority of an allegation that he or she has committed a criminal offence (see Bikas v. Germany , no. 76607/13, § 30, 25   January 2018) or from the point at which his or her situation has been substantially affected by actions taken by the authorities as a result of a suspicion against her or him (see Simeonovi v. Bulgaria [GC], no. 21980/04, §§ 110-11, 12 May 2017 and the case-law cited therein). 47.     Turning to the circumstances of the present case, the Court notes that the applicant was charged with manipulating several procurement processes in the bill of indictment deposited with the criminal court on 10 July 2006. Following the notification of the criminal proceedings to the procurement authorities, the applicant’s contract was annulled on the grounds that he had been indicted before the criminal courts for procurement-related offences. In the proceedings before the Trabzon Commercial Court in which the applicant sought to challenge the annulment of his contract and the retention of his guarantee, that court upheld the actions of the administration solely on the grounds that the applicant had been indicted. The domestic court itself questioned the compatibility of the applicable domestic law with the Constitution and in particular the principle of presumption of innocence which the applicant enjoyed as a result of being prosecuted. That being so, it upheld the annulment of the applicant’s contract while the criminal proceedings were pending and in the absence of a final conviction. The Court therefore can assess under Article 6 § 2 of the Convention whether the applicant, without having been proved guilty according to law of the charges in the criminal proceedings, was regarded as guilty by the Trabzon Commercial Court in its impugned decision, including the reasoning and language used therein. As a result, Article 6 § 2 is applicable in the context of the civil proceedings at issue. The application is therefore not incompatible ratione materiae with the provisions of the Convention. 48.     Lastly, the Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention nor is it inadmissible on any other grounds. It must therefore be declared admissible. Merits (a)    The parties’ submissions 49.     The applicant argued that the presumption of innocence guaranteed by Article 6 § 2 of the Convention had been violated in the proceedings before the Trabzon Commercial Court in that the fact that he had been indicted at the time of the tender had been the sole factor in that court’s decision. In the applicant’s view, the domestic courts had presumed him guilty in the absence of a conviction. 50.     The Government argued that the Trabzon Commercial Court’s reasoning did not imply that that court had regarded the applicant as guilty of the charges for which he had been indicted. That court only reviewed whether the grounds invoked by the procurement authority had complied with domestic law. Lastly, the Government considered that the language employed by the Trabzon Commercial Court had not breached the applicant’s right to be presumed innocent in respect of the criminal proceedings. (b)    The Court’s assessment 51.     The principle of presumption of innocence will be violated if a judicial decision concerning a person charged with a criminal offence reflects an opinion that she or he is guilty before she or he has been proved guilty “according to law”. It suffices, even in the absence of any formal finding, for there to be some reasoning suggesting that the court or the official regards the accused as guilty (see, inter alia , Allenet de Ribemont v.   France , no. 15175/89, § 35, Series A no. 308; Daktaras v. Lithuania , no.   42095/98, § 41, ECHR 2000-X; and El Kaada, cited above, § 52). 52.     A fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration – in the absence of a final conviction – that an individual has committed the crime in question (see Güç v. Turkey , no. 15374/11, § 38, 23   January 2018). The latter violates the principle of presumption of innocence while the former has repeatedly been considered as complying with Article 6 (ibid., and El Kaada , cited above, § 54). 53.     The Court is therefore called upon to determine whether in the present case the Trabzon Commercial Court through its reasoning or the language it used allowed doubt to be cast on the applicant’s innocence, despite the fact that he had not been proved guilty by a criminal court. 54.     The Court notes at the outset that the subject matter of the dispute before the Trabzon Commercial Court was limited to whether the annulment