[TRANSLATION]

...

THE FACTS

The applicant, Mr Bahri Ceylan , is a Turkish national who was born in 1962 . He was represented before the Court by Mr S. Çetinkaya , a lawyer practising in İzmir .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 18 February 1999 the applicant was arrested and taken into custody by the Bursa police in connection with an investigation into the activities of the PKK ( Partiya Karkerên Kurdistan – Workers ’ Party of Kurdistan). He was transferred immediately to the premises of the Antalya security police, the authority in charge of the investigat ion. He was questioned until 23 February 1999, when he signed a statement and admitted carrying out activities within the organisation in question.

On the same day the applicant was interviewed by the Antalya public prosecutor and subsequently by a magistrate, partly confirming on both occasions the statements he had made to the police. The magistrate made an order for the applicant ’ s pre-trial detention . He was accordingly transferred to Nazilli E-type Prison in the Aydın district.

On 11 March 1999 the public prosecutor attached to the İzmir National Security Court (“the public prosecutor”, “the National Security Court”) charged the applicant and six others with being a member of and assisting the PKK. He sought the application of Article s 168 and 169 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713).

On 12 March 1999 the trial began in the National Security Court in the case, registered as no. 1999/74. The first hearing was devoted to purely procedural matters.

The second hearing was held on 22 April 1999 in the absence of the defendants – including the applicant – who had informed the court in writing that they would not be appearing in prote st against the arrest of Mr A. Öcalan , the PKK leader. However , the applicant ’ s counsel , Mr Çetinkaya , submitted that his client had acted against his will out of solidarity with his fellow detainees . The trial judges confined themselves to reading out the indictment and checking that the lawyers present had been duly authorised .

At a hearing on 8 June 1999 in case no. 1999/74 the applicant and his counsel lodged defence pleadings which were read out and added to the file. The judges then asked the defendants to comment on the various statements taken during the preliminary investigation. The applicant said that he confirmed only the statements he had made in the context of his defence pleadings .

Having regard to all the se considerations , the judges decided to join the case in question to case no. 1998/284, which was pending before the same bench.

Later that day the National Security Court resumed its examination of the joined case no. 1998/284. The applicant again appeared with his counsel.

At that hearing, [1] in which a military judge took part, the National Security Court took note of the joinder of case no. 1999/74 and of the content s of the file in that case . The judges subsequently informed the new defendants of all the procedural steps taken previously and read out the documents in the file to the parties, including earlier statements by some of the applicant ’ s fellow defendants implicating him .

The applicant and his counsel challenged all the prosecution evidence in case no. 1999/74, including the statements in question, and , as to the merits, submitted their written pleadings, requesting the judges to endorse th em. The pleadings were added to the file. No other decisive steps were taken that day.

On 18 June 1999 Article 143 of the Constitution was amended with the effect that military judges were barred from sitting as members of national security courts . Further to the consequent amendments made to the National Security Courts Act on 22 June 1999, the military judge on the bench of the Ä°zmir National Security Court was replaced by a civilian judge.

The first hearing in which the new judge took part was held on 29 July 1999 and was attended by the applicant and his counsel. It began with the reading out of all the records of the previous hearings. As Mr Çetinkaya stated that he had nothing to add at that stage of the proceedings, no steps were taken in respect of the applicant. The next hearing was scheduled for 21 September 1999.

On 14 December 1999 the National Security Court found the applicant guilty of being a member of the PKK and sentenced him to twelve years and six months ’ imprisonment. It held that although he had retracted all the statements which the police and the public prosecutor had taken from him , the confessions resulting from his pleadings filed on 8 June 1999 were sufficient to establish that he had indeed been a member of the PKK.

The applicant appealed on points of law. In a judgment of 27 November 2000 the Court of Cassation upheld the impugned judgment.

B. Relevant domestic law and practice

Before 22 June 1999 section 5 of Law no. 2845 provided that one of the three judges sitting in national security courts had to be a military judge (for the legislation in force at the time, see Incal v. Turkey , judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, pp. 1557-60, §§ 26 ‑ 29).

Following the entry into force of Law no. 4390 on the above-mentioned date, military judge s were no longer allowed to sit in the national security courts, which were eventually abolished by Law no. 5190 of 16 June 2004.

COMPLAINTS

The applicant complained, firstly, that he had not had a fair hearing by an independent and impartial tribunal , on account of the involvement of a military judge in part of his trial.

He further complained of the distressing circumstances in which his transfer s between Nazilli Prison and the Ä°zmir National Security Court had taken place . He alleged that as a result he had been unable to defend himself adequately or to speak comfortably with his lawyer.

The applicant alleged a violation of Article 6 §§ 1 and 3 (b) of the Convention .

THE LAW

1. The applicant alleged a violation of his right to a fair hearing on account of the involvement of a military judge in part of his trial in the İzmir National Security Court. He relied on Article 6 § 1, the relevant parts of which provide:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ...”

The Court refers at the outset to the position it recently confirmed in Öcalan v. Turkey ([GC], no. 46221/99, § 113, ECHR 2005-IV) :

“It is understandable that the applicant – prosecuted in a State Security Court for serious offences relating to national security – should have been apprehensive about being tried by a bench which included a regular army officer belonging to the military legal service. On that account he could legitimately fear that the State Security Court might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case.”

Admittedly, the replacement of the military judge by a civilian judge in the course of criminal proceedings cannot in itself redress the institutional problem raised in the instant case ( compare İmrek v. Turkey (dec.), no. 57175/00, 28 January 2003); any doubts as to the lawfulness of the proceedings as a whole must have been sufficiently dispelled after the change in the bench (see Öcalan , cited above, § 115).

The conclusion that may be drawn from Öcalan is that in any given case it is first appropriate to examine the nature of the procedural steps in which the military judge was involved, making a distinction between “preliminary” steps and steps relating to “the merits”. It should then be ascertained whether the steps relating to “the merits” were taken afresh after the military judge had been replaced (ibid., §§ 37, 38 and 117).

An interpretation of these criteria in the light of the relevant facts examined by the Grand Chamber in the Öcalan case would suggest that it is important to determine the role which the steps in the second category may have played in the exercise of the rights of the defence. It must be emphasised that in the hearings complained of in that case the military judge had been involved in important interlocutory decisions, such as the refusal of applications by the defence for the communication of additional documents and for further investigations (ibid., § 40) or the restriction of the time and facilities available t o the lawyers for prepar ing their final submissions (ibid., § 41).

In the instant case, however, the military judge of the İzmir National Security Court cannot be said to have been involved in any decision of that k ind. The most significant steps t aken at the two successive hearings on 8 June 1999 in which the military judge took part – for the last time – consisted in joining the two cases and reading out the statements by some of the applicant ’ s fellow defendants and the indictment accompany ing the file in the joined case no. 1999/74. The applica nt challenged the content s of tho se documents and filed defence pleadings , but it should be noted that the pleadings were examined at the hearings held after the civilian judge had been appointed . [2]

The Court considers that in the instant case the nature of the procedural steps in which the military judge was involved was not such as to require them to be taken afresh by the new bench of the Ä°zmir National Security Court.

It should be pointed out , however, that the new bench held its first hearing on 29 July 1999, by which time neither the applicant nor his counsel could have claim ed to be unaware of the Court ’ s leading judgments on the subject (see Incal , cited above, p. 1572, § 68, and Çıraklar v. Turkey , judgment of 28 October 1998, Reports 1998-VII, p. 3073, § 39). But at that hearing the applicant and his counsel simply stated that they had nothing to add, without even seeking to inform the judges of their alleged concerns about the previous bench, whereas they are now claiming that the steps taken by that bench vitiated the proceedings as a whole.

2. The applicant also complained of an infringement of his defence rights under Article 6 § 3 (b) of the Convention, which provides:

“3. Everyone charged with a criminal offence has the following minimum rights:

...

(b) to have adequate time and facilities for the preparation of his defence; ...”

Notwithstanding the fact that th is complaint does not seem ever to have been raised before the relevant authorities, the Court observes that the applicant has been unable to establish in what respect his transfers between Nazilli Prison and the Ä°zmir National Security Court actually hindered the preparation of his defence, especially as he has not alleged that outside the time s of such transfers he was prevented from preparing his defence in the usual manner through meetings and written correspondence .

There is no evidence to suggest that the authorities in any way restricted the number, length or material conditions of the applicant ’ s meetings with his lawyer or, for example, limited his access to the case file ( compare Öcalan , cited above, §§ 134-149, and the references cited therein). Admittedly, the fact that Mr Çetinkaya was practising in İzmir may have caused some problems. That , however, is a matter of free choice between the applicant and his designated representative, and the Government cannot be held responsible for it .

Accordingly, even supposing that no problem arises under Article 35 § 1 of the Convention, the Court concludes that the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

[1] 1. This part of the sentence and the three preceding paragraphs were rectified on 20 September 2005 following the discovery by the Court of an official document which the applicant had omitted to produce.

[2] 1. This paragraph was p artly rectified on 20 September 2005 as a consequence of the corrections referred to in the footnote on page 2 above .