Information Note on the Court’s case-law No. 77

July-August 2005

Ceylan v. Turkey (dec.) - 68953/01

Decision 30.8.2005 [Section II]

Article 6

Criminal proceedings

Article 6-1

Impartial tribunal

Military judge on the bench of a state security court during part of the trial: inadmissible

In March 1999 the applicant was charged with being a member of and assisting the PKK. Prior to June 1999, a military judge participated in hearings of the State Security Court. The first hearing was devoted to purely procedural matters. During the second hearing the trial judges confined themselves to reading out the indictment and checking the validity of the lawyers’ authorities to act. During the final hearing in which the military judge participated, the judges took note of the joining of the applicant’s case file and of its content, before informing the new defendants of all the procedural steps performed up to that point and reading out the documents from the case file to the parties, including earlier statements from some of the accused implicating the applicant. The applicant and his counsel contested all the prosecution evidence contained in the case file, including those statements, and submitted their written observations, which were added to the case file. No other decisive steps were taken that day. Following the constitutional reform preventing military judges from sitting on the bench of the State Security Court, the military judge was replaced at the next hearing by a civilian judge. The first task performed on that occasion was the re-reading of the transcripts of all the previous hearings. The applicant received a prison sentence.

Inadmissible under Article 6(1) – The fact that the military judge had been replaced by a civilian judge during the criminal proceedings was Not in itself sufficient to overcome the institutional problem raised in the instant case (cf. İmrek v. Turkey   (dec.), N° 57175/00, 28 January 2003). It was necessary to establish that the doubts concerning the regularity of the proceedings as a whole had been sufficiently dispelled by the change in the composition of the bench  (see Öcalan v. Turkey   [GC], judgment of 12 May 2005, Information Note N° 75). According to that judgment, there was a need first to examine the nature of the procedural steps taken in the presence of the military judge, making a distinction between steps of a preliminary nature and those relating to the merits of the case. Next, it was necessary to assess whether those procedural steps relating to the merits had been properly repeated after the military judge had been replaced. In the instant case, unlike the Öcalan case, the military judge had not been involved in important interlocutory decisions. The most significant step performed in his presence had been the reading out of the depositions of some of the accused and of the indictment accompanying the case file which had recently been joined. On that occasion, the applicant had challenged the contents of the documents and lodged his defence pleadings, which had been examined during the part of the proceedings following the appointment of the civilian judge. In short, the procedural steps in which the military judge had participated in the instant case had not been such as to require that they be taken afresh by the new bench: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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