Information Note on the Court’s case-law 201

November 2016

Kerman v. Turkey - 35132/05

Judgment 22.11.2016 [Section II]

Article 5

Article 5-3

Brought promptly before judge or other officer

Lack of independence of military court owing to judges’ appraisal system and presence of active officer on the bench: violation

Facts – The applicant, a serviceman, was suspected of abuse of office. In April 2005 a military co urt decided to place him in pre-trial detention; the court was composed of two permanent military judges and an officer sitting as an ad hoc judge. The applicant unsuccessfully applied for release; another military court dismissed his appeal. Having been c ommitted for trial, the applicant was released from pre-trial detention in August 2005. In 2009 the military court convicted him, but decided to suspend pronouncement of the judgment for a period of five years; at the end of this probation period, the judg ment was set aside and the case struck out.

Law

Article 5 § 3: The military court which had ordered the applicant’s placement in pre-trial detention lacked the requisite independence:

(i) the officer who sat as an ad hoc judge did not enjoy the same con stitutional safeguards as the permanent judges. He continued to serve as an officer throughout the period he sat on the judicial bench, and was in this capacity subject to military discipline. In addition, the officers who were called upon to sit as judges were appointed on a case-by-case basis by the military hierarchy, that is, by the executive. In those circumstances, this member of the court did not present sufficient guarantees of independence to be able to be considered a “judge or other officer” for the purposes of Article 5 § 3 of the Convention;

(ii) the appraisal system for the other judges involved a high-ranking military officer. The possibility that a member of the military hierarchy might be tempted to exert pressure on them through their “off icer’s appraisal sheet” was such as to affect the appearance of independence that the judges had a duty to present.

Moreover, the Turkish Constitutional Court had itself held in two judgments of 2009 that these two circumstances (the presence of a serving officer and the appraisal system for the other judges) infringed the principle of the independence of the justice sy stem.

Conclusion: violation (unanimously).

Article 5 § 4: The military courts which had examined the applicant’s requests for review of the lawfulness of his detention at first and second instance had the same lack of guarantees of independence as that fou nd under Article 5 § 3.

Conclusion: violation (unanimously).

Article 5 § 5: At the relevant time there was no legal provision allowing for the possibility of claiming reparation for damage sustained as a result of procedural shortcomings or a lack of indep endence resulting from the legislation itself.

Conclusion: violation (unanimously).

Article 6: The applicant could no longer claim to be the victim of the alleged various breaches of his right to a fair trial. In this connection, the suspension of the “pro nouncement” of the judgment enjoyed by the applicant was to be distinguished from a straightforward suspension of the “execution” of a judgment (see Böber v. Turkey , 62590/09 , 9 April 2013). In the present case, the applicant had ultimately never been convicted in a final judgment, and no entry had been made in his criminal record. He had not been required to comply with any obligation during the probation period. All the dama ging consequences of the alleged lack of fairness in the proceedings had thus been erased.

Conclusion : inadmissible (lack of victim status).

Article 41: EUR 6,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage rejected.

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

Click here for the Case-Law Information Notes