Information Note on the Court’s case-law 190

November 2015

Tanışma v. Turkey - 32219/05

Judgment 17.11.2015 [Section II]

Article 6

Administrative proceedings

Article 6-1

Impartial tribunal

Independent tribunal

Presence of serving military officers on bench of Supreme Military Administrative Court: violation

Facts – The son and brother of the applicants committed suicide during his compulsory military service. T wo days before his death he had been beaten and insulted by his chief warrant officer. After a criminal investigation the military prosecutor discontinued the proceedings, taking the view that the suicide was the result of financial and family problems. In parallel, criminal proceedings were brought against the chief warrant officer for inflicting injuries on the person of a subordinate. He was fined and the military tribunal decided to suspend his sentence. The applicants brought proceedings against the Mi nistry of Defence in the Military Administrative High Court, seeking damages, but they were unsuccessful.

Before the European Court, the applicants complained that the Military Administrative High Court lacked independence and impartiality because the benc h included career army officers.

Law – Article 6 § 1: The Court noted that the votes of the two career army officers, who served under the same rules on salary, grade steps, benefits, duty allowance, promotion, age-limit and pension as their army colleague s, had carried decisive weight in the rejection of the applicants’ claim. The Military Administrative High Court had rejected the damages claim, by three votes to two, based mainly on the military prosecutor’s decision to discontinue the criminal proceedin gs, and the two army officers had voted in favour of that rejection.

As regards the applicants’ complaint about the lack of legal training of the members of that court who were army officers, the participation of lay judges was not, in itself, incompatible with Article 6 of the Convention: the principles laid down by the ca se-law of the European Court as to independence and impartiality applied to both professional and non-professional judges.

Accordingly, the lack of legal training of career officers sitting in the Military Administrative High Court had not in itself underm ined the independence or impartiality of that court. Nevertheless, even though they were subject to the same rules as the members of that court who were military judges, they were still serving in the army, which controlled all matters relating to their sa lary, benefits and promotion. Their appointment was proposed by their superiors and they did not benefit from the same constitutional safeguards as those applicable to the other three members of the bench, who were military judges. The court which had hear d the applicants’ case could not therefore be regarded as an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention.

Conclusion : violation (six votes to one).

The Court also found, unanimously, that there had been no viola tion of Article 2 of the Convention.

Article 41: EUR 6,000 jointly to the applicants in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also Ibrahim Gürkan v. Turkey, 10987/10, 3 July 2012, Information Note 154 )

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

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