Information Note on the Court’s case-law 18

May 2000

Yavuz v. Turkey (dec.) - 29870/96

Decision 25.5.2000 [Section II]

Article 6

Criminal proceedings

Article 6-1

Impartial tribunal

Independent tribunal

Independence and impartiality of military court dealing with civil claim: inadmissible

The applicants are close relatives of G. who was shot by a fellow-soldier following a dispute over drugs. The other soldier, who had served a prison sentence for homicide before starting his military service, was prosecuted and the applicants joined the proceedings as “intervenors”. The accused was convicted by a military court, but the conviction was annulled and the case remit ted to the court, which then declined jurisdiction in favour of the Assize Court. The accused was again convicted. The applicants then brought an action for damages before the Supreme Military Administrative Court, which awarded compensation to the victim’ s parents. This court is made up of two chambers, each composed of a president and four other military judges, plus two members of the officer class. The latter are elected for a four-year term of office by the President of the Republic on the basis of a l ist of three candidates proposed by the Chief of the General Staff.

Inadmissible under Article 6 § 1 (independent and impartial tribunal): It is not open to the applicants to rely on this provision in support of their complaint that, as intervenors in the criminal proceedings, their civil right to compensation was also at stake, since they never in fact reserved their right to claim compensation based on the outcome of the criminal trial. As to the compensation proceedings, the applicants’ failure to raise the issue of the independence and impartiality, even in substance, cannot defeat the admissibility of their complaint: having regard to the constitutional status of the Supreme Military Administrative Court, any objection to its independence and impartiali ty would have been doomed to failure. Moreover, the applicants may still claim to be victims, since they contest the level of compensation awarded and consider that they did not obtain just satisfaction on account of the fact that their claim was determine d by a court whose independence and impartiality they challenge.

As to the merits, the independence of the military judges is guaranteed under the Constitution and implementing legislation and there is nothing in the manner of their appointment which would call into question their capacity to function in accordance with the strict requirements of judicial independence. They are appointed for life and are not accountable to the executive; questions of discipline fall to be considered by the Disciplinary Boar d of the court. As regards the members appointed from the officer class, their independence is not impaired by the fact that they are chosen from a list proposed by the Chief of the General Staff - ultimate appointment lies with the President of the Republ ic. Moreover, they are guaranteed constitutional protection from external interference and may not be removed by a decision of the executive or the military hierarchy. Finally, they enjoy a four-year term of office and disciplinary matters are dealt with b y the Disciplinary Board. The circumstances of this case, concerning a civil claim against the Ministry of Defence, differ significantly from those in Inçal v. Turkey ( Reports 1998-IV), in which the Court found that a civilian being tried by a court includ ing a military judge could have legitimate doubts about its impartiality.

Inadmissible under Article 6 § 1 (length): Since the applicants did not join the criminal proceedings as civil parties, their complaint about the length is incompatible ratione materiae in that respect. The length of the proceedings in which they claimed compensation (almost 2 years 5 months) is not unreasonable: manifestly ill-founded.

Inadmissible under Article 2: The criminal proceedings, resulting in the conviction of the assailant, and the civil proceedings, resulting in an award of compensation, were sufficient for the State to comply with its procedural obligations under this provision. Moreover, the applicants have not shown that the authorities knew or should have known that there was a risk to G.’s life: 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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