CONCURRING OPINION OF JUDGE TÃœRMEN

I voted for a violation of Article 6 paragraph 1 of the Convention on account of the lack of independence and impartiality of the General Staff Court .

Nevertheless, I do not fully agree with the reasoning of the judgment. In the case-law of the Court, when a civilian is put on trial in a military court or a court where a military judge sits, the Court tries to ascertain whether the military judge offers sufficient guarantees to exclude any legitimate doubt in respect of his impartiality. In Incal v. Turkey ( judgment of 9 June 1998, Reports of Judgments and Decisions 1998 ‑ IV ) the Court gave a negative answer to this question, because a. the military judge who was a member of the State Security Court belonged to the army and took his orders from the executive; b. he was subject to military discipline and assessment reports were compiled on him by the army; c. decisions pertaining to his appointment were taken by the army ’ s administrative authorities; d. the term of office was only four years and could be renewed.

On the other hand, in the Aksoy (EroÄŸlu) ( no. 59741/00, 3 November 2005 ) and Yavuz ( no. 29870/96 , 25 May 2000 ) decisions, the Court reached the opposite conclusion with respect to military judges at the Military Supreme Administrative Court owing to the fact that a. their assessment reports were not compiled by the military; b. they were appointed by the President of the Republic; c. they could not be removed by a decision of the executive or the military hierarchy; d. they enjoyed a maximum four-year term of office.

In view of this, the opinion expressed in paragraph 49 of the judgment “A judicial system in which a military court is empowered to try a person who is not a member of the armed forces may easily be perceived as reducing to nothing the dist ance which should exist between the court and the parties to criminal proceedings, even if there are sufficient safeguards to guarantee that court ’ s independence. ” does not seem to be compatible with the criteria established by the case-law of the Court for the impartiality of military judges.

Moreover, in paragraph 54 of the judgment, it is stated that “ ... the Court considers that it is understandable that the applicant, a civilian standing trial before a court composed exclusively of military officers, charged with offences relating to propaganda against military service, should have been apprehensive about appearing before judges belonging to the army, which could be identified with a party to the proceedings.”

It seems that, in examining the impartiality of the court, the judgment makes a distinction according to the nature of the offence. In cases where an offence is directed against the army, the judges belonging to the army are party to the case and therefore they cannot be impartial.

However, in Canevi and Others v. Turkey ( no. 40395/98, 10 November 2004 ) the first Section of the Court refused to make a distinction on this basis. In this case Mr Canevi was caught in possession of heroin and put on trial before a state security court with a military judge being one of the three members. Although the offence was not directed against the army, the first Section of the Court unanimously decided that there had been a breach of Article 6 paragraph 1 of the Convention, because “ ... even though the applicants were appearing before the State Security Court for org anised drug trafficking, they could have legitimate reasons to fear that the court might allow itself to be unduly influenced by considerations having nothing to do with the nature of their case” (translation by the Registry ) .

Finally, I do not agree with the distinction drawn in paragraph 39 of the judgment between civil and administrative proceedings on one hand and criminal proceedings on the other. Such a distinction does not exist in the Yavuz or Aksoy (Eroğlu ) decisions where administrative proceedings were at issue and where the applicants ’ cases were tried by military administrative courts. It is an artificial distinction as far as impartiality is concerned and also not in harmony with the case-law as reiterated in paragraph 38 of the judgment, namely, “ ... the question of the impartiality of a tribunal ... should be assessed by means of an objective approach which involves ascertaining whether it afforded sufficient guarantees to exclude any legitimate doubt in this respect”.

I would have preferred reasoning giving more weight to the existence or lack of sufficient safeguards, rather than unjustified distinctions according to the nature of the proceedings (administrative or criminal) or nature of the offence (directed against the army or not).

[1] The equivalent of about 4 euros at th e time, the amounts of fines not being adjusted to take account of inflation. In Turkish criminal law the term “heavy fine”, which was used until the legislation was amended in November 2004, meant that the convicted person was liable to imprisonment if he or she did not pay the fine.

[2] All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. . .