JOINT PARTLY DISSENTING OPINION OF JUDGES WILDHABER, COSTA, CAFLISCH, TÃœRMEN, GARLICKI AND BORREGO BORREGO

( Translation )

1. The majority of the Court found that in the present case the Ankara National Security Court was not an independent and impartial court, owing to the presence of a military judge on the bench. We disagree with that conclusion for the following reasons.

2. It is true that since In c al v. Turkey ( judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV) the principle followed by the Court in this type of case is that an applicant ha s legitimate cause to doubt the independence and impartiality of a national security court when a military judge sits alongside two civilian judges. The Court was divided in In c al and decided the point by a majority of twelve to eight ( see , for the opposite view , the opinion of the judges in the minority , p p. 1578 - 79 ) .

3. It is equally true that the In c al precedent has since been followed in a number of judgments ( including Sürek v. Turkey (no. 1) [GC], no. 26682/95, ECHR 1999 ‑ IV – see Mr Wildhaber ' s declaration and the dissenting opinion of Mr G ö lçüklü).

4. However, things have changed. Within a very short space of time, Turkey took remedial action following the judgment in In c al and did not hesitate to amend its Constitution (and subsequently its legislation) so that only civilian judges would sit in the national security courts (which have since been abolished). By 18 June 1999 , the Constitution had already been amended and the legislative amendments followed just four days later, with immediate effect (see paragraphs 53 and 54 of the present judgment). It would be desirable for all States Parties to the Convention to comply with the Court ' s judgments within such a reasonable period.

5. The amended legislation was immediately applied to the applicant ' s trial, with the third civilian judge replacing the military judge the day after it came into force. It should be noted that the replacement judge had been present throughout the proceedings and had attended all the hearings of the National Security Court from the start of the trial, that the National Security Court noted that he had read the file and the transcripts (see paragraph 44 of the judgment) and, lastly, that he was at liberty to request additional evidence or investigations .

6. Thus the National Security Court ' s verdict and sentence were handed down by a court composed entirely of civilian judges, all three of whom had taken part in the entire trial. To say that the presence of a military judge, who was replaced under new rules (that were introduced to comply with the case-law of the European Court of Human Rights) made the National Security Court appear not to be independent and impartial is to take the “theory” of appearances very far. That, in our opinion at least, is neither realistic, nor even fair.

7. For this reason we consider that the Court ' s approach in Ä° mrek v. Turkey ((dec.), no. 5 7 175/00, 28 January 2003 ) was wiser. In that case, against the same background and in view of the Turkish authorities ' positive response to the In c al line of authority, it held that the complaint was manifestly ill-founded, as the problem had been solved by the military judge ' s replacement by a civilian judge during the course of the trial .

8. In addition, in Mr Öc alan ' s case , and without departing from the principles established in In c al itself, it is hard to agree with what is said in paragraph 116 of the judgment. The applicant is there described as a civilian (or equated to a civilian). However, he was accused of instigating serious terrorist crimes leading to thousands of deaths, charges which he admitted at least in part. He could equally well be described as a warlord, which goes a long way to putting into perspective the fact that at the start of his trial one of the three members of the court before which he appeared was himself from the military .

9. Inherent in a system based on the principle of subsidiarity is loyal cooperation between a supranational judicial body , such as this Court , and the States which have adhered to the system. Imposing standards that are too high does not appear to us to be the best way of encouraging such cooperation or of expressing satisfaction to the States that provide it.