CONCURRING OPINION OF JUDGE ZIEMELE

I voted for the finding of a violation of Article 6 § 1 on the grounds that the applicant was tried and convicted by the General Staff Military Court . However, I do not fully share the reasoning of the majority on this point. The judgment relies heavily on the case of Ergin v. Turkey ( no. 6) , no. 47533/99, ECHR 2006 ‑ (extracts) . In the Ergin case the applicant was the editor of a newspaper and was charged with incitement, by publication of an article, to evade military service. In the present case, the applicant was convicted of espionage (§§ 12, 16). Clearly, the two offences are of a very different nature. The judgment takes note of the prevailing practice in the Council of Europe Member States and points to a strong trend at the international level to limit the jurisdiction of military courts (§§ 43 – 44). However, it does not go as far as to say that in times of peace military courts should not try civilians no matter what the offence is. The Court ’ s position is that “the power of military criminal justice should not extend to civilians unless there are compelling reasons justifying such a situation. The existence of such reasons [has] to be substantiated in each specific case. It [is] not sufficient for the national legislation to allocate certain categories of offences to military courts in abstracto ” (§ 42).

If the jurisdiction of military courts over civilians in some circumstances may still be accepted by the Court, it remains unclear where the line should be drawn. Normally, it is necessary to have a clear delimitation in national legislation of the jurisdiction of courts by defining in criminal codes the types of offences that might fall within the system of military justice or at least its competence in times of state of emergency. It would have been preferable if the Court had further elaborated on the meaning of the “compelling reasons” approach. A case of espionage was a good opportunity to do so. However, if the Court considered that military courts should not try civilians in peacetime since it was incompatible with the fair trial guarantees of Article 6 § 1, it ought to have ruled on that principle.

DISSENTING OPINION OF JUDGE TÃœRMEN

I regret that I am unable to agree with the majority in finding a violation of Article 6 § 1 of the Convention.

I do agree that in principle military criminal justice should not be extended to civilians. However, this is not an absolute rule and decisions should be reached on a case-by-case basis after examination of the circumstances of each case. Elements such as the nature of the offence and the guarantees provided by the national legislation to ensure the independence and impartiality of the judges certainly play an important role.

The case-law of the Court also supports this view. In Ergin v. Turkey (no. 6) , no. 47533/99, ECHR 2006 ‑ (extracts) , the Court stated that the Convention did not absolutely exclude the jurisdiction of military courts to try cases in which civilians were implicated. It held however that the existence of such jurisdiction should be subjected to particularly careful scrutiny. The Court also considered that the power of military criminal justice should not extend to civilians unless there were compelling reasons justifying such a situation, and if so, only on a clear and foreseeable legal basis. The existence of such reasons must be substantiated in each specific case (see Ergin , cited above, §§ 46 and 47).

It is to be recalled that the applicant was convicted of disloyalty to national defence by way of espionage, an offence which was prescribed by Article 56 § 1 (D) of the Military Criminal Code and Article 133 § 1 of the Criminal Code. In convicting the applicant, the General Staff Court had to assess the nature of the acts he had committed and found that the information he had provided to the Greek officials was not confidential military information. On that basis the court mitigated the applicant ’ s sentence and imposed the minimum period of imprisonment foreseen by the above-mentioned provisions.

The issues to be determined by the General Staff Court required a measure of professional knowledge or experience since the acts committed by the applicant were exclusively related to military information and consequently to national security (see mutatis mutandis , Tsfayo v. the United Kingdom , no. 60860/00, § § 43 and 45 , 14 November 2006 ). In this respect, the circumstances of the present case differ from those of the Ergin case and other similar cases (see Düzgören v. Turkey , no. 56827/00, 9 November 2006 ) where the assessment of the acts at issue did not require special expertise and did not concern national security.

On the other hand, “espionage” in criminal law has a special status as it constitutes a threat to the defence and security of the State.

In the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land it is stated that a spy will be treated as a prisoner of war, that is to say, a combatant (Article 31).

The 1949 Geneva Convention IV on Protection of Civilian Persons in Time of War stipulates that a civilian person detained as a spy shall be regarded as having forfeited rights of communication, meaning that he will be regarded as a prisoner of war, a member of the military (Article 5).

Moreover, under Article 68 of the same Convention, the Occupying Power may impose the death penalty on a protected person (a civilian) in cases where the person is guilty of espionage.

It is true that all these provisions are applicable in time of war and not in time of peace. Nevertheless, they are indications as to the special character of the offence where a civilian convicted of espionage is treated as a person belonging to the military.

Accordingly, in the instant case, I find there are sufficient compelling reasons that justify the trial of the applicant by a military court on charges of military offences which had a clear and foreseeable basis in domestic law.

It is to be noted that the Court has already had occasion to look into the question of the General Staff Court ’ s organic independence from the executive, and has held that the appointment of military judges and the safeguards accorded to them in the performance of their duties were compatible with the requirements of Article 6 § 1 of the Convention (see Hakan Önen v. Turkey (dec.), no. 32860/96, 10 February 2004).

Against this background, and having regard to the special circumstances of the present case, I conclude that there has been no violation of Article 6 § 1 of the Convention in respect of the applicant ’ s trial.