CONCURRING OPINION OF JUDGE LEMMENS

I have with some hesitation voted with my colleagues in favour of finding a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the İzmir State Security Court.

The reasoning of my colleagues is based on the fact that one of the judges of the State Security Court was a military judge.

The wording used in the present judgment seems to suggest that whenever a civilian has to stand trial before a court that includes a military judge, he can legitimately fear that the court will be unduly influenced by considerations that have little or nothing to do with the nature of his case. I very much doubt that such a broad approach would be warranted.

I see a problem under Article 6 § 1 where the case raises issues touching upon the founding principles of the State or affecting national security. These were the sort of issues that had to be dealt with by the national security court in the case that gave rise to the first judgment of this Court in which the presence of a military judge was criticised ( Incal v. Turkey , 9 June 1998, § 72, Reports of Judgments and Decisions 1998 ‑ IV).

In the present case, however, the applicant was charged with trafficking of illegal drugs. It is hard for me to see why he should have specific concerns about the independence and impartiality of the military judge.

Having said that, I note that in earlier cases the Court has explicitly stated that an applicant could have legitimate reasons to fear a lack of independence and impartiality on the part of a State security court because of the presence of a military judge, “even though [he] was appearing before [that court] for organised drug trafficking” (see Canevi and Others v. Turkey , no. 40395/98, § 34, 10 November 2004, and Canpolat v. Turkey , no. 63354/00, § 22, 15 February 2007).

Since it would not be fair to hold differently for the present applicant, who was in the same situation as the applicants in the other cases, I decided in the end to join my colleagues in their finding of a violation of Article 6 § 1 on this point.

JOINT PARTLY DISSENTING OPINION OF JUDGES LEMMENS, KARAKAŞ AND TURKOVIĆ

We cannot agree with the majority that there is no need to examine the remaining complaint under Article 6 § 1 ta ken in conjunction with Article 6 § 3 (d) of the Convention.

We think that the applicant ’ s inability to challenge the statements obtained in his absence and the fact that he was sentenced on the basis of these statements should be also examined by the Court under Article 6 § 3 (d).