PARTLY DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

In the instant case, in which the issue before the Court was the independence and impartiality of martial-law courts in Turkey (Article 6 § 1 of the Convention), I voted in favour of finding that there had not been a violation, because the logical consequence of the conclusion reached by the majority would be to banish military courts of every kind from the judicial system. My reasons are as follows.

1. In the present case the majority took as their starting-point the Incal v. Turkey judgment (9 June 1998, Reports of Judgments and Decisions 1998 ‑ IV, p. 1573, § 72). In my opinion, the Incal case is quite different from this one.

The Incal case was concerned with a civilian (as opposed to a military) court, namely the National Security Court, which was composed of two civilian judges and a military judge. That court tried a civilian for an offence under the ordinary criminal law . In the Incal case the majority of the Court reached the conclusion that, in spite of the safeguards enjoyed by military judges in Turkey’s judicial system, the National Security Court could not be objectively regarded (according to the doctrine of appearances) as an independent and impartial tribunal within the meaning of Article 6 § 1 because one of its members was a military judge, who might have aroused doubts in the mind of the public as to his impartiality and independence. That standpoint was defensible, as the case concerned a civilian court trying a civilian for an ordinary offence.

2. However, in the instant case, in which the tribunal in issue was a martial-law court composed of two civilian judges, two military judges and an army officer, the situation is quite different. It is common knowledge that martial-law courts are military courts par excellence . Their jurisdiction is limited: in cases involving civilians, they are competent to deal with offences of a strictly military nature and with offences that have led to a declaration of martial law in the region in which the military authorities – and, with them, the martial-law courts – assume jurisdiction ratione loci .

It goes without saying that all military courts will, in the nature of things, necessarily include at least one military judge. To hold, on the basis of the Incal precedent, that a court on which a military judge sits is not independent and impartial within the meaning of Article 6 § 1 would, by logical implication, amount to finding that all military courts contravened Article 6 § 1 and should accordingly be banished from the judicial system. That is the general conclusion which I am unable to accept. Military courts have existed since time immemorial; they currently exist, as far as I know, in all States that possess an army, and they will continue to exist until such time as armed forces and martial law are abolished.