DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

( Translation )

I voted against the finding of a violation of Article 6 § 1 in respect of the applicant’s complaint that the National Security Court which tried him had not been an “independent and impartial” tribunal on account of the fact that a military judge had sat on it.

Here are my reasons.

Having regard to the security situation in Turkey and the participation of the armed forces in the fight against terrorism, the Turkish authorities judged it necessary to set up “special” courts, the National Security Courts. This type of specialised court is found in certain areas of the law in all countries, for example commercial or industrial courts.

Secondly, since they are composed of two civil judges and one professional military judge with a legal training, the National Security Courts are not military courts strictly speaking but civil courts whose judgments can be overturned by the ordinary civil Court of Cassation.

In several cases the Court has recognised that a special court whose members include “experts” can be a “tribunal” within the meaning of Article 6 § 1. The domestic legislation of the Council of Europe’s member States affords many examples of courts in which there sit, alongside professional judges, specialists in a given field whose special knowledge is desirable and even necessary for trying certain cases, so long as all the members of the court afford the necessary guarantees of independence and impartiality (see the following judgments of the European Court of Human Rights: Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, Series A no. 43; Ettl and Others v. Austria, 23 April 1987, Series A no. 117; and Barfod v. Denmark, 22 February 1989, Series A no. 149, pp. 10–11, § 18).

As to the military judge who is a member of the National Security Court, the judgment (in paragraph 39) describes the constitutional safeguards he enjoys, but goes on to say that certain features of his status make it questionable. I am not persuaded, however, by the conclusions which the Court has drawn from those features – the fact that the military judge remains subject to military discipline and that assessment reports are compiled on him for that purpose, that the administrative authorities and the army take decisions pertaining to his appointment and that his term of office as a National Security Court judge is only four years.

In this connection, I would like to point out that it is possible for civil judges to have assessment reports compiled on them, that they are subject to disciplinary rules, that the administration takes decisions pertaining to their appointment and that the Court has recognised as sufficient even terms of office of three years. To that I would add that being appointed as a military

judge of a National Security Court is not a favour and that at the end of their term of office as National Security Court judges, failing reappointment, the judges in question remain military judges for the whole of their career. In several cases the Court has held that neither a judge’s term of office nor the existence of disciplinary rules are decisive factors vitiating a tribunal’s independence and impartiality (see the following judgments: Campbell and Fell v. the United Kingdom, 28 June 1984, Series A no. 80, p. 40, § 80; Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22, pp. 12–13, § 30).

It is possible that there should be serious doubts as to a tribunal’s impartiality where one of its members has relations with parties to the case, as Mr Alkema, a member of the European Commission of Human Rights, noted in his dissenting opinion in the instant case. Indeed, in this case neither the military judge in question nor his colleagues or superiors nor the public authorities who had appointed him had any connection with the parties to the trial. The Court may be taken to have accepted that (see paragraph 35 in fine ). Moreover, the applicant was arrested by the police, not by the armed forces, and was brought before the court by the ordinary legal procedures.

As to the argument that the court’s composition might have caused the applicant to have doubts as to the impartiality and independence of the court in question, on account of the “appearances”, I consider that in view of the constitutional safeguards enjoyed by the military judges, apprehensions on this score are not founded and cannot be regarded as objective.

To assert the contrary amounts to condemning the principle of having courts of mixed composition.

There is no basis for saying, as the majority do, that “the applicant could legitimately fear that because one of the judges of the İzmir National Security Court was a military judge, it might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case” (see paragraph 40). By what right and on what point of fact can the Court state that the mere presence of a military judge (not a judge of the civil judiciary) necessarily has the effect that the judge in question will prompt the other two judges to reach an improper verdict? I regard that as a defamatory slur on both the two civil judges and the military judge.