Information Note on the Court’s case-law No. 154
July 2012
İbrahim Gürkan v. Turkey - 10987/10
Judgment 3.7.2012 [Section II]
Article 6
Criminal proceedings
Article 6-1
Impartial tribunal
Independent tribunal
Participation of serving military officer in military criminal court: violation
Facts – In 2008 a military prosecutor filed an indictment against the applicant, who at the time was serving in the Turkish Navy, for wilfully disobeying a superior. A military criminal court composed of a military officer with no legal background and two military judges found the applicant guilty as charged and sentenced him to two months and fifteen days’ imprisonment.
Law – Article 6 § 1: In a previous case* in 2004 the Court had dismissed a complaint regarding the independence and impartiality of military criminal tribunals in Turkey after finding that sufficient safeguards were in place to guarantee the independence and impartiality of the members of such courts. However, in 2009 the Turkish Constitutional Court found that the domestic legislation in force at the material time did not provide sufficient safeguards against the risk of outside pressure being exerted on members of the military criminal courts. The European Court was therefore called upon to re-examine the issue. Given that participation of lay judges as such was not contrary to Article 6 of the Convention, the Court did not consider that the military officer’s lack of legal qualifications had hindered his independence or impartiality. However, he was a serving officer who remained in the service of the army and was subject to military discipline. He had been appointed to the bench by his hierarchical superiors and did not enjoy the same constitutional safeguards as the other two military judges. The military criminal court that convicted the applicant could therefore not be considered to have been independent and impartial.
Conclusion: violation (unanimously).
Article 41: Finding of a violation constituted sufficient just satisfaction.
* Önen v. Turkey (dec.), no. 32860/96, 10 February 2004.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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