Information Note on the Court’s case-law No. 86
May 2006
Ergin v. Turkey (no. 6) - 47533/99
Judgment 4.5.2006 [Section IV]
Article 6
Criminal proceedings
Article 6-1
Impartial tribunal
Independent tribunal
Independence and impartiality of a military court judging a civilian in criminal proceedings: violation
Article 10
Criminal conviction of journalist by a military court for publishing an article criticising the ceremony to mark departures for military service: violation
Facts: In September 1997 the applicant published in a newspaper which he edited an article entitled “Giving the conscripts a send-off, and collective memory”, which was a critique of the now-traditional ceremony to mark conscripts’ departure for military service; in literary language the author explained that the enthusiasm surrounding these departures was a denial of the tragic end to be suffered by some of the conscripts concerned, namely death and mutilation. On 20 October 1998 the General Staff Court found the applicant guilty of incitement to evade military service and sentenced him to two months’ imprisonment, commuted to a fine. An appeal by the applicant on points of law was dismissed on 10 February 1999.
Law: Article 10 – As regards the alleged interference with the freedom of expression, the grounds given by the Turkish courts could not in themselves be considered sufficient to justify the interference with the applicant’s right to freedom of expression. Although the words used in the offending article gave it a connotation hostile to military service, they did not exhort the use of violence or incite armed resistance or rebellion, and they did not constitute hate-speech, which was the essential element to be taken into consideration. The offending article had been published in a newspaper on sale to the general public and did not seek, either in its form or in its content, to precipitate immediate desertion. The applicant’s criminal conviction did not correspond to a pressing social need and was accordingly not “necessary in a democratic society”.
Conclusion: violation (unanimously).
Article 6 – As regards the complaint relating to the independence and impartiality of the General Staff Court, the Court first took formal note of the information supplied by the Government to the effect that Turkish legislation had been amended to bring it into line with the Convention. Only in exceptional circumstances could the determination of criminal charges against civilians by a court composed, if only in part, of members of the armed forces be held to be compatible with Article 6; the Court derived support in that approach from developments in recent years at international level. 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. It was understandable that the applicant, a civilian standing trial before a court composed exclusively of military officers, charged with offences relating to propaganda against military service, should have been apprehensive about appearing before judges belonging to the army, which could be identified with a party to the proceedings. Accordingly, the applicant could legitimately fear that the General Staff Court might allow itself to be unduly influenced by partial considerations. The applicant’s doubts about the independence and impartiality of that court could therefore be regarded as objectively justified.
Conclusion: violation (unanimously).
As regards the complaint that the proceedings were unfair, the Court observed that a court whose lack of independence and impartiality had been established could not, in any event, guarantee a fair trial to the persons subject to its jurisdiction.
Conclusion: not necessary to examine (unanimously).
Article 41 – The Court made an award for non-pecuniary damage and costs and expenses.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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