SECOND SECTION
DECISION
Application no. 1676/13
Salih ŞENER
against Turkey
The European Court of Human Rights (Second Section), sitting on 24 September 2019 as a Committee composed of:
Valeriu Griţco, President,
Egidijus Kūris,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 12 November 2012,
Having regard to the decision of 6 March 2018,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Salih Şener, is a Turkish national, who was born in 1985 and lives in Gaziantep.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 2006, criminal proceedings were initiated against the applicant before the Edirne Military Criminal Court for threatening and assaulting military officers during his compulsory military service.
5. On 13 September 2007 the court, composed of a military officer with no legal background and two military judges, found the applicant guilty as charged and sentenced him to ten months’ imprisonment.
6. On 9 June 2009 the Military Court of Cassation quashed the judgment of the Edirne Military Criminal Court.
7. On 24 February 2010 the Edirne Military Criminal Court, composed of a military officer with no legal background and two military judges, convicted the applicant once again as charged and held that there was no basis to rule for the suspension of the pronouncement of the judgment pursuant to Article 231 of the Criminal Code.
8. On 28 September 2010 the Military Court of Cassation quashed the judgment once again on the ground that during the first-instance court proceedings the applicant’s lawyer had withdrawn from the case and the applicant had not been asked whether he requested a new lawyer.
9. In the meantime, on 7 March 2009 the Constitutional Court delivered its decision. It decided that the presence of a military officer, who had no legal background and who was not a judge by profession, on the bench of Military Criminal Courts was not in accordance with the Constitution. It therefore held that Section 2 of Law no. 353 on the Establishment and Procedure of Military Courts had breached the Constitution. As a result, Section 2 of Law no. 353 was amended on 19 June 2010. According to the amended provision, a military court panel shall consist of three military judges who have legal training and who are judges by profession. This amendment entered into force on 30 June 2010.
10. As a result, following the decision of 28 September 2010, the case was remitted before the Edirne Military Criminal Court that was composed of three military judges.
11. During the new set of proceedings, the court heard once again from the applicant and at the end of the proceedings, on 8 June 2011 the applicant was found guilty and sentenced to ten months’ imprisonment. On 15 May 2012 the Court of Cassation rejected the applicant’s appeal.
12. Further to other amendments in domestic law, on 25 January 2013 the Military Criminal Court decided to initiate fresh proceedings to re‑examine the previous decision and to determine whether the applicant was now entitled to benefit from Article 231 of the Criminal Procedure Court which foresees the suspension of the pronouncement of the judgment in certain cases.
13. The applicant’s case was accordingly re-opened, his statement was taken once again by the first instance court and on 3 June 2015 the Gaziantep Military Criminal Court found the applicant guilty as charged, sentenced him to ten months’ imprisonment and decided to suspend the pronouncement of the judgment pursuant to Article 231 of the Criminal Procedure Code. The applicant did not file an appeal against this decision which was notified to him on 7 July 2015.
COMPLAINT
14. The applicant complained under Article 6 of the Convention about the independence and impartiality of the proceedings before the Military Criminal Courts.
THE LAW
15. The Government asked the Court to declare the case inadmissible on several grounds. They recalled in the first place that the domestic legislation had been amended in 2010 and the applicant had therefore been retried and convicted by a military criminal court which was composed of three military judges. As the military officer with no legal background had been removed from the bench and since the case was re-examined by the new composition, they considered that the applicant could not be considered as a victim of the alleged breach, namely the lack of independence and impartiality of the military criminal courts.
16. In the alternative, the Government stated that the application should be rejected for non-compliance with the exhaustion of domestic remedies, as the final decision in the present case had been delivered on 3 June 2015 and the applicant had not lodged an appeal or an individual application with the Constitutional Court.
17. The Court notes that in his application form, the applicant mainly complained about the independence and impartiality of the military criminal court that had tried and convicted him as the composition of court included a military officer. This officer remained in the hierarchical order in the service of the army and was subject to military discipline. They were appointed by their hierarchical superiors and did not enjoy the same constitutional safeguards provided to the other two military judges. Based on these elements, the Court had in the past ruled that the military criminal courts could not be considered as an independent and impartial tribunal within the meaning of Article 6 of the Convention (see Gürkan v. Turkey, no. 10987/10, § 19, 3 July 2012).
18. Nevertheless, in the present case, the legislation was amended on 19 June 2010 and as of 30 June 2010 military officers were removed from the bench of the military criminal courts. Consequently, when the applicant’s case was remitted before the Edirne Military Criminal Court, the proceedings were conducted a fresh, with a new composition that did not include the military officer.
19. In the circumstances of the present case, the Court holds that the replacement of the military officer before the end of the proceedings disposed of the applicant’s reasonably held concern about the trial court’s independence and impartiality (see, mutatis mutandis, Osman v. Turkey, no. 4415/02, § 18, 19 December 2006).
20. In the light of the foregoing, the Court upholds the first preliminary objection of the Government and concludes that there is no need to examine the remaining objections. As a result, the application should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 17 October 2019.
Hasan BakırcıValeriu Griţco
Deputy RegistrarPresident
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