CASE OF SAHINER v. TURKEY
Violation of Art. 6-1 as regards the length of the proceedings;Violation of Art. 6-1 as regards independence and impartiality;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient (as regards independence and impartiality);Non-pecuniary damage - financial award (as regards length);Costs and expenses partial award
Elisabeth Palm;Gaukur Jörundsson
8. On 29 November 1980 police officers from the Ankara Security Directorate arrested the applicant on suspicion of membership of an illegal organisation, the Dev-Yol (Revolutionary Way). 9. On 26 January 1981 the Ankara Martial-Law Court (sıkıyönetim mahkemesi) remanded the applicant in custody. 10. On 26 February 1982 the military public prosecutor filed a bill of indictment with the Martial-Law Court against the applicant and 722 other defendants. The public prosecutor accused the applicant of membership of an illegal armed organisation, namely the Dev-Yol, whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. He further charged the applicant with having been involved in a number of crimes such as acting as an armed look-out for the killers of several individuals, a bomb attack on a coffee house and opening fire on a house. The prosecution sought the death penalty under Article 146 § 1 of the Turkish Criminal Code. 11. In a judgment of 19 July 1989 the Martial-Law Court, composed of two civilian judges, two military judges and an army officer, found the applicant guilty as charged, sentenced him to life imprisonment (in effect eighteen years assuming good conduct) for offences under Article 146 § 1 of the Criminal Code and permanently debarred him from employment in the civil service. It took from 19 July 1989 until 1993 for the reasons for the judgment to be set down in writing. 12. The applicant lodged an appeal with the Military Court of Cassation (askeri yargıtay). 13. On 23 July 1991 the Martial-Law Court ordered the applicant’s release pending trial. 14. Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the martial-law courts, the Court of Cassation (yargıtay) acquired jurisdiction over the case and the file was transmitted to it. 15. On 27 December 1995 the Court of Cassation upheld the applicant’s conviction. 16. Article 146 § 1 of the Turkish Criminal Code provides: “Whosoever shall attempt to alter or amend in whole or in part the Constitution of the Turkish Republic or to effect a coup d’état against the Grand National Assembly formed under the Constitution or to prevent it by force from carrying out its functions shall be liable to the death penalty.” 17. The provisions governing judicial organisation are worded as follows: “In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law. No organ, authority, officer or other person may give orders or instructions to courts or judges in the exercise of their judicial powers, nor send them circulars or make recommendations or suggestions to them.” “Judges ... shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution ...” “... Martial-law courts shall be responsible for dealing with offences under special laws committed by civilians against military personnel and offences committed against military personnel in the course of their duties or on scheduled premises. The offences and persons falling within the jurisdiction of the martial-law courts in time of war or under martial law, the composition of martial-law courts and the appointment, where necessary, of judges and prosecutors from the ordinary courts to martial-law courts shall be regulated by law. The personal rights and obligations of military judges ... shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve as regards their non-judicial duties shall also be regulated by law.” “The Ministry of Defence shall convene a sufficient number of martial-law courts in areas where martial law applies ...” “Judicial advisers, military judges and military prosecutors attached to the martial-law courts are appointed, with the agreement of the Chief of Staff, from among the candidates nominated by a committee composed of the personnel director and the legal adviser to the Office of the Chief of Staff, the personnel director and the legal adviser to the army corps to which the judge in question belongs and finally the head of the Military Legal Service at the Ministry of Defence.” “The army officers serving on martial-law courts are appointed, on the proposal of the Chief of Staff, according to the procedure for appointing military judges ...” “The officers serving on the martial-law courts and their substitutes shall be appointed, in December, by the commander or the superior of the military establishment within which a martial-law court is formed, from among the officers of that establishment. The officers thus appointed are irremovable for one year.” “... The aptitude of military judges for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports. (a) There are three types of assessment report, namely the assessment report for generals, the assessment report for officers (sub-lieutenant – colonel) and the professional assessment report. ... (b) The superiors in the hierarchy competent to carry out assessment and draw up assessment reports for officers are the following: First superior in the hierarchy: the commander or superior of the military establishment to which the judge in question belongs and in which a martial-law court is formed. Second superior in the hierarchy: the commander or the superior immediately above the first superior in the hierarchy. Third superior in the hierarchy: the commander or the superior immediately above the second superior in the hierarchy ...” “The Minister of Defence may apply to military judges, after hearing their defence submissions, the following disciplinary sanctions: (a) a warning ... in writing ... (b) a reprimand ...”