CASE OF İBRAHİM GÜRKAN v. TURKEY
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Non-pecuniary damage - finding of violation sufficient
Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
4. At the time of the events the applicant was serving in the Turkish Navy. On 8 July 2008 the military prosecutor filed an indictment against the applicant with the Kasımpaşa Military Criminal Court (Kuzey Deniz Saha Komutanlığı Askeri Mahkemesi). He accused the applicant of wilfully disobeying his superior contrary to section 87 of the Military Criminal Code. 5. On 18 February 2009 the Kasımpaşa 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. 6. On 21 July 2009 the Military Court of Cassation rejected the applicant’s appeal. The applicant stated that he learned of this decision on 23 September 2009 when he was summoned to the prosecutor’s office. The applicant served his prison sentence between 5 November and 25 December 2009. 7. The relevant provisions of the Constitution provide: “Judicial power shall be exercised by independent courts on behalf of the Turkish Nation.” “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, or send them circulars, or make recommendations or suggestions to them. ...” “Judges ... shall not be removed from their office or compelled to retire without their consent before the age prescribed by the Constitution.” “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...” “Military courts shall be composed of two military judges and a military officer.” 8. In a decision dated 7 May 2009 and published in the Official Gazette on 7 October 2009, the Constitutional Court examined the independence and impartiality of military courts on account of the presence of a military officer on the bench. The Constitutional Court firstly pointed out that the officer sitting on the bench of the military criminal court was appointed on a case by case basis by his hierarchical superiors and continued to perform his other military duties while also acting as a judge. Noting that the military officer remained in the service of the military authorities, the Constitutional Court found that military courts could not be considered as compatible with the principle of judicial independence guaranteed under Article 9 of the Constitution. As a result, the Constitutional Court decided to repeal section 2(1) of Law no. 353 on the Composition and Functioning of Military Courts. The decision of the Constitutional Court became effective one year after its publication in the official gazette.