CASE OF ERGIN v. TURKEY (NO. 6)
Violation of Art. 10;Violation of Art. 6-1 (independence and impartiality of the General Staff Court);Not necessary to examine Art. 6 (another complaint);Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings
Nicolas Bratza
6. The applicant was born in 1973 and lives in Istanbul. 7. On 1 September 1997, as editor of the newspaper Günlük Emek (Everyday Work), the applicant published in issue number 297 an article entitled “Giving the conscripts a send-off, and collective memory” (Asker uğurlamalar ve toplumsal hafıza) signed by Barış Avşar. 8. On 4 December 1997 the public prosecutor at the Military Court of the General Staff (“the General Staff Court”), acting under Article 58 of the Military Penal Code and Article 155 of the Criminal Code, charged the applicant with incitement, by publication of the above article, to evade military service (askerlikten soğutma). 9. The applicant informed the General Staff Court that the article had been written by Mr Şevki Akbaba, who had signed it with a pseudonym. 10. In a judgment of 20 October 1998 the General Staff Court initially sentenced the applicant to two months’ imprisonment and a fine of 60,000 Turkish liras (TRL). By virtue of section 4 of the Execution of Sentence Act (Law no. 647), which provided for prison sentences imposed on editors to be commuted to fines, the applicant was ultimately ordered to pay a “heavy fine” of TRL 1,160,000. 11. In its judgment the General Staff Court referred to the following passage from the offending article: “This last week in bus stations has been a time for sending the August conscripts on their way... The novice soldiers setting off – “but you’ll soon be back”, people tell them to console them – already seemed during these ritual send-offs to be plunging into war by donning “invisible khaki”. It was a time when war seemed rather attractive; the congratulations and praises made it seem like a warm nest, almost as warm as a mother’s arms, into whose embrace they would have liked to run. What we saw at each of these ceremonies shows that the thing has become a collective hysteria and that this hysteria has also spawned its own indispensable attributes: the traditional drum and clarinet, the famous three-crescented flag, sometimes accompanied by the corn-ear flag of the RP [Welfare Party] or the rose-bearing flag of the BBP [Great Union Party] ... Warm-up ceremonies are organised for those setting off for the war, the exaltation felt on killing a man is the exaltation of winning a match and, what is more, the killer justifies his act by speaking of the love he has for his fatherland and his nation. In short, it can’t be said that what we’re doing is right... Those verses, written by a fallen soldier, are carved on his own tombstone. He will no longer see those who gather to give the conscripts a send-off, no longer hear the drum, the clarinet or the gunfire, not be able to read the verses written on his tombstone, on seeing which he would perhaps have felt repelled by the determinism they convey. Because from now on he is reduced to a title: a martyr... It is because the State does not recognise as such the war which is etched deeply into the collective life and the collective memory that, apart from a small minority, those who return from it after losing an arm, a leg or an eye receive no allowance. These people who are no longer capable of meeting their own needs are being deceived by talk of fictitious jobs. ‘There is a war, but not officially; you are war-wounded, but you count for nothing.’” In its considerations the General Staff Court pointed out that military service was a constitutional duty and that the applicant, by denigrating military service had also denigrated the struggle against the PKK, a terrorist organisation which killed soldiers, police officers, teachers and civil servants. It held that the offending article contained terms contrary to morality and public order. 12. Relying on Articles 6 and 10 of the Convention, the applicant appealed on points of law to the Military Court of Cassation. He argued that the General Staff Court had given its judgment without hearing his defence on the merits of the charge. He submitted that as a civilian he should not have been tried by that court, and alleged that it was not independent or impartial. 13. The applicant was allegedly not provided with a copy of the opinion of the Principal Public Prosecutor at the Military Court of Cassation. 14. In a final judgment of 10 February 1999 the Military Court of Cassation upheld the first-instance judgment. It observed that the applicant’s submissions on the merits had been filed by his lawyer, and that the fact that he had been tried by a military court was in accordance with the law. 15. The relevant provisions in force at the material time provided: “Military justice shall be dispensed by military courts and military disciplinary organs. These courts and tribunals shall be responsible for conducting proceedings concerning offences committed by military personnel which are breaches of military law or are committed against other military personnel, on military premises or in connection with military service and the related duties. Military courts shall also be responsible for dealing with offences committed by civilians where these are designated by special laws as breaches of military law, or have been committed against military personnel, either during their performance of duties designated by law or on military premises so designated. The jurisdiction of the military courts as regards persons and offences in time of war or state of emergency, the composition of such courts and the secondment of civilian judges and prosecutors to them where necessary shall be regulated by law The organisation and functions of military judicial organs, the personal status of military judges and the relations between judges acting as military prosecutors and the commanders under whom they serve shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of the judiciary and with 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 in accordance with the requirements of military service.” 16. Article 155 of the Criminal Code provides: “It shall be an offence, punishable by two months’ to two years’ imprisonment and a fine ... to publish articles inciting the population to break the law or weakening national security, to issue publications intended to incite others to evade military service...” 17. Article 58 of the Military Penal Code provides: “Undermining national resistance: Any person who commits one of the offences defined in Articles ... and 155 of the Criminal Code ... shall be liable to the sentence laid down in the provision concerned, for undermining national resistance”. 18. At the material time section 11 of the Constitution of Military Courts Act read as follows: “Trial of civilians by military courts: ... the offences referred to in Articles ... and 58 of the Military Penal Code [come within the jurisdiction of the military courts].” 19. Following the amendment introduced on 30 July 2003 by section 6 of Law no. 4963, section 11 of the Constitution of Military Courts Act now reads as follows: “... Military courts shall not try civilians charged with committing the crimes and lesser offences referred to in Article 58 of the Military Penal Code in time of peace.” 20. At international level, the position regarding the jurisdiction of military courts to try civilian defendants is as follows. 21. Among the member States of the Council of Europe Turkey is at present the only country whose Constitution explicitly provides that military courts may try civilians in peacetime. Although there is some diversity in legislation governing the jurisdiction of military courts to try civilians, in the great majority of legal systems that jurisdiction is either non-existent or limited to certain very precise situations, such as complicity between a member of the military and a civilian in the commission of an offence punishable under the ordinary criminal code or the military penal code. 22. In its 1984 General Comment on Article 14 of the International Covenant on Civil and Political Rights the UN’s Human Rights Committee issued the following warning to member States: “The Committee notes the existence, in many countries, of military or special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14. The Committee has noted a serious lack of information in this regard in the reports of some States parties whose judicial institutions include such courts for the trying of civilians. In some countries such military and special courts do not afford the strict guarantees of the proper administration of justice in accordance with the requirements of article 14 which are essential for the effective protection of human rights.” 23. The country reports subsequently adopted enabled the Committee to clarify its position. It no longer hesitated to criticise States whose legislation still permitted military courts to try civilians. The Committee urged those countries to amend their legislation on the question while congratulating those among them who had implemented such a reform. In the final analysis, the Committee took the view that “military courts should not have the faculty to try cases which do not refer to offences committed by members of the armed forces in the course of their duties”. In its 1999 report on Poland the Committee expressed its views even more incisively, stating that it was “concerned at information about the extent to which military courts have jurisdiction to try civilians; despite recent limitations on this procedure, the Committee does not accept that this practice is justified by the convenience of the military court dealing with every person who may have taken some part in an offence primarily committed by a member of the armed forces” (Concluding Observations of the Human Rights Committee: Poland, Doc. CCPR/C/79/ Add. 110, 29 July 1999, § 21). Similar criticisms were made of the Russian Federation and Slovakia, to mention only member States of the Council of Europe, with the Committee taking the line that civilians should not be tried by military courts in any circumstances (see, in particular, Concluding Observations of the Human Rights Committee: Slovakia, Doc. CCPR/C/79/Add. 79, 4 August 1997, § 20). 24. Lastly, mention should be made of the report on the issue of the administration of justice through military tribunals, submitted to the Commission on Human Rights, which is to debate it at its 62nd session in 2006 (Doc. E/CN.4/Sub.2/2005/9 of 16 June 2005). The first of the Principles set out in the report reads: “Military tribunals, when they exist, may be established only by the constitution or the law, respecting the principle of the separation of powers. They must be an integral part of the general judicial system.” However, the rapporteur pointed out “... the ‘constitutionalization’ of military tribunals that exists in a number of countries should not place them outside the scope of ordinary law or above the law but, on the contrary, should include them in the principles of the rule of law, beginning with those concerning the separation of powers and the hierarchy of norms.” Principle No. 2 emphasises respect for the standards of international law in the following terms: “Military tribunals must in all circumstances apply standards and procedures internationally recognized as guarantees of a fair trial, including the rules of international humanitarian law.” Principle No. 5, which deals with the functional jurisdiction of military courts, states: “Military courts should, in principle, have no jurisdiction to try civilians. In all circumstances, the State shall ensure that civilians accused of a criminal offence of any nature are tried by civilian courts.” 25. The settled case-law of the Inter-American Court of Human Rights excludes civilians from the jurisdiction of military courts in the following terms: “In a democratic Government of Laws the penal military jurisdiction shall have a restrictive and exceptional scope and shall lead to the protection of special juridical interests, related to the functions assigned by law to the military forces. Consequently, civilians must be excluded from the military jurisdiction scope and only the military shall be judged by commission of crime or offenses that by its own nature attempt against legally protected interests of military order” (IACHR, Durand and Ugarte v. Peru, 16 August 2000, § 117). That line of case-law, based on Article 8 of the American Convention on Human Rights, was followed in other cases decided by the Court, and the Inter-American Commission had also previously followed that approach (see International Commission of Jurists, Military Jurisdiction and International Law, (2004, pp. 118 et seq.).