CASE OF AYMELEK v. TURKEY
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal)
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić
5. The applicant was born in 1960. 6. At the time of the events the applicant was serving in the Turkish Army as a lieutenant-colonel. 7. On 8 May, 10 May and 11 May 2000, the applicant was interrogated by the military prosecutor within the context of a criminal investigation initiated against him for embezzlement. 8. On 16 June 2000 an arrest warrant was issued in respect of the applicant on suspicion of embezzlement. 9. 19 June 2000 the applicant applied to the Military Prosecutor’s Office. He was placed in detention on remand on the same day by the General Staff Military Court. 10. On the same day, the applicant gave a power of attorney to a lawyer. 11. On 22 June 2000 the applicant’s brother Şükrü Aymelek, who was a lawyer, was also placed in detention on remand. On 10 April 2012 the applicant’s brother was released. 12. On 26 June 2000 the General Staff Military Prosecutor filed a bill of indictment with the General Staff Military Court charging the applicant with embezzlement under Section 131 of Military Criminal Code, involving in trade activities as a soldier under Additional Section 1 of Military Criminal Code and breaching Article 13 of the Law No. 3628 (Law on Disclosure of Assets and Fight Against Bribery and Corruption). The siblings of the applicant, Şükrü Aymelek and Ulviye Toprakkıran were also charged with the same bill of indictment with embezzlement and breaching Article 13 of the Law No. 3628. 13. On 29 May 2001 the General Staff Military Prosecutor filed an additional bill of indictment and charged the accused with additional acts related to the crimes already stated in the first bill of indictment. 14. On 19 September 2001, the applicant submitted a petition with the prison authorities, complaining that he had not been able to see his brother Şükrü Aymelek, who was also detained in remand. The applicant stated that he regretted that his brother was also in prison because of him, and requested to see him. 15. On 19 September 2002 the applicant was found guilty and sentenced to imprisonment for embezzlement and being involved in trade activities as a soldier by the General Staff Military Court, composed of a military officer with no legal background and two military judges. 16. On 6 January 2003 the applicant appealed against the decision of the General Staff Military Court. 17. On 2 April 2003 the Military Court of Cassation quashed the judgment of 19 September 2002 on procedural grounds and on the merits. 18. On 17 December 2003 the General Staff Military Court found the applicant guilty for embezzlement and being involved in trade activities as a soldier, but reduced his prison sentence. The applicant appealed. 19. On 2 June 2004 the Military Court of Cassation upheld the decision of 17 December 2003. 20. On 13 January 2014 the applicant requested from the Military Court of Cassation to reopen the criminal proceedings alleging that a witness who had not been heard, was ready to give statements before the court. The applicant submitted that witness’ written statements to the Military Court of Cassation as well. 21. On 19 February 2014 rejected the applicant’s request for reopening of the criminal proceedings, on the grounds that the witness’ statements did not have any evidential value, which could warrant a lesser sentence or the acquittal of the applicant.