European Court of Human Rights - Case of Incal v. Turkey (1998) (excerpts related to Judicial and Prosecution Systems) (English)
EUROPEAN COURT OF HUMAN RIGHTS
CASE OF INCAL v. TURKEY
(41/1997/825/1031)
JUDGMENT
STRASBOURG
9 June 1998
(excerpts - see in particular paragraphs 65 through 73)
Article 10 of the Convention
(…)
Article 6 of the Convention
Reference to case-law: independence and impartiality.
National Security Courts: set up pursuant to Constitution to deal with offences affecting Turkey’s territorial integrity and national unity, its democratic regime and its State security in particular – sit as three-judge benches, of whom one member is a regular officer belonging to Military Legal Service.
Status of military judges: provides certain guarantees of independence and impartiality placing them in a similar position to their civilian counterparts, both having identical constitutional safeguards – on other hand, during their term of office (four years, renewable)they continue to belong to army, are subject to military discipline and have assessment reports compiled on them by army, which, with the administrative authorities, plays an important role in decisions pertaining to their appointment.
Case considered from standpoint of Article 10: no incitement to violence, hostility or hatred – importance attached to fact that a civilian had to appear before a court partly composed of members of armed forces – presence of a military judge as member of National Security Court: could cause a legitimate fear that court would allow itself to be unduly influenced by considerations that had nothing to do with case – legitimate doubts as to court’s independence and impartiality.
Conclusion: violation (twelve votes to eight) – not necessary to consider other complaints under Article 6 § 1 (nineteen votes to one).
(…)
COURT’S CASE-LAW REFERRED TO
18.1.1978, Ireland v. the United Kingdom; 23.4.1987, Ettl and Others v. Austria; 24.5.1989, Hauschildt v. Denmark; 27.8.1991, Demicoli v. Malta; 23.4.1992, Castells v. Spain; 25.6.1992, Thorgeir Thorgeirson v. Iceland; 19.12.1994, Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria; 24.2.1993, Fey v. Austria; 9.2.1995, Vereniging WeekbladBluf!v. the Netherlands; 26.9.1995, Vogt v. Germany; 10.6.1996, Pullar v. the United Kingdom; 18.12.1996, Aksoy v. Turkey; 25.2.1997, Findlay v. the United Kingdom; 25.11.1997, Zana v. Turkey; 19.12.1997, Helle v. Finland; 30.1.1998, United Communist Party of Turkey and Others v. Turkey; 1.4.1998, Akdivar and Others v. Turkey (Article 50); 20.5.1998, Gautrin and Others v. France
In the case of Incal v. Turkey,
(…)
AS TO THE FACTS
I. the CIRCUMSTANCES OF THE CASE
9. Mr Ibrahim Incal, a Turkish national born in 1953, lives in Izmir. A lawyer by profession, he was at the material time a member of the executive committee of the Izmir section of the People’s Labour Party ("the HEP"). That party, which was represented in the National Assembly, was dissolved by the Constitutional Court on 14 July 1993.
10. On 1 July 1992 the executive committee decided to distribute in the Izmir constituency a leaflet criticising the measures taken by the local authorities, in particular against small-scale illegal trading and the sprawl of squatters’ camps around the city.
(…)
11. By a letter of 2 July 1992, accompanied by a copy of the leaflet in question, the president of the HEP informed the Izmir prefecture of the executive committee’s decision (see paragraph 10 above) and asked for permission to implement it.
12. The Izmir security police, to whom this request had been referred, considered that the leaflet contained separatist propaganda capable of inciting the people to resist the government and commit criminal offences.
On 3 July 1992 they asked the Principal Public Prosecutor attached to the Izmir National Security Court ("the public prosecutor", "the National Security Court") to state his opinion as to whether the contents of the leaflet contravened the law.
13. On the same day, at the request of the public prosecutor’s office, a substitute judge of the National Security Court issued an injunction ordering the seizure of the leaflets and prohibiting their distribution.
The police searched the HEP’s premises in Izmir, first at the headquarters, where the party leaders handed over, without demur, nine thousand copies of the leaflet which were still parcelled up, and then at the Buca district office, where the thousand remaining copies were seized.
14. Still on 3 July 1992 the public prosecutor’s office opened a criminal investigation against the HEP’s local leaders and the members of its executive committee, including the applicant.
15. On 27 July 1992 the public prosecutor instituted criminal proceedings in the National Security Court against the applicant and the other eight members of the HEP committee who had taken part in the decision of 1 July 1992 (see paragraph 10 above). Citing the text of the leaflet, he accused them of attempting to incite hatred and hostility through racist words and asked the court to apply Articles 312 §§ 2 and 3 of the Criminal Code, section 5 of the Prevention of Terrorism Act (Law no. 3713) and additional section 4 of the Press Act (Law no. 5680) (see paragraphs 21, 23 and 24 below). He also asked the court to order confiscation of the leaflets.
16. On 9 February 1993 the National Security Court, composed of three judges, one of whom was a member of the Military Legal Service, found the applicant guilty of the offences charged and sentenced him to six months and twenty days’ imprisonment and a fine of 55,555 Turkish liras. It also ordered the confiscation of the leaflets and disqualified him from driving for fifteen days.
In its interpretation of the wording of the leaflet, the National Security Court accepted the public prosecutor’s oral submissions entirely, except for that part which related to the applicability of the Prevention of Terrorism Act (Law no. 3713). It noted in particular that the leaflet suggested recourse to resistance against the police and the establishment of "neighbourhood committees", which it held to be illegal forms of protest. It further held thatthe offence had been intentionally committed, since the accused had not contested either the existence or wording of the text on which the charge was based.
With regard to the severity of the sentence, it observed that although commission of the offence through the medium of print was an aggravating circumstance, it was necessary to take into account the accused’s good faith and the fact that the authorities had been able to lay hands on the leaflets before they had been distributed.
17. On 9 March 1993 the applicant and the other convicted persons appealed to the Court of Cassation. In their notice of appeal they asked for a public hearing to be held and challenged the National Security Court’s interpretation of the leaflet and its refusal to commute the prison sentence to a fine.
18. On 20 May the Principal Public Prosecutor attached to the Court of Cassation forwarded the case file together with an opinion couched in a standard form of words – which was not communicated to Mr Incal – asking the court to uphold the judgment.
19. In a judgment of 6 July 1993 the Court of Cassation upheld all the operative provisions of the impugned judgment, after observing that, regard being had to the nature and length of the sentence imposed at first instance, it was not necessary to hold a hearing.
20. On 23 August 1993 the prosecuting authorities decided, at the applicant’s request, to stay execution of the prison sentence for four months.
(…)
PROCEEDINGS BEFORE THE COMMISSION
34. Mr Incal applied to the Commission on 7 September 1993. He asserted thathe had not had a fair trial in the National Security Court, firstly because it could not be regarded as an independent tribunal, and secondly because it had refused to commute his sentence of imprisonment into a fine on account of his political opinions (Article 6 § 1 of the Convention taken separately and in conjunction with Article 14). He also submitted that by rejecting his request for leave to appear and by omitting to send him a copy of the Principal Public Prosecutor’s opinion on his appeal on points of law the Court of Cassation had breached Article 6 §§ 1 and 3 (b). He further alleged that his conviction for helping to prepare a political leaflet constituted a breach of Articles 9 and 10 and that his temporary disqualification from driving was a degrading punishment contrary to Article 3.
35. On 16 October 1995 the Commission declared inadmissible the complaint relating to the applicant’s disqualification from driving and declared the remainder of the application (no. 22678/93) admissible. In its report of 25 February 1997 (Article 31), it expressed the opinion
(a) that there had been a violation of Article 10 (unanimously);
(b) that, contrary to Article 6 § 1, the applicant had not had a fair hearing by an independent and impartial tribunal (unanimously);
(c) that there had been no violation of Article 6 § 1 taken in conjunction with Article 14 (unanimously);
(d) that the fact that the applicant had been unable to reply to the public prosecutor’s opinion had breached Article 6 § 1 (twenty-six votes to five); and
(e) that there had been no violation of Article 6 § 1 on account of the fact that the applicant had not appeared in the Court of Cassation (twenty-six votes to five).
The full text of the Commission’s opinion and of the partly dissenting opinion contained in the report is reproduced as an annex to this judgment.
FINAL SUBMISSIONS TO THE COURT
36. In their memorial, and later at the hearing, the Government asked the Court to hold that the proceedings complained of had not infringed the rights secured to the applicant by Articles 6, 10 and 14 of the Convention.
37. The applicant asked the Court to hold that Article 6 § 1, Article 9 and Article 10 of the Convention had been breached and to award him just satisfaction under Article 50.
AS TO THE LAW
(…)
II. Alleged violation of Article 6 § 1 of the Convention
61. Mr Incal further argued that neither his trial in the Izmir National Security Court nor the proceedings before the Criminal Division of the Court of Cassation had satisfied the requirements of Article 6 § 1 of the Convention, the relevant part of which provides:
"In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal…"
He submitted that the National Security Court was not an "independent and impartial tribunal"; as to the Court of Cassation, it had not respected the principle of adversarial procedure or equality of arms and had not held a hearing.
The Government rejected this argument, whereas the Commission accepted it, except for that part which related to the lack of a public hearing.
A. The proceedings in the National Security Court
1. Arguments of the participants
(a) The applicant
62. Mr Incal submitted that the Izmir National Security Court could not be regarded as an "independent and impartial tribunal" within the meaning of Article 6 § 1. The military judge who sat in it was dependent on the executive and, more specifically, on the military authorities, because while performing his judicial duties he remained an officer and maintained his links with the armed forces and his hierarchical superiors. The latter retained the power to influence his career by means of the assessment reports they drew up on him.
Mr Incal maintained that the National Security Courts were special courts set up to protect the State’s interests rather than to do justice as such; in that respect their function was similar to that of the executive. The presence of a military judge in the court’s composition only served to confirm the army’s authority and its intimidating influence over both the defendant and public opinion in general. The fact that a military judge was able to pass judgment on a civilian, and a politician at that, in connection with an offence that had nothing to do with military justice, evidenced the armed forces’ influence over the handling of Turkey’s political problems.
(b) The Government
63. The Government submitted that the procedure for the appointment of the military judges sitting as members of the National Security Courts and the safeguards they enjoyed in the performance of their judicial duties perfectly satisfied the criteria laid down by the Court’s case-law on the subject.
The arguments concerning these judges’ responsibility towards their commanding officers and the rules governing their professional assessment were overstated; their duties as officers were limited to obeying military regulations and observing military courtesies. They were safe from any pressure from their hierarchical superiors, as such an attempt was punishable under the Military Criminal Code. The assessment system applied only to military judges’ non-judicial duties. In addition, they had access to their assessment reports and could even challenge their content in the Supreme Military Administrative Court.
In the present case, neither the colleagues or hierarchical or disciplinary superiors of the military judge in question nor the public authorities who had appointed him had any connection with the parties to Mr Incal’s trial or any interest whatsoever in the judgment to be delivered.
(c) The Commission
64. In the Commission’s submission, the legal rules governing the composition and functioning of the National Security Courts raised a number of questions about their independence, particularly as regards the system for the appointment and assessment of the military judges who sat in them. It took the view that the participation of a military judge in criminal proceedings against a civilian showed the exceptional nature of such proceedings and could be interpreted as an intervention by the armed forces in the field of civil justice. The applicant’s concerns about the National Security Court’s lack of impartiality could therefore be regarded as objectively justified.
2. The Court’s assessment
65. The Court reiterates that in order to establish whether a tribunal can be considered "independent" for the purposes of Article 6 § 1, regard must be had,inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence(see, among many other authorities, the Findlay v. the United Kingdom judgment of 25 February 1997,Reports1997-I, p. 281, § 73).
As to the condition of "impartiality" within the meaning of that provision, there are two tests to be applied: the first consists in trying to determine the personal conviction of a particular judge in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect. It was not contested before the Court that only the second of these tests was relevant in the instant case (see,mutatis mutandis, the Gautrin and Others v. France judgment of 20 May 1998,Reports1998-III, pp. 1030–31, § 58).
In the instant case, however, the Court will consider both issues – independence and impartiality – together.
66. Law no. 2845, promulgated on 16 June 1983, pursuant to Article 143 of the Constitution, governs the composition and functioning of the National Security Courts (see paragraph 28 above). Under the provisions of section 5, these courts are composed of three judges, one of whom is a regular officer and member of the Military Legal Service.
As the independence and impartiality of the two civilian judges is not disputed, the Court must determine what the position was with regard to the military judge.
67. The Court notes that the status of military judges sitting as members of National Security Courts provides certain guarantees of independence and impartiality. For example, military judges undergo the same professional training as their civilian counterparts, which gives them the status of career members of the Military Legal Service. When sitting as members of National Security Courts, military judges enjoy constitutional safeguards identical to those of civilian judges; in addition, with certain exceptions, they may not be removed from office or made to retire early without their consent (see paragraphs 27 and 28 above); as regular members of a National Security Court they sit as individuals; according to the Constitution, they must be independent and no public authority may give them instructions concerning their judicial activities or influence them in the performance of their duties (see paragraphs 27 and 30 above and,mutatis mutandis, the Ettl and Others v. Austria judgment of 23 April 1987, Series A no. 117, p. 18, § 38).
68. On the other hand, other aspects of these judges’ status make it questionable. Firstly, they are servicemen who still belong to the army, which in turn takes its orders from the executive. Secondly, they remain subject to military discipline and assessment reports are compiled on them by the army for that purpose (see paragraphs 28 and 29 above). Decisions pertaining to their appointment are to a great extent taken by the administrative authorities and the army (see paragraph 29 above). Lastly, their term of office as National Security Court judges is only four years and can be renewed.
69. The Court notes that the National Security Courts were set up pursuant to the Constitution to deal with offences affecting Turkey’s territorial integrity and national unity, its democratic regime and its State security (see paragraphs 26 and 28 above). Their main distinguishing feature is that, although they are non-military courts, one of their judges is always a member of the Military Legal Service.
70. At the hearing before the Court the Government submitted that the only justification for the presence of military judges in the National Security Courts was their undoubted competence and experience in the battle against organised crime, including that committed by illegal armed groups. For years the armed forces and the military judges – in whom, moreover, the people placed great trust – had acted, partly under martial law, as the guarantors of the democratic and secular Republic of Turkey, while assuming their social, cultural and moral responsibilities. For as long as the terrorist threat persisted, military judges would have to continue to lend their full support to these special courts, whose task was extremely difficult.
It is not for the Court – which is aware of the problems caused by terrorism (see,mutatis mutandis, the judgments cited in paragraph 58 above) – to pass judgment on these assertions. Its task is not to determinein abstractowhether it was necessary to set up such courts in a Contracting State or to review the relevant practice, but to ascertain whether the manner in which one of them functioned infringed the applicant’s right to a fair trial(see, among many other authorities,mutatis mutandis, the Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, § 27).
71. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused (see, among other authorities, the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, § 48, the Thorgeir Thorgeirson judgment cited above, p. 23, § 51, and the Pullar v. the United Kingdom judgment of 10 June 1996,Reports1996-III, p. 794, § 38). In deciding whether there is a legitimate reason to fear that a particular court lacks independence or impartiality, the standpoint of the accused is important without being decisive. What is decisive is whether his doubts can be held to be objectively justified (see,mutatis mutandis, the Hauschildt judgment cited above, p. 21, § 48, and the Gautrin and Others judgment cited above, pp. 1030–31, § 58).
72. Mr Incal was convicted of disseminating separatist propaganda capable of inciting the people to resist the government and commit criminal offences, for participating in the decision to distribute the leaflet in issue, taken on 1 July 1992 by the executive committee of the Izmir section of the HEP (see paragraphs 15 and 16 above). As the acts which gave rise to the case were considered likely to endanger the founding principles of the Republic of Turkey, or to affect its security, they cameipso jureunder the jurisdiction of the National Security Courts (see paragraph 28 above).
The Court notes, however, that in considering the question of compliance with Article 10 it did not discern anything in the leaflet which might be regarded as incitement of part of the population to violence, hostility or hatred between citizens (see paragraph 50 above). Moreover, the National Security Court refused to apply the Prevention of Terrorism Act (Law no. 3713) (see paragraph 16 above). In addition, the Court attaches great importance to the fact that a civilian had to appear before a court composed, even if only in part, of members of the armed forces.
It follows that the applicant could legitimately fear that because one of the judges of the Izmir National Security Court was a military judge it might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case. The Court of Cassation was not able to dispel these concerns, as it did not have full jurisdiction (see paragraph 25 above and, among other authorities,mutatis mutandis, the Helle v. Finland judgment of 19 December 1997,Reports1997-VIII, p. 2926, § 46).
73. In conclusion,the applicant had legitimate cause to doubt the independence and impartiality of the Izmir National Security Court.
There has accordingly been a breach of Article 6 § 1.
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FOR THESE REASONS, THE COURT
Holds unanimously that there has been a breach of Article 10 of the Convention;
Holds by twelve votes to eight that there has been a breach of Article 6 § 1 of the Convention as regards the complaint relating to the independence and impartiality of the Izmir National Security Court;
Holds by nineteen votes to one that it is not necessary to consider the applicant’s other complaints under Article 6 § 1, whether taken separately or in conjunction with Article 14 of the Convention;
4. Holds unanimously
(a) that the respondent State is to pay Mr Incal, within three months, the following sums, to be converted into Turkish liras at the rate applicable on the date of settlement:
(i) 30,000 (thirty thousand) French francs in respect of non-pecuniary damage;
(ii) 15,000 (fifteen thousand) French francs in respect of costs and expenses;
(b) that simple interest at an annual rate of 3.36% shall be payable on these sums from the expiry of the above-mentioned three months until settlement;
5. Dismisses unanimously the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 9 June 1998.
PARTLY CONCURRING OPINION OF JUDGE GÖLCÜKLÜ
(Translation)
I voted, with the majority, for the finding of a breach of Article 10, not on account of the content of the leaflets in question, but because they were seized before they could be distributed and because the applicant was convicted on account of opinions which were never disseminated.
JOINT PARTLY OPINION OF JUDGES THÓR VILHJÁLMSSON, GÖLCÜKLÜ, MATSCHER, FOIGHEL, SIR JOHN FREELAND,LOPES ROCHA, WILDHABER AND GOTCHEV
(Translation)
Given the security situation in Turkey and the involvement of the armed forces in the process of countering terrorism, the Turkish authorities have considered it necessary to reinforce the National Security Courts, as specialised courts of criminal justice, by the inclusion of a military judge.
We voted against the finding of a violation of Article 6 § 1 in respect of the applicant’s complaint that the National Security Court which tried him was not an "independent and impartial" tribunal on account of the fact that one of its members was a military judge, which allegedly caused the applicant to doubt its independence and impartiality.
We do not accept that argument.
In a number of cases the Court has acknowledged that a special court whose members include "experts" may be a "tribunal" within the meaning of Article 6 § 1. The domestic legislation of the Council of Europe member States provides many examples of courts in which professional judges sit alongside specialists in a particular sphere whose knowledge is desirable and even necessary in deciding certain cases, provided that all the members of the court can offer the required guarantees of independence and impartiality.
As to military judges who are members of the National Security Courts, paragraph 67 of the judgment describes the constitutional safeguards they enjoy, and paragraph 68 goes on to say that certain aspects of their status make it questionable. We consider the conclusions the Court drew from these aspects – the fact that military judges remain subject to military discipline and that assessment reports are compiled on them for that purpose, that decisions pertaining to their appointment are taken by the administrative authorities and the army and that their term of office as National Security Court judges is only four years – unconvincing.
In that connection we would observe that it is possible for ordinary judges too to be subject to assessment and to disciplinary rules and for decisions pertaining to their appointment to be taken by the administrative authorities, and that the Court has held even a three-year term of office to be sufficient. In addition, at the end of their term of office as National Security Court judges, where that term is not renewed, the judges in question remain military judges for the whole duration of their careers.
As to the argument that the composition of the court may have caused the applicant to harbour doubts about its impartiality and independence, from the point of view of "appearances", we consider that, in view of the constitutional safeguards enjoyed by military judges, doubts about their independence and impartiality cannot be regarded as objectively justified.
The logical consequence of asserting the contrary would be to cease to consider that even specialised courts can be "tribunals" for the purposes of Article 6 § 1, thus departing from the Court’s well-established case-law.
SUMMARY
(This summary by the registry does not bind the Court).
Judgment delivered by a Grand Chamber
Turkey – conviction for participating in the preparation of a leaflet (Article 312 of the Criminal Code) –independence and impartiality of the Izmir National Security Court