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European Court of Human Rights - Case of Incal v. Turkey (1998) (excerpts related to Fair Trial (Right to a)) (English)
European Court of Human Rights - case of Incal v. Turkey (1998) (excerpts)
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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, Reports 1997-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, Reports 1998-III, pp. 1030–31, § 58).
In the instant case, however, the Court will consider both issues – independence and impartiality – together.
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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 İzmir 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 came ipso jure under 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 İzmir 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, Reports 1997-VIII, p. 2926, § 46).