The ECHR found a violation of the requirements of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 5 of the Convention for the Protection of Human Ri Сведения: 2018-09-18 10:29:32

The ECHR judgment of 22 November 2016 in the case of Kerman v. Turkey (application No. 35132/05).

In 2005, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Turkey.

In the case, the complaint on the lack of independence of the military court in connection with the current system of judges' evaluation and participation of a serviceman in the court was successfully considered. The case involved a violation of the requirements of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

 

CIRCUMSTANCES OF THE CASE


The applicant, who was a serviceman, was suspected of exceeding official authority. In April 2005, a military court decided to imprison him. The court consisted of two permanent military judges and an officer sitting as a judge ad hoc. The applicant unsuccessfully applied for release, another military court dismissed his complaint. After the trial, the applicant was released from custody in August 2005. In 2009 the military court convicted the applicant, but decided to postpone the announcement of the verdict for five years. At the end of this probationary period, the verdict was abolished and the proceedings dismissed.

Ad hoc (lat.) - for this particular case.


ISSUES OF LAW


Article 5, paragraph 3, of the Convention. The military court that ordered the applicant's detention did not meet the demand for independence for the following reasons:

(i) an officer sitting as an ad hoc judge did not enjoy the same constitutional guarantees as permanent judges. He continued to serve as an officer throughout his participation in the trial and in this capacity was subject to military discipline. In addition, officers involved in the performance of judicial functions were appointed in each case by military leadership, that is, by executive power. Under such circumstances, this member of the court did not have sufficient guarantees of independence to be considered a "judge or other official vested with judicial power" under the law for the purposes of Article 5 § 3 of the Convention;

(ii) the evaluation system of other judges included a high-ranking military officer. The possibility that a member of the military hierarchy might attempt to exert pressure on them through an "officer's evaluation sheet" affected the signs of independence that the judges had to demonstrate. In addition, the Constitutional Court of Turkey itself in two judgments in 2009 pointed out that these two circumstances (the presence of an acting officer and the evaluation system of other judges) affected the principle of independence of the judiciary.


DECISION


The violation of the requirements of Article 5 of the Convention (unanimously) was committed in the case.

Concerning compliance with article 5, paragraph 4, of the Convention. The military courts that examined the applicant's claims to verify the lawfulness of his detention in the first and second instances were characterized by the same lack of guarantees of independence that had been established in accordance with article 5, paragraph 3, of the Convention.


DECISION


The violation of the requirements of Article 5 of the Convention (unanimously) was committed in the case.

Article 5, paragraph 5, of the Convention. In the relevant period, there was no legal norm permitting the possibility of claiming compensation for damage caused by procedural deficiencies or lack of independence resulting from the provisions of the law itself.


DECISION


The violation of the requirements of Article 5 of the Convention (unanimously) was committed in the case.

Concerning compliance with Article 6 of the Convention. The applicant could no longer claim to be a victim of alleged various violations of his right to a fair trial. In this connection, the adjournment of the "announcement" of the verdict to the applicant should be distinguished from the simple suspension of the "execution" of the verdict (see Bober v. Turkey, judgment of 9 April 2013, complaint No. 62590/09). In the present case, the applicant was not ultimately convicted of a final verdict and did not have a criminal record. He did not have to comply with any obligation during the probation period. Thus, all the negative consequences of the alleged lack of fairness of the proceedings were eliminated.


DECISION


The complaint was declared inadmissible for consideration on the merits (due to the lack of victim status).


COMPENSATION


In the application of Article 41 of the Convention. The Court awarded the applicant EUR 6,500 in respect of non-pecuniary damage, claims for pecuniary damage were rejected.

 

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