SECOND SECTION
\nCASE OF AYMELEK v. TURKEY
\n(Application no. 15069\/05)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n30 January 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Aymelek v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Committee composed of:<\/p>\n Ledi Bianku, President, Having deliberated in private on 9 January 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 15069\/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Turkish national, Mr\u00a0Osman\u00a0Aymelek (\u201cthe applicant\u201d), on 25 February 2005.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr\u00a0M.\u00a0S. Liman, lawyer practising in Ankara. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0On 11 February 2016 the complaints concerning the independence and the impartiality of the General Staff Military Court, and the lack of legal assistance during the preliminary investigationwere communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule\u00a054 \u00a7 3 of the Rules of Court.<\/p>\n 4.\u00a0\u00a0The Government objected to the examination of the application by a Committee. After having considered the Government\u2019s objection, the Court rejects it (see Yivli v. Turkey, no.\u00a012723\/11, 14 November 2017).<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1960.<\/p>\n 6.\u00a0\u00a0At the time of the events the applicant was serving in the Turkish Army as a lieutenant-colonel.<\/p>\n 7.\u00a0\u00a0On 8 May, 10 Mayand 11 May 2000, the applicant was interrogated by the military prosecutor within the context of a criminal investigation initiated against him for embezzlement.<\/p>\n 8.\u00a0\u00a0On 16 June 2000 an arrest warrant was issued in respect of the applicant on suspicion of embezzlement.<\/p>\n 9.\u00a0\u00a019 June 2000 the applicant applied to the Military Prosecutor\u2019s Office.He was placed in detention on remand on the same day by the General Staff Military Court.<\/p>\n 10.\u00a0\u00a0On the same day, the applicant gave a power of attorney to a lawyer.<\/p>\n 11.\u00a0\u00a0On 22 June 2000 the applicant\u2019s brother\u015e\u00fckr\u00fcAymelek, who was a lawyer,was also placed in detention on remand.On 10 April 2012 the applicant\u2019s brother was released.<\/p>\n 12.\u00a0\u00a0On 26 June 2000 the General Staff Military Prosecutor filed a bill of indictment with the General Staff Military Court charging the applicantwith 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, \u015e\u00fckr\u00fcAymelek and UlviyeToprakk\u0131ran were also charged with the same bill of indictment with embezzlement and breaching Article 13 of the Law No. 3628.<\/p>\n 13.\u00a0\u00a0On 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.<\/p>\n 14.\u00a0\u00a0On 19 September 2001, the applicant submitted a petition with the prison authorities, complaining that he had not been able to see his brother \u015e\u00fckr\u00fc\u00a0Aymelek, 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.<\/p>\n 15.\u00a0\u00a0On 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.<\/p>\n 16.\u00a0\u00a0On 6 January 2003 the applicant appealed against the decision of the General Staff Military Court.<\/p>\n 17.\u00a0\u00a0On 2 April 2003 the Military Court of Cassation quashed the judgment of 19 September 2002 on procedural grounds and on the merits.<\/p>\n 18.\u00a0\u00a0On 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.<\/p>\n 19.\u00a0\u00a0On 2 June 2004 the Military Court of Cassation upheld the decision of 17\u00a0December 2003.<\/p>\n 20.\u00a0\u00a0On 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\u2019 written statements to the Military Court of Cassation as well.<\/p>\n 21.\u00a0\u00a0On 19 February 2014 rejected the applicant\u2019s request for reopening of the criminal proceedings, on the grounds that the witness\u2019 statements did not have any evidential value, which could warranta lesser sentence or the acquittal of the applicant.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 22.\u00a0\u00a0A description of the relevant domestic law concerning the composition and functioning of military courts at the material time may be found in G\u00fcrkan v. Turkey (no. 10987\/10, \u00a7\u00a7 7-8, 3 July 2012).[1]<\/p>\n 23.\u00a0\u00a0Sections 83 and 85(1) of the Act Governing the Formation and Proceedings of Martial Law Courts (Law no. 353), which was in force at the time, provided as follows:<\/p>\n Section 83<\/p>\n \u201cAt the beginning of the interrogation, the accused shall be informed of the charges against him.<\/p>\n In the course of the interrogation the accused must not be prevented from bringing forward any evidence in his favour.<\/p>\n In the first interrogation, the identity and personal status of the accused shall be determined.<\/p>\n In cases where a person is accused of committing a crime punishable by a heavy penalty, he shall be interrogated by the military public prosecutor even if his statements had been taken previously.\u201d<\/p>\n Section 85 (1)<\/p>\n \u201cThe accused shall have access to legal assistance of one or more lawyers at any stage of the investigation.\u201d<\/p>\n 24.\u00a0\u00a0Following a referendum held on 16 April 2017, Law no. 6771 was adopted; Articles 145 and 157 of the Constitution were repealed and the following paragraph was added to Article 142 of the Constitution:<\/p>\n \u201c… No military courts shall be formed other than disciplinary courts. However, in a state of war, military courts may be formed with jurisdiction to try offences committed by military personnel in relation to their duties.\u201d<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0THE GOVERNMENT\u2019S PRELIMINARY OBJECTION<\/p>\n 25.\u00a0\u00a0In their observations dated 21 October 2016, the Government argued that the applicant\u2019s observations had not been submitted in one of the official languages of the Court as required by Rule 34 \u00a7 1 of the Rules of Court and that there was nothing in the case file demonstrating that he had been granted leave to use the Turkish language in the proceedings before the Court. They invited the Court not to take into account the applicant\u2019s observations and claims for just satisfaction.<\/p>\n 26.\u00a0\u00a0The Court notes that the President of the Section had decided, in accordance with Rule 34 \u00a7 3 of the Rules of Court, to grant him leave to use the Turkish language in the written proceedings before the Court. The Court further notes that it has already examined and dismissed a similar objection by the respondent Government (see At\u0131lgan and Others v.\u00a0Turkey, nos.\u00a014495\/11 and 10 others, \u00a7 12, 27 January 2015). The Court finds no reason to reach a different conclusion in the present case. The Government\u2019s arguments on this point should therefore be rejected.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n A.\u00a0\u00a0As to the independence and impartiality of the General Staff Military Court<\/strong><\/p>\n 27.\u00a0\u00a0The applicant maintained that the General Staff Military Court which had tried and convicted himhad not beenan independent and impartial tribunal within the meaning of Article 6 \u00a7 1 of the Convention, which reads as follows:<\/p>\n \u201cIn the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by an independent and impartial tribunal established by law.\u201d<\/p>\n 1.\u00a0\u00a0Admissibility<\/em><\/p>\n 28.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 2.\u00a0\u00a0Merits<\/em><\/p>\n 29.\u00a0\u00a0The applicant complained that the General Staff Military Court which tried and convicted him had not been independent and impartial, as required by the Article 6 \u00a7 1 of the Convention, given that it was composed of two military judges and a military officer.The applicant further complained under Article 6 \u00a7 1 of the Convention that the military prosecutor, who had conducted the investigation against the applicant, had subsequently been appointed as a judge and sat on the bench of the General Staff Military Court that tried and convicted the applicant. According to the applicant, that appointment hindered the domestic tribunal\u2019s independence and impartiality.<\/p>\n 30.\u00a0\u00a0Referring to the Court\u2019s judgment in the case of G\u00fcrkan(cited above), the Government submitted that they were aware of the Court\u2019s case-law under Article 6 \u00a7 1 of the Convention.<\/p>\n 31.\u00a0\u00a0The Court observes that it has already examined the same grievance in the case of G\u00fcrkan v. Turkeyand found a violation of Article 6 \u00a7 1 of the Convention (cited above, \u00a7\u00a7 13-20). In that judgment, the Court held that the military criminal court which had tried and convicted the applicant could not be considered to have been independent and impartial within the meaning of Article 6 of the Convention. Because the military officer sitting in the bench had been appointed by their hierarchical superiors and had not enjoyed same constitutional safeguards provided to the other two military judges.<\/p>\n 32.\u00a0\u00a0The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned G\u00fcrkanv. Turkeyjudgment (no. 10987\/10, 3 July 2012).<\/p>\n 33.\u00a0\u00a0The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 \u00a7 1 of the Convention.<\/p>\n 34.\u00a0\u00a0The Court further notes that by making such an assessment of independence and impartiality of the General Staff Military Court it also disposes of the applicant\u2019s further complaint concerning independence and impartiality of the same court under Article 6 \u00a7 1.<\/p>\n B.\u00a0\u00a0As regards the applicant\u2019s complaint under Article 6 \u00a7\u00a7 1 and 3\u00a0(c) of the Convention<\/strong><\/p>\n 35.\u00a0\u00a0The applicant alleged that he had not been allowed to see his lawyer who was also his brother while they were both in detention within the context of the same criminal investigation. In that connection, he complained that his right to a fair trial and his right to defend himself through legal assistance had been violated.<\/p>\n 36.\u00a0\u00a0The Government maintained that the complaint should be rejected for non-exhaustion of domestic remedies, as it was not invoked before the domestic authorities. They further argued that the complaint should be declared inadmissible for being manifestly ill-founded in any case, as the applicant had never mentioned his brother\u2019s capacity of lawyer nor his request for meeting him in terms of a relationship of lawyer and client.<\/p>\n 37.\u00a0\u00a0The Court observes that the applicant submitted a letter of complaint dated 19 September 2001 to the prison authorities and complained of not having been able to see his brother who was also detained within the context of the same criminal proceedings. The applicant stated that his request had not been accepted. However, the Court notes that there is nothing in the case file showing that the applicant requested to see his brother in his capacity as a lawyer. His handwritten letter also did not contain any such request (see paragraph\u00a013). Moreover, he had never raised such a complaint before the domestic courts.<\/p>\n 38.\u00a0\u00a0It further notes that there were no statutory restrictions on an accused\u2019s right of access to a lawyer at any stage of the criminal investigation by the judicial authorities of the army (see Section 85(1) of Law no. 353, quoted in paragraph 22 above; and compare and contrast with Salduz v. Turkey [GC], no. 36391\/02, ECHR 2008). The applicant was represented by lawyers of his own choosing during the criminal proceedings.<\/p>\n 39.\u00a0\u00a0In the light of the foregoing, the Court finds that there is no indication in the case file showing that the applicant\u2019s right of access to a lawyer had been restricted at any stage of the proceedings. The Court therefore cannot conclude that the applicant was in fact denied legal assistance.<\/p>\n 40.\u00a0\u00a0It follows that this part of the application is manifestly ill\u2011founded and must be rejected pursuant to Article 35 \u00a7\u00a7 3 and 4 of the Convention.<\/p>\n III.\u00a0\u00a0OTHER ALLEGED VIOLATIONS OF THE CONVENTION<\/p>\n 41.\u00a0\u00a0In his observations dated 6 September 2016 the applicant submitted a number of new complaints under Article 6 and Article 1 of Protocol No.\u00a01. He complained of a violation of his right to a fair trial in relation to proceedings for reopening of criminal proceedings, given that his request for reopening of the criminal proceedings was rejected although there was a new piece of evidence which would lead to his acquittal.<\/p>\n 42.\u00a0\u00a0The Court notes that that complaint is incompatible rationemateriae, as Article 6 does not apply to proceedings for the reopening of criminal proceedings, given that someone who applies for his case to be reopened and whose sentence has become final is not \u201ccharged with a criminal offence\u201d within the meaning of the said Article (see Fischer v.\u00a0Austria (dec.), no. 27569\/02, ECHR 2003\u2011VI, and see,mutatis mutandis,Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867\/12, \u00a7\u00a7 60-72, ECHR 2017 (extracts)).<\/p>\n 43.\u00a0\u00a0He further complained of the proceedings regarding the confiscation of his property following his conviction for embezzlement under Article\u00a06 and Article 1 of Protocol No.1. The Court notes that the final decision of the domestic courts regarding the confiscation of the applicant\u2019s property was given on 17 September 2015 by the Military Court of Cassation, and the applicant\u2019s individual application regarding those complaints is currently pending before the Constitutional Court. This complaint is premature and the Court must therefore reject it for non-exhaustion of domestic remedies pursuant to Article 35 \u00a7\u00a7 1 and 4 of the Convention (see, for example,Mustafa Avci v. Turkey, no. 39322\/12, \u00a7 79, 23 May 2017).<\/p>\n IV.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 44.\u00a0\u00a0The applicant claimed 100,000 euros (EUR) in respect of pecuniary damage and EUR50,000 non-pecuniary damage.Without providing any documents in support of his claims, the applicant further claimed legal fees without specifying the amount.<\/p>\n 45.\u00a0\u00a0In their written submissions, the Government objected to the applicant\u2019s just satisfaction claims.<\/p>\n 46.\u00a0\u00a0As regards pecuniary damage, the Court notes that it cannot speculate as to what the outcome of proceedings compatible with Article\u00a06 of the Convention would have been. Accordingly, it makes no award under this head.<\/p>\n 47.\u00a0\u00a0As regards non-pecuniary damage, taking into account the recent amendments in domestic law, and the possibility of a retrial before civil courts, the Court, deciding on an equitable basis, awards EUR 1,500 to the applicant (see Ta\u015f\u00e7\u0131 v. Turkey, no. 43868\/06, \u00a7 18, 26 September 2017).<\/p>\n 48.\u00a0\u00a0In accordance with the Court\u2019s case-law an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant did not submit any receipts or other vouchers on the basis of which a specific amount could be established. Accordingly, the Court does not make any award under this head.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declares the complaints concerning independence and impartiality of the General Staff Military Court under Article 6 \u00a71 admissible and the remainder of the application inadmissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 6 \u00a7 1 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three monthsthe amount EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of non\u2011pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 4.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 30 January 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Hasan Bak\u0131rc\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 LediBianku _____________<\/p>\n [1].\u00a0\u00a0Since the amendment came into force on 30 June 2010 (Law no. 6000) concerning the Law no. 353 on the Composition and Functioning of Military Courts, the Military Criminal Courts are composed of three military professional judges.<\/p>\n
\nNeboj\u0161a Vu\u010dini\u0107,
\nJon Fridrik Kj\u00f8lbro, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n