Chapter 4 • Independence and Impartiality of Judges, Prosecutors and Lawyers Lastly, the Inter-American Commission on Human Rights has recommended that all member States of the OAS “... take the legislative and other measures necessary, pursuant to article 2 of the American Convention, to ensure that civilians charged with criminal offences of any kind be tried by ordinary courts which offer all the essential guarantees of independence and impartiality, and that the jurisdiction of military tribunals be confined to strictly military offences”.126 ***** While the European Court of Human Rights has decided, with respect to Turkey, that it considers that “its task is not to determine in abstracto the necessity for the establishment of National Security Courts”, it still has the task of examining whether, “viewed objectively”, the applicants concerned, being civilians, “had a legitimate reason to fear that [the court trying them] lacked independence and impartiality”.127 In the Sürek case, among others, the applicant was prosecuted in the Istanbul National Security Court for disclosing the identity of officials involved in the fight against terrorism; the Court concluded that it was understandable that he “should have been apprehensive about being tried by a bench which included a regular army officer, who was a member of the Military Legal Service”.128 It followed that “he could legitimately fear that the Istanbul National Security Court might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case. In other words, the applicant’s fears as to that court’s lack of independence and impartiality can be regarded as objectively justified. The proceedings in the Court of Cassation were not able to dispel these fears since that court did not have full jurisdiction.”129 As to the trial of army officers by courts martial, the European Court of Human Rights has in numerous cases had to consider whether such courts in the United Kingdom have been “independent and impartial” within the meaning of article 6(1) of the European Convention on Human Rights. In the case of Findlay, for instance, it concluded that a court martial did not comply with these requirements in view in particular of the central part played in the prosecution by the convening officer, who “decided which charges should be brought and which type of court martial was most appropriate”; he further “convened the court martial and appointed its members and the prosecuting and defending officers”.130 Furthermore, the court members appointed by the convening officer were of subordinate rank to him, and many of these members, including the president, “were directly or ultimately under his command”. The 126 OAS doc. OEA/Ser.L/V/II.95, doc. 7 rev., Annual Report of the Inter-American Commission on Human Rights 1996, p. 761. 127 See e.g. Eur. Court HR, Case of Sürek v. Turkey, judgment of 8 July 1999. 128 Ibid., loc. cit. 129 Ibid. For similar cases see e.g. Eur. Court HR, Case of Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1547 ff.; Eur. Court HR, Case of Çiraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VI, p. 3059 ff.; and Eur. Court HR, Case of Okçuoglu v. Turkey, judgment of 8 July 1999; for the text of this judgment, see http://www.echr.coe.int. 130 Eur. Court HR, Case of Findlay v. the United Kingdom, judgment of 21 January 1997, Reports 1997-I, p. 281, para. 74. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 145