CASE OF MUSTAFA TUNÇ AND FECİRE TUNÇ v. TURKEY
(Application no. 24014/05)
14 April 2015
This judgment is final but may be subject to editorial revision.
In the case of Mustafa Tunç and Fecire Tunç v. Turkey,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Dean Spielmann, President
Luis López Guerra
Mirjana Lazarova Trajkovska
Vincent A. De Gaetano
Robert Spano, judges
and Johan Callewaert, Deputy Grand Chamber Registrar,
Having deliberated in private on 16 April 2014 and 18 February 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 24014/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Mustafa Tunç and Mrs Fecire Tunç (“the applicants”), on 24 June 2005.
2. Mustafa Tunç died on 9 February 2006. His son, Yüksel Tunç, informed the Court by a letter of 10 March 2006 that he intended to pursue the application before the Court as the deceased’s heir.
3. The applicants, who had been granted legal aid, were represented by Mr Mark Muller QC, Ms Michelle Butler and Ms Catriona Vine, lawyers practising in the United Kingdom, assisted by Mr Kerim Yıldız, of the Kurdish Human Rights Project, and Ms Saniye Karakaş, of the Diyarbakır Bar. The Turkish Government (“the Government”) were represented by Mr Şener Dalyan, Head of Department (Ministry of Justice), Ms Nurdan Okur, Director General (Ministry of Justice), Mr Levent Tiftik and Mr Hüseyin Çeken (Ministry of Defence), Ms Nazlı Bulut, Mr Okan Taşdelen and Mr Mehmet Öncü (Ministry of Justice), and by Ms Ayşen Emüler (Ministry of Foreign Affairs).
4. Relying in particular on Article 2 of the Convention, the applicants criticised the authorities for, inter alia, failing to conduct an effective investigation into the death of their relative and alleged that the specific circumstances of that death had not been determined.
5. The application was allocated to the Second Section of the Court.
6. On 4 March 2010 it was communicated to the Government.
7. On 25 June 2013 a Chamber of the Second Section, composed of Guido Raimondi, President, Danutė Jočienė, Peer Lorenzen, András Sajó, Işıl Karakaş, Nebojša Vučinić and Helen Keller, judges, and also Stanley Naismith, Section Registrar, delivered a judgment in which it held, by four votes to three, that there had been a violation of Article 2 of the Convention in its procedural aspect and, unanimously, that the other complaints were inadmissible.
8. On 25 September 2013 the Government requested that the case be referred to the Grand Chamber under Article 43 of the Convention. On 14 November 2013 the panel of the Grand Chamber granted that request.
9. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. Judge Jan Sikuta subsequently withdrew and was replaced by Judge Paul Lemmens, substitute judge.
10. A hearing took place in public in the Human Rights Building, Strasbourg, on 16 April 2014 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr Ş. Dalyan, Agent,
Mr H. Çeken, Counsel,
Ms N. Okur,
Mr O. Taşdelen,
Mr M. Öncü,
Ms N. Bulut,
Mr L. Tiftik,
Ms A. Emüler, Advisers;
(b) for the applicants
Mr M. Muller Qc,
Ms M. Butler, Counsel,
Ms C. Vine
Ms S. Karakaş, Advisers.
The Court heard addresses by Mr Muller, Ms Butler, Mr Dalyan and Mr Çeken as well as their answers to questions put by the judges.
I. THE CIRCUMSTANCES OF THE CASE
11. Mustafa Tunç was born in 1946 and died in 2006. Fecire and Yüksel Tunç, born in 1952 and 1975 respectively, live in Istanbul. They are the father, mother and brother of Cihan Tunç, who was born on 20 November 1983 and died on 13 February 2004.
A. The background to the case
12. Cihan Tunç joined the army in August 2003 to perform his compulsory military service. The medical report drawn up prior to his conscription stated that there were no contraindications to his conscription. He was not known to suffer from any psychological disorder or any other specific problem.
13. On an unspecified date Cihan Tunç obtained the rank of corporal. Following a training exercise which ended on 31 November 2003, he qualified as a sergeant.
14. He was then assigned to the protection of a site belonging to the private oil company NV Turkse Perenco (“Perenco”), for which the Kocaköy central gendarmerie was providing security services.
15. On 13 February 2004, at about 5.50 a.m., he was injured by gunfire. He was one of the gendarmes on sentry duty and assigned to the guard post known as “tower no. 3”. The incident occurred at the guard post known as “tower no. 2”.
16. Cihan Tunç was transported to hospital immediately after the incident by sergeant A.A. and private M.D., accompanied by private M.S., who was the last person to have seen Cihan Tunç before the incident.
17. Cihan Tunç was pronounced dead shortly after arrival at Diyarbakır Military Hospital.
18. The military prosecutor’s office of the 7th Army Corps, located in Diyarbakır, was informed immediately after the incident and a judicial investigation was opened as a matter of course.
19. A few hours after the incident, a member of that office, military prosecutor E.Ö., went to the hospital to which Cihan Tunç had been admitted and was joined there, on his instructions, by a team of criminal investigation experts from the national gendarmerie. In addition, he sent another team to the scene of the incident and asked the Kocaköy (civilian) prosecutor to attend, in order to supervise the initial investigations and take any measures necessary to secure evidence.
B. The initial investigative measures
1. At the hospital
20. On his arrival at the hospital, the military prosecutor ordered that an external examination of the corpse and an autopsy be carried out, under his supervision.
21. Several photos were taken of the corpse. The deceased’s clothing was removed and sent for laboratory analysis with a view to determining the distance from which the shot had been fired. Fingerprints were taken from the deceased and from M.S., who was the last person to have seen Cihan Tunç alive and could therefore have been involved in the incident. Swabs were also taken from their hands, to be checked for traces of gunpowder. Lastly, the deceased’s pockets were emptied and an inventory made of their contents.
22. The prosecutor then instructed forensic doctor L.E. to examine the body with a view to ascertaining the cause of death, and to make any observations he may have on the circumstances of the death.
23. The forensic doctor recorded the following findings: body height, 1.75 metres; the entry wound, with an abrasion ring, was on the right side of the neck, and the exit wound, measuring 4 x 2 centimetres, was on the left side of the back, under the lower edge of the shoulder blade. The forensic doctor noted no trace on the body of blows or violence. He stated that death had occurred following a haemorrhage caused by a bullet wound, and that the bullet had struck the trachea and left lung. He also mentioned that the shot had probably been fired at point-blank range (yakın atış). He based that conclusion on the presence of certain residue material. The relevant part of his report on this point reads as follows:
“No skin coloration due to a burn or smoke was observed on the right side of the face or on the neck area. Traces of gunpowder were noted only on the right side of the face, on the curve of the lower jaw.”
24. All of those observations were recorded in a document entitled “Record of the post-mortem examination and autopsy”.
25. The military prosecutor also questioned private M.S. and sergeant A.A. (see paragraphs 37-45 and 46-50 below), who had arrived at the hospital in the vehicle transporting Cihan Tunç’s body.
2. At the Perenco site
26. Simultaneously, a team of experts from the Diyarbakır national gendarmerie’s criminal investigation laboratory and the Kocaköy civilian prosecutor went to the site a few hours after the events, having received instructions to that effect from the military prosecutor in charge of the case.
27. According to the Kocaköy prosecutor’s report, the site had a total of six guard posts: a watchtower, known as the “high tower” and five sentry posts. The incident had taken place in an edifice measuring 2 x 2 metres, with a ceiling height of 2.33m and apertures placed 1.5m from the ground.
28. The report further noted that two unspent cartridges and a spent cartridge were found lying on the ground inside the sentry post. The ceiling had an impact mark which resembled that of a shot. Small pieces of cement debris from the ceiling were found on the floor, which was also spattered with large bloodstains.
29. The report also stated that a cursory examination of the deceased’s weapon, a G-3-type rifle which had been placed under lock and key pending the prosecutor’s arrival, indicated that it had been used a short time previously. According to the report, this weapon, as well as that assigned to private M.S., an MG-3-type rifle which seemed not to have been used, had been sent to a laboratory for scientific analysis.
30. Lastly, the report specified that a detailed record had been drawn up, two sketches drawn, photographs taken and a video recording made.
C. The administrative measures
31. In accordance with usual practice, an administrative inquiry was carried out on the orders of the provincial gendarmerie commander, to shed light on the incident and draw any conclusions from it, with a view to ensuring that a similar incident did not occur again.
32. On an unspecified date the deceased’s body, escorted by Staff Sergeant V.Ç., was transported to Ankara, for transfer to Istanbul and release to the family. The Istanbul provincial gendarmerie directorate was asked to contact the family to make arrangements for the funeral.
D. Results of the scientific tests
33. On 16 February 2004 the gendarmerie’s criminal research laboratory issued an expert report (report no. 2004/90/chemical). That report indicated that analysis of the samples taken from the deceased’s hands and from M.S., using the so-called “atomic absorption spectrometry” technique, had revealed the presence of lead, barium and antimony on the deceased’s hands, and of barium and antimony on those of M.S. After noting that those elements were residues from the discharging of a weapon, the report pointed out that gunpowder residues contained micrometric particles which passed very easily from one surface to another and that those residues frequently migrated to the hands when first aid was administered.
34. The report also noted that the tests on Cihan Tunç’s clothes indicated that he had been the victim of a shot fired at point-blank range.
35. On 17 February 2004 the Diyarbakır national police criminal laboratory also issued its expert report (report no. BLS-2004/464), following ballistic tests carried out on the spent cartridge and on the two weapons found at the scene of the incident. The tests indicated that the two rifles were operating normally and confirmed that the spent cartridge came from Cihan Tunç’s weapon.
E. The hearings
36. As part of the investigations carried out by the military prosecutor’s office and the gendarmerie’s internal inquiry, numerous servicemen were questioned on the day of the incident.
1. Questioning of M.S.
37. In his evidence to the military prosecutor, M.S. stated:
“Cihan arrived at the tower where I was on duty fifteen to twenty minutes before he was due to relive me, since that was where the handover was to take place... He told me that he was feeling down. When I asked him why, he answered ‘Forget it, mind your own business, you wouldn’t understand in any case’. His reply annoyed me, I had the impression he thought I was an idiot. I lit a cigarette and [Cihan] went into the tower ... he began playing with the cocking lever on his rifle. I came in and told him to stop ... He told me to mind my own business and go and have a cigarette ... At that point I went out ... I was five or six metres from the tower when I heard a shot. I ran inside. [Cihan] was lying on the ground ... his rifle was lying on his right hand and the barrel was on his shoulder. I removed the rifle and tried to revive [Cihan] by shaking him, blood had begun to flow... Sergeant A.A. arrived [with other soldiers]”.
38. In response to the prosecutor’s questions, M.S. replied that he had not had a dispute or a problem with Cihan Tunç, either during the duty shift or before it. He confirmed that he had not tried to remove the weapon from his hands at any point. He stated that he had not shot his fellow serviceman.
39. In reply to another question, he stated that, when Cihan Tunç loaded and then unloaded the weapon several times, he had seen unspent cartridges being ejected from the side of the rifle.
40. In the course of his interview with the gendarmerie’s internal investigator, he stated:
“Sergeant A.A. came past about 5 a.m., during his patrol, to carry out a check. Cihan Tunç arrived shortly afterwards, at about 5.50 a.m. ... he came into the tower sentry post and began to play with his weapon, he loaded and then unloaded it three or four times, and removed the magazine and put it back in. I asked him to stop, and said that we would both be punished if a senior officer were to come in unannounced... He stopped for a moment. I was standing seven or eight metres away from him. Then, [when] outside the post, I heard the noise of the cocking lever two or three times, followed by the sound of the weapon going off ... [Cihan] was lying on the ground, the weapon was on his chest. I tried to revive him. At that point, sergeant A.A. and the soldiers who were due to relieve us arrived. We carried Cihan close to the [oil] container, then we took him to Diyarbakır Hospital in a Renault car belonging to the Perenco company...”
41. To the question “how do you explain the fact that two unspent cartridges were found at the scene of the incident?” M.S. replied that he did not have an explanation. He added that perhaps these were cartridges which had fallen when Cihan Tunç was loading and unloading the weapon.
42. In response to another question, he said that he was unable to state if the magazine had been in the weapon at the time of the incident, since he had paid no attention to that point.
43. The investigator also asked M.S. about the positions of the weapon and Cihan Tunç. More specifically, he asked if the latter had been sitting or standing while he was manipulating his rifle. M.S. indicated that, while he was inside the post with Cihan Tunç, the latter had pointed the weapon towards the ceiling and charged it, and had then removed the magazine and operated the lever to eject the loaded cartridge. As he left the post, he saw Cihan Tunç sit down on an ammunition chest. While still outside, he heard the sound of the cocking lever a further two times, then a shot.
44. Lastly, the investigator questioned M.S. about the location of the weapons. According to M.S., his own rifle had been on a rack inside the post, and its tripod was folded. Cihan’s weapon had been on his chest.
45. In those two statements, the location where the incident took place is described interchangeably by the terms “duty station no. 4” (4 no.lu nöbet mevzisi) or “tower no. 2” (2 no.lu kule).
2. Other oral evidence
46. In his statement to the military prosecutor, sergeant A.A. indicated that he had heard a gunshot and, together with several privates, had rushed to the spot from where the sound had come. They found Cihan Tunç lying on the ground. After attempting to find the injured man’s pulse, A.A. ordered that he be transported to the canteen and then to hospital.
47. With regard to the guard posts, sergeant A.A. indicated that only three were in use. The first was situated at the entrance to the site (nizamiye); the second post, known as the “low tower”, although in reality located in fourth position from the entrance, was also known as “tower no. 2”, since the two preceding posts were not used. The third post was known as “tower no. 3” or the “high tower”.
48. A.A. also stated that, to his knowledge, there had been no problem between Cihan Tunç and M.S.
49. In reply to a question from the prosecutor, he repeated the account of the events given to him by M.S. This account corresponded to the statement made by M.S.
50. A.A. gave similar evidence to the gendarmerie’s internal investigator.
51. Captain S.D. and Staff Sergeant C.Y. indicated that they had become aware of the incident while they were in the Kocaköy barracks. On arrival at the scene, they inspected the premises in a very cursory manner, without disturbing the scene of the incident. They had seen a spent cartridge and two cartridges for a G-3 rifle, one on the ground and the other on the rack. They had also noted blood on the ground.
52. Sergeant A.K. gave the following evidence to the investigator:
“Cihan was on duty at post no. 2 ... During my round, at about 5.15 a.m.... everything was normal. I exchanged a few words with Cihan, who was on duty in the high tower... When I arrived at the scene of the incident, M.S. was trying to lift Cihan up.”
53. With regard to the position of the magazine, sergeant A.K. stated that he had paid no attention to that point at the time. However, he remembered that, after carrying Cihan to the canteen, private S.K. had gone back and brought him the weapon, and he had noticed that the magazine was not in place on the rifle.
54. To the question “why did the incident take place at guard post no. 4, where M.S. was on duty, although Cihan Tunç had been assigned to the high tower?” he replied:
“I don’t know. It is possible that Cihan left his post to go there because he was almost at the end of his duty period. When I did my round, at about 5.15 a.m., Cihan was at his post in the high tower.”
55. Private S.K. confirmed A.K.’s statement, indicating that the weapon and the magazine were inside the sentry post, but that the magazine was not in the weapon.
56. Private E.C. stated that when he arrived on the scene M.S. was attempting to lift Cihan Tunç up. He also confirmed that the magazine was not in the weapon.
57. The following additional elements emerged from the other statements: Cihan Tunç had arrived one week previously in the Perenco site protection team, which was composed of sixteen persons. He had no known problems and had not had a dispute with the other soldiers.
At the time of the incident, private S.S. had been the soldier on sentry duty at the first guard post, located at the entrance to the site.
After sergeant A.A. and the other servicemen arrived at the scene of the incident, M.S. was sent to the canteen to seek help.
F. The administrative inquiry report
58. Having regard to the absence of family, social or psychological problems on the part of the deceased, the fact that he had been at a guard post assigned to one of his fellow servicemen and to the position and distance (point-blank range) of the shot, the inquiry concluded that the incident had been an accident. It seems, however, that the possibility of unlawful killing was considered at the beginning of the inquiry.
G. The decision not to bring a prosecution
59. On 30 June 2004, holding that there were no grounds for finding that another person had been responsible for Cihan Tunç’s death, the prosecution service issued a decision not to bring a prosecution. The prosecutor set out all of the evidence gathered during the investigation. He concluded that the shot had been fired when the young man, with his chest bent, had been leaning towards his right side and the barrel of the rifle was pointed towards his neck, adding that this explained, in particular, the bullet impact on the ceiling. However, the prosecutor’s decision did not state why the shot had suddenly been fired.
60. On 16 July 2004 the prosecutor, in response to a request from the applicants’ lawyer, sent her a letter and a copy of the decision, indicating that, in application of the Lawyers Act, the entire case file was at her disposal, and that she could examine it and have a copy made of any item of evidence she thought it appropriate to obtain.
61. Furthermore, a copy of the decision not to bring a prosecution was served in person on Aysel Tunç, a sister of the deceased, on 27 July 2004.
62. The applicants appealed against the decision, alleging that several grey areas remained as to the circumstances of Cihan Tunç’s death. In particular, they claimed that the trajectory followed by the bullet had not been clearly defined. They did not refer to the fact that M.D. had not been questioned, or that no fingerprint tests had been conducted on the weapon.
H. The additional investigation and subsequent developments
63. On 14 October 2004 the military court of the Diyarbakır 2nd Air-force Corps upheld the applicants’ appeal and ordered the prosecution service to carry out an additional investigation. In particular, it considered that the bullet’s trajectory and the firing position needed to be clearly established, on the basis of the entry and exit wounds on the body and the impact mark of the bullet on the ceiling. It also indicated that no plausible grounds for suicide had been identified. It added that, in any event, the position of the body at the time of the shot had been unusual for a suicide. Lastly, it stated that no explanation had been provided for the gunshot residue on the hands of M.S., the last person to have seen Cihan Tunç before the incident.
64. On 24 November 2004 the military prosecutor visited the Perenco site, accompanied by three criminal investigation experts.
65. The group went to the guard post where the incident had taken place. Once all of the materials in the case file had been examined, a reconstruction of the events was carried out, assisted by an individual who was similar in build to the deceased.
66. Steps to determine the bullet’s trajectory were taken, including the use of a string, stretched between the impact mark on the ceiling and the barrel of a G-3 rifle. Photographs were taken.
67. The experts noted that the floor was made of concrete, although the previous records described an earthen floor. According to information provided by the site managers, various premises, including several dirt tracks, had been cemented over since the incident, with a view to keeping the soldiers’ uniforms clean. The floors had not been raised during this work. This point was confirmed by measurements which established that the ceiling height was still 2.33 metres, as it had been at the time of the incident.
68. In the light of all the evidence gathered, the experts reached the following conclusion: Cihan Tunç had been sitting or crouching and was holding his rifle in his right hand; while he was attempting to stand up by leaning on his weapon, and with his knees still bent, his hand had pulled the trigger and the shot had been fired.
69. During his visit to the site, the prosecutor questioned private E.C., the other soldiers on duty at the time of the incident having completed their military service. E.C. stated that, when he arrived, M.S. was crouching down behind Cihan Tunç and was trying to lift him up by pulling him under the arms.
70. All of this evidence was set out in a report dated 24 November 2004.
71. On 8 December 2004 the prosecutor completed the investigations and sent the file to the military court, together with a report on the additional investigation requested (report no. 2004/632E.O), in which he set out the measures taken and responded to the shortcomings noted by the court. With regard to the traces of gunshot on the hands, he pointed out that the file contained an expert report indicating that gunshot residue was very volatile and that it could have moved from the dead man’s clothes or hands to M.S.’s hands immediately after the incident. He added that several statements supported that hypothesis, in that they confirmed that M.S. had been in physical contact with the deceased when attempting to lift him up.
72. With regard to the court’s observation that the firing position hardly corresponded to that of an individual who intended to commit suicide and its argument about the lack of a motive, the prosecutor stated that the decision not to prosecute contained no indication that the incident had been a suicide and, indeed, that the hypothesis of suicide had not been entertained.
73. As to determination of the bullet’s trajectory in the light of the impact mark on the ceiling and the entry and exit wounds on the body, the prosecutor stated that the following hypothesis had been accepted: Cihan Tunç had been sitting on an ammunition box and playing with the rifle’s cocking lever and magazine; while he was holding the weapon, with the magazine removed and at an angle on his right side, he had leaned forward and towards his right side with the intention of using the rifle to support himself in standing up, his hand on the part of the weapon near the trigger, and the shot had gone off; the bullet had entered through the right side of his neck and emerged under the lower edge of the left shoulder-blade, before hitting the ceiling; thus, Cihan Tunç had not committed suicide, he had been the victim of an accident. The prosecutor added that he had organised a reconstruction of the scene on 24 November 2004 in order to ascertain the credibility of this hypothesis, having regard to the bullet’s entry and exit points, the point of impact on the ceiling and the deceased man’s build, and that the conclusions of the reconstruction confirmed this sequence of events.
74. The record of the reconstruction of the incident was attached to this report.
75. On 17 December 2004 the military court dismissed the applicants’ appeal.
76. A letter dated 21 December 2004 was sent to the applicants’ lawyer, informing her of that decision. Neither the date of posting nor the date of receipt of that letter is specified in the case file. The applicants submitted that they had received the letter in question at the end of December 2004. The Government made no submissions on this point.
I. The private medical report
77. The applicants submitted a private medical report, prepared at their request by a British expert, Dr Allen M. Anscombe, and dated 11 October 2005. The expert drew up his report in English, on the basis of his examination of a number of documents from the case file which had been translated into that language. The relevant parts of this report read as follows:
“I am a Consultant Forensic Pathologist, accredited by the Home Office Policy Advisory Board for Forensic Pathology (...).
In preparing this report I have been provided with English translations of the following documents relating to Cihan Tunç:
1. The Inquest and Autopsy Report dated 13th February 2004.
2. Preparatory investigation report document number 2004/632EO entitled “Widening of the Investigation”.
3. Two expert reports dated 16th and 17th February 2004, reference numbers ELS-2004/464 and 2004/90 Chemical.
4. Three colour images of the deceased, one taken in life and two taken post mortem, when the deceased is apparently within a coffin.
5. An image of a G-3 rifle.
The deceased was taken to a nearby Military Hospital and the autopsy examination carried out later on the day of his death. Such promptness should be regarded as a good practice.
Initial examination then appears to involve removing the clothing from the deceased and the photographing it, collection of samples for forensic laboratory investigation, and recording detail content of pockets, etc.
In itself, this process appears to have been carried out appropriately, with collection of appropriate samples given the nature of the incident.
Having completed this stage, the [autopsy] report appears to indicate that the pathologist Dr. E. was ‘called in’, by which I understand had his first opportunity to examine the deceased.
If my understanding is correct, this would cause me some considerable concern because, particularly in the case of shooting fatality, the pathologist should be given as much information as possible as regards the scene and state of the deceased, the latter including the opportunity to inspect and examine the undisturbed clothing.
The remainder of the details of the autopsy examination are somewhat brief and sketchy.
Otherwise, the essential autopsy examination findings are included in the report. The conclusion as to the cause of death is reasonable in the light of the stated autopsy findings (i.e. there are no internally inconsistent findings and conclusions).
Cihan Tunç sustained a gunshot entry wound to the front side of his neck, and an exit wound on the back of the left shoulder. The photographs demonstrate a small entry wound, and a larger exit wound, and there is in my opinion no possibility that entry and exit have been got “the wrong way round”.
If the bullet has passed through the deceased and embedded itself in the ceiling, then the only way that I can conceive this trajectory of being achievable, is if the deceased was bent over the moment the gun discharged.
The autopsy report indicated that traces of unburned gunpowder were found on the right side of the face and on the curve of the lower jaw, but there was no smoke staining or burning of the skin. This indicates that the muzzle end of the barrel was close to but not in contact with the skin of the deceased. Whilst such discharge deposits depend to some extent on the nature of the weapon and ammunition used, the likely range of fire (i.e. muzzle to skin distance) would be in the region of 15-30 cm.
I am informed that the length of a G3 rifle, believed to be the sort used by the deceased, is 102.3cm. From the image provided, the trigger is approximately two thirds of the length of the rifle away from the muzzle. Depending on the length of the deceased’s arm, the trigger might just be reachable (say with an outstretched finger), if he was bent over the rifle at the time.
The only two other possibilities I can think of are that either the rifle malfunctioned and discharged unexpectedly for some reason (e. g. it was dropped on the floor, or that the rifle was fired by another person - however, this would require that person to be lying on the floor pointing the rifle upwards with the deceased bent over the muzzle (his neck at a distance of 15 - 30 cm) at the time.
There were no autopsy signs that the deceased had been involved in a struggle or a fight.”
J. The judgment of the Supreme Military Administrative Court
78. On 13 January 2005 the applicants’ lawyer brought an action before the Supreme Military Administrative Court, seeking payment of pecuniary compensation on account of Cihan Tunç’s death.
79. Following the dismissal of the notice of claim on procedural grounds, a new claim was lodged on 9 September 2005. The applicants claimed 3,500 Turkish lira (TRY) in respect of pecuniary damage and TRY 3,000 in respect of non-pecuniary damage for each of the parents, and TRY 1,000 for each of the deceased’s seven brothers and sisters.
80. On 9 October 2006 the expert appointed by the Supreme Military Administrative Court to evaluate the pecuniary damage submitted his report. He estimated the damage at TRY 721 for the deceased’s father and TRY 8,779 for his mother. The parties did not challenge that evaluation.
81. On 10 January 2007 the court allowed the applicants’ claims in part. It noted that the death had been caused by careless handling of the service rifle. It considered that this implied a lack of sufficient training in handling weapons and negligence in the supervision and protection of conscripts. In consequence, it found that the death was partly imputable to negligence by the authorities. Having regard also to the existence of contributory negligence by the deceased, and pointing out that it was bound by the claim and could not rule ultra petita, the Supreme Military Administrative Court awarded the following sums:
- TRY 3,500 in respect of pecuniary damage and TRY 3,000 in respect of non-pecuniary damage to the deceased’s mother;
- TRY 400 in respect of pecuniary damage and TRY 1,000 in respect of non-pecuniary damage to the deceased’s father;
- TRY 1,000 in respect of non-pecuniary damage to each of the deceased’s brothers and sisters.
Those amounts bore late-payment interest, to be calculated from the date of the incident to the date of payment.
82. On 12 June 2007 the authorities made a payment of TRY 23,500 (approximately 13,200 euros (EUR) on that date) to the Bakırköy Enforcement Office, to which a request had been made by the applicants’ lawyer.
83. The applicants claim that they had been unaware of those proceedings before the Supreme Military Administrative Court until they were mentioned by the Government, and that no sum has been paid to them by their lawyer.
K. The financial assistance paid by the Mehmetçik Foundation
84. On 21 April 2004 the Mehmetçik Foundation, an emanation of the armed forces which was set up to support the families of soldiers who die in service, awarded 4,916,700,000 former Turkish lira (a little over 3,000 euros at that date) to the deceased man’s family in financial assistance.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Independence of the military judges and prosecutors
85. The military justice system is made up of judges and prosecutors. In the course of their careers, all judicial officers (judges and prosecutors) may be appointed both to judicial functions and to the functions of prosecutor. The term “military judge” (askeri hâkim) used in the substantive provisions concerning the status of judicial officers in principle covers both judges and prosecutors.
1. The Constitution
86. The relevant provisions of the Constitution read as follows:
“Judicial power shall be exercised by independent courts on behalf of the Turkish nation.”
“In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law.
No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions.”
“Judges and public prosecutors shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution; nor shall they be deprived of their salaries, allowances or other rights relating to their status, even as a result of the abolition of a court or post.”
“Military justice shall be dispensed by military courts and military disciplinary organs. These courts shall have jurisdiction to try military personnel for military offences, for offences committed by them against other military personnel or in military places, or for offences connected with military service and duties.
The organisation of military judicial organs, their functions, matters relating to the status of military judges, relations between military judges acting as military prosecutors and the office of the commander under whom they serve, the independence of the courts and the security of tenure of judges shall be regulated by law and in accordance with the requirements of military service.”
2. The relevant statutory provisions
87. The Military Judges Act (Law no. 357) lays down the principle that the judiciary is to be independent and reiterates the provisions of Articles 138 and 139 of the Constitution.
88. Section 16 of this Act provides that military judges and prosecutors are transferred by decree, which is to be signed by the Minister of Defence and the Prime Minister and approved by the President of the Republic (“tripartite decree”). It further specifies the periods in their career during which transfers may not take place.
89. Article 232 of the Criminal Code as in force at the material time made it an offence to attempt to influence, give orders to or exert pressure on judges. Depending on the circumstances, the sentence laid down ranged from six months’ to five years’ imprisonment. Where the perpetrator of the offence was a civil servant, the sentence was to entail a prohibition on exercising any public office.
90. Provision for this offence has also been made in Article 277 of the new Criminal Code, which makes it an offence “to attempt to influence persons exercising a judicial function”.
91. However, Law no. 357 permits the Minister of Defence to order a military prosecutor who has issued a decision not to bring a prosecution to bring the suspect before a court, so that the latter can decide on his or her innocence or guilt.
3. The composition of military courts
92. Section 2 of the Military Courts Act (Law no. 353), as applicable at the relevant time, provided:
“Save as otherwise provided in this Act, the military courts shall be composed of two military judges and an officer (subay üye).”
93. The words “and an officer” were set aside by the Constitutional Court, ruling on an application for judicial review, in a decision of 7 May 2009 which was published in the Official Gazette on 7 October 2009. The Constitutional Court held that, in contrast to the military judges, the officer judge did not offer all the necessary guarantees, in that he was not released from his military obligations during his term of office and was subject to the authority of his superiors. Furthermore, it considered the fact that no provision prevented the military authorities from appointing a different officer for each case to be incompatible with Article 9 of the Constitution.
94. Following that judgment the legislation was amended. Section 2 of Law no. 353 now provides:
“Save as otherwise provided in this Act, the military courts shall be composed of three military judges.”
4. The appraisal of military judges and prosecutors
95. Under section 12 of the Military Judges Act (Law no. 357) as in force at the relevant time, the promotion, advancement and moving up in grade of “military judges” (both those sitting in courts as judges and those working as prosecutors) were dependent on their appraisal reports, and especially the “professional appraisal sheet” (mesleki sicil belgesi) and the “officer’s appraisal sheet” (subay sicil belgesi).
96. This provision stated that, with regard to the “officer’s appraisal sheet”, the judges and prosecutors were subject to appraisal by the commander of the military unit within which the court was based.
97. It also indicated that the experienced judges were the direct appraisers of the judges who were working with them, and that the prosecutors were the direct appraisers of their deputies and substitutes.
98. The competencies to be evaluated in the “officer’s appraisal sheet” were described as follows:
“1. General appearance, social status and capacity to represent the institution
2. Compliance with the principles of justice and equity
3. Compliance with and submission to the rules of military discipline
4. Professional knowledge, basic military knowledge and general knowledge
5. Team spirit and the ability to train, explain and persuade
6. Vitality, resistance, resolve and perseverance
7. Intellectual faculties and the ability to judge and decide
8. Ability to plan, carry out, monitor and supervise tasks
9. Freedom and creativity
10. Ability to direct and leadership”.
99. In a judgment of 8 October 2009, the Constitutional Court held that part of this text was contrary to the principle of the independence of the courts (mahkemelerin bağımsızlığı) and set aside the provisions of section 12 of Law no. 357 concerning the “officer’s appraisal sheet”.
100. The Constitutional Court had received a plea of unconstitutionality raised by the Supreme Military Administrative Court, in the context of three appeals lodged by military judges who were challenging their “officer’s appraisals” and seeking to have them set aside. The individuals in question considered that even the mere possibility that a senior officer could be tempted to exert undue influence on the judges through the “officer’s appraisal sheet” was detrimental to the appearance of independence that the justice system had a duty to present.
101. The Constitutional Court noted that the military judges were subject to assessment by the military chambers of the Court of Cassation called on to review their judgments on appeal. It noted that, while this assessment represented their professional appraisal and was intended to evaluate their competence, the “administrative” appraisal (officer’s appraisal sheet) carried out by experienced judges and by officers gave rise for its part to misgivings as to compliance with the requirement of the independence of the courts, enshrined in the Constitution.
102. In consequence, the Constitutional Court found that this procedure was contrary to the Constitution and ought to be set aside in so far as it concerned the judges who sat in courts. The Constitutional Court held that it was not necessary to rule on whether the appraisal system for prosecutors was in conformity with the Constitution, given that the answer to that question was irrelevant to resolving the cases before the Supreme Military Administrative Court.
103. The judgment was published in the Official Gazette on 8 January 2010 and took effect on the same date.
104. On 22 April 2012 section 12 of Law no. 357 was amended to bring the appraisal of military prosecutors into line with the Constitution.
B. Access to the investigation file for victims’ relatives
105. Section 2 of the Lawyers Act, as in force at the relevant time, states that the judicial bodies, police departments and other public institutions are required to facilitate the lawyer’s duties, particularly by providing access, save statutory provisions to the contrary, to any documents and information that he or she considers relevant.
C. The gendarmerie
106. The gendarmerie is governed by Law no. 2803. It is defined as an armed force placed under the authority of the Ministry of the Interior in respect of its duties in the areas of safety and security and under the authority of the Armed Forces General Staff in respect of training activities and its military duties. The General Commander of the Gendarmerie is answerable to the Minister of the Interior (section 4 of the Law).
107. Gendarmes carry out administrative duties (concerning public safety or the maintenance of order), judicial duties (judicial investigations as provided for in the Code of Criminal Procedure) and military duties.
108. They carry out their administrative and judicial duties in rural areas or in areas where the national police force is not present.
109. According to the Government, the gendarmerie has available to it a technical and scientific police service, based in Ankara, and three regional forensic laboratories. In addition, technical teams specialising in criminal investigations exist in 81 provinces.
110. Pursuant to section 97 of the Law governing Criminal Procedure before the Military Courts, investigators from the gendarmerie are placed under the authority of the prosecutor and are required to carry out his or her instructions.
111. The applicants complained that the investigation to determine the circumstances surrounding the death of their relative, Cihan Tunç, had not satisfied the requirements of Article 2 of the Convention.
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
A. The parties’ submissions
1. The Government
112. In their written observations of 14 February 2014 to the Grand Chamber and at the hearing on 16 April 2014, the Government, for the first time in the procedure, raised a preliminary objection concerning the loss of victim status following the Supreme Military Administrative Court’s judgment of 10 January 2007. This factual element had not been brought to the Court’s attention by the parties in the course of the procedure before the Chamber.
113. The Government pointed out that, under the Court’s case-law, where the national authorities had found a violation and their decision constituted appropriate and sufficient redress for it, the party concerned could no longer claim to be a victim within the meaning of Article 34 of the Convention (they referred to Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178 et seq., ECHR 2006-V). Where these two conditions were satisfied, the subsidiary nature of the protective mechanism of the Convention would preclude examination by the Court (they referred, inter alia, to Eckle v. Germany, 15 July 1982, §§ 64-70, Series A no. 51; and Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001-X). Loss of victim status depended, among other things, on the nature of the right that was alleged to have been infringed, the reasons given for the decision (Jensen, decision cited above) and the persistence of the adverse consequences for the applicant after that decision (they referred to Freimanis and Līdums v. Latvia, nos. 73443/01 and 74860/01, § 68, 9 February 2006). The appropriateness and sufficiency of the redress offered to the applicant was dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation at stake (they referred to Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010).
114. The Government observed that, with regard to Article 2 of the Convention, it was necessary to make a distinction between, on the one hand, cases where death had been inflicted deliberately or had occurred following assault or ill-treatment and, on the other, cases where death had been inflicted unintentionally, through negligence. This Article of the Convention required the Contracting States, in cases of fatal assault, to conduct an investigation capable of leading to the identification and punishment of those responsible (they referred to Tanrıkulu v. Turkey [GC], no. 23763/94, § 79, ECHR 1999-IV). That being so, an award of compensation could not suffice, in such cases, to make good the violation of Article 2 and to deprive the applicant of his or her victim status.
115. The Government explained, however, that where, as in the present case, death had not been caused intentionally, the payment of damages by means of civil or administrative proceedings constituted appropriate redress (they referred to Calvelli and Ciglio v. Italy [GC], no. 32967/96, ECHR 2002-I; and Vo v. France [GC], no. 53924/00, § 90, ECHR 2004-VIII).
116. The Government noted that, in the present case, the Supreme Military Administrative Court had explicitly acknowledged that the authorities had been negligent in the training provided to Cihan Tunç and in exercising their duty of supervision and protection of military personnel, and had awarded compensation to the applicants.
117. In consequence, they considered that appropriate and sufficient redress had been afforded, and that the applicants could no longer claim to be victims within the meaning of Article 34 of the Convention (they referred to Fatma Yüksel v. Turkey (dec.), no. 51902/08, §§ 41-45, 9 April 2013). For that reason, they invited the Court to declare the application inadmissible on the ground that it was incompatible ratione personae with the provisions of the Convention.
2. The applicants
118. The applicants alleged that they had not been aware of the proceedings before the Supreme Military Administrative Court and of their outcome. They specified that it had been the late Mustafa Tunç who had been in contact with their lawyer and that it was entirely possible that he had been aware of the action for compensation. However, he had not informed any member of his family of it.
119. The applicants acknowledged that an amount of about TRY 5,000 had indeed been paid to them by the Mehmetçik Foundation, but claimed that they had received no money on the basis of the Supreme Military Administrative Court’s judgment.
120. In their opinion, even if they had received the amounts paid by the authorities, the judgment in question was not such as to deprive them of victim status. In this regard, the applicants explained that the judgment was based on the hypothesis of an accident, as put forward at the close of the investigation, a hypothesis which they contested. In addition, they submitted that the Supreme Military Administrative Court’s judgment fell far short of acknowledging a violation of the procedural requirements of Article 2, and especially that of an independent investigation, and that it did not address or even refer to that question in any way.
121. In their view, the judicial decision on which the Government had based their objection could not be considered appropriate relief for their complaint.
B. The Court’s assessment
1. Applicable principles
122. The Court reiterates that the Grand Chamber is not precluded from examining, where appropriate, questions concerning the admissibility of an application under Article 35 § 4 of the Convention, as that provision enables the Court to dismiss applications it considers inadmissible “at any stage of the proceedings” (see Odièvre v. France [GC], no. 42326/98, § 22, ECHR 2003-III). However, pursuant to Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application submitted as provided in Rule 51 or 54, as the case may be. Where, in the course of the proceedings before the Court, a new legally relevant procedural event occurs which may influence the admissibility of the application, it is in the interests of the proper administration of justice that the Contracting Party should make any formal objection without delay (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 79, ECHR 2014 (extracts) with further references).
123. However, wholly different considerations naturally apply where the events which are alleged to have deprived the applicant of his or her victim status occurred after the decision on admissibility (see Kurić and Others v. Slovenia [GC], no. 26828/06, §§ 258 et seq., ECHR 2012 (extracts)).
124. Moreover, the Court reiterates that, notwithstanding the requirements of Rule 55, which in any event must be interpreted in a manner compatible with the Convention, in particular Article 32 thereof, the respondent Government cannot be considered to be precluded from raising a preliminary objection before the Grand Chamber where the latter concerns a matter which goes to the Court’s jurisdiction rather than a question of admissibility in the narrow sense of that term (see Blečić v. Croatia [GC], no. 59532/00, §§ 66 et seq., ECHR 2006-III).
2. Application of those principles to the present case
125. In the instant case, the Court observes that the Government did not raise the objection before the application’s admissibility was considered by the Chamber, although the Supreme Military Administrative Court judgment on which the Government base their argument was delivered even before the case was communicated to them. Furthermore, they mention no particular circumstances which could absolve them from their obligation to comply with the requirements of Rule 55 (see Svinarenko and Slyadnev, cited above, § 82).
126. The Court further notes that, contrary to the circumstances in the above-cited Blečić case, the objection raised does not concern a matter that goes to its jurisdiction.
127. Consequently, it considers that the Government are estopped from raising a preliminary objection based on the applicants’ victim status at this stage in the proceedings, and rejects the said objection.
128. The Court considers that, in any event, the objection must be rejected, even assuming that the Government were not estopped from raising it.
129. In this regard, the Court notes that the present application concerns only the procedural aspect of Article 2, the complaints concerning the substantive aspect of that Article having been declared inadmissible by the Chamber.
130. It reiterates that independently of the issue of whether a financial payment can have an impact on the substantive aspect of Article 2, an issue which it is not necessary to rule on in the present case, it is a matter of established case-law that, in cases where it is alleged that death was intentionally inflicted or occurred following an assault or ill-treatment, an award of compensation cannot absolve the Contracting States from their obligation to conduct an investigation capable of leading to the identification and punishment of those responsible (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 79, ECHR 1999-IV; and Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 165, ECHR 2011). This is so because, if the authorities could confine their reaction to incidents of wilful ill-treatment by, inter alia, State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity, and the legal prohibition on taking life, despite its fundamental importance, would be ineffective in practice (see Salman v. Turkey [GC], no. 21986/93, § 83, ECHR 2000-VII; Kelly and Others v. the United Kingdom, no. 30054/96, § 105, 4 May 2001; and Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 55, 20 December 2007).
131. However, as the Government have pointed out, where there has been no intentional taking of life, an award of damages through civil or administrative proceedings may offer appropriate redress (see, among other authorities, Vo v. France, cited above, § 94; Calvelli and Ciglio v. Italy, §§ 51 et seq. ; and Alp v. Turkey (dec.), no. 3757/09, §§ 27-33, 9 July 2013).
132. The applicants complain of a failure to comply with the procedural obligation in respect of a death which, they allege, could have resulted from unlawful killing. However, at the close of their investigation, the authorities concluded that the death had been accidental. Moreover, the Court decided definitively, in its Chamber judgment of 25 June 2013, that the hypothesis of an accident was entirely credible.
133. In the Court’s view, where it is not clearly established from the outset that the death has resulted from an accident or another unintentional act, and where the hypothesis of unlawful killing is at least arguable on the facts, the Convention requires that an investigation which satisfies the minimum threshold of effectiveness be conducted in order to shed light on the circumstances of the death. The fact that the investigation ultimately accepts the hypothesis of an accident has no bearing on this issue, since the obligation to investigate is specifically intended to refute or confirm one or other hypothesis.
134. In the present case, the circumstances of Cihan Tunç’s death were not established from the outset in a sufficiently clear manner. Various explanations were possible, and none of them was manifestly implausible in the initial stages (see paragraphs 21, 38 and 63 above). Thus, the State was under an obligation to conduct an investigation. The mere fact that the authorities made a payment could not exempt them from their procedural obligation (see Erkan v. Turkey (dec.), no. 41792/10, §§ 54-62, 28 January 2014).
135. Consequently, even assuming that the Government were not estopped from raising this preliminary objection it should be noted that the applicants retain their victim status within the meaning of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION IN ITS PROCEDURAL ASPECT
136. The applicants, who considered that the investigation into their relative’s death had not been effective, alleged a violation of Article 2 of the Convention in its procedural aspect. The relevant part of this Article reads:
“1. Everyone’s right to life shall be protected by law.”
A. The Chamber judgment
1. Expedition and adequacy of the investigation
137. The Chamber considered that the investigation conducted into the death of the applicants’ relative had been sufficiently prompt, adequate and thorough (see paragraphs 105 to 126 of the Chamber judgment). It found that the investigations had begun immediately after the incident, that they had been conducted with the requisite diligence and that the authorities had taken sufficient measures to collect and secure evidence relating to the events in issue. It also noted that the prosecutor’s office had envisaged various possible lines of enquiry before ultimately settling on that of accidental death.
138. In conclusion, the Chamber did not identify any failing capable of casting doubt on the adequacy and promptness of the investigation conducted by the domestic authorities.
2. The applicants’ participation in the investigation
139. The Chamber held that the applicants had been given access to the information yielded by the investigation to an extent that was sufficient for them to participate effectively in the proceedings. It found, in particular, as follows:
“136. In the present case, [the Court] notes that a full copy of the decision not to prosecute of 30 June 2004, containing a summary of the materials of the investigation and the reasons for the decision, was provided to the applicants. The latter were subsequently given access to the investigation file. It was therefore after having taken cognisance of the materials in the file that they had exercised the remedy (an appeal) available to them and challenged the decision not to prosecute. Accordingly, it cannot be considered that they did not have the option to exercise their rights effectively. Moreover, the Court notes that the military court which examined their appeal accepted certain of the applicants’ arguments, since the judges had ordered supplementary investigative measures, requiring that the issue of the bullet’s trajectory be examined in more detail and that the prosecution service provide explanations about the presence of gunpowder residue on M.S.’s hands. The prosecution service addressed those questions, in particular by organising a reconstruction of the events.”
3. Independence of the investigation
140. The Chamber held that the investigation had not been independent, basing its finding on the regulations in force at the relevant time, under which one of the three members of the military court did not enjoy all of the required guarantees of independence. The relevant passages of the Chamber judgment read as follows:
“130. The Court reiterates at the outset that it held in its judgment in the Gürkan v. Turkey case (no. 10987/10, §§ 13-19, 3 July 2012) that, in the form in which it was composed at the relevant time, the military court which tried and convicted the applicant could not be considered to have been independent and impartial within the meaning of Article 6 of the Convention, and concluded that there had been a breach of that provision. It based its finding on the fact that one of the three judges who sat in the military court was an officer who had been appointed by his hierarchy and was subject to military discipline, and that he did not enjoy the same constitutional safeguards provided to the other two judges, who were professional judges.
131. These considerations are also valid in the present case, given that the court which participated in the investigation proceedings as a review body was composed in the same manner. In this respect, the Court notes that the misgivings as to impartiality concern in this instance the judicial body responsible for the final review of the investigation, and not merely the prosecution service (see, a contrario, Mantog v. Romania, no. 2893/02, §§ 70 et seq., 11 October 2007, and Stefan v. Romania (dec.), no. 5650/04, § 48, 29 November 2011).”
B. The parties’ submissions
1. The Government
a. Expedition and adequacy of the investigation and the applicants’ participation therein
141. With regard to the adequacy, thoroughness and expedition of the investigation, and participation of the deceased’s relatives therein, the Government subscribed fully to the Chamber’s conclusions.
b. Independence of the investigation
142. On the other hand, they contested the conclusion that the investigation had not been independent.
143. They alleged that the Chamber had carried out an abstract review, whereas, in their submission, it was necessary to take into consideration the particular circumstances of each individual case, by examining the investigation as a whole, together with the role and specific conduct of the various bodies involved.
144. They noted that the Chamber had reproduced, in respect of Article 2, the reasoning in the above-cited Gürkan judgment, which, for its part, concerned Article 6 of the Convention. In the Government’s submission, however, the requirements of those two Articles were not identical when it came to independence.
145. The Government considered that such an approach represented a departure from the Court’s previous case-law in this area, according to which a judicial body’s lack of regulatory independence was not sufficient in itself to conclude that an investigation had not been independent.
146. In this connection, they cited, in particular, the case of Tanrıbilir v. Turkey (no. 21422/93, 16 November 2000), in which the Court had concluded that, having regard to its thoroughness, the investigation conducted into a death had been sufficiently independent, in spite of the fact that it had been supervised by an administrative body on whose independence it had already cast doubt in several previous cases.
147. The Government also relied on the cases of Mantog v. Romania (no. 2893/02, §§ 70 et seq., 11 October 2007); and Stefan v. Romania ((dec.), no. 5650/04, § 48, 29 November 2011), in which the Court had concluded that the investigation had been independent, on the basis of the specific conduct of the investigating body, namely the military prosecutor’s office, although the legislation in force did not guarantee that independence - a circumstance which in other cases had resulted in the finding of a violation, since it had been accompanied by tangible elements indicating a lack of independence in the military prosecutor’s conduct.
148. Applying these principles to the instant case, the Government considered that there was nothing in the case file to indicate that the investigation conducted by the prosecutor’s office had lacked independence. They considered that that body had taken all the steps which could have been expected of it.
149. With regard to the fact that the prosecutor’s office had been assisted by members of the gendarmerie, the Government explained that the latter had not been direct colleagues of the likely suspects and did not have hierarchical links with the unit to which those individuals belonged.
150. With regard to the review carried out by the military court, the Government considered that there was nothing in the latter’s decision that gave reason to doubt its independence, and pointed out in this connection that the court had granted the applicants’ requests and ordered additional investigative measures. They also noted that the issue of statutory independence concerned only one of the three judges. Lastly, they stressed that the court’s role had been limited, pointing out that, in contrast to the Gürkan case, which concerned the applicant’s trial, the military court in the instant case had been called on merely to rule on the lawfulness of the decision not to bring a prosecution.
151. In conclusion, the Government considered that the investigation into Cihan Tunç’s death had complied with the conditions laid down by Article 2, and, in particular, with the requirement of independence.
2. The applicants
152. The applicants submitted that the investigation conducted by the authorities could not be regarded as effective and that it had failed to elucidate the precise circumstances surrounding Cihan Tunç’s death.
a. Expedition and adequacy of the investigation
153. The applicants alleged that the impugned investigation had not been conducted with the necessary expedition in the circumstances, and that no steps had been taken to ensure that evidence was preserved. In that connection, they criticised, in particular, the failure to take fingerprints from the weapon that had been used and the fact that the weapon in question had been moved before the investigators arrived.
154. Furthermore, they considered that the investigation had been superficial. The persons responsible for the investigation had not explored every avenue, but had focused on the hypothesis of an accident, without carrying out a detailed and impartial analysis of all of the evidence.
155. They criticised the military court for having taken three months to rule on their application and alleged that the prosecutor had been dilatory in organising the reconstruction of events. In their opinion, given that the earthen floor in the guard post in question had been cemented over prior to the reconstruction, the latter had been of minimum evidential value. The applicants added that, by that date, the majority of the soldiers on duty at the time of the incident had completed their military service, and it had not been possible to question them again.
156. They criticised not only the incomplete nature of the interviews, arguing that one of the sixteen soldiers on duty on the site had not been questioned, but also the manner in which they had been conducted, which they considered inappropriate. They further submitted that the statements contained contradictions, particularly with regard to the location where the incident took place. They alleged that some witnesses had referred to “tower no. 2”, while others had stated that the incident took place in “tower no. 4”. As to the statements by M.S., they contained inconsistencies regarding the position of the weapon when the body was discovered.
157. The applicants also criticised the autopsy carried out on their relative’s corpse, alleging that it had not complied with the applicable standards. In this connection, they complained in particular about the fact that the autopsy report and the inventory of the personal effects found on the dead man had been combined in a single document. They also alleged that the forensic examiner who had carried out the autopsy had not been sufficiently qualified to conduct such an examination. Furthermore, the Court had criticised in several cases the manner in which the forensic examiner in question had conducted autopsies (in this connection, the applicants referred to the cases of İkincisoy v. Turkey, no. 26144/95, § 79, 27 July 2004; Kişmir v. Turkey, no. 27306/95, § 85, 31 May 2005; and Elçi and Others v. Turkey, nos. 23145/93 and 25091/94, § 642, 13 November 2003). They added that excessive importance should not be attached to the results of the other scientific tests, which had been carried out too rapidly.
b. Participation in the investigation
158. The applicants also complained that the material from the case file had not been communicated to them prior to the decision not to bring a prosecution. They further alleged that one of them had not had access to the scene of the incident, although he had expressed a wish to that effect. They also considered that the military court’s decision did not contain sufficient reasons. They inferred from this that the investigation had not been accessible to the victim’s family to the extent necessary to safeguard their legitimate interests and that there had been an insufficient element of public scrutiny of it.
c. Independence of the investigation
159. As to the independence of the investigation, the applicants considered that, although Article 6 could not apply as such to the instant case, it would be appropriate to transpose its requirements to Article 2 of the Convention or at least to have due regard to them, especially since it was unthinkable that the requirements of Article 6 were stricter than those of Article 2. In this regard they referred to the case of Bubbins v. the United Kingdom (no. 50196/99, § 156, ECHR 2005-II (extracts)), in which the Court indicated that the principles that emerged from its Article 6 case-law on the issue of anonymous witnesses were not without relevance to its Article 2 assessment of whether the inquest guaranteed the applicant in that case, firstly, a sufficient measure of participation in the investigation into her brother’s death and, secondly, an appropriate forum for securing the public accountability of the State and its agents for their alleged acts and omissions leading to his death.
160. The applicants considered that, in the specific context of a death in the armed forces, it was contrary to the requirements of Article 2 for the investigation to be conducted by military officers who were subject to army discipline where the investigation concerned the acts of other serving military officers. In that regard, they referred to several cases, including Bursuc v. Romania (no. 42066/98, 12 October 2004); Stoica v. Romania (no. 42722/02, 4 March 2008); Soare and Others v. Romania (no. 24329/02, 22 February 2011); and Sergey Shevchenko v. Ukraine (no. 32478/02, 4 April 2006). Indeed, this latter case was, in their view, very similar to theirs.
161. In the applicants’ view, the investigation had largely been based on the evidence submitted by the gendarmerie investigators, who belonged to the same corps as that concerned by the incident and who could not therefore be considered independent.
162. The applicants criticised the military prosecutor for failing to carry out all of the investigative measures himself and for having delegated some of them to the civilian prosecutor, and submitted that he did not offer all the guarantees of independence from the executive and the military authorities.
163. Moreover, the investigative authorities had not explored every eventuality but had from the outset favoured the hypothesis of an accident, which demonstrated their lack of independence.
164. The applicants further listed all of the elements which they considered to be shortcomings in the investigation, considering that these provided a tangible demonstration of the latter’s lack of independence.
165. With regard to the military court, they explained that at the relevant time that court was made up of three judges, one of whom was not a professional judge but an officer appointed on a case-by-case basis by the military hierarchy, and who did not enjoy the same guarantees of independence as the other two judges, in so far as he remained subordinate to the military authorities.
They noted that this circumstance had led the Turkish Constitutional Court to set aside the legislative provision providing for this officer’s presence on the bench of the court, on the ground that it was contrary to the principle of judicial independence. They further noted that the Court itself had adopted similar reasoning in finding a violation of Article 6, casting doubt on the independence of a military court with an identical composition.
166. The applicants referred, further, to the Constitutional Court’s judgment of 7 May 2009 to express doubts in relation also to the independence of the professional judges in the military court who had been involved in examining their appeal.
167. In addition, they criticised the fact that the same prosecutor had been instructed to carry out the additional investigation requested by the military court.
168. Lastly, the applicants cited, in support of their complaints, the Report of the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on his Mission to Turkey (A/HRC/23/47/Add.2, 18 March 2013), in which the section dealing with deaths in military barracks reads as follows:
“Suspicious suicides of military conscripts and law-enforcement officials
34. A number of soldiers and some law-enforcement officials were pronounced dead by suicide last year. In some 45 of these cases, information suggests that suicide may have been falsified or forced.
35. Formal investigations were either never brought, or else quickly stalled, in nearly all cases and did not result in the identification of perpetrators or subsequent prosecution. Because investigations were conducted in a closed manner within the police or military’s internal justice system, it is impossible for the families and civil society to know whether these are in fact cases of unlawful killing, and to ensure accountability. In some cases, they do not even know whether a full and impartial investigation was conducted. Inadequate access to surveillance camera footage and other evidence compounds the problem.
36. Failures of transparency result in suspicious suicides being neither confirmed nor denied through appropriate legal channels. This trend indicates the need for proper and transparent oversight of the security forces, including the military. In addition to preventive monitoring, this also requires a functional mechanism for complaints, investigation and accountability for those violations that occur.”
C. The Court’s assessment
1. General principles
169. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The investigation must be, inter alia, thorough, impartial and careful (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 161-163, Series A no. 324).
170. The form of investigation required by this obligation varies according to the nature of the infringement of life: although a criminal investigation is generally necessary where death is caused intentionally, civil or even disciplinary proceedings may satisfy this requirement where death occurs as a result of negligence (see, inter alia, Calvelli and Ciglio v. Italy, cited above, § 51; Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002-VIII; and Vo v. France, cited above, § 90).
171. By requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction, Article 2 imposes a duty on that State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. This obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances, even where the presumed perpetrator of the fatal attack is not a State agent (see Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V; Pereira Henriques v. Luxembourg, no. 60255/00, § 56, 9 May 2006; and Yotova v. Bulgaria, no. 43606/04, § 68, 23 October 2012).
172. In order to be “effective” as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 324, ECHR 2007-II). That is, it must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible.
173. The obligation to conduct an effective investigation is an obligation not of result but of means: the authorities must take the reasonable measures available to them to secure evidence concerning the incident at issue (see Jaloud v. the Netherlands [GC], no. 47708/08, § 186, ECHR 2014; and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005-VII).
174. In any event, the authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 301, ECHR 2011).
175. In particular, the investigation’s conclusions must be based on thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines to a decisive extent the investigation’s ability to establish the circumstances of the case and, where appropriate, the identity of those responsible (see Kolevi v. Bulgaria, no. 1108/02, § 201, 5 November 2009).
176. Nevertheless, the nature and degree of scrutiny which satisfy the minimum threshold of the investigation’s effectiveness depend on the circumstances of the particular case. It is not possible to reduce the variety of situations which might occur to a bare check-list of acts of investigation or other simplified criteria (see Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101-110, ECHR 1999-IV; and Velikova v. Bulgaria, no. 41488/98, § 80, ECHR 2000-VI).
177. Moreover, the persons responsible for the investigations should be independent of anyone implicated or likely to be implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence (see Anguelova v. Bulgaria, no. 38361/97, § 138, ECHR 2002-IV).
178. A requirement of promptness and reasonable expedition is implicit in this context (see Al-Skeini and Others, cited above, § 167).
179. In addition, the investigation must be accessible to the victim’s family to the extent necessary to safeguard their legitimate interests. There must also be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 109, ECHR 2001-III). The requisite access of the public or the victim’s relatives may, however, be provided for in other stages of the procedure (see, among other authorities, Giuliani and Gaggio, cited above, § 304; and McKerr v. the United Kingdom, no. 28883/95, § 129, ECHR 2001-III).
180. Article 2 does not impose a duty on the investigating authorities to satisfy every request for a particular investigative measure made by a relative in the course of the investigation (see Ramsahai and Others, cited above, § 348; and Velcea and Mazăre v. Romania, no. 64301/01, § 113, 1 December 2009).
181. The question of whether an investigation has been sufficiently effective must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Dobriyeva and Others v. Russia, no. 18407/10, § 72, 19 December 2013; and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 147, 17 July 2014).
182. Lastly, the Court considers it useful to reiterate that, when it comes to establishing the facts, and sensitive to the subsidiary nature of its role, it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Ataykaya v. Turkey, no. 50275/08, § 47, 22 July 2014, or Leyla Alp and Others v. Turkey, no. 29675/02, § 76, 10 December 2013). Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them (see, among other authorities, Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no 247-B). Though the Court is not bound by the findings of domestic courts and remains free to make its own appreciation in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by the domestic courts (see Giuliani and Gaggio, cited above, § 180; and Aydan v. Turkey, no. 16281/10, § 69, 12 March 2013).
2. Application to the present case
a. The adequacy of the investigation
183. In the first place, it should be observed that the incident which led to the death of Cihan Tunç occurred on 13 February 2004, that the prosecutor’s office was immediately informed and that the initial investigative measures were taken on the same day. On 30 June 2004 the prosecution service completed the investigations and issued a decision not to prosecute. On 14 October 2004 the military court allowed the applicants’ objections and ordered an additional investigation. The prosecution service issued its report on 8 December 2004, after having carried out the supplementary investigative measures. On 17 December 2004 the military court dismissed the applicants’ appeal. A copy of that decision was sent to the applicants’ lawyer a few days later. In those circumstances, the Court considers that the investigations in question were conducted with the requisite diligence and that there was no unjustified delay in the investigation.
184. The Court further considers that the authorities took sufficient measures to collect and secure evidence relating to the events in issue.
185. Firstly, a full autopsy, during which photographs were taken, was conducted. It produced a record of injury, accompanied by an objective analysis of clinical findings concerning the cause of death and the probable distance from which the shot had been fired.
186. In so far as the applicants complained about the fact that the autopsy report and the record listing the personal effects found on the deceased had been combined in one and the same document, the Court considers that no convincing arguments have been presented which would justify the conclusion that this could have been detrimental to the quality of the autopsy and, consequently, of the investigation.
187. With regard to the fact that the deceased’s clothing had been removed before the forensic medical expert arrived, the Court notes that this circumstance did not prevent those items from being examined to determine the firing distance. On the contrary, they were removed for the precise purpose of being sent to a forensic laboratory for tests, on the prosecutor’s instructions and under his supervision.
188. The applicants also expressed doubts about the competence of forensic doctor L.E., referring to several judgments in which the Court allegedly criticised autopsies carried out by him. On this point, the Court specifies that any conclusions it might have reached with regard to the manner in which an autopsy was conducted in a given case concern that case alone, and certainly cannot be interpreted as implying that all of the autopsies carried out by that particular forensic doctor necessarily have significant shortcomings and that no credit can be given to his or her conclusions. In this respect, the Court reiterates that the adequacy of an autopsy must be assessed in the light of the circumstances of each case.
189. In the present case, the Court notes that the applicants have not provided evidence of serious shortcomings in the conduct of the examination in question.
190. Moreover, as soon as the prosecutor arrived at the hospital, he ordered that swabs be taken from the hands of the dead man and from those of a potential suspect. The dead man’s clothing was sent for technical tests, which provided scientific confirmation of the medical conclusions concerning the distance from which the shot had been fired and the entry and exit points of the bullet. The weapons and the spent cartridge found on the scene were also sent for scientific analysis.
191. The Court notes that as soon as the experts arrived they sealed off the scene of the incident and took steps to secure the integrity of all of the evidence likely to be important in solving the case.
192. Admittedly, the scene of the incident had not been left entirely untouched prior to the arrival of the team of criminal research experts, in that the weapons of the dead man and M.S. were not left in situ but were placed under lock and key in a cupboard.
193. In this connection, it should be noted that the dead man’s weapon had already been moved by M.S. when attempting to provide assistance to Cihan Tunç. It must be accepted that the need to provide first aid to a seriously injured individual should take precedence over the requirement to avoid disturbing the scene of an incident as it stands when first discovered.
194. Given that the weapon had already been moved when the incident was discovered, the fact that it was subsequently placed in a secure location does not necessarily raise a problem, in so far as this did not prevent the weapon from being subjected to ballistics tests in the laboratory.
195. However, it would seem that the weapon was not dusted for fingerprints, although such testing should be considered as standard procedure. Nonetheless, the Court considers that this shortcoming was not decisive. Even supposing that it had been possible, on completion of such testing, to obtain useable fingerprints, and specifically those of M.S., it is not certain that this would have had any important implications for the course of the investigation, given that M.S. had admitted touching the weapon in order to move it out of the way and assist his fellow serviceman (see paragraph 37 above). Furthermore, the case file shows that the applicants did not request any such testing as part of their appeal to the military court (see paragraph 62 above).
196. With regard to the work carried out on the site of the incident, the Court notes that it was done long after the scene had been examined by the investigators and after the investigations had been closed for the first time. No negative impact of this work, which consisted in cementing over the earthen floor, on the quality of the reconstruction of events has been demonstrated. The ceiling height had been measured when the scene of the incident was originally secured, and in any event the floor levels had not been raised during the renovation work (see paragraph 67 above).
197. With regard to the questioning of the witnesses, the Court observes that the authorities took several statements immediately after the events. There is nothing to support the assertion that they failed to question key witnesses or that the interviews were conducted in an inappropriate manner.
198. Although private M.D., who had accompanied sergeant A.A. when transferring Cihan Tunç to Diyarbakır Hospital, does not actually seem to have been questioned by the investigators, it does not appear that he was a crucial witness. Nor, moreover, did the applicants call for him to be questioned in the context of their appeal.
199. The applicants alleged that there were serious discrepancies between the statements, particularly concerning the scene of the incident and the guard posts to which Cihan Tunç and M.S. were respectively assigned. However, the Court discerns no contradiction between the statements and finds, on the contrary, that they are consistent on those points.
200. According to the case file, and especially the witness statements, there were a total of six guard posts on the Perenco site, only three of which were used. The first of the posts in use was at the entrance to the site. The second was a sentry post located in the northern part of the site, which was referred to as the “low tower”, “tower no. 2”, or even “guard post no. 4”, on the ground that it was the fourth guard post from the entrance, given that the two posts located after the initial entrance post were not in use. As to the third guard post in use, it was a watchtower to the east of the site, which was referred to as the “high tower” or “tower no. 3”.
201. In the Court’s opinion, there is no doubt that the statements all indicate that Cihan Tunç was on duty in the watchtower and M.S. in tower no. 2, and that the incident took place at this latter post.
202. In this connection, the Court notes that in the description of the facts set out in English in the initial application form, no distinction is made between the terms “tower” (kule) and “guard post” (nöbet mevzisi), which have been translated interchangeably by the English word “tower”, while the translations into English of the witness statements submitted by the applicants in support of their application take account of this distinction. Thus, the applicants’ complaint is based on an approximate translation of the terms used in the witness statements.
203. The Court notes, however, that sergeant A.K. indicated in one of his statements that Cihan Tunç had been on duty at “guard post no. 2” (see paragraph 52 above). When his statement is taken in its entirety, however, it is clear that he is confusing the numerous names for the guard posts, since the sergeant specifies in the same statement, explicitly and on two occasions, that Cihan Tunç was on duty in the watchtower (“tower no. 3”, or the “high tower”).
204. Moreover, it could be considered that M.S.’s statements contained inconsistencies, in that a quick reading of his statement to the internal investigator might give the impression that he had been standing seven or eight metres away from Cihan Tunç before leaving the sentry post (see paragraph 40 above), whilst the post in question measured 2 m x 2 m (see paragraph 27 above). However, if both of the statements are taken into account (see paragraphs 37 and 40 above), it is clear that M.S. indicated that he was standing several metres away from the sentry post.
205. It follows that the complaint alleging that the authorities carried out the interviews incorrectly and failed to clarify the discrepancies that emerged in them is unfounded.
206. Lastly, the Court notes that those responsible for the investigation explored the various possible lines of inquiry. It appears that the theory of suicide was discarded on account of the position of the body and the gun at the moment when the shot was fired (see paragraphs 63, 72 and 73 above). While the possibility of unlawful killing was ultimately dismissed by the prosecutor on the basis of insufficient evidence, it was certainly envisaged at the beginning of the investigation.
207. In fact, M.S. was questioned on two occasions. The investigators asked him whether he and Cihan Tunç had come to blows and whether he had tried to remove the latter’s weapon. In addition, samples had been immediately taken from M.S.’s hands and his rifle had been submitted for analysis in order to ascertain the credibility of his version. The investigators had also questioned Cihan Tunç’s colleagues, in order to ascertain whether he had been involved in a dispute with anyone and, if necessary, to establish whether a motive existed for murder. It is clear that none of these measures would have been taken if the criminal hypothesis was not being seriously considered.
208. Consequently, it cannot be argued that the prosecution service failed to envisage any hypothesis other than the one which it ultimately accepted, or that it passively adopted the version provided by the last soldier to have seen Cihan Tunç alive, and who could accordingly have been a suspect.
The Court further notes that the private expert report submitted by the applicants confirms on the whole the investigation’s conclusions.
209. In general, the Court perceives no such shortcomings as might call into question the overall adequacy and promptness of the investigation conducted by the domestic judicial authorities.
b. Participation of the deceased’s relatives in the investigation
210. The Court reiterates that it has already found a breach of the procedural aspect of Article 2 in cases in which the applicants were only informed of judicial decisions concerning the investigation with considerable delay and in which the information provided did not contain specific details of the reasons for those decisions (see, for example, Trufin v. Romania, no. 3990/04, § 52, 20 October 2009; and Velcea and Mazăre, cited above, § 114), on the ground that such a situation was likely to prevent any effective challenge.
211. Thus, in the case of Anık and Others v. Turkey (no. 63758/00, §§ 76-77, 5 June 2007), where, following the decision not to bring a prosecution, the applicants were not given any documents from the case file with the exception of their own statements, the Court also found that there had been a violation of Article 2 on the ground that the decision not to prosecute could not be challenged effectively without prior knowledge of the material in the investigation file.
212. The Court reiterates, however, that the requisite access of the public or the victim’s relatives may be provided for in other stages of the procedure (see Giuliani and Gaggio, cited above, § 304).
213. In the present case, it notes that a full copy of the decision not to bring a prosecution of 30 June 2004, containing a summary of the materials of the investigation and the reasons for the decision, was provided to the applicants. The latter were subsequently given access to the investigation file. Moreover, the military prosecutor informed the applicants’ lawyer in writing that, in application of the Lawyers Act, she could consult the case file and have a copy made of any item of evidence she considered relevant (see paragraph 60 above).
214. It was therefore after having been able to take cognisance of the materials in the file that the applicants had challenged the decision not to bring a prosecution. Accordingly, it cannot be considered that they were unable to exercise their rights effectively.
215. Moreover, the Court notes that the military court which examined their appeal accepted certain of the applicants’ arguments, since the judges ordered supplementary investigative measures, requiring that the issue of the bullet’s trajectory be examined in more detail and that the prosecution service provide explanations concerning the presence of gunpowder residue on M.S.’s hands. The prosecution service addressed those questions, in particular by organising a reconstruction of the events.
216. In these circumstances, the Court considers that the applicants were granted access to the information yielded by the investigation to a degree sufficient for them to participate effectively in the proceedings.
c. Independence of the investigation
i. Preliminary observations
217. The Court reiterates that the procedural protection of the right to life inherent in Article 2 of the Convention implies that the investigation must be sufficiently independent. It also notes that Article 6 of the Convention, which guarantees the right to a fair hearing, also lays down a requirement of independence.
218. The Court notes, however, that Article 6 is not applicable in the present case. Proceedings brought by one person to challenge a decision not to prosecute another do not themselves seek to determine “civil rights and obligations”. Nor, in Turkish law, do they affect the standing of the party to bring an action for compensation. Article 6 does not therefore apply under its civil head (contrast Perez v. France [GC], no. 47287/99, § 67, ECHR 2004-I). With regard to the criminal head of Article 6, the Court reiterates that the wording itself of Article 6 (“against him”) makes it clear that in criminal cases the guarantees of that provision protect the person who faces a criminal charge (see, to similar effect, Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 359, ECHR 2007-II). It observes that there is no dispute between the parties on this point.
219. Having regard to the Chamber’s findings, the reasons given in the Government’s request for referral and the parties’ submissions, the Court nevertheless considers it useful to provide some clarification concerning the requirement that the investigation be independent for the purposes of Article 2, and particularly as to whether the investigative authorities in the broad sense must meet similar criteria of independence as those which prevail under Article 6 of the Convention.
220. At the outset, the Court considers that while the requirements of a fair hearing may inspire the examination of procedural issues under other provisions, such as Articles 2 or 3 of the Convention, the safeguards provided are not necessarily to be assessed in the same manner.
221. Article 6 requires that the court called upon to determine the merits of a charge be independent of the legislature and the executive, and of the parties. Compliance with this requirement is assessed, in particular, on the basis of statutory criteria, such as the manner of appointment of its members and the duration of their term of office, or the existence of sufficient safeguards against the risk of outside pressures. The question whether the body presents an appearance of independence is also of relevance.
222. For their part, the requirements of Article 2 call for a concrete examination of the independence of the investigation in its entirety, rather than an abstract assessment (see Aslakhanova and Others v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, § 235, 18 December 2012). Thus, in numerous cases, the Court has taken into account a number of elements such as, for example, the fact that the investigators were potential suspects (see Bektaş and Özalp v. Turkey, no. 10036/03, § 66, 20 April 2010, and Orhan v. Turkey, no. 25656/94, § 342, 18 June 2002), that they were direct colleagues of the persons subject to investigation or likely to be so (see Ramsahai and Others, cited above, §§ 335-341; Emars v. Latvia, no. 22412/08, §§ 85 and 95, 18 November 2014; and Aktaş v. Turkey, no. 24351/94, § 301, ECHR 2003-V), that they were in a hierarchical relationship with the potential suspects (see Şandru and Others v. Romania, no. 22465/03, § 74, 8 December 2009; and Enukidze and Girgvliani v. Georgia, no. 25091/07, §§ 247 et seq., 26 April 2011) or that the specific conduct of the investigative bodies indicated a lack of independence, such as the failure to carry out certain measures that were called for in order to elucidate the case and, if appropriate, punish those responsible (see Sergey Shevchenko, cited above, §§ 72 and 73), the excessive weight given to the suspects’ statements (see Kaya v. Turkey, 19 February 1998, § 89, Reports 1998-I; and Grimailovs v. Latvia, no. 6087/03, § 114, 25 June 2013), the failure to explore certain lines of inquiry which were clearly required (see Oğur v. Turkey [GC], no. 21594/93, §§ 90-91, ECHR 1999-III), or excessive inertia (see Rupa v. Romania (no. 1), no. 58478/00, §§123 and 124, 16 December 2008).
223. Moreover, Article 2 does not require that the persons and bodies responsible for the investigation enjoy absolute independence, but rather that they are sufficiently independent of the persons and structures whose responsibility is likely to be engaged (see Ramsahai and Others, cited above, §§ 343 and 344). The adequacy of the degree of independence is assessed in the light of all the circumstances, which are necessarily specific to each case.
224. Where the statutory or institutional independence is open to question, such a situation, although not decisive, will call for a stricter scrutiny on the part of the Court of whether the investigation has been carried out in an independent manner. Where an issue arises concerning the independence and impartiality of an investigation, the correct approach consists in examining whether and to what extent the disputed circumstance has compromised the investigation’s effectiveness and its ability to shed light on the circumstances of the death and to punish those responsible.
225. In this regard, the Court considers it appropriate to specify that compliance with the procedural requirement of Article 2 is assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person’s family and the independence of the investigation. These elements are inter-related and each of them, taken separately, does not amount to an end in itself, as is the case in respect of the independence requirement of Article 6. They are criteria which, taken jointly, enable the degree of effectiveness of the investigation to be assessed. It is in relation to this purpose of an effective investigation that any issues, including that of independence, must be assessed.
226. The above-mentioned principles have been implemented in many cases, including those which are referred to hereafter.
227. In several cases, the Court has found a lack of independence in investigations conducted by military prosecutors, following an examination not only of the domestic regulations (under which the latter were accountable for breaches of military discipline and were part of the military structure based on the principles of hierarchical subordination), but also of the conduct of those involved, who showed tangible proof of a lack of impartiality, by, for example, failing to carry out all the investigative measures which were required to complete the investigation (see Barbu Anghelescu v. Romania, no. 46430/99, 5 October 2004; and Soare and Others, cited above, § 71), refusing to open criminal proceedings in spite of an order that this be done (see Dumitru Popescu v. Romania (no. 1), no. 49234/99, §§ 75 et seq., 26 April 2007) or refusing to examine the conclusions of forensic medical reports (see Bursuc v. Romania, no. 42066/98, §§ 107-109, 12 October 2004).
228. Subsequently, in the Mantog v. Romania judgment (no. 2893/02, §§ 70 et seq., 11 October 2007), after pointing out that in previous cases it had concluded that military prosecutors had not been independent, particularly having regard to the regulations in force in Romania, the Court considered that the investigation conducted in that case by a military prosecutor into the death of the applicant’s daughter had been independent, noting that the degree of independence of an investigative body had to be assessed on the basis of the specific circumstances of the case submitted for the Court’s examination. In so doing, it took into account, in particular, of the fact that no link existed between the military prosecutor and the persons likely to be investigated, the in-depth nature of the investigations and the fact that the prosecutor in question had reopened the proceedings at the applicant’s request. It also took into consideration the fact that the investigation in issue had not concerned acts of unlawful killing or ill-treatment committed by State agents in the performance of their duties. Although the accused were police officers, the case did not concern the use of lethal force by State agents acting in that capacity.
229. In the same way, in the case of Stefan v. Romania ((dec.), no. 5650/04, § 48, 29 November 2011), the Court, once again taking into consideration the prosecutor’s specific conduct, also concluded that the investigation carried out by him had been independent, in spite of the statutory regulations which did not afford him sufficient statutory independence. Here too, it based its finding on the in-depth nature of the investigations and the fact that they did not concern unlawful killings or ill-treatment committed by State agents in the performance of their duties.
230. In several Turkish cases, such as that of Güleç (Güleç v. Turkey, 27 July 1998, Reports 1998-IV) concerning a death during a demonstration, the Court held that there had been a violation of Article 2 on the ground that not only did the investigation - supervised by the provincial administrative council in the context of proceedings against civil servants - raise serious doubts and the investigating body was not independent from the executive, but also the investigation had been neither thorough nor adversarial. Subsequently, in the case of Tanrıbilir v. Turkey (no. 21422/93, §§ 54-85, 16 November 2000), which concerned a death by hanging during police custody in a gendarmerie station, the Court, after referring to its conclusion in the Güleç case on the independence of the provincial administrative council, concluded that in this particular case the investigation in issue, although supervised by a provincial administrative council whose independence from the executive was open to doubt, had met the procedural requirements of Article 2 of the Convention. In this connection, it based its finding on the detailed nature of the preliminary investigation carried out to determine whether there had been any liability on the part of the gendarmes.
231. With regard to the Sergey Shevchenko judgment (cited above) referred to by the applicants, the Court notes that this follows the same logic. In that case, which concerned the death of an air-force lieutenant who was found dead in his guardroom with two gunshot wounds to his head, and in which the authorities had concluded that he had committed suicide, the Court found that there had been a violation of the procedural limb of Article 2. In reaching that conclusion, the Court took into consideration that the person who had initially been in charge of the investigation, the commanding officer of the unit, was a representative of the authorities concerned, that subsequent investigators did not have guarantees against pressure from their hierarchy and that from the outset they seemed keen to accept the suicide theory preferred by the military authorities. In addition, the investigators had failed to carry out a reconstruction of the events, although this was not only essential but had also been ordered by the military court of appeal. Other essential investigative acts had been overlooked (tests for gunpowder on the hands of the dead man, or a second expert opinion from a graphologist) and the applicant had been excluded from the case, contrary to the usual practice. In other words, the absence of regulatory safeguards was not in itself a decisive ground. It had been accompanied by numerous shortcomings and deficiencies in the investigation, which were tangible manifestations of the lack of independence.
232. Further, with regard to the intervention of a court or a judge at the close of an investigation, the Court is conscious of the existence of a range of procedural systems which may, in spite of their variety, be compatible with the Convention, which does not impose any particular model (see, mutatis mutandis, Kolevi, cited above, § 208). Where there has been no unlawfulness or flagrant shortcoming which could lead the Court to find that the investigation was flawed, the Court would exceed the limits of its jurisdiction were it to interpret Article 2 as imposing a requirement on the authorities to put in place a judicial remedy (see Gürtekin and Others and two other applications v. Cyprus, nos. 60441/13, 68206/13 and 68667/13, 11 March 2014).
233. However, while it is not in itself a requirement, the intervention of a court or a judge enjoying sufficient statutory safeguards of independence is a supplementary element enabling the independence of the investigation as a whole to be guaranteed (see Ramsahai and Others, cited above, § 345, in which the Court, taking into consideration, inter alia, the possibility of review by an independent tribunal, concluded that the investigation had been independent, although the prosecutor who had conducted it had a close professional relationship with the police officers under investigation). Such intervention may prove necessary in certain cases, given the nature of the facts in issue and the particular context in which they occur.
234. Nonetheless, it should be specified that while the intervention of a review body may enable any shortcomings in the investigation to be remedied, this is not always possible, given the advanced stage at which such a body frequently becomes involved (see Al-Skeini and Others, cited above, § 173).
ii. The present case
235. The Court notes that the investigation conducted into the death of Cihan Tunç took place at two levels: on the one hand, the investigations conducted by the prosecutor and, on the other, the review carried out by the Diyarbakır air-force military court.
α. Independence of the investigations conducted by the prosecutor
236. The Court notes that, at the material time, the military prosecutors were subject to an appraisal by the commander of the military unit within which they carried out their duties, with regard to their “officer’s appraisal sheet”. This sheet was used in the context of promotions. Admittedly, it was not the only element which was taken into consideration, as promotion also depended on the professional appraisal sheet. In addition, the prosecutors were protected by a number of significant safeguards, such as a specific appointment system requiring, in particular, the involvement of the President of the Republic (see paragraph 88 above), a specific reference to their independence in the Constitution and in the law (see paragraphs 86 and 87 above), and the prohibition on giving them instructions not to bring proceedings (see paragraphs 89 to 91 above). In spite of these safeguards attached to the function of prosecutor, the existence of this appraisal by a senior officer in the military hierarchy is such as to give rise to fears concerning the possibility that appraisers might, notwithstanding the legislation, be tempted to exert pressure on military prosecutors by this means.
237. Nevertheless, these concerns about the statutory independence of military prosecutors at the relevant time, however understandable, are not in themselves sufficient to conclude that the investigation was lacking in independence. It is necessary to examine in concreto the independence of prosecutor E.Ö. of the 7th Army Corps, by verifying on the one hand whether he had ties to the person or persons likely to be investigated and, on the other, whether there was tangible evidence of bias in his conduct.
238. With regard to the first point, the Court notes that the military prosecutor had no ties, hierarchical or otherwise, either with the main suspect or with the gendarmes stationed at the Perenco site, or with the Kocaköy central gendarmerie (see Tikhonova v. Russia, no. 13596/05, § 82, 30 April 2014; and Perevedentsevy v. Russia, no. 39583/05, § 107, 24 April 2014) or even with the gendarmerie in general. There is nothing to indicate, for example, that the individual in question had a close working relationship with the gendarmes in question.
239. With regard to the second point, the Court notes that the prosecutor responsible for the investigation gathered all the evidence that it was necessary to obtain, and that he cannot reasonably be criticised for failing to take a particular investigative measure. There is nothing to suggest that he failed to explore all lines of inquiry, in particular the theory of unlawful killing (see Pankov v. Bulgaria, no. 12773/03, § 54, 7 October 2010). On the contrary, it seems that all possible lines of inquiry, including that of a criminal act, were envisaged (see paragraphs 206 to 208 above).
240. Right from the outset, the prosecutor himself directed the investigations (see, by way of contrast, Saçılık and Others v. Turkey, nos. 43044/05 and 45001/05, § 98, 5 July 2011). He immediately went to the hospital to which Cihan Tunç had been admitted. There, he supervised the autopsy, ordered that samples be taken from the deceased’s body and from M.S., the last person to have seen Cihan Tunç alive, and questioned M.S. In parallel, he also sent a civilian prosecutor to the scene of the incident, instructing him to supervise the work of the team of forensic experts.
241. It was on the basis of evidence gathered under its supervision that the prosecution service concluded that the incident had been an accident, in a decision giving sufficient reasons (see Đurđević v. Croatia, no. 52442/09, §§ 89-91, ECHR 2011). Consequently, it cannot be claimed that the prosecuting authorities accepted without question the version supplied to them (see Giuliani and Gaggio, cited above, § 321).
242. In addition, it should be noted that the military prosecutor carried out the supplementary investigative measures ordered by the court following the applicants’ appeal against the decision not to bring a prosecution (compare with Barbu Anghelescu, cited above, and Sergey Shevchenko, cited above, § 72, where this was not the case). In this connection, the Court does not see why the mere fact that it was the same prosecutor who carried out the said measures could pose a problem.
243. With regard to the non-prosecutorial investigators, the Court observes that although they were members of the gendarmerie, the corps within which the incident had occurred, these gendarmes were not based at the scene of the incident or at the Kocaköy central gendarmerie, to which the gendarmes responsible for protection of the Perenco site were attached (see, by contrast, Orhan, cited above, § 342). There was no hierarchical relationship between these investigators and the individuals such as M.S. who were likely to be involved. The investigators in question, who were attached to the Diyarbakır gendarmerie, were not the direct colleagues of those persons (see Putintseva v. Russia, no. 33498/04, § 52, 10 May 2012, or, in contrast, Aktaş, cited above, § 301, ECHR 2003-V, and Bektaş and Özalp, cited above, § 66). Moreover, they were not responsible for steering the investigation, overall control of which remained in the hands of the prosecutor.
244. Furthermore, the main acts carried out by these investigators concerned the scientific aspects of the investigation, such as taking samples or ballistic tests. The fact that the investigators were members of the gendarmerie cannot in itself be said to have affected the impartiality of the investigation. To hold otherwise would be to impose unacceptable restrictions in many cases on the ability of the justice system to call on the expertise of the law-enforcement agencies, which often have particular competence in the matter (see Giuliani and Gaggio, cited above, § 322).
β. Independence of the review carried out by the military court
245. The Court notes that, having regard to the regulations in force at the material time, there were factors which cast doubt on the statutory independence of the military court of the Diyarbakır 2nd Air-Force Corps, which was called upon to examine the applicants’ appeal against the decision of the prosecutor’s office not to bring a prosecution.
246. Firstly, one of the three judges of that court was a serving officer and did not offer the same safeguards of independence as the two other judges. Indeed, a similar circumstance led the Court to find a violation of Article 6 in the above-cited Gürkan case, which concerned an identically composed military court.
247. Secondly, like the prosecutors, the military judges at the relevant time were also subject to appraisal by the commander of the military unit in respect of which they exercised their duties, in the present case the 2nd Air-Force Corps, in the form of their “officer’s appraisal sheet”. Here too, it should be noted that this was not the only element taken into consideration, in that promotion was also dependent on the professional appraisal sheet and the military judges enjoyed a number of safeguards of independence: a structured appointments system requiring, in particular, the involvement of the President of the Republic (see paragraph 88 above), a specific reference to their independence in the Constitution and in the law (see paragraphs 86-87 above), an absolute prohibition on giving them instructions or suggestions or attempting to influence their judgment (ibid.), and the criminalisation of any attempt to do so (see paragraph 89 above). In spite of these guarantees, however, the system for appraising judges was such as to give rise to doubts concerning their independence within the meaning of the Constitution. Indeed, the Constitutional Court has criticised this system (see paragraphs 95 to 102 above).
248. It is to be observed that the highest Turkish court ruled on the issue of whether the appraisal system complied with the constitutional principle of the independence of the justice system in a general manner, without making a distinction between the duties of the bench, which consist in ruling on the merits of cases, and the military court’s jurisdiction in the area of reviewing criminal investigations. Thus, the Constitutional Court did not specifically rule on this latter point.
249. In any event, the Court reiterates that, under Article 2, the foregoing considerations (see paragraphs 245 and 247) do not in themselves suffice to conclude that the investigation lacked independence. Indeed, that provision does not require absolute independence. Moreover, the independence of the investigation must be assessed in concreto.
250. In this regard, it notes that the members of the court had no hierarchical or tangible link with the gendarmes stationed at the Perenco site or the Kocaköy central gendarmerie, or even with the gendarmerie in general. The military court in question is in fact within the judicial district of the 2nd Air-Force Corps, which is part of the air force.
251. The Court further notes that there was nothing in the conduct of the court and its judges to indicate that the latter were inclined to refrain from shedding light on the circumstances of the death, to accept without question the conclusions submitted to them or to prevent the instigation of criminal proceedings against M.S.
252. On the contrary, in a similar manner to the above-cited cases of Mantog and Stefan, the court initially allowed the applicants’ appeal, by ordering additional investigations to test the credibility of the hypothesis of an accident put forward by the prosecutor’s office. It was on the basis of these further investigative measures - including a reconstruction of the events - that the court ultimately dismissed the applicants’ appeal.
253. The fact that the court held that all of the investigative measures necessary for establishing the truth had been taken and that there was insufficient evidence to bring proceedings against a suspect cannot in any way be regarded as the sign of a lack of independence. In this respect, the Court reiterates that the authorities are under an obligation not of result but of means, and that Article 2 does not imply the right to obtain a conviction or to have a prosecution brought.
γ. Conclusion concerning the independence of the investigation
254. While accepting that it cannot be considered in the present case that the entities which played a role in the investigation enjoyed full statutory independence, the Court finds, taking account, on the one hand, of the absence of direct hierarchical, institutional or other ties between those entities and the main potential suspect and, on the other, of the specific conduct of those entities, which does not reflect a lack of independence or impartiality in the handling of the investigation, that the investigation was sufficiently independent within the meaning of Article 2 of the Convention.
255. In this regard, it stresses that Cihan Tunç’s death did not occur in circumstances which might, a priori, give rise to suspicions against the security forces as an institution, as for instance in the case of deaths arising from clashes involving the use of force in demonstrations, police and military operations or in cases of violent deaths during police custody. Even on the basis of the criminal hypothesis which seems to be favoured by the applicants, suspicions fell on M.S. rather than on the authorities. Yet the fact is that M.S. was a mere conscript, and not a rank-holding army officer. While he was certainly a serviceman, it remains the case that the suspicions against him were not related to his particular status as a gendarme or as a member of the armed forces.
d. General conclusion
256. In conclusion, the Court considers that the investigation conducted in this case was sufficiently thorough and independent and that the applicants were involved in it to a degree sufficient to protect their interests and to enable them to exercise their rights.
257. It follows that there has been no violation of Article 2 of the Convention in its procedural aspect.
FOR THESE REASONS, THE COURT,
1. Dismisses the Government’s preliminary objection that the applicants lacked victim status;
2. Holds, by twelve votes to five, that there has been no violation of Article 2 of the Convention under its procedural aspect;
Done in English and French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 14 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Johan Callewaert Dean
Deputy to the Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) joint concurring opinion of Judges Spielmann, Villiger, Karakaş, Ziemele and Spano;
(b) concurring opinion of Judge de Gaetano;
(c) joint dissenting opinion of Judges Spielmann, Karakaş, Ziemele, López Guerra and de Gaetano.
JOINT CONCURRING OPINION OF JUDGES SPIELMANN, VILLIGER, KARAKAŞ, ZIEMELE AND SPANO
It is with regret that we are unable to agree with the Court’s conclusions regarding the Government’s objection to the applicants’ victim status. The majority find in paragraphs 126 and 127 of the judgment that the objection “does not concern a matter that goes to [the Court’s] jurisdiction” and that “the Government are estopped from raising a preliminary objection based on the applicants’ victim status at this stage of the proceedings ...”.
We cannot agree with that approach, which we find to be inconsistent with the Court’s case-law. In its judgment in the case of R.P. and Others v the United Kingdom, no. 38245/08, 9 October 2012, the Court stated (in § 47):
“Although the Government have not raised an objection on this ground, the Court notes that an objection on the ground of victim status is an objection which goes to the Court’s jurisdiction and, as such, the Court is not estopped from raising it of its own motion (see, mutatis mutandis, Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006-III).”
The Court confirmed this approch very recently, in its judgment in the case of Furman v. Slovenia and Austria (no. 16608/09, judgment delivered on 5 February 2015). Paragraph 84 of that judgment states:
“The Court has already held that the question of admissibility on the ground of victim status falls within the Court’s jurisdiction and, as such, the Court is not estopped from raising it of its own motion (see R.P. and Others v. the United Kingdom, no. 38245/08, § 47, 9 October 2012)...”
In our view, the Court should in the instant case have examined the Government’s objection, rather than disposing of it with reference to the doctrine of estoppel.
We also consider that it was not necessary for the Court to take such a firm position on this matter, having regard to the fact that in the subsequent paragraphs it proceeds to examine the objection on an “even assuming”basis and then dismisses it.
CONCURRING OPINION OF JUDGE DE GAETANO
I have had the benefit of reading the joint concurring opinion of Judges Spielmann, Villiger, Karakaş, Ziemele and Spano.
While I agree that the wording of paragraph 126 is highly problematic, I am of the view that the Government were correctly estopped in this case from raising the preliminary objection based on the applicants’ lack of victim status.
To my mind, the correct approach in this case is that laid down in paragraph 82 of Svinarenko and Slyadnev v. Russia ([GC], nos. 32541/08 and 43441/08, ECHR 2014 (extracts)) where it was stated as follows:
“In the absence of any exceptional circumstances that could have dispensed the Government from raising this objection in a timely manner, the Court holds that the Government are estopped from raising their preliminary objection concerning the first applicant’s victim status (see Sejdovic v. Italy [GC], no. 56581/00, § 41, ECHR 2006-II; Prokopovich v. Russia, no. 58255/00, § 29, ECHR 2004-XI (extracts); and Andrejeva v. Latvia [GC], no. 55707/00, § 49, ECHR 2009).”
The Court is, of course, always at liberty to raise a similar matter ex officio but in the instant case it did not. For that reason, paragraphs 128 to 135 are unnecessary, and the issue of the preliminary objection should have stopped at paragraph 127.
JOINT DISSENTING OPINION OF
JUDGES SPIELMANN, KARAKAŞ, ZIEMELE, LÓPEZ GUERRA,
AND DE GAETANO
We are unable to agree with the majority that there has been no violation of Article 2 of the Convention under its procedural head, for the following reasons.
A. Adequacy of the investigation
Before the Grand Chamber, the applicants complained of a series of alleged shortcomings in the investigation conducted into the death of the late Mr Cihan Tunç. The Grand Chamber has concluded that none of those shortcomings had a decisive impact on the overall effectiveness of the investigation.
1. The evidence of private M.D.
In our view, it is impossible to prejudge whether the evidence of private M.D. - who was apparently one of the last persons to see Cihan Tunç alive, just before he died from his injury (see paragraphs 16 and 198 of the judgment) - would have been of no interest. Nothing in the case file or in the Government’s arguments indicates why M.D. was never questioned, and in our opinion it was not for the Grand Chamber to make good that omission by making its own assumption that he was not a crucial witness. It was for the authorities to query their conduct on this point, not for the Court to absolve them from doing so, in the absence of a plausible explanation.
In this connection, contrary to what the majority suggests (see paragraph 198), we note that the case-law principles governing the role of victims’ families in investigation procedures did not in themselves require that the family ask, of its own motion, for M.D. to be questioned. Those principles having been insufficiently set out in the judgment, we wish, with respect, to reiterate them very briefly now.
The positive obligation under Article 2 of the Convention to take all preventive operational measures as are necessary and sufficient to protect an individual from the actions of another person (see Keenan v. the United Kingdom, no. 27229/95, §§ 88-89, ECHR 2001-III) or, where necessary, from themselves (see Abdullah Yılmaz v. Turkey, no. 21899/02, §§ 55 and 56, 17 June 2008) is also valid in the area of military service, as are the procedural obligations derived from that provision (see Kılınç and Others v. Turkey, no. 40145/98, § 40, 7 June 2005; and Salgın v. Turkey, no. 46748/99, § 76, 20 February 2007). In the present case, as in every case where an individual under the responsibility of the State dies in suspicious circumstances, Article 2 thus placed an obligation on the Turkish authorities to conduct an “official and effective investigation” capable of establishing the causes of Cihan Tunç’s death and identifying those responsible (see Slimani v. France, no. 57671/00, § 47, ECHR 2004-IX (extracts)).
To that end, those authorities were required to “act of their own motion once the matter [had] come to their attention, and could not leave it to the initiative of the next-of-kin ... to request particular lines of inquiry or investigative procedures” (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 111, ECHR 2005 VII; and Salgın, cited above, § 87). However, the majority seems to accept that the applicants could be expected to take the place of the investigative authorities in relation to having M.D. questioned, but does not specify the reasons which led it to depart from the general principle. An applicant’s conduct may admittedly, in certain circumstances, undermine the effectiveness of the investigations in a given case. However, such instances generally occur, where, for example, an applicant knowingly refuses to take part in certain crucial investigative measures (see, by way of example, Ay v Turkey, no. 30951/96, § 68, 22 March 2005; and Rohe Harman v. Turkey (dec.), no. 30950/96, 1 March 2005) or fails to inform the authorities about evidence that is known only to him or her (see Salgın, cited above, § 73); this did not apply in respect of Cihan Tunç’s relatives.
In summary, the fact that M.D. was not questioned by the authorities responsible for the investigation of their own motion amounts, in our opinion, to a shortcoming in the investigation.
2. The taking of fingerprints
For the same reasons as those set out above, and a fortiori, this position applies to the failure to take fingerprints from the weapon which killed Cihan Tunç. In this regard, the majority considered that although such testing “should be considered as standard procedure”, its absence was a “shortcoming” which had nevertheless not been “decisive” (see paragraph 195). In our opinion, such testing was rather a condition sine qua non in an investigation intended to rebut or confirm the various possible hypotheses, especially that of a crime.
Nor can we follow the majority when it expresses doubts as to the possibility of obtaining useable fingerprints in this case, while simultaneously criticizing the applicants for failing to request such testing more than five months after the investigation had been closed for the first time (see paragraphs 59 to 62) and despite the fact that the weapon had already been handled and subjected to ballistic tests (see paragraphs 29 and 35).
In our opinion, such testing would have been entirely feasible had it been carried out ex officio, using appropriate techniques, immediately after the incident. Given that the case file is completely silent on the reasons which might have led the authorities to forgo such testing; we can scarcely comprehend how it can be inferred that, in any event, testing would not have assisted in establishing the truth. Granted, M.S. had admitted to touching the weapon with a view to removing it when providing assistance to his fellow serviceman (see paragraphs 37, 193 and 194), and on this basis the majority considers that, even had his fingerprints been found on the rifle, this would not have influenced the course of the investigation. On the contrary, it could indeed have been important, given that in the instant case we cannot even understand how, without testing for fingerprints, the experts were able to conclude that, at the moment of the incident, Cihan Tunç was sitting or crouching and “was holding his rifle in his right hand” (see paragraph 68).
In our opinion, since the part of a rifle on which the trigger and the surrounding trigger guard are located is not the same part as that which an individual would normally grasp when removing a rifle, the course of the investigation could certainly have been altered had M.S.’s fingerprints been found on the trigger. Given that both the deceased man’s hands and M.S.’s hands bore traces of residues from the discharging of a weapon (see paragraph 33), the taking of organic samples would never have enabled it to be ascertained which of the two men was holding or had touched that rifle before the shot was fired; dusting for fingerprints might have enabled this point to be elucidated, and it follows that the authorities ought to have conducted that test.
In our view, the fact that such testing was not carried out on the weapon ex officio prior to its contamination amounts to a crucial, and even decisive, omission.
3. The reconstruction of events of 24 November 2004
As to this part of the investigation, we must draw attention at the outset to the actions of the military authorities, who knowingly altered the scene of a possible crime before the investigation procedure had been definitively closed. They cemented over the previously earthen floor of the premises in which the relevant incident took place. For the reasons set out below, we are unable to subscribe to the view of the majority, which took into account only the fact that the floor levels had not been raised (in spite of the additional layer of concrete) and concluded that in the present case this work - carried out after the initial examination of the scene - had had no “negative impact” on the quality of the reconstruction (see paragraph 196). Firstly, even supposing that the authorities had acted quickly to take this step “with a view to keeping the soldiers’ uniforms clean” (see paragraph 67), this by no means alters the fact that such a step not only rendered futile the additional investigation ordered by the military court (see paragraph 63), but even more importantly, it amounted to a physical destruction of evidence which is in itself capable of casting doubt on the investigation’s ability to establish the facts (see, for example, Crăiniceanu and Frumuşanu v. Romania, no. 12442/04, § 94, 24 April 2012; and McKerr v. the United Kingdom, no. 28883/95, § 137, ECHR 2001-III).
Secondly, we note that the majority has, in all likelihood, considered the reconstruction to be satisfactory on the basis of two suppositions: (a) before the investigation was terminated for the first time, the authorities had “[taken] sufficient measures to collect and secure evidence relating to the events in issue” (see paragraph 184), and (b) during the reconstruction, the experts “sealed off the scene of the incident” and “took steps to secure the integrity of all of the evidence likely to be important in solving the case” (see paragraph 191). However, this description is not entirely satisfactory, since an essential element is absent: the bullet.
The prosecutor’s report refers to the existence on the ceiling of an impact mark “which resembled that of a shot” (not “was from a shot”) and, on the ground, small pieces of cement debris “from the ceiling” (see paragraph 28). However, no one has questioned the absence, in a confined concrete structure, of the bullet responsible for leaving this mark. We have not seen a single reference to this bullet, which clearly could not have pierced a cement ceiling with only “a mark”. Nor does the case file contain a reference to any scientific test comparing the chemical makeup of the pieces of cement debris with that of the ceiling.
It must therefore be accepted that the deficiencies in the search for the bullet irremediably prejudiced the effectiveness of the investigation, since they fatally undermine the hypotheses developed around the idea of a bullet striking the ceiling.
Although the autopsy report identified, inter alia, the entry and exit wounds made by the bullet, that is, its trajectory through Cihan Tunç’s body (see paragraphs 185 and 186), the description given of the shot’s presumed trajectory has no evidential value: in fact, without the bullet, the mark on the ceiling could have resulted from any cause and could have been made on any date. As to the facts of the present case, we consider that if Cihan Tunç was indeed “sitting or crouching” on an “ammunition chest” before his death and if he “was attempting to stand up with his knees still bent” (see paragraphs 43 and 68), it is entirely possible that a standing individual could - accidentally or otherwise - have shot at him using that individual’s own rifle. In this hypothesis, the bullet would have been shot from the height of a man’s waist, gone through the body with the same entry and exit points, and ended up lodged in the floor, which was earthen at the relevant time.
This surface, covered in blood, may not have been propitious to the discovery of an embedded bullet, and without using a metal detector in the search it is unlikely that it could have been discovered before the experts’ return to the scene, which had been cemented over in the meantime. What now of the impact on a criminal investigation of the above omissions with regard to the fatal bullet and the subsequent decision to pour cement over the scene of a possible crime and, perhaps, over this bullet?
4. Our preliminary conclusion
We do not deny that the procedural obligation arising from Article 2 is one of means, or that - particularly in respect of an investigation into the presumed acts of another person - the nature and extent of the investigations must be assessed with regard to the practical realities of investigation work (see, for example, Velikova v. Bulgaria, no. 41488/98, § 80, ECHR 2000-VI) and subject to the inherent limitations of the context (see, for example, Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V). In the present case, however, we do not see any particular circumstance, occurring in this particular context, which would have justified a more lenient application of the procedural requirements imposed by Article 2.
On the contrary, we consider that a firmer position should have been taken, given the military nature of the circumstances at the origin of the present case, which concerns the death of a young man in the armed forces on a site which was under the control, or at least the protection, of the military authorities, and in which all of the bodies and persons which were involved in the course of the investigation belonged to the military as an institution, although the main suspect was himself a conscript carrying out his military service in the gendarmerie.
In this respect, we would refer to the judgments in Akkum and Others v. Turkey (no. 21894/93, § 211, ECHR 2005-II (extracts)); Mansuroğlu v. Turkey (no. 43443/98, §§ 78-80, 26 February 2008); and Beker v. Turkey (no. 27866/03, § 42, 24 March 2009), which require that this obligation to conduct an “official and effective investigation” be applied with the necessary rigor when elucidating an incident which occurred in an area under the exclusive control of the authorities or of State agents, and in which the latter are the only persons likely, on the one hand, to be aware of the exact order of events and, on the other hand, to have access to information capable of corroborating or refuting the allegations made against them by the victims.
We conclude that, although the investigation as a whole was prompt, there existed shortcomings and deficiencies which - considered individually or cumulatively - were such as to undermine its capability of establishing the facts surrounding the death of Cihan Tunç, especially since, in consequence, those responsible for the investigation cannot be considered to have duly explored the various lines of inquiry and rejected the criminal hypothesis (compare paragraphs 206 to 208 and 239).
B. Participation of the deceased man’s family in the investigation
We cannot entirely accept the majority’s conclusion that the documents and information transmitted to the applicants and the means of access available to them in that connection were satisfactory, and that these elements enabled them to exercise their rights effectively (see paragraphs 213 and 214), in other words, to participate effectively in the proceedings (see paragraph 216). In truth, even more than the conclusion itself, it is the majority’s reasons that we consider insufficient as a solid basis for such a finding, having regard to the rather selective choice of principles and examples put forward.
Returning to our previous comment concerning the specific military nature of the situation in this case, we would have preferred that the facts had been assessed with greater regard to objectively comparable situations, rather than to those referenced by the majority (see paragraphs 179 and 210 to 212), which are only relatively comparable. For example, we would have included the case of Salgın v. Turkey, in which the Court found a violation of the procedural aspect of Article 2. In that judgment, on the basis of a premise stipulating more generally that compliance with Article 2 requires that a victim’s relatives are able “to take part in the investigation” to determine the causes of the impugned death (see also Slimani, cited above, §§ 29 and 48), it was stated (see Salgın, cited above, § 89):
“The Court also notes that the applicant was, in practice, excluded from the investigation: he could neither obtain access to the documents nor take part in the investigation, and was even unable to be heard by a judge before the decision not to prosecute was issued ... This belated and limited access to the investigation is not satisfactory. The applicant ought to have been actively involved in the procedure and his statements ought to have been heard..., irrespective of the issue of whether or not he could convince the authorities of his allegations.”
Accordingly, we believe that it would have been appropriate to set out the reasons why the majority did not consider itself obliged to follow similar reasoning, so that we could distinguish the Salgın family’s situation from that of the applicants’, who were also never involved in the inquest or heard during the investigation procedure. Furthermore, there is nothing to indicate that the applicants had even been informed on a date prior to 16 July 2004 (see paragraph 60) of the existence of an ongoing investigation into the “suspicious death” of their son.
Moreover, we understand clearly the scope of the reference made to the case-law permitting the requisite access of the public or the victim’s relatives to be provided for in other stages of the procedure (see paragraphs 179 and 212). However, we would once again have preferred that these references be more extensive, in order to show that the resultant interpretation concerns, in particular, cases in which “disclosure or publication of police reports and investigative materials may involve sensitive issues with possible prejudicial effects to private individuals or other investigations” (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 304, ECHR 2011 (extracts). We would then have wished to see evidence of the potential for such prejudicial effects in the circumstances of the present case.
C. Independence of the review carried out by the military court
We subscribe to the Grand Chamber’s preliminary observations, intended to define the difference and the nuances of assessment of the criteria of independence, depending on whether they concern Article 6 or Articles 2 and/or 3 of the Convention (see paragraphs 217-221). We also consider that the statutory criteria for verification of the requirement of independence within the meaning of Article 6 are not necessarily to be assessed in the same manner when examining the question of an investigation’s independence from the perspective of the procedural obligations (see paragraph 222).
It is clear from all of the case-law precedents analysed by the majority (see the references in paragraphs 222 to 231) that the Court, whatever the problems that it may have identified of its own motion with regard to the statutory independence (in the broad sense of the term) of the investigatory or supervisory bodies, prefers a concrete examination of the investigation taken as a whole in assessing whether and to what extent those problems could have compromised its effectiveness.
With regard to the facts of the case, it is first necessary to note that, given the regulations in force at the material time, there were factors which cast serious doubt on the statutory independence of the military courts in general and, in consequence, of the military court of the Diyarbakır 2nd Air-force, which was called upon to examine the applicants’ appeal against the decision of the prosecutor’s office not to bring a prosecution.
Firstly, one of the three judges of that court was a serving officer and did not offer the same safeguards of independence as the two other judges. He was part of the military structure, which operates on the principle of hierarchical subordination, and, in this capacity, was answerable for any breaches of military discipline.
This fact had previously led to a judgment by the Turkish Constitutional Court, in which that supreme court had found that this situation was incompatible with the constitutional principle of the independence of the justice system and had set aside the legislative provision providing for the presence of a serving office on the bench of military courts.
Secondly, like the prosecutors, the military judges were at the relevant time also subject to an appraisal by the commander of the military unit within which they carried out their duties, with regard to their “officer’s appraisal sheet”. In spite of the other safeguards available to the judges, such as a specific appointment system requiring, in particular, the involvement of the President of the Republic (see paragraph 88 of the judgment), a specific reference to their independence in the Constitution and in the law (see paragraphs 86 and 87), the prohibition on giving them instructions or suggestions or to attempt to influence judgment (ibid.), and the criminal-law provisions against any attempt to so do (see paragraphs 89 et seq.), this circumstance is such as to give rise to fears concerning their independence. Indeed, the Turkish Constitutional Court (on 8 October 2009) concluded that this part of the appraisal system was incompatible with the Constitution and set it aside (see paragraphs 99 to 102).
The majority does not deny the concerns created by the legal situation arising from this circumstance (see paragraphs 237, 247 and 254), but it draws different conclusions. Its main argument is that those concerns are not in themselves sufficient to conclude that the impugned investigation was lacking in independence.
Yet it should be pointed out that the approach taken by the Turkish Constitutional Court was perfectly consistent with Article 53 of the Convention, which allows the States Parties the possibility of offering to the persons falling under their jurisdiction more extensive protection than that required by the Convention (see, for example, Suso Musa v. Malta, no. 42337/12, § 97, 23 July 2013; and Okyay and Others v. Turkey, no. 36220/97, § 68, ECHR 2005 VII). Through its system of collective enforcement of the rights it establishes, the Convention reinforces, in accordance with the principle of subsidiarity, the protection afforded at national level, but never limits it (see United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 28, Reports of Judgments and Decisions 1998-I; Shamayev and Others v. Georgia and Russia, no. 36378/02, § 500, ECHR 2005 III; and Micallef v. Malta, no. 17056/06, § 44, 15 January 2008).
In our opinion, and having regard to the above principle, it is necessary to emphasise, as the Constitutional Court did, the particular significance of those elements which adversely affected the military court’s statutory independence. In this connection, attention should be drawn to the role played by this body, since it was solely by means of an appeal to it that the applicants could raise their complaints concerning the investigation conducted by the prosecutor’s office and attempt to have remedied what they considered to be shortcomings in it.
It is also necessary to take into account the particular context in which the impugned events occurred. The case concerns the death of a serviceman, in the context of his duties, on a site which was under the control, or at least the protection, of the military authorities; in addition, all of the entities which were involved in the course of the investigation were part of the military, although the main suspect was himself a conscript carrying out his military service in the gendarmerie. Admittedly, these bodies all belonged to distinct corps: the prosecutor was attached to an army unit, the judges exercised their duties within an air-force unit and the investigators belonged to the gendarmerie, which does not come directly under the general staff of the armed forces. Nonetheless, all of those corps form the constituent elements of the armed forces serving in a single region.
We consider that the majority ought to have paid greater attention to this circumstance, and been especially firm with regard to application of the requirement of independence, in order to “maintain public confidence in the authorities’ adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts” in the present case (see Anguelova v. Bulgaria, no. 38361/97, § 140, ECHR 2002-IV).
The military court which was responsible for the final review of the investigation did not therefore provide sufficient guarantees of independence, a defect confirmed by the Constitutional Court (see paragraphs 93 and 99 to 102 of the judgment), although it intervened at the only stage at which the applicants could genuinely present their complaints and at which it could have remedied the shortcomings in the investigation.
D. General conclusion
We consider that, having regard to the unjustified absence of testing for fingerprints on the weapon and the unexplained failure to question private M.D., and the lack of independence of the court responsible for the final review of the investigation into events which occurred within the army, the investigations into the death of Cihan Tunç did not comply with the requirements of Article 2 of the Convention.
For the reasons sketched out above, we can only vote in favour of finding a violation of Article 2 of the Convention under its procedural head.