CASE OF MUSTAFA TUNÇ AND FECİRE TUNÇ v. TURKEY · such (see, for example, Dalban v. Romania...

SECOND SECTION

CASE OF MUSTAFA TUNÇ AND FECİRE TUNÇ v. TURKEY

(Application no. 24014/05)

JUDGMENT

This version was rectified on 8 October 2013

in accordance with Rule 81 of the Rules of Court.

STRASBOURG

25 June 2013

Referred to the Grand Chamber

04/11/2013

This judgment will become final in the circumstances set out in Article 44 § 2 of the

Convention. It may be subject to editorial revision.

MUSTAFA TUNÇ AND FECİRE TUNÇ v. TURKEY JUDGMENT 1

In the case of Mustafa Tunç and Fecire Tunç v. Turkey,

The European Court of Human Rights (Second Section), sitting as a

Chamber composed of:

Guido Raimondi, President,

Danutė Jočienė,

Peer Lorenzen,

András Sajó,

Işıl Karakaş,

Nebojša Vučinić,

Helen Keller, judges,

and Stanley Naismith, Section Registrar,

Having deliberated in private on 28 May 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

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, a husband and wife (“the applicants”), on 24 June 2004.

2. The applicant Mustafa Tunç died on 9 February 2006. His son,

Yüksel Tunç, informed the Court by a letter of 10 March 2006 that, as the

deceased’s heir, he intended to pursue the application before the Court. For

practical reasons, Mustafa Tunç will continue to be called “the applicant” in

this judgment, although his wife and children are now to be regarded as

such (see, for example, Dalban v. Romania [GC], no. 28114/95, ECHR

1999-VI).

3. The applicants were represented on behalf of the Kurdish Human

Rights Project (KHRP) by Mr M. Muller QC, Mr M. Ivers QC and Mr

D. O’Callaghan, and by Ms C. Vine, barristers practising in the United

Kingdom.1

4. The Turkish Government (“the Government”) were represented by

their Agent.

5. On 4 March 2010 the application was communicated to the

Government. In accordance with Article 29 § 1, it was also decided that the

Chamber would examine the merits of the application at the same time as its

admissibility.

1. Amended on 8 October 2013: the text read as follows: “The applicants were represented

before the Court by an association for the protection of human rights.”

2 MUSTAFA TUNÇ AND FECİRE TUNÇ v. TURKEY JUDGMENT

FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. Mr Mustafa Tunç and Mrs Fecire Tunç were born in 1946 and 1952

respectively and live in Istanbul. They are the father and mother of Cihan

Tunç, who was born in 1983 and died on 13 February 2004. Mr Yüksel

Tunç, the applicants’ son and brother of Cihan Tunç, was born in 1978 and

lives in Istanbul.

7. The facts of the case, as submitted by the parties, may be summarised

as follows.

A. The background to the case

8. On 13 February 2004, at about 5.50 a.m. and in the course of carrying

out his military service in Kocaköy, on a site belonging the private oil

company NV Turkse Perenco (“Perenco”) for which the national

gendarmerie was providing security services, sergeant Cihan Tunç was

injured by gunfire. He was one of the gendarmes on duty and assigned to

the guard post known as “tower no. 3”. The incident took place at the guard

post known as “tower no. 2”.

9. Cihan Tunç was transported to hospital immediately after the incident

by several servicemen, including sergeant A.A. and private M.S., who was

the last person to have seen Cihan Tunç before the incident.

10. Cihan Tunç was pronounced dead shortly after his arrival at

Diyarbakır Military Hospital.

11. The Diyarbakır military prosecutor’s office was informed

immediately after the incident and a judicial investigation was opened as a

matter of course.

12. A military prosecutor went to the hospital to which Cihan had been

admitted and was joined there, on his instructions, by a team of criminal

investigation experts from the national gendarmerie. He also 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

13. A few hours after the incident an external examination of the corpse

and an autopsy were conducted at the hospital, under the military

prosecutor’s supervision.


14. 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., the last person to have seen Cihan Tunç alive.

Swabs were also taken from their hands, to be checked for gunshot residue.

Finally, the deceased man’s pockets were emptied and their contents

recorded.

15. The prosecutor then instructed forensic doctor L.E. to examine the

body with a view to ascertaining the cause of death, and, if appropriate,

making observations on the circumstances of the death.

16. The forensic doctor found as follows: body height, 1.75 metres;

entry wound with abrasion ring on the right side of the neck; exit wound

measuring 4 x 2 centimetres on the left side of the back, under the lower

edge of the shoulder blade.

17. He noted no trace on the body of blows or violence.

18. 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.

19. He also mentioned that the shot had probably been fired at point-

blank range (yakın atış).

20. 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 lower curve of the chin.”

21. All of those observations were recorded in a document entitled

“Record of the post-mortem examination and autopsy”.

22. The military prosecutor also questioned private M.S. and sergeant

A.A. (see paragraphs 32-34 and 42-45 below), who had arrived at the

hospital in the vehicle transporting Cihan Tunç.

2. At the Perenco site

23. Simultaneously, a team of experts from the gendarmerie’s criminal

investigation laboratory and the Kocaköy prosecutor went to the site a few

hours after the events.

24. 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 guard

posts. The incident took place in a building measuring 2 x 2 metres, with a

ceiling height of 2.33m and openings placed 1.5m from the ground.

25. Again according to the report, two cartridges and a bullet shell were

found lying on the ground inside the guard 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, on which there were also large

bloodstains.


26. The report also mentioned that a summary examination of the

deceased man’s weapon, a G-3-type rifle that had been placed under lock

and key pending the prosecutor’s arrival, made it possible to confirm that it

had been used a short time previously. This weapon, as well as the weapon

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.

27. Finally, the report specified that a detailed description had been

drawn up, two sketches had been drawn, photographs taken and a video

recording made.

C. Results of the scientific tests

28. On 16 February 2004 the gendarmerie’s criminal research laboratory

issued an expert report (report no. 2004/90/chemical). It indicated that

analysis of the samples taken from the hands of the deceased man and 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 noted

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 administering first aid.

29. 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.

30. On 17 February 2004 the national police criminal laboratory in

Diyarbakır also issued an expert report (report no. BLS-2004/464)

following ballistic tests carried out on the bullet shell and two weapons

found at the site of the incident. The reports indicated that the two rifles

were operating normally and confirmed that the bullet shell that had been

found came from Cihan Tunç’s weapon.

D. The hearings

31. As part of the investigations carried out by the military prosecutor’s

office and the gendarmerie’s internal investigation, numerous servicemen

were questioned on the day of the incident.

1. Questioning of M.S.

32. 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 the

start of his guard, 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 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]”.

33. 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 testified that he had not shot his comrade.

34. In response to another question, he stated that, when Cihan Tunç had

loaded and then unloaded the weapon several times, he had seen full

cartridges being ejected from the side of the rifle.

35. During questioning by the gendarmerie’s internal investigator, he

stated:

“Sergeant A.A. came past about 5 a.m., during his patrol, to check up. Cihan Tunç

arrived shortly afterwards, at about 5.50 a.m. ... he came into the tower room 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 on. 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 replace us arrived. We carried Cihan close to the container, then we took him to

Diyarbakir Hospital in a Renault car belonging to the Perenco company...”

36. To the question “how do you explain the fact that two cartridges

were found on the site of the incident?” M.S. replied that he had no

explanation. He added that perhaps these were cartridges which had fallen

when Cihan Tunç was loading and unloading the weapon.

37. In response to another question, he said that he was unable to state if

the magazine had been on the weapon at the time of the incident, since he

had paid no attention to that point.

38. The investigator also asked M.S. about the positions of the weapon

and Cihan Tunç. More particularly, he asked if the latter had been sitting or

standing when manipulating his rifle.

39. 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 bang.

40. Finally, the investigator questioned M.S. about the location of the

weapons. According to M.S., his rifle was on a rack inside the post, and the

tripod was folded. Cihan’s weapon was on his chest.


41. In those two statements, the premises where the incident took place

is described indiscriminately by the terms “duty station no. 4” (4 nolu nöbet

mevzisi) or “tower no. 2” (2 nolu kule).

2. Other oral evidence

42. 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.

43. 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”.

44. A.A. also specified that he did not know of any problems

experienced by Cihan Tunç or M.S.

45. 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.

46. A.A. gave similar evidence to the gendarmerie’s internal

investigator.

47. 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 very quickly inspected the premises without disturbing the

scene of the event. They had seen an empty bullet shell and two cartridges

for the G-3 rifle, one on the ground and the other on the rack. They had also

noted blood on the ground.

48. Sergeant A.K. gave the following evidence to the investigator:

“Cihan was on duty at post no. 2 ... During my patrol, 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.”

49. As to the position of the magazine, sergeant A.K. stated that he had

not paid attention to it at the time. However, he remembered that, after

carrying Cihan to the canteen, private S.K. went and brought the weapon to

him, and he observed that the magazine was not in place on the rifle.

50. To the question “why did the incident take place at post no. 4, where

M.S. was on duty, although Cihan Tunç had been assigned to the high

tower?” he replied:

“I do not 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.”


51. Private S.K. confirmed A.K.’s statement, indicating that the weapon

and the magazine were inside the guard post, but that the magazine was not

on the weapon.

52. Private E.C. stated that when he arrived on the scene M.S. was

attempting to lift Cihan Tunç. He also confirmed that the magazine was not

on the weapon.

53. The following additional elements emerged from other statements.

54. 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.

55. At the time of the incident, private S.S. was on sentry duty at the

first guard post, located at the entrance to the site.

56. After sergeant A.A. and the other servicemen arrived on the scene of

the incident, M.S. was sent to the canteen to get help.

E. The decision not to bring a prosecution

57. 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 the evidence gathered during the investigation. He

considered 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. He stated that this explained, in particular, the

bullet impact on the ceiling. However, the prosecutor’s decision gave no

reason for the shot having suddenly been fired.

58. On 16 July 2004 the prosecutor, in response to a request from the

applicants’ lawyer, sent her correspondence containing a copy of the

decision and a letter in which he indicated that, in application of the Practice

of the Legal Profession 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

considered relevant.

59. The applicants appealed against the decision, alleging that several

grey areas remained as to the circumstances of Cihan’s death. In particular,

they claimed that the trajectory followed by the bullet had not been clearly

defined.

F. The additional investigation

60. On 14 October 2004 the Diyarbakır air-force military court 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. Finally, 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.

61. On 24 November 2004 the military prosecutor went to the Perenco

site, accompanied by three criminal investigation experts.

62. 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 man.

63. Steps to determine the bullet’s trajectory were taken, particularly

through the use of a string stretched between the impact mark on the ceiling

and the barrel of a G-3 rifle. Photographs were taken.

64. The experts observed that the floor was made of concrete, although

the previous records described a dirt floor. According to material 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. During this work, the floors had not been raised. This was

confirmed by measurements which established that the ceiling height was

still 2.33 metres.

65. 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; when he tried 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.

66. During his visit to the site, the prosecutor questioned private E.C. He

stated that, when he arrived, M.S. was crouching down behind Cihan Tunç

and was trying to lift him by pulling him under the arms.

67. All of this evidence was set out in a report dated 24 November 2004.

68. 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), setting out the

measures taken and responding 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 had supported such a hypothesis, in that they confirmed that

M.S. had been in physical contact with the deceased when attempting to lift

him.

69. With regard to the court’s claim 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, furthermore, that the conclusion of suicide had not been

entertained.

70. As to ascertaining the bullet’s trajectory in the light of the impact

mark on the ceiling and the entry and exit wounds on the body, he stated

that the following theory had been accepted: Cihan Tunç had been sitting on

an ammunition box and playing with the rifle’s cocking lever and magazine;

when 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 as support in standing up, his hand on

the part of the weapon near the trigger, and the shot went 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 of the

incident on 24 November 2004, in order to ascertain the credibility of this

hypothesis, having regard to the entry and exit points of the bullet, the point

of impact on the ceiling and the deceased man’s build, and that the

conclusions of the reconstruction confirmed the scenario put forward.

71. He attached the record of the reconstruction of the incident to his

report.

72. On 17 December 2004 the military court dismissed the applicants’

appeal.

73. A letter dated 21 December 2004 was sent to the applicants’ lawyer,

informing her of that decision.

74. Neither the date of posting nor the date of receipt of the letter is

specified in the case file.

75. The applicants submitted that they received the letter in question at

the end of December 2004.

76. The Government made no submissions on this point.

G. Other evidence submitted by the applicants

77. The applicants submitted a non-official expert report, prepared at

their request by a British expert, Dr Anscombe, and dated 11 October 2005.

78. Dr Anscombe drew up his report in English1, on the basis of his

examination of a number of documents from the case file, which had been

translated into English.

79. 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 (...).

1. Original English text.


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 G3 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.”

H. Other evidence submitted by the Government

80. On 21 April 2004 the Mehmetçik Foundation, which is a subdivision

of the armed forces and whose purpose is to support the families of soldiers

who die in service, awarded 4,916,700,000 former Turkish lira (a little over

3,000 euros) to the deceased man’s family in financial support.

II. RELEVANT DOMESTIC LAW

81. The relevant provisions of the Constitution read as follows:

Article 9

“Judicial power shall be exercised by independent courts on behalf of the Turkish

nation.”

Article 138

“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.”

Article 139

“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.”


Article 145

“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, shall be

regulated by law in accordance with the principles of the independence of courts and

the security of tenure of judges and with the requirements of military service.”

82. Section 2 of the Military Courts Act (Law no. 353) provided, at the

relevant time:

“Save as otherwise provided in this Act, the military courts shall be composed of

two military judges and an officer (subay üye).”

83. 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.

84. 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.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION IN

ITS PROCEDURAL ASPECT

85. The applicants complained that the authorities had not conducted an

effective investigation into their relative’s death. They relied on Articles 2,

6 and 13 of the Convention.

86. The Government disagreed.

87. Being master of the characterisation to be given in law to the facts of

the case, the Court considers that in the present case the applicants’

complaints fall to be examined exclusively under the procedural aspect of

Article 2.


A. Admissibility

88. The Court notes that this complaint is not manifestly ill-founded

within the meaning of Article 35 § 3 of the Convention. It further notes that

it is not inadmissible on any other grounds. It must therefore be declared

admissible.

B. Merits

1. The parties’ submissions

89. According to the applicants, the investigation in issue was not

conducted with the urgency required by the circumstances of the case. In

addition, no measure had been taken to guarantee preservation of the

evidence.

90. In addition, the investigation had not been independent. In this

respect, the applicants alleged, in particular, that the legislation in force at

the relevant time did not confer on the judicial authorities and, especially,

the military court which had examined the case at final instance, all of the

necessary guarantees of independence.

91. They further alleged that the investigation had been superficial in

nature. Those responsible for the investigation had not explored every

eventuality but had concentrated on the hypothesis of an accident. Further,

the applicants criticised not only the incomplete nature of the interviews, but

also the manner in which they were conducted, which they alleged to have

been inappropriate.

92. Moreover, they submitted that the statements [given by the various

witnesses] contained contradictions, particularly with regard to the location

where the incident took place. They noted 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., these contained inconsistencies

regarding the position of the weapon at the point that the body was

discovered.

93. The applicants also criticised the autopsy carried out on their

relative’s corpse. 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 particular, they referred to

İkincisoy v. Turkey, no. 26144/95, § 79, 27 July 2004, and Elci and Others

v. Turkey, nos. 23145/93 and 25091/94, § 642, 13 November 2003).

94. They added that the other scientific tests had been carried out too

rapidly and that excessive importance should not be attached to their results.


95. Finally, the applicants complained that they had not been sufficiently

involved in the investigation and not been given access to the documents in

the case file.

96. In support of their arguments, they referred, inter alia, to the cases of

Salman v. Turkey ([GC], no. 21986/93, ECHR 2000-VII); Güleç v. Turkey

(27 July 1998, Reports of Judgments and Decisions 1998-IV); Oğur v.

Turkey ([GC], no. 21594/93, ECHR 1999-III); Tahsin Acar v. Turkey ([GC],

no. 26307/95, ECHR 2004-III); Ergi v. Turkey (28 July 1998, Reports

1998-IV); Gül v. Turkey (no. 22676/93, 14 December 2000); and Kişmir v.

Turkey (no. 27306/95, 31 May 2005).

97. The Government submitted that the investigation conducted by the

domestic authorities had fully satisfied the requirements of the Convention.

2. The Court’s assessment

(a) General principles

98. The Court reiterates its well-established case-law concerning the

procedural aspect of the right to life.

The obligation to protect the right to life under Article 2 of the

Convention requires that there should be some form of effective official

investigation when an individual dies in suspicious circumstances (see

Yotova v. Bulgaria, no. 43606/04, § 68, 23 October 2012, and Šilih v.

Slovenia [GC], no. 71463/01, § 157, 9 April 2009). In this connection, it is

irrelevant whether State agents were involved by acts or omissions in the

events leading to the death (see Stern v. France (dec.), no. 70820/01,

11 October 2005).

99. 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, to the identification and

punishment of those responsible.

100. 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).

101. 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 the

identity of those responsible (see Kolevi v. Bulgaria, no. 1108/02, § 201,

5 November 2009). 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. They must be assessed on the

basis of all relevant facts and with regard to the practical realities of

investigation work. 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 Velcea and Mazǎre v. Romania, no. 64301/01, § 105,

1 December 2009).

102. Moreover, it is necessary for the persons responsible for the

investigation to be independent from those 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).

103. A requirement of promptness and reasonable expedition is implicit

in this context (see Al-Skeini and Others v. the United Kingdom [GC],

no. 55721/07, § 167, ECHR 2011).

104. 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). However, the requisite

access of the public or the victim’s relatives may be provided for in other

stages of the procedure (see, among other authorities, McKerr v. the United

Kingdom, no. 28883/95, § 129, ECHR 2001-III).

105. Finally, 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 Mazǎre, cited above, § 113).

(b) Application of these principles to the present case

i. On the promptness, adequacy and thoroughness of the investigation

106. In the present case the Court observes first that the incident which

led to the death of the applicants’ relative occurred on 13 February 2004,

that the initial investigative measures were taken on the same day and that

the prosecution service had completed the investigations and issued the

decision not to prosecute on 30 June 2004. On 14 October 2004 the military

court allowed the applicants’ challenges and ordered an additional

investigation. The prosecution service issued its report on 8 December

2004, after having carried out the necessary 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 four days later. In those circumstances, the Court considers that the

investigations in question were conducted with the requisite diligence and

that the investigation had not been beset by excessive delays.

107. The Court further noted that the authorities had taken sufficient

measures to collect and secure evidence relating to the events in issue.

108. In the first place, a full autopsy, during which photographs were

taken, was carried out. 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. The applicants

expressed specific doubts about the competence of the forensic doctor L.E.,

referring to several judgments in which the Court allegedly criticised

autopsies carried out by him.

109. On this point, the Court would specify at the outset that any

conclusions it might have reached with regard to the manner in which an

autopsy was carried out in a given case concern only that case, and certainly

cannot be interpreted as implying that all of the autopsies carried out by the

forensic doctor in question necessarily have significant shortcomings and

that no credit is to be given to his findings. In this respect, the Court

reiterates that the sufficiency of an autopsy must be assessed in the light of

the circumstances of each case. In the present case, it notes that the

applicants have not provided evidence of serious shortcomings in the

conduct of the examination in question.

110. Moreover, the Court notes that, as soon as the prosecution service

arrived at the hospital, it ordered that samples be taken from the hands of

the dead man and from those of a potential suspect. The dead man’s

clothing was removed and submitted to scientific analysis. The weapons and

bullet shell found on the site were also sent for scientific analysis. The scene

of the incident was examined, and then photographed, by experts.

111. Admittedly, the scene of the incident was not 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.

112. 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

the applicants’ relative. The Court accepts that the need to provide first aid

to a seriously injured individual may, to a certain extent, take precedence

over the requirement to avoid disturbing the scene of an incident as it

stands.

113. Given that the weapon had already been moved at the point 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 laboratory tests.


114. That being so, the Court notes that as soon as the experts arrived

they blocked 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.

115. 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.

116. In this respect, the Court notes that, according to the applicants,

there are serious discrepancies between the statements, particularly

concerning the site of the incident and the respective guard posts of their

relative and M.S. However, it discerns no contradiction between the

statements and finds, on the contrary, that they are consistent on those

points.

117. In effect, it appears from the case file, and especially the witness

statements, that 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 cabin located in the northern part of

the site and 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 site

entrance, as the two stations located after the first post at the entrance were

not used. The third guard post was a watchtower to the east of the site,

referred to as the “high tower” or “tower no. 3”.

118. In the Court’s opinion, there is no doubt that the statements concur

as to the fact 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.

119. In this connection, the Court notes that in the description of the

facts which appears in the application form in English, 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 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.

120. That being so, 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 48 above). When his statement is taken in

its entirety, however, it is clear that this is a misunderstanding arising from

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”).

121. Accordingly, the complaint that the authorities incorrectly carried

out the questioning and failed to clarify the discrepancies that emerged

during them is unfounded.


122. Finally, the Court notes that those responsible for the investigation

explored the various possible lines of enquiry. It seems that the theory of

suicide was never envisaged on account of the position from which the shot

was fired. While the possibility of murder was ultimately dismissed by the

prosecutor, it was certainly envisaged at the beginning of the investigation.

123. M.S. was in fact questioned on two occasions. The investigators

questioned him about 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

establish whether he had been in dispute with anyone and, if necessary, to

ascertain whether a motive existed for murder.

124. Accordingly, it cannot be argued that the prosecution service failed

to envisage any hypothesis other than that which it ultimately accepted, or

that it passively acceded to the version provided by the last soldier to have

seen Cihan Tunç alive.

125. Regarding the applicants’ other complaints, the Court sees no

reason to cast doubt on the sufficiency and promptness of the investigation

conducted by the domestic judicial authorities.

ii. Independence of the investigation

126. The Court observes that the applicants criticise, inter alia, the

legislation governing the military justice system, considering that it was

such as to prevent the investigation being carried out in an independent

manner.

127. The Government disagreed with that submission.

128. The Court reiterates that for the investigation to be “effective” it is

necessary for the persons responsible for and conducting it to be

independent from those implicated in the events. This means not only a lack

of hierarchical or institutional connection but also a practical independence

(see, in particular, Trévalec, cited above, § 89; Ramsahai and Others, cited

above, § 325; and Giuliani and Gaggio, cited above, § 300).

129. It notes that the investigation was conducted by the military

prosecutor’s office, assisted by investigators from the national gendarmerie.

The decision not to prosecute issued at the close of the investigations was

submitted to review by the Diyarbakır air-force military court, following an

appeal lodged by the applicants.

130. The Court reiterates at the outset that it held in it 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).

132. It follows that the proceedings in question could not satisfy the

requirement of independence implied by the obligation on the domestic

authorities to conduct an effective investigation into the death of Cihan

Tunç.

iii. Participation of the deceased’s relatives in the investigation

133. With regard to the applicants’ participation in the investigation, the

Court reiterates that it has already found a breach of the procedural aspect of

Article 2 in cases in which the applicants had only been informed of judicial

decisions concerning the investigation with considerable delay and in which

the information provided did not contain specific details on 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), given that

such a situation was likely to prevent any effective challenge.

134. Thus, in the case of Anık and Others v. Turkey (no. 63758/00,

§§ 76-77, 5 June 2007), where the applicants were not given any documents

from the case file, with the exception of their own statements following the

decision not to bring a prosecution, the Court also found that there had been

a violation of Article 2 on the ground that it was impossible to challenge

effectively the decision not to prosecute without prior appraisal of the

elements in the investigation file.

135. 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).

136. In the present case, it 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.

137. 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.

iv. Conclusion

138. In conclusion, despite its findings about the promptness, sufficiency

and thoroughness of the investigative measures and on the applicants’

participation in the proceedings (see paragraphs 106-125 and 133-137

above), the Court considers that there has been a violation of the procedural

aspect of Article 2 on account of the fact that the military court did not

enjoy the requisite independence in its capacity as the body responsible for

the final review of the investigation.

II. ALLEGED VIOLATION OF THE SUBSTANTIVE ASPECT OF

ARTICLE 2

139. The applicants alleged that the circumstances in which their relative

died had not been clearly elucidated. They challenged the hypothesis of an

accident, accepted by the authorities, and submitted that this was

implausible in view of the position of the body and the bullet’s trajectory.

They submitted a report, commissioned by themselves, from an independent

expert (see paragraphs 77 to 79 above), arguing that it cast doubts on the

credibility of the official theory.

140. The Government considers that there are no grounds for calling into

question the theory of an accident as accepted by the judicial authorities at

the close of the investigation.

141. The Court reiterates that, in accordance with its consistent case-law

where the events in issue lie wholly, or in large part, within the exclusive

knowledge of the authorities – as in the case of persons within their control

in custody – , it is incumbent on the State to give a convincing explanation

for any injuries and deaths occurring during such detention (see,

respectively, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V,

and Salman, cited above, § 99).

142. It notes that this obligation has sometimes been extended to deaths

in areas within the exclusive control of the authorities of the State, such as

military barracks (see Beker v. Turkey, no. 27866/03, §§ 42-43, 24 March


2009; compare with Pankov v. Bulgaria, no. 12773/03, § 59, 7 October

2010, in which the Court, taking into particular account the quality of the

investigation and the plausible nature of the explanations, did not shift the

burden of proof to the respondent State).

143. It also reiterates that it is necessary to examine, inter alia, the

investigations conducted at national level in assessing the plausibility of the

explanations provided (see Beker, cited above, § 44).

144. In the present case, the Court observes that the authorities

concluded that an accident had occurred, and that they reached that

conclusion at the close of a full investigation during which they relied, in

particular, on records of interviews with witnesses, on the autopsy report, on

numerous scientific reports and on a reconstruction of the events.

145. The Court finds that the theory thus accepted was far from being

implausible and that it was based on objective elements.

146. With regard to the decisive aspect of this theory, namely the

bullet’s trajectory and the position of the body, the Court notes that the

judicial authorities paid particular attention to those aspects. Finding that the

explanations given in the decision not to prosecute were unsatisfactory, the

military court ordered supplementary investigative measures. In

consequence, the prosecution service, with a view to establishing the

credibility of its theory, organised a reconstruction with an individual who

had the same build as the deceased man and an identical weapon to that

used in the incident.

147. The experts took account of several unchallenged items of

information: the entry wound was on the right side of the deceased’s neck

and the exit wound was on his back, under the left shoulder blade; the bullet

had ended its trajectory in the ceiling; the shot had been fired at close range.

148. In the light of this information, it was unequivocally established

that the deceased man was leaning over the weapon, which had its barrel

turned upwards, at the moment when the shot was fired.

149. Taking this information into consideration, together with the other

evidence gathered during the investigation and the findings that they

themselves had reached during the reconstruction of events, the experts

concluded that Cihan Tunç had been the victim of an accidental shot fired at

a moment when, from a crouching position, he had attempted to stand up

while leaning on his weapon.

150. The applicants challenged this theory, relying on the conclusions of

a private expert, Dr Anscombe, from whom they themselves had

commissioned a report.

151. The Court notes that this expert was provided with translations of

the autopsy report, the prosecution service’s report of 8 December 2004 and

the expert reports of 16 and 17 February 2004, and that he also had access to

photographs of the deceased and a photograph of a G-3 rifle.


152. This expert based his analysis on the same information as the

national experts and reached the same conclusions with regard to Cihan

Tunç’s posture and the position of the rifle. In contrast, he considered that

the young man had been the victim of a shot at close range, fired at a

distance of 15 to 30 cm, while the ballistics experts and the forensic medical

expert had limited themselves to concluding that it was a short fired at close

range, without estimating the length of the bullet’s trajectory. In so doing,

Dr Anscombe based his finding on the absence of smoke or burning and on

the presence of gunpowder residues “on the right side of the face and on the

lower curve of the chin”.

153. On this second point, the Court notes that the coordinating

conjunction “and” in the English translation does not appear in the Turkish

text, which appears to indicate that the residues in question were observed

only under the chin.

154. The Court also observes that the private expert had available to him

only limited evidence: for example, he had been obliged to determine the

position of the trigger in an approximate manner, by examining the

photograph provided to him.

155. Nonetheless, the Court will not attach any weight to those aspects

of the case, which are of extremely minor relevance.

156. Indeed, while Dr Anscombe found, in the light of the evidence

available to him, that the facts were exceptional, he nevertheless did not

claim that it would have been impossible for them have occurred as

indicated in the scenario accepted by the experts and the domestic judicial

authorities.

157. He put forward two other possible explanations. In the first of

these, the shot was fired as a result of malfunctioning of the weapon, or the

weapon falling at a point when the applicants’ relative, who was crouching

over, was attempting to stand up while leaning to his right, and when the

muzzle of the weapon was placed at a distance of between 15 and 30 cm

from his neck. The Court notes that, according to the report by the experts

who examined the weapon, it showed no signs of malfunction and was

operating correctly. In any event, this scenario is, all things considered, very

close to that accepted by the authorities and is not capable of giving rise to

liability on the part of the Government.

158. The second possibility put forward by the expert relies on the

criminal hypothesis, namely that the shot was fired by an individual lying

on the ground, while the deceased was leaning over the weapon, the muzzle

of which was at a distance of 15 to 30 cm from his neck. The Court

observes that there is no evidence in support of this hypothesis, which is not

confirmed, for example, by the results of the post-mortem examination.

Indeed – and Dr Anscombe himself accepts this –, there is no evidence to

suggest that a struggle occurred. In addition, no motive for a criminal act


could be identified. Accordingly, there is no reason to favour this hypothesis

over that accepted by the authorities.

159. Like the private expert and, to a certain extent, the national

authorities, the Court observes that the incident was exceptional. However,

this exceptionality persists whatever the hypothesis accepted, since it is

based on solid and unchallenged scientific data (see paragraph 147 above).

160. Finally, the Court notes that the hypothesis of an accident was

accepted at the close of a thorough investigation in which all the necessary

lines of enquiry were explored and to which the applicants had sufficient

access.

161. Having regard to this circumstance and to the absence of any

evidence capable of rendering this hypothesis inconsistent or illogical (see

Abdurashidova v. Russia, no. 32968/05, § 69, 8 April 2010, and, a

contrario, Beker, cited above, §§ 51-52) or of seriously undermining its

credibility, the Court sees no convincing and adequate reason to depart from

the conclusions reached by the national authorities (see Suprun v. Ukraine

(dec.), no. 7529/07, 27 April 2010). Accordingly, it considers that the

explanations provided by those authorities with regard to the death of the

applicants’ relative are entirely plausible and credible.

162. It follows that the complaint is manifestly ill-founded and must

therefore be rejected in accordance with Article 35 §§ 3 (a) and 4 of the

Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

163. The applicants complained of a breach of Article 3 of the

Convention on account of the psychological suffering allegedly sustained by

them on account of the authorities’ conduct when dealing with the case.

164. Relying further on Article 14 of the Convention, they alleged that it

was on account of their ethnic origins that the authorities had not conducted

an effective investigation into their relative’s death.

165. Finally, relying on Article 2 of Protocol No. 7, they allege that no

remedy was available to them to complain about the military court’s

decisions when ruling on an appeal against the decision not to prosecute.

166. Having regard to all the evidence in its possession and in so far as it

has jurisdiction to examine the allegations made, the Court finds no

appearance of a breach of the rights and freedoms guaranteed by the

Convention.

167. In consequence, it declares these complaints inadmissible.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

168. The applicants claimed 100,000 euros (EUR) in respect of non-

pecuniary damage and 10,617.50 pounds sterling for the costs incurred in


the proceedings before the Court. In this connection, they submitted an

itemised table (hourly breakdown and other costs). The Government

contested all of these claims, which they considered excessive and

groundless.

169. Ruling on an equitable basis, the Court considers that the applicants

should be awarded EUR 10,000 in respect of non-pecuniary damage.

170. In accordance with the Court’s case-law, an award can be made to

an applicant in respect of costs and expenses only in so far as they have

been actually and necessarily incurred and are reasonable as to quantum. In

the present case, regard being had to the documents in its possession and the

above criteria, the Court considers it reasonable to award the applicants

jointly the sum of EUR 2,000.

171. The Court considers it appropriate that the default interest rate

should be based on the marginal lending rate of the European Central Bank,

to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1. Declares, unanimously, the application admissible in respect of the

complaint under the procedural head of Article 2, and inadmissible for

the remainder;

2. Holds, by 4 votes to 3, that there has been a violation of Article 2 of the

Convention under its procedural head;

3. Holds, by 4 votes to 3,

(a) that the respondent State is to pay the applicants jointly, within three

months of the date on which the judgment becomes final in accordance

with Article 44 § 2 of the Convention, the following amounts, which are

to be converted into the currency of the respondent State at the rate

applicable on the date of settlement:

(i) EUR 10,000 (ten thousand euros), plus any tax that may be

chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,000 (two thousand euros), plus any tax that may be

chargeable to the applicants, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until

settlement simple interest shall be payable on the above amount at a rate

equal to the marginal lending rate of the European Central Bank during

the default period plus three percentage points;

4. Dismisses, unanimously, the remainder of the applicants’ claim for just

satisfaction.


Done in French, and notified in writing on 25 June 2013, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Guido Raimondi

Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of

the Rules of Court, the joint dissenting opinion of Judges Raimondi, Jočienė

and Lorenzen is annexed to this judgment.

G.R.A.

S.H.N.


JOINT DISSENTING OPINION OF JUDGES RAIMONDI,

JOČIENĖ AND LORENZEN

1. To our very great regret, we cannot share the majority’s view that

there has been a violation of Article 2 of the Convention under its

procedural head.

2. The decision not to bring a prosecution, issued at the close of the

investigation, was submitted to review by a military court composed of two

professional judges and an officer.

3. Admittedly, in the case of Gürkan v. Turkey (no. 10987/10, §§ 13-19,

3 July 2012), the Court held that there had been a violation of Article 6 of

the Convention because one of the three judges sitting in the military court

was an officer and he did not enjoy the same constitutional safeguards

provided to the other two judges, who were professional judges.

4. In the instant case, we note that the military court which examined the

applicants’ appeal was also composed of two professional judges and an

officer.

5. However, the issue of the military court’s independence ought to be

examined under Article 2 of the Convention, given that Article 6 is not

applicable in this case, since, on the one hand, the appeal proceedings were

not decisive of civil rights and obligations and, on the other, the applicants

were not subject to a “criminal charge” (see Ramsahai and Others v. the

Netherlands [GC], no. 52391/99, §§ 359-360, ECHR 2007-II).

6. In those circumstances, it is necessary to determine the extent to

which the fact that the independence of one of the three judges in the

military court was debatable – a circumstance which amounts to a lack of

independence for the purposes of Article 6 of the Convention – is capable of

leading to the finding that the investigation was not independent for the

purposes of Article 2 of the Convention.

7. While the requirements of a fair hearing are frequently used in

analysing procedural questions being examined under provisions other than

Article 6, the guarantees provided are not necessarily to be assessed in the

same way. In the context of Articles 2 and 3 of the Convention, the

independence of the investigation is one of the elements which allows the

latter’s effectiveness to be evaluated and represents an autonomous concept

of those provisions.

8. It is the procedure in its entirety, and the specific and tangible

circumstances of each case – including the role played by the various bodies

which participated in the procedure, and their conduct – that must be taken

into account in assessing the extent to which the investigation was

independent.

9. This principle was illustrated in the Tanrıbilir v. Turkey judgment

(no. 21422/93, §§ 54-85, 16 November 2000) where, having reiterated that

it had already found in several cases that investigations supervised by the


SEPARATE OPINION

provincial administrative councils in the context of proceedings brought

against civil servants raised serious doubts, that this body was not

independent of the executive and that its investigation was neither thorough

nor adversarial (see Güleç, cited above, §§ 79-81, and Oğur, cited above,

§ 91), the Court concluded that an investigation supervised by a provincial

administrative council met the procedural requirements of Article 2 of the

Convention, based on the quality of the investigation carried out by the

judicial bodies prior to that council’s involvement.

10. This principle has also been illustrated in a number of Romanian

cases (see paragraphs 139-141 of the judgment). We would point out that

the Court had found that an investigation carried out by military prosecutors

was not independent, based not only on the domestic regulations, but also

on the conduct of those involved, who tangibly demonstrated a lack of

impartiality: a failure to carry out all of the investigative measures which

were requested to further the investigation (see Barbu Anghelescu v.

Romania, no. 46430/99, 5 October 2004), a refusal to institute criminal

proceedings in spite of a judgment ordering that this be done (see Dimitriu

Popescu v. Romania (no. 1), no. 49234/99, §§ 75 et seq., 26 April 2007) or

a refusal to examine the conclusions of forensic medial reports (see Bursuc

v. Romania, no. 42066/98, §§ 107-109, 12 October 2004).

11. Subsequently, in the Mantog v. Romania judgment (no. 2893/02,

§§ 70 et seq., 11 October 2007), after reiterating that in previous cases it had

found that military prosecutors were not independent, having particular

regard to the regulations in force, the Court considered that the investigation

conducted by a military prosecutor into the death of the applicants’ relative

in the Mantog case had been independent, and stated that the degree of

independence of an investigative body was to be assessed in the light of the

specific circumstances of the case before it. In so doing, it attached

particular weight to the fact that there had been no link between the military

prosecutor and the persons likely to be investigated, the detailed nature of

the investigations and the fact that the prosecutor in question had reopened

the proceedings at the applicants’ request.

12. In the case of Stefan v. Romania ((dec.), no. 5650/04, § 48,

29 November 2011), the Court, again taking into consideration the

prosecutor’s specific conduct, also found that the investigation carried out

by him had been independent, in spite of the statutory regulations which did

not guarantee that he had the necessary independence from the military

authorities.

13. These cases indicate that, in the context of Article 2, a judicial

body’s lack of regulatory independence is not in itself sufficient to conclude

that an investigation has not been independent. This would have to be

demonstrated in practice by a lack of impartiality in that body’s conduct,

something which is assessed in the light of the specific circumstances of the

case.


SEPARATE OPINION

14. Returning to the present case, we therefore consider that, in deciding

the issue before the Court, it is necessary to examine the various phases of

the procedure and the specific circumstances of the case.

15. With regard to the investigation phase, we note that the prosecutor

responsible for it collected all of the evidence necessary, and we consider

that he cannot reasonably be criticised for the absence of any investigative

measures. There is nothing to indicate that all possibilities, including that of

homicide, were not explored (see Pankov v. Bulgaria, no. 12773/03, § 54,

7 October 2010). In this connection, we refer to paragraphs 106 et seq. of

the judgment delivered in this case, and particularly to its paragraphs 122 to

124.

16. It is true that the investigators who took part in the investigations

were members of the gendarmerie, the corps in which the incident occurred.

Nonetheless, it should be noted that these were not gendarmes who had

been stationed on the site of the incident (see, a contrario, Orhan v. Turkey,

no. 25656/94, § 342, 18 June 2002), that there was no hierarchical link

between them and those individuals who, like M.S., were likely to be

involved, and that they were also not direct colleagues of those individuals

(see Putintseva v. Russia, no. 33498/04, § 52, 10 May 2012, or, a contrario,

Aktaş v. Turkey, no. 24351/94, § 301, ECHR 2003-V, and Bektaş and Özalp

v. Turkey, no. 10036/03, § 66, 20 April 2010).

17. Moreover, we note that the investigation was in reality directed from

the outset by the prosecutor’s office (see, a contrario, Saçılık and Others,

cited above, § 98). Indeed, the prosecutor responsible for the case

immediately went to the hospital where Cihan Tunç had been admitted. He

supervised the autopsy there, ordered samples to be taken from the deceased

man’s body and from M.S., the last person to have seen Cihan Tunç alive,

and conducted the interview with M.S. In addition, he simultaneously sent a

civilian prosecutor to the site of the incident, instructing him to supervise

the work of the team of criminal investigation experts.

18. In other words, it was on the basis of the evidence gathered under his

supervision that the prosecution service concluded that the incident had

been an accident, in an order giving sufficient reasons (see, a contrario,

Đurđević v. Croatia, no. 52442/09, §§ 89-91, ECHR 2011).

19. Accordingly, the prosecution service cannot therefore be regarded as

having passively accepted the version provided by the investigators, who,

moreover, we would reiterate, were not linked to the persons likely to have

been implicated in the death (see Giuliani and Gaggio, cited above, § 321).

20. Further, the main acts carried out by the investigators concerned the

scientific aspects of the investigation, such as taking samples or ballistic

tests. In view of the technical and objective nature of those checks, this fact

cannot be said to have adversely affected the impartiality of the

investigation (see Papapetrou and Others v. Greece, no. 17380/09, §§ 65-

66, 12 July 2011). To hold otherwise would be to impose unacceptable


SEPARATE OPINION

restrictions in many cases on the ability of the courts 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).

21. In consequence, we consider that there is nothing to support the

allegation that the investigation carried out by the prosecution service was

not sufficiently independent.

22. Next, with regard to the issue of the review carried out by the

military court, we observe, firstly, that although the legislation in force at

the material time provided grounds for misgivings as to the independence of

the officer judge, this pitfall concerned only one of the three judges on the

bench, given that the two others were professional judges who presented the

necessary constitutional safeguards.

23. Secondly, although the requirements of Article 2 go beyond the

preliminary investigation stage when the investigation leads to legal action

being taken before the national courts (see Paçacı and Others v. Turkey,

no. 3064/07, § 78, 8 November 2011, and Teren Aksakal v. Turkey,

no. 51967/99, § 85, 11 September 2007), the appeal proceedings brought

before the court are not to be equated with a prosecution. They are intended

solely to review a decision by a public prosecutor not to bring a prosecution

(see, with regard to a similar remedy available under Netherlands law,

Ramsahai, cited above, § 352).

24. Thirdly, we consider – and this is essential, in our opinion – that

there is nothing in the manner in which the military court dealt with the case

to suggest that it was seeking to prevent a prosecution from being brought.

On the contrary, just as in the two most recent Romanian cases cited above

(Mantog and Stefan), the court initially upheld the applicants’ appeal by

ordering additional investigations in order to test the credibility of the

accident hypothesis accepted by the prosecution service. It was on the basis

of the new investigative measures – including a reconstruction of the

incident – that the court ultimately dismissed the applicants’ appeal.

25. Having regard to the military court’s role and actual conduct, the

adequacy of the investigative measures and the independence of the

investigation (see paragraphs 15-21 above1), the fact that the independence

of one of the three judges on the bench which ruled on the appeal against

the decision not to prosecute was open to doubt, on account of the

regulations in force at the relevant time, did not, in our opinion, amount to a

factor which could potentially taint the independence of the investigation

and, consequently, its effectiveness. In our view, it follows that the

complaint based on the investigation’s alleged lack of independence under

Article 2 of the Convention is unfounded.

1. Amended on 8 October 2013: the text was as follows: “see paragraphs 144 to 150 of the

judgment”.

CASE OF MUSTAFA TUNÇ AND FECİRE TUNÇ v. TURKEY · such (see, for example, Dalban v. Romania...

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