CASE OF MUSTAFA TUNÇ AND FECİRE TUNÇ v. TURKEY

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

THIS CASE WAS REFERRED TO THE GRAND CHAMBER

WHICH DELIVERED JUDGMENT IN THE CASE ON

14/04/2015

This judgment may be subject to editorial revision.

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.

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 English[2], 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 (...).

In preparing this report I have been provided with English translations of the following documents relating to Cihan Tunç:The Inquest and Autopsy Report dated 13th February 2004.Preparatory investigation report document number 2004/632EO entitled “Widening of the Investigation”.Two expert reports dated 16th and 17th February 2004, reference numbers ELS-2004/464 and 2004/90 Chemical.Three Colour images of the deceased, one taken in life and two taken post mortem, when the deceased is apparently within a coffin.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 NaismithGuido 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 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.

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 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 above[3]), 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 read as follows: “The applicants were represented before the Court by an association for the protection of human rights.”

[2]. Original English text.

[3]. Amended on 8 October 2013: the text was as follows: “see paragraphs 144 to 150 of the judgment”.

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