Mustafa Tunç and Fecire Tunç v. Turkey [GC]

Information Note on the Court’s case-law 184

April 2015

Mustafa Tunç and Fecire Tunç v. Turkey [GC] - 24014/05

Judgment 14.4.2015 [GC]

Article 2

Article 2-1

Effective investigation

Alleged lack of independence of military court upholding prosecutor’s decision to discontinue investigation into death of soldier: no violation

Facts – In February 2004 a sergeant was fatally injured by gunfire while carrying out his military service. A judicial investigation was opened on the authorities’ own motion. In June 2004, holding that there were no grounds for finding that another person had been responsible for the sergeant’s death, the prosecutor issued a decision not to bring a prosecution. In October 2004 the military court of the air-force upheld an appeal lodged by the applicants – the sergeant’s parents – and ordered the prosecution service to carry out an additional investigation. In December 2004 the prosecutor completed the investigations and returned the file to the military court, together with a report on the requested additional investigation, in which he set out the measures taken and responded to the shortcomings that had been noted by the court. The military court dismissed the applicants’ appeal. The applicants accused the authorities of failing to conduct an effective investigation into their son’s death. They alleged, inter alia, that the legislation in force at the relevant time did not provide all the necessary guarantees of independence in respect of the judicial authorities, especially of the military court which had examined the case at final instance.

By a judgment of 25 June 2013 (see Information Note 164), in spite of its findings on the promptness, adequacy and thoroughness of the investigative measures and the applicants’ effective participation in the proceedings, a Chamber of the Court concluded, by four votes to three, that there had been a violation of Article 2 in its procedural aspect, in that the military court did not enjoy the necessary independence in its capacity as the body responsible for the ultimate review of the investigation.

On 4 November 2013 the case was referred to the Grand Chamber at the Government’s request.

Law – Article 2 (procedural aspect): Article 2 required a concrete examination of the independence of the investigation as a whole. The persons and bodies responsible for the investigation had to be sufficiently independent of the persons and structures whose responsibility was likely to be engaged in the light of all of the particular circumstances of each case.

Where the statutory or institutional independence was open to question, the Court had to carry out a stricter scrutiny of the independence of the investigation. In such cases, the correct approach consisted in examining whether and to what extent the disputed circumstance had compromised the effectiveness of the investigation and its ability to shed light on the circumstances of the death and to punish those responsible.

Compliance with the procedural requirement of Article 2 was assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person’s family and the independence of the investigation. These elements were inter-related and each of them, taken separately, did not amount to an end in itself, as was the case in respect of the independence requirement of Article 6.

(a) Promptness, adequacy and thoroughness of the investigation – The investigation in question had been conducted with the requisite diligence and had not been beset by excessive delays. The authorities had taken sufficient measures to collect and secure evidence relating to the events in issue. With regard to the questioning of the witnesses, they had taken several statements immediately after the events. There was nothing to support the assertion that they had failed to question key witnesses or that the interviews had been conducted in an inappropriate manner.

(b) Participation of the deceased’s relatives in the investigation – The applicants had been granted access to the information yielded by the investigation to a degree sufficient for them to participate effectively in the proceedings.

(c) The independence of the investigation

(i) Independence of the prosecution – The military prosecutor in charge of the investigation had no ties, hierarchical or otherwise, with the main suspect, the gendarmes stationed at the site, the central gendarmerie or even the gendarmerie in general. In addition, he had gathered all the evidence it was necessary to obtain.

With regard to the non-prosecutorial investigators, there was no hierarchical relationship between them and the individuals who were likely to be involved. Moreover, they had not been responsible for steering the investigation, overall control of which had remained in the hands of the prosecutor. Furthermore, the main acts carried out by these investigators had concerned the scientific aspects of the investigation, such as taking samples or ballistic tests.

(ii) Independence of the review carried out by the military court – The regulations in force at the material time cast doubt on the statutory independence of the military court which was called upon to examine the applicants’ appeal against the decision by the prosecutor’s office not to bring a prosecution.

However, the members of the military court had had no hierarchical or tangible link with the gendarmes stationed at the site or with the gendarmerie in general.

Further, there was nothing in the conduct of the court and its judges to indicate that the latter had been inclined to refrain from shedding light on the circumstances of the death, to accept without question the conclusions submitted to them or to prevent the instigation of criminal proceedings against the last person to have seen the sergeant alive.

On the contrary, the court had initially allowed the applicants’ appeal, ordering additional investigations to test the credibility of the hypothesis of an accident put forward by the prosecutor’s office, and it was on the basis of these further measures that it had ultimately dismissed the applicants’ appeal.

The fact that the court held that all of the investigative measures necessary for establishing the truth had been taken and that there was insufficient evidence to bring proceedings against a suspect could not in any way be regarded as indicating a lack of independence. In this respect, the authorities were under an obligation not of result but of means, and Article 2 did not imply the right to obtain a conviction or to have a prosecution brought.

(iii) Conclusion concerning the independence of the investigation – While accepting that it could not be considered in the present case that the entities which played a role in the investigation had enjoyed full statutory independence, the Court found, taking account, on the one hand, of the absence of direct hierarchical, institutional or other ties between those entities and the main potential suspect and, on the other, of the specific conduct of those entities, which did not reflect a lack of independence or impartiality in the handling of the investigation, that the investigation had been sufficiently independent.

In this regard, the sergeant’s death had not occurred in circumstances which could, a priori, give rise to suspicions against the security forces as an institution, as for instance in the case of deaths arising from clashes involving the use of force in demonstrations, police and military operations or in cases of violent deaths during police custody. Even under the criminal hypothesis, suspicions had fallen on the last person to have seen the sergeant alive, rather than on the authorities. Yet the fact was that that individual had been a mere conscript, and not a rank-holding army officer. It remained the case that the suspicions against him were not related to his particular status as a gendarme or as a member of the armed forces.

In conclusion, the investigation conducted in this case had been sufficiently thorough and independent and the applicants had been involved in it to a degree sufficient to protect their interests and to enable them to exercise their rights.

Conclusion: no violation (twelve votes to five).

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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