JOINT DISSENTING OPINION OF JUDGES SPIELMANN, KARAKAŞ, ZIEMELE, LÓPEZ GUERRA, AND DE GAETANO

(Translation)

We are unable to agree with the majority that there has been no violation of Article 2 of the Convention under its procedural head, for the following reasons.

A. Adequacy of the investigation

Before the Grand Chamber, the applicants complained of a series of alleged shortcomings in the investigation conducted into the death of the late Mr Cihan Tunç. The Grand Chamber has concluded that none of those shortcomings had a decisive impact on the overall effectiveness of the investigation.

1. The evidence of private M.D.

In our view, it is impossible to prejudge whether the evidence of private M.D. – who was apparently one of the last persons to see Cihan Tunç alive, just before he died from his injury (see paragraphs 16 and 198 of the judgment) – would have been of no interest. Nothing in the case file or in the Government’s arguments indicates why M.D. was never questioned, and in our opinion it was not for the Grand Chamber to make good that omission by making its own assumption that he was not a crucial witness. It was for the authorities to query their conduct on this point, not for the Court to absolve them from doing so, in the absence of a plausible explanation.

In this connection, contrary to what the majority suggests (see paragraph 198), we note that the case-law principles governing the role of victims’ families in investigation procedures did not in themselves require that the family ask, of its own motion, for M.D. to be questioned. Those principles having been insufficiently set out in the judgment, we wish, with respect, to reiterate them very briefly now.

The positive obligation under Article 2 of the Convention to take all preventive operational measures as are necessary and sufficient to protect an individual from the actions of another person (see Keenan v. the United Kingdom , no. 27229/95, §§ 88-89, ECHR 2001-III) or, where necessary, from themselves (see Abdullah Yılmaz v. Turkey , no. 21899/02, §§ 55 and 56, 17 June 2008) is also valid in the area of military service, as are the procedural obligations derived from that provision (see Kılınç and Others v. Turkey , no. 40145/98, § 40, 7 June 2005; and Salgın v. Turkey , no. 46748/99, § 76, 20 February 2007). In the present case, as in every case where an individual under the responsibility of the State dies in suspicious circumstances, Article 2 thus placed an obligation on the Turkish authorities to conduct an “official and effective investigation” capable of establishing the causes of Cihan Tunç’s death and identifying those responsible (see Slimani v. France , no. 57671/00, § 47, ECHR 2004 ‑ IX (extracts)).

To that end, those authorities were required to “act of their own motion once the matter [had] come to their attention, and could not leave it to the initiative of the next-of-kin ... to request particular lines of inquiry or investigative procedures” (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 111, ECHR 2005 VII; and Salgın , cited above, § 87). However, the majority seems to accept that the applicants could be expected to take the place of the investigative authorities in relation to having M.D. questioned, but does not specify the reasons which led it to depart from the general principle. An applicant’s conduct may admittedly, in certain circumstances, undermine the effectiveness of the investigations in a given case. However, such instances generally occur, where, for example, an applicant knowingly refuses to take part in certain crucial investigative measures (see, by way of example, Ay v Turkey , no. 30951/96, § 68, 22 March 2005; and Rohe Harman v. Turkey (dec.), no. 30950/96, 1 March 2005) or fails to inform the authorities about evidence that is known only to him or her (see Salgın , cited above, § 73); this did not apply in respect of Cihan Tunç’s relatives.

In summary, the fact that M.D. was not questioned by the authorities responsible for the investigation of their own motion amounts, in our opinion, to a shortcoming in the investigation.

2. The taking of fingerprints

For the same reasons as those set out above, and a fortiori , this position applies to the failure to take fingerprints from the weapon which killed Cihan Tunç. In this regard, the majority considered that although such testing “should be considered as standard procedure”, its absence was a “shortcoming” which had nevertheless not been “decisive” (see paragraph 195). In our opinion, such testing was rather a condition sine qua non in an investigation intended to rebut or confirm the various possible hypotheses, especially that of a crime.

Nor can we follow the majority when it expresses doubts as to the possibility of obtaining useable fingerprints in this case, while simultaneously criticizing the applicants for failing to request such testing more than five months after the investigation had been closed for the first time (see paragraphs 59 to 62) and despite the fact that the weapon had already been handled and subjected to ballistic tests (see paragraphs 29 and 35).

In our opinion, such testing would have been entirely feasible had it been carried out ex officio , using appropriate techniques, immediately after the incident. Given that the case file is completely silent on the reasons which might have led the authorities to forgo such testing; we can scarcely comprehend how it can be inferred that, in any event, testing would not have assisted in establishing the truth. Granted, M.S. had admitted to touching the weapon with a view to removing it when providing assistance to his fellow serviceman (see paragraphs 37, 193 and 194), and on this basis the majority considers that, even had his fingerprints been found on the rifle, this would not have influenced the course of the investigation. On the contrary, it could indeed have been important, given that in the instant case we cannot even understand how, without testing for fingerprints, the experts were able to conclude that, at the moment of the incident, Cihan Tunç was sitting or crouching and “was holding his rifle in his right hand” (see paragraph 68).

In our opinion, since the part of a rifle on which the trigger and the surrounding trigger guard are located is not the same part as that which an individual would normally grasp when removing a rifle, the course of the investigation could certainly have been altered had M.S.’s fingerprints been found on the trigger. Given that both the deceased man’s hands and M.S.’s hands bore traces of residues from the discharging of a weapon (see paragraph 33), the taking of organic samples would never have enabled it to be ascertained which of the two men was holding or had touched that rifle before the shot was fired; dusting for fingerprints might have enabled this point to be elucidated, and it follows that the authorities ought to have conducted that test.

In our view, the fact that such testing was not carried out on the weapon ex officio prior to its contamination amounts to a crucial, and even decisive, omission.

3. The reconstruction of events of 24 November 2004

As to this part of the investigation, we must draw attention at the outset to the actions of the military authorities, who knowingly altered the scene of a possible crime before the investigation procedure had been definitively closed. They cemented over the previously earthen floor of the premises in which the relevant incident took place. For the reasons set out below, we are unable to subscribe to the view of the majority, which took into account only the fact that the floor levels had not been raised (in spite of the additional layer of concrete) and concluded that in the present case this work – carried out after the initial examination of the scene – had had no “negative impact” on the quality of the reconstruction (see paragraph 196). Firstly, even supposing that the authorities had acted quickly to take this step “with a view to keeping the soldiers’ uniforms clean” (see paragraph 67), this by no means alters the fact that such a step not only rendered futile the additional investigation ordered by the military court (see paragraph 63), but even more importantly, it amounted to a physical destruction of evidence which is in itself capable of casting doubt on the investigation’s ability to establish the facts (see, for example, Crăiniceanu and FrumuÅŸanu v. Romania , no. 12442/04, § 94, 24 April 2012; and McKerr v. the United Kingdom , no. 28883/95, § 137, ECHR 2001 ‑ III).

Secondly, we note that the majority has, in all likelihood, considered the reconstruction to be satisfactory on the basis of two suppositions: ( a ) before the investigation was terminated for the first time, the authorities had “[taken] sufficient measures to collect and secure evidence relating to the events in issue” (see paragraph 184), and ( b ) during the reconstruction, the experts “sealed off the scene of the incident” and “took steps to secure the integrity of all of the evidence likely to be important in solving the case” (see paragraph 191). However, this description is not entirely satisfactory, since an essential element is absent: the bullet.

The prosecutor’s report refers to the existence on the ceiling of an impact mark “which resembled that of a shot” (not “was from a shot”) and, on the ground, small pieces of cement debris “from the ceiling” (see paragraph 28). However, no one has questioned the absence, in a confined concrete structure, of the bullet responsible for leaving this mark. We have not seen a single reference to this bullet, which clearly could not have pierced a cement ceiling with only “a mark”. Nor does the case file contain a reference to any scientific test comparing the chemical makeup of the pieces of cement debris with that of the ceiling.

It must therefore be accepted that the deficiencies in the search for the bullet irremediably prejudiced the effectiveness of the investigation, since they fatally undermine the hypotheses developed around the idea of a bullet striking the ceiling.

Although the autopsy report identified, inter alia , the entry and exit wounds made by the bullet, that is, its trajectory through Cihan Tunç’s body (see paragraphs 185 and 186), the description given of the shot’s presumed trajectory has no evidential value: in fact, without the bullet, the mark on the ceiling could have resulted from any cause and could have been made on any date. As to the facts of the present case, we consider that if Cihan Tunç was indeed “sitting or crouching” on an “ammunition chest” before his death and if he “was attempting to stand up with his knees still bent” (see paragraphs 43 and 68), it is entirely possible that a standing individual could – accidentally or otherwise – have shot at him using that individual’s own rifle. In this hypothesis, the bullet would have been shot from the height of a man’s waist, gone through the body with the same entry and exit points, and ended up lodged in the floor, which was earthen at the relevant time.

This surface, covered in blood, may not have been propitious to the discovery of an embedded bullet, and without using a metal detector in the search it is unlikely that it could have been discovered before the experts’ return to the scene, which had been cemented over in the meantime. What now of the impact on a criminal investigation of the above omissions with regard to the fatal bullet and the subsequent decision to pour cement over the scene of a possible crime and, perhaps, over this bullet?

4. Our preliminary conclusion

We do not deny that the procedural obligation arising from Article 2 is one of means, or that – particularly in respect of an investigation into the presumed acts of another person – the nature and extent of the investigations must be assessed with regard to the practical realities of investigation work (see, for example, Velikova v. Bulgaria , no. 41488/98, § 80, ECHR 2000 ‑ VI) and subject to the inherent limitations of the context (see, for example, Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003 ‑ V). In the present case, however, we do not see any particular circumstance, occurring in this particular context, which would have justified a more lenient application of the procedural requirements imposed by Article 2.

On the contrary, we consider that a firmer position should have been taken, given the military nature of the circumstances at the origin of the present case, which concerns the death of a young man in the armed forces on a site which was under the control, or at least the protection, of the military authorities, and in which all of the bodies and persons which were involved in the course of the investigation belonged to the military as an institution, although the main suspect was himself a conscript carrying out his military service in the gendarmerie.

In this respect, we would refer to the judgments in Akkum and Others v. Turkey (no. 21894/93, § 211, ECHR 2005 ‑ II (extracts)); MansuroÄŸlu v. Turkey (no. 43443/98, §§ 78-80, 26 February 2008); and Beker v. Turkey (no. 27866/03, § 42, 24 March 2009), which require that this obligation to conduct an “official and effective investigation” be applied with the necessary rigor when elucidating an incident which occurred in an area under the exclusive control of the authorities or of State agents, and in which the latter are the only persons likely, on the one hand, to be aware of the exact order of events and, on the other hand, to have access to information capable of corroborating or refuting the allegations made against them by the victims.

We conclude that, although the investigation as a whole was prompt, there existed shortcomings and deficiencies which – considered individually or cumulatively – were such as to undermine its capability of establishing the facts surrounding the death of Cihan Tunç, especially since, in consequence, those responsible for the investigation cannot be considered to have duly explored the various lines of inquiry and rejected the criminal hypothesis (compare paragraphs 206 to 208 and 239).

B. Participation of the deceased man’s family in the investigation

We cannot entirely accept the majority’s conclusion that the documents and information transmitted to the applicants and the means of access available to them in that connection were satisfactory, and that these elements enabled them to exercise their rights effectively (see paragraphs 213 and 214), in other words, to participate effectively in the proceedings (see paragraph 216). In truth, even more than the conclusion itself, it is the majority’s reasons that we consider insufficient as a solid basis for such a finding, having regard to the rather selective choice of principles and examples put forward.

Returning to our previous comment concerning the specific military nature of the situation in this case, we would have preferred that the facts had been assessed with greater regard to objectively comparable situations, rather than to those referenced by the majority (see paragraphs 179 and 210 to 212), which are only relatively comparable. For example, we would have included the case of Salgın v. Turkey , in which the Court found a violation of the procedural aspect of Article 2. In that judgment, on the basis of a premise stipulating more generally that compliance with Article 2 requires that a victim’s relatives are able “to take part in the investigation” to determine the causes of the impugned death (see also Slimani , cited above, §§ 29 and 48), it was stated (see Salgın , cited above, § 89):

“The Court also notes that the applicant was, in practice, excluded from the investigation: he could neither obtain access to the documents nor take part in the investigation, and was even unable to be heard by a judge before the decision not to prosecute was issued ... This belated and limited access to the investigation is not satisfactory. The applicant ought to have been actively involved in the procedure and his statements ought to have been heard..., irrespective of the issue of whether or not he could convince the authorities of his allegations.”

Accordingly, we believe that it would have been appropriate to set out the reasons why the majority did not consider itself obliged to follow similar reasoning, so that we could distinguish the Salgın family’s situation from that of the applicants’, who were also never involved in the inquest or heard during the investigation procedure. Furthermore, there is nothing to indicate that the applicants had even been informed on a date prior to 16 July 2004 (see paragraph 60) of the existence of an ongoing investigation into the “suspicious death” of their son.

Moreover, we understand clearly the scope of the reference made to the case-law permitting the requisite access of the public or the victim’s relatives to be provided for in other stages of the procedure (see paragraphs 179 and 212). However, we would once again have preferred that these references be more extensive, in order to show that the resultant interpretation concerns, in particular, cases in which “disclosure or publication of police reports and investigative materials may involve sensitive issues with possible prejudicial effects to private individuals or other investigations” (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 304, ECHR 2011 (extracts). We would then have wished to see evidence of the potential for such prejudicial effects in the circumstances of the present case.

C. Independence of the review carried out by the military court

We subscribe to the Grand Chamber’s preliminary observations, intended to define the difference and the nuances of assessment of the criteria of independence, depending on whether they concern Article 6 or Articles 2 and/or 3 of the Convention (see paragraphs 217-221). We also consider that the statutory criteria for verification of the requirement of independence within the meaning of Article 6 are not necessarily to be assessed in the same manner when examining the question of an investigation’s independence from the perspective of the procedural obligations (see paragraph 222).

It is clear from all of the case-law precedents analysed by the majority (see the references in paragraphs 222 to 231) that the Court, whatever the problems that it may have identified of its own motion with regard to the statutory independence (in the broad sense of the term) of the investigatory or supervisory bodies, prefers a concrete examination of the investigation taken as a whole in assessing whether and to what extent those problems could have compromised its effectiveness.

With regard to the facts of the case, it is first necessary to note that, given the regulations in force at the material time, there were factors which cast serious doubt on the statutory independence of the military courts in general and, in consequence, of the military court of the Diyarbakır 2nd Air-force, which was called upon to examine the applicants’ appeal against the decision of the prosecutor’s office not to bring a prosecution.

Firstly, one of the three judges of that court was a serving officer and did not offer the same safeguards of independence as the two other judges. He was part of the military structure, which operates on the principle of hierarchical subordination, and, in this capacity, was answerable for any breaches of military discipline.

This fact had previously led to a judgment by the Turkish Constitutional Court, in which that supreme court had found that this situation was incompatible with the constitutional principle of the independence of the justice system and had set aside the legislative provision providing for the presence of a serving office on the bench of military courts.

Secondly, like the prosecutors, the military judges were at the relevant time also subject to an appraisal by the commander of the military unit within which they carried out their duties, with regard to their “officer’s appraisal sheet”. In spite of the other safeguards available to the judges, such as a specific appointment system requiring, in particular, the involvement of the President of the Republic (see paragraph 88 of the judgment), a specific reference to their independence in the Constitution and in the law (see paragraphs 86 and 87), the prohibition on giving them instructions or suggestions or to attempt to influence judgment (ibid.), and the criminal-law provisions against any attempt to so do (see paragraphs 89 et seq.), this circumstance is such as to give rise to fears concerning their independence. Indeed, the Turkish Constitutional Court (on 8 October 2009) concluded that this part of the appraisal system was incompatible with the Constitution and set it aside (see paragraphs 99 to 102).

The majority does not deny the concerns created by the legal situation arising from this circumstance (see paragraphs 237, 247 and 254), but it draws different conclusions. Its main argument is that those concerns are not in themselves sufficient to conclude that the impugned investigation was lacking in independence.

Yet it should be pointed out that the approach taken by the Turkish Constitutional Court was perfectly consistent with Article 53 of the Convention, which allows the States Parties the possibility of offering to the persons falling under their jurisdiction more extensive protection than that required by the Convention (see, for example, Suso Musa v. Malta , no. 42337/12, § 97, 23 July 2013; and Okyay and Others v. Turkey , no. 36220/97, § 68, ECHR 2005 VII). Through its system of collective enforcement of the rights it establishes, the Convention reinforces, in accordance with the principle of subsidiarity, the protection afforded at national level, but never limits it (see United Communist Party of Turkey and Others v. Turkey , 30 January 1998, § 28, Reports of Judgments and Decisions 1998 ‑ I; Shamayev and Others v. Georgia and Russia , no. 36378/02, § 500, ECHR 2005 III; and Micallef v. Malta , no. 17056/06, § 44, 15 January 2008).

In our opinion, and having regard to the above principle, it is necessary to emphasise, as the Constitutional Court did, the particular significance of those elements which adversely affected the military court’s statutory independence. In this connection, attention should be drawn to the role played by this body, since it was solely by means of an appeal to it that the applicants could raise their complaints concerning the investigation conducted by the prosecutor’s office and attempt to have remedied what they considered to be shortcomings in it.

It is also necessary to take into account the particular context in which the impugned events occurred. The case concerns the death of a serviceman, in the context of his duties, on a site which was under the control, or at least the protection, of the military authorities; in addition, all of the entities which were involved in the course of the investigation were part of the military, although the main suspect was himself a conscript carrying out his military service in the gendarmerie. Admittedly, these bodies all belonged to distinct corps: the prosecutor was attached to an army unit, the judges exercised their duties within an air-force unit and the investigators belonged to the gendarmerie, which does not come directly under the general staff of the armed forces. Nonetheless, all of those corps form the constituent elements of the armed forces serving in a single region.

We consider that the majority ought to have paid greater attention to this circumstance, and been especially firm with regard to application of the requirement of independence, in order to “maintain public confidence in the authorities’ adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts” in the present case (see Anguelova v. Bulgaria , no. 38361/97, § 140, ECHR 2002-IV).

The military court which was responsible for the final review of the investigation did not therefore provide sufficient guarantees of independence, a defect confirmed by the Constitutional Court (see paragraphs 93 and 99 to 102 of the judgment), although it intervened at the only stage at which the applicants could genuinely present their complaints and at which it could have remedied the shortcomings in the investigation.

D. General conclusion

We consider that, having regard to the unjustified absence of testing for fingerprints on the weapon and the unexplained failure to question private M.D., and the lack of independence of the court responsible for the final review of the investigation into events which occurred within the army, the investigations into the death of Cihan Tunç did not comply with the requirements of Article 2 of the Convention.

For the reasons sketched out above, we can only vote in favour of finding a violation of Article 2 of the Convention under its procedural head.