JOINT DISSENTING OPINION OF JUDGES RAIMONDI, JOÄŒIENÄ– 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 , AktaÅŸ v. Turkey , no. 24351/94, § 301, ECHR 2003 ‑ V, and BektaÅŸ 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”.