Information Note on the Court’s case-law No. 164
June 2013
Mustafa Tunç and Fecire Tunç v. Turkey - 24014/05
Judgment 25.6.2013 [Section II]
Article 2
Article 2-1
Effective investigation
Effectiveness of investigation into death impaired on account of lack of independence of court upholding a decision to discontinue the proceedings: violation

Facts – In February 2004, while he was doing his military service, a sergeant was fatally injured by gunfire. A judicial investigation was opened as a matter of course. In June 2004 the prosecutor discontinued the proceedings, finding that no third party could be held responsible for the sergeant’s death. In October 2004 a military tribunal of the air-force upheld an appeal by the applicants – the sergeant’s parents – and ordered the prosecutor to carry out a further investigation. In December 2004 the prosecutor closed the inquiries and sent the file back to the military tribunal, together with a report on the further investigation requested, presenting the measures taken and addressing the shortcomings identified by the tribunal. The military tribunal dismissed a further appeal by the applicants.
The applicants complained that the authorities had failed to carry out an effective investigation into their son’s death. They argued in particular that the legislation in force at the relevant time did not confer all the requisite guarantees of independence on the judicial authorities and, more specifically, on the military tribunal which had examined the case at last instance.
Law – Article 2
(a) Whether the investigation was prompt, appropriate and comprehensive – The inquiries in question had been carried out with the requisite diligence and the investigation had not been vitiated by any excessive delay. The authorities had taken appropriate measures to collect and preserve the evidence relating to the incident at issue. As regards the examination of witnesses, a number of statements had been taken immediately after the death. There was nothing to suggest that the authorities had failed to examine material witnesses or that the interviews had been conducted inappropriately.
(b) Whether the investigation was independent – The investigation had been carried out by the military prosecutor, assisted by detectives from the national gendarmerie. The decision to discontinue the proceedings after the inquiries had been subjected to the scrutiny of the air-force’s military tribunal, ruling on an appeal by the applicants. The Court referred to its previous finding in the Gürkan v. Turkey* judgment that, as composed at the material time, the military tribunal which had convicted the applicant in that case could not be regarded as independent and impartial within the meaning of Article 6 of the Convention, and that there had been a violation of that Article. In so ruling, the Court had pointed to the fact that one of the three judges sitting on the bench of the military tribunal was an officer appointed by his hierarchy and subject to military discipline, and that he did not enjoy the same constitutional safeguards as the two other judges, who were professionals from the judiciary. Those considerations were also valid in the present case, in so far as the tribunal acting as the supervisory body in the investigation at issue had the same composition. In that connection, it was to be noted that the doubts about impartiality in the present case concerned the judicial body responsible for the supervision at last instance of the investigation, and not simply the prosecutor’s office. It followed that the procedure could not meet the requirement of independence that was inherent in the national authorities’ obligation to carry out an effective investigation into the sergeant’s death.
(c) The participation in the investigation of the deceased’s family – The applicants had enjoyed access to the information emanating from the investigation to a sufficient degree to enable them to participate effectively in the proceedings.
In conclusion, notwithstanding its findings concerning the prompt, appropriate and comprehensive nature of the investigative measures and the effective participation of the applicants, the Court was of the view that there had been a violation of Article 2 under its procedural head, as the military tribunal did not have the requisite independence in its capacity as supervisory body, at last instance, in respect of the judicial investigation.
Conclusion: violation (four votes to three).
Article 41: EUR 10,000 jointly in respect of non-pecuniary damage.
* Gürkan v. Turkey, 10987/10, 3 July 2012, Information Note 154.

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