CASE OF MUSTAFA TUNÇ AND FECİRE TUNÇ v. TURKEY
Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen
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. 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. 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. 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. 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. 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. 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). 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. 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. 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. 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, 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.” 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. 81. The relevant provisions of the Constitution read as follows: “Judicial power shall be exercised by independent courts on behalf of the Turkish nation.” “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.” “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.” “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.”