CASE OF MUSTAFA TUNÇ AND FECİRE TUNÇ v. TURKEY
Preliminary objection dismissed (Article 34 - Victim);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
András Sajó;Angelika Nußberger;Dean Spielmann;Guido Raimondi;Helen Keller;Helena Jäderblom;Ineta Ziemele;Josep Casadevall;Krzysztof Wojtyczek;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nona Tsotsoria;Paul Lemmens;Peer Lorenzen;Robert Spano;Vincent A. De Gaetano;Zdravka Kalaydjieva
11. Mustafa Tunç was born in 1946 and died in 2006. Fecire and Yüksel Tunç, born in 1952 and 1975 respectively, live in Istanbul. They are the father, mother and brother of Cihan Tunç, who was born on 20 November 1983 and died on 13 February 2004. 12. Cihan Tunç joined the army in August 2003 to perform his compulsory military service. The medical report drawn up prior to his conscription stated that there were no contraindications to his conscription. He was not known to suffer from any psychological disorder or any other specific problem. 13. On an unspecified date Cihan Tunç obtained the rank of corporal. Following a training exercise which ended on 31 November 2003, he qualified as a sergeant. 14. He was then assigned to the protection of a site belonging to the private oil company NV Turkse Perenco (“Perenco”), for which the Kocaköy central gendarmerie was providing security services. 15. On 13 February 2004, at about 5.50 a.m., he was injured by gunfire. He was one of the gendarmes on sentry duty and assigned to the guard post known as “tower no. 3”. The incident occurred at the guard post known as “tower no. 2”. 16. Cihan Tunç was transported to hospital immediately after the incident by sergeant A.A. and private M.D., accompanied by private M.S., who was the last person to have seen Cihan Tunç before the incident. 17. Cihan Tunç was pronounced dead shortly after arrival at Diyarbakır Military Hospital. 18. The military prosecutor’s office of the 7th Army Corps, located in Diyarbakır, was informed immediately after the incident and a judicial investigation was opened as a matter of course. 19. A few hours after the incident, a member of that office, military prosecutor E.Ö., went to the hospital to which Cihan Tunç had been admitted and was joined there, on his instructions, by a team of criminal investigation experts from the national gendarmerie. In addition, he 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. 20. On his arrival at the hospital, the military prosecutor ordered that an external examination of the corpse and an autopsy be carried out, under his supervision. 21. 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., who was the last person to have seen Cihan Tunç alive and could therefore have been involved in the incident. Swabs were also taken from their hands, to be checked for traces of gunpowder. Lastly, the deceased’s pockets were emptied and an inventory made of their contents. 22. The prosecutor then instructed forensic doctor L.E. to examine the body with a view to ascertaining the cause of death, and to make any observations he may have on the circumstances of the death. 23. The forensic doctor recorded the following findings: body height, 1.75 metres; the entry wound, with an abrasion ring, was on the right side of the neck, and the exit wound, measuring 4 x 2 centimetres, was on the left side of the back, under the lower edge of the shoulder blade. The forensic doctor noted no trace on the body of blows or violence. 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. He also mentioned that the shot had probably been fired at point-blank range (yakın atış). 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 curve of the lower jaw.” 24. All of those observations were recorded in a document entitled “Record of the post-mortem examination and autopsy”. 25. The military prosecutor also questioned private M.S. and sergeant A.A. (see paragraphs 37-45 and 46-50 below), who had arrived at the hospital in the vehicle transporting Cihan Tunç’s body. 26. Simultaneously, a team of experts from the Diyarbakır national gendarmerie’s criminal investigation laboratory and the Kocaköy civilian prosecutor went to the site a few hours after the events, having received instructions to that effect from the military prosecutor in charge of the case. 27. 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 sentry posts. The incident had taken place in an edifice measuring 2 x 2 metres, with a ceiling height of 2.33m and apertures placed 1.5m from the ground. 28. The report further noted that two unspent cartridges and a spent cartridge were found lying on the ground inside the sentry 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, which was also spattered with large bloodstains. 29. The report also stated that a cursory examination of the deceased’s weapon, a G-3-type rifle which had been placed under lock and key pending the prosecutor’s arrival, indicated that it had been used a short time previously. According to the report, this weapon, as well as that 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. 30. Lastly, the report specified that a detailed record had been drawn up, two sketches drawn, photographs taken and a video recording made. 31. In accordance with usual practice, an administrative inquiry was carried out on the orders of the provincial gendarmerie commander, to shed light on the incident and draw any conclusions from it, with a view to ensuring that a similar incident did not occur again. 32. On an unspecified date the deceased’s body, escorted by Staff Sergeant V.Ç., was transported to Ankara, for transfer to Istanbul and release to the family. The Istanbul provincial gendarmerie directorate was asked to contact the family to make arrangements for the funeral. 33. On 16 February 2004 the gendarmerie’s criminal research laboratory issued an expert report (report no. 2004/90/chemical). That report indicated that analysis of the samples taken from the deceased’s hands and from 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 pointed out 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 first aid was administered. 34. 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. 35. On 17 February 2004 the Diyarbakır national police criminal laboratory also issued its expert report (report no. BLS-2004/464), following ballistic tests carried out on the spent cartridge and on the two weapons found at the scene of the incident. The tests indicated that the two rifles were operating normally and confirmed that the spent cartridge came from Cihan Tunç’s weapon. 36. As part of the investigations carried out by the military prosecutor’s office and the gendarmerie’s internal inquiry, numerous servicemen were questioned on the day of the incident. 37. 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 he was due to relive me, 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 lying 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]”. 38. 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 stated that he had not shot his fellow serviceman. 39. In reply to another question, he stated that, when Cihan Tunç loaded and then unloaded the weapon several times, he had seen unspent cartridges being ejected from the side of the rifle. 40. In the course of his interview with the gendarmerie’s internal investigator, he stated: “Sergeant A.A. came past about 5 a.m., during his patrol, to carry out a check. Cihan Tunç arrived shortly afterwards, at about 5.50 a.m. ... he came into the tower sentry post 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 in. 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 relieve us arrived. We carried Cihan close to the [oil] container, then we took him to Diyarbakır Hospital in a Renault car belonging to the Perenco company...” 41. To the question “how do you explain the fact that two unspent cartridges were found at the scene of the incident?” M.S. replied that he did not have an explanation. He added that perhaps these were cartridges which had fallen when Cihan Tunç was loading and unloading the weapon. 42. In response to another question, he said that he was unable to state if the magazine had been in the weapon at the time of the incident, since he had paid no attention to that point. 43. The investigator also asked M.S. about the positions of the weapon and Cihan Tunç. More specifically, he asked if the latter had been sitting or standing while he was manipulating his rifle. 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 shot. 44. Lastly, the investigator questioned M.S. about the location of the weapons. According to M.S., his own rifle had been on a rack inside the post, and its tripod was folded. Cihan’s weapon had been on his chest. 45. In those two statements, the location where the incident took place is described interchangeably by the terms “duty station no. 4” (4 no.lu nöbet mevzisi) or “tower no. 2” (2 no.lu kule). 46. 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. 47. 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”. 48. A.A. also stated that, to his knowledge, there had been no problem between Cihan Tunç and M.S. 49. 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. 50. A.A. gave similar evidence to the gendarmerie’s internal investigator. 51. 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 inspected the premises in a very cursory manner, without disturbing the scene of the incident. They had seen a spent cartridge and two cartridges for a G-3 rifle, one on the ground and the other on the rack. They had also noted blood on the ground. 52. Sergeant A.K. gave the following evidence to the investigator: “Cihan was on duty at post no. 2 ... During my round, 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 up.” 53. With regard to the position of the magazine, sergeant A.K. stated that he had paid no attention to that point at the time. However, he remembered that, after carrying Cihan to the canteen, private S.K. had gone back and brought him the weapon, and he had noticed that the magazine was not in place on the rifle. 54. To the question “why did the incident take place at guard post no. 4, where M.S. was on duty, although Cihan Tunç had been assigned to the high tower?” he replied: “I don’t 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.” 55. Private S.K. confirmed A.K.’s statement, indicating that the weapon and the magazine were inside the sentry post, but that the magazine was not in the weapon. 56. Private E.C. stated that when he arrived on the scene M.S. was attempting to lift Cihan Tunç up. He also confirmed that the magazine was not in the weapon. 57. The following additional elements emerged from the other statements: 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. At the time of the incident, private S.S. had been the soldier on sentry duty at the first guard post, located at the entrance to the site. After sergeant A.A. and the other servicemen arrived at the scene of the incident, M.S. was sent to the canteen to seek help. 58. Having regard to the absence of family, social or psychological problems on the part of the deceased, the fact that he had been at a guard post assigned to one of his fellow servicemen and to the position and distance (point-blank range) of the shot, the inquiry concluded that the incident had been an accident. It seems, however, that the possibility of unlawful killing was considered at the beginning of the inquiry. 59. 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 all of the evidence gathered during the investigation. He concluded 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, adding that this explained, in particular, the bullet impact on the ceiling. However, the prosecutor’s decision did not state why the shot had suddenly been fired. 60. On 16 July 2004 the prosecutor, in response to a request from the applicants’ lawyer, sent her a letter and a copy of the decision, indicating that, in application of the Lawyers 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 thought it appropriate to obtain. 61. Furthermore, a copy of the decision not to bring a prosecution was served in person on Aysel Tunç, a sister of the deceased, on 27 July 2004. 62. The applicants appealed against the decision, alleging that several grey areas remained as to the circumstances of Cihan Tunç’s death. In particular, they claimed that the trajectory followed by the bullet had not been clearly defined. They did not refer to the fact that M.D. had not been questioned, or that no fingerprint tests had been conducted on the weapon. 63. On 14 October 2004 the military court of the Diyarbakır 2nd Air-force Corps 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. Lastly, 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. 64. On 24 November 2004 the military prosecutor visited the Perenco site, accompanied by three criminal investigation experts. 65. 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. 66. Steps to determine the bullet’s trajectory were taken, including the use of a string, stretched between the impact mark on the ceiling and the barrel of a G-3 rifle. Photographs were taken. 67. The experts noted that the floor was made of concrete, although the previous records described an earthen floor. According to information 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. The floors had not been raised during this work. This point was confirmed by measurements which established that the ceiling height was still 2.33 metres, as it had been at the time of the incident. 68. 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; while he was attempting 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. 69. During his visit to the site, the prosecutor questioned private E.C., the other soldiers on duty at the time of the incident having completed their military service. E.C. stated that, when he arrived, M.S. was crouching down behind Cihan Tunç and was trying to lift him up by pulling him under the arms. 70. All of this evidence was set out in a report dated 24 November 2004. 71. 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), in which he set out the measures taken and responded 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 supported that hypothesis, in that they confirmed that M.S. had been in physical contact with the deceased when attempting to lift him up. 72. With regard to the court’s observation 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, indeed, that the hypothesis of suicide had not been entertained. 73. As to determination of the bullet’s trajectory in the light of the impact mark on the ceiling and the entry and exit wounds on the body, the prosecutor stated that the following hypothesis had been accepted: Cihan Tunç had been sitting on an ammunition box and playing with the rifle’s cocking lever and magazine; while 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 to support himself in standing up, his hand on the part of the weapon near the trigger, and the shot had gone 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 on 24 November 2004 in order to ascertain the credibility of this hypothesis, having regard to the bullet’s entry and exit points, the point of impact on the ceiling and the deceased man’s build, and that the conclusions of the reconstruction confirmed this sequence of events. 74. The record of the reconstruction of the incident was attached to this report. 75. On 17 December 2004 the military court dismissed the applicants’ appeal. 76. A letter dated 21 December 2004 was sent to the applicants’ lawyer, informing her of that decision. Neither the date of posting nor the date of receipt of that letter is specified in the case file. The applicants submitted that they had received the letter in question at the end of December 2004. The Government made no submissions on this point. 77. The applicants submitted a private medical report, prepared at their request by a British expert, Dr Allen M. Anscombe, and dated 11 October 2005. The expert 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 that language. 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: 1. The Inquest and Autopsy Report dated 13th February 2004. 2. Preparatory investigation report document number 2004/632EO entitled “Widening of the Investigation”. 3. Two expert reports dated 16th and 17th February 2004, reference numbers ELS-2004/464 and 2004/90 Chemical. 4. Three colour images of the deceased, one taken in life and two taken post mortem, when the deceased is apparently within a coffin. 5. An image of a G-3 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.” 78. On 13 January 2005 the applicants’ lawyer brought an action before the Supreme Military Administrative Court, seeking payment of pecuniary compensation on account of Cihan Tunç’s death. 79. Following the dismissal of the notice of claim on procedural grounds, a new claim was lodged on 9 September 2005. The applicants claimed 3,500 Turkish lira (TRY) in respect of pecuniary damage and TRY 3,000 in respect of non-pecuniary damage for each of the parents, and TRY 1,000 for each of the deceased’s seven brothers and sisters. 80. On 9 October 2006 the expert appointed by the Supreme Military Administrative Court to evaluate the pecuniary damage submitted his report. He estimated the damage at TRY 721 for the deceased’s father and TRY 8,779 for his mother. The parties did not challenge that evaluation. 81. On 10 January 2007 the court allowed the applicants’ claims in part. It noted that the death had been caused by careless handling of the service rifle. It considered that this implied a lack of sufficient training in handling weapons and negligence in the supervision and protection of conscripts. In consequence, it found that the death was partly imputable to negligence by the authorities. Having regard also to the existence of contributory negligence by the deceased, and pointing out that it was bound by the claim and could not rule ultra petita, the Supreme Military Administrative Court awarded the following sums: - TRY 3,500 in respect of pecuniary damage and TRY 3,000 in respect of non-pecuniary damage to the deceased’s mother; - TRY 400 in respect of pecuniary damage and TRY 1,000 in respect of non-pecuniary damage to the deceased’s father; - TRY 1,000 in respect of non-pecuniary damage to each of the deceased’s brothers and sisters. Those amounts bore late-payment interest, to be calculated from the date of the incident to the date of payment. 82. On 12 June 2007 the authorities made a payment of TRY 23,500 (approximately 13,200 euros (EUR) on that date) to the Bakırköy Enforcement Office, to which a request had been made by the applicants’ lawyer. 83. The applicants claim that they had been unaware of those proceedings before the Supreme Military Administrative Court until they were mentioned by the Government, and that no sum has been paid to them by their lawyer. 84. On 21 April 2004 the Mehmetçik Foundation, an emanation of the armed forces which was set up to support the families of soldiers who die in service, awarded 4,916,700,000 former Turkish lira (a little over 3,000 euros at that date) to the deceased man’s family in financial assistance.