TrustHLT/LaCour huggingface dataset:
GR1 (Government): the Court clearly noted that the level of independence of an investigative organ must be assessed according to the particular circumstances of each case.
GR1 (Government): In view of the domestic legislation enforced at the material time, the Court stated that doubt may be casted upon the independence of the military prosecutors investigating the police officers.
GR1 (Government): Considering however the measures undertaken in the course of the investigation, it concluded in these cases that the investigations were in conformity with the requirements of Articles 2 and 3 of the Convention.
GR1 (Government): Let me bring your attention now to the existence of numerous inadmissibility decisions that the Court rendered in favor of Turkey.
GR1 (Government): The facts of those applications appear to resemble to that of the present case.
GR1 (Government): The applicants in those cases alleged the ineffectiveness of investigations on account of inter alia the presence of military officer at the military court.
GR1 (Government): The Court, however, having regard to the reasonable measures taken in the investigations, seems to have found these complaints manifestly ill-founded.
GR1 (Government): Without wishing to discuss here and now each and relevant case, I would just like to give a few examples of those inadmissibility decisions.
GR1 (Government): Sittikakayar v. Turkey, Seyfi Karam v. Turkey, and Hemet Recep Ergur and others v. Turkey
GR1 (Government): are only some of them that I can name here.
GR1 (Government): At this point, it is clear from the case law that the Court has not applied the independence requirement to the procedural component of Articles 2 and 3 of the Convention as strictly as applied under Article 6.
GR1 (Government): To hold otherwise in the instant case will inevitably amount to a fundamental change in the Court's approach.
GR1 (Government): Mr. President and Honorable Judges of the Grand Chamber, returning to the instant case,
GR1 (Government): the Turkish Government believes that there is no issue that has arisen in practice which will cast doubt on the independence and impartiality of the investigation of the military prosecutor's office.
GR1 (Government): The personnel in the criminal investigation team neither had any hierarchical connection with the officers of the relevant military unit and with other persons, including Mehmet Sijak, who was the initial suspect of the incident, nor were the investigation personnel the fellow colleagues of these persons.
GR1 (Government): I will particularly stress here that from the very beginning, the investigation was conducted by the military prosecutor, who was assisted at some points by the civilian prosecutor.
GR1 (Government): Moreover, the persons assigned for the investigation performed scientific proceedings, such as taking samples from the scene of the incident and performing the ballistic and chemical examination.
GR1 (Government): Because of the technical nature of these actions, it cannot be alleged that the investigation was not impartial.
GR1 (Government): To accept otherwise from the beginning would unacceptably restrict the prosecutor's capability to assign security personnel that has the requisite expertise in a particular case.
GR1 (Government): In addition, the Government underlines that the scope of the Diyarbakir Military Court's supervision over the decision of non-prosecution shouldn't be equated with that of the investigation, entirely carried out by the military prosecutor.
GR1 (Government): I would like to draw the Grand Chamber's attention to the fact that the military court examining the prosecutor's decision isn't the one under which the military prosecutor is serving, but the one located nearest to that court.
GR1 (Government): More importantly, the scope of the examination of the military court is limited to the lawfulness of the prosecutor's decision.
GR1 (Government): In the present case, while the investigation carried out by the prosecutor serving under the Diyarbakir Military Court of Land Forces Command, the military court that examined the objection was the Diyarbakir Military Court of Air Forces Command.
GR1 (Government): The military court accepted the first objection made by the applicants in the instant case.
GR1 (Government): With a view to examining the reliability of the conclusion reached as to how the unfortunate death of John Tunis had occurred, the military court, whose involvement is challenged by the applicants, even decided to expand the investigation.
GR1 (Government): It is therefore clear that the military court helped to increase effectiveness of the impugned proceedings rather than casting doubt on them.
GR1 (Government): Secondly, the military court gave its decision unanimously, which reveals that the military officer at the bench did not have any negative impact in the proceedings.
GR1 (Government): Taking into account the investigation process as a whole, the government considers that there exist no facts that will give rise to any hesitation on the efforts of the military prosecutor and military court to shed light on the incident.
GR1 (Government): Before concluding, Mr. President, I would like to touch upon the reference made by the
GR1 (Government): applicants in their written observations and in their pleadings to the report of the UN special rapporteur on extrajudicial summary or arbitrary executions, dated 18th of March 2013.
GR1 (Government): The government believes that this report cannot be a reference document for the present case because during his visit, the rapporteur didn't look into the administration of military justice system, although there is a minor part where he touches upon suicides in the military.
GR1 (Government): Particularly on the basis of his bilateral talks with the civil society.
GR1 (Government): In conclusion, Mr. President, I would like to reiterate that in the present case, all
GR1 (Government): the obligations stemming from the procedural component of Article 2 of the Convention were duly fulfilled.
GR1 (Government): In other words, a timely, speedy, complete, and proper investigation was conducted by the authorities into the death of Cihan Tunç.
GR1 (Government): In the light of the court's case law that I mentioned earlier, the presence of a military officer at the court that was in charge only of the examination of the objection against the non-prosecution decision at the end of a thorough investigation shouldn't be seen as having any negative impact on the independence and effectiveness of the entire investigation.
GR1 (Government): Therefore, we consider the investigation that was carried out in the instant case was sufficiently independent in the context of the requirements of Article 2 of the Convention.
GR1 (Government): The fundamental issue in this application that needs to be clarified by the Grand Chamber is the question of whether or to what extent the requirements of Article 6 as to the independence and impartiality of military tribunals impact the court's assessment regarding the independence of an investigation in the context of the procedural component of Article 2 of the Convention.
GR1 (Government): The position of the government in the light of the court's case law regarding this question differs from the positions of the Second Chamber and the applicants.
GR1 (Government): The notion of independence of the military tribunals as interpreted in the Gülkan's case shouldn't have the same meaning and weight when assessing the independence of the investigation in the instant application.
GR1 (Government): Instead, whether the composition of military courts has any negative impact over the effectiveness of the entire investigation should be taken into account.
GR1 (Government): Therefore, the government will be pleased to have the Grand Chamber clarify its case law on this matter.
GR1 (Government): I thank you very much for your attention.
Dean Spielmann (JudgeP): Thank you very much Mr. Dalyan.
Dean Spielmann (JudgeP): Judge Wojtyczek.
Krzysztof Wojtyczek (Judge): I have one question to both parties.
Krzysztof Wojtyczek (Judge): It concerns the Gendarmerie unit, which carried out the investigation under the prosecutor's supervision.
Krzysztof Wojtyczek (Judge): I would like to have some more information about the statute of this Gendarmerie investigative unit.
Krzysztof Wojtyczek (Judge): It's stated within the armed forces, and the relationship, the links between this investigative unit and the military unit, which guarded the industrial site belonging to this private oil company.
Krzysztof Wojtyczek (Judge): Were there any institutional links, any personal links?
Krzysztof Wojtyczek (Judge): And was there any joint command for both the investigative unit and the guarding unit?
Dean Spielmann (JudgeP): Thank you, Judge Karakaş.
Işıl Karakaş (Judge): Oui, merci, M. le Président.
Işıl Karakaş (Judge): J'ai des questions, surtout au gouvernement, tout d'abord.
Işıl Karakaş (Judge): À la suite de l'arrêt du 18 octobre 2009 de la Cour constitutionnelle, qui concerne l'aléation de certaines dispositions de la loi sur les juges militaires, après cette décision de la Cour constitutionnelle, quelles sont les normes depuis lors concernant les questions de l'imprépendance et l'impartialité des juges militaires, à part la présence d'un officier, ce n'est pas le cas d'un officier siégeant au sein du tribunal militaire.
Işıl Karakaş (Judge): C'est une autre décision.
Işıl Karakaş (Judge): Ma deuxième question concerne les procureurs militaires.
Işıl Karakaş (Judge): En ce qui concerne les procureurs militaires, quelles sont les normes légales et administratives à l'établissement de leur fichier de l'appréciation d'officier?
Işıl Karakaş (Judge): Cet fichier est établi par le supérieur hiérarchique.
Işıl Karakaş (Judge): Ensuite, je veux poser aussi trois questions concernant l'enquête.
Işıl Karakaş (Judge): Premièrement, est-ce que les procureurs militaires sont tenus d'informer officiellement les proches de la victime ou de leur avocat de l'ouverture, du déroulement et de la clôture d'une enquête pénale?
Işıl Karakaş (Judge): Et si c'est le cas, à quel moment précis et sur quelle base doivent-ils le faire?
Işıl Karakaş (Judge): Deuxièmement, toujours dans le même cadre, alors quelles sont les règles et les formalités concernant l'accès aux pièces de dossier d'une telle enquête par les proches de la victime ou bien sûr de leur avocat?
Işıl Karakaş (Judge): Est-ce qu'il y a des situations où pareil accès est restreint ou interdit?
Işıl Karakaş (Judge): Et si c'est le cas, pour quels motifs et sur quelle base légal?
Işıl Karakaş (Judge): Et troisièmement, cette question concerne aussi les requérants.
Işıl Karakaş (Judge): Est-ce que pendant une enquête en cours, les proches de la victime ou leur avocat sont habilités à participer efficacement, par exemple, en procédant à la réinterrogation des témoins ou à l'examen des éléments matériels ou demandant des expertises ou contre-expertises pertinentes?
Işıl Karakaş (Judge): Voilà, ce sont mes questions au parties.
Dean Spielmann (JudgeP): Merci beaucoup le juge López Guerra.
Luis López Guerra (Judge): My question refers to the one posed by Judge Karakaş.
Luis López Guerra (Judge): As I understand, the Constitutional Court ruling of 18th October 2009 established that the lack of independence of judges in military courts affected all the judges in these courts as they depended for their promotion to the favorable opinions and report of superior military officers or judges.
Luis López Guerra (Judge): It seems also that the prosecutors at the time were subject to the same requisites for promotion as military judges.
Luis López Guerra (Judge): However, in this Constitutional Court ruling, there was not a direct pronouncement on the independence of prosecutors.
Luis López Guerra (Judge): However, later, a law of 12 May 2012 suppressed the requisites for promotion of favorable opinion reports both for judges and for prosecutors.
Luis López Guerra (Judge): Then my question is for both parties, because I think it would be of interest, did the ruling of the Constitutional Court of October 2009 imply not only the lack of independence of military judges, but also, taking into account the posterior legislation, if implied also the lack of independence of military prosecutors?
Luis López Guerra (Judge): I would appreciate some comments on this point.
Dean Spielmann (JudgeP): Merci beaucoup, Juge De Gaetano.
Vincent A. De Gaetano (Judge): Thank you. Just a minor point of clarification, if I could ask counsel for the applicants.
Vincent A. De Gaetano (Judge): In connection with this application which was brought before the Supreme Military Administrative Court, is it the applicant's contention, if I understood correctly, that this application for a remedy was brought without their knowledge by someone else? If I understood the submission
Vincent A. De Gaetano (Judge): by Ms. Butler correctly, or has any follow-up, have the applicants followed this up to see
Vincent A. De Gaetano (Judge): what actually happened in this particular instance? I would welcome some clarification
Vincent A. De Gaetano (Judge): on this point. This, of course, relates to the question of admissibility. Thank you.
Dean Spielmann (JudgeP): Thank you, Judge Spano
Robert Spano (Judge): I have one question to the applicants.
Robert Spano (Judge): It's a question on the clarification of the scope of their legal arguments.
Robert Spano (Judge): They say on paragraph 16 in their observations, the Grand Chamber, and I quote, should look to the standards associated with Article VI in order to judge the sufficiency of the investigation when considering an alleged violation of the procedural component of Article II.
Robert Spano (Judge): I want to ask, does the applicant argue that the standards that you refer to, are they both standards as regards to what we can call formal or regulatory independence?
Robert Spano (Judge): Or are they also or mainly dealing with the criteria of impartiality?
Robert Spano (Judge): That's the first one.
Robert Spano (Judge): Are the applicants also here inviting the court to apply these standards associated with Article VI only in cases where there is a possibility of judicial review of investigatory measures in the member states, which is not always the case?
Robert Spano (Judge): Or is this argument of a general application?
Robert Spano (Judge): So then these independence and impartiality requirements would be directed at investigatory authorities, not of a judicial nature.
Robert Spano (Judge): And lastly, is the applicant's argument limited to the military context?
Robert Spano (Judge): Or is it an argument that has general application in all instances where the procedural component is triggered by a death in the member states?
Dean Spielmann (JudgeP): Thank you. Thank you very much.
Dean Spielmann (JudgeP): No other questions.
Dean Spielmann (JudgeP): The court will now rise for 20 minutes, following which the parties will return for a second round of short pleadings to respond to the submissions in the first round and to the judges' questions.
Dean Spielmann (JudgeP): Please be seated, the hearing is resumed and I call Mr. Muller.
AP1 (Applicant): Mr. President, if I can take the questions in the order they came, save for the question
AP1 (Applicant): from the Lerner judge from Malta.
AP1 (Applicant): As regard the question from the judge from Poland, I will leave it to the government to provide the information concerning the status of gendarmerie units.
AP1 (Applicant): We are unclear exactly as to their status and I don't wish to speculate.
AP1 (Applicant): As regards the series of questions from the judge from Turkey, first of all, if I can combine it with an answer to the Lerner judge from Spain concerning the 2009 Turkish constitutional rulings and whether or not that judgment implied not only a lack of independence in relation to the military officer but also military prosecutors, I can perhaps do no better than to read from the English translation that we have of that ruling and obviously we can offer it to the court if the court is not in possession of it.
AP1 (Applicant): It held, and I quote, it is not possible to think that the military judge is going to act independently, his feeling and opinion that would have negative records, after his evaluation based on rank, promotion, seniority and progress, other than the conventional criteria expected of judges, the ability to cooperate and work well as a team, persuasion, training, energy, creativity, leadership and command ship and other similar criterias.
AP1 (Applicant): When the judge makes a decision, he must be independent, the presence of anything which may alter, influence his decision is sufficient.
AP1 (Applicant): Even if the presence of these do not affect the decision that is being made, it still does not mean that the judge is acting independent.
AP1 (Applicant): The presence of this threat is alone sufficient to undermine independence.
AP1 (Applicant): And I emphasize this, this is exactly why judges and the ruling says and prosecutors should be kept away from any form of influence or threats of promotion.
AP1 (Applicant): Being subject to the same criteria as the employees of the executive function in terms of record, appointment, promotion and progression in the profession may prevent military judges to give their decisions in clear conscience and it will make them fall into the thoughts incompatible with justice.
AP1 (Applicant): And to go on, there is a further reference where the court says this, one of the ways to guarantee the independency of the judges and prosecutors will show itself in the assignments.
AP1 (Applicant): By whom and how is assignment is done within the profession is a measurement which establishes whether judges and prosecutors thereby the courts are independent.
AP1 (Applicant): So we submit that that constitutional ruling plainly had in mind the position of military prosecutors as well and applied the same standards to them.
AP1 (Applicant): The learned judge from Turkey asked about the status of the law concerning judges and prosecutors following the constitutional ruling.
AP1 (Applicant): We would say that it is clear that the constitutional ruling and then the legislative annulments annulled the military judge arrangement not simply for the purposes of Article 6 but completely.
AP1 (Applicant): And so therefore the position of Turkish domestic law is clear that that arrangement is an anathema to the concept of an independent and impartial judiciary.
AP1 (Applicant): It follows as night follows day that that must apply across the board and therefore applies in relation to Article 2 and Article 6.
AP1 (Applicant): There is, for example, no caveat in relation to the fact that this arrangement continues for the purposes of, if you like, judicial reviews concerning deaths in military service.
AP1 (Applicant): So we submit that to hold otherwise would be for this court to impose a lower standard of independence and impartiality than is the case already in Turkey.
AP1 (Applicant): Now while that might be permissible if that didn't contravene the jurisprudence of this court it would be wholly undesirable now that the domestic courts and indeed the legislature have made their position clear in Turkey which we say is wholly in accordance with the standards expected within Europe.
AP1 (Applicant): Just dealing with the Turkish judge's third question because I think the other two questions relate to the government concerning victims' rights.
AP1 (Applicant): Even if the law had offered protections concerning the ability of victims to cross-examine witnesses during the course of an investigation or to call expert evidence it certainly wasn't offered in this case and that is the point that we need to rely upon.
AP1 (Applicant): And just dealing with Melanie Friend's point about the minor deficiencies of the investigation we would say in this respect that had we been given the opportunity to cross-examine or to provide expert evidence then we would have provided the expert evidence we did later on in the context of these proceedings namely an autopsy report which drew attention to very worrying deficiencies in the original autopsy.
AP1 (Applicant): Not least the fact also that not only were the clothes not examined in relation to the autopsy examination but every single piece of forensic evidence that could have pointed in the direction of a deliberate killing was not followed up.
AP1 (Applicant): Now I asked my son for example what would he have done in these circumstances being a minor detective sleuth.
AP1 (Applicant): Well he said he would have checked the fingerprints on the gun.
AP1 (Applicant): He would have checked the fingerprints on the cartridges.
AP1 (Applicant): And think about it for a minute.
AP1 (Applicant): We have a situation here where actually the final review says that he shot himself and in the most extraordinary position because in some senses he was trying to use the gun as a way of getting up.
AP1 (Applicant): Well how does that account for two other cartridges on the floor?
AP1 (Applicant): There is no explanation for that.
AP1 (Applicant): So therefore had we had the opportunity, had the victims' relatives had the opportunity to make representations during the course of this investigation particularly in relation to the forensics, particularly in relation to the lack of fingerprints and analysis of the crime scene then it certainly would have done so.
AP1 (Applicant): Particularly in relation to the learned judge's questions from Iceland, yes we say that our submissions concerning Article 6 and its relevance for Article 2 relate not simply to the formal regulatory independence jurisprudence but also to subjective and objective impartiality.
AP1 (Applicant): That must be the case.
AP1 (Applicant): But we do not have to go so far as to turn around and speculate as to whether this should be applied beyond that of judicial review.
AP1 (Applicant): This is a case concerning judicial review.
AP1 (Applicant): And I don't need to go any further than to simply say that it applies in this case.
AP1 (Applicant): Whether others want to speculate whether it has a wider remit is a matter for them.
AP1 (Applicant): I suggest it's not a matter for us and it may not be a matter for this Court unless it wants to set out more general standards.
AP1 (Applicant): And so forgive me if I don't specifically answer that question because it's not necessary in the context of the submissions that we make.
AP1 (Applicant): And if I may, I just turn to Ms Butler to deal with the position in respect of admissibility.
AP2 (Applicant): Mr. President, to clarify in relation to the question
AP2 (Applicant): by Judge Gaetano, although the applicants did give a general power of attorney to a Turkish lawyer to pursue domestic remedies on their behalf, they personally had no knowledge of this negligence claim being brought.
AP2 (Applicant): We've sought express clarification on that point from the applicants over the break.
AP2 (Applicant): Now they accept that their father, Mustafa Tang, who sadly passed away in 2006, was principally dealing with their Turkish lawyer prior to his death.
AP2 (Applicant): And so it is possible that he knew of this claim being made.
AP2 (Applicant): But what is in fact certain is that nobody else in the family knew of the claim being made, and certainly no family member has received any compensation from the Ministry of Interior.
AP2 (Applicant): Now the family did receive a one-off payment of approximately 5,000 Turkish lira in 2004.
AP2 (Applicant): That was outlined by the government, and that was a death benefit from the Memekcik Foundation.
AP2 (Applicant): But that payment has not linked at all to the relative's cause of death.
AP2 (Applicant): It's merely a payment from a charitable body, which was set up to provide economic support to families of soldiers who were killed during their military service.
AP2 (Applicant): Now although the government mentioned this charitable payment in their pleadings, they don't appear to argue that that particular donation deprives the applicants of their victim status.