TrustHLT/LaCour huggingface dataset:
AP2 (Applicant): That officer need not have been a lawyer and need not have been legally qualified.
AP2 (Applicant): They were appointed to the Court temporarily by their military superiors and continued to perform their other duties during their service.
AP2 (Applicant): As the Turkish Constitutional Court itself recognised in abolishing this set-up on 7 May 2009, the serving officer will have been mindful of the fact that they were still subject to military discipline and that their prospects for promotion and reappointment were being actively assessed throughout their time as a judge.
AP2 (Applicant): These military officers were therefore under the direct influence of their military superiors.
AP2 (Applicant): They would naturally have been reticent to give decisions contrary to their superiors' interests, as they would naturally have had an adverse effect on their own careers.
AP2 (Applicant): For these reasons, the Turkish Constitutional Court rightly concluded that Turkey's military courts could not be regarded as judicially independent due to the presence of the serving military officer on them.
AP2 (Applicant): Unfortunately, the investigation did not only lack independence but also cannot be regarded as comprehensive.
AP2 (Applicant): As well as the irregularities at the scene, serious flaws in the witness evidence were obtained.
AP2 (Applicant): Several important witnesses were never interviewed at all, including, for example, the doctor who pronounced Cihan dead, the soldier who took him to hospital, and the applicant who could have attested to his positive state of mind before his killing.
AP2 (Applicant): Furthermore, the investigators made no attempt to resolve the major inconsistencies between witness statements given by certain witnesses, including the conflicting accounts given by Cijak as to the position of the gun when he entered the tower.
AP2 (Applicant): The expert evidence was also superficial at best.
AP2 (Applicant): The autopsy report failed to itemize the damage given to Cihan's left lung or to properly consider the trajectory of the bullet.
AP2 (Applicant): This is perhaps no surprise given that the autopsy was performed by Lokman Ilmez, whose professionalism has been questioned by this Court in at least three other Turkish cases.
AP2 (Applicant): Likewise, the chemical and ballistics examinations were wrongly based on the prevailing assumption that Cihan had shot himself and therefore have limited evidential value.
AP2 (Applicant): And investigative resources were devoted to whether or not there could have been another explanation for the extremely strange upwards trajectory of the bullet.
AP2 (Applicant): But a common-sense approach shows that given the length of the gun and the fact that the shot entered his body from a short distance away, Cihan must have been holding the gun well over one metre away from the right side of his neck.
AP2 (Applicant): It would have required an extraordinary feat of contortion for Cihan to have pulled the trigger in order for the bullet to have exited his body through his back below his left shoulder blade before hitting a 2.3-metre high ceiling.
AP2 (Applicant): Cihan being shot by another person provides a much simpler and more compelling explanation for the bullet's trajectory.
AP2 (Applicant): However, this possibility does not appear to have been considered by the investigative team.
AP2 (Applicant): The investigation also failed to properly analyse whether the presence of waste products on the hands of Cijak were indicative of his firing the gun.
AP2 (Applicant): No comparative analysis was made of the residue on Cijak's hands compared to that on the hands of the other soldiers who had assisted in Cihan's first aid and transfer to hospital.
AP2 (Applicant): This was the bare minimum which was required to test the veracity of Cijak's account in circumstances where he had admitted that just prior to the shooting he had had a heated exchange with the deceased.
AP2 (Applicant): Mr President, the investigation into the death of Cihan was also not conducted sufficiently promptly.
AP2 (Applicant): The military prosecutor did not inspect the scene of the incident until nine months after Cihan's death.
AP2 (Applicant): As a result, crucial evidence was not obtained which may well have supported a finding of foul play or accidental killing by Cijak.
AP2 (Applicant): By the time this evidence was sought, forensic details which could disprove the theory of suicide or self-inflicted shooting no longer existed.
AP2 (Applicant): Finally, neither the public nor Cihan's family members were able to properly scrutinise either the original investigation, the subsequent widened investigation or the judicial reviews of both investigations.
AP2 (Applicant): Critical documents such as the autopsy report and photographs of the body were either unavailable or provided too late to be of assistance.
AP2 (Applicant): A request to visit the scene by a family member was denied and no explanation has ever been provided as to why there was insufficient evidence for a prosecution.
AP2 (Applicant): It is simply not good enough for a judicial body which is lacking in independence and impartiality from military organs to rule without reasons or explanation that an appeal has been refused and that the investigation will be closed.
AP2 (Applicant): Such an approach is not consistent with the high thresholds of public and family engagement with the investigative process which have been set down by this court.
AP2 (Applicant): Mr President, I will now turn to the issue of admissibility which was challenged by the Government in these proceedings for the very first time in February 2014, more than seven years after this case commenced.
AP2 (Applicant): Given the time that we have left, I will address this issue very briefly and may return to it if there is time in our opportunity to reply.
AP2 (Applicant): In essence, the Government argues that the applicants brought a remedy claim against the Ministry of Interior which was granted by the Supreme Military Administrative Court in 2007.
AP2 (Applicant): On that basis, it suggests that the applicants should be deprived of their victim status before this court.
AP2 (Applicant): This is vigorously opposed by the applicants.
AP2 (Applicant): The applicants themselves never received any compensation from the Ministry of Interior.
AP2 (Applicant): Prior to reading the Government's recent submissions, they never even knew that a negligence claim had been brought on their behalf.
AP2 (Applicant): The applicants have since tried to contact the Turkish lawyer who made the claim for them but have been unsuccessful in doing so.
AP2 (Applicant): However, even if the applicants had received compensation from the Administrative Court, we suggest that that would not deprive them of victim status in these proceedings.
AP2 (Applicant): This is for several reasons.
AP2 (Applicant): First, the Government should be stopped from raising the payment of compensation as a bar to admissibility at this very late stage of proceedings.
AP2 (Applicant): Second, the Administrative Court's judgment finds institutional negligence on the basis that Zihan was at fault for accidentally shooting himself.
AP2 (Applicant): They do not find that he was shot by another.
AP2 (Applicant): Third, in Echelon, Germany, this Court has made clear that compensation under domestic law may only result in the loss of victim status where the national authorities have expressly or in substance acknowledged that there has been a breach of the Convention.
AP2 (Applicant): Nowhere in the Administrative Court's judgment is there even a mention of the procedural component of Article 2, let alone a finding of its breach.
AP2 (Applicant): To conclude, Mr President, the Government's objections to admissibility, like their submissions on the merits, are ill-founded.
AP2 (Applicant): The unique circumstances of this case show that the initial investigation into Zihan's death, the widened investigation which followed, and the appellate judgment upholding the decision not to prosecute by the Military Court together amount to a violation of the procedural limb of Article 2 of the Convention.
AP2 (Applicant): The only just disposal of this case would therefore be a finding for the applicants.
Dean Spielmann (JudgeP): Thank you, Ms Butler. I call Mr Şener Dalyan.
GR1 (Government): Mr. President, members of the Grand Chamber, ladies and gentlemen, good morning.
GR1 (Government): In the present case, the applicants allege that the authorities failed to carry out an effective investigation into the circumstances surrounding the death of their son in the course of his military service, and they particularly argue that the investigation was not sufficiently independent.
GR1 (Government): The government's position regarding this allegation is, however, opposite.
GR1 (Government): We believe the investigation carried out was in full conformity with the standards set out in Article 2 of the Convention.
GR1 (Government): I'll begin to explain the reasons underlying our observations in a couple of minutes.
GR1 (Government): Before discussing the merits of the application, let me say a few words about the admissibility of the case, which was not examined by the Chamber, as it had not been brought to its attention by the applicants.
GR1 (Government): We have felt obliged to bring it to the consideration of the Grand Chamber, as it is of important importance in the context of the application.
GR1 (Government): Mr. President, on 13 January 2005, the applicants brought a full remedy action against the Minister
GR1 (Government): of Interior for the death of their son on the basis of objective liability of the Administration.
GR1 (Government): On 10 January 2007, the Supreme Military Administrative Court held the Administration responsible for the negligence in the training, education, supervision, and monitoring of the personnel.
GR1 (Government): The amount of compensation paid to the applicants as a result of this ruling was approximately 13,000 euros.
GR1 (Government): Necessary papers documenting the payment submitted to the Grand Chamber in annex to the government's observations.
GR1 (Government): A further 3,000 euros was also paid to the applicants by the Mehmetcik Foundation of the Turkish Armed Forces.
GR1 (Government): In the light of some of the recent judgments of the Court, we believe the applicants should be regarded as having lost their victim status upon the judgment of the Supreme Military Administrative Court.
GR1 (Government): We have referred to the Court's relevant case law in our written observations, which should also apply in the instant case.
GR1 (Government): While assessing the government's arguments in this regard, one should keep in mind that the responsibility of the authorities in the death of the applicant's son was clearly acknowledged by the Supreme Military Administrative Court.
GR1 (Government): Secondly, a sufficient and appropriate redress was afforded to the applicants.
GR1 (Government): Government therefore considers that the applicant's complaint is incompatible rationa personae with the provisions of the Convention.
GR1 (Government): Mr. President and distinguished members of the Grand Chamber, now I would like to turn
GR1 (Government): to the merits of the case.
GR1 (Government): In the first place, the government fully shares the conclusions of the Chamber that there has been no violation under the substance of Article 2 of the Convention.
GR1 (Government): As to the procedural aspect of Article 2, the Second Chamber accepted in its judgment of 25 June 2013 that the reasonable investigative steps had been taken by the authorities.
GR1 (Government): The Chamber, however, found a violation on the sole grant that the Military Court had not had the requisite independence in its capacity as the judicial body responsible for the final review of the investigation.
GR1 (Government): Accordingly, I wish to focus first on the question of whether the investigation in the present case met the requirements of the procedural aspect of Article 2 of the Convention.
GR1 (Government): Then I will come to the most important issue before the Grand Chamber.
GR1 (Government): Apart from the independence of the investigative authorities for an effective investigation, Article 2 of the Convention requires the following procedural obligations.
GR1 (Government): Firstly, the responsible investigative authorities must act ex officio and take all reasonable steps with a view to making an objective analysis of the evidence related to the events at stake.
GR1 (Government): Secondly, the investigation must be reasonably prompt and expeditious.
GR1 (Government): Thirdly, it must be accessible to the next of kin to secure their legitimate interests.
GR1 (Government): Lastly, the investigation should be capable of leading to the identification of those responsible and, where necessary, punishment of them.
GR1 (Government): Clearly examining the circumstances surrounding the unfortunate death of Jehan Tunj and the investigation process as a whole, the Chamber rightly came to the conclusion that the investigative authorities had taken adequate and reasonable steps as required by Article 2 of the Convention.
GR1 (Government): The Turkish Government completely agrees with the findings of the Chamber in this regard.
GR1 (Government): To demonstrate this, let me allow shortly to summarize these investigative steps taken by the authorities in the light of the Court's principles.
GR1 (Government): Mr. President, the incident took place on the 13th of February 2004, while Jehan Tunj
GR1 (Government): was performing his compulsory military service.
GR1 (Government): He was fatally injured at around 5.50 a.m. in the morning when he was being inside the
GR1 (Government): tower where his fellow soldier, Mehmet Sijak, had been on duty.
GR1 (Government): Then he was immediately taken to the hospital.
GR1 (Government): After having been informed by the hospital of the death, the military prosecutor launched the investigation ex officio.
GR1 (Government): The military prosecutor instructed the crime scene investigation team to be present at the hospital during the autopsy and at the incident scene to take requisite investigative measures.
GR1 (Government): Two separate teams arrived at the hospital and at the scene within the shortest period of time.
GR1 (Government): Under the supervision of the military prosecutor, a thorough post-mortem examination and autopsy were carried out.
GR1 (Government): The autopsy clearly established the cause of the death and detected the entry and exit holes on the body, as well as the probable firing range.
GR1 (Government): The autopsy report further noted that the absence of any bodily injuries caused by battery, physical coercion, or any sharp object.
GR1 (Government): That being so, the government rejects the allegations of the applicants about the alleged deficiencies in the autopsy as they are unsubstantiated and do not reflect the real situation.
GR1 (Government): At the beginning of the autopsy, the military prosecutor instructed the crime investigation team to take fingerprints and hand swabs, both from the deceased and Mehmet Sijak, who was seen as the initial suspect of the incident.
GR1 (Government): In addition, photographs of the body were taken by the team.
GR1 (Government): Although the applicants argue otherwise, photographs of the entry and exit holes on the body were also taken.
GR1 (Government): Following the autopsy, the prosecutor took the statements of Arslan Aykel and Mehmet Sijak, who came to the hospital in the same vehicle with Cihan Tunç.
GR1 (Government): Due to the long distance between Diyarbakir and Kocaköy district, and in order to secure evidence, the military prosecutor asked from the civilian Kocaköy public prosecutor to take urgent investigative steps and measures.
GR1 (Government): Accordingly, the crime scene investigation team carried out its examination under the supervision and orders of the civilian prosecutor.
GR1 (Government): At this point, the Turkish government to some extent acknowledges the applicants' arguments that the scene of the incident was not the same as at the time of its initial statute.
GR1 (Government): As claimed by the applicants, it is true that several soldiers went to the scene upon the gunshot and Cihan Tunç was given first aid.
GR1 (Government): He was carried to the dining hall by the soldiers.
GR1 (Government): However, the government shares the view of the Second Chamber that the requirement to render first aid to a seriously wounded person should outweigh the requirement of the scene of incident to be as the same as its initial condition.
GR1 (Government): This was the case in the present application.
GR1 (Government): In addition, it should be noted that although the place of the weapons was changed, they were secured and subjected to a thorough ballistic examination.
GR1 (Government): The civilian prosecutor took the statements of some witnesses at the scene.
GR1 (Government): On the 16th of February, he took statements of other two witnesses and then transmitted the file to the authorized military prosecutor.
GR1 (Government): After receiving the scene investigation report, the ballistic and chemical reports in February 2004, the military prosecutor rendered the decision of non-prosecution on the 30th of June 2004.
GR1 (Government): The prosecutor had regard to all the existing evidence and provided a detailed explanation as to how the incident had occurred.
GR1 (Government): He concluded that the incident had been an accidental one and that there had been no negligence and omission attributable to third persons.
GR1 (Government): Subsequently, additional investigative steps were taken in accordance with the order of the appellate court, which ordered the expansion of the investigation upon the objection of the applicants.
GR1 (Government): After carrying out an on-site scene investigation, including restructuring the incident with the assistance of the experts, once again the prosecutor came to the conclusion that the applicant's son must have accidentally fired his gun.
GR1 (Government): Based on the new information submitted by the prosecutor, the military court on this occasion rejected the applicant's objection to the non-prosecution decision on the 17th of December 2004, and thus the investigation ended.
GR1 (Government): Following facts demonstrate that the investigation was duly accessible to the applicants in accordance with the court's case law.
GR1 (Government): First of all, the decision of non-prosecution was served on the applicants and they could enjoy their right to objection effectively to that decision.
GR1 (Government): Furthermore, in the course of the investigation, the applicants could obtain necessary documents on several occasions upon their requests.
GR1 (Government): The fact that the prosecutor didn't take statements from the family members shouldn't be seen as a deficiency in the context of the present case as claimed by the applicants, because they couldn't have any substantial information as to how the incident had occurred.
GR1 (Government): Lastly, the investigative authorities considered all possibilities in the investigation.
GR1 (Government): Contrary to the applicants' allegations, they never acted on the basis of a predetermined presumption that the cause of the death was a self-inflicted accident.
GR1 (Government): Some of the steps clearly show that the prosecutors took into account the possible involvement of Mehmet Sijak in the death of Cihan Tunç from the very beginning of the investigation.
GR1 (Government): While taking the statements of Mehmet Sijak and other witnesses, they sought to identify the level of relationship between Cihan and Mehmet.
GR1 (Government): To this end, scientific examinations of the weapon and hand swabs of Mehmet Sijak were also carried out.
GR1 (Government): All in all, we believe the investigative authorities took all reasonable and appropriate measures and collected all necessary evidence to establish the exact circumstances of the death.
GR1 (Government): The minor deficiencies in some of the evidence, as argued by the applicants, cannot overshadow the effectiveness of the entire investigation carried out by the authorities.
GR1 (Government): Mr. President, I will now turn to the most important issue that the Grand Chamber needs
GR1 (Government): to deal with in the present case, which is the question of whether the investigation was sufficiently independent in the context of the procedural component of Article 2.
GR1 (Government): Unfortunately the Turkish government couldn't share the Chamber's findings in its judgment of 25 June 2013.
GR1 (Government): It is an established principle stemming from the numerous case law of the Court that for an effective investigation, the persons responsible for carrying out the investigation must be independent from those implicated in the events.
GR1 (Government): The main reference of the Chamber in holding the breach of Article 2 in the instant case seems to be the Court's Gürkan v. Turkey judgment of 3 July 2012.
GR1 (Government): The government underlines that it is the first judgment of the Court where it found the violation of Article 6 due to the composition of Turkish military courts.
GR1 (Government): The Court's approach to the independence of military courts in the previous judgment of Hakan Önem v. Turkey of 2004, however, was contrary to its approach followed in the
GR1 (Government): Gürkan case.
GR1 (Government): The Turkish government has never questioned the findings of the Court in the Gürkan judgment.
GR1 (Government): I would like to point out that even before the Gürkan judgment, upon the annulment of the relevant article by the Constitutional Court in 2009, Turkey amended its law on the composition and functioning of military courts in 30 June 2010.
GR1 (Government): Since then there has been no military officer sitting at the benches of the military courts.
GR1 (Government): It appears that the Court gave a particular weight to the Constitutional Court's decision in its Gürkan v. Turkey judgment.
GR1 (Government): Mr. President, in the government's opinion, Gürkan v. Turkey judgment does not apply
GR1 (Government): to the present case since the role of the military court was limited only to the examination of the lawfulness of the non-persecution decision.
GR1 (Government): This examination does not fall into the scope of determination of applicant's civil rights and obligations or of criminal charge against applicants in the meaning of Article 6.
GR1 (Government): The independence of military court in question should therefore be assessed from the standpoint of Article 2 of the Convention.
GR1 (Government): The main issue that needs to be clarified by the Grand Chamber in the instant case is whether or to what extent the presence of a military officer at the military court, which had a limited role, do affect the independence of the investigation as required by Article 2 of the European Convention.
GR1 (Government): Looking into the case law, the Court appears to have pursued a fully consistent approach on this matter.
GR1 (Government): According to the Court, a procedural obligation would be violated only if any deficiency in the proceedings negatively affects the entirety of the investigation in a way to impair the establishment of conditions of death.
GR1 (Government): The Court examined a similar issue in its Tanrıbiler v. Turkey judgment in 2000.
GR1 (Government): In this case, the Court stated that the administrative investigation conducted by bodies whose independence was open to doubt had weakened the effectiveness of the investigation.
GR1 (Government): Nevertheless, the Court concluded that the judicial investigation into the responsibility of the relevant officers met the requirements set out in Article 2 of the Convention.
GR1 (Government): While the Court followed the same approach in some of its judgments against Romania, the Second Chamber considered the matter in the present case differently without, in our opinion, providing sufficient and convincing argument.
GR1 (Government): Both in its Mantok v. Romania and Stefan v. Romania judgments of 2007 and 2011, respectively,