TrustHLT/LaCour huggingface dataset:
GR2 (Government): As my colleague mentioned, the question that was that we responded earlier, if the Court requires further explanations, we, of course, are ready to submit them in writing. But at
GR2 (Government): this stage, I believe we have presented all our arguments, and I thank you for your attention.
Nicolas Bratza (JudgeP): The court will now deliberate.
Nicolas Bratza (JudgeP): The judgment of the court will be delivered later and the parties will be informed of the date of delivery.
Nicolas Bratza (JudgeP): I declare the hearing in the case of X against Latvia closed.
Dean Spielmann (JudgeP): I declare open the public hearing on the merits in the case of Mustafa Tunç and Fecire Tunç against Turkey.
Dean Spielmann (JudgeP): The application was lodged with the court on the 24th of June 2005 under Article 34 of the Convention by two Turkish nationals, Mr. Mustafa Tunç
Dean Spielmann (JudgeP): and Mrs. Fecire Tunç.
Dean Spielmann (JudgeP): The applicant, Mustafa Tunç, died on the 9th of February 2006.
Dean Spielmann (JudgeP): His son, Yüksel Tunç, informed the court by a letter of the 10th of March 2006 that as the deceased's hair, he intended to pursue the application before the court.
Dean Spielmann (JudgeP): The application was allocated to the second section of the court, pursuant to Rule 52, Paragraph 1 of the Rules of Court.
Dean Spielmann (JudgeP): On the 25th of June 2013, a chamber of the second section delivered its judgment on the admissibility and merits of the case.
Dean Spielmann (JudgeP): On the 25th of September 2013, the government requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention.
Dean Spielmann (JudgeP): And the panel of the Grand Chamber accepted the request on the 4th of November 2013.
Dean Spielmann (JudgeP): The government represented by Mr. Şener Dalyan,
Dean Spielmann (JudgeP): head of the Human Rights Department at the Ministry of Justice Council, by Ms. Nurdan Okur, Director General for International Law
Dean Spielmann (JudgeP): and Foreign Affairs at the Ministry of Justice, Mr. Mehmet Öncü, Mr. Okan Taşdelen, and Ms. Nazlı Bulut
Dean Spielmann (JudgeP): from the Ministry of Justice, by Colonel Hüseyin Çeken and Colonel Levent Tiftik from the Ministry of Defense, as well as by Ms. Ayşen Emüler from the Ministry of Foreign
Dean Spielmann (JudgeP): Affairs Advisors.
Dean Spielmann (JudgeP): Ms. Catriona Vine, and Ms. Michelle Butler,
Dean Spielmann (JudgeP): a counsel assisted by Mr. Kerim Yildiz and Ms. Saniye Karakaş,
Dean Spielmann (JudgeP): advisors.
Dean Spielmann (JudgeP): The applicant, Yüksel Tunç, and his brother, Mehmet Tunç, are also present.
Dean Spielmann (JudgeP): I would also like to welcome a delegation of Russian judges who are on a study visit to the court and attend the hearing today.
Dean Spielmann (JudgeP): Having consulted the representatives of the parties, I have determined the order of addresses as follows.
Dean Spielmann (JudgeP): Mr. Muller QC and Ms. Michelle Butler for the applicants
Dean Spielmann (JudgeP): will speak first, and then Ms. Şener Dalyan for the government.
Dean Spielmann (JudgeP): I would explain that in addition to interpreting in the two official languages of the court, English and French, interpreting into Russian has been authorized for the benefit of the group of judges from Russia.
Dean Spielmann (JudgeP): I call Mr. Mark Muller QC.
AP1 (Applicant): Mr. President, I will address you on the law and the broader implications of this case,
AP1 (Applicant): while Ms. Butler will address you in more detail on evidence and admissibility.
AP1 (Applicant): But before I do so, let me say a few words about how we put our case and what we say is agreed and not agreed.
AP1 (Applicant): Mr. President, it is common ground that at 5.50 a.m. on the morning of 13 February 2005,
AP1 (Applicant): my client, Cihan Tunç, a postgraduate engineer, was shot in the neck five and a half days after being posted as a conscript to a remote gendarmerie station in southeast Turkey.
AP1 (Applicant): He was just 21 years of age and, by all accounts, was a happy young man with a loving family and a great future ahead of him.
AP1 (Applicant): In its observations, the government accepts, and I quote, the entire content of the file shows that Cihan Tunç, during his integration in the military service until 13 February 2004, presented a normal behavior.
AP1 (Applicant): It is therefore agreed between the parties that there is no evidence of a propensity to commit suicide.
AP1 (Applicant): It follows that Cihan was either murdered or killed accidentally.
AP1 (Applicant): Yet just two or three hours after Cihan was killed, his family was officially informed by the district gendarme commander that he had committed suicide.
AP1 (Applicant): This before the military prosecutor had even begun his forensic examination.
AP1 (Applicant): On any view, this initial finding was premature, evidentially unsupported, and based upon a cursory inspection lacking any vigor.
AP1 (Applicant): But more importantly, it tainted the nature of the later investigation, both substantively and in terms of perceptions concerning its independence, not least because the commander went on to take evidence himself.
AP1 (Applicant): More disturbingly, a few hours after his death, Cihan was sent back to his grieving parents cargo style, without military honors or the Turkish flag on his coffin.
AP1 (Applicant): No explanation has ever been offered for this conduct, but it is perhaps not without import that Cihan was from the Alevi sect and occurred from Tangelli, a place synonymous with Kurdish resistance movement.
AP1 (Applicant): I don't need to tell this court about the treatment of Kurds and Alevis in Turkey.
AP1 (Applicant): Did his ethnicity have some bearing on the commander's actions and the subsequent investigation?
AP1 (Applicant): Due to its limited nature, we shall never know.
AP1 (Applicant): What we do know, however, is that since 1999, there has been an increasing number of deaths of young men in suspicious circumstances whilst carrying out military service.
AP1 (Applicant): Internet searches reveal more than 37 in 2013 alone.
AP1 (Applicant): In many cases, the deceased were shot while making plans for the future and or had felt threats from fellow conscripts.
AP1 (Applicant): Such cases also featured irregularities in autopsies and shootings that were not typical of self-inflicted injuries.
AP1 (Applicant): Yet despite these evidential consistencies, the official explanation was almost always suicide or self-inflicted incident.
AP1 (Applicant): Many were Kurds.
AP1 (Applicant): The existence of this phenomenon was recognized by the UN Special Rapporteur on Extradjudicial Summary and Arbitrary Executions, Christopher Haynes, in his 2013 report following his mission to Turkey.
AP1 (Applicant): He expressed concern in relation to 45 apparent suicides by soldiers and law enforcement officials in 2012, where he determined that the pronouncement of suicide may have been falsified or forced.
AP1 (Applicant): In his expert view, and I quote, formal investigations were either never brought or else quickly stalled in nearly all cases and did not result in the identification of perpetrators or subsequent prosecution.
AP1 (Applicant): Because investigations were conducted in a closed manner within the police or military's internal justice system, it is impossible for families and civil society to know whether these are in fact cases of unlawful killing and to ensure accountability.
AP1 (Applicant): In some cases, they do not even know whether a full and impartial investigation was conducted.
AP1 (Applicant): This phenomenon should have put the military prosecutor in this case on notice to ensure that no stone was left unturned when determining whether Cihan was murdered or accidentally killed.
AP1 (Applicant): But it did not.
AP1 (Applicant): The investigation proceeded on the operating assumption that Cihan was accidentally shot.
AP1 (Applicant): A fingerprint analysis of the weapon and discarded bullets and of Cekak was never carried out.
AP1 (Applicant): We say the military prosecutor, who was assisted by investigators from the Jondam station involved, did not take all the necessary steps in order to identify the person or persons responsible.
AP1 (Applicant): That this is so is in fact an agreed fact between the parties.
AP1 (Applicant): Because on 14 October 2004, the Diyarbakir military court held the investigation to be inadequate as it failed to effectively explore inferences implicating Mehmet Cicek.
AP1 (Applicant): Mr President, these findings have never been overturned.
AP1 (Applicant): Thus, despite the tenor of the second chamber's judgment, it is an agreed fact that the initial investigation was not executed effectively.
AP1 (Applicant): The real bone of contention concerns the quality of the review that followed that domestic ruling.
AP1 (Applicant): We say that review was hopelessly compromised by the early investigation.
AP1 (Applicant): The failure to preserve the crime scene, conduct fingerprint analysis on the weapon used, or examine the deceased's clothing while conducting an autopsy meant any murder-manslaughter theory could not be properly tested later.
AP1 (Applicant): No amount of reenactment at the scene could save the later review from the flaws of the first investigation as by this time the crime scene had altered, the swab samples compromised, and 13 out of 15 witnesses had left the military service.
AP1 (Applicant): As the court jurisprudence makes clear, an investigation will be considered ineffective where crucial forensic evidence or the crime scene has not been preserved or sealed.
AP1 (Applicant): The review concluded the available evidence was consistent with an accidental shooting.
AP1 (Applicant): That is unsurprising.
AP1 (Applicant): It could do little else since it had nothing to forensically work with.
AP1 (Applicant): The fact remains, however, that inferences of foul play existed at the outset of the investigation which was never properly explored.
AP1 (Applicant): As a result, vital evidence was lost or not secured or tested, thereby conveniently leaving evidence consistent with a finding of accidental death.
AP1 (Applicant): Whether this was done by design or thought makes little difference.
AP1 (Applicant): Our complaint, in a nutshell, is not that there was not a prompt investigation of circumstances of the death that could possibly support a finding of accidental death.
AP1 (Applicant): It is that there was not a corresponding effective investigation into the possibility of foul play or of an accidental killing by Mehmet Sıçak.
AP1 (Applicant): That the operating assumption of the investigation was predicated upon a self-inflicted shooting is exemplified by the opening question posed by the district gendarmerie commander, tell us what you know regarding Ceyhan Cunç who shot himself.
AP1 (Applicant): Even then, one fact remains incontrovertible.
AP1 (Applicant): The review by the military court was heard by a three-member panel which included a serving officer who remained subject to military discipline.
AP1 (Applicant): That officer's independence and impartiality was irreparably compromised for the reasons set out by the second chamber.
AP1 (Applicant): Mr. President, we say that the lack of an independent investigation into the death of
AP1 (Applicant): Ceyhan is reflective of a wider endemic problem in Turkey where inadequate investigations which are wholly lacking in independence and impartiality are routinely carried out where conscripts have died in suspicious circumstances.
AP1 (Applicant): There is a widespread culture of impunity among military officials, a failure of accountability for killings perpetrated by state actors, and a lack of effectiveness and impartiality in the Turkish judicial system at the time.
AP1 (Applicant): One need look no further than to the protests at the moment concerning an 11-year-old Alevi boy resulting from the Gezi protests to see what happens when impunity is allowed to reign supreme.
AP1 (Applicant): But to be clear, the strict adherence to Article 2 goes way beyond the shores of Turkey.
AP1 (Applicant): In the United Kingdom, my own country, families have fought long and hard to reopen inquiries concerning deaths of loved ones in suspicious circumstances or where state agents acted unlawfully or owed a higher duty of care.
AP1 (Applicant): Hillsborough, Bloody Sunday, the Iraq War inquiries, and the deep-cut barrack inquiries are just four examples.
AP1 (Applicant): That is why this Court cannot permit impunity to thrive within the convention machinery.
AP1 (Applicant): It is duty-bound to ensure that states conduct effective and independent investigations of deaths in which state agents may be implicated, and above all to ensure the accountability that is so critical to the maintenance of the European public order.
AP1 (Applicant): It is why this case is a paradigm case.
AP1 (Applicant): Turning quickly to the law, Article 2 imposes a procedural obligation on Member States to initiate an effective public investigation, and I quote, by an independent official body, into any death which it appears that state agents of states may be implicated.
AP1 (Applicant): It is essential in any society holding itself out, complying with the rule of law, to ensure full facts are brought to light, culpable and discreditable conduct is exposed or brought to public justice, suspicion of deliberate wrongdoing, if unjustified, is allayed, and dangerous practices and procedures are rectified.
AP1 (Applicant): The Court requires that any investigation be sufficiently independent from those who are implicated in the events under investigation, not only in terms of lack of hierarchical or institutional connection, but also practical independence.
AP1 (Applicant): That did not happen here.
AP1 (Applicant): Callis v. Turkey makes clear investigations should not be carried out, and I quote, by
AP1 (Applicant): members of the armed forces into the actions of other members of the same armed forces, it is the same body to which those implicated in the events belong.
AP1 (Applicant): The Romanian case is established that it is impermissible for investigations to be undertaken and discontinued by military officials belonging to the military structure who are answerable to military discipline where those investigations concern the actions of other serving officers.
AP1 (Applicant): It is not a question of analysing the chain of command of a unit, but rather whether those concerned with the investigation and those implicated in the events are active service personnel who are subject to military discipline.
AP1 (Applicant): Shevchenko v. Ukraine.
AP1 (Applicant): That is why the Second Chamber was right to apply Gherkin.
AP1 (Applicant): A military court determining criminal charges cannot be regarded as independent and impartial within the meaning of Article 6 when one of its judges is insufficiently independent of its military superiors.
AP1 (Applicant): Now there are two aspects to the question of impartiality.
AP1 (Applicant): The tribunal has to be subjectively free of personal prejudice or bias, but also impartial from an objective viewpoint in that it has to offer sufficient guarantees to exclude any legitimate doubt in that respect.
AP1 (Applicant): And in that sense, I raise the issue of the phenomenon that I described earlier about deaths in military service.
AP1 (Applicant): In this case, the military officer who acted as a judge remained in the service of the army, was subject to military discipline, and was appointed as a judge by a hierarchical superior.
AP1 (Applicant): He did not enjoy the same constitutional safeguards provided to other two military judges and cannot therefore be considered to have been independent or impartial.
AP1 (Applicant): And I look forward to my learned friends arguing why in actual fact it is not unconstitutional here, when in actual fact the constitutional court in Turkey has already ruled this basic arrangement to be unconstitutional in the domestic arena.
AP1 (Applicant): We say that even if the procedural protections in Article 6 are not directly applicable, the Grand Chamber should look to the standards associated with 6 when judging the sufficiency of the investigations for the reasons canvassed in Bobbins v. United Kingdom.
AP1 (Applicant): Let me just give you five reasons.
AP1 (Applicant): First, the sufficiency of the domestic inquiry into violations of Article 2 is itself an aspect of the state's obligations under Article 2.
AP1 (Applicant): Second, fair trial principles have developed not only to promote a perception of sufficient fairness, but also to promote the highest quality of forensic inquiry, which is crucial in this case.
AP1 (Applicant): Third, the court has rightly become consistently more concerned with the increased sensitivity of the public to the fair administration of justice, as did the constitutional court in Turkey.
AP1 (Applicant): Fourth, it is incongruous that standards envisaged under Article 6 in relation to a fair trial should be more exacting than standards required for a full and effective inquiry that concerns a deprivation of the right to life.
AP1 (Applicant): Fifth, this court has laid particular emphasis on the fact that stringent inquiries into the deprivation of life were not only central to Article 2, but also the wider obligation of Article 1.
AP1 (Applicant): Finally, the government's argument that Gherkan is not applicable to the present case, on the basis that this case related only to a decision not to prosecute rather than a criminal trial, amounts to a legal error.
AP1 (Applicant): This court has very clearly stated that when considering a charge for the purposes of Article 6, its protections may apply to other measures prior to the laying of formal charges, as long as those measures carry implications of such an allegation and would substantially affect the situation of the suspect or were decisive for the determination of a criminal charge within the meaning of Article 6.
AP1 (Applicant): Applying this reason, it would be absurd for a decision to stop proceedings to not attract the protective safeguards concerning independence.
AP1 (Applicant): Now, I turn to my lawyer friend, Ms Butler, to address you further on the evidence and proceedings.
Dean Spielmann (JudgeP): Thank you Mr. Muller. I give the floor to Ms. Butler.
AP2 (Applicant): Mr. President, it's the applicant's case that the investigation into the death of Jihan
AP2 (Applicant): Tunc was not sufficiently independent and was in fact irretrievably flawed from the outset.
AP2 (Applicant): This is because members of the gendarmerie itself undertook all of the critical first steps in the investigation.
AP2 (Applicant): Almost immediately after Jihan's shooting at 5.50am, his own line commanders undertook
AP2 (Applicant): a brief investigation of the scene.
AP2 (Applicant): The gendarmerie investigation team from Dierbekeer only arrived at 9am to draw sketches and take photographs and video footage.
AP2 (Applicant): However by that time, critical decisions had already been made as to the cause of death.
AP2 (Applicant): Before the investigative team could even start their investigation, Jihan's division commander phoned his brother, informing him that Jihan had committed suicide.
AP2 (Applicant): Just after that, and prior to a proper ballistics examination being undertaken, it was decided that Jihan's gun was the one which had been fired, rather than the gun belonging to Mermak Sijak.
AP2 (Applicant): This was another fundamental error, as it is the applicant's case that given the circumstances of the shooting, Sijak ought to have been regarded as the main suspect in the case.
AP2 (Applicant): However, even at that very early stage of the investigation, several hours before the public prosecutor's investigative team arrived on site, there was already a predetermined mindset amongst the investigators that the only possible explanation was that Jihan had shot himself.
AP2 (Applicant): Indeed by the time the public prosecutor's team arrived, grave errors had taken place.
AP2 (Applicant): No one had forensically sealed the scene.
AP2 (Applicant): Crucial evidence, including both weapons and the body, had been moved.
AP2 (Applicant): The main suspect in the case had attended the autopsy.
AP2 (Applicant): Members of the gendarmerie had conducted significant witness interviews.
AP2 (Applicant): And gendarmerie officers had taken away the deceased's clothes before the coroner could even view the body.
AP2 (Applicant): Even once the case was taken over by the military prosecutor, he relied heavily on information provided by the gendarmerie personnel who were involved in the incident.
AP2 (Applicant): Most worryingly, this involved placing principal reliance upon Sijak's account.
AP2 (Applicant): This approach is consistent with what the UN special rapporteur has described as the deferential relationship of the military prosecutor to his fellow armed forces personnel.
AP2 (Applicant): It is yet another example of the widespread lack of political will to hold state officials accountable in Turkey, which has been recognized by international observers.
AP2 (Applicant): This is unsurprising given that military prosecutors in Turkey are structurally a part of the military courts and are therefore dependent upon the Turkish Ministry of Defense.
AP2 (Applicant): Despite their theoretical independence in Article 145 of the Turkish Constitution, military prosecutors work on behalf of the ministry and are hierarchically related both to the executive and to the military.
AP2 (Applicant): Although the Diyarbakir military court initially upheld the applicant's appeal against the decision to close the investigation, the applicants submit that this fact alone cannot be regarded as proof of the independent and impartial nature of that judicial body.
AP2 (Applicant): Given the manifest inadequacy of that initial investigation, a refusal to reopen it would have been not only legally wrong but perverse.
AP2 (Applicant): The court rightly ordered the case to be reopened but wrongly permitted the very same military prosecutor who had led the flawed investigation to conduct the widened investigation.
AP2 (Applicant): This error was compounded by the fact that the widened investigation consisted merely of a reconstruction of the bullet's trajectory at the scene, which by then had been fundamentally altered.
AP2 (Applicant): To add insult to injury, the reports of this widened investigation from 24 November 2008 to 8 December 2004 can at best be characterized as sparse.
AP2 (Applicant): They make no proper attempt to analyze the fundamental inconsistencies in the forensic and witness evidence or to conduct the wholesale review of the entire investigation, which by then was so desperately warranted.
AP2 (Applicant): The inadequacies of the widened investigation were then brushed under the carpet by the appellate decision of the Diyarbakir military court.
AP2 (Applicant): Its 17 December 2004 decision was also manifestly inadequate.
AP2 (Applicant): Its a mere two-page document comprised mostly of procedural formalities.
AP2 (Applicant): Its conclusion, that there was insufficient evidence for a public prosecution, is set out in one sentence and is entirely unsupported by any analysis of the evidence or any reasoning at all as to why the evidence which was gathered was insufficient for a prosecution.
AP2 (Applicant): The only hint as to what might be the basis for the Court's decision is a reference to the statement of the military prosecutor dated 17 December 2004, in which it is opined that the appeal should be refused.
AP2 (Applicant): But that statement has never been provided to the applicants, and nor does it appear in the materials relied upon by the Government before this Court.
AP2 (Applicant): Even if one puts the substantive inadequacies of the investigation and the appeal procedure to one side, it is in fact agreed between the parties that in December 2004, Turkish military courts were comprised of only two independent judges, as the third judge was a serving military officer.