CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 14 avril 2015

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TURKEY   (Application no. 24014/05)                   JUDGMENT         STRASBOURG   14 April 2015         This judgment is final but may be subject to editorial revision. In the case of Mustafa Tunç and Fecire Tunç v. Turkey, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Dean Spielmann, President   Josep Casadevall   Mark Villiger   Isabelle Berro   Işıl Karakaş   Ineta Ziemele   Luis López Guerra   Mirjana Lazarova Trajkovska   Nona Tsotsoria   Zdravka Kalaydjieva   Vincent A. De Gaetano   Angelika Nußberger   Paul Lemmens   Helena Jäderblom   Krzysztof Wojtyczek   Faris Vehabović   Robert Spano, judges and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 16 April 2014 and 18 February 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 24014/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Mustafa Tunç and Mrs   Fecire Tunç (“the applicants”), on 24 June 2005. 2.     Mustafa Tunç died on 9 February 2006. His son, Yüksel Tunç, informed the Court by a letter of 10 March 2006 that he intended to pursue the application before the Court as the deceased’s heir. 3.     The applicants, who had been granted legal aid, were represented by Mr Mark Muller QC, Ms Michelle Butler and Ms Catriona Vine, lawyers practising in the United Kingdom, assisted by Mr Kerim Yıldız, of the Kurdish Human Rights Project, and Ms Saniye Karakaş, of the Diyarbakır Bar. The Turkish Government (“the Government”) were represented by Mr   Şener Dalyan, Head of Department (Ministry of Justice), Ms   Nurdan Okur, Director General (Ministry of Justice), Mr Levent Tiftik and Mr   Hüseyin Çeken (Ministry of Defence), Ms Nazlı Bulut, Mr   Okan Taşdelen and Mr Mehmet Öncü (Ministry of Justice), and by Ms   Ayşen Emüler (Ministry of Foreign Affairs). 4.     Relying in particular on Article 2 of the Convention, the applicants criticised the authorities for, inter alia , failing to conduct an effective investigation into the death of their relative and alleged that the specific circumstances of that death had not been determined. 5.     The application was allocated to the Second Section of the Court. 6.     On 4 March 2010 it was communicated to the Government. 7.     On 25 June 2013 a Chamber of the Second Section, composed of Guido Raimondi, President, Danutė Jočienė, Peer Lorenzen, András Sajó, Işıl Karakaş, Nebojša Vučinić and Helen Keller, judges, and also Stanley Naismith, Section Registrar, delivered a judgment in which it held, by four votes to three, that there had been a violation of Article 2 of the Convention in its procedural aspect and, unanimously, that the other complaints were inadmissible. 8.     On 25 September 2013 the Government requested that the case be referred to the Grand Chamber under Article 43 of the Convention. On 14   November 2013 the panel of the Grand Chamber granted that request. 9.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. Judge Jan Sikuta subsequently withdrew and was replaced by Judge Paul Lemmens, substitute judge. 10.     A hearing took place in public in the Human Rights Building, Strasbourg, on 16 April 2014 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Mr   Ş. Dalyan,   Agent, Mr   H. Çeken,   Counsel , Ms   N. Okur, Mr   O. Taşdelen, Mr   M. Öncü, Ms   N. Bulut, Mr   L. Tiftik, Ms   A. Emüler,   Advisers ;   (b)     for the applicants Mr   M. Muller Qc, Ms   M. Butler,   Counsel, Ms   C. Vine Ms   S. Karakaş,   Advisers .   The Court heard addresses by Mr Muller, Ms Butler, Mr Dalyan and Mr   Çeken as well as their answers to questions put by the judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 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. A.     The background to the case 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 7 th 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. B.     The initial investigative measures 1.     At the hospital 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. 2.     At the Perenco site 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. C.     The administrative measures 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. D.     Results of the scientific tests 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. E.     The hearings 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. 1.     Questioning of M.S. 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 ). 2.     Other oral evidence 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. F.     The administrative inquiry report 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. G.     The decision not to bring a prosecution 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. H.     The additional investigation and subsequent developments 63.     On 14 October 2004 the military court of the Diyarbakır 2 nd 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. I.     The private medical report 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 13 th February 2004. 2.     Preparatory investigation report document number 2004/632EO entitled “Widening of the Investigation”. 3.     Two expert reports dated 16 th and 17 th 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.” J.     The judgment of the Supreme Military Administrative Court 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. K.     The financial assistance paid by the Mehmetçik Foundation 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. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Independence of the military judges and prosecutors 85.     The military justice system is made up of judges and prosecutors. In the course of their careers, all judicial officers (judges and prosecutors) may be appointed both to judicial functions and to the functions of prosecutor. The term “military judge” ( askeri hâkim ) used in the substantive provisions concerning the status of judicial officers in principle covers both judges and prosecutors. 1.     The Constitution 86.     The relevant provisions of the Constitution read as follows: Article 9 “Judicial power shall be exercised by independent courts on behalf of the Turkish nation.” Article 138 “In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law. No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions.” Article 139 “Judges and public prosecutors shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution; nor shall they be deprived of their salaries, allowances or other rights relating to their status, even as a result of the abolition of a court or post.” Article 145 “Military justice shall be dispensed by military courts and military disciplinary organs. These courts shall have jurisdiction to try military personnel for military offences, for offences committed by them against other military personnel or in military places, or for offences connected with military service and duties. ... The organisation of military judicial organs, their functions, matters relating to the status of military judges, relations between military judges acting as military prosecutors and the office of the commander under whom they serve, the independence of the courts and the security of tenure of judges shall be regulated by law and in accordance with the requirements of military service.” 2.     The relevant statutory provisions 87.     The Military Judges Act (Law no. 357) lays down the principle that the judiciary is to be independent and reiterates the provisions of Articles   138 and 139 of the Constitution. 88.     Section 16 of this Act provides that military judges and prosecutors are transferred by decree, which is to be signed by the Minister of Defence and the Prime Minister and approved by the President of the Republic (“tripartite decree”). It further specifies the periods in their career during which transfers may not take place. 89.     Article 232 of the Criminal Code as in force at the material time made it an offence to attempt to influence, give orders to or exert pressure on judges. Depending on the circumstances, the sentence laid down ranged from six months’ to five years’ imprisonment. Where the perpetrator of the offence was a civil servant, the sentence was to entail a prohibition on exercising any public office. 90.     Provision for this offence has also been made in Article   277 of the new Criminal Code, which makes it an offence “to attempt to influence persons exercising a judicial function”. 91.     However, Law no. 357 permits the Minister of Defence to order a military prosecutor who has issued a decision not to bring a prosecution to bring the suspect before a court, so that the latter can decide on his or her innocence or guilt. 3.     The composition of military courts 92.     Section 2 of the Military Courts Act (Law no. 353), as applicable at the relevant time, provided: “Save as otherwise provided in this Act, the military courts shall be composed of two military judges and an officer ( subay üye ).” 93.     The words “and an officer” were set aside by the Constitutional Court, ruling on an application for judicial review, in a decision of 7   May 2009 which was published in the Official Gazette on 7   October 2009. The Constitutional Court held that, in contrast to the military judges, the officer judge did not offer all the necessary guarantees, in that he was not released from his military obligations during his term of office and was subject to the authority of his superiors. Furthermore, it considered the fact that no provision prevented the military authorities from appointing a different officer for each case to be incompatible with Article   9 of the Constitution. 94.     Following that judgment the legislation was amended. Section   2 of Law no. 353 now provides: “Save as otherwise provided in this Act, the military courts shall be composed of three military judges.” 4.     The appraisal of military judges and prosecutors 95.     Under section 12 of the Military Judges Act (Law no. 357) as in force at the relevant time, the promotion, advancement and moving up in grade of “military judges” (both those sitting in courts as judges and those working as prosecutors) were dependent on their appraisal reports, and especially the “professional appraisal sheet” ( mesleki sicil belgesi ) and the “officer’s appraisal sheet” ( subay sicil belgesi). 96.     This provision stated that, with regard to the “officer’s appraisal sheet”, the judges and prosecutors were subject to appraisal by the commander of the military unit within which the court was based. 97.     It also indicated that the experienced judges were the direct appraisers of the judges who were working with them, and that the prosecutors were the direct appraisers of their deputies and substitutes. 98.     The competencies to be evaluated in the “officer’s appraisal sheet” were described as follows: “1.     General appearance, social status and capacity to represent the institution 2.     Compliance with the principles of justice and equity 3.     Compliance with and submission to the rules of military discipline 4.     Professional knowledge, basic military knowledge and general knowledge 5.     Team spirit and the ability to train, explain and persuade 6.     Vitality, resistance, resolve and perseverance 7.     Intellectual faculties and the ability to judge and decide 8.     Ability to plan, carry out, monitor and supervise tasks 9.     Freedom and creativity 10.     Ability to direct and leadership”. 99.     In a judgment of 8 October 2009, the Constitutional Court held that part of this text was contrary to the principle of the independence of the courts ( mahkemelerin bağımsızlığı ) and set aside the provisions of section   12 of Law no.   357 concerning the “officer’s appraisal sheet”. 100.     The Constitutional Court had received a plea of unconstitutionality raised by the Supreme Military Administrative Court, in the context of three appeals lodged by military judges who were challenging their “officer’s appraisals” and seeking to have them set aside. The individuals in question considered that even the mere possibility that a senior officer could be tempted to exert undue influence on the judges through the “officer’s appraisal sheet” was detrimental to the appearance of independence that the justice system had a duty to present. 101.     The Constitutional Court noted that the military judges were subject to assessment by the military chambers of the Court of Cassation called on to review their judgments on appeal. It noted that, while this assessment represented their professional appraisal and was intended to evaluate their competence, the “administrative” appraisal (officer’s appraisal sheet) carried out by experienced judges and by officers gave rise for its part to misgivings as to compliance with the requirement of the independence of the courts, enshrined in the Constitution. 102.     In consequence, the Constitutional Court found that this procedure was contrary to the Constitution and ought to be set aside in so far as it concerned the judges who sat in courts. The Constitutional Court held that it was not necessary to rule on whether the appraisal system for prosecutors was in conformity with the Constitution, given that the answer to that question was irrelevant to resolving the cases before the Supreme Military Administrative Court. 103.     The judgment was published in the Official Gazette on 8   January 2010 and took effect on the same date. 104.     On 22 April 2012 section 12 of Law no. 357 was amended to bring the appraisal of military prosecutors into line with the Constitution. B.     Access to the investigation file for victims’ relatives 105.     Section 2 of the Lawyers Act, as in force at the relevant time, states that the judicial bodies, police departments and other public institutions are required to facilitate the lawyer’s duties, particularly by providing access, save statutory provisions to the contrary, to any documents and information that he or she considers relevant. C.     The gendarmerie 106.     The gendarmerie is governed by Law no. 2803. It is defined as an armed force placed under the authority of the Ministry of the Interior in respect of its duties in the areas of safety and security and under the authority of the Armed Forces General Staff in respect of training activities and its military duties. The General Commander of the Gendarmerie is answerable to the Minister of the Interior (section 4 of the Law). 107.     Gendarmes carry out administrat