AFTER McCann and Others v the United Kingdom (Application no. 18984/91) (1995) ECHR 31, in which the European Court of Human Rights first read into Article 2 the procedural obligation of effective investigation, Mustafa Tunç and Fecire Tunç (Application no. 24014/05), 14 April 2015, is perhaps one the most interesting decisions on the nature of the obligation to conduct an effective investigation in the Court's recent history. The Court, through its case law, has clarified that, when individuals have been killed by the state or a private party, the Contracting Parties have to undertake an investigation under Article 2, which has to be independent, adequate, prompt, and publicly scrutinised. It has been unclear, however, whether the element of independence had to meet criteria similar to those under Article 6, which guarantees a fair trial, or whether a lower standard was sufficient for an investigation to be considered effective in the context of Article 2. The Strasbourg court went back and forth on the issue (even adopting an absolutist approach in Al-Skeini and Others v the United Kingdom (Application no. 55721/07) (2011) ECHR 1093) and it was not until Mustafa Tunç that the issue of independence under Article 2 was addressed head-on.

The case concerned Cihan Tunç, a Turkish army sergeant and a gendarme, who was killed in disputed circumstances while performing his duty of protecting the site of a private oil company. After the incident, a military prosecutor initiated an investigation, during which an autopsy and forensic tests were conducted. Potential witnesses were questioned as well. Based on the findings of these investigative measures, the prosecutor concluded that the most likely cause of Cihan Tunç's death was suicide, rather than wrongdoing on the part of MS, the gendarme who had last seen the deceased. Consequently, the prosecutor opted not to bring a prosecution. Tunç's family filed an appeal before a military court against that decision. The court comprised two professional judges and a serving officer of the Turkish army. The military court reviewed the investigation, upheld the appeal, and instructed the prosecutor to conduct further investigative measures. Ultimately, however, these did not affect his decision not to prosecute.

Having exhausted domestic remedies, the deceased's family brought their case before the Strasbourg court. The Chamber (Second Section) declared the applicants' submissions inadmissible, save for the submission under the procedural limb of Article 2. While the Chamber held the investigation was adequate and included a sufficient element of public scrutiny, the independence of the investigation was a major point of contention. The four majority judges held that the composition of the military court that reviewed the investigation, in particular the fact that one of the members of the military court was a military officer subject to strict military hierarchy, resulted in the investigation falling short of the standard of independence under Article 2. In the dissent, the three remaining judges argued that the composition of the court had had no real effect on the outcome of the proceedings and that therefore no violation of Article 2 had taken place. Upon referral to the Grand Chamber, the question of independence remained at the heart of the case. The applicants argued, relying on the Chamber judgment (at [130], [131]), that, in assessing the independence of the military court, standards of independence as established under Article 6 should be applied.

In the Grand Chamber's view, the Chamber erred in its interpretation of the Convention when it considered the Article 6 standard of independence to be applicable to the positive obligation of effective investigation under Article 2. While Article 6 requires any given situation to be assessed primarily on statutory criteria (at [221]) and even an appearance of a lack of independence may be relevant, under Article 2, the obligation to conduct an effective investigation requires a “concrete examination of the independence of the investigation in its entirety, rather than an abstract assessment” (at [222]). In other words, whereas Article 6 calls for an abstract examination, Articles 2 and 3 require an in concreto examination of the nature of the investigation and all the relevant facts to determine “whether and to what extent the disputed circumstance has compromised the investigation's effectiveness and its ability to shed light on the circumstances of the death and to punish those responsible” (at [224]). By extension and contrary to Article 6, the procedural obligation of effective and independent investigation under Article 2 does not require absolute independence (at [223]), but allows for independence to be contentious to a certain degree, in so far as it does not hinder effectiveness of the investigation. This follows from the Grand Chamber's understanding that, in guaranteeing a fair trial, independence is an end in and of itself; in contrast, under Article 2, the procedural obligation of effective investigation, the element of independence is interrelated with other requirements of adequacy, promptness, and the ability of the deceased's relatives to participate in the investigation, which together serve towards the purpose of ensuring that the conducted investigation is effective (at [225]).

In Mustafa Tunç, the Court applied these considerations to two questions crucial to the case: (1) can the prosecutor who was heading the investigation be regarded as independent? and (2) can the military court that reviewed the investigation be regarded as independent in terms of Article 2?

Firstly, regarding prosecutorial independence, the Grand Chamber conducted an abstract and an in concreto examination. It noted that, while the commander of the military unit, of which the prosecutor was a member, was appraising his performance for the purpose of potential future promotions, a number of statutory mechanisms were in place to safeguard prosecutorial independence. These included a statutory requirement of the prosecutor's independence, an appointment system requiring involvement of the President of the Republic, and a prohibition of attempting to influence prosecutors while exercising their judicial function (at [236]). In line with the previously established principles, the Court considered this as insufficient proof to conclude that the investigation was independent (at [237]). Concrete considerations, such as the fact that the prosecutor was not connected in any way with MS or other gendarmes located at the site, combined with the fact that there was no “tangible evidence of bias in his conduct”, were decisive for finding that the prosecutor was sufficiently independent (at [238]–[242]).

Secondly, similar reasoning applied to the issue of independence of the military court. In line with (factual) findings of the Chamber, the Grand Chamber acknowledged that one of the members of the military court lacked statutory protections of independence equal to the remaining two members – he was a military officer subject to strict military hierarchy. However, under the Grand Chamber's reasoning in Mustafa Tunç, this was not sufficient evidence to conclude that the procedural obligation had been breached. Indeed, concrete assessment of the facts led to the opposite conclusion – since the court initially granted the applicants' appeal and ordered additional investigative measures, there was nothing in the conduct of the court that could point to its partiality (at [251]–[252]). Moreover, as members of the court did not have a “hierarchical or tangible link” with the gendarmerie or the implicated gendarmes (at [250]), the investigation was to be considered independent.

In light of this, the Court concluded that the investigation was effective. It found not only that it was independent, but also that it was adequate and that the deceased's relatives were allowed sufficient scrutiny over the investigation.

In Mustafa Tunç, the Court appears to have resolved the tension created by conflicting Strasbourg case law between the outcome-oriented approach to interpretation of independence, in which the Court attempts to determine whether the perceived lack of independence has had an effect on the effectiveness of the investigation, and the absolutist approach requiring even an appearance of a lack of independence to require redress. The tenor and the wording of the Grand Chamber's justification in Mustafa Tunç would have one believe that the Court has always been resorting to the outcome-oriented approach. That, however, is not the case. In Al-Skeini, the Grand Chamber held that the investigation lacked independence, even though there was “no evidence that the military chain of command attempted to intervene in the investigation” (at [174]) – a finding explicitly reiterated in Eremiasova and Pechova v the Czech Republic (Application no. 23944/04), 16 February 2012 (at [154]). Instances where the logic of this absolutist approach is implicitly applied can be found throughout the Court's jurisprudence. In Ramsahai and Others v the Netherlands (Application no. 52391/99) (2007) ECHR 393, a decision relied on by the Grand Chamber in Mustafa Tunç as proof of a consistent case law, the elements of the outcome-oriented approach (at [222]) are nowhere to be found. On the contrary, the absence of this pragmatic approach led Judge Thomassen as the lone dissenter in Ramsahai to urge the Court to acknowledge that the lack of independence in absolutist terms had not undermined the effectiveness of the investigation. And therein lies the significance of the Grand Chamber's decision in Mustafa Tunç. When Ramsahai was decided in 2007, Judge Thomassen was outvoted 16-1 on the issue. The Court's interpretation of the procedural obligation has gradually been shifting away from the absolutist view as the Court more often resorted to the pragmatic understanding. Mustafa Tunç, unanimously so, has resolved the lingering presence of inconsistency, clearly established the outcome-oriented approach, and has become one of the leading cases regarding the procedural obligation to conduct an independent investigation. The question that still remains open, however, is whether in future Mustafa Tunç could be limited to its facts (in particular to the military context) or whether the pragmatic approach will prevail as a more general standard.