REPUBLIC OF TURKEY
CONSTITUTIONAL COURT
SECOND SECTION
JUDGMENT
İPEK DENİZ AND OTHERS
Application no. 2013/1595
21 April 2016
On 21 April 2016, the Second Section of the Constitutional Court held with regard to the individual application of İpek Deniz and Others (no. 2013/1595) that there had been a breach of the right to life guaranteed in Article 17 of the Constitution.
III. THE FACTS
[7-81]. The applicants were born in 1998, 1999 and 2001 and are the children of Mehmet Deniz (M.D.) who was born in 1950 and lost his life on 5 March 2008 and his wife who was born in 1963.
An activity which was organized by the district branch of a political party by means of obtaining authorization from the relevant District Governorship turned into a protest in favour of a terror organization and its leader, and the demonstrators blocking the roads during the protest were dispersed by the police. Quarrels took place between the citizens whose buildings and workplaces were damaged on account of the uproars created by the demonstrators by means of removing paving stones and the groups making protests, and the quarrel was terminated through the police intervention. In the course of the incidents taking place, 14 police officers were injured, and a large number of police vehicles, two vehicles belonging to the public banks and workplaces of the citizens were damaged. The police reported the incidents taking place to the chief public prosecutor’s office.
Upon the instruction of the chief public prosecutor’s office, 108 persons identified to get involved in the incidents were arrested until 04:30 p.m. on the incident day. Name of M.D., the next-of-kin of the applicants, was also included in this arrest warrant. After having been arrested by the law enforcement officers on the incident day, M.D. was directly taken to the Security Directorate without a forensic report drawn up in respect of him. M.D., who was held in the Security Directorate for a while (there is no record concerning the custodial cell), was subsequently taken to a State Hospital at 06:10 p.m. by a police vehicle upon deterioration of his state of health. The doctor performing his first medical examination issued a report in which it was specified that he was exposed to a risk of death on account of blows he had received on his head.
M.D. was urgently referred to the Van State Hospital and lost his life in this hospital on the same day. At the end of the post-mortem examination and autopsy carried out by the Van Chief Public Prosecutor’s Office, M.D.’s definitive cause of death was determined to be “respiratory and cardiac insufficiency resulting from cerebral haemorrhage suffered due to blunt trauma to his head”.
An ex-officio investigation was initiated into the incident on 6/3/2008 by the chief public prosecutor’s office. Within the scope of the investigation, the applicant İpek Deniz, who is M.D.’s wife, maintained that her husband had been beaten and killed by the police officers while returning from a condolence visit on the day of incident; and that she would subsequently report the name of the eye-witnesses in a petition. Upon the applicant’s request, M.D.’s grave was opened, and his death body was sent to the İstanbul Forensic Medicine Institute for being subject to an autopsy once again. As a result of the autopsy performed by the Morgue Specialization Board of the İstanbul Forensic Medicine Institute, the definitive cause of death of the person on whose body there were wide traumatic lesions and rib fractures was determined to be “brain tissue destruction and brain haemorrhage resulting from blunt head trauma.
A large number of witnesses were heard by the chief public prosecutor’s office concerning the incident. A large majority of the witnesses stated that they had not directly seen the incident. In this respect, only M.S.K., M.E.M., F.C. and S.S. stated that they had witnessed the incident. In their statements, the witnesses noted that the police officers had hit M.D. with pickaxe handles and truncheons, and one of the witnesses, S.S., identified one police officer.
Statements of other police officers whose names were included in the arrest warrant by the chief public prosecutor’s office were not taken. The authorities only examined the statements taken within the scope of administrative investigation conducted by the police inspectors into the incident. The investigation was completed within one year, and a criminal case was brought against the police officer in question for the offence of “causing death as a result of aggravated intentional wounding by exceeding the limit of the right to use force”.
The Erciş Assize Court decided to return the bill of indictment on the ground that “any police officer taking office on 5 March 2008 was not heard as a witness”. The objection raised against the decision by the chief public prosecutor’s office was accepted by the 1st Chamber of the Van Assize Court.
The proceeding starting with the hearing of 16 July 2009 lasted for twelve hearings and was completed on 2 June 2011. The police officers noted in their statements that they did not know who was the police officer taking M.D. under custody. The witnesses, M.S.K., M.E.M., F.C. and S.S. whose statements had been taken during the investigation were questioned by the court. They emphasized that they could not exactly remember the details as the incident took place approximately two years ago and gave statements partially contradicting with their previous statements before the prosecutor’s office. At the end of the proceedings, it was decided that the accused police officer be acquitted.
The court also decided that when the decision became final, a criminal complaint would be filed before the chief public prosecutor’s office for the necessary action to be taken for the identification of the police officers causing the death of M.D. and subsequently opening a criminal case against them. The appeal lodged by the applicant against this decision was dismissed by the Court of Cassation.
“A special report concerning the disproportionate use of force in the demonstrations taking place in Erciş and the death of Mehmet Deniz” was drawn up by a panel of five persons consisting of the Van Bar Association, the Van Branch of the Human Rights Association and the Van Branch of the Association of Human Rights and Solidarity for Oppressed People (“Mazlumder”) and submitted to the chief public prosecutor’s office on 14 March 2008.
This report included the interviews made with the persons named S.S., İ.M., F.C., M.P., M.T., M.S.K., S.K. and H.S., the observations and findings made and reached by the panel, the issues clarification of which was found necessary and the opinions and conclusions. In the report drawn up, it was concluded that the police had used disproportionate force to disperse the demonstrators; and that it must be clarified where M.D. had been placed between the hour when he had been battered (01:30 p.m.) and the hour when he had been taken to hospital (07:30 p.m.), and the doctors examining M.D. in accompany with the police officers must be identified.
IV. EXAMINATION AND GROUNDS
82. The Constitutional Court, at its session of 21 April 2016, examined the application no. 2013/1595 lodged by the applicants on 18 February 2013 and decided as follows:
A. The Applicants’ Allegations
83. The applicants maintained that their relative had been arrested although he did not participate in the social incident that took place in Erciş on 5 March 2008, that he lost his life as a result of the use of force by law enforcement officers during his placement into custody, and that an effective investigation was not conducted into the case. Relying on Article 17 of the Constitution which defines the right to life, the applicants requested finding of a violation, an effective investigation, and awarding of pecuniary and non-pecuniary compensation.
84. In the present case, the applicants’ relative (M.D.) was taken into custody during the social incidents taking place at the material time and he lost his life after being hospitalised. The applicants allege that their relative was killed due to the battery administered by law enforcement officers. They further complain of the lack of an effective investigation to shed light on the death. Therefore, separate assessments should be made as to whether the death occurred as a result of the use of force by law enforcement officers and whether the consecutive investigation was effective.
85. For that reason, based on the particular circumstances of the subject matter of the present application, the assessment on the present case will be conducted under two separate heads: whether there has been a violation of (i) the State’s negative obligation under Article 17 § 1 of the Constitution and (ii) its positive obligation to conduct an effective investigation.
86. The Ministry indicates that, where the complaints raised before the European Court of Human Rights (“the ECHR”) relying on the (negative) obligation to prevent violations of the right to life guaranteed under Article 2 of the European Convention on Human Rights (“the Convention”) had taken place before the date on which the State Party recognised the Convention, the ECHR shall declare the application inadmissible for incompatibility ratione temporis.
87. The Ministry further adds that the Constitutional Court’s competence ratione temporis begins on 23 September 2012 and that the remedy of individual application before the Court shall only be used for acts and decisions that became final after the said date.
88. Moreover, the Ministry stresses that the procedural obligation to conduct and effective investigation into the death under Article 2 of the Convention is considered by the ECHR separately and independently from the material obligation. In this connection, the Ministry underlines that a separate and independent finding of an interference is possible with regard to events taking place before the effective date of the Convention in so far as it is limited to the procedural obligation.
89. In this scope, the Ministry points out that the aforementioned points should be taken into account when examining the admissibility of the case giving rise to the application. Thus, before deliberating upon the other admissibility criteria, the Court shall examine whether the present application is admissible in regard to the requirement of compatibility ratione temporis.
90. Provisional Article 1 § 8 under “Transitional Provisions” of Law no. 6216 on the Establishment and Rules of Procedures of the Constitutional Court (dated 30 March 2011) reads as follows:
“The court shall examine the individual applications to be lodged against the last actions and decisions that were finalized after 23 September 2012.”
91. Pursuant to this legal provision, the Constitutional Court’s competence ratione temporis runs from 23 September 2012, which means that it is authorised to examine only the individual applications lodged against the acts and decisions that became final after the said date.
92. The fact that a definite date is determined for the Constitutional Court's temporal jurisdiction and that it is not applied retrospectively is a requirement of the principle of legal certainty (see Zafer Öztürk, no. 2012/51, 25 December 2012, § 18).
93. On the other hand, the ECHR takes account of the date of the event giving rise to the application when determining the compatibility ratione temporis. In other words, in the examination of the compatibility ratione temporis, the ECHR relies on the date on which the interference took place instead of the finalisation date of the impugned act or decision which gave rise to the alleged interference while the Constitutional Court takes account of the latter (see Blečić v. Croatia [GC], no. 59532/00, 8 March 2006, § 70; Šilih v. Slovenia [GC], no. 71463/01, 9 April 2009, § 140).
94. It is observed that there is a clear difference between the Constitutional Court and the ECHR in terms of the rules governing temporal jurisdiction and that the Ministry’s objection stems from this difference.
95. In the present case, the death occurred on 5 March 2008, which is incompatible ratione temporis for the Court. However, the decision of acquittal, which gave rise to the individual application, became final on 11 October 2012 which is after the start date of the Court’s temporal jurisdiction. Therefore, the application has been found to be within the Constitutional Court’s competence ratione temporis.
96. On the other hand, it is noted that the compensation proceedings brought by the applicants before the Administrative Court against the Ministry of Interior has not been concluded yet. Thus, there is a need for conducting a separate assessment as to whether the available legal remedies have been exhausted in the present case.
97. Article 148 § 3 of the Constitution reads as follows:
“... In order to make an application, ordinary legal remedies must be exhausted.”
98. Article 45 § 2 of Law no. 6216 provides as follows:
“All of the administrative and judicial application remedies that have been prescribed in the code regarding the transaction, the act or the negligence that is alleged to have caused the violation must have been exhausted before making an individual application.”
99. The requirement of exhausting legal remedies, as stipulated by the constitutional and legal provisions cited above, is a natural consequence of the fact that the remedy of individual application is to be used as a last and extraordinary resort for the prevention of human rights violations. In other words, the fact that administrative authorities and inferior courts are primarily responsible for remedying the violations of fundamental rights renders it mandatory to exhaust the ordinary legal remedies (see Necati Gündüz and Recep Gündüz, no. 2012/1027, 12 February 2013, § 20).
100. To respect fundamental rights and freedoms is the constitutional duty of all State bodies, and to remedy violations arising due to neglect of this duty is the task of administrative and judicial authorities. Therefore, it is essential that alleged violations of fundamental rights and freedoms first be raised before inferior courts for the latter to examine and resolve (see Ayşe Ziraman and Cennet Yeşilyurt, no. 2012/403, 26 March 2013, § 16).
101. That said, to be considered effective, a remedy must not only be legally available but also be effective in practice while the authority receiving the application must be empowered to deal with the substance of an alleged violation. A remedy is “effective” if it can prevent an alleged violation from occurring, end it if it is continuing, or establish a resolution and afford the applicant appropriate redress (compensation) for any violation that has already occurred. Furthermore, in cases where an alleged violation has occurred, adequate procedural safeguards must be ensured for the revelation of liabilities, along with the payment of compensation for damages (see S.S.A., no. 2013/2355, 7 November 2013, § 28; for a similar judgment of the ECHR, see Ramirez Sanchez v. France, no. 59450/00, 4 July 2006, §§ 157-160).
102. In this scope, the effective legal remedy to be sought should be determined at the outset in cases of death as a result of the use of force by public officers.
103. In cases pertaining to incidents of death occurring as a result of intention or assault or ill-treatment, the State has an obligation, by virtue of Article 17 of the Constitution, to conduct criminal investigations of the nature to allow for the identification and punishment of those responsible for the case of assault involving death or bodily harm. In these kinds of incidents, the mere payment of compensation as a result of the administrative and civil investigations and proceedings that are conducted is not sufficient to eliminate the violation of the right to life and to remove the victim status (see Serpil Kerimoğlu and Others, no. 2012/752, 17 September 2013, § 55).
104. Where a public officer is accused of attacking a person’s life or the corporeal or spiritual integrity of a person by means of abusing the authority vested in them by their duty, those attacks must not be let unpunished. In such cases, the proceedings or the conviction must not be rendered null and void by a prescription and the application of protective measures such as amnesty or pardon must not be authorized (see Zeycan Yedigöl [Plenary], no. 2013/1566, 10 December 2015, § 33; for a similar judgment of the ECHR, see Tuna v. Turkey, no. 22339/03, 19 January 2010, § 71).
105. As it can be understood from the principles laid down above, the State has an obligation to conduct an effective criminal investigation into the incidents of death occurring as a result of the use of force by public officers. In the present case, an investigation was carried out concerning the death of the applicants’ relative and a criminal case was filed against a police officer. Consequently, the police officer was acquitted and this decision became final. Moreover, there are no other on-going criminal investigations into the incident. Accordingly, regardless of the outcome of the compensation proceedings being held under the administrative jurisdiction, that set of proceedings shall not be sufficient for depriving the applicants of victim status, which confirms that the ordinary remedies have been exhausted.
106. In conclusion, on the grounds that the applicants’ relative lost his life due to the use of force by the law enforcement officers who had intervened in the social incidents and that an effective investigation has not been conducted into the case, the Court observes that the alleged violations of both the substantive and the procedural aspects of the right to life protected under Article 17 § 1 of the Constitution are not manifestly ill-founded within the meaning of Article 48 of the Law no. 6216. As there are no other reasons for inadmissibility, the application must be declared admissible.
a. Alleged Violation of the Right to Life under its Substantive Aspect
i. The Applicants’ Allegations and the Observations of the Ministry
107. The applicants complain of an alleged violation of the right to life under its substantive aspect by claiming that their relative, who had no involvement in the social incidents taking place in Erciş at the material time, was killed due to the battery administered by law enforcement officers; that the State has to make a reasonable explanation regarding what happened to a person in custody; that they do not accept the Van Security Directorate’s press statement; and that there were many contusions and bruises on the victim’s body.
108. In its observations, the Ministry indicates that Article 2 of the Convention, which guarantees the right to life and sets out the conditions where the death may be justified on certain grounds, also includes the situations where intentional deprivation of life may be allowed. Nevertheless, although it is possible under Article 2 to use force in a manner which may lead to unintentional death, the use of force must be absolutely necessary.
109. According to the information in the Ministry’s observations, at the material time, the district branch office of a political party organised an activity in Erciş. When the activity was over, the crowd started marching towards the city centre, chanted illegal slogans, refused to disperse despite the warnings of the officials who announced that the demonstration was unlawful, scattered around various parts of the city in small groups, attacked with stones, and damaged public property.
110. The Ministry reports that 108 individuals that were identified to have been involved in the incidents were arrested and placed into custody upon the instructions of the public prosecutor’s office and that the deceased M.D. was one of them. The Ministry adds that there is no pre-custody report in his respect and that he died around 6 p.m. on the same day following his hospitalisation due to his worsening condition.
111. The Ministry indicates that a fight broke out between business owners and demonstrators since the latter threw stones at certain places of business and subsequently the two groups threw stones at each other. Accordingly, M.D. was one of the arrested demonstrators. He was initially brought to the Security Directorate with an injury and later sent to hospital for treatment.
112. Lastly, the Ministry’s observations point out that it was not possible to reach a definitive conclusion concerning the incident due to the contradictory nature of witness testimonies and that the accused S.B. was therefore acquitted. In this scope, decisions of the trial court or the public prosecutor’s office did not contain any assessment on the question whether the limits of the power to use force had been exceeded. The Ministry concluded its observations by affirming that it was at the Constitutional Court’s discretion to examine whether the substance of the right to life had been violated.
ii. General Principles
113. Article 17 §§ 1 and 4 of the Constitution, titled “Personal inviolability, corporeal and spiritual existence of the individual”, provides as follows:
“Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence.
The act of killing in case of self-defence and, when permitted by law as a compelling measure to use a weapon, during the execution of warrants of capture and arrest, the prevention of the escape of lawfully arrested or convicted persons, the quelling of riot or insurrection, or carrying out the orders of authorised bodies during state of emergency, do not fall within the scope of the provision of the first paragraph.”
114. The right to life enshrined in Article 17 of the Constitution is an inalienable and indispensable fundamental right and, when read together with Article 5 of the Constitution, it imposes positive and negative obligations on the State (see Serpil Kerimoğlu and Others, § 50). As a negative obligation, the State has a liability not to end the life of any individual who is within its jurisdiction in an intentional and illegal way. Furthermore, as a positive obligation, the State has the liability to protect the right to life of all individuals who are within its jurisdiction against the risks which may arise from the actions of public authorities, other individuals, or the individual himself/herself (see Serpil Kerimoğlu and Others, §§ 50 and 51).
115. Cases of death occurring as a result of the use of force by public officers must be considered within the scope of the State’s negative obligation under the right to life. This obligation concerns both deliberate killing and the use of force that ends in death without premeditation (see Cemil Danışman, no. 2013/6319, 16 July 2014, § 44). Within the scope of the negative obligation concerning the right to life, the officers who use force with a public authority bear the liability not to end the life of any individual in an intentional and unlawful way (see Serpil Kerimoğlu and Others, § 51).
116. The last paragraph of Article 17 of the Constitution provides that an interference with the right to life shall be lawful in the following cases: (i) for self-defence; and, when permitted by law as a compelling measure to use a weapon, (ii) during the execution of warrants of capture and arrest, (iii) the prevention of the escape of lawfully arrested or convicted persons, (iv) the quelling of riot or insurrection, or (v) carrying out the orders of authorised bodies during state of emergency.
117. In the above-mentioned situations, it must be absolutely necessary to use lethal force as a last resort when there is no other possibility of intervention left. For this reason, bearing in mind the inviolable nature of the right to life, there is a need for a strict review on the requirements of necessity and proportionality in cases involving such use of force that might result in death.
118. In making an assessment on this aspect of the use of force by public officers, the Court must subject deprivations of life to the most careful scrutiny by taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination (for a similar judgment of the ECHR, see McCann v. the United Kingdom [GC], no. 18984/91, 27 September 1995, § 150). Also, in the evaluation which will be made about this subject, regard must be had, as a whole, to the conditions under which the incident occurred and the course over which it developed as a whole (see Cemil Danışman, § 57; for a similar judgment of the ECHR, see also Andronicou and Constantinou v. Cyprus, no. 25052/94, 9 October 1997, § 182).
119. Lastly, the conditions of the incident of death have to be elaborately examined and the nature of the danger of previous actions and the self of the person who lost his life have to be evaluated (see Cemil Danışman, § 63).
120. In the present case, the applicants allege that the death of their relative was caused by the use of force by the law enforcement officers who conducted the custody procedure.
121. For the State to be held responsible for an individual’s death, it must first be proven beyond any reasonable doubt that the individual was killed by agents of the State. Where it has been proven that the State is responsible for the death, in that case, the burden of proof shall be borne by the State to demonstrate that the killing fell within the exceptional circumstances where it may be permissible under Article 17 § 4 of the Constitution (see McCann v. the United Kingdom, § 172).
122. After the social activity held on the incident date by the district representation of a political party on the occasion of the forthcoming International Women’s Day, a group of thousand people gathered together by blocking the traffic on roads and began chanting slogans in favour of a terrorist organisation.
123. The crowd refused to disperse although the police warned that the demonstration was illegal. Subsequently, the police intervened and took 108 demonstrators into custody. One of those placed into custody was the applicants’ relative, M.D., who lost his life at the hospital he had later been taken to.
124. The arrest report drawn up regarding the incident indicated that M.D. had been injured during the incidents. The press statement released by the Van Security Directorate explained that he had lost his life due to a stone which had hit his head. However, the initial autopsy report as well as the second autopsy report issued after the exhumation found that the death had been caused by blows to the head and that there were many fractures and lesions on the body. Following the autopsy reports, the claims of a stone hitting M.D. in the head were never voiced again.
125. At the end of the proceedings held before the Assize Court, it was established that M.D.’s head injury causing his death had been inflicted by the police officers on duty; nonetheless, they were acquitted on the ground that the police officer who had carried out the intervention was not conclusively identified. The said decision was upheld by the Court of Cassation and became final.
126. The Court notes that judicial authorities acknowledge the fact that M.D.’s death occurred as a result of the intervention performed by police officers. The Ministry’s observations do not contain any consideration to the contrary, either. Indeed, the applicants’ allegations are also in the same vein. Therefore, in view of the information and documents in the file, there is no reason to depart from the acknowledgement that M.D.’s death was caused by the use of force by law enforcement officers.
127. Having established that the applicants’ relative had died as a result of the use of force by public officers, the Court must now make an assessment as to whether the killing fell within the exceptional circumstances defined in Article 17 § 4 of the Constitution.
128. According to the conclusion reached by the public prosecutor’s office, the police officers, who intervened in the incidents which had turned into a terrorist propaganda, caused the death of M.D. as a result of the act of “aggravated injury on account of its consequence” as they exceeded the limits of the power to use force when conducting arrest and custody procedures within the scope of a judicial investigation. Accordingly, it was acknowledged that the law enforcement officers had used force when they were lawfully conducting an arrest upon the instructions received from the public prosecutor’s office during an illegal demonstration and that their acts had been oriented at inflicting injury within the meaning of their power to use force.
129. In applications involving deaths resulting from the use of force by public officers, the ECHR recalls that the exceptions set out in Article 2 § 2 of the Convention concern intentional killing but the text of Article 2, read as a whole, extends to the cases of use of force which may result, as an unintended outcome, in the deprivation of life. According to the ECHR, the use of force must be “absolutely necessary” for the achievement of one of the purposes set out in the second paragraph (see McCann v. the United Kingdom, § 148).
130. The Constitutional Court stresses that, in cases where the such force which may result in death had to be used, there is a need for conducting a strict review as to whether it was necessary and proportionate. In fact, the ECHR emphasises that the use of the term “absolutely necessary” with respect to interference with the right to life indicates that a stricter and more compelling criterion of necessity must be applied than is normally used to determine whether State interference is “necessary in a democratic society” in relation to the right to private life or freedom of assembly (see Aydan v. Turkey, no. 16281/10, 12 March 2013, § 65).
131. Eyewitnesses state that M.D. resisted against the uniformed police officers who were trying to get him inside the taxi with a view to taking him into custody during the demonstrations taking place on the incident date; that the police officers hit M.D. with their arms; and that a police officer in plain clothes also became involved and hit M.D. with a stick. While it had been understood that the events of the case took place in the way explained by the witnesses, there is still uncertainty regarding the identities and descriptions of the police officers who performed the intervention and about what happened during the time period between M.D.’s arrival at the Security Directorate and his hospitalisation.
132. The public authorities did not explain under which conditions the lethal blow to the head, rib fractures, and disseminated lesions on the body contained in M.D.’s autopsy report had occurred. In this regard, the only information included in the file is comprised of the witness statements indicating that M.D. had resisted getting in the vehicle. However, this piece of information was not confirmed by public authorities. Furthermore, neither does the file contain any allegations or findings nor has the Court reached a conclusion that M.D. was armed at the time of his arrest or that he showed such behaviour that could endanger the lives or physical integrities of the law enforcement officers.
133. Although the onus of proving that the use of lethal force had been “absolutely necessary” was placed on the public authorities since it was acknowledged in the instant case that the death occurred as a result of the use of force by law enforcement officers, there has been no explanation made in this regard. Therefore, it cannot be said that the law enforcement officers were faced with a situation which would render it absolutely necessary to use such a degree of force that may result in death during the arrest procedure they conducted upon the public prosecutor’s office’s instructions.
134. On the other hand, a separate assessment was not made as to whether the impugned intervention had sufficient legal and administrative framework, as the public authorities did not offer any explanation regarding the use of force and its justification.
135. The reasoned judgment indicated that it was not definitively established whether the lethal blow to M.D.’s head had been sustained as he was being forced by the law enforcement officers to get into the taxi or after he had already been placed in the taxi. M.T., a witness who had been taken to the police station along with M.D. in the same vehicle, stated that the physical intervention towards them had continued at the Security Directorate, as well.
136. The information related to how incidents of injury or death take place over the course of the State’s control (e.g. administrative detention, custody or detention on remand) are, in large part, accessible by the authorities. Thus, strong presumptions of fact will arise in respect of injuries and death occurring during such detention. For this reason, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation concerning the death at issue (for a similar judgment of the ECHR, see Salman v. Turkey, no. 21986/93, 27 June 2000, § 100).
137. In the present case, M.D. was arrested by law enforcement officers around 1 p.m. and he was taken directly to the Erciş Security Directorate. Around 6 p.m., he was brought to the Erciş State Hospital on account of his deteriorating state of health. The first medical report in respect of M.D. was drawn up at that stage.
138. No official record was kept of M.D. being brought to the Security Directorate, he was not recorded in the custody suite logbook, nor even was his state of health established with a report despite the legal obligation.
139. As can be understood from the principles and assessment above, the burden rests with the State to prove that there was no interference with M.D.’s life or physical integrity over the course of five hours he spent under the protection of the State. Noting that the applicants can only be able to submit indirect evidence in such cases, the Court observes that they already did what can be expected of them by providing names of witnesses.
140. The Court further observes in the instant case that the Security units failed to share with judicial authorities the information related to how M.D.’s death had occurred, which procedures had been conducted during the period of time from the moment of his arrest until his transfer to the hospital, or who were the law enforcement officers that had conducted those procedures. In the absence of such information, it has not been possible to understand the circumstances surrounding the interference with the life of the applicants’ relative. Therefore, the Court considers that the public authorities refrained from collaborating with the judicial authorities on shedding light on the case.
141. Having regard to the applicants’ allegations, the proceedings held before the Erciş Assize Court, and the documents and information contained in the file as a whole, the Court concludes that the death was caused by the use of force by law enforcement officers, while it does not find any reasons that would justify the use of such force that resulted in death within the meaning of Article 17 of the Constitution.
142. For these reasons, it must be held that there has been a violation of the right to life protected under Article 17 of the Constitution under its substantive aspect.
b. Alleged Violation of the Right to Life under its Procedural Aspect
143. The applicants complain of the lack of an effective investigation by claiming that their relative, who had no involvement in the social incidents taking place in Erciş, was killed due to the battery administered by law enforcement officers; that no evidence was collected other than those submitted into the file by themselves; and that criminal proceedings were brought against only one police officer although the arrest had been carried out by several law enforcement officers.
144. In its observations, the Ministry reports that M.D. was severely injured during the incidents taking place in Erciş on 5 March 2008; that he lost his life at the hospital to which he had been taken on the same day; that the public prosecutor’s office initiated an ex officio investigation and gave the relevant law enforcement officers a list of the pieces of evidence that needed to be collected; and that, upon the applicants’ request for an additional autopsy, the body was exhumed and sent to the Istanbul Forensic Medicine Institute for a new autopsy.
145. The Ministry adds that the public prosecutor conducting the investigation took the eyewitness’ statements in person; that the police officers and supervising officers who had signed the arrest report gave their statements to the inspectors within the scope of disciplinary investigations; that no camera records were found at the end of an enquiry conducted around the scene of the incident; that he investigation was completed in approximately a year, as a result of which criminal proceedings were filed against one police officer.
146. The Ministry follows that all witnesses, including the police officers and supervising officers whose names were on the arrest report, gave their statements once again over the course of the trial stage; that the applicants had access to legal assistance, did not face restrictions regarding their right to examine and obtain a copy of the file, and enjoyed their right to appeal.
147. Lastly, the Ministry’s observations indicate that the accused police officer was acquitted on account of insufficient evidence for conviction and that the said decision was upheld by the Court of Cassation. The Ministry concludes its observations by affirming that it is at the Constitutional Court’s discretion to examine whether the procedural aspect of the right to life has been violated.
148. The right to life enshrined in Article 17 of the Constitution is an inalienable and indispensable fundamental right and, when read together with Article 5 of the Constitution, it imposes positive and negative obligations on the State (see Serpil Kerimoğlu and Others, § 50).
149. Within the scope of the negative obligation concerning the right to life, the officers who use force with a public authority bear the liability not to end the life of any individual in an intentional and unlawful way. Under the positive obligations, on the other hand, the State has a liability to protect the right to life of every person within its jurisdiction against risks which may arise out of the actions of public authorities, other individuals or the individual himself/herself. First and foremost, the State should introduce deterrent and protective legal regulations and take administrative measures against such risks to the right to life. This liability also includes the obligation to protect the life of an individual from all kinds of dangers, threats and violence (see Serpil Kerimoğlu and Others, § 51).
150. The positive obligations that the State has within the right to life have also a procedural aspect. Within the framework of this procedural obligation, the State is required to carry out an effective official investigation which can ensure that those who are responsible for each incident of death which is not natural are determined and punished, if necessary. The main aim of this type of investigation is to guarantee the effective implementation of the law that protects the right to life and, in the incidents in which public officials or institutions are involved, to ensure that they are accountable against the deaths which occur due to their interference or under their responsibility or by the actions of other individuals (see Serpil Kerimoğlu and Others, § 54).
151. The procedural obligation concerning the right to life can be fulfilled via criminal, civil or administrative investigations, depending on the nature of the case. In cases pertaining to incidents of death occurring as a result of intention or ill-treatment perpetrated by public officers, the State has an obligation, by virtue of Article 17 of the Constitution, to conduct criminal investigations capable of leading to the identification and punishment of those responsible.
152. In order to be able to say that an investigation is effective and sufficient, investigation authorities need to act ex officio and collect all evidence which can shed light on the death and can be suitable for the identification of those who are responsible. A deficiency in the investigation that would reduce the likelihood of discovering the cause of the incident of death or those who are responsible bears the risk of clashing with the obligation of conducting an effective investigation (see Serpil Kerimoğlu and Others, § 57).
153. In this respect, the authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, witness testimonies, expert examinations and, where appropriate, an autopsy which provides a complete and detailed report and an objective analysis of the cause of death (see Turan Uytun and Kevzer Uytun, no. 2013/9461, 15 December 2015, § 73; for similar judgments of the ECHR, see also Giuliani and Gaggio v. Italy [GC], no. 23458/02, 24 March 2011, § 301; Tanrıkulu v. Turkey [GC], no. 23763/94, 8 July 1999, § 109; and Gül v. Turkey, no. 22676/93, 14 December 2000, § 89).
154. On the other hand, the nature and degree of the review meeting the minimum standard of effectiveness of the investigation depends on the particular circumstances of the case. The question of effectiveness in this scope should be assessed on the basis of all relevant facts and the practical realities of the investigation. Therefore, it is not possible to reduce the variety of situations that can occur to a simple list of investigative acts or other minimum criteria (see Fahriye Erkek and Others, no. 2013/4668, 16 September 2015, § 68; for a similar judgment of the ECHR, see also Velcea and Mazare v. Romania, no. 64301/01, 1 December 2009, § 105).
155. The decision which has been taken at the end of the investigation should be based on a comprehensive, objective and an impartial analysis of all findings and, in addition, the decision concerned should also include an assessment of whether the interference with the right to life was proportionate and arose from an exigent circumstance sought by the Constitution (see Cemil Danışman, § 99; for a similar judgment of the ECHR, see also Nachova and Others v. Bulgaria [GC] nos. 43577/98 and 43579/98, 6 July 2005, § 113).
156. One of the matters which ensures the effectiveness of the criminal investigations to be conducted is the fact that the investigation process is open to public review in order to ensure accountability in practice. In addition, in each incident, it should be ensured that the relatives of the deceased person are involved in this process to the extent that it is necessary so as to protect their legitimate interests (see Serpil Kerimoğlu and Others, § 58).
157. To ensure the effectiveness of investigations concerning cases of deaths arising from the use of force by public officers, the investigative authorities must be independent from those persons who might have been involved in the case. This requirement not only defines hierarchical and institutional independence but also necessitates that the investigation is actually (also in practice) carried out independently (see Cemil Danışman, § 96; for a similar judgment of the ECHR, see also Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001, § 106).
158. The investigations must be conducted at a reasonable speed and diligence. Of course, there may be difficulties which hinder progress of the investigation in certain specific circumstances. However, speedy actions taken by the authorities even in those circumstances is of critical importance for clarification of the events in a sounder manner, maintenance of the individuals’ commitment to the rule of law and hindering the impression that authorities tolerate and remain indifferent to unlawful acts (see Deniz Yazıcı, no. 2013/6359, 10 December 2014, § 96).
159. On the condition that the circumstances of each given case are assessed separately, the acts that expressly jeopardise life and grave attacks towards material and spiritual existence must not be allowed to go unpunished (see Filiz Aka, no. 2013/8365, 10 June 2015, § 32).
160. The carrying out of an investigation solely with a view to establishing or ruling out the involvement of other persons in a suspicious death by unknown perpetrators is not sufficient to satisfy the procedural obligation; the national authorities’ obligation also extends to establishing how exactly the incident took place (see Turan Uytun and Kevzer Uytun, § 89; for a similar judgment of the ECHR, see also Sultan Dölek and Others v. Turkey, no. 34902/10, 28 April 2015, § 69). In this scope, there is a need for an effective official investigation capable of establishing all circumstances of the case and ensuring that those who are responsible for the incident of death are identified and punished, if necessary (see Serpil Kerimoğlu and Others, § 54).
161. The application concerns an alleged lack of effective investigation conducted into the death incident resulting from the use of force by public officers. The applicants reach at this conclusion by relying on two main points of complaint. Firstly, the applicants complain that the evidence related to the incident were not sufficiently collected and that the investigation was conducted merely on the basis of the evidence submitted by the applicants. Secondly, they complain that, although the impugned intervention was carried out by several law enforcement officers, criminal proceedings were brought only against one officer. The Court will examine the applicants’ complaints in the light of the aforementioned principles to assess whether the investigation and prosecution authorities conducted an effective investigation capable of ensuring the identification and punishment (if necessary) of those responsible by virtue of Article 17 of the Constitution.
162. For a criminal investigation to be effective, the investigative authorities should act ex officio and collect evidence; the investigation process should be open to public review; the relatives of the deceased should be involved in the investigation process; the investigative authorities should be independent from those who might be involved in the incident; the investigation should be conducted at a reasonable speed and diligence; and the interferences with life should not be left unpunished.
163. In the present case, the Van Public Prosecutor’s Office was informed upon M.D.’s death at the hospital and the public prosecutor on duty conducted the post-mortem examination and autopsy procedures in a few hours despite the fact that it was in the night. In the following morning, the Erciş Public Prosecutor’s Office initiated an investigation. It is observed that the investigative authorities were promptly aware of the death and took action ex officio without waiting for a complaint to be filed by the applicants.
164. Though it is important for the public prosecutor’s office to act ex officio, it does not per se ensure the effectiveness of the investigation. Within the scope of the investigation, there is a need for collecting all evidence that may shed light on the death and ensure the identification of those who are responsible. Thus, it must first be determined what was established and what could not be established, with regard to the incident resulting in M.D.’s death, by the authorities conducting investigation and prosecution.
165. The following are the facts that were established within the investigation, were not disputed by the applicants, and were accepted by the court at the end of the trial: 1) Around 1 p.m., M.D. was arrested by law enforcement officers near the Çapa Medical Centre and he was taken to the Erciş District Security Directorate in a civilian non-commercial automobile. 2) After M.D. was arrested, a medical report was not obtained in respect of him. 3) Until 6 p.m., M.D. was held at the Security Directorate but he was not recorded in any custody form or the custody suite logbook. 4) Once his health condition deteriorated, at 6.10 p.m. law enforcement officers took M.D. to the Erciş State Hospital. 5) Around 11 p.m., M.D. lost his life at the Van State Hospital, to which he had been urgently transferred in a “life-critical” condition. 6) M.D. died of brain damage and brain haemorrhage linked to blunt head trauma. There were also rib fractures and disseminated traumatic lesions on his body.
166. In observing the facts that were not established during the investigation stage despite their importance for understanding how the death had occurred, there is a need for differentiating between those that could not be established despite enquiries and those that were never enquired.
167. On the basis of the information and documents contained in the file, the following questions were enquired by the investigative authorities but could not be established: 1) The identity of the plain-clothed police officer who had allegedly struck the lethal blow to M.D.’s head during the arrest procedure was enquired but it could not be determined precisely. 2) The Çapa Medical Centre’s footages showing the moment of arrest were sought but they could not be secured as the security cameras had been broken on the date of the incident. 3) Custody forms and custody suite entry-exit forms were sought but it was found out that they had not been issued. 4) Witnesses were questioned about the alleged use of sticks resembling pickaxe handles by some of the law enforcement officers during their intervention in the incidents on account of inadequate number of batons; however, this allegation could not be confirmed.
168. According to the information and documents in the file, the following points are considered to have never been enquired by investigation and prosecution authorities: 1) whether M.D. participated in the illegal demonstrations; 2) whether M.D. showed such resistance against law enforcement officers during the arrest and custody procedures that would call for an absolutely necessary use of force which may result in death; 3) who were the uniformed law enforcement officers beside the plain-clothed police officer who allegedly struck the lethal blow to M.D.’s head; 4) the vehicle, and the driver thereof, which was used to take M.D. to the Security Directorate following his arrest; 5) the footages showing the interior, entries/exits, and custodial suites of the building for the period between 1 p.m. and 6 p.m., during which M.D. was held at the Security Directorate; 6) statements of the officers and supervising officers stationed at the Security Directorate on the day of the incident, as well as those of the law enforcement officers who signed the arrest report; 7) the identities of the law enforcement officers who considered that M.D.’s health condition was deteriorating and those who brought him the hospital; 8) statements of certain individuals who told to have witnessed the incident in the report prepared by the Van Bar Association, the Van Branch Office of the Human Rights Association (IHD), and the Association for Human Rights and Solidarity for the Oppressed (MAZLUMDER).
169. As it can be observed, even though certain pieces of evidence were collected by the investigative authorities, no enquiries were made into many pertinent questions that are considered to be capable of shedding light on the case. As it is not its duty, the Court is not concerned with what the outcome of the impugned proceedings would have been if the above-mentioned points had been enquired. The Court’s duty is limited to ascertaining whether, or to what extent, the investigative authorities fulfilled their obligation to conduct an in-depth and diligent investigation as stipulated by the Constitution.
170. In this regard, the Court concludes that there has been a violation of the obligation to collect evidence, in the context of obligation to conduct an effective investigation, on the grounds that the investigation had a set of deficiencies, which would reduce the likelihood of discovering those who are responsible for the death and prejudiced the dedication and seriousness of the investigation, and a disregard for seeking certain pieces of evidence and enquiring questions that should have absolutely been collected and answered.
171. There is a further need for an examination on the independence of the investigative authorities since the law enforcement officers who were assigned with collecting the evidence that is considered to be important for shedding light on the case were also the officers who were accused of having perpetrated the incident of death.
172. In order to be able to speak of the independence of investigative authorities, the investigations into the deaths resulting from the use of force by public officers must be conducted independently from those who might be involved in the incident. In the instant case, an investigation was launched ex officio by the public prosecutor’s office on the ground that an incident of death had taken place as a result of the use of force by law enforcement officers; nonetheless, although the perpetrator was unknown but probably stationed at the Erciş Security Directorate, it was also the latter that was assigned with the collection of evidence and identification of the perpetrator.
173. Since the Security units performed an intervention in the illegal demonstrations taking place on the incident date, it is a natural requirement of investigation to request the information and documents under the responsibility of the public authority from the Security Directorate. Apart from those requests for information and documents, however, the Court notes that the Security Directorate was left with the discretion in terms of conducting the procedures that are critical for shedding light on the case, including the enquiry/examination of video recordings related to the incident, identification and questioning of witnesses, identification of the perpetrators and questioning them in their capacities as suspects, and obtaining an expert report. As a result, the Erciş Security Directorate failed to identify the perpetrator, disclose the names of the police officers who had arrested M.D., or submit any other evidence that may help shed light on the incident. Even though this does not necessarily mean that certain pieces of evidence were intentionally left out or hidden by the Security Directorate, it entails serious doubts as to the independence of investigating authorities in a case where there is an alleged use of lethal force by law enforcement officers.
174. Therefore, the Court concludes that there has been a violation of the principle of independence of the investigative authority, in the context of the obligation to conduct an effective investigation, on the ground that the investigative procedures (e.g. evidence collection, questioning, identification) concerning an incident of death, which had allegedly resulted from the use of force by law enforcement officers and of which the perpetrator was still unknown, were carried out with the help of the law enforcement officers involved in the incident.
175. One of the main grounds on which the applicants base their allegation concerning the lack of an effective investigation is the fact that only one police officer faced criminal proceedings although several officers were involved in the battery inflicted on M.D.
176. In the present case, the authorities conducting the investigation and prosecution turned their focus on the question whether it was the police officer named S.B. who had struck the lethal blow to M.D.’s head during his arrest. Thus, all the deliberations at the trial stage were held within that framework and, consequently, it was concluded that there was not sufficient evidence to prove that S.B. had committed the impugned offence.
177. The autopsy report issued in respect of M.D. contained findings related not only to the blow to his head but also to the rib fractures and disseminated traumatic lesions throughout his body. In their statements, eyewitnesses told that the uniformed police officers who had been trying to get M.D. inside the vehicle had used force and that the physical intervention had continued after his arrival at the police station. Although it was clear that there might have been other law enforcement officers who had administered physical intervention on M.D. in addition to the plain-clothed police officer allegedly involved in the incident, the public prosecutor’s office only filed proceedings against one suspect and did not consider it necessary to conduct investigation against other suspects.
178. After the trial court also concluded that there was more than one perpetrator, a complaint was filed for the identification of and criminal prosecution against those officers. This time issuing a decision of non-prosecution on account of insufficient evidence, the public prosecutor’s office once again disregarded a strong suspicion pointing at the involvement of multiple perpetrators. Consequently, even though a death had taken place as a result of the use of force by public officers and the perpetrators had not yet been identified, there were no longer an on-going investigation or prosecution.
179. A decision taken at the end of an investigation must cover all the findings contained in the case file and must be based on objective and impartial analyses. In the instant case, the investigation was conducted and completed in the limited scope of determining whether a certain individual had been involved in the incident. Furthermore, no assessment was made on the justification of the interference with the life or whether it fell within the exceptions provided in Article 17 § 4 of the Constitution. Therefore, taking account of the circumstances of the present case together with the impugned investigation and the collected/non-collected pieces of evidence, the Court concludes that the decision issued at the end of the investigation did not meet the requirements of the obligation to conduct an effective investigation.
180. In order for the effectiveness to be determined, there is also a need for an assessment as to whether the investigation was conducted at a reasonable speed and diligence and whether the applicants’ participation in the investigation process was ensured.
181. In the instant case, the investigation that was launched ex officio on 6 March 2008 was completed in approximately one year and criminal proceedings were filed on 25 March 2009. The trial was completed on 2 June 2011 and the decision became final once the Court of Cassation completed the appellate review on 11 October 2012. A set of proceedings in which the deliberations concerned an incident of death occurring as a result of the use of force by public officers, and which could be regarded as a difficult case, was completed in a reasonable amount of time, i.e. nearly four years including the appellate review.
182. Nonetheless, having found a violation as a result of the examination on the collection of evidence, the Court has not held a separate assessment on the question whether the investigation was conducted with reasonable diligence.
183. The Court further observes that the applicants were legally represented at the investigation and prosecution stages; that their statements were taken in person by the public prosecutor conducting the investigation; that the applicants’ requests for enquiries were met; that a second autopsy was performed on the body upon their request for exhumation; that they were admitted to the proceedings as intervening party; and that they were able to appeal the judgment delivered at the end of trial. Therefore, the applicants were allowed to effectively take part in the investigation process.
184. For these reasons, the Court must hold that there has been a violation of the right to life enshrined in Article 17 of the Constitution under its procedural aspect (collection of evidence, independence of the investigative authority) for the failure to conduct an effective investigation into the incident of death.
185. Article 50 of Law no. 6216, in so far as relevant, reads as follows:
“(1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled. However, legitimacy review cannot be done, decisions having the quality of administrative acts and transactions cannot be made.
(2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed. In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown. The court which is responsible for holding the retrial shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”
186. In the present application, since the Court has found a violation of the substantive aspect of the right to life and a violation of the procedural obligation to conduct an effective investigation, a copy of the judgment must be sent to the relevant chief public prosecutor’s office for further action to redress the violation and its consequences.
187. The applicants claimed to be awarded a total sum of 650,000 Turkish liras (TRY), of which TRY 250,000 as pecuniary and TRY 400,000 as non-pecuniary compensation.
188. As a result of the examination of the application, it was held that the substantive aspect of Article 17 of the Constitution, as well as the obligation to conduct an effective investigation were violated. The applicants have not submitted any documents to the Court concerning the pecuniary damages they claim to have sustained. In order for the Court to award pecuniary compensation, a causal link must be established between the pecuniary damages allegedly sustained by the applicants and the claim for compensation. The compensation claim which has not been supported with any documents must be rejected.
189. The Court held that the substantive aspect of Article 17 of the Constitution, as well as the obligation to conduct an effective investigation were violated. In this connection, the Court considers that the finding of a violation of the obligation to conduct an effective investigation and sending the judgment to the relevant chief public prosecutor’s office for further action shall offer adequate redress for the removal of the negligence in this respect. On the other hand, having also found a violation of the right to life under its substantive aspect, the Court must award TRY 80,000 as non-pecuniary compensation in favour of the applicants.
190. The court fee of TRY 198.35 and counsel fee of TRY 1,800 calculated over the documents in the case file must be reimbursed to the applicants.
I. JUDGMENT
The Constitutional Court UNANIMOUSLY held on 21 April 2016 that
A. The alleged violation of the right to life be DECLARED ADMISSIBLE;
B. 1. The substantive aspect of the right to life safeguarded by Article 17 of the Constitution was VIOLATED;
2. The procedural aspect of the right to life safeguarded by Article 17 of the Constitution was VIOLATED;
C. A net amount of TRY 80,000 be JOINTLY PAID to the applicants in respect of non-pecuniary damage, and other compensation claims be REJECTED;
D. One copy of the judgment be SENT to the Erciş Chief Public Prosecutor’s Office for further action to redress the consequences of the violation of the right to life under its procedural aspect;
E. The total court expense of TRY 1,998.35 including the court fee of TRY 198.35 and counsel fee of TRY 1,800 be JOINTLY REIMBURSED TO THE APPLICANTS;
F. The payments be made within four months as from the date when the applicants apply to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date; and
