THE FACTS

 [8-39] While the applicant was performing his compulsory military service at the Security Service Unit Command of the İstanbul Kasımpaşa Military Hospital, he was examined at the emergency service of the Hospital where he was in charge after having become ill in the course of the training. He was then referred to the Gülhane Military Medical Academy (the GATA) Haydarpaşa Training Hospital because of severe abdominal pain. The applicant was taken under operation during which it was determined that his spleen had disintegrated, and therefore his spleen was extracted. After being discharged from the hospital, he was discharged from the military for being unfit for the military service. Although the applicant noted in his first statement that he had not been exposed to any strike, when he learned that he would be discharged from the military service upon extraction of his spleen, he stated that the sergeant H. had handcuffed him to the radiator pipe and beaten him for joking with for approximately twenty days before his illness. The applicant’s father filed a criminal complaint before the Public Prosecutor’s Office. Thereupon, an investigation was initiated by the Military Prosecutor’s Office, and statements of those who were concerned were taken, and the expert reports were received.

 The applicant’s father maintained that his son had been taken by the section sergeant to the basement of the hospital where he had been in charge for three times within a week and beaten by means of being handcuffed to the radiator pipe; and that his son had been threatened not to make a complaint.

 The applicant noted in his statement that in the first week of February 2012, H., who previously had a firm stand towards him, imposed a penalty on him in the mess for being late and subsequently handcuffed him to the radiator with his right hand which was close to the television and beat him by saying that H. would joke with him; that H. firstly hit on his shoulders and subsequently started to hit on his stomach as he lowered his guard for being tired; and that several days after the incident, he became ill during the training and his spleen was therefore extracted. It has been observed that the suspect and the witnesses stated that the impugned act of handcuffing actually took place; but it was only a joke; that the applicant being exposed to non-severe strikes on his shoulders for 5-6 times was aware of the fact that it was only a joke and got involved in this joke; that there was no hostility between the applicant and H.; and that the applicant became ill just after the training.

 The doctors examining and operating the applicant stated that any sign of strike and physical coercion were not found in the course of his examination; however, as his spleen was in normal sizes and any finding indicating that the applicant suffered from another disease was not detected, it was concluded that the applicant’s illness occurred as a result of a trauma. They also noted that after the applicant had learned that he would receive a report indicating that he was unfit for military service, he maintained that he had been beaten by the section sergeant; that he did not explain how the incident had taken place; that if the illness had occurred as a result of a trauma, its symptoms would appear in a few hours and may be extended for, at the most, twelve hours; and that as it was asked, it was not possible for the illness to appear within the period of twenty days.

 In the expert report caused to be drawn up by the relevant Command, it was set out that out of the spleen injuries occurring subsequent to blunt abdominal trauma, in 85% cases spleen was burst at an early stage and required medical intervention within 24-48 hours while 15% of cases gave rise to spleen laceration; and that 97% out of the delayed spleen injuries at the rate of 15% appeared within the period of the first month. It was also specified that the delayed spleen injuries occurred at a time when there was an increase in daily activities of the relevant person; and that this explanation was compatible with the present incident in which the applicant became ill in the course of the military training.

 The Military prosecutor’s office rendered a decision of non-prosecution on the grounds that there were discrepancies among different statements of the applicant concerning the dates alleged to be battered; that it was stated that the act of handcuffing had been a joke; that he had received the strikes on his shoulders; and that the impugned incident could not lead to spleen disintegration. The objection to this decision was dismissed by the military court.

 The applicant also brought a full remedy action against the Ministry of National Defence. It was decided by virtue of the judgment of the Supreme Military Administrative Court that the case be dismissed as in the impugned incident, there was no reason which would lead to the obligation to redress on the part of the defendant administration; and that the applicant would pay the attorney’s fees. The applicant’s request for rectification of the judgment was rejected.

IV. EXAMINATION AND GROUNDS

 40. The Constitutional Court, at its session of 13 April 2016, examined the application and decided as follows:

 A. The Applicant’s Allegations

 41. The applicant maintained that

 i. The prohibition of torture and ill-treatment was violated on the grounds that he had been subject to violence and ill-treatment by his military superiors while performing his compulsory military service; that on the day when he had suffered splenic disruption, he had been also battered by H.İ.D.Ü; and that an effective investigation had not been conducted into his allegations;

 ii. The rights to a fair trial and to an effective remedy were violated on the grounds that the investigation had been conducted by the military authorities lacking impartiality and independence; that his effective participation in the investigation had not been ensured; that he had been provided with the opportunity to examine the witnesses neither during the investigation nor during the examination of the challenge in the absence of a hearing; that the prosecution’s opinion requested by the military court during the examination of the challenge against the decision of non-prosecution had not been notified to him; and that they could not submit a comprehensive petition to raise his challenge as the decision of non-prosecution had been served on the principal not on his representative.

 iii. The right to a trial before two levels of jurisdiction in criminal matters was violated on the ground that his challenge against the decision of non-prosecution had been examined over the case-file without holding a hearing. He also claimed compensation for his pecuniary and non-pecuniary damages.

 42. In his counter-statements against the Ministry’s observations, the applicant also complained of the counsel fee of 5,100 Turkish liras (TRY) awarded by the Supreme Military Administrative Court against him.

 B. The Court’s Assessment

 43. The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). It has accordingly decided that the applicant’s allegations that his rights to a fair trial and to an effective remedy had been violated must be examined within the scope of the State’s obligation to conduct an effective investigation with regard to the prohibition of torture and ill-treatment. The alleged violation of the right to a trial before two levels of jurisdiction in criminal matters would be separately examined.

 44. It appears that the applicant also complained, in his counter-statements against the Ministry’s observations, that the Supreme Military Administrative Court had awarded a counsel fee of TRY 5,100 against him. It has been considered that the said complaint might be examined within the scope of the right of access to a court. However, as it was of a nature independent of the complaints specified in the application petition and raised without lodging a further application, its examination cannot be considered possible. Otherwise, it would become inevitable for any kind of claims to be included in the application file at any time after an individual application has been lodged, and thereby the rules of procedure envisaged for the individual application system would become futile (see Ümit Demir, no. 2012/1000, 18 September 2014, § 31).

 1. Admissibility

 a. Alleged Violation of the Right to a Trial before Two Levels of Jurisdiction

 45. The applicant maintained that as his challenge against the decision of non-prosecution issued by the military prosecutor’s office had been examined without a hearing, the set of criminal proceedings was not carried out at two levels, which was in breach of Article 2 of the Additional Protocol no. 7 to the European Convention on Human Rights (“the Convention”).

 46. Pursuant to the Constitution and relevant legal provisions, in order for an individual application lodged with the Court to be examined on the merits, the right alleged to have been violated by a public authority must be not only safeguarded by the Constitution but also embodied by the Convention and its additional protocols to which Turkey is a party. In other words, it is not possible for the Court to declare admissible any application with an alleged violation of any right which is not under the joint protection of the Constitution and the Convention (see Onurhan Solmaz, no. 2012/1049, 26 March 2013, § 18).

 47. The right of appeal set forth in Article 2 of the Additional Protocol no. 7 to the Convention is applicable to persons convicted of a criminal offence. Therefore, persons having the capacity of intervening party/victim -like the applicant in the present case- fall outside the scope of such protection.

 48. For these reasons, the Court declared this part of the application inadmissible for lack of competence ratione materiae without any further examination as to the other admissibility criteria.

 b. Alleged Violation of the Prohibition of Torture and Ill-treatment

 49. The Court declared the alleged violation of the prohibition of torture and ill-treatment admissible for not being manifestly ill-founded and there being no other ground to declare it inadmissible.

 2. Merits

 50. Article 17 §§ 1 and 3 of the Constitution reads as follows:

 “Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence.

 …

 No one shall be subjected to torture or mal-treatment; no one shall be subjected to penalties or treatment incompatible with human dignity.”

 51. The applicant maintained that he had been subject to violence and ill-treatment during his compulsory military service as a result of which he had suffered splenic disruption and undergone an operation; that the investigation initiated upon his complaint had been conducted by military authorities, and all evidence had been collected by military officers; that the investigation authorities had not been impartial and independent; and hat his effective participation in the investigation had not been ensured, and nor had an effective investigation been conducted into his case.

 52. In its observations, the Ministry indicated that an investigation had been promptly initiated upon the applicant’s and his father’s complaint; that within the scope of the investigation, all persons that the applicant had requested to be heard as a witness had been heard; that statements of the doctors undertaking the applicant’s medical treatment had been taken; that an expert report had been examined so as to reveal the possibility of the applicant’s suffering from splenic disruption if the impugned incident had taken place in the manner as alleged by him; and regard being had to both the discrepancies in the applicant’s statements of different dates and to the witnesses’ statements, it was concluded that the applicant had failed to support his allegation by appropriate evidence.

 53. The applicant stated in his counter-statements against the Ministry’s observations that as H.İ.D. was his military superior, it had been therefore impossible for them to joke with one another; that he had been exposed to ill-treatment several times by H.İ.D.; that as he had been afraid, he could not report the incident of battery until he became aware that a report whereby he would be declared unfit for military service would be issued; that the suspect had battered him every day; that although he had been complained of having been battered by the suspect on the day of incident, a decision of non-prosecution was rendered due to the inconsistency as to the date of the impugned incident; and that no inquiry had been conducted in order to identify those responsible for his suffering from splenic disruption while performing his compulsory military service during which the soldiers were under custody for 24 hours.

 54. It has been revealed that an assessment as to whether there was any responsibility attributable to the public authorities in the present case could be made only through conducting an effective investigation. Therefore, the Court’s examination as to the present case would be limited to the State’s procedural obligation to conduct an effective investigation that is set forth in Article 17 § 3 of the Constitution.

 a. General Principles

 55. The positive obligation incumbent on the State within the scope of the right to protect one’s corporeal and spiritual existence also has a procedural dimension which requires the State to conduct an effective official investigation capable of identifying and -if appropriate- punishing those responsible for any kind of unnatural physical and psychological assaults. The primary aim of such investigation is to guarantee effective implementation of law preventing these attacks and to ensure public officials or institutions -having involved in such assaults- to account for the incidents taking place under their supervision (see Cezmi Demir and Others, no. 2013/293, 17 July 2014, § 110).

 56. Accordingly, in case where an individual has an arguable claim of having been exposed, by a State officer, to an unlawful treatment in breach of Article 17 of the Constitution, this constitutional provision, interpreted in conjunction with the general obligation of Article 5 of the Constitution titled “Fundamental aims and duties of the State, requires an effective official investigation to be conducted. This investigation must be capable of leading to identification and punishment of those responsible. Otherwise, this provision would, despite its importance, become ineffective in practice and would in some circumstances lead State officers to abuse the rights of individuals under their supervision by way of being covered by a de facto immunity (see Tahir Canan, § 25).

 57. The type of investigation to be conducted into a case, as required by the procedural liability, is to be determined based on whether the obligations as to the substantive aspect of the right to protect one’s corporeal and spiritual existence require any criminal sanction. In cases of deaths and injuries caused intentionally or resulting from an assault or ill-treatment, the State is liable by virtue of Article 17 of the Constitution to conduct criminal investigations that are capable of identifying and punishing those responsible. In such cases, awarding compensation at the end of the administrative and civil proceedings does not suffice to redress the impugned violation and to remove the victim status (see Serpil Kerimoğlu and Others, no. 2012/752, 17 September 2013, § 55).

 58. The aim of the criminal investigation is to ensure the effective enforcement of the legislation provisions protecting the corporeal and spiritual existence of a person and to hold those responsible accountable. This is not an obligation of result but of appropriate means (see Serpil Kerimoğlu and Others, § 56).

59. The criminal investigations to be conducted must be effective and sufficient to the extent that would allow the identification and punishment of those responsible. An effective and sufficient investigation requires that the investigation authorities act ex officio and gather all the evidence capable of clarifying the incident and identifying those responsible. Hence, an investigation into the allegations of ill-treatment must be conducted independently, promptly and in an in-depth manner (see Cezmi Demir and Others, § 114).

60. One of the factors ensuring effectiveness of criminal investigations into these incidents is to make the investigation or its consequences open to public scrutiny in order to ensure accountability not only in theory but also in practice. In addition, in each incident, victims are ensured to effectively participate in this process for the protection of their legitimate interests (see Cezmi Demir and Others, § 115).

61. The officials must act immediately after an official complaint is filed. Even if there is no complaint but are sufficiently certain indications of torture or ill-treatment, an investigation is ensured to be initiated. In this context, the investigation is to be initiated promptly, conducted being subject to public scrutiny and in an independent, meticulous and speedy manner as well as be effective as a whole (see Tahir Canan, § 25).

62. In order for the investigation conducted into the alleged torture and ill-treatment by public officers to be effective, the individuals responsible for the investigation and those carrying out the inquiries must be independent from those involved in the incident, which presupposes not only a lack of hierarchical or institutional connection but also existence of a practical independence (see Cezmi Demir and Others, § 117).

63. It is essential for authorities to act promptly in the investigation into the complaints of ill-treatment. Nevertheless, it must be acknowledged that there may be obstacles or complications hindering the progress of an investigation in any given situation. However, in case of an investigation into ill-treatment, it is required for authorities to conduct the investigation at a maximum speed and with utmost diligence so as to ensure adherence to the state of law, to avoid impressions of tolerance or encouragement towards unlawful acts, to prevent any possibility of deception or unlawful acts as well as to maintain confidence of the public (see Cezmi Demir and Others, § 119).

64. Article 17 of the Constitution is intended for the effective implementation of the legislation provisions concerning one’s corporeal and spiritual existence in case of a death or injury as well as for ensuring identification of those responsible and their accountability. This is not an obligation of result but of means. Therefore, it is not necessary to conclude all cases filed in this regard with conviction or a decision imposing a certain penalty (see Cezmi Demir and Others, § 127). However, those responsible for these acts must be sentenced with commensurate penalties, and the victim must be afforded appropriate redress.

b. Application of the Principles to the Present Case

65. The applicant alleged that no independent and impartial investigation had been conducted into his case as it had been conducted by the military prosecutor’s office and all evidence had been collected by military officers.

66. The prosecution, which may also undertake certain administrative acts, is indeed a judicial organ and is to provide sufficient assurance with regard to independence and impartiality principles while performing its judicial acts.

67. Within the military justice system, the distinction between judges and prosecutors is not definite, and the role of military prosecution is undertaken by military judges.

68. Article 145 of the Constitution sets forth that the relation between the military judges acting as a military prosecutor and the command where they take office shall be regulated by law on the basis of the principles of independent court and tenure of judges.

69. The military prosecutors are in principle provided with tenure of judges. However, in Law no. 353, it is set forth that they shall be under the supervision of the commander of the troop for which the military tribunal is established or the chief of the military institution; and that all acts and actions performed by military prosecutors shall be subject to the supervision of the Minister of National Defence.

70. The troop commander or chief of the military institution also has certain powers during the stages when the investigation is initiated and a request for pre-trial detention is made. He may also demand information from the military prosecution concerning the investigation stage.

71. As this commander or chief is superior in rank to the military prosecutor, it must be considered that these provisions may have a bearing on the independence of the investigation.

72. The requirements of impartiality and independence examined within the scope of the obligation to conduct an effective investigation call for a concrete examination as to whether the investigation is in its entirety impartial and independent, rather than an abstract assessment of the statutory or institutional independence (see, the ECHR’s judgment in the same vein, Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, 14 April 2015, § 222).

73. Where the statutory or institutional independence is open to question, such a situation, although not decisive, will call for a stricter scrutiny to determine as to whether the investigation has been carried out in an independent manner (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], § 224).

74. In its several assessments, the European Court of Human Rights (“the ECHR”) examined the prosecutors’ conducts and accordingly concluded that the investigations conducted by them, in spite of the statutory arrangements not affording sufficient independence to them, had been independent (see Stefan v. Romania, no. 5650/04, 29 November 2011, § 48; and Mantog v. Romania, no. 2893/02, 11 October 2007, § 70 et seq.).

75. In the present case, it has been revealed that the evidence collected within the scope of the investigation was mainly comprised of witnesses’ statements and an expert report; and that these statements were all taken by the military prosecutor’s office. The sole suspect of the investigation was not a high-ranking military officer but a person performing his compulsory military service.

76. Certain questions as to statutory and institutional independence cannot be per se construed as the failure of the military prosecutor’s office to conduct an independent and impartial investigation. Besides, in the present case, there is no indication which was in breach of this principle.

77. The applicant also alleged that the military courts, the authority to examine the challenges against the criminal investigations, had not been independent and impartial.

78. The formation, status and duties of the military courts are enshrined in Article 145 of the Constitution and Law no. 353. In consideration of these provisions, it appears that independence of the military judges appointed to military courts is guaranteed by the provisions of the Constitution and the relevant Law; that there is no issue as to their appointment and working procedures which would impair their impartiality; and that they are not accountable to the administration for their decisions (see Rıfat Bakır and Others, no. 2013/2782, 11 March 2015, § 80).

79. In its judgments, the ECHR also examined the complaints about the military courts’ independence and impartiality. Considering the particular circumstances of the relevant cases, it found that these courts had sufficient independence and impartiality (see Hakan Önen v. Turkey, no. 32860/96, 10 February 2004). However, at a subsequent date, making a reference to the Court’s judgment where certain provisions of Law no. 353 and Law no. 357 on Military Judges, dated 26 October 1963, were examined, the ECHR concluded that the applicants had not been tried by an independent and impartial court owing to the presence of a military officer on the bench of the military criminal courts (see İbrahim Gürkan v. Turkey, no. 10987/10, 3 July 2012, §§ 16-20).

80. In line with the Court’s judgment, Law no. 353 was amended by Article 1 of Law no. 6000 and dated 19 June 2010. It is accordingly set forth that a military officer would no longer sit at the bench of the military courts which would be accordingly composed of three military judges. Thereby, the contradictions as to the independence and impartiality of the courts, which were indicated in the Court’s judgments, have been eliminated. As a matter of fact, the ECHR took into consideration these developments and rejected, in its subsequent decisions, the complaints as to independence and impartiality of the military criminal courts for being manifestly ill-founded (see Hayri Kamalak and Others v. Turkey, no. 2251/11, 8 October 2013, § 31).

81. It must be separately examined whether the investigation was in general effective.

82. In the incident giving rise to the present application, upon the letter of denunciation and at the end of the administrative inquiry conducted by the applicant’s commanders, an investigation was conducted against H.İ.D. on charge of assault and battery against his inferior. However, a decision of non-prosecution was issued on the grounds that there were discrepancies among the applicant’s statements of different dates; that his handcuffing was stated to be only a joke; and that as he sustained the blows to his shoulder, the impugned incident could not lead to splenic damage.

83. Nevertheless, it appears that the doctors undertaking the applicant’s treatment and operation considered the probability that the splenic disruption might be caused due to the trauma.

84. In the expert report included in the investigation file, it is indicated that 15% of splenic damages caused by a trauma might lead to splenic disruption at a later date (generally within the first month) due to intensive physical activity, which is compatible with the applicant’s case history.

85. It has been observed that the decision of non-prosecution issued at the end of the investigation did not contain any assessment as to the findings on splenic disruption stated in the expert report.

86. Primary aim of the State’s obligation to conduct an effective investigation is to elucidate the impugned incident and to determine the responsibility on parts of the individuals involved in the incident as well as of the State (see Article 1 (a) of Annex 1 to the İstanbul Protocol). Only after the clarification of the incident and identification of those responsible, the other aims of the investigation process, namely punishment of those responsible and affording redress for the victims, may be at stake. As a matter of fact, an effective investigation requires, in the strict sense, conducting an investigation for elucidating the material facts and collection of all evidence.

87. It must be acknowledged that the applicant was mainly under the State’s control in performing his compulsory military service. In cases where an individual sustains injury while being under the State’s control, it is incumbent on the State to make a reasonable explanation as to how such injury has taken place. In the present case, this principle, which cannot be applied strictly to the same extent as in case of a custody under which the individual is completely under the State’s control, calls for the clarification of the manner in which the injury took place in consideration of the material fact that the applicant sustained splenic disruption probably on account of the trauma.

88. Regard being had to the fact that the expert report consistent with the applicant’s allegation was not taken into consideration, it has been concluded that due diligence had not been demonstrated in order to elucidate the material fact and to identify the possible responsibility.

89. For these reasons, the Court found a violation of the State’s procedural obligation to conduct an effective investigation laid down in Article 17 § 3 of the Constitution.

90. As regards the applicant’s allegations that he was not provided with the opportunity to examine the witnesses; that the prosecutor’s opinion requested by the military court during the examination of challenge against the decision of non-prosecution was not notified to him; that as the decision of non-prosecution issued by the prosecutor’s office had been served on the principal not on his representative, they could not submit a detailed letter of challenge, the Court found them to be related to the requirement of ensuring effective participation in the investigation that is among the principles of an effective investigation. It has been accordingly concluded that there was a breach of the procedural obligation. Therefore, the Court did not find it necessary to make a separate examination as to the applicant’s allegation that his effective participation in the investigation had not been ensured.

3. Application of Article 50 of Code no. 6216

91. Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, 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…

(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.”

 92. The applicant claimed pecuniary and non-pecuniary damage due to the violation of Article 17 of the Constitution.

 93. In the present case, it has been concluded that the State’s procedural obligation to conduct an effective investigation laid down in Article 17 § 3 of the Constitution was violated. The Court has accordingly found it necessary to order re-opening of the proceedings (investigation) in order to redress the violation and its consequences.

 94. The applicant must be awarded a net amount of TRY 7,500 for his non-pecuniary damage which could not be redressed by merely finding a violation.

 95. The applicant also claimed pecuniary compensation. The Court awards pecuniary compensation only when there is a casual link between the pecuniary damage allegedly sustained by the applicant and the violation found. Accordingly, his claim for pecuniary compensation was rejected for lack of any causal link between the violation found and his claim.

 96. Besides, the counsel of TRY 1,800 covered by the applicant and calculated over the case-file must be reimbursed to him.

V. JUDGMENT

The Constitutional Court UNANIMOUSLY held on 13 April 2016 that

A. 1. The alleged violation of the right to a trial before two levels of jurisdiction be DECLARED INADMISSIBLE for lack of competence ratione materiae;

 2. The alleged violation of Article 17 § 3 of the Constitution be DECLARED ADMISSIBLE;

B. The procedural obligation to conduct an effective investigation laid down in Article 17 § 3 of the Constitution was VIOLATED;

C. A copy of the judgment be SENT to the Military Prosecutor’s Office of the Northern Sea Area Command for a retrial (investigation) in order to redress the consequences of the violation of the procedural obligation to conduct an effective investigation as required by Article 17 § 3;

D. A net amount of TRY 7,500 be PAID to the applicant in respect of non-pecuniary damage, and his other compensation claims be REJECTED;

E. The counsel of TRY 1,800 be REIMBURSED TO THE APPLICANT;

F. The payment 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

G. A copy of the judgment be SENT to the Ministry of Justice.