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Individual Application User Guide Türkçe

(Cezmi Demir and others, B. No: 2013/293, 17/7/2014, § …)
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REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 

 

FIRST SECTION

 

 

JUDGMENT

 

 

CEZMİ DEMİR AND OTHERS

(Application NO. 2013/293)

 


FIRST SECTION

JUDGMENT

 

President

 :

Serruh KALELİ

Justices

 :

Zehra Ayla PERKTAŞ

 

 

Burhan ÜSTÜN

 

 

Nuri NECİPOĞLU

 

 

Zühtü ARSLAN

Rapporteur

:

Özcan ÖZBEY

Applicants

:

Cezmi DEMİR

 

 

Ertan DAĞABAKAN

 

 

Hicrettin DAĞABAKAN

           

 

I.         SUBJECT-MATTER OF THE APPLICATION

1.       The applicants alleged that Articles 17 and 36 of the Constitution were violated, stating that they suffered torture and ill-treatment by the law enforcement staff during the time they were in custody at the Hamur District Gendarmerie Command between 3/11/2001 - 6/11/2001 on the suspicion of theft of telephone wires, that the investigation and prosecution which was started against the Gendarmerie staff who conducted such acts and the doctors who issued misleading reports, at the hospitals where the applicants were medically examined, in order to conceal the crime committed were not efficiently conducted, that some defendants were acquitted, that the lawsuit against a defendant was subject to statute of limitations and that the trial continued for more than 11 years.

II.     APPLICATION PROCESS

2.       The applications were lodged on 3/1/2013 with the High Criminal Court of Ağrı. In the preliminary examination of the petitions and the annexes thereof as conducted in terms of administrative aspects, it was found that there was no deficiency that would prevent the referral thereof to the Commission.

3.       It was decided by the Second Commission of the First Section on 23/10/2013 and 25/2/2014 and by the Second Commission of the Second Section on18/3/2013 that the admissibility examination be conducted by the Section and the file be sent to the Section.

4.       In the examination of the applications that were lodged by the applicants, it was decided by the Section on 25/4/2014 that the files No: 2013/294 and 2013/545 be joined and examined with the individual application file (File No:2013/293) since it was found that there was a legal connection in terms of the subject matter.

5.       In the session held by the Section on 26/6/2013, it was decided that the examination of admissibility and merits of the application be carried out together.

6.       The facts and cases which are the subject matter of the application were notified to the Ministry of Justice on 27/6/2013. The Ministry of Justice presented its opinion to the Constitutional Court on 7/8/2013 at the end of the additional time period that was granted thereto.

7.       The opinion presented by the Ministry of Justice to the Constitutional Court was notified to the applicants Hicrettin and Ertan Dağabakan on 6/9/2013. No opposing opinion was submitted by the applicants to the Constitutional Court.

III.  THE FACTS

A.   The Circumstances of the Case

8.       As expressed in the application form and the annexes thereof, the relevant facts are summarized as follows:

1.      Actions Taken Regarding the Applicants within the Scope of the Alleged Crime 

9.       As a result of the operation that was performed on 3/11/2001 by the District Gendarmerie Command upon a denunciation that the copper wires belonging to Türk Telekom at the locality of Aşağı Karabal Köyü in Ağrı province were being cut and stolen, the applicants were arrested at the incident scene at around 22.30.

10.   Among the applicants, Ertan Dağabakan was born in 1985 and was 16 years of age when the claimed incident occurred whereas the other two applicants were older than 18 years of age.

11.   The applicants were kept in custody at the Gendarmerie Central Station Command for a total of three days between the dates of 3/11/2001 and 6/11/2001 upon the instructions of the Chief Public Prosecutor's Office of Hamur. 

12.   The statements of the applicants were taken by the Public Prosecutor's Office on 6/11/2001 and they were sent to Hamur Criminal Court of Peace with a request for their detention and, through the decision of the said Court (File No: Misc.2001/29 on 6/11/2001), the applicants were detained for the crimes of "establishing an organization in order to commit a crime and theft" and were sent to Ağrı Closed Penal Institution. The applicants were released by means of the decision of the same Court on 6/12/2001.

13.   Within the scope of the investigation that was conducted by the Chief Public Prosecutor's Office of Hamur based on the file (File No: Invs. 2001/306), as per the decision of the said Prosecutor's Office (File No: Misc. 2001/28 on 30/11/2011), the crimes of establishing an organization in order to commit a crime" and "theft" were separated and the crime of copper wire theft which was committed in the district of Hamur continued to be investigated based on the file (File No: Invs.2001/306) and the crime of copper wire theft which was committed within the borders of the province of Ağrı continued to be investigated based on the file (File No: Invs. 2001/311) whereas the crime of establishing an organization in order to commit a crime continued to be investigated based on the file (File No: Invs.2001/315) against the applicants.

14.   Within the scope of the investigation that was conducted against the applicants, the investigation file (File No: Invs.2001/315) in relation to the claim of establishing an organization in order to commit a crime was sent by the Chief Public Prosecutor's Office of Hamur to the Chief Public Prosecutor's Office of Ağrı through the Summary Record (File No:2001/13 on 20/12/2001) and the file (File No: Invs. 2001/311) in relation to the crime of theft which occurred outside the borders of the district of Hamur was sent by the Chief Public Prosecutor's Office of Hamur to the Chief Public Prosecutor's Office of Ağrı due to lack of venue.      

15.   Thereupon, a criminal case was filed against the applicants through the indictment of the Chief Public Prosecutor's Office of Ağrı (File No:2001/709 on 28/12/2001) for the crime of theft and, as a result of the trial held at the Criminal Court of First Instance of Ağrı, the applicants were acquitted through the decision of the said Court (File No:E.2001/799, K2002/87 on 28/2/2002) with the justification that there is no evidence in relation to the fact that they committed the attributed crime except for the statement at the Gendarmerie, that it is claimed this statement was taken under torture, that admission during interrogation which is performed in an environment where there is suspicion of torture cannot be accepted as evidence per se and this decision was not appealed and was finalized on 8/3/2002.

16.   Furthermore, another criminal case was filed against the applicants at the High Criminal Court of Ağrı through the indictment of the Chief Public Prosecutor's Office of Ağrı (File No: 2002/8 on 31/1/2002) for the crime of establishing an organization in order to commit a crime and as a result of the trial that was held, the acquittal of the applicants was decided through the decision of the said Court (File No: E.2002/20, K.2002/56 on 2/4/2002) with the justification that evidence, which was free from all kinds of suspicion, was convincing and conclusive in relation to the fact that they committed the attributed crime, was not presentand this decision was not appealed either and was finalized on 10/4/2002.

17.   Yet another criminal case was filed against the applicants at the Criminal Court of First Instance of Hamur by the Chief Public Prosecutor's Office of Ağrı in relation to the crime of theft which was claimed to have been committed within the borders of Hamur district and was investigated based on the file (File No: Invs.. 2001/306) and their trial was continued based on the file (File No: E. 2001/88) of the Court.

2.      Actions that were Taken upon the Applicants' Complaints of Ill-treatment

a.    Applicants' Claims of Ill-treatment

18.   In their statements that they gave on5/11/2001 before the Commander of the Station, İ.Ö. and his deputy, H.A., without the presence of their lawyers, applicants Ertan Dağabakan and Cezmi Demir admitted that they were present at the incident scene in order to cut down the cables on the poles which belonged to Telekom, that they hid when they saw the Gendarmerie vehicle, that, however, they were caught with the goods which were the subjects of crime and that they previously committed a couple of similar crimes whereas applicant Hicrettin Dağabakan stated that they went to the incident scene upon the request of a person for getting sugar beet carried in return for a fee. However, he disagreed when he saw this person and his two friends who were at the incident scene load the wires onto the trailer of a tractor and got the wires unloaded, that these three other people who he did not previously know but only agreed for business purposes ran away when they saw the Gendarmerie coming right at that moment and that they themselves did not run away and got arrested.

19.   In their statements that they gave on 6/11/2001 at the Public Prosecutor's Office, applicants H. Dağabakan and C. Demir stated that they went to the incident scene in order to carry sugar beets upon their agreement with a person they did not know, that they saw other persons at the said scene, that the other persons ran away when the Gendarmerie came at that moment, that they were arrested themselves and that they did not commit the attributed crime whereas applicant E. Dağabakan admitted the crime and also applicant Cezmi Demir stated that he admitted at the Gendarmerie station since he was suffering from torture.  In addition, all three applicants stated that they suffered from ill-treatment continuously when they were in custody, that they were battered on various parts of their bodies with truncheons, kicks and fist blows in order for them to admit to other incidents together with the crime that was the subject matter, that they were blindfolded, that they were subjected to insults involving swear  words, that cold water was poured over their heads and that, therefore, they were lodging complaints against the officials.  Upon this claim, the Prosecutor's Office initiated investigation on that very same day and referred the applicants to the Healthcare Center in order for them to re-obtain reports.  G.Ö., the doctor in charge, issued a report that the applicants did not have any marks of battering and coercion.

20.   During their interrogation dated 6/11/2001, the three applicants did not admit to the crime and stated that their statements at the Gendarmerie were taken under ill-treatment that they were stripped of their clothes and were battered and that they admitted because they were afraid.   Applicant E. Dağabakan stated that he also admitted to the crime at the Prosecutor's Office with the concern that they would be taken to the Station after the Prosecutor's Office and that he would suffer oppression once again.  The applicants were detained on the very same day.

21.   In their similar complaints at the High Criminal Court, the applicants declared in summary that, in order for them to admit to the attributed crime when they were in custody, they were blindfolded, that they were stripped off and they had to wait  naked for the whole night separately at a cold place like a garage-storehouse, that they felt like they were frozen, that water was sprayed onto them with a hose, that they were battered on various parts of their bodies with a stick, that their hair was pulled and they were dragged on the ground, that their eyes were opened by İ.Ö. from time to time and he asked them the question on whether they were good boys then, that they were not even allowed to satisfy their need to use the bathroom, that their genital organs were squeezed with a tool and attempts were made to insert a truncheon therein, that they were left hungry and thirsty for three days, that they were subjected to strong swears and threats towards themselves and their families, that it was mostly İ.Ö., the Station Commander, who conducted such acts, that H.A. was also with him, that the doctor at Hamur Healthcare Center issued a report without performing an examination on them, that defendant İ.Ö. was angry and came in again after reading the report which was issued for them at Ağrı State Hospital, that they waited for an hour and a half, that defendant İ.Ö. came later and they went back to the district, that they were lodging a complaint against the defendants due to the fact that they were continuously subjected to torture during the custody period and they were involved in the court case with the title of the intervening party.

b.   Medical Reports that were taken within the Scope of the Claims of the Applicants

22.   It was stated on the reports having the same content which were issued about the applicants after the medical examination performed at Hamur Healthcare Center on 3/11/2001 when they were taken into custody thatno findings are spotted as a result of the examination performed and there is no prejudice in their being taken into custody.

23.   The applicants underwent medical examination at Hamur Healthcare Center before being released from custody and referred to the Prosecutor's Office at around 08.30 on 6/11/2001 and it was stated on the first report dated 6/11/2001 which was issued by G.Ö., one of the doctors at the said Healthcare Center, about the three applicants that no mark of assault was found.

24.   In the second report dated 6/11/2001 which was once again taken from the same Healthcare Center and the same doctor after the applicants stated in their similar statements which they gave at the Prosecutor's Office that "they were subjected to ill-treament in custody", also a similar finding was provided.

25.   In his petition dated 7/11/2001 addressed at the Chief Public Prosecutor's Office, the attorney of the applicants stated that his clients were tortured by the officials during the period when they were in custody, that they still had the marks of torture on their bodies and he himself observed the marks during the interview he had with his clients in prison, that a report that was contrary to facts was issued due to the fact that the spouse of one of the commanders in charge at the station was working at the said healthcare center and requested that his clients be referred to the hospital once again and a doctor's report be issued for them.  

26.   Upon this request, the applicants were taken from the prison where they were detained under the supervision of İ.Ö., the station commander, and H.A., his deputy, and other officials who were claimed to have ill-treated the applicants and referred to Ağrı State Hospital for medical examination on 7/11/2001 and, in the report dated 7/11/2001 which was issued as a result of their examination at 18.40 by Y.İ. and Y.O., two of the doctors at the hospital,  made the statements that the patient had common hematoma on the upper right of his back which was thought to have occurred about 8-12 hours ago, that no new mark of battery-coercion was observed, that there is no threat to life, that there is no loss of work power or strengthwere included in relation to applicant Cezmi Demir, that the patient had redness on the back of his left leg, redness on the internal part of his right leg and redness at the right lower quadrant of his abdomen which were thought to have occurred about 8-12 hours ago, that no new mark of battery-coercion was observed, that there is no threat to life, that there is no loss of work power or strengthin relation to applicant Hicrettin Dağabakan and that the patient had hematoma on the right upper arm and redness on the abdomen skin which were thought to have occurred about 8-12 hours ago, that no new mark of battery-coercion was observed, that there is no threat to life, that there is no loss of work power or strength in relation to applicant Ertan Dağabakan.

27.   However, upon the objection of the attorney of the applicants to the Prosecutor's Office with the petition dated 9/11/2001 claiming that the report which was dated 7/11/2001 did not reflect the truth, that Doctor Y. İ. issued the said report under pressure from Gendarmerie officials, the Public Prosecutor ensured that the applicants be referred to Ağrı State Hospital in order for them to undergo medical examination again.

28.   In the report dated 12/11/2001 that was issued as a result of the examination of the applicants by the specialized doctors at Ağrı State Hospital, it was observed in relation to applicant Cezmi Demir thatthere is locally greenish ecchymosis and sensitivity on the right scapula in an area having an approximate size of 5x6 cm. Under such conditions, the patient is not subject to a life-threatening situation, there is a loss of 3-day work power and strength, there is no permanent mark on the face".It was observed in relation to applicant Hicrettin Dağabakan that "there is a 1x1 cm greenish ecchymosis on the front part of the right and left legs, two 4x5 cm greenish ecchymoses on the front part of the left forearm and the front part of left arm, locally greenish ecchymoses of 1x2 cm on the sternum, 2x3 cm on the front part of the right shoulder, 2 cm on the front part of the right arm, 5x3 cm on the right lumbar part, the patient is not subject to a life-threatening situation, there is a loss of 5-day work power and strength," and it was observed in relation to applicant Ertan Dağabakan that "there is a 1x2 cm crusted wound on the right McBurney's point and a 2x2 cm greenish ecchymosis on the front part of the right arm. Under such conditions, the patient is not subject to a life-threatening situation, there is a loss of 1-day work power and strength, there is no permanent mark on the face.".

29.   After the court case that was lodged against the aforementioned doctors (§ 32, 33; G. Ö., Y. İ., Y. O.), upon the request of the Criminal Court of First Instance of Ağrı with the correspondence dated 5/6/2002 that the difference between the reports dated 6/11/2001, 7/11/2001 and 12/11/2001 which were issued in relation to the applicants be evaluated, it was stated in the correspondence of the Forensic Medicine Institution dated 12/7/2002 in the same way and in summary on the reports in relation to the applicants that the findings in the report dated 12/11/2001 occurred due to a blunt traumatic factor, that these findings were the same lesions as the lesions in the report dated 7/11/2001, that this situation occurred within a time span varying from 7 to 12 days before the date of the last report.

30.   In the report dated 2/1/2006 which was taken from the Presidency of Forensic Medicine Institution, it was stated in relation to applicant Cezmi Demir that, although it was indicated in his examination which was performed on  7/11/2001 that there was common hematoma in the upper right of his back, since it was noted in his examination performed five days later on 12/11/2001 that there was a greenish ecchymosis in the same area, the said lesion needed to be an ecchymosis rather than a hematoma, that the ecchymoses which occurred on the body as a result of blunt trauma changed color and healed. However, it was not possible to medically determine when these ecchymoses occurred only through the color changes in the ecchymoses as it was known that such color changes could vary according to the severity of the trauma, the characteristics of the object or objects and the part of the body that it was applied to, age, gender and physiological characteristics, that different colors may be observed around and in the middle of ecchymoses during their healing process, that some of the colors observed during the healing process such as red, purple, pink, green, yellow and blue could be seen together or intermediate colors that remain among these could also be seen.When  statements such as greenish and yellowish was considered, which did not represent a definite color were also used while describing these intermediate colors, it was possible for the trauma that caused the ecchymosis which was described as greenish on 12/11/2001 to have occurred within a 5-to-15 day period retrospectively from that date. It was not possible to determine an exact date, and, furthermore, the same points were noted in the reports that were issued separately for the other applicants.        

c.    Judicial Action Taken in Relation to the Public Officials

                                                          i.              Court Cases Lodged as a Result of the Investigation

31.   After the applicants stated in their similar statements at the Prosecutor's Office that they were continuously subjected to ill-treatment during the period when they were in custody in order for them to admit to the accusations that were directed at themselves and thus they were filing a complaint against the Gendarmerie officials, an investigation based on the file registered with the number 2001/306 was started by the Prosecutor's Office on the very same day in order to probe into these claims. 

32.   As a result of the investigation that was carried out by the Chief Public Prosecutor's Office of Hamur and upon contradiction among the said reports, a criminal case was lodged at the Hamur Criminal Court of First Instance through the indictment dated 5/12/2001 and No.2001/71 in relation to Doctor G.Ö. who conducted the medical examination of the applicants on the date they were released  from custody and issued the first reports about the applicants which stated that "there was no mark of battering and coercion" with a request for his penalization for the crime of "issuing a report that is contrary to facts" as per Article 354/4,5 of the Turkish Penal Code No.765 which was in force on the date of crime. The case was registered with the (File No: E. 2001/87) Hamur Criminal Court of First Instance, the first hearing thereof was held on 6/12/2001 and following the closing of this court later (through the decision of HCJP on 9/6/2004 and No:278) the file was sent to the  Ağrı Criminal Court of First Instance and the trial was continued through the (File No:E. 2004/419) of the said court.

33.   Furthermore, within the scope of the investigation which was carried out by the Chief Public Prosecutor's Office of Hamur  based on the file (File No:Invs.2001/306) except for the court case lodged against Doctor G. Ö., the crimes of "issuing a report that is contrary to facts" and "ill-treatment to other persons" were also separated as per Miscellaneous Decision (File No:2001/28 on 30/11/2001); and the file (File No: Invs.2001/314) that was executed in relation to Y.İ. and Y.O., the doctors at Ağrı State Hospital, for the crime of "issuing a report that is contrary to facts" was submitted to the Chief Public Prosecutor's Office of Ağrı with the decision of lack of venue dated  and (File No:2001/11 on 7/12/2001), and a criminal case was lodged against the said persons at the Criminal Court of First Instance of Ağrı through the indictment of the Prosecutor's Office (File No: 2002/77 on 4/2/2002)  with a request for the penalization thereof as per Articles 64/1, 354/4-5 of the abolished Law No.765. The said court case was registered in the File No.E. 2002/86 of the said court.

34.   On the other hand, a criminal case was lodged with the Criminal Court of First Instance of Ağrı against İ.Ö., the Commander of Hamur District Gendarmerie Station, and H.A., his deputy, as per Articles 64/1, 354/4-5 of the Law No.765 through the indictment (File No:2002/192 on 26/3/2002) and , for the crime of "instigating the issuance of a forensic report that is contrary to facts in order to conceal torture" and the court case was registered (File No: E. 2002/213).

35.   It was decided by the Court on 27/3/2002 that the above-mentioned court case (File No: E 2002/213) be joined with the court case (File No: E.2002/86) with reference to the presence of actual and legal connection between them.  

36.   On the other hand, the investigation file executed based on the file (File No: Invs.2001/312) in relation to İ.Ö. and H.A., the Gendarmerie officials, whom the applicants claimed to have tortured and ill-treated them during the period they were in custody, was sent to the Chief Public Prosecutor's Office of Ağrı through the Summary Record dated 7/12/2001 by the Chief Public Prosecutor's Office of Hamur on the justification that the action fell within the competence of an High Criminal court. 

37.   Thereupon, a criminal case was lodged at the High Criminal Court of Ağrı through the indictment of the Chief Public Prosecutor's Office of Ağrı (File No:2001/81 on 28/12/2001) against İ. Ö., the Gendarmerie Station Commander, and H.A., his deputy, for the crime of ill-treatment to other persons by a public officialas per Article 243/1 of the Law No. 765.

                                                        ii.              Statements by Defendants and Witnesses

38.   In their statements and defenses at the stages of investigation and prosecution, İ.Ö., one of the defendants, stated, in summary, that; he was the station commander, the gendarmerie officials he instructed and sent upon the denunciation of theft arrested the applicants at the incident area and brought them to the station, he took statements himself during the three-day custody period, he had non-commissioned officer H.A., his deputy, with him during the taking of statements, he took the suspects to Ağrı State Hospital together with his deputy after release from custody upon the claims of ill-treatment, the reports which were issued were first submitted to him without cover so he talked to the doctor and had the reports put in an envelope, he did not exert any pressure on the said doctors in any manner during this process, he did not engage in any behavior of ill-treatment, and, through a similar statement, defendant H.A. also pleaded not guilty. In the same manner, defendant G.Ö. stated that he examined the applicants and issued the reports without being subject to any pressure and he also suggested that he did not commit the attributed crime.

39.   In his statement, defendant Y. O. stated, in summary, that; he was working as the doctor on duty at Ağrı State Hospital on the day of the incident, Doctor Y. was the active doctor on duty, the aggrieved were brought in for examination, they were examined by Doctor Y., Doctor Y. could not have a full grasp of the situation and asked him to re-do the examination, they undressed the aggrieved completely, the aggrieved had marks of battery and coercion but they thought a full opinion was not forged, then they issued a report that these marks occurred within the last 8 to 12 hours, their opinion was as such, they did not remember where the marks of battery and coercion were on the aggrieved, he delivered the reports to İ.Ö..

40.   In his defense, defendant Y. İ. said, in summary, that; he worked at Ağrı State Hospital, he examined the aggrieved, he had hesitations when he looked at the lesions and that's why he called in Doctor Y.O., they examined the aggrieved one by one together with Y. O., they issued the reports and handed them in an envelope over to an official whose name he could not remember.

41.   In her statement, witness N. Ö. said; she worked as a nurse at Hamur Healthcare Center on crime, she was the wife of İ.Ö., one of the defendants, she was working as the polyclinic nurse on the incident and the gendarmerie brought in the aggrieved for examination around 16.00, the aggrieved were undressed and examined one by one and a report was issued that they did not have any marks of battery or coercion on their bodies, gendarmerie commanders were not allowed in during examination, the aggrieved did not put forth any complaints, but one aggrieved said he had a headache, no phone calls were received from anywhere during the examination..

42.   Witness S. S. stated in his statement that; he was working as the standby doctor at Ağrı State Hospital on the incident, the Chief Physician called him and said there was an official correspondence, he went to the ER following this, he completely undressed the aggrieved, he examined the aggrieved one by one, the wounds stated in all three reports on the aggrieved were healing wounds  from about a week - ten days ago, they were wounds that could most possible  have been caused by a blunt tool or object, the persons were examined to have bruises and ecchymoses on their bodies due to blunt trauma, the contents of the report dated 12/11/2001 were accurate.

43.   Witness Ş. Ö. said in his statement that; they performed the examination of three incoming persons upon the written request of the Chief Public Prosecutor's Office of Ağrı on 12/11/2001, the wounds on various body parts of all three persons were healing wounds from about a week - ten days ago, the wounds had occurred due to blunt trauma and they had greenish, healing bruises and ecchymoses on their bodies.

                                                      iii.              Decisions Rendered as a Result of the Prosecution Stage

44.   As a result of the trial held within the (File No. E. 2002/86) of Ağrı Criminal Court of First Instance, through the decision (File No. E. 2002/86, K. 2002/506 on 9/10/2002 ) of the said Court, it was decided that the defendants Y.İ. and Y.O. were acquitted, taking into consideration their statements, on the justification of "the legal elements of crime not having formed", and İ.Ö. and H.A., the other defendants, were acquitted on the justification that evidence which was free from all kinds of suspicion, was convincing, open and conclusive could not be obtained, and this decision was not appealed to and finalized.

45.   The lawsuit that was heard based on the file (File No: E. 2001/192) at Ağrı High Criminal Court for the crime of ill-treatment to others by a public official was concluded with the decision of the said Court (File No: E. 2001/192, K. 2002/66 on 11/4/2002) and defendant H.A. was acquitted for his actions towards the applicants on the justification that there was noevidence which was free from sufficient suspicion, conclusive and convincing whereas defendant İ.Ö. was penalized with a total imprisonment of 30 months and 3 days and a penalty of disqualification from public office for 7 months and 15 days as per Articles 243/1 and 71 of the Law No. 765. 

46.   Following the fact that this decision was appealed to by the defendants and applicants on 24/4/2002, through the writ of the 8th Penal Chamber of the Court of Cassation (File No. E. 2003/1302, K. 2003/2451 on 23/6/2003), a decision of overturn was rendered on the justification that eliminating the contradictions among the three medical reports which were issued on the dates of 6/11/2001, 7/11/2001 and 12/11/2001 and sending the entire file to the Forensic Medicine Institution in order to exactly identify the time of occurrence of the determined findings and getting a final report, the judgment's being set through incomplete investigation although it was necessary to wait for the final judgments of the criminal cases which were lodged about the doctors and to evaluate all the evidence together to determine and appraise the legal statuses of the defendants.

47.   In the hearing held on 7/9/2004 by Ağrı High Criminal Court which accorded to the overturn and proceeded with the trial through the number M. 2003/141, it was decided that the court case (No. E. 2004/419) being tried at Ağrı Criminal Court of First Instance about Doctor G.Ö. be joined by the said court case, and the file, for the elimination of the deficits stated in the writ of the Court of Cassation, and the aggrieved, on hand , be sent to İstanbul Forensic Medicine Institution and the contradiction among the reports be eliminated.      

48.   As a result of the inclusion, in the file, of the report dated 2/1/2006 which was issued by the Forensic Medicine Institution and had similar determinations with the contents of the previous report (the report dated 12/7/2002), new judgments were rendered about all defendants. According to this, through the decision of Ağrı High Criminal Court (File No. E. 2003/141, K. 2006/117 on 1/6/2006), it was decided that H.A., one of the defendants, be acquitted, defendant G.Ö. be penalized with a judicial fine of TRY 600.00 for the crime of neglect of duty and this penalty be postponed, defendant İ.Ö. be penalized with a total imprisonment of 30 months and 3 days and a penalty of disqualification from public office for 7 months and 15 days after being proven guilty for his actions towards the applicants. 

49.   After the appeal by the parties to this decision on 2-15/6/2006, through the writ of the 8th Penal Chamber of the Court of Cassation dated and (File No. E. 2008/200, K. 2010/9496 on 30/6/2010), it was decided thatdespite the fact that the judgment was appealed to by defendants İ. Ö., G. Ö. and their counsels as well as Attorney S.B., the attorney to Hicrettin Dağbakan and Cezmi Demir, the intervening parties, as the attorney to intervening parties Hicrettin Dağabakan, Ertan Dağabakan and Cezmi Demir, it was understood that the names of Ertan Demir and Hicrettin Demirwere included on the letter of notification as the intervening parties and the phrase 'attorney to the intervening party, Ertan Demir' as the appellant was included; on the other hand, the decision of acquittal about H.A., the defendant within the scope of appeal, was not indicated in the title of the letter of notification, and, thus, the file be handed over to the Chief Public Prosecutor's Office of the Court of Cassation without being examined on the condition that it be returned after examination following the completion of the stated corrections. These corrections were made and the file was sent back to the 8th Penal Chamber of the Court of Cassation through the letter of notification of the Chief Public Prosecutor's Office of the Court of Cassation dated 21/9/2010.

50.   In the writ of the 8th Penal Chamber of the Court of Cassation  (File No: E. 2010/12971, K. 2011/5945 on 6/7/2011); it was stated that in the criminal case that was lodged against the intervening parties for the crime of establishing an organization to commit a crime, it was determined that the attorney who was delegated as counsel was delegated as counsel to defendants İ. Ö. and H. A. and this was contrary to the provision of Article and paragraph 38/b of the Code of Attorneys and it was decided that the judgment rendered about defendants İ. Ö. and H. A. be overturned and the court case about the other defendant G.Ö. be discontinued on the justification of statute of limitations and the decision of overturn about G.Ö. was finalized on the very same date.

51.   As a result of the trial held by the Ağrı High Criminal Court in accordance with the writ of overturn,  and (File No. E. 2011/176, K. 2012/95 on 10/4/2012)  it was decided that in relation to the crime of ill-treatment by a public official to others, H. A., one of the defendants, be acquitted whereas defendant İ. Ö. be penalized with a total imprisonment of 30 months and 3 days and a penalty of disqualification from public office for 7 months and 15 days due to his actions towards the applicant and the other two aggrieved persons.

52.   The justification of the court in the said decision was as follows:

“…It is understood that the aggrieved were subjected to treatment that is incompatible with human dignity, is humiliating and has resulted in their suffering bodily or mental pain with their perception or willpower impacted at Hamur District Gendarmerie Station Command where they were brought as suspects for the crime of theft, that the action was perpetrated by the defendant İ. Ö., that the aggrieved were completely undressed and soaked with cold water during the custody period that was resorted to with the aim of getting the suspects of the incident confess their crimes and lasted for three days, that they were battered, that they were subjected to ill-treatment, that they were insulted, that their pride was trampled on. When the material findings in the reports that are determined and the consistent statements of the aggrieved in stages are analyzed, our court is of the fully conscientious conviction that defendant İ.Ö. committed the crime of torturing the three aggrieved persons which is attributed to him.  The defenses of defendant İ.Ö. that he did not commit the crime attributed to him, that the said symptoms could occur after the suspects were released from custody are not found convincing when the scope of the entire file is taken into consideration and the penalization of the defendant as per Article 243/1 of the Turkish Penal Code No.765 is resorted to."   

53.   The applicants lodged an individual application in relation to the incident through their petitions which were dated 3/1/2013.

54.   On the other hand, after the decision dated 10/4/2012 was appealed by defendant İ.Ö. on 17/4/2012, it was decided that the judgment of the Court be upheld through the writ of the 8th Penal Chamber of the Court of Cassation dated 20/5/2013 and No. E. 2013/1460, K. 2013/15369 and an annotation of finalization was affixed to the decision about the defendants İ.Ö. and H.A. by the Court taking the very same date as basis.

B.   Relevant Law

55.   Article 230(1) of the abolished Turkish Penal Code No.765 of 1/3/1926 is as follows:

For whatever the reason might be, any officer who displays neglect and procrastination in delivering his/her duty as an officer or does not fulfill the orders given by his/her superiors in accordance with law without any valid reason shall be penalized with an imprisonment of three months to one year and a heavy fine of one thousand liras to five thousand liras.

56.   Article 243 of the Code No. 765 is as follows:

A penalty of heavy imprisonment up to eight years and a penalty of disqualification from public services on a permanent or temporary basis shall be given to officers or other public officials who torture or resort to cruel or inhuman or degrading treatment against a person to get them to confess their crime, to prevent an aggrieved person, a personal plaintiff, an intervening party or a witness from reporting incidents or due to the fact that they lodged complaints or made denunciations or stood as witnesses or for any other reason.

The penalty that is to be issued in accordance with Article 452 shall be increased from one third to half if death occurs as a result of the act whereas the penalty that is to be issued in accordance with Article 456 shall be increased from one third to half in other cases."  

57.   Article 354 of the Code No. 765 is as follows:

"If a physician, pharmacist, healthcare officer or any member of another healthcare profession issues a document, which is to be treasured as safe and reliable by the Government, in a way that is contrary to facts and just for favor, that person shall be penalized with an imprisonment of six months to two years and a heavy fine of one hundred million liras to three hundred million liras.  The same penalty shall be given even about any person who willfully uses such a document that is issued contrary to facts.

If the document that is contrary to facts is issued in order to conceal or destroy the evidence of a previously committed crime or torture, other cruel or inhuman acts, the penalty to be given to the perpetrator shall be an imprisonment of four years to eight years.

…”

IV.  EXAMINATION AND GROUNDS

58.   The individual applications of the applicants (App. No. 2013/293 on 3/1/2013) were examined during the session held by the Court on 17/7/2014 and the following are ordered and adjudged:

A.   The Applicants' Allegations

59.   The applicants asserted that they were taken into custody, with the title of suspect, by the law enforcement forces running an investigation upon reports of telephone wire theft around Aşağı Karabal Village of Ağrı province where they went together for to load sugar beets in return for a fee on 3/11/2001, that they were kept in custody for three days and that, in order for them to admit to committing the said crime, the law enforcement officials continuously poured cold water over their heads, fisted them on the head, battered them in various parts of their bodies, kept them out in the cold, did not give them bread and water, uttered degrading words to them, that they were thus subjected to torture and  ill-treatment.

60.   Furthermore, the applicants stated that they were taken out of custody into Hamur Healthcare Center in order to undergo medical examination before being referred to the Public Prosecutor's Office, that a report reading "there is no mark of battery and coercion" was issued in relation to them since one of the nurses working at the center was the wife of defendant İ.Ö. whom they complained about due to torture and ill-treatment, that, upon their objection to that report, they were taken to Ağrı State Hospital for a repeat medical examination under supervision of the same law enforcement officials who ill-treated them and the report issued as a result of their examination by the doctors in charge was submitted to defendant İ.Ö., that İ.Ö. got angry when he examined those reports and went into the hospital again to get the contents changed.

61.   Lastly, the applicants asserted that the criminal case lodged upon the complaint they made due to being subjected to torture and ill-treatment was not completed in a reasonable duration, that a decision satisfying the public opinion and conscience was not rendered despite the fact that eleven years elapsed following the incident, that the court case in relation to Doctor G.Ö. who was tried on the justification that he issued a forensic report contrary to fact in order to conceal torture abated due to statute of limitations, that some of the defendants were acquitted, that, due to these reasons, their rights in Articles 2, 3, 6, 8, 13 and 14 of the ECHR and Article 1 of the additional Protocol number 1 were violated and placed a request that a total of TRY 1.100.000 of compensation and trial expenses comprising of TRY 500.000 pecuniary compensation, TRY 500.000 non-pecuniary compensation and TRY 100.000 other expenses before courts of instance be paid.   

B.   The Constitutional Court’s Assessment

1.      Admissibility

62.   The Constitutional Court is not bound by the legal qualification of the facts made by the applicant, it appraises the legal definition of the facts and cases itself. Therefore, the claims of the applicants were considered to be related to Articles 17/3 and 36 of the Constitution and were evaluated within the scope of the prohibition of torture and the right to a fair trial.

a.      The Claim that the Right to a Fair Trial was Violated

63.   The applicants stated that the criminal trial held against the law enforcement officials who, they claimed, tortured them was not concluded in a reasonable duration and asserted that their rights to a fair trial were violated.

64.   In the Ministry opinion, the complaint that the right to a fair trial was violated was evaluated, the principles adopted by the European Court of Human Rights (ECtHR) were mentioned and it was stated that the ECtHR, noting the length of the investigation conducted as procedurally required by Article 3 of the Convention against those responsible, examined the complaints that Article 6/1 of the Convention was violated within the scope of Article 3 and did not separately handle the complaints based on Article 6/1.   

65.   The applicants did not make any declaration against the opinion of the Ministry on the merits of the application.

66.   Although the applicants asserted on the basis of the right to a fair trial that the court case lodged against the law enforcement officials exceeded a reasonable duration, since this matter also needed to be handled within the scope of the responsibility of the state to conduct an efficient investigation in relation to the prohibition on torture, a separate evaluation in terms of the right a to fair trial in relation to the said complaint was not carried out.    

b.      Alleged Violation of the Prohibition of Torture

67.   As a result of the examination of the application, since it was understood that the claims regarding the prohibition of torture were not manifestly ill-founded and there was no other reason to require a decision on their inadmissibility, it needs to be decided that this part of the application is admissible.

2.      Merits

68.   Article 17(1) and 17(3) of the Constitution are 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..

69.   Article 3 of the European Convention on Human Rights (ECHR) is as follows:

No one shall be subjected to torture or to inhuman or degradingtreatment or punishment.

70.   The applicants alleged that they continuously suffered from torture and ill-treatment by law enforcement officials for the 3 days when they were in custody in order for them to admit to the attributed crime.  

71.   Upon the complaint they lodged due to being subjected to torture and ill-treatment, the applicants stated that they underwent the doctor's examination with the oversight of the persons who ill-treated them, that these individuals influenced and guided the doctors issuing the reports, that the criminal case lodged for the said crimes was not completed in a reasonable duration, that the court case in relation to Doctor G.Ö. who was tried on the justification that he issued a forensic report that was contrary to fact in order to conceal the crime abated due to statute of limitations, that some of the defendants were acquitted, and, due to these reasons, the trials were not held efficiently.

72.   In the Ministry opinion, the complaints that the prohibition of torture was violated in terms of merits were evaluated and it was emphasized that it was understood from the file that the applicants were injured during the three-day period when they were kept in custody, that there was no explanation in the defenses of the defendants as to how this injury was caused, that the evaluation and discretion in relation to whether the prohibition of torture was violated in terms of merits rested with the Constitutional Court.

73.   In relation to complaints that the prohibition of torture was violated in terms of procedure, the Ministry stated that the investigation was initiated in relation to the said perpetrators upon the complaint of the applicants and court cases were lodged, that, however, when all the trial phases were considered, the trial started on 6/11/2001 was completed with the decision of approval dated 20/5/2013, that therefore the trial process lasted for eleven years six months and fourteen days, that it was emphasized in many ECtHR judgments that the investigation and prosecution towards the allegations of torture and ill-treatment should be concluded rapidly and efficiently, that the discretion in relation to whether the prohibition of torture was violated in terms of procedure rested with the Constitutional Court.

74.   The applicants did not make any declaration against the opinion of the Ministry on the merits of the application.

75.   The examination of complaints in relation to the prohibition of torture needs to be handled separately for material and procedural dimensions in connection with the negative and positive responsibility of the state.  Therefore, the complaints of the applicants in the present incident will be evaluated separately in terms of the material and procedural liabilities of the state within the scope of Article 17(3) of the Constitution.

a.        Alleged Violation of the Material Dimension of Article 17 of the Constitution

76.    Considering that the criminal prosecution was held and one of the defendants was convicted for the crime of torture in the present incident, it needs to be examined whether this situation primarily offered a sufficient and efficient redress in terms of the applicants, in other words, whether the result of trial removed the title of aggrieved.  Although it does not fall within the competence of the Constitutional Court to dwell on matters relevant to personal criminal responsibility and decide on whether individuals are guilty or not, the Constitutional Court has the competence to conduct constitutional reviews in cases where there is a clear disproportion between the gravity of an offense and the punishment given, in relation to practice for crimes of ill-treatment committed by public officials.  

77.   As stated in ECtHR judgments, although there is no final obligation for all judicial prosecution proceedings to be concluded with conviction or a certain sentencing, under no circumstances must courts allow life-threatening crimes and grave crimes against physical and mental integrity to remain unpunished or be subject to amnesty or statute of limitations.   As guardians of laws enacted in order to protect the lives and physical and mental integrity of persons falling within the scope of their jurisdiction, judicial bodies needs to be determined to impose sanctions on those who are responsible and not allow a clear disproportion between the gravity of an offense and the punishment given. Otherwise, the positive liability of the state to protect, through laws, the physical and mental integrity of persons will not be fulfilled (see. Ali and Ayşe Duran v. Turkey, App. No: 42942/02, 8/4/2008; Okkalı v. Turkey, App. No: 52067/99, 17/10/2006).

78.   Accordingly, in the said court case, due to the fact that rather than indicating that an act such as torture which constitutes a grave crime can be tolerated in no way, the Court rendered its judgment at the minimum limit in a disproportionate way to extenuate the consequences of this act and that the court case was abated in terms of one of the defendants due to statute of limitations, it was concluded that the titles of applicants as the aggrieved were not removed.

                                                              i.          General Principles

79.   The incident that is the subject matter of the application is related to the claim that the rights to protect and develop their corporeal and spiritual existences of the applicants, who were under the supervision of the state, due to the oral and physical attack they were subjected to were violated.

80.   Everyone's right to protect and develop their corporeal and spiritual existence is guaranteed in Article 17 of the Constitution.  Protection of human dignity is the aim in paragraph one of the said article. In paragraph three, it is also provided that no one can be subjected to "torture" or "torment", that no one can be subjected to a penalty or treatment which is "incompatible with human dignity"

81.   The liability of the state to respect the right of the individual to protect and develop his corporeal and spiritual existence requires that, firstly, public authorities must not intervene in this right, in other words, not cause any physical and mental injury to persons in ways that are stated in paragraph three of the said article.  This is a negative obligation of the state, arising from the liability thereof to respect the bodily and mental integrity of the individual. 

82.   Furthermore, Article 17 of the Constitution also assigns the State the obligation to take measures to prevent the said persons from being subjected to torture and torment or a penalty or treatment which is incompatible with human dignity even if such treatment is perpetrated by third persons. Therefore, in the event that officials do not take reasonable measures to prevent the occurrence of a danger of maltreatment they know or need to know about, the State may end up with a responsibility within the meaning of paragraph three of Article 17. For a similar judgment by the ECtHR, see Mahmut Kaya v. Turkey, App. No: 22535/93, 28/3/2000, § 115).

83.   On the other hand, in order for a treatment to fall into the scope of Article 17(3) of the Constitution, it needs to have attained a minimum level of gravity. This minimum threshold is relative and whether the minimum threshold is exceeded or not should be evaluated by taking into consideration the peculiarities of the present incident. In this context, factors such as the duration of treatment, the physical and mental effects thereof and the gender, age and health status of the aggrieved bear importance (App. No: 2012/969, 18/9/2013, § 23). The purpose and intention of treatment and the reasons behind can also be added to these elements that are to be taken into evaluation (For similar ECtHR judgments, see Aksoy v. Turkey, App. No: 21987/93, 18/12/1996, § 64; Eğmez v. Cyprus, App. No: 30873/96, 21/12/2000, § 78; Krastanov v. Bulgaria, App. No: 50222/99, 30/9/2004, § 53). Furthermore, the determination of whether ill-treatment occurred within a context where excitement and feelings were elevated (see Eğmez, § 53, above; Selmouni v. France [BD], App. No: 25803/94, 28/7/1999, § 104) is also another factor that needs to be taken into consideration.

84.   Ill-treatment is graded and described in different concepts by the Constitution and the ECtHR considering the effect thereof on the person. Therefore, it is seen that there are some differences of intensity between the statements present in Article 17(3) of the Constitution. In order to identify whether a certain treatment can be considered as "torture" or not, it is necessary to observe the difference between the concepts of "torment" and "incompatible with human dignity" and torture as mentioned in the said paragraph.  It is understood that this difference was introduced by the Constitution specifically in order to draw attention to the special situation in deliberate inhuman treatment which causes very grave and cruel pain and to do a sort of grading and that the said statements have a broader and different meaning than the elements of the crimes of "torture", "torment" and "insult" which are regulated by the Turkish Penal Code No.5237.  

85.   Accordingly, it is possible to identify treatment that causes the greatest harm to the corporeal and spiritual integrity of the person within the context of constitutional regulation as "torture" (App. No: 2012/969, 18/9/2013, § 22). In addition to the gravity of treatment, the element of "intention" is also included in Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, stating that the term "torture" covers intentionally inflicting severe pain or suffering for the purposes of obtaining information, punishing or intimidating or for any discriminatory reason.

86.   Article 1(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which was adopted by the General Assembly of the United Nations on 10/12/1984 and entered into force on 26/6/1987 and to which Turkey became a party on 10/8/1988 is as follows:

For the purposes of this Convention, the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

87.   Similarly, Article 15 of the said Convention includes the provisionEach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. and Article 16 includes the provision 1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  In particular, the obligations contained in Articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.

88.   Inhuman treatment which does not extend to the level of torture but is premeditated, applied for hours within a long period of time and caused physical injury or intensive physical or spiritual suffering can be defined as "torment" (App. No: 2012/969, 18/9/2013, § 22). In such cases, the pain that occurs in these forms must go beyond the pain that is inherent as an inevitable element in a legitimate treatment or punishment. Unlike torture, the intention of inflicting a suffering in line with a specific purpose is not sought in "torment". (For a similar ECtHR judgment, see Ireland v. United Kingdom, App. No: 5310/71, 18/1/1978, § 167; the above-mentioned Eğmez v. Cyprus, § 78). The ECtHR considers treatment such as physical attack, battery, psychological interrogation techniques, keeping in bad conditions, deporting or extraditing the person to a place where he will suffer from ill-treatment, a person getting lost under state supervision, a person's home being destroyed, fear and concern caused by waiting for a long time for the execution of death penalty, child abuse to be "inhuman treatment" (see the above-mentioned Ireland v. United Kingdom; Ilaşcu and others v. Moldova and Russia, [BD], App. No: 48787/99, 8/7/2004, §§ 432-438; Soering v. United Kingdom, App. No: 14038/88, 7/7/1989, § 91; Jabari v. Turkey, App. No: 40035/98, 11/7/2000, §§ 41-42; Giusto v. Italy, App. No: 38972/06, 15/5/2007). Treatment with such qualities can be qualified as "torment" within the context of Article 17(3) of the Constitution.

89.   It is possible to define lighter treatment that arouses feelings of fear, humiliation, grief and degradation in the aggrieved in a way to possibly humiliate and embarrass him or has a degrading quality which draws the aggrieved to act contrary to his own will and conscience as treatment or punishment that is "incompatible with human dignity" (App. No: 2012/969, 18/9/2013, § 22). In this definition, unlike "torment", the treatment applied on the person creates a humiliating or degrading effect rather than physical or mental pain.

90.   In order to identify which of these concepts constitutes a specific treatment, each given incident needs to be evaluated within its own special conditions. Although the fact that the treatment is perpetrated publicly plays a role in whether it is of a degrading quality incompatible with human dignity or not, in some cases it may suffice for ill-treatment at such a level that the person is humiliated in his own eyes (For a similar ECtHR judgment, see Pretty v. United Kingdom, App. No: 2346/02, 29/4/2002, § 52). Furthermore, although it is taken into consideration whether the treatment was perpetrated with an intention to humiliate or degrade, not being able to determine such a purpose will not mean that there is no violation of ill-treatment.  (For a similar ECtHR judgment, see V. v. United Kingdom, [BD], App. No: 24888/94, 16/12/1999, § 71). A treatment can both have the quality of being inhuman/torment and degrading/incompatible with human dignity (For a similar ECtHR judgment, see the above-mentioned Ireland v. United Kingdom). Every degrading treatment which is incompatible with human dignity may not have the quality to be inhuman/torment whereas all kinds of torture constitute an inhuman or degrading treatment at the same time. Conditions of detention, practice against the detainees, discriminatory behavior, insulting statements uttered by public officials, certain negative circumstances faced by the handicapped people, degrading treatment such as making the person eat or drink certain things that are not normal may prove to be treatment that is incompatible with human dignity.

91.   Threatening to engage in an act that is prohibited by Article 17(3) of the Constitution, on the condition that it is sufficiently close and real, may also involve the risk of bearing the result of the violation of this article. Therefore, threatening someone with torture may at least constitute a treatment that is "incompatible with human dignity". (For a similar ECtHR judgment, see Gäfgen v. Germany [BD], App. No: 22978/05, 1/6/2010, § 91; Campbell and Cosans v. United Kingdom, App. No: 7511/76 7743/76, 25/2/1982, § 26).

92.   Resorting to coercion towards a person who is deprived of his liberty as long as his actions and attitudes do not require the absolute use of force may bear the consequence of the staining of human dignity and the violation of the prohibition set forth in Article 17(3) of the Constitution as a principle.

93.   As stated in many judgments of the ECtHR, the prohibition of torture is a regulation that is relevant to the fundamental values of the democratic society. Unlike the majority of the normative articles of the ECHR, Article 3 does not set forth an exception and cannot be suspended even in the case of a general danger which threatens the existence of the nation in accordance with paragraph 2 of Article 15 (see Selmouni v. France [BD], App. No: 25803/94, 28/7/1999, § 95; Labita v. Italy [BD], App. No: 26772/95, 6/4/2000, § 119). The ECtHR confirmed that, even under the most challenging conditions such as the fight against terrorism and organized crime, the Convention prohibits, in definite phrases, torture and inhuman or degrading treatment or punishments no matter what the behavior of the aggrieved is (see the above-mentioned Labita v. Italy, § 119; Chahal v. United Kingdom, App. No: 22414/93, 15/11/1996, § 79).

94.   In ECtHR judgments, it is stated that, in cases when a person is taken into custody in a healthy condition but injury is spotted on his body upon his release, the State has the responsibility to bring in a reasonable explanation about how the said injury happened and to submit evidence that will leave the claims of the aggrieved to this end in doubt, that, specifically in cases when the claims are confirmed by doctor reports, obvious problems will occur within the meaning of Article 3 of the Convention (see the above-mentioned Selmouni v. France, § 87; Ferhat v. Turkey, App. No: 12673/05, 25/9/2012, § 33).

95.   Claims of ill-treatment need to be supported by appropriate evidence. (For a similar ECtHR judgment, see Klaas v. Germany, App. No: 15473/89, 22/9/1993, § 30). In order to determine that the claimed incidents are real, the existence of reasonable evidence that is far from all kinds of doubts is needed. Evidence having such quality can also be composed of sufficiently serious, clear and consistent indications or some presumptions, which cannot be proven otherwise. (For similar ECtHR judgments, see Ireland v. United Kingdom, App. No: 5310/71, 18/1/1978, § 161; the above-mentioned Labita v. Italy, § 121). In this context, the attitudes the parties adopt while evidence is collected needs to be taken into consideration (see Tanlı v. Turkey, App. No: 26129/95, 10/4/2001, § 109). Only in the case of the determination of these suitable conditions can the existence of ill-treatment be mentioned (App. No: 2013/394, 6/3/2014, § 28).

96.   The role of the Constitutional Court in the examination of complaints regarding individual applications is of secondary quality and it needs to act very carefully in cases when it is inevitable for it to assume the role of a court of first instance due to the conditions brought along by certain situations (For a similar ECtHR judgment, see McKerr v. United Kingdom, App. No: 28883/95, 4/4/2000). There is a risk to encounter such a situation in the examination of the complaints that are lodged within the context of Article 17 of the Constitution. When claims are placed in relation to the violation of the right to life and the prohibition of ill-treatment as guaranteed in the said article, the Constitutional Court should conduct a full examination in relation to this subject. (For a similar ECtHR judgment, see Ribitsch v. Austria, App. No: 18896/91, 4/12/1995, § 32). However, since it is the task of the courts of instance as a rule to evaluate the evidence in a court case that is being tried, the duty of the Constitutional Court is not to replace the evaluation which these courts conducted in relation to material incidents with its own evaluation (For a similar ECtHR judgment, see Klaas v. Germany, App. No: 15473/89, 22/9/1993, § 29; Jasar v. "Former Yugoslavian Republic of Macedonia, App. No: 69908/01, 15/2/2007, § 49). When a court case is being tried at courts of instance in relation to the claims of ill-treatment, the responsibility of penal law needs to be kept separate from the responsibility of the Constitution and of the international law. Out of the fundamental rights and freedoms guaranteed by the Constitution, the venue of the Constitutional Court is limited to those that are within the scope of the European Convention on Human Rights and the additional protocols thereto, to which Turkey is a party to. Therefore, the Constitutional Court does not have a task to get to a finding in relation to guilt or innocence within the context of criminal liability (For a similar ECtHR judgment, see the above-mentioned Tanlı v. Turkey, §§ 110 111). On the other hand, despite the fact that the findings of the courts of instance not being binding on the Constitutional Court, strong reasons need to exist, under normal conditions, in order to move away from the determinations these courts make in relation to material incidents (For a similar ECtHR judgment, see the above-mentioned Klaas v. Germany, § 30).

                                                            ii.          Application of Principles to the Present Case

97.   The applicants were taken into custody by Gendarmerie officials on 3/11/2001 on the suspicion of the crime of theft.  No health problem was spotted in their examinations performed on the very same day. The applicants were released from custody on 6/11/2001 and it was stated in the report issued in relation to them that "no mark of battery was observed. However, upon the applicants' statements which they gave at the Prosecutor's Office that they were continuously subjected to torture during the period when they were in custody in order for them to admit to the accusations that were directed at themselves, that Doctor G.Ö. who worked at the same healthcare center with the wife of the commander and who tortured them issued a report contrary to the facts and thus they were filing a complaint against the Gendarmerie officials and the hospital doctors, an investigation was initiated by the Prosecutor's Office on that very same day in order to delve into these claims and it was determined in the reports taken, in relation to the applicants, from other hospitals and the Forensic Medicine Institution that marks of battery were observed at various body parts of the applicants in the time period when they were in custody (§ 28, 29, 30). Furthermore, in their defenses, Gendarmerie officials İ.Ö. and H.A. did not make a convincing explanation as to how the injuries in custody occurred despite the fact that the applicants went into custody in good health.

98.   On the other hand, Ağrı Criminal Court of First Instance rendered a decision of acquittal in the court case, which was filed against the applicants for the crime of "theft", due to the presence of claims that the statements at the law enforcement, the only evidence against the applicants, were taken as a result of torture and Ağrı High Criminal Court rendered a decision of acquittal for the crime of "establishing an organization to commit a crime", on the justification that "evidence, which was free from all kinds of suspicion, was convincing and conclusive in relation to the fact that they committed the attributed crime, was not present." In addition to that, the decision of conviction rendered by the Ağrı High Criminal Court in relation to Gendarmerie official İ.Ö. for the crime of "ill-treatment to others" was upheld by the Court of Cassation and was thus finalized whereas H. A. was acquitted due to insufficient evidence.  Similarly, it was decided that defendants Y.İ. and Y.O. be acquitted for the crime of issuing reports that were contrary to facts. On the other hand, despite the fact that the act of the defendant G.Ö. who issued a report that the applicants had no marks of battery and worked at the same place with the wife, who is a nurse, of the defendant İ.Ö., who was convicted for the crime of ill-treatment to others, was deemed proven by the Court and he was convicted for the crime of neglect of duty, it was seen that, at the Court of Cassation stage, it was decided to abate the action due to statute of limitations.      

99.   The applicants asserted at the Prosecutor's Office and Court stages and in their individual applications that they were subjected, by the law enforcement officers, to battery with truncheons and fists at various parts of their bodies for the three days when they were in custody, that they were blindfolded, that they were stripped off and had to wait naked for the whole night separately in a cold place like a garage-storehouse, that water was sprayed onto them with a hose, that their hair was pulled and they were dragged on the ground, that they were not allowed to satisfy their need to use the bathroom, that their genital organs were squeezed with a tool, that attempts were made to insert a truncheon in their genital organs, that they were left hungry and thirsty, that they were subjected to strong swears and threats towards themselves and their families. It is evident that it will be difficult, due to the difficulty of collecting evidence, for the applicants, who were disconnected from the outer world as they were in custody or for whom it was not possible at any time to see the doctors, attorneys at law, family relatives or friends that could support them and provide the required evidence, to support the complaints they lodged in terms of the behaviors of ill-treatment which they were subject to during custody. In relation to the claims of the applicants within this scope, it is possible to reach a conclusion only in the case that all the data within the file is examined together.

100.        Accordingly, the consistent statements of the applicants at stages, the doctor reports taken from Ağrı State Hospital and the Forensic Medicine Institution and witness statements and the reasoned decision of the Court (§ 52) constituted a presumption for the trueness of the of applicants’ claims. In the face of the determination, through the applicants' consistent statements and doctor reports, that the applicants who were taken into custody in good health and were injured after they were released from custody or suffered ill-treament that did not leave any physical marks, the liability to prove that this was not due to the acts of the law enforcement officers now rests with the administration.  However, it was seen that the administration did not fulfill its liability to prove.

101.        All the injuries indicated in various health reports about the applicants and the statements of the applicants in relation to the ill-treatment they were subjected to in custody made it clear that there was physical pain.  The continuance of the incidents confirm that the attacks were intentionally inflicted on the applicants in order for them to make confessions about the incidents attributed to them. In other words, it is understood that these acts were deliberately practiced on the applicants in order to get them to admit to committing the previously mentioned crime.  The acts displayed are of a quality which intends to inflict physical and psychological pain to the applicants, to break their resistance and humiliate them and gives them the feelings of fear, concern and humiliation. There is a sufficient serious evidence element to say that these treatments have the quality of torture.

102.        For whatever reason it might be, the use of physical force against a person whose liberty is restricted, as long as not fully required by the attitude of this person, degrades human dignity and, as a rule, violates Article 17(3) of the Constitution. Specifically considering the fact that one of the applicants was under age during the incident that took place in custody, it is indisputable that this applicant may be under a risk to live in continuous pain and concern in the future due to the intensity of the violence he suffered during custody. 

103.        Furthermore, it is apparent that the acts in the sense that the applicants, who were already in a very vulnerable situation due to being in custody, were subjected to verbal and physical assault despite the fact that it did not stem from their own behaviors and there was no force majeure, that, moreover, they were referred to hospitals under the supervision of those who resorted to such use of force and that doctor reports were issued under the guidance and influence of these persons all sustained the existence of threat towards the applicants and this constitutes an intervention to human dignity.  

104.        Furthermore, although it was determined that the motive in the acts of the Gendarmerie officials was to shed light on the crime of theft, when Article 17(3) of the Constitution is taken into consideration, the prohibition of ill-treatment needs not be violated, no matter what the act of the aggrieved or the motive of the officials are. No matter how high the importance of the motive is, torture, torment or treatment that is incompatible with human dignity cannot be perpetrated even under the most difficult conditions such as the right to life. As per paragraph two of Article 15 of the Constitution, the suspension of this prohibition is not allowed even in the cases of war, mobilization, martial law or state of emergency. The philosophical basis that strengthens the quality of absoluteness of the right in the said articles does not allow any exception or justifying factor or the weighing of benefits, no matter what the act of the said person and the quality of the crime are.

105.        It is determined that the treatments which are stated above and have the quality to be incompatible with human dignity, cause bodily or mental pain, influence the skills of perception or will and lead to humiliation were perpetrated with the aim of getting information from the applicants, get them to admit to the attributed crimes, punish or intimidate them and through methods added to each other for three days by inflicting violent physical pain or mental pain under a certain deliberateness.   Accordingly, when the purpose, duration, physical and mental impact of the treatment that was deliberately perpetrated towards the applicants, one of whom was under age, are taken into consideration, and when the extent of the said acts and the fact that they were perpetrated intentionally by public officials on duty against the people concerned in order for the concerned to make confessions or provide information about the incidents attributed to them are considered and, furthermore, when the impacts caused by these treatments on the bodily integrity of the applicants are taken into consideration, it is concluded that it is possible to qualify them as torture.

106.        On the other hand, due to the fact that the court case was subject to statute of limitations in terms of a defendant and that, in relation to the convicted gendarmerie official, when his acts of a grave quality as stated in the justification of the Court are taken into consideration, a disproportionate practice is carried out between the crime committed and the punishment given and that the punishment given did not create a deterring impact which could ensure the prevention of such illegal acts, it is understood that the state did not fulfill its positive liabilities in terms of protecting, through laws, the physical and mental integrities of the applicants in the said case.

107.        In the light of the reasons explained, it is concluded that the prohibition of torture which is guaranteed in paragraph three of Article 17 of the Constitution was violated in terms of the material dimension thereof due to the acts the applicants were subjected to.

b.        Alleged Violation of the Procedural Dimension of Article 17 of the Constitution

                                                                 i.            General principles

108.        The applicants asserted that the court cases which were lodged due to them being subject to torture and ill-treatment and upon the complaints they filed against the law enforcement officers and the doctors who issued misleading reports in order to ensure the acts of these officials were not revealed were not completed in a reasonable duration, that the court case in relation to one of the defendants abated due to statute of limitations, that some of the defendants were acquitted, and, thus, the trial was not held efficiently.

109.        Within the scope of the right regulated in Article 17 of the Constitution, the state has, as a positive liability, the liability to protect the right to protect the corporeal and spiritual existence of all individuals within its own sphere of authority against risks which may arise from the acts of both public authorities and of other individuals and of the person himself.  The state is liable to protect the corporeal and spiritual existence of the individual from all kinds of dangers, threats and violence (App. No: 2012/752, 17/9/2013, § 51).

110.        This positive liability which the state bears within the scope of the right to protect the corporeal and spiritual existence of the individual also has a procedural dimension. Within the framework of this procedural liability, the state is obliged to carry out an effective official investigation which can ensure that those who are responsible for all kinds of physical and mental assault incidents which are not natural are determined and punished, if necessary, The main aim of this type of an investigation is to guarantee the effective implementation of the law that prevents the said assaults and, in the incidents in which public officials or institutions are involved, to ensure that they are accountable for the incidents which occur under their responsibility. (For similar ECtHR judgments, see Anguelova v. Bulgaria, App. No: 38361/97, 13/6/2002, § 137; Jasinskis v. Latvia, App. No: 45744/08, 21/12/2010, § 72).

111.        Accordingly, in the event that the individual has a defensible claim, that he was subjected, by a public official, to treatment in violation of law and in a way that  violates Article 17 of the Constitution, Article 17 of the Constitution requires, when interpreted together with the general liability in Article 5 with the side heading Fundamental aims and duties of the State, the performance of an effective official investigation. This investigation should be suitable to identify and punish those responsible. If this is not possible, this Article will become ineffective in practice despite the importance it has and, under some circumstances, it will be possible for public officials to benefit from de facto immunity and abuse the rights of the persons who are under their control (App. No: 2012/969, 18/9/2013, § 25; for a similar ECtHR judgment, see Corsacov v. Moldova, App. No: 18944/02, 4/4/2006, § 68).

112.        It is necessary to determine the type of investigation required by procedural liability in an incident depending on whether the liabilities as regards the essence of the right to protect the corporeal and spiritual existence of the individual require a criminal sanction or not. In court cases in relation to incidents of death and injury that occur as a result of deliberate treatment or assault or ill-treatment, as per Article 17 of the Constitution, the state has the liability to conduct criminal investigations with a quality to allow the determination and punishment of those responsible in the event of a lethal assault or assault causing injury. In such incidents, the payment of compensation as a result of the administrative and legal investigations and court cases held is not sufficient per se to eliminate this violation of rights and remove the title of the aggrieved (App. No: 2012/752, 17/9/2013, § 55).

113.        The purpose of the criminal investigations conducted is to ensure that the legislation provisions which protect the corporeal and spiritual existence of the person are effectively implemented and those responsible account for the incident of death or injury. This is not a consequential liability but the liability to use the appropriate means. On the other hand, the evaluations included here does not mean in any way that Article 17 of the Constitution vests the applicants the right to get third parties tried or punished due to a forensic crime (for a similar ECtHR judgment, see Perez v. France, 47287/99, 22/7/2008, § 70) or the obligation to conclude all trials in conviction or a specific penal decision (see the above mentioned Tanlı v. Turkey, § 111) (App. No: 2012/752, 17/9/2013, § 56).

114.        The criminal investigations to be conducted should be effective and sufficient in a way to allow the identification and punishment of those responsible.  In order to be able to speak about an investigation as being effective and sufficient, the investigation authorities need to act ex officio and collect all the evidence that might shed light on the incident and help in terms of identifying those responsible. Therefore, the investigation required by the claims of ill-treatment should be conducted in an independent manner, rapidly and in depth.  In other words, the authorities should seriously try to learn about the facts and cases and not take as basis the rapid conclusions devoid of grounds in order to conclude the investigation or justify their decisions (see Assenov and others v. Bulgaria, App. No: 24760/94, 28/10/1998, § 103; Batı and others v. Turkey, App. No: 33097/96 - 57834/00, 3/6/2004, § 136). Within this scope, the authorities should take all reasonable measures they can take in order to collect the evidence which is relevant to the said incident including the statements of eyewitnesses and the criminal expert analyses as well as other evidence (see Tanrıkulu v. Turkey [BD], App. No: 23763/94, 8/7/1999, § 104; Gül v. Turkey, App. No: 22676/93, 14/12/2000, § 89).

115.        One of the factors ensuring the effectiveness of criminal investigations in relation to such incidents is that the investigation and the outcomes thereof be open to public scrutiny in order to ensure accountability in practice as it is the case in theory.  In addition, in any incident, the participation of the aggrieved to this process in an effective manner should be ensured in order to protect their legitimate interests.  (For a similar ECtHR judgment, see Hugh Jordan v. United Kingdom, 24746/94, 4/5/2001, § 109; Oğur v. Turkey [BD], App. No: 21594/93, 20/5/1999, § 92; Khadjialiyev and others v. Russia, App. No: 3013/04, 6/11/2008, § 106; Denis Vassiliev v. Russia, App. No: 32704/04, 17/12/2009, § 157; Dedovski and others v. Russia, App. No: 7178/03, 15/5/2008, § 92; Ognyanova and Choban v. Bulgaria, App. No: 46317/99, 23/2/2006, § 107).

116.        Within the scope of the positive liability of the state, sometimes the fact that an investigation was not conducted on its own or that a sufficient investigation was not conducted may also constitute ill-treatment. Therefore, whatever the conditions are, authorities should act as soon as an official complaint is filed. Even if no complaint is filed, the initiation of an investigation should be ensured when there are sufficient conclusive indications showing that there is torture or ill-treatment. In this context, it is necessary to immediately start an investigation, to conduct it independently, under public scrutiny and in a meticulous and fast manner and to make sure it is effective as a whole (App. No: 2012/969, 18/9/2013, § 25; for a similar ECtHR judgment, see the above mentioned Batı and others v. Turkey, §§ 133, 134).

117.        In order for an investigation conducted regarding torture and ill-treatment perpetrated by public officials to be effective, the persons who are in charge of the investigation and that performs the examinations needs to be separate from the persons who are involved in the incidents (for similar ECtHR judgments, see the above mentioned Oğur v. Turkey, §§ 91-92; Mehmet Emin Yüksel v. Turkey, App. No: 40154/98, 20/7/2004, § 37; Güleç v. Turkey, App. No: 21593/93, 27/7/1998, §§ 81-82). The independence of the investigation requires not only the lack of hierarchical or institutional connection but also a concrete independence (for a similar ECtHR judgment, see Ergi v. Turkey, App. No: 23818/94, 28/7/1998, §§ 83-84). Therefore, in order to be able to speak of an effective investigation, firstly it needs to have the quality of being conducted independently.

118.        The legal existence of a remedy that will ensure investigation is not sufficient per se; this remedy also needs to be effective de facto in practice and the authority that is resorted to needs to have the authority to handle the essence of the claim of violation. It may only be possible to speak of the effectiveness of the remedy only in the event that it can prevent the claim of the violation of a right, end it if it is going on or decide upon a violation of a right if it ended and offer a suitable compensation for this. In addition, when the claim of the violation of a right that occurred is the case, sufficient procedural guarantees need to be provided in terms of revealing those responsible in addition to paying compensation (App. No: 2012/969, 18/9/2013, § 26; for a similar ECtHR judgment, see the above mentioned Aksoy v. Turkey, § 95; Ramirez Sanchez v. France, App. No: 59450/2000, 4/7/2006, §§ 157-160).

119.        When the case is an investigation conducted regarding complaints of ill-treatment, it is important that authorities act swiftly. In addition, it should be accepted that there may be reasons or challenges which prevent progress in an investigation in a certain situation. However, in investigations regarding ill-treatment, the investigation needs to be conducted by authorities with the utmost speed and care in order to ensure loyalty to the state of law, prevent the image that unlawful acts are tolerated and encouraged, ensure any tricks or unlawful acts are not allowed and ensure the trust of the public is sustained.  (For similar ECtHR judgments, see Maıorano and others v. Italy, App. No: 28634/06, 15/12/2009, § 124; McKerr v. United Kingdom, App. No: 28883/95, 4/5/2001, §§111, 114; Opuz v. Turkey, App. No: 33401/02, 9/6/2009, § 150).

120.        Courts need to make all the efforts and resort to all means they can, specifically in order for an incident having the quality of torture and ill-treatment not to be subject to statute of limitations. When a criminal lawsuit in relation to the claims of ill-treatment is the case, a response which may be swiftly given by authorities may be considered as a basic element in terms of protecting the trust of the public in general within the principle of equality and allows avoiding all kinds of tolerance to be shown towards those who get involved in unlawful acts (For similar ECtHR judgments, see Hüseyin Esen v. Turkey, App. No: 49048/99, 8/8/2006; Özgür Kılıç v. Turkey, App. No: 42591/98, 24/9/2002).

121.        In cases where a public official is charged with torture or ill-treatment, the ECtHR points out that, within the framework of the purposes of "effective application", it is of great importance for penal proceedings and the process of rendering a judgment not to be subject to statute of limitations and amnesty or pardon is not to be rendered possible.  Furthermore, the ECtHR drew attention to the importance of suspending the duty of an official against whom an investigation or prosecution is under way and of ostracizing him from the profession if he is convicted (see Abdülsamet Yaman v. Turkey, App. No: 32446/96, 2/11/2004, § 55).

                                                               ii.            Application of Principles to the Present Case

122.        On the basis of the evidence submitted, it is concluded that, as per Article 17 (3) of the Constitution, the State is responsible, within the scope of its negative liability, for the torture that the applicants were subject to. In addition, the complaints filed by the persons concerned are considered to be "admissible" within the scope of the right to effective investigation.  Accordingly, since authorities are under an obligation to conduct an effective investigation that will respond to the requirements stated above, it is first necessary to determine whether this obligation is conformed to or not.

123.        The applicants asserted that the investigation was not conducted effectively at certain points.  Within this scope, the applicants asserted that they were made to undergo doctor's examination under supervision of the persons who ill-treated them and that these persons influenced and guided the doctors who issued the report.

124.        As stated in the above principles, in order for an investigation conducted about torture and ill-treatment perpetrated by public officials to be effective, the persons who are in charge of the investigation and that performs the examinations needs to be separate from the persons who are involved in the incident. In the present incident, although the investigation was conducted by the Public Prosecutor's Office, which is an independent unit, the fact that the persons who conducted judicial proceedings on behalf of the Prosecutor's Office were the persons who were personally involved in ill-treatment prevented the investigation from being effective.  For the reason the likelihood of these persons to engage in the spoliation of potential evidence that could be against them is really high. In addition, there is the risk that these may act reluctantly in terms of collecting evidence that could be in favor of the aggrieved or mislead persons such as witnesses, the doctors and experts who would issue reports. 

125.        In the said incident, when the fact that the applicants who were subject to verbal and physical assault claimed that they were referred to hospitals under supervision of those who resorted to use of force and the doctor reports were issued under the guidance and influence of these persons (§ 26, 38, 41, 71) and that the conviction provisions confirming these claims (decisions in relation to G. Ö. and İ. Ö.) and the claims of ill-treatment of the applicants apart from being battered are taken into consideration, it is evaluated that the investigation was not conducted independently and effectively and this gave rise to the consequence of violation.  

126.        Furthermore, the applicants stated that the investigation was not effective due to the fact that a defendant was acquitted in the court case lodged for the crime of torture and, in addition, the court case lodged for the crime of issuing a report contrary to facts abated due to statute of limitations. 

127.        Due to a lack of evidence, a decision of acquittal was rendered by Ağrı High Criminal Court in relation to Gendarmerie official H.A. for the crime of ill-treatment of others. The purpose of Article 17 of the Constitution is to ensure that the legislation provisions in an incident of death or injury in relation to the corporeal and spiritual existence of the person are effectively implemented and those responsible are identified and accounted  for. This is not a consequential liability but the liability to use the appropriate means. Therefore, there is no obligation that all the court cases lodged within this scope be concluded in conviction or a specific penal decision. 

128.        Upon the complaint of the applicants, investigation was also started against law enforcement official H.A. and a criminal case was lodged. However, evaluating the whole content of the file together with the applicants' stating that the person who battered them was İ.Ö. and, although being with İ.Ö., H.A. did not take part in the act of battering and with the defenses of the defendants, the Court decided on the acquittal of the defendant since there was a lack of sufficient evidence for conviction and this decision was reviewed, upheld and finalized by the Court of Cassation. In this context, since a reason which could lead to the conclusion that the proceedings conducted in relation to the said defendant during the trial procedure were insufficient and the justification was erroneous was not identified, it cannot be said that the investigation was ineffective to this end.

129.        On the other hand, the court case in relation to defendant G.Ö., who was tried for the crime of issuing a report contrary to facts about the applicants, was subject to statute of limitations at the Court of Cassation stage despite the fact that he was convicted.

130.        As a result of the investigation initiated on 7/11/2001 by the Chief Public Prosecutor's Office of Hamur against the said defendant upon the complaint of the applicants, a criminal case was lodged at Hamur Criminal Court of First Instance on 5/12/2001 with a request that he be punished for the crime of "issuing a report that is contrary to facts". The case was registered with the (File No: E. 2001/87) Hamur Criminal Court of First Instance, the first hearing thereof was held on 6/12/2001 and following the closing of this court later (through the decision of HCJP File No: 278 on 9/6/2004), the file was sent to Ağrı Criminal Court of First Instance and then the said court case was joined with the court case at Ağrı High Criminal Court where the other defendants were tried and continued to be heard there. Through the decision of this Court (File No: E. 2003/141, K. 2006/117 on 1/6/2006), the act of defendant G.Ö. was evaluated to be within the scope of the crime of neglect of duty and it was decided that he be penalized with an administrative fine of TRY 600 and this penalty be postponed.  Upon the fact that the decision was appealed to on 5/6/2006, it was decided through the writ of the 8thPenal Chamber of the Court of Cassation dated and (File No: E. 2010/12971, K. 2011/5945 on 6/7/2011) that the court case in relation to the defendant be abated due to statute of limitations and this decision was finalized on the very same date.

131.        Accordingly, the trial procedure in the two-stage trial process ended 9 years 7 months 29 days after the date when the complaint was lodged, i.e. on 6/7/2011, due to statute of limitations. However, as can be inferred from the principles above (§ 119, 120, 121), although the courts need to urgently conclude trials in relation to public officials who are charged with perpetrating torture and ill-treatment and the persons who facilitate the acts of these officials or commit other crimes by engaging in behaviors that protect them and, thus, make sure that they do not benefit from statute of limitations, it was determined that this sensitivity was not shown in the present incident. So it was seen that the court case in relation to defendant G.Ö., who was penalized by the Court of first instance on the admittance that material evidence against him were formed, was subject to statute of limitations at the Court of Cassation stage.  Therefore, it is seen that there was a significant delay regarding the process before the Court of instance, that this delay was not based on a reasonable cause, that action was not taken urgently in a way to prevent the said public official's getting off without punishment.

132.        The applicants lastly complained that the criminal case which was lodged for the said crimes was not completed despite the fact that eleven years elapsed.

133.        In relation to the present incident, upon the applicants' claim that they were subjected to ill-treatment, an investigation was immediately started by the Public Prosecutor's Office on 6/11/2001. Taking into consideration the objections of the applicants, it was ensured that doctor reports were obtained by way of referring them to different hospitals. Upon the fact that injuries were mentioned in these reports, a criminal case was lodged on 28/12/2001 against İ.Ö. and H.A., the Gendarmerie officials whose responsibility was detected, for the crime of "ill-treatment to others" after all required evidence was collected.  Furthermore, upon the fact that the report dated 12/11/2001 included findings other than the report dated 7/11/2001, a criminal case was lodged against the doctors who issued the report dated 7/11/2001 for the crime of issuing reports contrary to facts and against İ.Ö. and H.A. for the crime of instigating the doctors to commit this crime.   In addition, a criminal case was lodged against Doctor G.Ö. who issued the report of release from custody on 6/11/2001 for the crime of issuing a report contrary to facts.

134.        Some defendant doctors and defendants İ.Ö. and H.A. were acquitted for the crime of issuing a report contrary to facts and the crime of instigating to commit this crime which was attributed during the trial process and, through the decision of Ağrı High Criminal Court dated 1/6/2006, the judgment of conviction rendered in relation to defendant G.Ö. for the crime of neglect of duty was found to have been subject to statute of limitations on 6/7/2011 when the Court of Cassation conducted the appeal review and it was decided that the court case be abated. 

135.        On the other hand, as a result of the trial held by Ağrı High Criminal Court in accordance with the writ of overturn, through the decision (File No:E. 2011/176, K. 2012/95 on 10/4/2012), it was decided that in relation to the crime of ill-treatment of others, H. A., one of the defendants, be acquitted whereas defendant İ. Ö. be penalized with a total imprisonment of 30 months and 3 days and a penalty of disqualification from public office for 7 months and 15 days due to his acts towards the three applicants.  Following this decision's being appealed to by defendant İ.Ö. on 17/4/2012, it was decided that the judgment of the Court be upheld through the writ of the 8th Penal Chamber of the Court of Cassation (File No: E. 2013/1460, K. 2013/15369 on 20/5/2013) and the said decision was finalized on the very same date.

136.        Investigation and prosecution in relation to claims of torture and ill-treatment need to be concluded in a rapid and effective manner. When all the trial phases were considered, it was seen that the investigation started on 6/11/2001 and the subsequent trials were completed with the decision of approval dated 20/5/2013 by the Court of Cassation.  Thus, it was determined that the trial process took 11 years 6 months and 14 days. Therefore, it cannot be mentioned that the trial before the courts of instance were given reasonable importance and concluded with the required urgency.

137.        As a result, the extension of investigation and trials as mentioned above caused the allegations about some of the defendants to be subject to statute of limitations and the penalties about some defendants to be finalized very late and thus led to the consequence of public officials who perpetrated torture or who condoned the practice thereof did not receive any penalty or received them very late. In this situation, it cannot be said that the investigation was effective.

138.        Due to the reasons explained, it is concluded that the procedural liability of the State to conduct effective investigation as set forth in Article 17(3) of the Constitution was violated.

V.     ARTICLE 50 OF THE CODE NUMBERED 6216

139.        Article 50(2) of the Law No. 6216 is as follows:

"(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 favor 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 based on 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."

140.        In the application, it was concluded that Article 17(3) of the Constitution was violated in its material and procedural dimensions. The applicants requested that the pecuniary and non-pecuniary damages they incurred be compensated for.  The applicants did not submit any documents in relation to the pecuniary damages they claimed to have incurred to the Constitutional Court. In order for the Constitutional Court to be able to rule on pecuniary damages, a causality relation between the pecuniary damages which the applicants claim to have incurred and the request for compensation needs to be established.  Therefore, the request for pecuniary damages by the applicants who do not submit any documents to the Constitutional Court should be turned down.

141.        In return for the non-pecuniary damages at an extent which cannot be remedied only through the determination of violation due to the intervention on the right to protect the corporeal and spiritual existence of the applicants and the failure to conduct effective and deterring criminal investigation and prosecution about the incident, it is concluded that, by discretion, TRY 40.000 in non-pecuniary compensation needs to be paid separately to each applicant, considering the characteristics of the present incident.

142.        Furthermore, it should be decided that the trial expenses in relation to the fee of TRY 198,35 determined as per the documents in the file  be paid to the applicants and a copy of the decision  be sent to the relevant court.

VI.   JUDGMENT

In the light of the reasons explained, it is held UNANIMOUSLY on17/7/2014;

A.                  That the complaints asserted by the applicants in relation to the violation of Article 17(3) of the Constitution ARE ADMISSIBLE, 

B.                   That the prohibition of torture which is guaranteed in Article 17(3) of the Constitution was VIOLATED in its material dimension,

C.                  That the prohibition of torture which is guaranteed in Article 17(3) of the Constitution was VIOLATED in its procedural dimension,

D.                  That, by discretion, TRY 40.000 in non-pecuniary damages BE PAID separately to each applicant, that other requests of the applicants in relation to compensation BE DISMISSED, 

E.                   That the trial expenses in relation to the fee of TRY 198,35 paid by each applicant BE PAID TO THE APPLICANTS, 

F.                   That the payments be made within four months as of the date of application by the applicants to the Ministry of Finance following the notification of the decision; that in the event that a delay occurs as regards the payment, the legal interest be charged for the period that elapses from the date, on which this period comes to an end, to the date of payment,

G.                That a copy of the decision be sent separately to the applicants, the Ministry of Justice, the Ministry of Interior and the relevant Court as per Article 50 (3) of the Law No. 6216.

 

I. CASE DETAILS

Deciding Body First Section
Decision/Judgment Type Merits (violation)
Tag
(Cezmi Demir and others, B. No: 2013/293, 17/7/2014, § …)
   
Case Title CEZMİ DEMİR AND OTHERS
Application No 2013/293
Date of Application 3/1/2013
Date of Decision/Judgment 17/7/2014
Joined Applications 2013/294, 2013/545
Official Gazette Date/Issue 22/10/2014 - 29153

II. SUBJECT-MATTER OF THE APPLICATION


The case concerns the alleged violations of Articles 17 and 36 of the Constitution on the grounds that the applicants suffered torture and ill-treatment by the law enforcement staff during the time they were in custody at the District Gendarmerie Command on the suspicion of theft of telephone wires; that the investigation and prosecution which was started against the Gendarmerie staff who conducted such acts and the doctors who issued misleading reports at the hospitals where the applicants were medically examined, in order to conceal the crime committed were not efficiently conducted; that some defendants were acquitted, that the lawsuit against a defendant was subject to statute of limitations and that the trial continued for more than 11 years.

III. EXAMINATION RESULTS


Right Alleged Violation Conclusion Redress
Prohibition of ill-treatment Ill-treatment under police custody Violation Non-pecuniary compensation
Effective investigation into the alleged ill-treatment (failure to conduct the investigation in an independent and impartial manner) Violation Non-pecuniary compensation
Effective investigation into the alleged ill-treatment (deterrent effect of the sanction) Violation Non-pecuniary compensation
Effective investigation into the alleged ill-treatment (reasonable time) Violation Non-pecuniary compensation

IV. RELEVANT LAW



Type of legislation Date/Number of legislation - Name of legislation Article
Law 230
243
354
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The Constitutional Court of the Turkish Republic