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The Constitutional Court held, at its plenary meeting on 11 May 2016, with regard to the individual application lodged by Z.C. (no. 2013/3262) that there had been a breach of the prohibition of torture and ill-treatment guaranteed in Article 17 § 3 of the Constitution under its procedural aspect.
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III. THE FACTS
[7-43]. While the applicant Z.C. was sixteen years old, she started to live together with the suspect A.L., who was twenty four years old, without an official marriage only by holding a wedding ceremony on 15-16 October 2011. On 4 June 2012, they actually ended their relationship. On 21 June 2012, the applicant filed a criminal complaint before the Kayseri Chief Public Prosecutor’s Office against the suspect A.L. for the acts of aggravated sexual abuse of a child, depriving an individual of her liberty for sexual purpose, insult, threat and intentional wounding committed by him. Thereupon, the chief public prosecutor’s office initiated an investigation against A.L.
Z.C. and her father A.C. declared that A.L. started to live together and have a sexual intercourse with Z.C. through oppression, harassment and threat; that he had several times resorted to verbal and physical violence; that when the applicant’s father had become aware of the incident taking place, the applicant was given shelter by her family; and that they had thereupon filed a criminal complaint against A.L.. It was stated in the assessment report as to the forensic evaluation of 6 July 2012 prepared by the social service specialist that Z.C.’s psychological state was not good and therefore it would be appropriate for her to receive treatment in a juvenile psychiatric clinic. The suspect A.L. noted in his defence submissions before the public prosecutor’s office that he and Z.C. held a wedding ceremony upon free will of their families; that as they were minors at the relevant time, they could not make an official marriage; that upon their marriage, they had voluntarily engaged in sexual intercourse; and that he accordingly denied the accusations against him. He also maintained that he himself had made Z.C. return her family’s home for having committed adultery. He submitted their photos taken at their wedding ceremony and messages in his mobile phone as evidence indicating that Z.C. had committed adultery. It was specified in the report dated 4 July 2012 and drawn up by the Presidency of the Forensic Medicine Department of the Erciyes University that there were signs on the applicant’s body matching with the violence and sexual intercourse alleged to be exposed by her; and that an examination to be made by child psychiatry would be appropriate for determination of the effects of such incidents on her mental health.
As a result of the investigation conducted, the Kayseri Chief Public Prosecutor’s Office rendered a decision of non-prosecution on 26 July 2012 indicating that as specified by the victim in her own defence submissions, she had engaged in sexual intercourse of her own free will; that the offence of having sexual intercourse with a minor is subject to a criminal complaint; that although the right to raise a complaint was to be enjoyed within 6 months as per Article 73/1 of the Turkish Criminal Code (“TCC”), the victim had lodged a criminal complaint more than one year after the incident; and that there was no sufficient and plausible evidence with regard to the intangible allegations that the offences of threat and insult had been committed. The objection made to this decision was dismissed by the Boğazlıyan Assize Court with its decision of 7 March 2012. The dismissal decision was notified to the applicant on 17 April 2013.
IV. ASSESSMENT AND GROUNDS
44. The Constitutional Court, at its session of 11 May 2016, examined the application and decided as follows.
A. The Applicant’s Allegations
45. The applicant maintained that a wedding ceremony was held on 15-16 October 2011 as the suspect A.L. had threatened her and her family; that thereafter she had to live together with A.L.; that she had to drop out of school and quit her job due to his oppression; and that the suspect raped her for five or six times during this period and continuously insulted her; that the investigation, initiated by Kayseri Chief Public Prosecutor’s Office upon the complaint filed against the suspect for the acts of insult, threat, depriving an individual of her liberty for sexual purposes, aggravated sexual abuse of a child and intentional wounding, was not carried out in an effective manner and concluded by a decision of non-prosecution; that even though she challenged this decision, she could not obtain any result; that the considerations, stating that “the victim consented to” the intercourse and “the victim sent affectionate text messages to the suspect”, which were taken as a basis for the decision rendered at the end of the investigation do not reflect the truth; that messages sent to the suspect had been sent from a mobile phone not belonging to her, however this situation had not been investigated and they were deemed to be sent by her; and that with regard to the allegation that “the complaint had not been filed within the prescribed time” taken as a basis for the decision, the chief public prosecutor’s office did not take into consideration the determination specified in the report drawn up following the examination by the Presidency of the Forensic Medicine Department of the Erciyes University indicating that “there had been vaginal sexual intercourse at least 7-10 days before the medical examination”. The applicant accordingly maintained that there had been a violation of the prohibition of torture and ill-treatment and of the legal provisions concerning the child rights guaranteed in Articles 17 and 41 of the Constitution and requested the initiation of prosecution.
46. The applicant requested the Court not to disclose her identity in public documents for being a minor.
47. The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013 § 16). Although the complaints about the offences in the present application, by their nature, fall within the scope of the prohibition of torture and ill-treatment along with the protection of private life guaranteed in Articles 17 and 20 of the Constitution (for similar judgements of the ECHR, see M.C. v. Bulgaria, no. 39272/98, 4 March 2004 § 148; Dordevic v. Croatia, no. 41526/10, 24 July 2012, §§ 92,93), a certain treatment must reach a minimum threshold to be included within the scope of the prohibition of torture and ill-treatment. If it remains below this threshold, the examination must be carried out within the scope of protection of private life. However, as serious acts such as the sexual abuse of a child are required, by their very nature, to be assessed within the scope of the prohibition of torture and ill-treatment, no separate examination was carried out with regard to the protection of private life.
B. The Court’s Assessment
1. Admissibility
48. The alleged violation of the prohibition of torture and ill-treatment was declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.
2. Merits
49. The applicant maintained that the prohibition of torture and ill-treatment was violated by indicating that the suspect, with whom she had to unofficially live together due to the threats directed towards her and her family, raped her five or six times, constantly insulted and threatened her.
50. In the observations of the Ministry, it is set forth that ill-treatment must reach a minimum level of severity to be included in the scope of Article 3 pursuant to the jurisprudence of the European Court of Human Rights (the ECHR); that within the context of Article 3 of the Convention, the contracting states still have certain obligations in cases where ill-treatment is carried out by third parties; that the contracting states are to establish efficient mechanisms and conduct investigations as a deterrent effect against acts committed especially against children and other vulnerable and defenceless individuals; that judicial authorities must never allow the pecuniary and non-pecuniary damages that have been caused to remain unpunished; and that the application must be examined by taking the above-principles into account.
51. The applicant did not submit any counter-statement against the observations of the Ministry.
a. Alleged Violation of the Prohibition of Torture and Ill-treatment under Its Substantive Aspect
52. Article 17 of the Constitution, titled “Personal inviolability, corporeal and spiritual existence of the individual”, is 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.”
53. Article 3 of the European Convention on Human Rights (the Convention), titled “Prohibition of torture”, is as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
54. Article 41 of the Constitution, titled “Protection of the family, and children’s rights”, is as follows:
“(Amended on 3 October 3 2001 by Act no. 4709) Family is the foundation of the Turkish society and based on the equality between the spouses.
The State shall take the necessary measures and establish the necessary organization to protect peace and welfare of the family, especially mother and children, and to ensure the instruction of family planning and its practice.
(Paragraph added on 12 September 2010 by Act no. 5982) Every child has the right to protection and care and the right to have and maintain a personal and direct relation with his/her mother and father unless it is contrary to his/her high interests.
(Paragraph added on 12 September 2010 by Act no. 5982) The State shall take measures for the protection of the children against all kinds of abuse and violence.”
55. The right to protect and improve the corporeal and spiritual existence of the individual is guaranteed in Article 17 of the Constitution. Paragraph 1 of the aforementioned article aims to protect human dignity. Article 17 § 3 of the Constitution prescribes that no one shall be subjected to “torture” and “mal-treatment”, that no one shall be subjected to penalties or treatment “incompatible with human dignity.”
i. Obligation to Create Legal Statute for the Protection of Children
56. Within the scope of the right specified in Article 17 of the Constitution, the State has the positive obligation to protect the corporeal and spiritual existence of all individuals who are within its jurisdiction against all risks which may arise out of the actions of public authorities, of other individuals or of the individual himself (see Serpil Kerimoğlu and Others, no. 2012/752, 17 September 2013, § 51; and Cezmi Demir and Others, no. 2013/293, 17 July 2014, § 105). Legal arrangements prohibiting the ill-treatment by third parties must first be available in order to mention of such protection.
57. Children must be protected against all acts that may have a negative impact on their physical and psychosocial development since they sustain greater damages compared to adults as a result of being exposed to violence and abuse. Article 5 of the Constitution specifying the fundamental aims and duties of the State prescribes that the State shall take the necessary measures to ensure that its citizens can live in compliance with human dignity and provide the conditions required for the development of the individual’s material and spiritual existence.
58. In the legislative intention of Article 41 of the Constitution, it is indicated that the State is assigned the duty of taking the necessary measures for the protection of children against all kinds of abuse and violence following the incorporation into the Constitution of well-accepted universal principles on children’s rights based on the Convention on the Rights of the Child and the European Convention on the Exercise of Children's Rights. As required by this obligation, the State must formulate the pertinent statute for the protection of children.
59. In accordance with Article 3 of the Convention on the Rights of the Child, in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. The State may ensure the protection of children by means of the regulations and measures to be taken in the field of both private and public law. The right to marry, set forth in Article 16 of the Universal Declaration of Human Rights, in Article 12 of the European Convention on Human Rights, in Article 10 of the International Covenant on Economic, Social and Cultural Rights, in Article 23 of the International Covenant on Civil and Political rights, and in Article 16 of the Convention on the Elimination of all Forms of Discrimination Against Women, allows individuals the freedom to decide whether or not they wish to get married, and if so, to choose the person to marry. The person who wishes to contract marriage should be able to choose his/her permanent life partner with his/her free will without any pressure or coercion. If the person is forced to contract marriage through pressure, threats or violence, it cannot be said that the decision to marry has been taken with free will.
60. The issue of forced and early marriages is not only a matter of human rights violations but it is also a matter of children’s rights since the victims are mostly children. Hence, in the above-mentioned international conventions, it is pointed out that child marriages and engagements must not be considered legal; and that a minimum age limit must be established to contract marriage. In applying these measures, States have discretionary power within the boundaries of the international conventions by taking into account their own social and cultural differences. As a matter of fact, in the international conventions to which Turkey is a party, while persons under the age of eighteen years are defined as children, no explicit minimum age limit is set for the marriage of children. However, the conventions do include fundamental principles on the prevention of early child marriages. While there is no regulation in the international conventions, to which Turkey is a party, prohibiting the marriage of children under the age of eighteen years, this issue has been addressed in the survey reports and recommendations of international organizations.
61. In the Resolution 1468 (2005) of the Parliamentary Assembly of the Council of Europe, Article 7 defines child marriage as the union of two persons at least one of whom is under 18 years of age, and Article 12 stresses the need to take the requisite legislative measures to prevent child marriage by setting the minimum marriage as 18. Article 13 § 1 thereof recommends member states of the Council of Europe to ratify the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages dated 7 November 1962, if they have not yet done so. In Article 14 § 2 (1) encourages the member states to adapt their domestic legislation so as to raise the minimum statutory age of marriage for women and men to the age of 18, and Article 14 § 3 encourages member states to regard the victims of forced marriage and child marriage as the victims of rape and to define acts pertaining to such marriages, including to aid and abet in such acts, as an independent criminal offence.
62. Paragraphs 13 and 20 of the general comments of the UN Committee, in the years of 2001-2006, on the Rights of the Child concerning the Convention on the Rights of the Child are as follows:
“13. Children have the right not to have their lives arbitrarily taken, as well as to benefit from economic and social policies that will allow them to survive into adulthood and develop in the broadest sense of the word. State’s obligation to materialize the right to life, survival and development also highlights the need to give careful attention to sexuality as well as to the behaviours and lifestyles of children, even if they do not conform to what society determines to be acceptable under prevailing cultural norms for a particular age group. In this regard, the girl-child is often subject to harmful traditional practices, such as early and/or forced marriage, which violate her rights and make her more vulnerable to HIV infection, because such practices for posing an obstacle before education and information. Effective prevention programmes are only those that acknowledge the realities of the lives of adolescents, while addressing sexuality by ensuring equal access to appropriate information, life skills, and to preventive measures.
20. The Committee is concerned that early marriage and pregnancy are significant factors in health problems related to sexual and reproductive health, including HIV/AIDS. Both the legal minimum age and actual age of marriage, particularly for girls, are still very low in several States parties. There are also non-health-related concerns: children who marry, especially girls, are often obliged to leave the education system and are excluded from social activities. Further, in some State Parties, married children are legally considered adults, even if they are under 18, depriving them of all the special protection measures they are entitled to under the Convention. The Committee strongly recommends that State Parties review and, where necessary, reform their legislation and practice to increase the minimum age for marriage with and without parental consent to 18 years, for both girls and boys.”
63. In Paragraph 74 of the general comments of the UN Committee on the Rights of the Child concerning the Convention on the Rights of the Child in the years of 2008-2011, early-married children (not exclusively forced marriage) are listed within the category of “children in particularly vulnerable situations”.
64. In Paragraphs 26 and 27 of the Concluding Observations on Turkey dated 15 June 2012 of the UN Committee on the Rights of the Child, it is noted that in Turkey, the minimum age for marriage is 17 for both boys and girls, and marriage at the age of 16 is permitted in special circumstances with the approval of a judge; that there is a concern that the minimum age for marriage may be not observed, particularly in rural and remote areas; and it is recommended that Turkey consider raising the minimum age of marriage to 18 years and ensure full compliance with this minimum age throughout the country, including in rural and remote areas.
65. According to the report prepared by UNICEF, between 2005 and 2012, while 11% of total marriages in the world were contracted by children under the age of fifteen, 34% of them were contracted by children under the age of eighteen. In the case of Turkey, these rates are 3% and 14% respectively [see UNICEF (2014), the State of the World’s Children 2014 In Numbers, p. 82, 83].
66. In the Strategy Paper and Plan of Action on the Rights of Children (2013-2017) prepared by the Ministry of Family and Social Policies (see p. 12), it is indicated that in 2011, 210,740 girls between the ages of 15 to 19 were married, and that the ratio of married girls to the total number of girls in this age group was about 7%.
67. In accordance with the Law no. 4721, legal capacity means a person’s capacity to acquire any right by his/her own acts and actions and undertake any obligation thereof. Acquiring legal capacity requires that the person reach the age of majority set by law. Persons with legal capacity also have the capacity of marriage. Pursuant to Article 11 of Law no. 4721, a person becomes mature when he/she reaches the age of 18 years. Article 124 of the aforementioned Law sets forth that minors over the age of seventeen may contract marriage with the permission of their legal representative; and that a man or a woman over the age of sixteen may be permitted to contract marriage, in special circumstances and for a significant reason with the approval of a judge. Consequently, the provisions on the age of marriage in Law no. 4721 are not inconsistent with the international conventions.
68. The difficulty of ensuring self-defence for children and the ability of perpetrators to commit these offences without facing great obstacles render committing sexual abuse on children relatively easier than committing them on adults; and children sustain greater psychological and physiological damages compared to adults as a result of these offences. In this context, one of the most significant positive obligations of the State is to take preventive and deterrent measures against the aforementioned offences. That is because it is particularly underlined in the Constitution, in the international conventions on the protection of children to which Turkey is a party as well as in all international texts that the States must take the necessary measures including enacting effective and deterrent penalties against sexual abuse of children and sexual exploitation (see the judgement of the Court, no. E.2015/42 K.2015/101, 12 November 2015 § 16).
69. Articles 2 and 4 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 9 of the Declaration of the Rights of the Child and Article 34 of the Convention on the Rights of the Child stress that each State Party shall ensure the punishment of those who commit torture or involve in torture by appropriate penalties by taking into account the gravity of their actions and that each State Party shall take the necessary legislative, administrative and judicial measures to prevent acts of torture. Article 18 of the Council of Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse (the Lanzarote Convention) introduces an obligation that each State Party shall criminalize engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age of majority for sexual activities.
70. Article 8 of the European Convention on the Exercise of Children's Rights and Article 32 of the Lanzarote Convention indicate that investigations and prosecution of acts of sexual abuse against children which put the welfare of a child in serious danger shall not be dependent upon the report or accusation by a victim.
71. While the choice of the means to secure compliance with Article 3 of the ECHR in the sphere of protection of children is in principle within the State's margin of appreciation, the judgements of the ECHR also set forth the requirement of efficient criminal-law provisions to ensure effective deterrence against grave acts such as sexual abuse, where fundamental values of private life and persons’ corporeal and spiritual integrity are at stake. In the provision of protection, States are vested a wide margin of appreciation by taking into account differences in the perceptions of a cultural nature, local circumstances and traditional approaches. The limits of the national authorities' margin of appreciation are nonetheless set by the Convention provisions (see M.C. v. Bulgaria, §§ 150, 154, 155; and X and Y v. the Netherlands, no. 8978/80, 26 March 1985, §§ 23, 24).
72. In accordance with the aforementioned international conventions and the judgements of the ECHR, necessary legislative arrangements have been introduced so as to ensure that children are protected from abuse of any nature. In line with Article 1 of the Convention on the Rights of the Child and Article 3 of the Council of Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse as well as other international conventions, each individual under the age of 18 is recognized as a child in Article 6 § 1 (b) of Law no. 5237 and Article 3 § 1 (a) of Law no. 5395.
73. Law no. 5237 repealing the Turkish Criminal Law no. 765 and dated 1 March 1926 embodies provisions different from those in Law no. 765 with regard to offences against sexual inviolability. Sex offences included in Section 8, titled “Offences against Public Decency and Order of Family”, of Volume II, titled “Offences”, of Law no. 765 are laid down in Part 6, titled “Offences against Sexual Inviolability”, of Chapter II, titled “Offences against the Person”, of Volume II, titled “Special Provisions”, of Law no. 5237. In regulating these offences within the scope of Law no. 5237, the legislator replaced the concepts of “rape, statutory rape, catcalling and molestation” set forth in Law no. 765 with concepts of “sexual assault” for adults and “sexual abuse” for children based on the age of the victim, and criminalized “sexual assault” in Article 102 and “sexual abuse of children” in Article 103 (see the judgement of the Court, no. E.2015/43 K.2015/101, 12 November 2015 § 15).
74. As set forth in the aforementioned judgement of the General Assembly of Criminal Chambers of the Court of Cassation, upon examining the offences against sexual inviolability set out in Law no. 5237, it is seen that the material element of sexual assault against adults prescribed in Article 102 is based upon lack of consent. In other words, the consensual acts of sexual assault against persons over the age of 18 are not considered as an offence. However, with regard to the acts of sexual abuse of children set forth in Article 103, the question whether the child has consented to his abuse is of no importance. On the other hand, in all non-consensual sexual acts against victims under the age of 18, children are divided into two groups based on age in determination of their victim status.
75. With regard to children under the age of fifteen which constitute the first group, not only whether they give consent to acts of offence is of no consequence, but use of force, threat, fraud or another reason affecting the will is not also sought in establishing the material element of the offence. In other words, for all sexual acts against children in this age group, declaration of consent by the child does not decriminalize the act. Acts, committed against the second group of children who are over the age of fifteen and who have the ability to understand the legal consequences of such an act, constitute a crime only when the acts are committed by force, threat, fraud or another reason affecting the will.
76. In this categorization formulated by taking into account the impact of the offence on the victim, the legislator acknowledged that it is not possible for the first group of children under the age of fifteen to comprehend the significance and severity of the sexual act committed against them since as they lack the adequate physiological and physical maturity and that their consent to sexual acts is thus null and void. Hence, the legislator places children under the age of fifteen under absolute protection (see the judgement of the Court, no. E.2014/43 K.2015/101, 12 November 2015, § 18). Children over the age of fifteen are also put under absolute protection against acts of sexual abuse committed by force, threat, fraud or another reason affecting the willpower.
77. The present arrangement in Article 103 of Law no. 5237 is in compliance with the obligation to set a minimum age limit to criminalize engaging in sexual activities with a child who has not reached the legal age of majority for sexual activities, which is set forth in Article 34 of the Convention on the Rights of the Child and Article 18 of the Council of Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse. This arrangement is also in compliance with the international provisions, set forth in Article 8 of the European Convention on the Exercise of Children’s Rights and Article 32 of the Council of Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse, which set forth that the investigation and prosecution of non-consensual acts of sexual abuse against all children under the age of 18 and of acts of sexual abuse which put the welfare of a child in serious danger shall not be dependent on the report or accusation by a victim.
78. Sexual intercourse (consensual) with the second group of children, who are over the age of fifteen and who have the ability to understand the legal significance and consequences of such an offence, without using force, threat and fraud is prescribed as the offence of “sexual intercourse with a minor” in Article 104 § 1 of Turkish Criminal Code no. 5237. For this act to constitute a crime, the victim who is over the age of fifteen must not “consent” to sexual intercourse on the date of the offence. Furthermore, the victim must file a criminal complaint against the perpetrator of sexual intercourse after the offence is committed.
79. As is seen, the Turkish Criminal Code no. 5237 does not grant children over the age of fifteen full sexual freedom. Having regard to the possibility that these children may not foresee the legal and actual consequences of consensual sexual intercourse even if they have the capacity to act, the legislator demanded their protection against premature sexual experiences. For the purpose of ensuring effective protection of children against acts of sexual abuse, the Turkish Criminal Code no. 5237 prescribes the “age of consent to sexual intercourse”, in other words “age of puberty for sexual activities” as eighteen years. Having regard to the fact that the present age limit is the highest among the member states of the Council of Europe [see Council of Europe [2014], Handbook for the Members of the Parliament, Council of Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse [Lanzarote Convention], p. 22] and that the investigation and prosecution of all acts of sexual abuse against children under the age of fifteen and of non-consensual acts of sexual abuse against children over the age of fifteen shall not be dependent on the report or accusation by a victim, it is understood that the State has introduced the appropriate and sufficient legal arrangements in terms of its positive obligations for the protection of children against sexual abuse.
80. Moreover, in terms of protecting the child victims of crime, the facts that these children are included among the group of children in need of protection in Article 3 of Law no. 5295 and that when necessary, Article 5 of the aforementioned Law creates the possibility of enforcing protective and supportive measures such as counselling, education, care, health and shelter; that administrative and judicial authorities, law-enforcement officers, persons and institutions are liable to notify the Social Services and Child Protection Agency of children in need of protection; that children’s bureaus and specialized child units have been established within the body of public prosecutor’s offices and law enforcement offices respectively; that child victims are required to be represented by an attorney so that they have access to legal assistance pursuant to Articles 234 and 236 of Law no. 5271; and that a specialist in psychology, psychiatry, medicine or education must be present during their interrogation are the other manifestations of the obligation to make appropriate legal arrangements in the legislation.
81. The 2009 Report on Reviewing Early Marriages of the Committee on Equality of Opportunity for Women and Men of the Grand National Assembly of Turkey (pp. 8 and 9) has voiced the following considerations:
“In our society, families may marry off their daughters under the age of fifteen. If this situation becomes known, a legal action is taken against the suspect along with his mother and father and against the victim’s mother and father for complicity in this offence. Even if the victim officially contracts marriage with the suspect when she reaches seventeen years of age, it is not possible to evade penalty through marriage since an arrangement similar to Article 434 of the abolished Turkish Criminal Law no. 765 does not exist within the new Turkish Criminal Code. Therefore, the husband of the victim [the person with whom she unofficially lives together], her parents and her parents-in-law stand trial and are punished for this offence. According to Article 104 of the Turkish Criminal Code, titled “Sexual intercourse with a minor”, any person who engages in sexual intercourse with a child over the age of fifteen without using force, threat and fraud, is sentenced to imprisonment from six months to two years upon complaint. Even though engaging in sexual intercourse with a minor is defined as a substantive felony in the aforementioned article, when a child who is over the age of fifteen is unofficially married off, the spouse who engages in sexual intercourse with this child is not punished unless a criminal complaint is filed. In this context, only the victim is accorded the right to raise a complaint. Unless the victim files a criminal complaint, the person shall not be punished. Since persons under the age of 18 are still children even if they are recognized an adult through a court decision, it is disputable to which extent they would have a sound understanding of the concept of complaint for being a minor. It is highly difficult for a girl of fifteen years old to file a criminal complaint against the person who is chosen as her husband at the expense of his imprisonment, which would in return cause harm mostly to the girl in question. In terms of the Turkish Criminal Law, in general terms, the male perpetrator who unofficially marries the girl must receive a punishment within the scope of Articles 103 and 104 of the aforementioned law. Moreover, Article 38 [or 39] of the Turkish Criminal Code prescribes a penalty for the legal representative, guardian or trustee as the abettor [or accessory before the act] allowing this marriage.
82. The offences of sexual abuse of a child and sexual intercourse with a minor, set forth in Articles 103 and 104 of the Turkish Criminal Code no. 5237, are a penal sanction of the prohibition of marriage imposed upon children under the age of seventeen as prescribed in Law no. 4721. Accordingly, in all acts of sexual abuse against children under the age of fifteen, in all non-consensual acts of sexual abuse against children over the age of fifteen and in all offences of sexual intercourse with a minor committed with the consent of a child over the age of fifteen, each of the actors committing the act set forth in the statutory definition of the offence and other persons who aid and abet – even if they are the parents of the victim – have liability respectively as principal offenders and abettors or accessories of the criminal act. The parents, who marry off their child who is either under or over the age of fifteen, have criminal liability pursuant to the provisions on complicity.
ii. Obligation of Prevention
83. In accordance with the fundamental approach adopted by the Constitutional Court with regard to the positive obligations of the State within the scope of the prohibition of torture and ill-treatment, in cases occurring under the conditions which may call for the liabilities of the State, Article 17 of the Constitution assigns the State the duty of duly enforcing the legal and administrative framework created on the present matter by making use of all available facilities so as to protect persons whose corporeal and spiritual existence is at risk and of taking effective administrative and judicial measures to eliminate and penalize the violations of the prohibition of torture and ill-treatment (see Serpil Kerimoğlu and Others, § 52).
84. As is seen, the obligation to protect arising from the State’s position as the guarantor of the prohibition of torture and ill-treatment requires the State to take both legal and actual measures on the present matter (for a similar judgement of the ECHR, see A. v. United Kingdom, no. 25599/94, 23 September 1998, § 24). Furthermore, these measures should provide effective protection, in particular, for children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have been aware (see Z. and Others v. United Kingdom, no. 29392/95, 10 May 2001, § 73).
85. Regard being had to the unpredictability of human conduct and the preference of the step to be taken by investigative authorities according to the existing priorities and resources, the obligation of prevention incumbent on the investigation authorities for the purpose of preventing or deterring offences must be interpreted in a way which does not overburden the authorities. For the obligation of prevention to arise, it must be established that the public authorities knew or ought to have known at the time of existence of a real and immediate risk to the corporeal and spiritual existence of a given individual and that they failed to take measures within the scope of their powers which might have been reasonably expected to avoid that risk. However, this fact must be evaluated within the specific circumstances of each case (see Serpil Kerimoğlu and Others, § 53).
86. According to the information and documents within the application file and the decision of non-prosecution, it has been revealed that in the period lasting over seven months during which the applicant, who had been friends with the suspect for a while before starting unofficially living together and who was then engaged to the suspect through a religious marriage ceremony (the date of engagement could not be specified based on the statements included in the application file) unofficially lived with him, the applicant did not exercise her right to raise a complaint to prompt the initiation of an official investigation and therefore it was not possible for the authorities to have known or estimated the existence of a real and immediate risk to the applicant in terms of the imputed acts (for a similar judgement of the ECHR, see Opuz v. Turkey, no. 33401/02, 9 June 2009, § 153). It is therefore understood that the State’s the obligation of prevention was not violated.
87. Consequently, the Constitutional Court held that the prohibition of torture and ill-treatment guaranteed in Article 17 § 3 of the Constitution was not violated under its substantive aspect.
b. Alleged Violation of the Prohibition of Torture and Ill-Treatment under its Procedural Aspect
88. It is elaborated in the above-section that in the present case, the State does not bear a liability within the scope of the obligation to protect individuals from torture and ill-treatment. The positive liabilities of the State within the scope of the prohibition of ill-treatment also have a procedural aspect. Within the framework of this procedural liability, the State is obliged to conduct an effective investigation to ensure that those responsible for each case of ill-treatment are identified and punished. The main aim of this investigation is to ensure the effective implementation of law that protects human dignity and to hold the public officials or other individuals accountable for their actions constituting ill-treatment (see Cezmi Demir and Others, § 110).
89. Article 17 § 3 of the Constitution and Article 3 of the Convention specify the absolute nature of the prohibition of torture and inhuman or degrading treatments or punishments without foreseeing any limitation. The absolute nature of the prohibition of ill-treatment does not foresee an exception, even in times of war or another general emergency threatening the life of the nation as specified in Article 15 of the Constitution. With a similar provision, Article 15 of the Convention also does not foresee any exception to the prohibition of ill-treatment (see Turan Günana, no. 2013/3550, 19 November 2014, § 33).
90. The aim of the criminal investigation is to ensure the effective enforcement of the legislation provisions protecting the corporeal and spiritual existence of a person and to hold those responsible accountable. This is not an obligation of result but of means. In addition, the assessments included herein do not mean, under any circumstances, that Article 17 of the Constitution grants the applicants the right to have third parties prosecuted or sentenced for a criminal offence or imposes an obligation to conclude all proceedings in a verdict of conviction or a specific penalty (see Serpil Kerimoğlu and Others, § 56).
91. Allegations of torture and ill-treatment must be substantiated by proper evidence. Reasonable evidence beyond reasonable doubt must exist in order to verify the authenticity of the alleged events. Any evidence of this nature may consist of serious, clear and consistent indications or of certain unrebuttable presumptions. It is possible to establish the existence of ill-treatment solely through the determination of these conditions (see C.D., no. 2013/394, 6 March 2014, § 28).
92. The criminal investigations to be conducted must be effective and sufficient to the extent that would allow the identification and punishment of those responsible. An effective and sufficient investigation requires that the investigative authorities act ex officio and gather all the evidence capable of clarifying the incident and identifying those responsible. Hence, the investigation required by the allegations of ill-treatment must be conducted independently, promptly and in an in-depth manner. In other words, the authorities must solemnly attempt to learn the facts and events and avoid relying on rapid, unfounded conclusions in order to conclude the investigation or justify their decisions. Within this context, the authorities must take all reasonable measures so as to gather the evidence relevant to the present case including eyewitness statements and criminalist expert examinations along with other evidence (see Cezmi Demir and Others, § 114).
93. It is essential for authorities to act promptly in the investigation into the complaints of ill-treatment. Nevertheless, it must be acknowledged that there may be obstacles or complications hindering the progress of an investigation in any given situation. However, in investigations of ill-treatment, it is required for authorities to conduct the investigation at a maximum speed and with utmost diligence so as to ensure adherence to the state of law, avoid impressions of tolerance or encouragement towards unlawful acts, prevent any possibility of deception or unlawful acts and maintain confidence in the public (see Cezmi Demir and Others, § 117).
94. The applicant, who was sixteen years old at the relevant time when the impugned acts took place and who, for a while, had previously been friends with the suspect A.L. who was twenty-four years old, maintained that she had to drop out of school and quit her job due to the oppression, threats and coercion by the suspect; that they held a religious marriage ceremony; that the suspect threatened her mother, B.C. who was accompanying the applicant’s grandmother at the hospital; that they started to live together following the wedding ceremony held on 15-16 October 2011; that they had sexual intercourse one day after the wedding and engaged in sexual intercourse a total of five or six times during the period they lived together; that the suspect committed acts of threat, insult and injury on different dates; and that she broke up with him on 4 June 2012.
95. Within the scope of the investigation, the law enforcement officers took the statements of the applicant, the applicant’s father and the suspect A.L. The suspect noted in his defence submissions that they held a wedding ceremony on 15 October 2011 upon the free will of the applicant and both of their families; that they could not contract an official marriage since the applicant was a minor; that they had consensual sexual intercourse after holding the wedding ceremony; that they were separated as the applicant cheated on him. He submitted text messages alleged to be sent to the applicant’s mobile phone by other men, their wedding invitation and photos taken at their wedding ceremony for being included in the file as evidence. There is any explanation in the statements of neither the suspect nor the applicant as to the date when the last sexual intercourse took place.
96. The chief public prosecutor’s office acknowledged that the sexual intercourse took place on a consensual basis given the statements of the applicant’s family assenting to the marriage, the photos taken at the wedding ceremony, the wedding invitation, the defence submissions of the suspect indicating that the family filed a complaint against him for making the applicant return to her family upon cheating on him and the content of the text messages sent by the applicant to the suspect. Accordingly, a decision was non-prosecution was rendered on the grounds that the complaint was lodged more than one year after the incident.
97. A decision of non-prosecution had been rendered on the grounds that the elements of crime were not established with regard to the offense of depriving an individual of her liberty for sexual purposes as the applicant had consented to sexual intercourse; and that with regard to the offences of threat and insult, there was no plausible evidence beyond the intangible allegations of the applicant sufficient enough to initiate a prosecution. In the decision, there was no assessment as to the allegations of intentional wounding.
98. Within the framework of the procedural liability, the State is obligated to conduct an effective official investigation to ensure that those responsible for all acts of physical and psychological assault are identified and punished when required. The main aim of such an investigation is to ensure the effective implementation of law that prevents the aforementioned assaults and to hold the public officials or institutions accountable for these assaults. Moreover, the outcome of the conducted investigation must not create an impression of tolerance towards acts of torture and ill-treatment.
99. Paragraphs 234 and 236 of the Istanbul Protocol and Articles 2 and 6 of the Annex I to the Istanbul Protocol indicate that the acts of torture and ill-treatment imposed upon the victims would have psychological effects such as PTSD (Post-Traumatic Stress Disorder) and major depression in the context of personality development and socio-cultural factors; and that the forensic examination reports to be prepared must evaluate the link between physical and psychological findings and torture and ill-treatment. It is understood that even though the forensic examination report of the applicant stated that an examination by child psychiatry would be appropriate for determination of the effects of the imposed acts on her mental health and in spite of the assessment report as to the forensic evaluation prepared by a social service specialist indicating that the applicant’s right leg was shaking intensely throughout the session, that she cried as she talked about the events, that she constantly fidgeted her hands, that they had to take two breaks from the session, that the applicant’s psychological state was not good and that it would be, therefore, appropriate for her to receive treatment in a juvenile psychiatric clinic (see § 14), no psychological/psychiatric examination was conducted.
100. As set forth in the general principles section, it is essential for authorities to act promptly in the investigations into the complaints of torture and ill-treatment. In the present case, the fact that the genital examination was conducted and the battery report was drawn up fourteen days after the applicant’s attorney had personally filed a complaint before the chief public prosecutor’s office is considered as a delay that may have caused certain evidences to disappear.
101. Even though the investigative authorities are not obligated to consider all allegations and to meet all demands regarding the progress of the case and the gathering of evidence in investigations to be conducted in accordance with Article 17 of the Constitution, the fact that witnesses who may potentially have information on the case were not interrogated at all stands as a significant deficiency (see Yavuz Durmuş and Others, no. 2013/6574, 16 December 2015, §§ 61, 62). The fact that the statements of the applicant’s mother and grandmother were not taken despite the allegations of threat alleged to have taken place at the hospital and that neither the applicant nor the suspect was asked to clarify the date of the last sexual intercourse even though the act is alleged to have taken place in a successive manner demonstrates that due diligence was not exercised in the investigation for the identification and punishment of those responsible.
102. In cases concerning the prohibition of torture and ill-treatment, specified in Articles 15 and 17 of the Constitution in absolute terms with no grounds for limitation and with no foreseen exceptions even in times of war or another general emergency threatening the life of the nation, the investigations must be conducted with maximum diligence. The fact that in the decision of non-prosecution rendered at the end of the investigation initiated and maintained by the public prosecutor on the assumption that the applicant consented to the sexual intercourse, there was no discussion on the allegations maintaining that the sexual intercourse took place by force, that the text messages sent by third parties to the applicant’s mobile phone were considered to be sent by the applicant to the suspect and were taken as the basis for the existence of consent indicate that due diligence was not exercised in the collection and assessment of evidence.
103. Although, with regard to the acts considered to fall into the scope of “sexual intercourse with a minor” and alleged to be performed in a successive manner, the date of offence and thereby the starting date of the six-month period during which the complaint petition would be submitted are the date when the last sexual intercourse took place and although the applicant maintained that they had engaged in sexual intercourse for five or six times during the period they had lived together, any step was not taken during the investigation stage for determination of the date of offence, and it was accepted contrary to the ordinary flow of life that such act had been performed voluntarily only on 15-16 October, the date of wedding ceremony. It was accordingly acknowledged that such kind of subsequent acts had been also performed voluntarily, and consequently held that the criminal complaint had not been filed within the prescribed period. All of these facts reflect the opinion that the investigative authorities failed to struggle for revealing the allegations of ill-treatment in a serious manner and reached unfounded conclusions.
104. In the allegations of torture and ill-treatment, public prosecutors have an obligation to investigate the facts of an incident and to initiate an investigation in order to determine whether there is enough room to start a prosecution as soon as they are notified of a potential criminal act either by report or by any other means. In her complaint petition and statement, the applicant alleged that the suspect had battered her on various dates. However, any assessment was not made with regard to such allegations in the decision of non-prosecution. It has been concluded that there was a breach of Article 17 § 3 of the Constitution under its procedural aspect on the grounds that although the applicant asserted an arguable allegation of torture and ill-treatment in conjunction with the other evidence in the investigation, in the present case, these allegations had not been subject to investigation.
105. It has been consequently held by the Constitutional Court that there was a breach of the prohibition of torture and ill-treatment, guaranteed in Article 17 § 3 of the Constitution, under its procedural aspect.
3. Application of Article 50 of Law no. 6216
106. Article 50 §§ 1 and 2 of the Code no. 6216 dated 30 March 2011 on the Establishment and Rules of Procedures of the Constitutional Court , is as follows:
“(1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled…
(2)If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed. In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown. The court, which is responsible for holding the retrial, shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”
107. The applicant requested re-opening of the investigation against the suspect. She did not claim any compensation.
108. It has been concluded that there was a breach of the prohibition of torture and ill-treatment under its procedural aspect in the present case.
109. As there exists legal interest in re-opening of the investigation to redress the consequences of the violation of the prohibition of torture and ill-treatment, it has been concluded that a copy of the judgement must be sent to the Kayseri Chief Public Prosecutor’s Office.
110. The court expense of 1,998.35 Turkish Liras (“TRY”), which includes the court fee of TRY 198.35 and counsel fee of TRY 1,800 and which is calculated over the document in the case file, must be reimbursed to the applicant.
V. JUDGMENT
The Constitutional Court UNANIMOUSLY held on 11 May 2016 that
A. The applicant’s request for non-disclosure of her identity in public documents be ACCEPTED;
B. The alleged violation of the prohibition of torture and ill-treatment be DECLARED ADMISSIBLE;
C. 1. The prohibition of torture and ill-treatment, guaranteed in Article 17 § 3 of the Constitution, was NOT VIOLATED under its substantive aspect;
2. The prohibition of torture and ill-treatment, guaranteed in Article 17 § 3 of the Constitution, was VIOLATED under its procedural aspect;
D. One copy of the judgment be SENT to the Kayseri Chief Public Prosecutor’s Office for redress of the consequences of the violation of the prohibition of torture and ill-treatment;
E. As the applicant did not demand compensation, there would be NO GROUND to render a decision on this matter;
F. The total court expense of TRY 1,998.35 including the court fee of TRY 198.35 and counsel fee of TRY 1,800 be REIMBURSED TO THE APPLICANT;
G. The payment be made within four months as from the date when the applicants apply to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date; and
H. One copy of the judgment be SENT to the Ministry of Justice.
