I. SUBJECT OF APPLICATION

1. Indicating that his son had died as a result of the security forces' unnecessary use of arms during an operation that they were carrying out, that he was battered by the police when he was captured in a wounded state, that the judicial investigation that has been carried out concerning this incident was not sufficient, that for this reason it was decided that there were no grounds for prosecution, the applicant has claimed the right to life and the prohibition on torture and torment and the right to an effective remedy have been violated as such.

II. APPLICATION PROCESS

2. The application was lodged by the attorney of the applicant on the date of 14/8/2013 via the 4th Civil Court of First Instance in Antalya. As a result of the preliminary examination that was carried out in terms of administrative aspects, it was determined that there were no circumstances to prevent the submission of the application to the Commission.

3. It was decided by the First Commission of the First Section that the examination of admissibility of the application be conducted by the Section and the file be sent to the Section.

4. In the session held by the Section on 3/2/2014, it was decided that the examination of admissibility and merits be carried out together.

5. The facts and cases which are the subject matter of the application were notified to the Ministry of Justice on 3/2/2014. The Ministry of Justice presented its opinion to the Constitutional Court on 3/4/2014.

6. The opinion presented by the Ministry of Justice to the Constitutional Court was notified to the applicants on 4/4/2014, but the applicants did not make any declarations against the opinion of the Ministry.

III. FACTS AND CASES A. Facts

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

8. The applicant's son, Çağrı DanıĢman (Ç.D.) is a schizophrenic patient at the age of 33. Ç.D. has spent his last 5 years in the Village of Kestel in Bucak District of the Province of Burdur, tending to the walnut orchard that his family has given to him and has been living in a shack that was located in the same garden. Also, he has occasionally been visiting his family living in Antalya.

9. On the date of 4/10/2012 at 19:57 hours (according to recorded radio conversations and the minutes by the police) an information reaches the 155 police help-line concerning the presence of a suspicious-looking person in the 228th Street in the neighborhood of Yıldız, downtown Antalya. Giving the description of the individual, the information concerned said: 'A suspicious-looking person has been waiting for the last hour and a half at the entrance door of Dayıbaşı apartment block and that there is a bag on the ground next to him.'

10. It is recorded in the radio logs that immediately after such information around 20:10 hours a motorcycle police unit was dispatched to the scene and was met with an armed assault.

11. This time, around 20:30 hours, another announcement concerning a second assault at the Kepez (Prison) Junction in the Neighborhood of Fatih downtown Antalya is made over the radio. It is informed that the suspect or the suspects have fled the scene.

12. In the radio logs commencing at 21:57 hours, the announcement 'we have captured the suspect' is made. Again, according to the recorded radio conversations there is no mention of 'an armed conflict.' It is said only that the suspect has been captured 'wounded.' The person who is said to have been captured in a wounded state is Ç.D, the applicant's son.

13. The applicant's son was wounded as a result of the armed conflict that he was involved in with the police and on the way to the hospital, he lost his life in the ambulance. In this incident, three police officers have also lost their lives.

14. In the aftermath of the incident, the Office of the Chief Public Prosecutor of Antalya (Office of the Public Prosecutor) has launched an investigation with the file no. 2012/60237 ex officio.

15. Upon the written request of the applicant during the investigation the GPS recordings of the ambulance that had taken the deceased Ç.D. to the Atatürk State Hospital have been included in the investigation file. According to the recordings, it is understood that the ambulance had been in the vicinity of the scene of the incident starting from 20:10 hours. It is seen that it was parked from 20:50 hours at the tram stop which is at a distance of some 50 meters to the scene of the incident. It is understood that it was around 22:07 hours when the ambulance had reached Ç.D. who was said to be captured in a wounded state around 22:01 hours.

16. According to the applicant's claim, in the recordings concerned it is expressly clear that the ambulance had moved at 22:08 hours, and left the scene of the incident at 22:30 hours for sure. It is seen that, after it picked the wounded person up, it proceeded to the Yeni Doğan Neighborhood/Kepez area navigating around at a speed of 9-21 km/h and then entered the Atatürk State Hospital at 22:41 hours with a speed of around 8-33 km/h. Approximately 28-30 minutes have passed between the time when the wounded was picked up from the scene of the incident and the time when the ambulance has pulled away. The distance which could have been covered in 4 minutes at most with a normal vehicle was covered in 12 minutes as a result of the slow pace of the ambulance, according to the claim of the applicant. For the reasons explained, some 40 minutes have passed between the pick-up of the wounded person and the drop-off at the hospital.

17. With the justification that the driver of the ambulance and other paramedics who have taken his son to the hospital were in neglect, the applicant, with the petition dated 4/12/2012, has requested that they be involved in the investigation as suspects and submitted his counter-statements for the report of the Forensic Medicine Institution.

18. The report dated 14/12/2012 by the Morgue Specialty Department of the Antalya Group Presidency of the Forensic Medicine Institution has been submitted to the Court.

19. The applicant, with the petition dated 19/10/2012, has requested that the investigation be carried out directly by the Office of the Public Prosecutor as the police officers have been involved in the incident in question as suspects.

20. Indicating that according to the autopsy reports fractures on the head and around the jaw of his son have been identified and that such fractures have resulted from the policemen kicking his son, who had arrived in the aftermath of his capture, the applicant has claimed with the petition dated 20/12/2012 that such acts of police officers qualify as torture. The applicant has also claimed that his son was not involved in an armed conflict with the police on the location where he was finally captured.

21. As a result of the investigation that was carried out by the Office of the Public Prosecutor, it was decided that there were no grounds for prosecution (NGP) with the decision pertaining thereto dated 18/3/2013 and numbered Investigation No.2012/60237, D.2013/9284, and it is seen that the following statements concerning the progression of the incident, the transactions that were carried out during the process of investigation and the evidence that was collected and the conclusion reached were included in the said NGP decision. Yet, the matters whereby there is a conflict between the applicant and the office of investigation on the conditions of occurrence of the incident will be covered further and in detail in the 'Examination' section of the decision. The concerned parts of the aforementioned decision of the NGP are as follows:

 “…

THE EVIDENCE THAT HAVE BEEN COLLECTED AND THE CRIMINAL REPORT(S)

OF EXPERTISE AND FORENSIC MEDICINE REPORTS THAT HAVE BEEN RECEIVED CONCERNING THE INCIDENT AND AN ASSESSMENT THEREOF

It was seen that the post mortem examinations of the deceased police officers and of deceased Çağrı DANIŞMAN were carried out, after the incident, separately and under the auspices of our Office of the Chief Public Prosecutor in a suitable environment, that during such examination of the bodies, shot wounds resulting from firearms have been identified on their bodies and then, classic autopsy operations were performed during which the deaths of the deceased were identified to be resulting from firearm shot wounds, that the deceased, M.Ç. had lost his life as a result of the shot wound from a hunting rifle and that the other deceased were killed as a result of pistol shot wounds; it was further established, following the classic autopsies of the deceased and the detailed autopsy reports that have been separately drawn up for each of the deceased persons by the Antalya Forensic Medicine Group Presidency that the cause of death for the deceased M.Ç. was established as shot wounds from a hunting rifle and for the others, destruction of internal organs and internal bleeding as a result of shot wounds from a pistol, that numerous buckshots have been identified in the body of M.Ç. which have caused the destruction of the lungs and major arteries/veins with internal and external bleeding, as for the deceased M.K. the cause of death was established as major artery/vein destruction resulting from a firearm bullet wound with internal and external bleeding, that the death of the deceased A.B. resulted from major artery/vein destruction from firearm bullet wounds with external and internal bleeding, that two bullets were extracted from the body of the deceased M.K., one from the deceased A.B, which were taken under preservation, and that the cause of death for the deceased Ç.D was established as internal and external bleeding as a result of firearm bullet wounds in the chest and abdomen and the destruction of internal organs, that four small bullet fragments have been extracted from the body of the deceased Ç.D, which were taken under preservation;

That both the hunting rifle that the deceased Ç.D. has used in the incident and the pistol with the serial no. ... that he has usurped from the police officer M.Ç. and the pistols with brands/serial no. ... that he has usurped from the police officer M.K in the second scene of incident and the guns of other complainant suspect police officers who have used them during the incident had been seized and the required examination thereon had been carried out both at the Police Criminal Laboratory and the Istanbul Forensic Medicine Institution, and in the detailed report dated 03/12/2012 of the Ballistics Section of the Physics Specialty Department of Istanbul Forensic Medicine Institution it was stated that as a result of the comparison of the four bullet fragments that have been extracted from the body of Ç.D. and the bullets from the bodies of the deceased police officers A.B. and M.K. it was seen that such bullets have been shot from the pistol with the brand/serial no. ... and that this gun was the gun that the suspect Ç.D. had usurped from the deceased police officer M.Ç. after he had killed him with the hunting rifle during the first incident and that such gun was fired by Çağrı Danışman at the prison juncture which is the second scene of incident, hence killing the deceased police officers M.K. and A.B., that the four bullet fragments found in the body of the deceased Ç.D. were so fragmented and shattered as not to allow the determination of from which pistol they have been shot (according to the report by the Istanbul Forensic Medicine Institute);

That, in the six-page expertise report by the Antalya Criminal Police Laboratory dated 06/10/2012 it was found that bullet marks were identified on the vehicle bearing the number plate 07 DE 044 that was under the command and control of Ç.D. on the day of the incident, and the fact that that some of these marks were found on the driver's door and some in the rear window was scrutinized in detail also over the photographs thereof that have been taken and that it was established that these were distant shots, it was seen that the clothes that the deceased hac been wearing during the incident were collected one by one and sent to the Antalya Police Criminal Laboratory and according to the detailed examination thereof, together with other findings which have been identified, it was revealed in the expertise report dated 05/10/2012 that gunshot residues were found in the palm and on the back of both the right and left hands of the deceased suspect Ç.D. after the examination of the swap samples obtained therefrom, that in the palm and on the back of the right hand and the left hand of the deceased M.Ç. gunshot residues were found, that gunshot residues were identified in the palm of the right hand and on the back of the left hand of the deceased M.K. after the examination of the swap samples obtained therefrom, that gunshot residues were found on the hands of the complainant suspects A.İ., Y.K. and B.D. and that no gunshot residues have been found on other complainant suspects;

That as a result of the detailed examination of the clothes of the deceased suspect Ç.D. the gunshot marks on his body were found to have resulted from distant shots, that this matter was also found to be the same during the autopsy of the deceased Çağrı D. in line with the skin and subcutaneous findings on his body and that none of such marks on his body were from adjacent shots (the autopsy report dated 14/12/2012), that one of the gunshot wounds on the deceased M.Ç. resulted from a distant shot and one from a close shot, that the gunshot mark found on the clothing of the deceased M.K. was identified to be from a distant shot;

That, according to the expertise report dated 06/10/2012, in line with the comparative examination of the pistols that belonged to the complainant suspects M.Ö., İ.Ç., A.İ., Ö.Ş., Y.K., B.D., M.Z.H. and M.E. and the 28 empty shells, one bullet and two bullet jackets of identifying quality that were obtained from the scene of the incident, it was found out that one shell was fired from the weapon of the police officer Ö.Ş., 7 shells and one bullet were fired from that of the police officer A.İ., the three empty shells found in an evidence bag and one of the two jacket pieces found in another evidence bag were fired from the gun that belonged to the police officer İ.Ç., that the two empty shells were fired from the gun of the police officer M.Ö., that one empty shell was fired from the gun of captain B.D. and that such information was established separately;

That, the total of 8 empty shells which were found at the prison juncture and down the road were fired from the gun with the brand ... which belonged to the deceased police officer

M.Ç. that was usurped from him by the deceased suspect Ç.D., the 3 empty shells that were identified were fired from the gun with the brand ... of the deceased police officer M.K. that was again usurped by the deceased suspect Ç.D. and that such information have been established both by the Criminal Laboratory Report of the Police and the Directorate of the Ballistic Examination Section of the Istanbul Forensic Medicine Institution;

That, as a result of the examination of the vehicle bearing the number plate 07 DE 044 it was found that the fingerprint which has been found on the rear view mirror was the same with the print of the right thumb of the deceased suspect Ç.D;

Allowing that, explicitly and without hesitation, the conclusion that in the first incident the deceased suspect Ç.D. has killed the deceased M.Ç by shooting him with the hunting rifle and in the second incident which took place at the road control point on the prison juncture he has shot, with the gun that he has usurped from the latter, the deceased M.K. and A.B., killing both with this gun, that the deceased suspect Ç.D. has usurped the said gun from the first police officer that he has killed and that all of the witness statements obtained confirmed that this has occurred in this way, that the guns with serial numbers ... and ... that were usurped by the deceased Ç.D. were found on his person at the point where he was caught wounded, and the biological finding obtained from the magazine section of the gun bearing the serial no. ...

was a perfect match with the blood sample of the deceased Ç.D., although none of the guns concerned bore fingerprints to suffice for identification and that in the report of the Ankara

Criminal Police Laboratory it was determined as such;

It was found that during the operation that has been carried out to capture the deceased suspect Ç.D. the complainant police officer suspects have used arms but the 4 bullet fragments were found in the corpse of the deceased Ç.D., which according to the report that was given by the Presidency of the Forensic Medicine Institution of Istanbul, had no comparative quality and as such which bullet came from which of the guns could not be determined, however, in the examination of his clothes, according to Antalya Criminal Police Laboratory the shots had the quality of being distant shots and that this issue was confirmed during the autopsy by the Forensic Medicine Team of Experts upon finding that the shots were not proximal, hence there were no hard evidence concerning the shooting of the deceased suspect Ç.D. was from a close or an adjacent distance, to the contrary, it was found that the security forces have exercised their authority to use their weapons within the legal framework and fired at will towards the area where from the deceased suspect Ç.D. was shooting at them and that the latter was caught wounded and lost his life at the hospital to which he was taken and as indicated also in the minutes of the examination of the deceased and the autopsy report, no particular parts of the deceased suspect Ç.D. have been aimed at, that the shots were fired at will and that many shots were fired towards the right hand and arm of the deceased suspect Ç.D. holding the gun and that, considering the gunshot wounds on his arm it was of utmost clarity that they have above all fired direct shots to the arm and the hand of the suspect which were firing the gun, that the body of the deceased suspect Ç.D. has received 6 bullets 4 of which were shots to arms, legs and shoulders which would not cause danger to life and which were not lethal, that it was established upon the autopsy report that the two bullets that have hit the chest and the abdomen were of lethal quality, and as such, within the framework of the existing evidence there is no hard evidence to confirm the claims of Cemil Danışman, father of the deceased suspect Ç.D. and the content of many of the recourses of his attorney, Münip Ermiş, which were included in the file and that to the contrary, the security forces have acted within the legal framework and this was clear from the status of all of the evidence;

And although Münip Ermiş, the attorney of the complainant Cemil Danışman, father of the deceased Ç.D., claimed in the petition that he has submitted that in the first photographs that were shot when Ç.D. was first captured there were no blood stains whatsoever on his back whereas in other photographs that were taken later there were visible blood stains on his back and hence claimed that Ç.D. was deliberately murdered, still, in his detailed statement, the witness S.K. who is understood to have taken the photographs concerned, said that he himself has taken the photographs where Ç.D. was seen in later frames with blood marks on his back whereas such marks in earlier frames did not exist, that the photograph in which it is claimed that there are no blood marks on his back was taken from the side of his feet when at that moment the security forces have twisted Ç.D.'s hand towards his back and this is why the blood stained parts in the upper back region do not show in these photograph frames and that the first photograph that he had taken was shot from where Ç.D.'s head was turned to and in this frame his back part was covered in blood and that during his capture he has not seen any firearm shooting and thus the claim concerning murder after he was captured is not true and that this is how it was understood, and considering the itinerary of flight of the deceased suspect Ç.D. especially after the prison juncture where he has killed two police officers, there were blood stains on this route, which, according to the Ankara Criminal Police Laboratory Report were established to be belonging to Ç.D., that essentially Ç.D. was shot by the security forces before he reached the spot where he was captured wounded, while he was running away from the prison juncture, that he fled fast in the streets of Fatih Neighborhood while wounded and has lost a certain amount of blood and that police officers in the area where he was caught have fired many shots towards where the deceased suspect Ç.D. was and that this is also established with the empty shells obtained from the scene;

It was understood that when the deceased suspect Ç.D. was caught there was blood on the magazine of the weapon with the brand ... and serial no. ... that deceased suspect Ç. . has used in the crime, that it was empty and there were two bullets in the barrel of the gun and these bullets were jammed, that probably it was at the time when he was pointing the gun at the security forces and the gun misfired and that was why bullets have jammed up in the barrel and at this point he could not fire with this gun and that he has usurped the gun with the serial no. ... at the prison juncture and dropped its magazine on his flight route and that this gun too, had no magazines in it when the deceased Ç.D. was caught and that this was the reason why at this point he could not fire with this gun;

That the DVDs and the CDs and the GPS reports showing the route of the ambulance which were included in the file were given to the expert A.G. from whom a report concerning thereto has been obtained, that the expert has informed in the report that he has submitted on the date of 19/11/2012 that the CDs and the DVDs were examined, that among such footage were photographs demonstrating the scene of the incident and that were taken during the course of the incident and that such photographs have also been printed and added to the report and the footage included CCTV (MOBESE - Mobile Electronic System Integration) images as well as pictures of the victims that were taken during the physical examination of the deceased and that the expert has also provided an additional report concerning the ambulance that took the deceased Ç.D. to the hospital and in this report the GPS records and the GPS map imagery were also identified and incorporated into the report but it was stated that the performance of the assessment of the complaint regarding the ambulance workers and of the nature of the jobs of the ambulance workers and their negligence, if any, in the incident would be more appropriate if it was carried out by the bureau of investigation of civil servant crimes and that such acts have taken place after the acts of killing at hand and as such it was stated that the documents relating to such issues have been forwarded to the Bureau of Civil Servant Offenses.

...

CONCLUSION

UPON THE ATTAINMENT OF THE CONCLUSION AND THE CONVICTION THAT ... on the date of 04/10/2012 at around 20:00 hours the police was informed about the deceased Ç.D. who was allegedly carrying something that looked like a hunting rifle case around the neighborhood of Yıldız and who was acting suspiciously, that after a while a unit of Yunus (Dolphin) Motorcycle Police officers arrived at the scene, that the complainant F.D. was driving the motorcycle while the deceased M.Ç. was on duty as the back-man on the motorcycle and that they have approached Ç.D. whom they have identified and the deceased

M.Ç went near him and called to him, that the deceased Ç.D. who who was in hiding next to a vehicle has fed a bullet into the front of the hunting rifle and pointed the rifle to the deceased

M.Ç. and fired at him and shot him and then fired one more shot, that the other complainant F.D., under the influence of the incident, has dropped the motorcycle on to himself and he was wounded from his feet and that he was down on the ground for a while so that he could not stand up and help his friend, that deceased Ç.D. has also usurped the duty weapon of the deceased M.Ç. and that as he was about to shoot at the complainant F.D. with the hunting rifle, İ.C., who was listened to as a witness, has thrown his/her laptop onto Ç.D. and thus he has prevented him from shooting at F.D., that the shattered laptop was found on the scene of the incident and that we have seen that this was so in person during the viewing,

That the deceased suspect Ç.D. has fled the scene of the incident with the vehicle with the number plate 07 DE 044 which is understood to belong to him, that as a result of the work that the security forces have carried out it was understood that he proceeded towards the prison juncture and was being chased by the security forces, that the deceased police officers

M.K. and A.B. chased the suspect Ç.D.'s vehicle from behind and when they came to the prison juncture the deceased M.K. and A.B. approached Ç.D.'s car asking him to step out of the vehicle, that Ç.D. has killed police officers M.K. and A.B. at the prison juncture by shooting them with the gun that he had usurped earlier from M.Ç., that he did not listen to the call for 'surrender' of the security forces who have fired warning shots for him here, and has tried to vanish by entering the darkened streets of Fatih neighborhood, that he, at the spot where he was finally captured, had taken cover by a tree and pointed his gun to security forces but he could not fire as a bullet was jammed in the barrel of the gun and that, here, the security forces have fired shots in his direction and captured him wounded, then he lost his life at the hospital where he was taken, that two of the six shots that he has received in his body were of lethal quality while others were not,

That the incident concerning the use of arms of the security forces has been analyzed above in detail, and as a result of such analysis it was seen, taking into consideration the Code on the Duties and Authorities of the Police, article 2 of the European Convention of Human Rights and the established case law of our Supreme Court of Appeals, that the authority to use arms of the security forces was within the framework of the authority endowed unto them by the law, that basically the justification of our decision concerning the presence of no grounds for prosecution is not such although articles 24 -15 and 28 of the TCC have been examined here above, that although the circumstance of exigence is present in our case, considering under which circumstances arms can be used, the limit of use of weapons and conditions thereof, the main justification is that they have used arms in line with the principles of proportionality and exigency so as to eliminate and stop the counter attack within their authority in a way to prevent the rise of more critical outcomes, and that such use of arms by the security forces, taking into consideration article 2 of the European Convention on Human Rights, the case law of the European Court of Human Rights and the case law of the Supreme Court of Appeals, is in compliance with the provision of the code;

And as it is understood that the deceased suspect Ç.D. has lost his life in the incident as a result of his committal of the crimes of manslaughter as a result of his armed attack on the deceased M.Ç., M.K. and A.B., of qualified plunder and of Violation of the Code No. 6136 as per article 64 of the TCC;

and that S.Y., İ.Ç., Ö.Ş., Y.K., A.İ., M.Ö, M.Z.H., M.E. and B.D., who have been identified as complainant suspects for being shot at by Ç.D. as they, who as being complainant suspect police officers, have used arms so as to capture Ç.D.have done so within the scope of the authority and the limits endowed unto them by law as informed as such in detail here above, and that, although as a result of their exercise of such act of using arms Ç.D. has lost his life, their act, with all its dimensions, is congruous with the provision of the TCC, the provision of the Code on the Duties and Authorities of the Police, the provision of the 2/2 of the European Convention on Human Rights, and the established case laws of the European Court of Human

Rights and that of our Supreme Court of Appeals, as per 172nd and subsequent articles of the TCC it has been decided that THERE ARE NO GROUNDS FOR PROSECUTION IN THE NAME OF THE PUBLIC

...

and it has been decided as such, whereby the remedy to object the decision within 15 days starting from the date of notification shall be open at the Presidency of the Assize Court of Manavgat. 18/03/2013.…"

22. The objection made against this decision by the applicant was rejected by the 1st Assize Court of Manavgat (the Court) with its decision dated 5/6/2013 and No. Miscellaneous Action 2013/1064 the justifications for which are as follows:

 " ... in line with the justification of the decision that is made as a result of the investigation which has been carried out regarding the presence of no grounds for prosecution concerning the incident where the deceased suspect Ç.D. has shot the police officer M.Ç with the hunting rifle which belonged to him and usurped his gun and ran away and he has killed the police officers M.K. and A.B. who have approached him while his vehicle stopped at the red light and told him to step out of the vehicle, using the gun that he had usurped from the deceased M.Ç., and where he continued his escape as he also has usurped the gun of the police officer M.K. and where he did not surrender to security forces despite the warnings and caveats, and where he was captured wounded as a result of the chase in the area where streets 3351 and 3356 meet upon the shooting of security forces and where he, as a result of gunshot wound, has lost his life at the Atatürk State Hospital where he was taken, it is decided that the objection be dismissed for there are no contradictions with the procedure and the law and upon the conclusion that there is no sufficient evidence to enable the lodging of a public case pertaining to the killing of deceased Ç.D. after his being captured wounded.…”

23. The decision of the court was notified to the counsel of the applicant on the date of 7/8/2013 and an individual application was lodged with the Constitutional Court within due period.

B. Relevant Law

24. Article 16 of the Code on the Duties and Authorities of the Police No. 2559 with the side heading 'Use of force and arms' is as follows:

"(Amended: 2/6/2007-5681/4 art.) The police, in cases where during the performance of his/her duty s/he encounters resistance, shall be authorized to use force with the aim and to the extent of breaking such resistance.

Within the scope of such authority to use force s/he can use incremental physical force, material power and weapons upon the realization of legal conditions thereof, considering the nature and degree of such resistance and in a way to render the resistors ineffective.

In the second paragraph;

a) Physical force shall mean the bodily power that the police exercises directly on

resisting people or objects,

b) Material power shall mean the handcuffs, batons, pressurized water, tear gases or powders, physical obstacles, police dogs and horses and other service equipment that the police uses on resisting people or objects.

Before using force, a warning shall be made to those concerned that direct force will be used should they continue to resist. However, taking into consideration the nature and the degree of resistance, force can be also used without warning.

The police shall determine the tools and equipment and the degree of force that s/he will use within the framework of his/her authority to use force to render the resistance ineffective. However, in cases where the police acts as a collective force, the degree of the use of force and the tools and equipment to be used shall be determined by the superior officer of the intervening force.

The police, when facing an attack towards himself/herself or against someone else, shall put up a defence within the framework of the provisions concerning self-defense in the Turkish Criminal Code No. 5237 without being bound by the conditions concerning the use of force,.

The police shall be authorized to use arms;

a) Within the scope of the exercise of the right to self-defense,

b)With the aim and to the extent to break the resistance against such resistances which

s/he fails to render ineffective through the use of physical force or material power,

c) With the aim and to the extent to ensure the capture of suspects for whom a warrant for the arrest, detention or interning, or an order for the capture thereof have been given or in the event of flagrante delicto.

The police, before using arms within the scope of sub-paragraph (c) of paragraph seven, shall call the person concerned to 'stop' in a manner that is audible to the person. In the event that the person continues his/her flight without heeding to such call, s/he can first take a shot with the gun with the aim to warn. Yet, in cases where the person insists to flee despite such warning and thus his/her capture is impossible, shots can be fired with the gun with the aim and to the extent to ensure that the person is caught.

In cases where s/he faces attempts of counter armed attacks against him/herself during the exercise of his/her authority to use force or arms with the aim to break a resistance or to capture, the police can, without hesitation, fire shots with the gun to the person attempting such counter attack to the extent to render the danger of such attack ineffective."

25. Article 6 of the Code numbered 2559 with the side heading of “Judicial duties and authorities” is as follows:

"The police, in addition to the tasks which have been listed in this article, shall also carry out duties concerning the transactions of investigation which have been specified in the Code of Criminal Procedure and in other legislation.

The police shall put into writing the verbal information and complaints that s/he receives and the information concerning the crime that s/he gets hold of during his/her duty.

The police, upon encountering a crime after an information obtained or a notice that has been given or upon a complaint or alone by him/herself shall immediately employ the measures required so as to ensure that the health, physical integrity or property of individuals and of the public remains unharmed and the evidence of the crime are not lost or tampered with.

The police, upon receiving the information that a crime has been or is being committed, shall, after putting in place the immediate measures that are needed for the protection of the scene of the incident, identification of evidence, and to ensure that evidence is not lost or tampered with, inform the Public prosecutor immediately of such incidents that s/he has handled, persons caught and the measures applied, and in line with the order of the Public prosecutor s/he shall carry out the transactions of investigation that are needed for the illumination of the matter.

In cases where the information which is obtained following the investigation that shall be made concerns a misdemeanor, the matter shall be investigated into and the required legal transaction shall be performed or the performance thereof shall be ensured.

The police who launches the transactions related to his/her duty on the scene of the incident shall ban the persons who obstruct the conduct thereof or act in contrary to the measures that s/he has taken within his/her authority until such transactions are completed and by use of force when necessary.

With the aim to identify the evidence of the crime, the police shall carry out the required examinations and technical research on the scene of the incident, identify the evidence, place them under protection and dispatch them to related places for examination upon the order of the Public prosecutor.

For transactions that will be carried out in residences, places of work and non-public closed areas which are outside of the scene of the incident regarding which there is a compelling reason to suspect that evidence concerning the crime can be obtained, the provisions concerning searches and seizures in the Code of Criminal Procedure shall be applied.

The police can carry out identification upon the order of the Public prosecutor in cases where it is compulsory to find out whether the perpetrator in the incident is the same person with the suspect who has been taken in custody.

…”

26. Article 24 with the side heading "The provision of the code and the order of the superior officer" under Section Two entitled "Reasons That Revoke or Diminish Criminal Liability" of the Turkish Criminal Code No. 5237 is as follows:

(1) A person who performs a provision of law shall not be penalized.

(2) S/he who carries out an order given by a competent body which is compulsory to be fulfilled as per his/her duty shall not be held responsible.

(3) An order constituting a crime can on no account be carried out. Otherwise, the person who gives the order and the person who carries out the order shall be held responsible.

(4) In cases where control of the order’s compliance with law is hampered by law, the person giving the order shall be held responsible for the fulfillment of the order.

27. Article 25 entitled "Case of self defense and compulsion" of the said Code is as follows:

(1) No punishment shall be given for the acts of a perpetrator who acts out of necessity to avert an unjust aggression against his/her own or another person's rights, which is in occurrence and the occurrence or the recurrence of which is imminent, where such acts are committed according to the circumstance and the conditions of that moment and in proportion to such aggression.

(2) No punishment shall be imposed upon the perpetrator for the acts committed out of necessity to avert a grave and imminent danger against his/her own or another person’s rights which s/he has not caused deliberately and the evasion of which is not possible through any other way on the condition that there is a proportion between the gravity of the danger and the subject matter and the means used. Duties and authorities of the public prosecutor

28. Article 161 of the Code of Criminal Procedure No. 5271 entitled "The duties and the authorities of the Public prosecutor" is as follows:

"(1) The Public prosecutor may conduct all kinds of research directly or through the judicial law enforcement officers under his/her command; and may request all kinds of information from all public officials in order to attain the results stipulated in the above article. When the need to conduct an action outside the judicial locality of a court before which the Public prosecutor performs his/her duties pursuant to his/her judicial duty arises, s/he shall request the Public prosecutor of that locality to conduct that action in this matter.

(2) The judicial law enforcement officers shall be liable to immediately notify the Public prosecutor under whose command they work of the incidents they have started to handle, the persons arrested and the measures implemented and to execute the orders of this Public prosecutor pertaining to judiciary without any delay.

(3) The Public prosecutor shall give the orders to the judicial law enforcement officers in writing; and orally in cases of urgency. (Additional sentence: 25/5/2005 – 5353/24 art.) The oral order shall also be notified in writing as soon as possible.

…”

29. Article 164 entitled "Judicial law enforcement and the duties thereof" of the said Code is as follows:

"(1) Judicial police means the security officers who conduct the investigation actions defined in Articles 8, 9 and 12 of the Code on Police Organization numbered 3201 and dated 4.6.1937, Article 7 of the Code on the Duties and Authorities of the Gendarmerie Organization numbered 2803 and dated 10.3.1983, Article 8 of the Decree in the Force of Code on the Organization and Duties of the Undersecretariat of Customs numbered 485 and dated 2.7.1993 and Article 4 of the Code of Coast Guard Command numbered 2692 and dated 9.7.1982.

(2) The judicial police shall be primarily made to conduct actions of the investigation in line with the orders and instructions of the Public prosecutor. Judicial law enforcement officers shall execute the orders of the Public prosecutor pertaining to the judicial duties.

(3) The judicial police shall be under the command of its superiors in services except for their judicial duties.

30. Paragraph (1) of article 172 of the said Code entitled "The decision regarding no grounds for prosecution" is as follows:

"The Public prosecutor shall decide that there are no grounds for prosecution in the event that evidence to constitute sufficient suspicion for filing a public action has not been gathered or that there are no means of prosecution at the end of the investigation stage. Said decision shall be notified to the person damaged by the crime and the suspect whose statement is taken or who is interrogated previously. The right, period and authority of objection shall be shown in the decision."

IV. EXAMINATION AND JUSTIFICATION

31. The individual application of the applicant dated 14/8/2014 and numbered 2013/6319 was examined during the session held by the court on 16/7/2013 and the following were ordered and adjudged:

A. Claims of the Applicant

32. Indicating that the security forces have caused the death of his son by use of arms despite the absence of conditions requiring the use of arms, that most of the investigation was conducted by the law enforcers who were also in the position of suspects, that the crime of torture was not included in the investigation, and that in the decision of NGP the allegations concerning torture have not been examined, that regarding the driver of the ambulance and other paramedics only an administrative investigation was launched for misconduct but no investigation was launched concerning participation in homicide, the applicant has claimed that the right to life, the prohibition of torture and torment, and the right to effective application that have been taken under guarantee in articles 17 and 40 of the Constitution have been violated and has requested compensation.

B. Evaluation 1. In Terms of Admissibility a. The Claim as to the Fact that the Right to Life Has Been Violated

33. It is seen that the claims regarding the violation of article 17 of the Constitution as a result of the unnecessary use of arms by the police are not clearly devoid of grounds as per article 48 of the Code numbered 6216. As no other reason for inadmissibility was observed, it should be decided that this part of the application is admissible.

b. The Claim that the Prohibition on Torture and Torment Has Been Violated

34. It is seen that in the incident which is the subject of the application, the claims concerning the violation of the prohibition of torture and torment regulated in article 17 of the Constitution which is made by mentioning that the applicant's son was battered at the place where he was caught in an ineffective condition and the claims in relation thereto have not been investigated are not entirely devoid of grounds. As no other reason for inadmissibility was observed, it should be decided that this part of the application is admissible.

2. In Terms of Merits a. The Claim that the Right to Life has been Violated i. The Claims of the Applicant and the Opinion of the Ministry

35. The applicant has propounded that, in the final stage of the incident which is the subject of the application, that being the moment when Ç.D.was captured wounded, he himself did not possess any arms , that his fingerprints were not identified on the weapons which are claimed to be in his possession, that such weapons were later brought next to him and for this reason the police did not have authority to use arms in the incident. The applicant has also claimed that in the NGP decision that was taken by the Office of the Public Prosecutor regarding the incident, when the conclusion that the authority to use arms was exercised within legitimate limits was reached, the Office of the Public Prosecutor did not (could not) heed such statements in the 'incident report' which was prepared by the police and in the statements by the police officers who have been interpellated as suspects to the effect that Ç.D. had fired at them multiple times, that they had to return such fire, because on the two weapons that have been found next to Ç.D. on the scene where the last incident took place his fingerprints were not found and that all 13 shells which were found where he was shot belonged to the weapons of the police officers, as a conclusion, although he was severely wounded and showed no resistance his son was shot in the back and killed by the police.

36. The Ministry has indicated in its letter of opinion that whether the force used by the police was rightful and necessary has to be assessed in line with the case law of the European Court of Human Rights (ECtHR), that according to the ECtHR it is accepted that not only the actions of the officers resorting to force but also all conditions in relation thereto including the legal and the regulatory framework and the issues in relation to the preparation and supervision of such framework have to be taken into consideration, that paragraph 2 of article 2 of the European Convention on Human Rights (ECHR) covers not only cases where deliberate manslaughter takes place but also cases where «ways of resorting to force» which may end up in unintentional death might occur, and in addition that use of force has to be resorted to in cases where this is «definitely exigent» for the attainment of one of the aims which have been specified in sub-paragraphs a., b. or c. of article 2, that it is accepted that the force to be resorted to must definitely be proportionate to the said aims, that in some of its decisions in cases which have been lodged regarding Turkey, ECtHR had ruled that it cannot supplement its evaluation of the matter with those of the officers who had to respond in the spur of the moment with a perspective that is disconnected from the incident, and that it accepts making a judgment otherwise would be to charge an unrealistic burden on States and the law enforcers performing their duties and maybe that such would be to endanger the lives of them and other persons.

37. In the opinion of the Ministry it has also been stated that the ECtHR, looking at the way article 16 of the Code No. 2559 which regulates the authority of the police to use arms is interpreted by penal courts, has concluded that such legal framework is basically defective and that it fails to attain the level of protection of the right to life that the Convention necessitates for the democratic societies of contemporary Europe.

38. In the opinion of the Ministry, these evaluations were made as regards the present incident: In the incident which is the subject of the application it has to be kept in mind that there was no police operation which was planned beforehand and the framework of which was previously drawn, that the police went to the scene of the incident upon receiving an information and was unexpectedly shot at and the chase and the capture commenced as a result of the passing away of one of the police officers and the wounding of another. Such process spans a time frame of approximately 2 hours between 20:10 hours and 21:50 hours on the night of the incident. During this process announcements were made continuously on the police radio whereby the police units were continuously informed and directed. Moreover, considering that Ç.D. has used firearms against the police officers and has been shooting around and that he was armed as he fled, the heat of the incident and the presence of a real phenomenon of threat has to be accepted. The evaluation of the preparations which were made before the capturing of Ç.D. and of the control of the intervention have to be made with a consideration of such conditions and such discretion rests with the Constitutional Court.

39. Furthermore, in the opinion of the Ministry it has been indicated that from the findings which have been obtained within the scope of the investigation that has been carried out regarding the incident it was seen that it was a distant shot which caused Ç.D.'s death, that he was shot with six bullets four of which had hit him in places such as his arms, legs and shoulders and the remaining two had hit him in his chest and abdomen which are lethal spots and that this was determined by the Public Prosecutor, that all of the police officers and other people the knowledge of whom have been resorted to have all indicated that the police had made a multitude of warnings before shooting, asking that Ç.D. surrenders himself all of which Ç.D. has responded with fire, that the mobile phone base station data, encryptions of the camera footage and the minutes of the radio conversations are in compliance with witness statements and with the statements of the police officers, that from the autopsies performed on the deceased police officers and from criminal expertise reports it was seen that they were killed as a result of fire from the hunting rifle belonging to Ç.D. and from the weapons taken by Ç.D. from the police officers that have been killed, and furthermore, that the blood which has been found on the weapons of the police officers who have been killed was identified to be the blood of Ç.D., that the police was not informed during the capture that Ç.D. was schizophrenic and received due treatment and that whether the police used unnecessary force or not has to be decided under such circumstances.

40. The applicants did not make any statements against the opinion of the Ministry on the merits of the application.

ii. Principles Concerning the Matter

41. Paragraphs one and four of Article 17 of the Constitution with the heading "Inviolability of the person and the material and spiritual existence thereof" are as follows: “Everyone has the right to life and the right to protect and improve their material and spiritual existence.

The acts of killing in the case of self-defense and under compelling circumstances where law permits the use of a weapon during the execution of warrants of arrest and detention, the prevention of the escape of a detainee or convict, the quelling of a riot or insurgence, the execution of the orders given by an authorized body during martial law or state of emergency is out of the scope of the provision of the first paragraph.”

42. The right to life and the right to protect and improve his/her material and spiritual existence of an individual are among the rights which are closely tied, inalienable and indispensable and the state has positive and negative liabilities about this subject. The state, as a negative liability, has the liability not to terminate the life of any individual within its jurisdiction intentionally and contrary to the law and, as a positive liability, has the liability to protect the right to life of all individuals within its jurisdiction against the risks arising out of the actions of public institutions, other individuals and the individual himself/herself (App. No: 2012/752, 17/9/2013, § 50-51).

43. According to the basic approach that the Constitutional Court has embraced in terms of the positive liabilities which the state has within the scope of the right to life, in the incidents of death which occur under the conditions which can require the responsibility of the state, article 17 of the Constitution imposes the state the duty of taking, through the use of all capabilities at its disposal, effective administrative and judicial measures which will ensure that the legal and administrative framework that is formed in this matter is duly applied in order to protect the individuals whose life is in danger and that the violations as regards this right are stopped and punished by making use of all available facilities. This liability is valid for all types of activities, be it public or not, in which the right to life can be in danger. (App. No: 2012/752, 17/9/2013, § 52).

44. Cases of death which are alleged to have taken place as a result of the use of force by public officials have to be, without doubt, considered within the scope of the negative liability "not to end the lives of any individuals" that the state has. Such liability contains both killing in deliberation and the use of force that ends in death without premeditation (For a similar decision of the ECtHR see: McCann v. United Kingdom, App.No: 18984/91, BD, 27/9/1995, § 148). As specified in article 16 of the Code No. 2559 which was given above (§ 24), use of force can be in the form of use of physical force, use of other tools of material power or use of arms.

45. According to the last paragraph of article 17 of the Constitution, use of arms which in a sense constitutes the severest level of use of force by public officials can be allowed in cases listed within the rule such as "self-defense" and "the performance of warrants of capture and arrest." However, in cases of concern, in order for such resort to deadly force to not lead to the violation of the right to life the presence of an "exigent circumstance" which necessitates the use of force shall be sought.

46. In the previous decisions that the Constitutional Court has made on this matter within the scope of the supervision of the compliance of codes with the Constitution, it has been stated that when the conditions of article 17 of the Constitution which enables the use of arms against persons are materialized, it shall without any doubt, primarily allow law enforcers to use physical force and material power, that arrangements regarding the police, who is liable to ensure public order uses force as a last resort when s/he has no possibility to prevent actions of criminal nature otherwise, this shall not constitute any contradiction with the Constitution, on the other hand that legal arrangements which enable law enforcers' use of 'firearms' without seeking proportionality and without the specification of methods of neutralization against the force exercised against themselves shall be contradictory to the Constitution (Decision dated 26/11/1985 and No. M.1985/8, D.1986/27 of the Constitutional Court, Decision dated 6/1/1999 and No. M.1996/68, D.1999/1 of the Constitutional Court).

47. Article 13 of the Constitution entitled ''Restriction of fundamental rights and freedoms'' is as follows:

“Fundamental rights and freedoms may only be restricted on the basis of the reasons mentioned in the relevant articles of the Constitution and by law without prejudice to their essence. These restrictions cannot be contrary to the letter and spirit of the Constitution, the requirements of the democratic social order and of the secular Republic and the principle of proportionality.”

48. As per the requirement of the principle of proportionality which is found in article 13 of the Constitution that regulates the conditions of restriction which are valid for all fundamental rights and freedoms, in the event that persons are deprived of their fundamental rights, a fair balance has to be established between the public good which is sought and the rights of the individual who has been deprived of his/her fundamental right (App.No. 2013/817, 19/12/2013, § 37).

49. The principle of proportionality is composed of three sub-principles, namely: "availability", "exigence" and "proportionality." "Availability" means the availability of the prescribed intervention to realize the objective aspired for, "exigence" shall mean the necessity of the intervention regarding the objective aspired after, that is when achieving such objective with a lighter intervention is not possible and "proportionality" shall mean the necessity for the observation of a reasonable balance between the intervention in the right of the individual and the objective aspired after (App.No. 2013/817, 19/12/2013, § 38).

50. When the above provisions concerning the interventions in the right to life through use of force are considered together with previous decisions that have been taken by the Constitutional Court regarding such matter, it will be possible to say that it allows the law enforces to use arms in a 'proportionate' way (in comparison with the objective attainment of which is sought through the use of arms and the force which is faced) in cases of 'exigence' when no other remedy remains so as to achieve the objectives which have been specified in the Constitution.

51. Similar to the arrangement in our Constitution, according to article 2 of the ECHR, if a death has occurred as a result of "use of force which is no more than absolutely necessary"; (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection, it can not be said that violation of the right to life has taken place.

iii. Application of Principles to the Present Incident

52. Notwithstanding the differences between the claims of the applicant regarding the development of the present incident and the findings which have been obtained and the conclusions attained within the scope of the investigation, for the Constitutional Court, it is seen that sufficient material and proving aspects to allow for the evaluation of this incident are available.

53. Within the scope of right to life, the state, first, has to set up an adequate legal and administrative framework so as to protect the lives of persons the lives of whom can be endangered (§ 43). The same liability shall also be valid for instances where law enforcers use arms in a way that can directly end lives of individuals. In addition to such liability, the state must also ensure that such framework which has been set up is implemented as required.

54. When the provision of article 16 of the Code No. 2559, which is understood to serve the basis of the use of arms by the police in the incident which is the subject of the application and which has been given here above, is examined from the perspective of the principles of the Constitution regarding the conditions of use of arms, it is seen that such regulation (in a way which is in compliance with article 17 of the Constitution) sets forth with which objectives and to which extent force can be used, that the use of force can be so gradually increased as to culminate in the use of firearms under the condition that those concerned are warned in advance that direct force shall be exercised should their resistance continue. It is seen that the legal framework concerned, which has been established regarding the use of arms satisfies the condition of "exigence" whereby the use of force as sought by article 17 of the Constitution is allowed and the condition of "proportionality" as sought by article 13 of the Constitution so as for the restriction of basic rights. Decisions of the ECtHR which have been included in the opinion of the Ministry and in which the conclusion that the rule concerned remained short of the level of legal protection regarding the right to life has been attained, concerning the version of article 16 of the Code No. 2559 before it was amended by the Code No. 5681 dated 2/6/2007 and it is seen that the ECtHR does not have a new assessment in this direction, regarding the new version of the rule.

55. In this case, how the legal framework concerned has been applied in the present incident has to be examined.

56. When the development of the incident which is the subject of the application is examined, it is seen that the police's use of arms has been, overall and right from the very start, directed to "capturing the suspect" and that however, the need to debate whether or not the use of arms in encounters that have taken place sporadically between Ç.D. and the police have, from the perspective of the police, the nature of "self-defense," remains. In this case, firstly whether or not the use of arms for the two circumstances regarding the incident which is the subject of application constituted an "exigence" has to be examined. (§ 50).

57. During the performance of the evaluation of the actions of public officials concerning the use of force, not only the actions of the officials who actually use such force but also all stages of such an incident including the planning and control should be taken into consideration (For a similar decision of the ECtHR see. McCann v. United Kingdom, App. No: 18984/91, BD, 27/9/1995,§ 150). Also, in the evaluation which will be made about this subject, one must also take into consideration under which conditions the incident has taken place and the course thereof, as a whole (for a similar decision of the ECtHR see. Andronicou and Constantinou v. Cyprus, App. No: 25052/94, 9/10/1997, § 182).

58. At this point it must be indicated that it would not be possible for the Constitutional Court to handle the evaluation of the evidence in the incidents which have taken place in a way to directly replace the respective offices of investigation and trial and those who are principally responsible and authorized on this matter are the judicial and administrative offices who perform the first hand examination of the incidents. Also, the Constitutional Court has no obligation to remain in connection with the evaluations of the authorized offices of first instance and it can make different evaluations based on absolutely convincing findings (for similar decisions of the ECtHR see. McKerr v. United Kingdom, App. No:28883/95, 4/4/2000 Klaas/Germany, 22/9/1993, §§ 29-30).

59. In the material while making evaluations regarding the planning and control of the operation, as stated in the opinion of the Ministry, it has to be kept in mind that police has proceeded to the scene of the incident upon receipt of an information and was unexpectedly shot at and the chase and the capture have commenced as a result of passing away of one of the police officers and the wounding of the other. The intervention of the police in the incident which is the subject of the application, is not an operation that has been planned ahead, and for which reconnaissance and preparatory work have been done, but one that has been sparked as a result of an instantaneous event and culminated and ended in a matter of about two hours. For this reason, an evaluation concerning only the acts of direction and control that have taken place within this period of time can be carried out.

60. However, it is seen that clear information obtained within the scope of the investigation which has been carried out in the incident which is the subject of the application is missing. As much as understood from the radio recordings which have been submitted as an attachment of the petition for application, such recordings include directions concerning the determination of the whereabouts of the escapee, and it is seen that the recordings concerning the police who have intervened in the incident also include announcements of directional and instructional quality such as: "units in the area take absolute precautions for your life," "we have taken the person in," "the unit that has taken him, you are on street 3351, is that correct, calm down," "call the ambulance," "you are saying that the wounded person is the suspect, he has to calm down if that is correct," "units close by, shall they come to disperse the crowd?" "official units in the vicinity secure close proximity, do not wait for instructions." Also, the applicant has no claims as to the irregularity directly in relation to this matter. The applicant, regarding this matter, only claims, basically, that his son in the third and the final encounter was not armed and was shot after he was captured.

61. For the Constitutional Court, although a clear determination of how the police officers were directed by their seniors to capture Ç.D. in this incident is not possible, still, when the development of the incident, the recorded announcements and the statements given during the investigation of the prosecutor by the police who have intervened in the incident and by other witnesses are evaluated together, it is understood that the police units were worried about the safety of their lives, that instructions concerning the adherence to precautions in relation thereto have been given, that no directions directly challenging the safety of life of Ç.D., the identity of whom was not so far clarified either before it was informed that the suspect was captured in a wounded state or in the aftermath, had been given. On the contrary, it is seen that directions regarding the police taking precautions to ensure their safety of life and then, after the capture directions concerning securing the scene of the incident and ensuring calm have been given. In this case, it cannot be said that the planning and performance of the operation is in violation of the right to life.

62. After such evaluations concerning the planning and the control of police intervention, the actions of the police who have intervened directly in the incident have to be examined. As indicated in the opinion of the Ministry, it was accepted by the office of the Public Prosecutor after the investigation that, in the present incident, Ç.D., the applicant's son has died as a result of the fire by police officers in the armed conflict which has taken place as a result of Ç.D.'s refusal to surrender to the police during his capture. In this case, a decision has to be made concerning whether or not the force used by the police about this matter which is not debated has taken place in "a situation of exigence which is legally allowed" as sought by article 17 of the Constitution (whereby the findings and the conclusion attained concerning the development of the incident within the scope of investigations shall be assessed together).

63. While a conclusion is achieved on this matter, the conditions of the incident of death have to be elaborately examined and the nature of the danger of previous actions and the self of the person who has lost his life have to be evaluated (Nachova and others./Bulgaria, App. No:43577/98 and 43579/98, BD, 06/07/2005, § 106).

64. In the NGP decision (§ 21) that has been taken by the office of the Public Prosecutor regarding the investigation which has been carried out about the incident which is the subject of the application, it is seen that the applicant, concerning the evaluations which have been made about how the incident has taken place, has two different claims. Hence, it is understood that he does not have any claims which are different than what has been established in the decision of the office of the Public Prosecutor regarding the incidents which have taken place around 20:10 hours when the motorcycle police unit has encountered Ç.D. and the course of those that have taken place around 20:30 hours when Ç.D. was stopped in a vehicle at the place called the Fatih Neighborhood Kepez (Prison) juncture.

65. The applicant, first, claims that Ç.D., in the third encounter had with him no weapons, that an armed conflict with exchange of fires did not take place, that Ç.D. was shot dead after he was captured and thus one cannot speak of the authority of the police to use arms. As the grounds of these allegations, the applicant indicates that the Office of the Public Prosecutor has relied on the thesis that although it was stated in the NGP decision that it has taken that Ç.D. had two weapons with him in the last incident and although in the statements of the police and the incident scene report it is said that Ç.D. has fired his 2-3 times, the office of investigation has relied on the thesis that even though Ç.D. had not used weapons this would still give rise to the authority of the law enforcers to use arms, for on the two weapons that are alleged to be by Ç.D. during his capture the latter's fingerprints were not found and none of the empty shells which have been found in the scene of the incident belonged to the gun that Ç.D. has used and this was revealed as such in the examination which was made.

66. Regarding such claims of the applicant, when the explanations concerning the course of events in the NGP decision which has been taken by the Office of the Public Prosecutor (§ 21) the observations that Ç.D. has escaped with his vehicle, taking the duty weapon of the police officer M.Ç. whom he has shot in the first encounter, and that he has shot police officers A.B. and M.K. who have approached his vehicle at the place called the Kepez (Prison) Juncture and have asked him to step down his vehicle, and that he has taken the weapon of the police officer M.K. at this point and that the second police team who have come to intervene in the incident have fired warning shots at him here and that he, without observing the call for 'surrender,' has escaped into dark streets.

67. Moreover, in the NGP decision (§ 21) are such explanations concerning the weapons usurped by Ç.D.:

"It has been found out that, the 8 empty shells which have been found at the prison juncture and down the road came from the gun of brand ... which belonged to the deceased police officer M.Ç. that was usurped from him/her by the deceases suspect Ç.D., the 3 empty shells that have been identified exited the gun brand ... of the deceased police officer M.K. that was again usurped by the deceased suspect Ç.D. and that such have been established by both the Criminal Laboratory Report of the Police and by the Directorate of the Ballistic Examination Section of the Istanbul Forensic Medicine Institution; ..."

68. It is also seen that the information that Ç.D. has taken the two weapons from the police officers who have been shot during the first two encounters did not rely on the statements of the minutes of the police and the statements of the police who were interrogated within the scope of the investigation and also that such information, in addition thereto, has been confirmed in the statements of other eye witnesses, namely Ö.E., A.A., M.T., Z.K. and R.S. and also in the examination of the tissue samples on the weapons.

69. It is seen, in the statements of other eye witnesses that Ç.D., after having shot the two police officers in the second encounter, has fled, with two guns in his hands and wounded in his abdominal area, that the police have followed him, that he himself, has also fired (according to the statement of the witness M.T.), that the police have shot in the air and towards himself, that the chase could not be proceeded with for Ç.D. has ran into the darkened streets.

70. It is seen that on page 18 of the NGP decision are the following expressions concerning (and as a response thereto) the claims of the applicant regarding Ç.D. being unarmed at the place where he was last captured:

"...it was understood that when the deceased suspect Ç.D. was caught there was blood on the magazine of the weapon with the serial no. ... that deceased suspect Ç.D. has used in the crime, that it was empty and there were two bullets and these bullets were jammed in the barrel of the gun, that probably it was at the time when he was pointing the gun at the security forces and the gun misfired and that was why bullets have jammed up in the barrel and at this point he could not fire with this gun and that he has usurped the gun of the brand ... and with the serial no. ... at the prison juncture and dropped its magazine on his flight route and that this gun too, had no magazines in it when the deceases Ç.D. was caught and that this was the reason why at this point he could not fire with this gun..."

71. In the NGP decision of the Office of the Public Prosecutor (§ 21) the information that fingerprints that belonged to Ç.D. have not been found on weapons concerned and it is indicated that the biological finding that was obtained from the magazine portion of the weapon that the latter had taken was a perfect match with Ç.D.'s blood sample and such was established with the report of the Ankara Criminal Police Laboratory.

72. Secondly, the applicant claims, in contrast with the observations that have been made in the NGP report, that Ç.D. was not killed as a result of a distant shot as relied upon in the decision but that he was battered by the police after he was neutralized in the last encounter and was killed by a shot in the back.

73. As the basis of this claim the applicant asserts that the shooting distance in the report by the Forensic Institute could not be exactly determined (for such shots have hit parts under the garments and as a result of the chemicals that have been used during the examination of his clothes which has been carried out by the police), and as the second basis, that although there were no blood in his back in the first photographs that were taken when Ç.D. was neutralized whereas in photographs that were taken later it was seen that his back was covered in blood and that this was a clear evidence that Ç.D. was shot dead in his back after he was captured.

74. Considering the information in the NGP decision of the Office of the Public Prosecutor regarding such claims of the applicant, it is seen that in the expert's report of the Antalya Criminal Police Laboratory dated 6/10/2012 the shots which hit Ç.D.'s body have been identified as distant shots after the examination of the latter's clothes, that according to the skin and subcutaneous findings in the autopsy report on Ç.D.'s body it was determined that all shots have been made from outside of adjacent shooting distance. It is seen that the claims of the applicant which he makes on the basis of photographs are found in the NGP decision of the Office of the Public Prosecutor (pages 17-18), that the photograph which, according to the detailed statement of the journalist S.K. was claimed to depict no blood on the back was taken from the feet-side of Ç.D., that all the while the police have bent Ç.D.'s arms towards his back and that this is why the blood stained part on his back does not show in this frame whereas in fact, the first photograph which was taken was shot from Ç.D.'s headside and that in this frame the upper back area was covered in blood and that during the capture no gunshots have taken place.

75. Finally, it is seen that the following expressions regarding the capture of Ç.D. are found in the NGP decision of the Office of the Public Prosecutor:

"Considering especially the escape route taken by the deceased suspect Ç.D. at the prison juncture after he has killed the two police, it was seen that blood stains have been found on such escape route, that these blood stains, according to the Ankara Criminal Police Laboratory report, have been found to belong to Ç.D., that essentially Ç.D. was shot by the security forces who have intercepted him as he ran from the prison juncture, before he reached to the spot where he was captured as wounded, that he has run in that wounded state into the darkened streets of the Fatih neighborhood where a certain amount of blood loss has occurred, but in the area where he was captured in such wounded state, the spot where the deceased suspect Ç.D. were was shot at many times by the police, that it was determined as such from the empty shells which were obtained from the scene of the incident..."

76. It is seen in the NGP decision of the Office of the Public Prosecutor that the issues which the applicant has claimed under both headings (§ 65, § 72) differently from the NGP decision have been explained in a reasonable way and so as not to allow any gaps in the development of the incident following a holistic evaluation of the police records, survey data, the criminal expertise report, the autopsy report, the ballistic examination report and the statements of the police and of other eye-witnesses which have been obtained within the scope of the investigation.

77. The evaluation of the evidence concerning the development of the incident shall be the duty of administrative and judicial offices. However, the Constitutional Court has to examine the way that the incident has developed so as to understand how the incident which is the subject of the application has occurred and to objectively evaluate whether the force which has been used by the security forces have materialized in an "exigence" as prescribed in article 17 of the Constitution.

78. When the information which are found in the investigation file concerning the course of events are examined with a consideration for the above issues which have been asserted by the applicant, it is understood that Ç.D. has taken the gun of yet another police officer both of whom he has shot at the Prison Juncture, that he has engaged in a gunfight with the second police unit that has arrived at the scene, that he has run into the darkened streets with two guns in his hand and a wound in his abdomen. For this reason, considering his act towards the police during the first two encounters, it has to be accepted that Ç.D. who was armed and has run into the dark of the night as such has posed a danger for the police who have taken part in the operations (§ 63). In this case, it has to be accepted that the police who have come to intervene in the incident have arrived at the scene of the incident thinking that they might find themselves in a situation where they would have to use arms so as to capture an aggressor or to prevent any harm on themselves.

79. If the person whom one wants to capture is known to pose a threat to the life or to physical integrity of security forces or of third persons and if it is suspected that such a person has carried out a similar act of violence, it can no longer be said that the use of arms to neutralize such a person is not necessary or that they are in a position where they have but other methods to employ apart from use of arms (for similar decisions of the ECtHR see.Kakoulli/Turkey, App. No: 38595/97, 22/11/2005, § 108, Nachova and others/Bulgaria, App. No: 43577/98 and 43579/98, BD, 06/07/2005, § 95). So, in the conditions of the present incident it has to be accepted that the police's use of arms was an "exigence" so as to capture Ç.D. or to ensure that the latter did not harm the police or third persons.

80. In this case, it has to be assessed whether the police's use of arms within the course of events in the third and the last stage of the incident arose was a "proportionate" use of arms due to "an exigence"..

81. Considering, in order to be able to carry out an examination on this matter, the information which has been objectively set forth within the scope of the investigation file, it is understood that in the first two encounters in the incident Ç.D. has unexpectedly attacked the police officers with his gun who had approached with the aim to ask him questions or to stop him, that he has tried to escape in a wounded state and armed after such two attacks, that Ç.D. did not comply with the verbal warnings and the warning shots in the air of the security forces including in the aftermath of the second engagement and that he was shot from behind when he tried to escape, that reciprocal firing has continued some more after the second attack which took place after when he was stopped as he tried to escape with his car and then Ç.D. has tried to escape on foot as he entered the alleys at the center of the town and that he was armed and wounded in various parts of his body including his abdomen, that on the spot where he was finally captured he has hidden behind a tree with two weapons in his hands. It is seen that such were the course of events in the incident and that the statements of the police which have been taken within the scope of the investigation file and the statements of the civilian eye-witnesses in addition to technical examinations such as the crime scene investigation, ballistic examination and the autopsy examination which have been carried out confirmed this. The claims of the applicant which are contradictory with the development of the incident have been scrutinized in the NGP decision that has been made by the Office of the Public Prosecutor and the conclusion, as expressed in the said decision, "that no evidence to verify the complaints were present" has been reached.

82. Against such observations which are found in the investigation file, considering that the first two attacks have been perpetrated by Ç.D., that he has tried to escape despite verbal warnings as well as warnings by gun shots, that he was lost from sight availing himself of the dark of the night and was armed and that the chase has continued, it has to be accepted that Ç.D. in this last stage of the incident still posed a serious threat for the police and for third persons.

83. Considering the observations that have been made in the two previous paragraphs it is seen that it is impossible to evaluate the third stage of the incident independently from the two previous stages.

84. In the examination that has been carried out after the incident it has been understood that at a certain point during his escape the two guns in Ç.D.'s hand have become ineffective (for one has jammed and the magazine of the other has dropped). It is not possible for the police who have chased Ç.D. during the incident to know at the point where Ç.D. was captured or at an earlier stage that the weapons had become dysfunctional. On the contrary, the police who have chased him were thinking that Ç.D. was armed and that he could shoot at them as he did in previous encounters. For this reason the assertion by the applicant, that at the spot where Ç.D. was captured were only the shells that exited the guns of the police officers who have taken part in the operation and that the police have continued to use their weapons after it was understood that Ç.D. had been neutralized hence the evaluation that the force used was not proportionate becomes impossible.

85. In the autopsy examination that has been carried out within the scope of the investigation which has been carried out after the incident it was understood that 6 bullets have hit Ç.D.'s body, that two of these bullets have hit him in his abdomen and his chest and that the other four have hit him in his arms and legs which are not lethal organs and the death of Ç.D. has been stated to be a result of "Destruction of internal organs and internal and external bleeding arising from gun shell wounds in his chest and abdomen." It does not seem possible to determine which of the bullet wounds that Ç.D. has received during the chase has caused his death. Because, according to the report that the Presidency of the Istanbul Forensic Institute has given within the scope of the investigation, four bullet fragments that were extracted from Ç.D.'s body had no comparative quality hence it cannot be determined which bullet from which police's gun he was shot with. On this issue, the investigation file substantially provides witness statements indicating that Ç.D. has escaped after the second attack, armed and wounded in his abdomen and the information concerning the presence of blood marks on the escape route. Although according to the Police Criminal Laboratory report the shots were "distant shots" this could not be confirmed completely with the report of the Forensic Medicine Institution. However, there are no observations otherwise in the report of the Forensic Medicine Institution and it is understood that the police could not approach Ç.D. except for the final moment of capture. In the place where Ç.D. was seen for the last time, it is understood that Ç.D. has collapsed as a result of the police's distant shots and it was only understood then that the suspect was neutralized and was approachable. The Office of the Public Prosecutor who was the addressee of such claims of the applicant, has decided that there were, within the scope of the investigation, no supporting substantive findings concerning the use of arms against Ç.D. beyond this point (that is, after when Ç.D. was neutralized).

86. A collective evaluation of the observations provided in this section reveals the following conclusions: 1. It is not possible under the conditions of the present incident to accept that, as a result of Ç.D.'s non-compliance with both the verbal warnings and the warning shots, the police had other tools to capture Ç.D. 2. The incident has taken place at the center of town, in sporadically crowded areas and in the dark of the night. In the incident, Ç.D. who has killed three police officers and who has escaped as armed still constitutes a danger. 3. Shots that have been taken are distant shots which have been aimed to stop the runaway suspect, no findings confirming that shots which directly aimed at lethal parts have been taken so as to kill him after he was captured have been encountered.

87. As a conclusion, it has to be accepted that the police's use of arms which has occurred under such conditions arose from an "exigent situation" which is allowed by the code in cases of capture and self-defense and that the armed force which has been used is not "disproportionate."

88. It cannot be possible for the Constitutional Court to put itself in lieu of the security forces who react in the heat of the moment in incidents such as the one at hand and make a decision regarding the use of arms of the security forces by taking its own evaluations concerning the exigence and proportionality of the use of arms, in isolation from the incident. Any other acceptation otherwise could lead to a burden on the security forces who exercise public power or on third persons which could claim the lives thereof (for similar decisions of the ECtHR see. Andronicou and Constantinou/Cyprus, app. No: 25052/94, 9/10/1997, § 192, Usta and others/Turkey, App. No:57094/00, 21/2/2008, § 59).

89. For reasons explained, it has to be decided that death which has occurred as a result of the use of arms against Ç.D., the applicant's son, did not give rise to the violation of the principle of the right to life.

 b. The Claim that the Investigation that has been Conducted within the Scope of the Right to Life is Insufficient i. Claims of the Applicant and the Opinion of the Ministry

90. Within this scope, the applicant has asserted that the Public Prosecutor has come for reconnaissance purposes to the scene of the incident a day after the incident has taken place, on the date of 4/10/2012, that however, it was incorporated in the minutes that no evidence apart from blood stains were present at the scene of the incident, that on that day no transactions other than hearing a couple of citizens as witnesses had been carried out, that all the documents and evidence concerning the investigation have remained at the law enforcement until the date of 19/10/2012 when they have addressed the Office of the Public Prosecutor as complainants, that meanwhile all examinations including the ballistic examination have been carried out by the Antalya Directorate of Security, that the investigation in cases where public officials are involved as suspects should be carried out by independent investigation offices from the beginning to the end of such investigation, that in the present incident one of the inconveniences of this situation (as a result of the chemicals that have been used in the first investigation that has been carried out on Ç.D.'s clothes at the Criminal Laboratory of the Police) was seen when a second examination concerning the distance of the shots had not been carried out by the Forensic Medicine Institution, that the Office of the Public Prosecutor has not asked for the file of the administrative investigation that has been carried out by the General Directorate of Security and neither has it queried the conclusion thereof, that expert examinations have been carried out initially by the security units which can lead to destruction of evidence and that for this reason such examinations have to be carried out by independent experts, that a case was not lodged although there were sufficient evidence in the file and that despite the allegations that the transportation of the wounded person to the hospital has taken far longer than normal the offense was qualified as misconduct in office and was sent for administrative investigation, hence the right to life has been procedurally violated.

91. It was indicated, in the opinion of the Ministry regarding this matter that, first of all, in order for the criminal investigation which will be conducted within the scope of the right to life in compliance with the case law of the ECtHR to be effective, the authorities should take ex officio action, that persons who are tasked to investigate shall be independent from those who would have taken part in the events, that the investigation shall be adequately open to them so that the legitimate interests of the family of the deceased are protected, that the investigation is carried out in a reasonably fast manner, and that they shall be of the quality to allow for the identification of those responsible and the punishment, if required.

92. In the opinion of the Ministry, again with reliance upon the decisions of the ECtHR, it has been stated that there is a liability which concerns not the conclusion reached in the present incident but with the tools that have given rise to such conclusion, that the authorities shall take all reasonable precautions that are expected from them so that the evidence concerning the present incident can be collected, that each shortcoming of the quality to hamper the identification of the responsible person or people can damage the effectiveness thereof, that the authorized offices shall take precautions which are reasonably open to them so as to be able to collect the evidence concerning the incident, especially the witness statements, scientific and technical data that have been obtained by the security forces, an autopsy result, whenever needed, which demonstrates fully and clearly the damages on the body of the deceased and an objective evaluation of the observations that have been made at the hospital.

93. In the opinion of the Ministry, regarding the existing application, it has been indicated that the investigation concerning the deaths of Ç.D., the applicant's son and 3 police officers has been carried out by the independent and impartial Office of the Public Prosecutor in Antalya, that even if all transactions pertaining to the investigation have not been carried out by the Public Prosecutor in person still, they have been carried out in line with his instructions and under his supervision and control, that there are no investigative actions taken by the police officers who were suspects, that the transactions concerning the investigation of the scene of the incident and collection of evidence have been carried out under the supervision of the Public Prosecutor and the transactions carried out within the scope of the investigation have been listed one by one.

94. Within this scope, in the opinion of the Ministry it has been indicated that the ex officio investigation was launched immediately after the incident, that the transactions concerning the examination of the dead and the autopsy have been carried out by the prosecutor in person, that the investigation of the scene of the incident was carried out on the day of the incident, the sketch of the scene of the incident has been drawn, visual recordings made and incorporated later into a report, that the weapons of all of the police officers who were tasked with the capture have been seized and the ballistic examination of the bullets that have been obtained from the scene of the crime has been carried out, that every person having witnessed the incident and been involved in chasing has been heard, that all police officers in suspicious position have been interrogated by the Public Prosecutor, that witness statements have also been taken by the Public Prosecutor, that witnesses were asked to identify, all camera recordings of the scene of the incident have been seized and later expert examination thereof has been carried out, that biological findings which have been obtained from the scene of the incident have been examined and also biometric examinations have been carried out, Ç.D.'s telephone history, the GPS data from the ambulance and radio dispatch records have been examined and an expert witness report has been obtained, that a criminal examination has been carried out on the vehicle driven by Ç.D, that the investigation has been conducted as open to the applicant, that the applicant either in person or through his counsel has submitted many petitions, and evidence,informed many witnesses, that the Public Prosecutor has heard witnesses in line with the claims of the applicant, that the investigation was launched on the date of 4/10/2012 when the incident had occurred and the NGP decision was taken on the date of 18/3/2013 and that the investigation, upon the decision of the Manavgat Assize Court concerning the dismissal of the objection against the decision of the Office of the Prosecutor, had ended, lasting a total of 6 months and 14 days, that in the NGP decision the evidence collected, and the statements of the complainant and witnesses have been included, that the conditions under which Ç.D. has died have been clarified, evidence evaluated, and that the Office of the Prosecutor has made its own evaluation following the inclusion of the legal legislation and the case laws, that the Manavgat Assize Court has dismissed the objection with reference to the NGP decision, that the examination of legal problems concerning the determination of the scope of legal responsibilities of individuals is not within the scope of authority of the Constitutional Court, that identification and punishment of offenders falls under the duty and authority of courts of first instance.

ii. Principles Concerning the Matter

95. Within the scope of the right to life regulated in article 17 of the Constitution, the procedural dimension of the positive liabilities that the state must perform within the scope of the right to life, requires an independent investigation to be conducted which allows for the revelation of all the aspects of the incident of death that occurred and the determination of individuals who are responsible (2013/841, 23/1/2014, § 94). In the event of failure to perform such procedural liability duly, it is not possible to determine whether the state has truly observed its positive and negative liabilities . For this reason, the liability to investigate constitutes the security of the negative and positive liabilities of the state within this article (App. No: 2012/1017, 18/9/2013, § 29).

96. In cases where the individual has a claim according to which his/her life was ended by a state official in ways contrary to law or in violation of article 17 of the Constitution or s/he was subjected to any kind of treatment, which is defendable, article 17 of the Constitution requires the conduct of an effective official investigation when it is interpreted together with the general liability in article 5 side-titled "Fundamental aims and duties of the state" (App. No: 2012/1017, 18/9/2013, § 30). Within this framework, investigations concerning cases of deaths arising from public authorities' use of arms shall be carried out in a comprehensive, attentive and impartial way in order to make sure to prevent the illegal use of arms under.(For a similar decision of the ECtHR see: McCann and others/United Kingdom, App.No: 18984/91, BD, 27/9/1995, §§ 161-163). The independence which is sought in investigations concerning such incidents does not only define hierarchical and institutional independence but it also requires that the investigation is actually (also in practice) carried out independently (For a similar decision of the ECtHR see. Hugh Jordan v.United Kingdom, 24746/94, 4 /5/2001, §106).

97. The aim of the criminal investigations that need to be carried out within the scope of the right to life is to ensure that the provisions of the legislation which protect the right to life are implemented in an effective way and that those who are responsible, if any, in the incident of death that has occurred are brought to justice in order for their responsibilities to be determined. This is not a result liability, but a liability to use the appropriate means. The provisions of article 17 of the Constitution shall not mean that it gives the applicants the right to get third parties tried or sentenced as a result of a certain crime nor that it charges the liability that all trials shall be finalized with a conviction or a certain punishment decision (App. No: 2012/752, 17/9/2013, § 56).

98. In order to ensure the effectiveness and sufficiency of the investigation, offices of investigation need to take ex officio action and all evidence that could elucidate the death incident and serve to identify those responsible need to be collected. A deficiency in the investigation that would reduce the likelihood of discovering the cause of the incident of death or those responsible bears the risk of contradiction with the rule of effective investigation (App. No: 2012/752, 17/9/2013, § 57).

99. Also, the decision which has been taken at the end of the investigation shall be based on a comprehensive, objective and an impartial analysis of all findings and in addition the decision concerned shall also include an assessment of whether the intervention on the right to life is a proportionate intervention which arises from an exigent circumstance which is sought by the Constitution (For a similar decision of the ECtHR see. Nachova and others/Bulgara, App. No:43577/98 and 43579/98, BD, 06/07/2005, § 113).

100. One of the matters which ensure the effectiveness of the criminal investigations to be conducted is the fact that the investigation and the consequences thereof are open to public review in order to ensure accountability in practice as in theory. In addition, in each incident, it should be ensured that the relatives of the deceased person are involved in this process to the extent that it is necessary so as to protect their legitimate interests (App. No. 2012/752, 17/9/2013, § 58).

iii. Application of the Principles to the Present Incident

101. Regarding the particulars (§ 95-100) which are sought for the success of an investigation which shall be conducted within the framework of the right to life in cases of death which occur as a result of use of arms by authorities who exercise public power similar to the incident which is the subject of the application, in the present incident when the examination of the investigation which has been carried out by the Office of the Prosecutor had commenced, it is seen that the applicant's most basic complaint regarding this matter concerned the investigation not being carried out independently. The applicant has asserted within this scope, that the investigation was being carried out by police officers who were involved in the incident and who were suspects, that the findings that have been obtained were left at the police, that all technical examinations were conducted by the security units, including the ballistic examination, and that he (despite the availability of sufficient evidence) could not lodge a case concerning the police being responsible for the death of Ç.D. as a result of such shortcomings.

102. Considering the transactions which have been carried out within the scope of the investigation regarding the applicant's allegations on this matter, in the NGP decision of the Office of the Prosecutor it is seen that such information that the Office of the Prosecutor has taken control the case right after the incident, that the evidence collection transactions have been conducted by the teams of the Antalya Homicide Section and the Antalya Directorate of Crime Scene Investigation with the authority and cognizance of the Office of the Prosecutor, that bullets which have been obtained from the bodies and other evidence have been seized by the Office of the Prosecutor, that the camera footage at the scene of the incident and MOBESE records have been seized upon the order of the Office of the Prosecutor and examined one by one, that the transactions concerning the examination of all those who have lost their lives in the incident have been carried out under the supervision of the Public Prosecutor, that then the classical autopsy was carried out in the same fashion, that the real cause of death of all those who have lost their lives in the incident have been determined, that the transaction of reconnaissance has been carried out by the Office of the Prosecutor in three different places where the incident has taken place and available evidence have been collected, that the statements of the eye witnesses at the scene of the incident have been taken personally by the Public Prosecutor, that the statements of all of the police officers who have taken part in the operation and who have used their arms have been, similarly, taken by the Public Prosecutor in person, that all of the weapons that were used by both by the police and by Ç.D. have been examined at both the Criminal Department of the Police and the Directorate of the Ballistics Section at the Physics Specialty Section of the Ġstanbul Forensic Medicine Institution and which bullets exiting which of the weapons have caused the death of the police officers who have lost their lives in the incident was determined when such examinations were completed, that the weapon of origin of the 4 bullet fragments which have been extracted from Ç.D.'s body could not be identified for these fragments were too small, that cartridges and findings of similar nature which have been found in places where the incident has occurred have been, again, examined both at the Antalya Criminal Police Laboratory and at the Physics Specialty Section of the Ġstanbul Forensic Medicine Institution and that at the end of such examination, which bullet came out of which weapon was identified one by one for each of these bullets, that Ç.D.'s fingerprints could not have been identified on the gun which he usurped from the police who he has shot in the first encounter but the blood sample that was obtained from the magazine portion of the same gun gave a perfect match with the blood of Ç.D., are provided.

103. As stated in the NGP decision of the Office of the Prosecutor, it has to be accepted that the police officers who are alleged to have been involved in the transactions which have been carried out within the scope of the investigation have carried out such transactions upon the instructions and with the cognizance of the Office of the Prosecutor, and that for this reason they have been tasked as judicial law enforcers in compliance with the provisions of the legislation (§§ 25, 28-29). Public Prosecutors, within the scope of judicial law enforcement transactions, are hierarchical superiors of the police who are involved in criminal investigations. For this reason, the police officers being tasked with the transactions of investigation regarding the incident which is of concern, as a rule, shall not prejudice the independence of the investigation which is being carried out institutionally and from a hierarchical angle.

104. Yet, in each material incident whether such independence has been fulfilled or not has to be evaluated regarding the special circumstances of the investigation that is being conducted (§ 96). When the incident which is the subject of the application is examined from this angle, it is seen that each and every transaction which has been conducted within the scope of the investigation has been carried out upon the instruction and with the cognizance of the Office of the Prosecutor, that the latter did not confine itself to the witness statements which have been taken by Security units and heard the police who have taken part in the operation and the eye witnesses personally, that s/he has personally taken part in the examination of the scene of the incident, collection of evidence, examination of the dead and other transactions, that the prosecutor did not confine him/herself to the reports which have been obtained from Security units regarding ballistics and other technical examinations and s/he has considered other reports that s/he has obtained from independent individuals and institutions such as the Forensic Medicine Institute and independent experts in his/her evaluation of the evidence, that s/he has not, as specified also by the applicant in the latter's petition for application, not made a determination concerning the development of the incident solely on the basis of the crime scene investigation report or the information included in the statements of the police. Thus, it is seen that the Office of the Prosecutor, despite the police's statement that Ç.D. has fired 2-3 shots at them in the last stage of the incident and despite the minutes of the examination of the scene of the incident which was similar to the latter, by taking other evidence obtained into consideration, has came to the conclusion that Ç.D. in the last incident, has not fired shots with the weapons in his hand. Under such circumstances, it is not possible to say that the Office of the Prosecutor has reached a conclusion in the incident in a way where it entirely relied upon the evidence which it has obtained through the units of Security and the scenario that can be established concerning the incident in connection with such evidence. For the reasons explained, it was judged that the investigation which has been carried out has no shortcomings, also in practice, regarding its independence and impartiality.

105. When the investigation transactions which have been carried out in the present incident are examined in terms of the criteria such as the collection of all evidence that can elucidate the incident of death which can be used in the determination of those responsible (§ 98) and reaching a conclusion (§ 99) based on a comprehensive, objective and unbiased analysis of all evidence obtained, which are sought in the name of ensuring the effectiveness of the investigation, it is seen in the opinion of the Ministry, as can be seen in detail in the section therein (§ 94), and in the previous section (§ 102) where information concerning the transactions which have been carried out in the present incident, that a comprehensive examination has been carried out during the investigation of the incident, that all evidence that can elucidate how the incident has taken place have been collected, that the accuracy of the evidence has been confirmed so as to allow an impartial and objective understanding of the development of the incident whereby the occurrence of the incident has been clearly set out, that a decision regarding the incident has been made, under such circumstances, as a result of a comprehensive and accurate analysis of the actions of individuals.

106. Also, it is seen in the NGP decision of the Office of the Prosecutor that a detailed evaluation of whether or not the police's use of arms has taken place within legal limits has been made at the end of the investigation and that it has been examined in detail while such an evaluation was being made, that the legal legislation regarding the matter, the case law of the Supreme Court of Appeals and whether or not in the incident the criterion of "absolute exigence" as sought by the ECtHR were met. This evaluation which has been made by taking the acts of the police and Ç.D. and all the conditions of the incident into consideration, as indicated in the section where the examination regarding the essence of the right to life has been made, is of the quality that meets the requirements of an examination which has to be carried out to see whether or not this was a proportionate intervention arising from an exigent circumstance which is sought by the Constitution.

107. It is seen that the investigation of the Office of the Prosecutor which has been carried out concerning the incident, as examined in detail in this section, is of the quality to enable the identification of how the incident has taken place and of the persons who are responsible, in quite a comprehensive and in-depth fashion. However, the liability to execute an efficient and appropriate official investigation the main purpose of which is to ensure that the legal and administrative framework that has been established within the scope of the right to life by way of determining exactly how the cases of death under the control of the state have occurred and the responsible persons, if any, and to ensure that they are punished, if deemed necessary, shall go beyond the preliminary investigation phase in cases of death which have occurred under “suspicious” conditions under the control of public authorities and the whole process, including the prosecution phase, must be of the quality to respond to the requirements of article 17. In this way, the courts of instance can guarantee that attacks carried out against the right to life and the material and spiritual existence of the victims go, under no circumstance, unpunished (App. No: 2013/841, 23/1/2014, § 77).

108. In cases where, even if the events leading up to death do not take place under the control of public authorities, those who have intervened in the incident and who have caused death directly through their actions are security forces, similarly to the incident at hand, and where the control in the aftermath of the incident is entirely in the hands of such persons, in order to ensure that an in depth and multi-dimensional evaluation of the development of the incident and the actions of mutual parties take place , first it has to be accepted that the official investigation shall include a process of prosecution beyond that of mere investigation so as to be able to determine whether the persons who have intervened in the incident have criminal responsibility or not.

109. As such, in paragraph (1) of article 172 of the Code No. 5271 (§ 30) it has been expressly stated that an NGP decision by an Office of the Prosecutor in a way that meets the requirement of having gone through the prosecution phase as prescribed above can (§ 108) be made only when evidence to establish sufficient suspicion cannot be obtained or when there is no opportunity to prosecute, and it has been accepted that the Office of the Prosecutor in such a case who holds the position of the prosecution has no authority regarding the availability of "reasons which lift or alleviate criminal responsibility" such as "self-defense and a circumstance of necessity" or "the provision of law and the order of a superior " and that the offices authorized to make a decision whether or not criminal responsibility has lifted are the criminal courts

110. Although, in the incident which is the subject of the application how the incident has developed and possible responsible persons have been identified in a very detailed way regarding the stage of investigation of the Office of the Prosecutor, it has to be accepted that the making of the NGP decision which lifts the possibility of carrying out an examination and an evaluation at the Criminal Court weakens the accountability of the security forces who have used arms and the public supervision. Although each material case can be different as to the conditions thereof, that official investigations which are being carried out in relation to cases of death being subjected to a prosecution phase, whereby, just like in the incident which is the subject of the application, the conditions of how the incident which has occurred as a result of use of arms of the security forces, which is debated, and that the possible criminal responsibilities are established in a way to leave no room for any doubt, is of great importance so that the question marks in the public opinion that may arise about the incident are entirely cleared away. A practice otherwise can give rise to the suspicion that the disclosure of the possible criminal responsibilities of the security forces who have exercised the public power in such incidents is being prevented. The fact that, after the armed conflict that occurred, three police officers performing their duties and Ç.D. who was understood to have had psychological problems have died is a very bitter event for the affinities of both parties as well as of having great importance in the name of demonstrating that the required rules of law will be applied under any circumstance without hesitation, for the protection of the respect for law and for preventing the occurrence of similar incidents in the future.

111. Within this framework, when the present incident is examined in terms of inclusion of the relatives of the deceased person in the process (§ 100) and in terms of the criminal responsibilities of possible persons in the incident and of the investigation being open to public scrutiny, although as stated in the opinion of the Ministry it has been indicated that, in the NGP decision of the Office of the Prosecutor, due action in line with the petitions that the applicant has submitted concerning the prosecution have been taken, that within this scope the witnesses that the latter wanted to be heard have been heard, that when he has requested that the statements of the police officers be taken, such request was complied with, that the CDs containing footage regarding the case and the GPS records of the ambulance have been examined and his uninterrupted access to all information and documents included in the investigation file have been ensured, that especially the allegations that Ç.D. was shot dead after he was neutralized have been assessed but no affirmative evidence proving such allegations have been found and although the applicant was able to object to the decision that the Office of the Prosecutor has made at the end of the investigation before the Manavgat Assize Court, in cases such as this one which is the subject of the application which culminate in death as a result of use of arms of security forces, the fact that the relatives of the deceased can only request information at the stage of investigation by the Office of the Prosecutor, that they can request that witnesses be heard and file their objections in a court that examines the case only through the file cannot adequately guarantee that these persons are involved in the process so as to protect their legitimate interests to the extent required, hence it cannot be said that accountability and public oversight on the investigation are sufficiently ensured in practice, as in theory.

112. It is seen that the applicant has claims that can be finally handled in this section such as his son when seriously injured his delivery to the hospital with the ambulance has taken longer that-n normal and for this reason the paramedic staff are also responsible for his death but even though he has submitted such claims to the Office of the Prosecutor during the prosecution phase, this was qualified as misconduct in office and sent for administrative investigation and that this shall mean the violation of the liability to perform an effective investigation.

113. In the opinion of the Ministry, regarding these claims, the views that the Public Prosecutor has separated the investigation as the suspects were civil servants and as the claim was covered under offenses in office and thus was subject to a different procedure of investigation and that s/he has sent the file to the Bureau of Civil Servant Offenses so that an investigation regarding these persons could be carried out, thus such claims are the subject of a separate investigation, and moreover the applicant had the right to lodge a full remedy action against the administration as a result of his claims that the ambulance came late and hence a negligence was present, have been included.

114. Firstly it has to be indicated that the Constitutional Court is not in a position where it can make an assessment regarding whether Ç.D.'s death has occurred as a direct result of the ambulance taking the wounded to the hospital with a relative delay as alleged by the applicant or as a result of the bullet wounds that Ç.D. has incurred in the armed conflicts that he has entered with the police. In the investigation that has been conducted regarding the incident, as scrutinized in this section, it has been accepted that how the incident has occurred has been determined and possible criminal responsibilities have been elaborated in detail. As a result of this investigation that has been conducted t in this incident, the reasons which the death has stemmed from have been set forth in detail.

115. When the explanations in the NGP decision which has been made by the Office of the Prosecutor (§ 21) regarding such claims of the applicant are examined, it has been stated that an additional report has been obtained from the expert concerning the ambulance which has taken Ç.D., who was said to be severely injured, to the hospital, that in this report the GPS records and the GPS map visuals have been identified and included , that the performance of the assessment of the complaints made regarding the ambulance staff concerning their negligence, if any, in the incident by the bureau of civil servant offenses would be more appropriate considering the nature of the duty of such staff, that these acts have been committed after the acts of death on hand, and that the matter has thus been forwarded to the Bureau of Civil Servant Offenses for further examination.

116. Those who will determine for which offenses the persons who are alleged to have involved in the incident will be investigated and prosecuted are the offices of investigation and of litigation that examine the incident at first hand. Examination of legal problems concerning the scope of criminal responsibility of individuals, as a rule, is not within the scope of the authority of the Constitutional Court where the identification and punishment of criminals is the duty and under the responsibility of courts of instance (2013/1948, 23/1/2014, § 49).

117. For this reason, when the Office of the Prosecutor deems that the claims of the applicant regarding this matter in the investigation where it is accepted to have disclosed in detail the reasons on which the death that has occurred was based, and decides to separate the investigation by considering it independently from the previous incident and within the scope of another crime is under the discretion of the office of investigation. No information whatsoever is available within the scope of the application file concerning how the administrative and the criminal, if any, investigations which are being carried out regarding such allegations that have been turned into the subject of a separate investigation are progressing. Thus, from the perspective of the Constitutional Court, carrying out an examination at this stage, on this matter, is not possible.

118. When the assessments made in this section regarding the efficacy of the investigation are handled as a whole, although within the scope of the present incident it is seen that quite a detailed examination which is of the quality to allow the identification of those who are responsible and to set forth all aspects of the incident of death which has happened within the scope of the investigation that is conducted by the Office of the Prosecutor has been carried out, as a result of a decision made to extinguish the possibility of a penal court carrying out a comprehensive examination and evaluation concerning whether the criminal responsibility has been lifted or not in this multi-faceted incident,, the judgment that an effective official investigation could not be performed and the procedural dimension of the right to life has been violated, has been reached.

119. For the reasons explained, it has to be decided that the liability to conduct an effective investigation as required by the right to life has been violated.

c. The Claim that the Prohibition on Torture and Torment Has Been Violated

120. The applicant has asserted that despite his claims concerning that in the autopsy report which has been prepared within the scope of the investigation which has been conducted after the incident it was mentioned that fractures in the head and jaw of Ç.D. and bruises and wounds in various parts of his body were identified and the statements of a witness to the effect that he saw some people kicking Ç.D. after the he was captured, that his complaints in this direction were not examined within the scope of the investigation, hence the prohibition on torture and torment that has been guaranteed under article 17 of the Constitution was violated.

121. In the opinion of the Ministry it is seen that the complaints that have been brought forth in the application other than the complaints concerning the essence of the right to life have been evaluated under the part of the right to life regarding the liability to conduct an effective investigation, that for this reason a separate opinion regarding the prohibition on torture has not been submitted, that among the views concerning only the right to life, some phenomena which might correspond to the claims of the applicant which he has set forth in this section have been touched upon.

122. In this regard in the opinion of the Ministry the information that the witness S.K., who is a journalist and the witnesses who are police officers have stated that no one has kicked or by other means hit Ç.D. as he was lying on the ground in a gravely injured state, moreover that Ġ.Ç. and A.Ġ., who are complainants and also police officers, have declared that Ç.D.had fallen on a ground of solid pieces of rocks as he was trying to escape, and in the post mortem examination minutes, that there were scratchy ecchymoses on the sides of his head and on his cheeks, have been provided.

123. Paragraphs one and three of article 17 of the Constitution is as follows:

“Everyone has the right to life and the right to protect and improve their material and spiritual existence.

...

No one can be subjected to torture or torment; no one can be subjected to a penalty or treatment which is incompatible with human dignity.

124. In the event that an individual has a defendable claim regarding that s/he has been illegally subjected to a treatment by an official of the state in a manner that violates article 17 of the Constitution, an effective official investigation has to be carried out regarding such an incident (App. No: 2012/969, 18/9/2013, § 25). However, in order for an investigation to start regarding such matter, first of all, the claims regarding torture and ill-treatment have to be supported with appropriate evidence. Evidence free of all sorts of reasonable doubt have to be present so as to establish the authenticity of the alleged incidents. An evidence of this nature can also be composed of sufficiently serious, explicit and consistent indications or some presumptions which cannot be proven otherwise. Only in the event of establishment of such appropriate conditions one can mention the presence of a liability to investigate (App. No: 2013/394, 6/3/2014, § 28).

125. First of all one must state that in this section, for the offices of investigation and of prosecution who have first-hand responsibility have not carried out any examination regarding the allegations of the applicant in this section, the conduct of an examination regarding the essence of the allegations about the violation of the prohibition on torture and ill-treatment by the Constitutional Court, in terms of its position and the nature of the examination that it has carried out, is not possible.

126. When the present incident is examined within the framework of the principles about the subject-matter, it is seen that the applicant has based his claims on the identificationof fractures in the face and the jaw of Ç.D. in the autopsy report and the statements of the witness S.K. where he has said "I saw some people kicking him."

127. In the autopsy report of the Forensic Medicine Institution dated 14/12/2012, which the applicant demonstrates as the basis of his allegation and which he has submitted in the attachment of his petition for application, the following expressions are seen to be present:

"Extending from the left side of the forehead towards the left zygoma, extending from the right side of the forehead towards the right zygoma, located in the frontal side of the right ear lobe, in the occital median top side on the hairy skin, partially parched scratches on the skin with ecchymosis, superficial ecchymotic scratches on the inner side of the lips, on the upper jaw, the tip of the tooth no.1 broken, on the upper jaw a fracture line that extends on the median axis between the incisors towards the upper palate, fracture crepitation of the nasal bone and on the right zygoma, fragmental fracture deformity on the right arm, ecchymotic scratches on the frontal lower interior (by 1/3) side of the femur of 1,5x1 cm and another 0,8cm ecchymotic scratch on the skin of the root of the nail of the 3rd finger of the right hand,

…”

128. Also seen are the following statements of the journalist witness S.K. in his/her sworn statement which has been taken by the Public Prosecutor on which the applicant has based his allegations and which the latter has submitted as an attachment of the petition for application, regarding the subject matter:

... police officers who had been shooting, shouted "do not shoot" to one another by raising their hands. I understood that this person was neutralized and with the other police officers, I too have run towards the place where the person was. Upon catching a glimpse of the first angle, I took its photograph. Çağrı Danışman, the deceased, was lying on the ground, face down and I could only see his feet and his legs. After I have taken a couple of pictures some of the police officers have tried to send me away from the scene of the incident. ... I told my friend, the camera man, that I wanted him to roll on and to continue shooting footage. As they were trying to send me away some of the officers were bending the persons hands towards his back. I did not hear the person speak but heard (from the deceased) that a noise (came) like 'ah'. ...

When I made it to where the deceased person was a second time I saw some people kicking but the superiors there prevented them. ...The scene of the incident was very crowded and there was a big tumult. ...I cannot give the number of officers kicking the deceased. Especially three superior officers were trying to calm other officers who were under the influence of what has happened and to take them away from the deceased. But I do not know how many kicks were swirled at the deceased, it all happened so fast. …”

129. The reason for the inclusion of the findings that have been obtained within the scope of the investigation in so much detail as above is not to make an evaluation concerning the potential criminal responsibilities of some persons or to try to reach a conclusion regarding this matter but to assess whether the liability to conduct an effective investigation on this matter arises for the Office of the Prosecutor as the allegations of the applicant can be true for he has based his claims regarding the matter on the statements of persons who have witnessed the incident directly and that in the autopsy examination that has been carried out fractures and wounds have been identified on the body of Ç.D. in a way where these cannot be reconciled directly with the findings which have been set forth in the NGP decision, hence the allegations of the applicant can be true.

130. Within this context, it is seen that in the NGP decision of the Office of the Prosecutor there are evaluations concerning how the incident of death has taken place and the criminal responsibilities of those concerned but no evaluations regarding the allegations of the applicant about torture were made.

131. When the NGP decision of the Office of the Prosecutor is examined it is seen that the decision includes only the (summarized) statement of the journalist witness S.K. (the respective portions of which have been given in greater detail above (§ 123)) that "he has taken his (Ç.D.'s) pictures as he lay on the ground, that the police officers who have taken part in the operation have flocked around him, that there were those who wanted to kick the deceased and the superiors have prevented that and taken the police officers away from the person" and the statement of Ġ.Ç., one of the witnesses, a police officer, who has been mentioned in the opinion of the Ministry, concerning the matter that "Ç.D. has fallen hard and face first on a ground of gravel and pieces of rock where he was finally shot... that after a brief melee there, the superior officers have calmed them down..." and the statement by the police officer A.Ġ., a witness, that "the suspect did not let go of his gun even as he fell and was still trying to point it towards them, that he has taken a supinated and heavy fall on his right arm, that both of his arms were under his stomach, that there were small pieces of stones called gravel on the ground and that no one kicking him as he was down, ..." In the statements which have been summarized in the NGP decision there is no mention of Ç.D. being kicked or battered in any other way.

132. In the petition with which the applicant has submitted to the Office of the Prosecutor his statements against the ballistic examination and autopsy reports, he has included such findings, it is seen, claiming that criminal responsibility for the suspects shall arise for the crime of torture. The applicant has claimed in his counter statement petition in correspondence with the NGP decision of the Office of the Prosecutor, has stated along with other objections of his, that although either a decision for no grounds for prosecution had to be taken about the crime of torture or a public litigation had to be filed whereas the said decision had no mention of this matter as if there were no complaints or evidence in relation thereto. It is also seen that in the decision that the court has taken after the objection that has been made (§ 22), an evaluation concerning the matter is not present.

133. The investigation which has to be conducted for claims concerning being subjected to torture and ill-treatment of a public official as much as for the claims concerning the violation of the right to life, has to be suitable to ensure the identification and punishment of those responsible. Yet if this is not possible, article 17 of the Constitution, despite the importance it purports, shall become ineffective in practice and as such, in some cases it will become possible for some state officials to exploit the rights of persons under their control, availing themselves of the actual immunity. The fact that sometimes an investigation has not been made or it has not been made sufficiently can also constitute an ill-treatment within the scope of the positive liability of the state. Within this context, the investigation regarding the matter has to commence immediately and to be conducted independently and with care and swiftly under public supervision and it has to be effective as a whole (App. No. 2012/969, 18/9/2013, § 25). As in the incident which is the subject of the application, if persons who are claimed to have been the subject of actions of this sort have lost their lives and if it is purported that such actions have been committed while that person was in the hands of public officials, then the state has the liability to take ex officio action to conduct a comprehensive and thorough investigation of the quality to elucidate whether such a circumstance has taken place or not.

134. Regarding the incident which is the subject of the application, the offices of investigation and of prosecution who examine the case at first hand shall look into at which stage of the incident and how the fractures and bruises on Ç.D.'s body have occurred, whether Ç.D. was really, as alleged, subjected to a treatment of the police, the degree of gravity of such a treatment and whether it requires any criminal liability or not and shall make a decision thereupon. In the incident which is the subject of application, it is seen that the Office of the Prosecutor and the Court have neither dismissed the applicant's allegations which were of serious nature concerning torture and ill-treatment nor have they deemed them reasonable and carried out the required transactions and nor they have considered such allegations among the conditions of materialization of death.

135. Under the light of such explanations, although the applicant does not have any defendable claims concerning torture and ill-treatment, as no effective investigation has been carried out in the present incident regarding this issue, it has to be decided that the procedural dimension of paragraph three of article 17 has been violated.

d. The Claim That the Right to and Effective Remedy Has Been Violated

136. It has to be decided that there is no grounds for re-examination within the scope of this right since the claims of the applicant concerning the lack of an effective remedy for application regarding the violations that he has claimed to have been subjected to within the scope of the prohibition of torture and torment and the right to life as per articles 40 and 17 of the Constitution have been evaluated during the investigations that have been carried out within the scope of the two rights that have been mentioned in previous sections.

V. IMPLEMENTATION OF ARTICLE 50 OF THE CODE NUMBERED 6216

137. Paragraph (2) of article 50 of the Code numbered 6216 is as follows:

"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 through 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."

138. It has to be decided that the file be sent to the Office of the Prosecutor concerned so as to lift the violation and the outcomes thereof since the violation of article 17 of the Constitution which regulates the right to life and the prohibition of torture has been established in the application at hand as a result of failure to conduct an effective investigation.

139. The applicant has made a request for TRY 100.000 for deprivation of support and TRY 150.00 for spiritual damages.

140. As a result of the examination that has been carried out about the application, it was judged that the essence of the right to life has not been violated but the right to life and the prohibition on torture and torment have been violated from the perspective of the liability to conduct an effective prosecution. Neither the applicant has submitted any documents to the Constitutional Court regarding the material damage that he has claimed to have incurred. In order for the Constitutional Court to make a ruling for material damages a link of causality between the material damage that the applicants claimed to have incurred and the request for material damages should exist. The requests for material damages of the applicant who has not submitted any documents to the Constitutional Court have to be dismissed.

141. As it is understood that a decision that was delivered forwarding the file to the relevant Office of the Prosecutor so as to fulfill what was required by the decision was sufficient compensation for the claim of violation by the applicant, although the request of moral compensation was made by the applicant, it should be decided that the request of the moral compensation by the applicant be dismissed .

Application No : 2013/6319

Date of Decision : 16/7/2014

142. The applicant has made a request for TRY 200.000 for trial and counsel expenses. It was decided that that the trial costs comprising of the charge and the counsel's fee incurred by the applicant be reimbursed to the applicant.

V. JUDGMENT

In the light of the reasons explained, it is decided UNANIMOUSLY on the date of

16/7/2014;

A. that the application is ADMISSIBLE regarding the claims concerning the right to life and the prohibition of torture,

B. That the applicant's

1. The essence of the right to life enshrined in Article 17 of the Constitution WAS NOT

VIOLATED,

2. Right to life enshrined in Article 17 of the Constitution WAS VIOLATED, regarding the positive liability to conduct an effective investigation,

3. The prohibition on torture and torment enshrined in Article 17 of the Constitution

WAS VIOLATED, regarding the positive liability to conduct an effective investigation,

C. That the requests of the applicant for compensation BE DISMISSED,

D. The trial expenses of TRY 1,698.35 in total composed of the fee of TRY 198.35 and the counsel's fee of TRY 1,500, which were made by the applicant be PAID TO THE APPLICANT,

E. 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.

F. A copy of the decision be sent to the relevant Prosecution office for due action,