REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

SECOND SECTION

JUDGMENT

MEHMET KAYA AND OTHERS

(Application no. 2013/6979)

SECOND SECTION

JUDGMENT

I.        SUBJECT-MATTER OF THE APPLICATION

1.      The applicants stated that their relative who was a convict at a penal institution lost his life due to the negligence of officials, that the deceased was ill-treated by correction officers that no effective investigation was conducted with regard to the incident and it was ruled that there were no grounds for prosecution. They alleged that the right to life, the right to a fair trial, the right to an effective remedy and the prohibition of ill-treatment and torture were violated.

II.     APPLICATION PROCESS

2.      The application was lodged by the attorney of the applicants on 3/9/2013. In the preliminary examination held on administrative terms, it has been determined that there is no circumstance to prevent the submission of the application to the Commission.

3.      It was decided by the Third Commission of the Second Section that the examination of admissibility is conducted by the Section and that the file is sent to the Section.

4.      In the session held by the Section on 29/1/2014, it was decided that the examination of admissibility and merits be jointly carried out.

5.      The opinion submitted by the Ministry of Justice to the Constitutional Court with regard to the application on 31/3/2014 was notified to the applicants on 1/4/2014, the applicants submitted their counter-opinions on 24/4/2014.

III. THE FACTS

A.    The Circumstances of the Case

1.  The facts as expressed in the application form and the annexes thereof

6.      While Erkan Kaya, who is the son of two of the applicants and the sibling of others, was serving his sentence as a convict at Muğla E Type Closed Penal Institution (Prison) since 2009, his father Mehmet Kaya, who is one of the applicants, applied to the Chief Public Prosecutor’s Office of Izmir through his petition of 29/8/2012 and stated that his son forced to give his money by some convicts and correction officers, that he was beaten by the prisoners and subjected to torture and thrown to a cell by the correction officers as he did not give any tribute and filed a request for the transfer of his son to Aliağa Şakran Penal Institution.   This request was dismissed.

7.      On 7/1/2013, Erkan Kaya burnt his bed in the section he was staying and burns formed on his body as a result of the bed catching fire. Erkan Kaya, who was hospitalized, lost his life on 19/1/2013 while his treatment was going on at İzmir Bozkaya Training and Research Hospital to which he was referred.

8.      Following the occurrence of the incident, the Chief Public Prosecutor’s Office of Muğla (the Chief Public Prosecutor’s Office) initiated an investigation ex officio with the file No. 2013/290. Through the petition of 4/2/2013, the applicants requested that the matters which would be of importance for the consummation of the file and the collection of evidence be taken into consideration and that the persons who were negligent in the incident of death be detained.

9.      Upon the application of Erdoğan Kaya, who is the elder brother of the deceased and one of the applicants, the Chief Public Prosecutor’s Office took his statement on 17/1/2013.  In his statement, Erdoğan Kaya briefly stated that he stayed at the same institution with his brother and that the reason why his brother burned himself and his bed was the unfair disciplinary penalties that were imposed. In his statement, the aforementioned person also stated that he initially stayed in the same ward with his brother, that they had problems with other people present in the ward and correction officers, that they filed a complaint to the administration and that their complaint was not duly handled.

10.  In the witness statements were taken within the scope of the investigation, it was stated that the deceased had psychological problems and that he had previously committed similar bed burning actions.

11.  Through its judgment with the Investigation No. 2013/290, K.2013/1168 of 8/5/2013, the Chief Public Prosecutor’s Office ruled that there was no grounds for prosecution on the ground that it was understood that the fire was intervened by the officials in a very short period of time and the fire was contained, that the personnel of the institution did not have any negligence or delay with regard to the incident and the incident of death occurred as a result of burns and acute pneumonia which developed as a complication according to the report of the Forensic Medicine Group Presidency of Izmir of 24/4/2013. 

12.  The objection filed by the applicants against the aforementioned judgment was dismissed with the judgment No. 2013/1082 Misc. Works of 19/7/2013 of the Assize Court of Fethiye (Court) on the ground that there was no aspect that was contrary to the procedure and law in the judgment on no grounds for prosecution.

13.  This judgment was notified to the counsel of the applicants on 6/8/2013 and an individual application was lodged on 3/8/2013.

2. Developments before and after the incident which is the subject matter of the application as expressed in the opinion of the Ministry

14.  In a minute kept by correction officers in August 2012, it was stated that the convict Erkan Kaya was interviewed and given advice at the chief officer’s office when he returned from the hospital after other detainees and convicts conveyed to the prison administration the discomfort they felt about him and submitted a petition about this matter, that however, the convict showed aggressive behaviors, that the convict and his elder brother Erdoğan Kaya were taken to the observation section in order not to cause any incident, that the convict Erkan Kaya rushed out to the corridor and attempted to attack the officers on duty with a razor blade part the source of which was not known. While an attempt was made to talk to both convicts and calm them down, Erkan Kaya was neutralized and the razor blade part in his hand was taken, he continued to display aggressive behaviors, made threats and he was sent to the observation section in the right in Block C again after he was tranquilized.

15.  Through its decision of August 2012, the Presidency of the Prison Disciplinary Board decided that the convict is sentenced to the deprivation of the admission of guests for one month and to being placed in a cell for 5 days.   The objection filed against this decision on cell confinement was dismissed through the judgment of the Office of the Judge of Execution of 10/9/2012.

16.  Before the incident, on 27/8/2012, the convict set aflame his bed in his room present in the Observation section at the left in Block C where he stayed.  On 27/8/2012, a minute was kept by correction officers at the penal institution. In the aforementioned minute, it was stated that the convict Erkan Kaya submitted a petition in order to see the doctor, that he also verbally stated that he wanted to go to the hospital, that the petition was approved by the correction officer on duty and sent to the infirmary of the institution, that when the infirmary was called by the officer on duty in order to receive information about his situation, it was said that the convict had canceled his appointment scheduled for the previous week at the hospital at his own will by writing a petition and that it was stated that he needed to be referred by the doctor of the institution and that another appointment needed to be taken from the hospital in order for him to go to the hospital. In the minute, it was also stated that when the officers on duty went to the Observation section at around 11.00 in order to notify the convict of the situation, the convict insulted and swore at them and said "I want to talk to the chief officer, I have nothing to do with you, go and call the director, call the chief officer”, that it was seen that the convict set aflame his bed when they went to see the convict again after they went to talk to the shift supervisor and informed him about the situation.   According to the minute, the officers on duty immediately intervened and the fire was extinguished, the convict swore at, threatened and insulted the director, chief officer and officers who were present while an attempt was made to remove the burnt bed from the room, the room of the convict was cleaned and he was sent to his room again.

17.  Due to this action, the convict Erkan Kaya was sentenced by the Presidency of the Prison Disciplinary Board to cell confinement for 15 days on 6/9/2012; upon the objection of the convict against the judgment of dismissal of 24/9/2012 issued by the Office of the Judge of Execution of Muğla due to the application of the convict, the 2^nd Assize Court of Muğla ruled on the dismissal of the objection on 9/10/2012. The penalty regarding the convict was executed.

18.  Moreover, a criminal case was filed before the Criminal Court of First Instance of Muğla through the indictment of the Chief Public Prosecutor’s Office with the investigation No. 2012/4609, E.2012/1952 of 25/9/2012 with the claim that he committed the crimes of damaging public property by burning and of insulting correction officers.

19.  In addition, a criminal case was filed before the Criminal Court of Peace through the indictment of the Chief Public Prosecutor's Office of 2/10/2012 on the ground that he committed the crimes of an attempt to injure correction officers with a razor blade, and of insulting and threatening officers on duty on 13/8/2012. It was ruled that there was no ground for prosecution about certain correction officers with regard to the crime of misconduct. In this judgment, it was stated that the convict Erkan Kaya was placed into the room No. D-7 again for administrative reasons upon his petition of 17/7/2012 and based on the decision of the Presidency of the Administration and Observation Board of the Prison.

20.  On 9/11/2012, the Presidency of the Prison Disciplinary Board decided that the convict is sentenced to the deprivation of the admission of guests for 1 month and of cell confinement for 10 days due to some of his undisciplined behaviors based on a minute kept on 30/10/2012. The objection filed against this decision was also dismissed with the judgment of the Office of the Judge of Execution of 28/11/2012.

21.  In the petition submitted by the convict Erkan Kaya to the Directorate of Prison on 28/12/2012, it is seen that he served his cell confinement between 18/12/2012 and 28/12/2012, that he stated at his own will that he wanted to stay in the Observation section for another week and requested that due action is taken.

22.  In a minute kept by correction officers on 4/1/2013, it is stated that when the convict Erkan Kaya, who was staying at his own will in Room 5 of the Observation section on the left of the Prison, was told that he would be taken out of that section and taken to the ward and that he needed to prepare his belongings, Erkan Kaya was not removed from this section after the convict told the officer on duty “I will not get out of the observation section in which I am staying, I will not write any petition with regard to it, I will not talk to anyone”.

23.  The convict Erkan Kaya started a fire by burning his bed at 08.38 AM on 7/1/2013 while the execution of his penalty was going on in compartment 5 of the Observation section in the left in Block C based on the minute that was prepared after his request for staying under observation for another week following the cell confinement which he completed on 28/12/2012 and, following the expiry of this period, upon his statement on 4/1/2013 as to the effect that he would not get out of the observation section in which he was staying, he would not write any petition and he would not talk to anyone.

24.  A minute dated 7/1/2013 was undersigned by correction officers with regard to this matter. According to this minute, it was stated that there was a sharp-tipped tool with an iron part of 3.5 cm and a wooden handle of 8.5 cm in the right hand of the convict while an attempt was made to take him out of the room and that it was taken from his hand and confiscated, that moreover, it was found out that the convict broke the washbasin and tiles when the burning room was checked.

25.  On 15/1/2013, a minute was kept by the Chief Public Prosecutor as regards the images of the fire.

26.  On 17/1/2013, Izmir Branch of the Human Rights Association sent a petition to the Chief Public Prosecutor’s Office and the General Directorate of Prisons and Detention Houses (CTEGM).  In this petition, it was stated that the applicant Mehmet Kaya applied to them and declared that his son was tortured, he was not allowed to see the doctor, his son was thrown into a solitary cell and he set aflame his bed, the guardians locked the doors and it was requested that necessary investigation be conducted in line with these statements and allegations of the applicant.

27.  On 18/1/2013 and 20/1/2013, the Chief Public Prosecutor took the statements of nine people who were prison officers as witnesses with regard to the incident of fire.

28.  On 18/1/2013, the Chief Public Prosecutor's Office ruled that there were no grounds for prosecution in relation to the investigation which was initiated upon the complaint filed by the applicant Erdoğan Kaya with the claim of torture as regards the prison officers and conducted based on the file with the investigation No. 2013/287. In the judgment, it was stated that Erdoğan Kaya specified, in his statement, that there was no case of torture and that there was a request for transfer to Izmir as his family was in Izmir. It was determined through the records of the institution that his brother Erkan Kaya was taken to the infirmary of the institution on various dates that therefore, the claim of torture was baseless, that necessary instruction was given to the institution for ensuring the security of life. It was understood from the statement of the aforementioned person that he did not have any problems. It was also stated that no crime and crime element was present as a result of the investigation conducted as regards the claim of torture. 

29.  In the expertise report of 28/1/2013 which was drawn up as a result of the criminal examination which was made to be conducted on the sharp-tipped tool which was seized from the convict Erkan Kaya on the date of the incident, it was stated that it was a crochet needle used in knitworks and laceworks and that it was not forbidden according to the Law No. 6136.

30.  On 30/1/2013, CTEGM sent a letter to the Chief Public Prosecutor’s Office for the diligent examination of the matters specified in the petition submitted by Izmir Branch of the Human Rights Association.

31.  The investigation initiated upon this petition of Izmir Branch of the Human Rights Association was joined with the investigation file No. 2013/290 that was conducted before the Chief Public Prosecutor’s Office with regard to the incident of death.

32.  Statement of İsmail Bulut, who was another convict at the same Prison, was taken as a witness on 19/2/2013.

33.  As the convict Erkan Kaya died on 19/1/2013, it was ruled on 20/2/2013 that the criminal case filed against him due to his actions of damaging public property by burning and of insulting correction officers on 27/8/2012 be discontinued.

34.  On 26/2/2013, it was ruled that the criminal case filed against the convict on 13/8/2013 for attempted assault, insulting and threatening correction officers be discontinued as the accused had passed away.

35.  Erkan Kaya, who was the relative of the applicants, was examined by infirmary of the institution from time to time because of his psychological problems and he was diagnosed by the doctor with an anxiety disorder, polyneuropathy, depressive seizure, and various drugs were prescribed to him and he was made to use them. According to the records of the infirmary for the last 5 months during which he was at the prison, the convict was examined at the infirmary of the institution for a total of 24 times on various dates due to his various conditions and within this period, necessary examinations and treatments were applied by taking him to- and from the Muğla University Training and Research Hospital 4 times and the Izmir Atatürk Training and Research Hospital 4 times.

36.  Within the last seven months during which he was at the prison, the room of the convict Erkan Kaya was changed by the administration of the Prison many times and seven separate decisions of disciplinary penalty issued regarding him and were executed within the last six months. 

37.  An administrative investigation was initiated with regard to the Prison officers as regards the death of the convict on 7/1/2013 as a result of him setting aflame the bed in his room where he was under observation and the place where he stayed and as a result, it was decided through decisions No. 01 of 22/1/2013 and No.02 of 25/1/2013 that “there is no ground for imposing a disciplinary penalty” as it was understood that the prison officers had no negligence and fault and that, on the contrary, they intervened right on time and in a proper way. 

B.     Relevant Law

38.  Article 6 of the Law on the Execution of Penal and Security Measures No. 5275 with the side heading “Principles to be taken into consideration in the execution of prison sentences” is as follows:

“(1) The regime of execution of prison sentences shall be regulated based on the main principles that are stated below:

a) Convicts shall be kept at penal institutions within the framework of order, security, and discipline in a safe manner and by taking measures that will prevent them from escaping.

b) It shall be ensured that convicts have an orderly life at penal institutions. Deprivation of freedom required by a freedom-restricting penalty shall be made to be served under the physical and spiritual conditions which ensure the protection of respect for human dignity.  Other rights of convicts that are stipulated in the Constitution can be restricted in line with the rules prescribed in this Law on the condition that the main aims of execution remain reserved.

c) The tools and facilities which are available for the rehabilitation of the convict shall be utilized in the execution of the penalty.  The principles of lawfulness and compliance with the law shall be taken into consideration in the execution of penalty and rehabilitation efforts so as to ensure the inviolability of the rights of the convict granted by laws, regulations, and by-laws.

d) In the regime of execution with regard to the convicts who are found out not to have any requirement for rehabilitation, due care shall be taken to include individualized programs in proportion to the personality of these convicts and these matters shall be regulated with regulations.

e) The principles of justice shall be duly implemented in the execution of the penalty. To this end, penal institutions shall be inspected by qualified personnel based on the authorities granted by laws, regulations, and by-laws.

f) It shall be obligatory to take all kinds of protective measures in order to protect the right to life and bodily and spiritual integrity of convicts at penal institutions.

g) It shall be obligatory for the convict to comply with the provisions stipulated by laws, regulations, and by-laws in line with the purpose of execution.

h) The disciplinary penalties stipulated in the Law shall be imposed on those who are in violation of the order of the institution through the attitudes, behaviors, and actions shown in Laws. The authorities stipulated in the Law shall impose the penalties in line with their durations. The defenses and objections against the penalties shall also be filed to the authorities shown by the Law."

39.  Article 16(1, 2) of the Law No. 5275 with the side heading “Postponement of the execution of a prison sentence due to disease” is as follows:

“(1) Execution of the penalty of a convict who has a mental disease shall be postponed and the convict shall be protected and treated at the health institution stipulated in Article 57 of the Turkish Criminal Code until s/he recovers. The periods that elapse at the health institution shall be considered to have elapsed at the prison.

(2) As regards other diseases, the penalty shall continue to be executed in the sections of public health institutions that are allocated for prisoners.  However, if the execution of prison sentence constitutes an absolute danger for the life of the prisoner even, in this case, execution of the penalty of the prisoner shall be postponed until s/he recovers."

40.  Article 18 of the aforementioned Law with the side heading “Execution of the penalties of convicts who have a psychological  apart from a mental disease” is as follows:

 “(1) Penalties of those who have psychological apart from a mental disease resulting from imprisonment and other reasons and who are sent back to penal institutions by not considering it necessary to keep them at the hospitals of psychological and neurological diseases shall be executed in the special areas of the specified penal institutions.

(2) The specialists and other medical personnel needed by the penal institutions determined for the execution of penalties stipulated in paragraph one shall be provided by the Ministry of Health.”

41.  Article 57 of the aforementioned Law with the side heading “Transfer due to disease” is as follows:

“(1) A convict whose referral to a hospital is considered to be obligatory shall be hospitalized in the convict ward of the fully-equipped public or university hospital that is nearest to the place where s/he stays.

(2) It is possible to refer the convicts sent to these hospitals to the hospitals in other places through a health board report, in the event s/he has an emergency and life threat and through a report which is given by two doctors including a specialist of the disease, if any, approved by the chief doctor and which clearly states the reason for disease, why the treatment could not be administered at the hospital at which s/he is present, where and how the patient needs to be treated. In this case, the nearest public or university hospitals with a convict ward shall be preferred.

(3) It is necessary to certify through a health board report whether or not the follow-up and treatment of the convict will continue at these hospitals; otherwise, the convict shall be returned to his/her institution.

(4) The convict cannot be treated at private health institutions except for an emergency. In case of emergency, the Ministry of Justice shall be informed.

(5) In the event that it is determined through a health board report to be taken upon the proposal of the doctor of institution and the request of the most senior chief that it is not appropriate for the convict to stay at the institution where s/he stays due to medical reasons, s/he can be transferred to other institutions.”

42.  Article 71 of the aforementioned Law with the side heading “Requests of a convict for examination and treatment” is as follows:

“(1) A convict shall have the right to make use of examination and treatment facilities and medical devices for the protection of his/her physical and mental health and for the diagnosis of his/her diseases. For this, the convict shall be made to be treated firstly in the infirmary of the institution and, if it is not possible, in the convict wards of public or university hospitals.”

43.  In Articles 78 to 82 of the aforementioned Law, there are regulations with regard to the examination, treatment and health check of convicts, their referral to a hospital and the state of disease that will prevent execution.

44.  The principles stipulated in the Law No. 5275 have been regulated in a more detailed way through the “By-Law on the Management of Penal Institutions and Execution of Penal and Security Measures” which was published in the Official Gazette No. 26131 of 6/4/2006.

IV.  EXAMINATION AND GROUNDS

45.  The applicants’ individual application No. 2013/6979 of 3/9/2013 was examined during the session held by the court on 20/5/2015 and the following were ordered and adjudged:

A.    The Applicants’ Allegations

46.   The applicants stated that their relative lost his life as officers did not take necessary measures although he had a psychological problem and he previously engaged in similar bed burning actions. They also stated that the deceased was ill-treated and tortured by correction officers, that no investigation was initiated on the officers who ill-treated the deceased and that it was ruled that there was no ground for the prosecution about the officers who were negligent in the death of the deceased. They stated that upon their objection against this judgment, the opinion of the Chief Public Prosecutor's Office was received by the Court, that however, the relevant opinion was not notified to them and that the judgment was delivered by the Court without holding a hearing and without hearing them out. They alleged that the right to life, the prohibition of ill-treatment and torture, the right to a fair trial, the right to an effective remedy and the right to trial by two instances were violated.

B.     The Constitutional Court’s Assessment

1.    Admissibility

a. The Allegation of the Violation of the Prohibition of Torture and Ill-treatment

47.  The applicants allege that their relative Erkan Kaya was ill-treated and tortured by correction officers before he died and that no investigation was initiated about the officers who ill-treated the deceased.

48.  With regard to these allegations, it was stated in the opinion of the Ministry that it was seen in the corpse examination of Erkan Kaya conducted by the Chief Public Prosecutor’s Office of Izmir on 19/1/2013 that no findings of traumatic battery, coercion and violence attesting to external assault and battery and firearm or penetrating stab wounds were present on the corpse.

49.  Similarly, when the report prepared as a result of the standard autopsy of the convict conducted by the Forensics Medicine Group Presidency of Izmir on 20/1/2013 is examined, it was stated that no finding other than an indistinct ecchymosis of 1x0.7 cm in the left side of the umbilicus and also no firearm wound and penetrating stab wound was found.

50.  It is seen that the Chief Public Prosecutor’s Office ruled on 18/1/2013 that there was no ground for prosecution in relation to the investigation which was initiated upon the allegations of the applicant Erdoğan Kaya with the allegation of torture as regards the prison officers. In the judgment, it was stated that there was no crime and crime element as a result of the investigation conducted with regard to the allegation of torture.

51.  It was stated that the petition of the applicant Mehmet Kaya which was sent to the Chief Public Prosecutor’s Office and CTEGM through Izmir Branch of the Human Rights Association and in which the allegations of torture were specified was joined with the investigation conducted as a regards the incident of death and that there was no finding of ill-treatment in the judgment on no grounds for prosecution issued on 8/5/2014 as regards the incident of death.

52.  Article 17(1, 3) of the Constitution is as follows:

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

...

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

53.  In the event that an individual has a defensible claim that s/he has been subjected by a public official to a treatment in violation of the law and in a way to violate Article 17 of the Constitution, it is necessary to conduct an effective official investigation with regard to the incident (Tahir Canan, App. No: 2012/969, 18/9/2013, § 25). However, in order to initiate an investigation into this matter, first of all, allegations with regard to torture and ill-treatment should be substantiated with appropriate evidence. In order to determine the factuality of claimed incidents, it is necessary to have evidence that is far from all kinds of reasonable doubts. Evidence having such quality can also be composed of sufficiently serious, clear and consistent indications or some presumptions which cannot be rebutted. Only in the case of the determination of these appropriate conditions, can the existence of an obligation of investigation be mentioned (C.D., App. No: 2013/394, 6/3/2014, § 28).

54.  The investigation in question should be appropriate for identifying and punishing those who are responsible. Because if this is not possible, this article will become ineffective in practice despite the importance it encapsulates and, in some cases, it will be possible for public officials to benefit from de facto immunity and abuse the rights of the persons who are under their control. Within the scope of the positive liability of the State, the mere fact that no investigation has been conducted or that an insufficient investigation has been conducted can sometimes constitute to ill-treatment. In this context, it is necessary to immediately initiate an investigation, to conduct it independently, under public scrutiny and in a diligent and swift manner and it should be effective as a whole (Tahir Canan, § 25).

55.  In the statements of the prison officials and another prisoner at the prison whose statements were taken during the investigation of the Chief Public Prosecutor’s Office conducted as regards the incident which is the subject matter of the application, it is seen that they did not make any statement as to the effect that Erkan Kaya was subjected to a treatment as alleged by the applicants or that they did not mention any incident which could be considered to be within this scope. In the corpse examination and standard autopsy procedures which were performed following the incident and mentioned in the opinion of the Ministry, it is understood that there was no finding in this direction, either. The deceased was examined at the infirmary of the institution for a total of 24 times and within this period, his examination and treatment were made by taking him to the Muğla University Training and Research Hospital 4 times and the Izmir Atatürk Training and Research Hospital 4 times. In both the application file and investigation file, there is no information or document which leaves the impression that the applicant was subjected to ill-treatment that would constitute a contrariety to Article 17(3) of the Constitution while he stayed at the prison.

56.  It may be considered that it will be difficult for a person to obtain a medical report which will prove that s/he has been subjected to violence at the prison when especially his/her sensitive condition is taken into consideration.  However, it was not determined that the deceased or his elder brother staying at the same Prison filed a request for examination and report as regards battery and ill-treatment during the treatment procedures or that they wanted to be examined by another doctor, either. It is seen that the applicants explained their relevant ill-treatment allegations only in general terms in both the complaint and objection petitions they submitted at the criminal investigation phase and their individual application petition and that they did not provide any detailed information with regard to what happened as told to them by the deceased himself.

57.  As regards the complaints of Erdoğan Kaya, who is the elder brother of the deceased, on 16/12/2012 before the death of his brother, on the subject which was understood to be examined at the Chief Public Prosecutor’s Office of Muğla, it was stated that no action was taken about the personnel on the ground that “it is understood that Erkan Kaya continuously caused problems at the institution, insulted the personnel on duty, attempted to disrupt the peace and order of the ward, 2 separate penalties including one cell confinement were imposed on him, the personnel on duty fulfilled their duty within the framework of laws and instructions”.  As specified in the opinion of the Ministry, on 18/1/2013, the Chief Public Prosecutor’s Office of Muğla ruled that there were no grounds for prosecution in relation to the investigation No. 2013/287 which was initiated upon the complaint filed by the applicant Erdoğan Kaya with the allegation that the officers at the institution inflicted torture, on the ground that there was no crime and crime element (§ 28).

58.  When the application at hand is considered in the light of these statements, it is necessary to rule that this part of the applicant is inadmissible as “it is manifestly ill-founded” because it is clearly understood that there is no evidence which is far from all kinds of reasonable doubts that render it possible to prove that the relative of the applicants was subjected to torture or ill-treatment at the prison, that therefore, their allegations within the scope of Article 17(3) of the Constitution were composed of abstract and unproven allegations.

b. The Allegation of the Violation of the Right to Life

59.  In the opinion of the Ministry in relation to the allegations of the applicants as to the effect that article 17 of the Constitution was violated, it was stated that while conducting an evaluation as regards the admissibility of the complaints, an obligation was imposed on individuals to have exhausted “all of the administrative and judicial remedies prescribed in the law" prior to resorting to the remedy of individual application for the act, action or negligence which they alleged to have caused a violation. It was also mentioned that there was no information in the application form as to the effect that the applicants filed any case for compensation against the relevant persons or the administration due to the incident which was made to be the subject of the complaint except for the criminal investigation. It was specified that the status of the victim would no longer exist in the event that a violation was determined by the authorities and this violation was redressed in an appropriate and sufficient manner through a judgment. It was stated that it would be sufficient to determine those who were responsible and to pay compensation through a legal or administrative procedure in the event that the incident of death did not occur intentionally and that in domestic law, there were judgments on this matter through which the relevant administration was found to be negligent and a compensation was adjudged.

60.  It is obvious that the death which occurred in the incident that is the subject matter of the application did not occur as a result of an intentional action. In this case, it is necessary to decide whether or not a case is present such as a mistake of reasoning or a negligence exceeding carelessness of the persons who were authorized and responsible in the relevant incident or, in other words, their failure to take necessary and sufficient measures in order to eliminate risks emerging in the incident by ignoring the authorities granted to them although they were aware of the potential problems. Because in such cases, regardless of whichever remedies an individual has resorted to on his/her own initiative, the failure to make any accusation against the persons who have caused the life of people to be in danger or the failure to try these persons may result in the violation of Article 17 (Serpil Kerimoğlu and others, App. No: 2012/752, 17/9/2013, § 60-62).

61.  For this reason, in order to decide whether or not the remedies were exhausted with regard to the complaints of the applicants in relation to Article 17 of the Constitution as alleged in the opinion of the Ministry, it is necessary to determine the scope of the positive liability of the state for “establishing an effective judicial system” so as to protect the right to life within the scope of Article 17 of the Constitution and to what extent this liability, if any, was fulfilled in the incident which is the subject matter of the application.

62.  Due to the reasons explained, it is necessary to examine this part of the application in terms of merits.

c. The Allegation of the Violation of the Right to an Effective Remedy and to a Fair Trial

63.  The applicants have allegations regarding the right to life and the prohibition of torture and ill-treatment as well as allegations as to the fact that Articles 36 and 40 of the Constitution and Article 13 of the ECHR were violated on the ground that an opinion was received by the Court from the Chief Public Prosecutor’s Office, that however, the relevant opinion was not notified to them, that the judgment was delivered by the Court without holding a hearing and without hearing them out and that no trial by two instances was held.  As the allegations of the applicants in this direction were evaluated within the scope of the right to life, it was not deemed necessary to make any separate examination within the scope of these rights.

2.      Merits

a.  Allegation that the Measures Required for the Protection of Life were not Taken

64.  The applicants allege that their relative Erkan Kaya lost his life as a result of the failure of the officers to take necessary measures although he had psychological problems and previously committed similar bed burning acts.

65.  In the opinion of the Ministry, the judgments of the ECtHR on the subject were included after it was stated that the ECtHR interpreted the liability of the state to protect life in a way that would cover the protection of individuals who were under the area of sovereignty of the state against suicide while evaluating the complaints as to the effect that Article 17 of the Constitution was violated. The Ministry expressed that the ECtHR, in its judgments on this subject, stated that the state's failure to take reasonable measures although it knew or was supposed to know that an individual constituted a risk for himself/herself could bring about a liability for it and that in this respect, any kind of deprivation of freedom, due to its nature, could cause a psychological breakdown for a detained or convicted person and thus, increase the risk of suicide for a fragile and vulnerable person. The Ministry also stated that the national legislation attributed prison officers the duty of being more sensitive and cautious about these persons and introduced measures aimed at preventing putting the lives of convicted persons at an unnecessary risk. It also stated that the principle of “unpredictability” of human behaviors also needed to be taken into consideration while identifying the scope of the political liabilities that needed to be fulfilled by the state as regards the incidents of suicide.

66.  In the opinion of the Ministry, the following evaluations were made with regard to the present case: It was stated that the convict did not get on well with his friends in the ward at the prison apart from the bed burning action, that he displayed aggressive and undisciplined behaviors towards the prison administration, that many disciplinary penalties including in particular cell confinement were imposed on him due to his actions and that they were executed. It was also stated that cases were filed regarding him due to his actions against the officials of the institution, that moreover, the room of the convict was changed many times, that therefore, Erkan Kaya had a severe mental disorder, that the relevant person needed to be kept under a strict observation and that necessary preventive measures needed to be taken by competent authorities for the protection of his health. It was also stated in the response letter of the General Directorate of Prisons and Detention Houses (CTGM) of the Ministry of Justice, whose opinion on the issue was requested, that the convict was examined at the infirmary of the institution from time to time due to his psychological problems and that he was diagnosed by the doctor of the institution with anxiety disorder, polyneuropathy and depressive seizure and various drugs were prescribed for him and that it was ensured that these drugs were administered. It was also stated that due attention was paid in order to ensure that the relevant person did not harm himself or others, that however, it was impossible to prevent the actions of those who were determined in this sense, that moreover, the family doctor who worked full-time at the institution was made to conduct necessary examinations, analyses, and treatments of the convicts and detainees who declared that they were sick and ill and that they were referred to the relevant hospitals in cases where the doctor deemed it necessary. 

67.  In the opinion of the Ministry, it was also stated against the allegations of the applicants as to the effect that the exact duration that elapsed between the commencement of the incident of burning and the intervention of the officials of the institution could not be determined with certainty and that the allegation of a late intervention was not responded to in a way that would certainly eliminate all kinds of doubts, that the fire was intervened and extinguished within one minute and thirteen seconds and that the convict was taken out of his room, that 112 Emergency Service was called immediately after burns were observed on his hands, knee and back and that the convict was hospitalized at the İzmir Bozkaya Training and Research Hospital, that the camera records were also present for the incident according to the response letter of CTEGM.

68.  The applicants stated, briefly, against the opinion of the Ministry on the merits of the application that their allegations were not clearly objected to and that they repeated their claims with regard to the violation of the right to life.

69.  Article 17(1) of the Constitution with the side heading of “Personal inviolability, corporeal and spiritual existence of the individual” is as follows:

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

70.  The individual's right to life and the right to protect and improve his/her corporeal and spiritual existence are among the rights which are closely tied, inalienable and indispensable and the state has positive and negative liabilities on this subject. The state, as a negative liability, has the liability not to terminate the life of any individual within its jurisdiction intentionally and in 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 (Serpil Kerimoğlu and others, § 50, 51).

71.  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 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 (Serpil Kerimoğlu and others, § 52).

72.  In this context, the state also has the liability to take necessary measures in order to protect life against the risks arising out of the actions of an individual himself/herself under certain special conditions (Sadık Koçak and others, App. No: 2013/841, 23/1/2014, § 74). In order for this liability which may also be valid for the incidents of death which occur at prisons to emerge, it is necessary to determine whether or not the officials of prisons know or need to know that there is a real risk of an individual under their control killing himself/herself and, if such a situation is present, to examine whether or not they have done everything expected from them within the framework of reasonable measures and within the scope of the authorities that they have in order to eliminate this risk (For the judgments of the ECtHR in the same vein, see Keenan v. the United Kingdom, App. No: 27229/95, 3/4/2001, § 90 and 91, Tanrıbilir v. Turkey, App. No: 21422/93, 16/11/2000, § 74). However, by taking into consideration of the preference of the action to be performed or the activity to be carried out by evaluating, in particular, the unpredictability of human behaviors, priorities and resources; the positive liability should not be interpreted in a way that will create an extreme burden on officials (Serpil Kerimoğlu and others,  § 53; Sadık Koçak and others, § 74). In this framework, in an examination to be performed by the Constitutional Court, it is necessary to put forth whether or not a fault which exceeds a simple negligence or evaluation mistake can be attributed to the prison officials.

73.  As a natural consequence of the fact that the persons who are detained or the execution of the freedom restricting penalty of whom is commenced are deprived of many freedoms which they previously had and that they go through a significant change in their daily life, their psychological health may go into a decline and thus, the risk of suicide may increase for these persons who are in a fragile and vulnerable situation. For this reason, legal and secondary regulations should attribute to prison officials the duty of being more sensitive and cautious about these persons and ensure that measures aimed at preventing putting the lives of detained or convicted persons at risk are taken. To this end, first of all, it is necessary to follow the behaviors and health condition of the persons who stay at a prison and, if necessary, to make use of doctor examinations and, on the other hand, in terms of those who are understood to have a tendency towards this, to take necessary measures aimed at reducing such risks such as ensuring that they stay in the most appropriate places for them and seizing sharp objects, belts, washing lines or shoelaces which may be used in actions of suicide (For the judgments of the ECtHR in the same vein, see Keenan v. the United Kingdom, § 90 and 91; Tanrıbilir v. Turkey, § 74).

74.  In this context, it can be expected from authorities to take measures which will minimize the possibility of a detainee or convict harming himself/herself to the extent that an excessive restriction will not be introduced to their personal liberty. Whether or not any more stringent measures are necessary in respect of a convict or detainee and whether or not it is reasonable to impose them will depend on the circumstances of each case which is made to be the subject of an application (For a judgment of the ECtHR in the same vein, see Keenan v. the United Kingdom, § 92).

75.  Within the scope of the right to life, the state needs to create a sufficient legal and administrative framework in order to primarily protect the life of the persons whose life may be in danger. The same liability is also valid for the protection of the life and health of the persons who are at prisons. It is seen that the follow-up, control and supervision procedures to be conducted by prison officials within this scope and other measures to be taken on this subject are regulated in detail in the aforementioned legislation (§§ 38-44). While there is no deficiency alleged by the applicants on this subject, it is also understood that there is no matter which needs to be considered and examined by the Constitutional Court in an ex officio fashion in terms of the incident which is the subject matter of the application.

76.  Therefore, in the current application, within the framework of the aforementioned principles, first of all, it should be put forth whether or not the prison officials knew or were supposed to know the risk of suicide of Erkan Kaya. 

77.  It is understood that Erkan Kaya had previously been involved in a bed burning action that was similar to the bed burning action which took place on 7/1/2013 and led to his death and that moreover, he went to see the doctor for treatment in relation to his psychological disorders (§§ 14-35).

78.  As specified in the opinion of the Ministry, it was determined that Erkan Kaya did not get on well with his friends in the ward at the prison apart from his bed burning action, that he engaged in aggressive and undisciplined behaviors towards the prison officials, that many disciplinary penalty decisions including in particular cell confinement were issued on him due to his actions within the period during which he was at Muğla Prison and that they were executed, that cases were filed against him due to his actions against the officials of the institution. Moreover, the room of the convict was changed many times during this period.

79.  It should be admitted that it was known or at least needed to be known by the prison officials that Erkan Kaya displayed aggressive attitudes especially within the last six months during which he stayed at the prison, that many penalties were imposed upon him and his dormitory was changed as he had problems with the officials and other persons staying at the prison, that as can be seen at first glance from the examination of the table showing the treatments and drugs administered on him since 2009, when it was considered that medical therapy was administered on him due to his psychological disorders within the same period and that he attempted to burn his bed in a similar way in August 2012 which was also included within the same period of time, he needed to be kept under observation in a more meticulous way and that he had the risk of harming himself or other people and of causing his or their death. 

80.  In this case, it is obvious under the conditions of the case at hand that necessary preventive measures needed to be taken by the officials so as to protect the health of Erkan Kaya and to ensure that he did not harm himself or other people.

81.  In the Law No. 5275, it is prescribed that it shall be obligatory to take all kinds of protective measures in order to protect the right to life and bodily and spiritual integrity of convicts at penal institutions and also, to execute the penalties of those who have psychological diseases resulting from imprisonment and other reasons and who are sent back to penal institutions by not considering it necessary to keep them at the hospitals of psychological and neurological diseases in the special areas of the specified penal institutions.

82.  It is not possible to identify the type of treatment required for the health and safety of a person who is at prison or who fulfills his military service and the place that is appropriate for him/her to stay only depending on his/her preferences in cases where it is obvious that the ability of reasoning of that person is not healthy with regard to these matters under the conditions of the relevant case (For the judgments of the ECtHR in the same vein, Kılınç and others v. Turkey, App. No: 40145/98, 7/6/2005, § 51, Kılavuz v. Turkey, App. No: 8327/03, 21/10/2008,  § 94).

83.  In the present case, it was determined that the convict went to the infirmary of the institution many times and received psychological therapy within the period during which he was at Muğla Prison, that however, he got his patient appointment canceled by writing a petition at his own will once although he wanted to go to the infirmary. On the other hand, the brother of the deceased, Erdoğan Kaya, whose statement was taken in the investigation of the Chief Public Prosecutor’s Office alleged that the reason for the previous bed burning action was the dismissal of his request for being taken to the infirmary. In the petition submitted by Erkan Kaya to the Directorate of Prison on 28/12/2012 just before his death, it is seen that he served a cell confinement between 18/12/2012 and 28/12/2012, that he stated on his own will that he wanted to stay in the section of the prison called “observation” for another week and requested that due action be taken and that he refused to be taken out of the Observation section at the end of the period of one week (§§ 21-22).

84.  When the inconsistencies of Erkan Kaya with regard to his preferences for the place in which he would stay at the prison and his requests for treatment are taken into consideration together with his psychological problems, it does not seem possible to attribute solely to the cause of his death by burning his bed to him, taking into account his location and physiological health.  As specified above and allowed for in the relevant legislation, it can be expected from authorities to take measures aimed at minimizing the possibility of self-harm of a detainee or convict in terms of keeping his/her health condition under control and determining the place in which s/he will stay in a way that will not be left only to his/her will.   In terms of Erkan Kaya, it can be expected from the prison officials and the relevant health units to take more stringent measures such as keeping him under constant observation, if necessary, treating him at a psychiatric service in line with the opinions of a specialist doctor, identifying the part in which he would stay at the prison in order to prevent him from obtaining objects which he could use to harm himself or to commit suicide and arranging his daily life accordingly.

85.  When the conditions of the occurrence of the case at hand such as the fact that decisions were made as regards the determination of the place in which Erkan Kaya would stay according to his own assessments that were clearly not healthy, that a treatment during which only medical therapy was foreseen was administered with regard to his psychological disorders, that there was no information as to the fact that a joint evaluation was made between the administrative personnel of the prison and the doctors who worked at other institutions with regard to the method of treatment by considering the severity of the disease of the convict in relation to the form and place of treatment and that the convict was not prevented by the prison officials from having access to the lighter that was understood to be used for the purpose of setting aflame the bed as previously done by him are considered together, it cannot be said that necessary measures were taken by the prison officials within the framework of their authorities in order to prevent the death of Erkan Kaya. 

86.  Due to the reasons explained, it needs to be ruled that the liability to protect life required by the right to life was violated.

b. Allegations as Regards the Process of Criminal Investigation

87.  The applicants state that a judgment of no grounds for prosecution was issued with regard to the officials who were negligent in the death of the deceased, that an opinion was received by the Assize Court of Fethiye from the Chief Public Prosecutor’s Office upon the objection which they filed against this judgment, that however, the relevant opinion was not notified to them, that the judgment was delivered by the Court without holding any hearing and without hearing them and allege that no effective investigation was conducted.

88.  It was stated in the opinion of the Ministry on the issue that, as per the case-law of the ECtHR, in order for a criminal investigation to be conducted in the context of the right to life to be effective, authorities needed to act ex officio, persons who are appointed for investigation and who conduct the investigation needed to be independent from the persons who might have been involved in the incidents, the investigation process needed to be sufficiently transparent to the family of the deceased to protect their legitimate interests, it needed to be conducted at a reasonable speed and in a manner that allowed for the identification and, if necessary, punishment of those responsible.

89.  In the opinion of the Ministry, it was stated, again based on the judgments of the ECtHR, that there was a liability in the case at hand not related to the conclusion reached, but to the means which bore this consequence, that the officials needed to take all reasonable measures that were expected from them for the collection of the evidence as regards the case at hand. It was also stated that each deficiency which could prevent the identification of the responsible person or persons in an investigation could harm its effectiveness and that the positive liability in the form of creating an effective judicial review did not necessarily require the filing of a criminal case in each incident or the delivery of a judgment of conviction in each criminal case and that providing victims with administrative and legal remedies could also be considered to be sufficient. 

90.  In the opinion of the Ministry, in relation to the current application, it was stated that an investigation was conducted by the Chief Public Prosecutor’s Office of Muğla following the death of the relative of the applicants, Erkan Kaya, that the statements of the institution officials were received in their capacity as witnesses within the framework of this investigation, that as a result of the judicial investigation, it was ruled that there was no grounds for prosecution by stating that it was understood that the fire was intervened by the officials in a very short period of time and the fire was contained, that the personnel of the institution did not have any negligence or delay with regard to the incident and that the incident of death occurred as a result of burns and acute pneumonia which developed as a complication. It was also stated that the objection filed by the applicants against this judgment was dismissed by the Assize Court of Fethiye, that the conducted investigation focused on the fact that the officials of the institution took the necessary measures by intervening in the incident as soon as possible following the occurrence of the incident, that a separate disciplinary investigation was conducted on the relevant personnel of the institution regarding the incident of death and that it was ruled that there were no grounds for any disciplinary penalty on the ground that they did not have any negligence and fault. It was also stated that the applicants' allegations as to the effect that the Assize Court of Fethiye which examined their objection against the judgment of no grounds for prosecution issued on the officials of the institution which they alleged to have negligence delivered its judgment without holding any hearing and without hearing them and that the opinion received from the Chief Public Prosecutor’s Office was not notified to them could be evaluated while examining the effectiveness of the investigation conducted within the scope of the right to life.

91.  Against the opinion of the Ministry, the applicants alleged, briefly, that they were not able to receive responses which would exactly correspond to their allegations regarding this part, that those who conducted the investigation were people that were not independent from the people involved in the incident and that it was not ensured that they participated in the process of investigation.

92.  The procedural aspect of the positive liabilities which the state has to fulfill within the scope of the right to life regulated in Article 17 of the Constitution (§ 71) requires the performance of an independent investigation which allows for the revelation of all aspects of the relevant incident of death and the determination of individuals who are responsible. Within the framework of this procedural liability, the state is obliged to conduct an effective public investigation which can ensure that those who are responsible for each incident of death that is not natural are determined and, if necessary, punished (Serpil Kerimoğlu and others, § 54). In the event that this procedural liability is not duly fulfilled, it is not possible to determine whether or not the state has exactly fulfilled its negative and positive liabilities. For this reason, the liability of investigation constitutes the guarantee of the negative and positive liabilities of the state within the scope of this article (Salih Akkuş, App. No: 2012/1017, 18/9/2013, § 29).

93.  The positive liability within the scope of the right to life does not necessarily require the performance of a criminal investigation in each case. It may suffice that legal, administrative and even disciplinary remedies are available for victims in the incidents of death which occur due to negligence (Serpil Kerimoğlu and others, § 59). However, in terms of the case at hand which clearly occurred as a result of negligence, it is necessary to decide whether or not a case is present such as a mistake of reasoning or a negligence exceeding carelessness of the authorized and responsible persons in the relevant incident or, in other words, their failure to take necessary and sufficient measures in order to eliminate risks emerging in the incident by ignoring the authorities granted to them although they were aware of the potential problems. Because in such cases, regardless of whichever remedies individuals have resorted to on their own initiatives, the failure to make any accusation against the persons who have caused the life of people to be in danger or the failure to try these persons may result in the violation of Article 17 (Serpil Kerimoğlu and others, §§ 60-62).

94.  The aim of criminal investigations to be conducted 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 which occurred are brought to justice in order for their responsibilities to be determined. This is not a consequential liability, but the liability to use the appropriate means. Provisions of Article 17 of the Constitution do not mean in any way that they grant applicants the right to have third parties tried or punished due to a certain crime or impose a duty of concluding all trials with a conviction or a certain criminal sentence (Serpil Kerimoğlu and others, § 56).

95.  In order to ensure the effectiveness and sufficiency of the investigation, the investigation bodies need to take action ex officio and all evidence that could elucidate the incident of death and serve to identify those responsible need to be collected (Serpil Kerimoğlu and others, § 57; Sadık Koçak and others,  § 94).

96.  One of the matters which ensure the effectiveness of the criminal investigations to be conducted is the fact that the investigation or the results 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 person who passed away are involved in this process to the extent that it is necessary so as to protect their legitimate interests (Serpil Kerimoğlu and Others, App. No: 2012/752, 17/9/2013, § 58).

97.  Evaluation of the evidence as regards the occurrence of an incident of death is the duty of administrative and judicial authorities. However, the Constitutional Court may need to examine the form of occurrence of the incident in order to understand the form of development of the incident which is the subject matter of the application and to objectively evaluate whether or not the allegations of the applicants as to the effect that the death of their relative was “suspicious” were responded by the investigation authorities and the courts of instance.

98.  In the incident which is the subject matter of the application, given the investigation procedures conducted, it is seen that an investigation was conducted ex officio by the Chief Public Prosecutor’s Office of Muğla in relation to the incident through which the relative of the applicants, Erkan Kaya burned his bed and got injured on 7/1/2013 and then, lost his life at the hospital where he was being treated on 19/1/2013, that within the framework of this investigation, statements of the officials of the institution were taken in their capacity as witnesses and that as a result of the judicial investigation; it was ruled that there was no grounds for prosecution on the ground that it was understood that the fire was intervened by the officials in a very short period of time and the fire was contained, that the personnel of the institution did not have any negligence or delay in the incident and that the incident of death occurred as a result of burns and acute pneumonia which developed as a complication. 

99.  However, in relation to the incident, as alleged by the applicants and put forth in the section where the liability of the protection of life was examined (§§ 64-86), it has been found out that there were many indications as to the fact that Erkan Kaya could attempt to perform such an action before his action that caused his death and that it could be expected from the officials to take more advanced measures by considering these indications. It was found out through the investigation conducted that the previous bed burning attempt of Erkan Kaya, the problems that he experienced with the prison officials and other prisoners and the place changes that occurred  and the disciplinary penalties imposed on him due to those circumstances and the psychological problems that he went through during the same period were both recorded by the prison administration through minutes and stated by the applicants and the prison officials and another prisoner whose statements were taken during the investigation process.

100.          It is seen that no examination and evaluation was conducted within the scope of the investigation in relation to the matters which were of critical importance to elucidate all aspects of the incident of death and to determine those who were potentially responsible such as the determination of the health condition of Erkan Kaya prior to the incident, the examination of the process of treatment administered on him, the examination of how the method and place of the administered treatment and the part of the prison where he would stay were determined and to what extent the previous bed burning action and psychological problems of Erkan Kaya were taken into consideration in this determination and finally, from whom and how Erkan Kaya obtained the lighter which he used in order to set aflame the bed and the determination of the people who were responsible for this situation due to their positions.

101.          As the incident was only evaluated in terms of whether or not the officials had any negligence as regards intervention in the incident following the fire although the incident had the aforementioned aspects and a judgment of no grounds for prosecution was delivered, it is concluded that the investigation was away from meeting the obligation of putting forth all aspects of the incident of death and allowing for the determination of those who were potentially responsible.

102.          In connection with this, the failure to respond to the allegation of the applicants with regard to the different aspects of the incident which are specified above in the judgment of no grounds for prosecution and the judgment delivered upon objection during the phase of investigation and objection prevented the applicants from being involved in this process to the extent that it was necessary so as to protect their legitimate interests.

103.           When the evaluations specified in this part with regard to the effectiveness of the investigation are considered as a whole, it is concluded that all aspects of the incident of death could not be put forth, that the persons who were potentially responsible were not determined and that it could not be ensured that the relatives of the deceased could be involved in this process to the extent that is necessary so as to protect their legitimate interests in the investigation conducted by the Chief Public Prosecutor’s Office and that therefore, the investigation conducted in the case at hand could not ensure accountability in practice as well as in theory.

104.          Due to the reasons explained, it needs to be ruled that the liability of an effective investigation required by the right to life was violated.

3.    Article 50 of the Law No. 6216

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

“If the determined violation arises out of a court judgment, 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, a compensation can be adjudged in favor of the applicant or the remedy of filing a case before general courts can be shown. The court, which is responsible for holding the retrial, shall deliver a judgment over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its judgment of violation."

106.          As it was determined in the current application that Article 17 of the Constitution was violated in terms of the liabilities to protect life and conduct an effective investigation, it should be ruled that the file is sent to the relevant Chief Public Prosecutor's Office in order to remove the violation and the consequences thereof.

107.          The applicants claimed pecuniary damages of TRY 100,000 in total composed of TRY 50,000 for each of the mother and father and non-pecuniary damages of TRY 375,000 in total composed of TRY 100,000 for each of the mother and father and TRY 25,000 for each of the siblings because of the violation of the right to life, the prohibition of ill-treatment and torture, the right to a fair trial and the right to an effective remedy.

108.          The applicants did not submit to the Constitutional Court any document in relation to the material damages they claimed to have incurred. In order for the Constitutional Court to be able to rule on pecuniary damages, a causality relation needs to be established between the pecuniary damages which the applicants claim to have incurred and the request for compensation. It is necessary to dismiss the requests for pecuniary damages by the applicants who did not submit any document to the Constitutional Court.

109.          Although it is concluded that establishing that the liability to conduct an effective investigation within the scope of the right to life was violated as well as ruling that the file be sent to the relevant Chief Public Prosecutor’s Office so as to fulfill the requirement of the judgment constitute a sufficient compensation in terms of the allegation of violation of the applicants, as it is also ruled that the liability to protect life was also violated, it is necessary to rule ex gratia that non-pecuniary damages of net TRY 30,000 in total be paid to the mother, father, and siblings of the deceased Erkan Kaya.

110.          The applicants also requested that the trial expenses and the counsel’s fee be paid to them. It is ruled that the trial expense which is composed of the fee and the counsel’s fee and made by the applicants be paid to the applicants.

V. JUDGMENT

In the light of the reasons explained, it is UNANIMOUSLY held on 20/5/2015

A.       That the application

1.   is INADMISSIBLE in terms of the allegation of the violation of the prohibition of torture and ill-treatment,

2.   is ADMISSIBLE in terms of the allegations of the violation of the right to life,

B.       That the liability to protect life and the liability to conduct an effective investigation within the scope of the right to life guaranteed in Article 17 of the Constitution were VIOLATED in the incident which is the subject matter of the application,

C.        That it is NOT NECESSARY to conduct a separate EXAMINATION over the complaints of the applicants as regards the violation of Articles 36 and 40 of the Constitution,

D.       That non-pecuniary DAMAGES of net TRY 30,000 BE  PAID collectively and ex gratia to the applicants as per Article 50(2) of the Law No. 6216,

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 judgment; 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.        That other requests of the applicants in relation to additional compensation be DISMISSED,

G.       That 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 1,500.00, which were made by the applicants be COLLECTIVELY PAID TO THE APPLICANTS,

H.       That a copy of the judgment is sent to the relevant Chief Public Prosecutor's Office for due action.