THE FACTS

[6-95] While the applicants’ daughter A.Ö. was working in a factory belonging to the Private Provincial Administration operating at the Akpınar Town in Mazgirt, Tunceli, any news could not be received from her after the end of shift on 27 June 1992. The applicant, who is the father, Hıdır Öztürk, maintained before the chief public prosecutor’s office that his daughter had been taken to a white car by unidentified persons while walking along the Tunceli-Elazığ highway. He noted that he was firstly suspicious of a person wishing to get married with his daughter and subsequently of a person running supermarket where he was shopping. The applicant requested the extension of the investigation against a person whom he alleged to be an accomplice of that person.

While the searching activities for A.Ö. were going on, a dead body of a woman determined to have been killed by means of strangling with a cloth around her neck was found within the boundaries of Elazığ province. The applicants identified that the dead body in question was belonging to their daughter A.Ö.

On 10 August 1992, the Chief Public Prosecutor’s Office initiated a criminal case against N.A., E.A. and S.Ç. alleged to be in the same car with the applicant Hıdır Öztürk’s daughter on the day of incident for premeditated murder of A.Ö. At the end of the proceedings, it was ordered that the accused persons be acquitted, and that a criminal complaint be filed for the identification of the offenders of the incident. Upon this criminal complaint, the Elazığ Chief Public Prosecutor’s Office issued a “permanent arrest warrant” in respect of the offenders.

In the course of the proceedings conducted by the Assize Court, the defence-counsel of Ş.Ç. stated that the incident was published in a newspaper in this manner: “the organization damned the counter-guerrilla murder”.

It was alleged by the Chairperson of the Tunceli Branch of the Human Rights Association and a lawyer that in a news report entitled “Death Squad” published in the relevant issue of a newspaper dated 26 August 1993, a military officer declared that A.Ö. had been killed by M.Y. whose nickname was “the Green”, and thereupon, a petition was submitted to the Tunceli Chief Public Prosecutor’s Office. The file of investigation initiated upon this allegation was joined with the investigation conducted into the death of A.Ö.

While the investigation was pending, the applicant was invited by the Human Rights Inquiry Committee established in the Grand National Assembly of Turkey and heard on 13 December 2011.

As to the death of his daughter, the applicant maintained that in 1992, the Tunceli Provincial Gendarmerie Commander asked the applicant to visit him; that in the first interview during which he was alone, the commander asked him to bring his daughter, and when he went there together with his daughter, A.Ö., she was caused to meet with a thin and bearded person whose name was “Mr. M.....” in a closed room on the ground floor of the command headquarters building; that her daughter was kidnapped two months after this incident; that when he subsequently went to the Elazığ State Hospital together with his family with a view to identifying a dead body belonging to a woman, a police officer in civilian clothes told his wife, Dilif Öztürk, “this is your daughter; she was resembling to you”. He accordingly alleged that her daughter had been tortured to death.

The applicant also maintained that he had subsequently seen the person named M.Y. on TV channels; that her daughter had also known that person; that three days after the his daughter’s death body had been found, that person was evacuated from the lodging building of the Private Provincial Administration; and that on those days, A.Ö.’s service contract had been terminated.

The Human Rights Inquiry Committee requested information concerning the applicant’s allegations from the Tunceli and Elazığ Chief Public Prosecutor’s Office. The Elazığ Public Prosecutor’s Office provided information in chronological order in its reply letter dated 28 December 2011.

On 1/2/2012, the applicant filed another petition with the Tunceli Chief Public Prosecutor’s Office through his lawyer with the allegation that there had been negligence in arrest of M.Y. whose nickname was “Green” and his team whom the applicant held responsible for her daughter’s murder. The Elazığ Chief Public Prosecutor’s Office drew up a police report concerning M.Y. and the other persons including certain law-enforcement officers, public officers and the members of the National Intelligence Organization (“the MIT”) and sent the investigation file to the Malatya Chief Public Prosecutor’s Office.

On 23 February 2012, the Malatya Chief Public Prosecutor’s Office requested information from the Undersecretariat of the MIT concerning M.Y.’s duties under the MIT. The Undersecretariat noted in its reply letter dated 15 March 2012 that the MIT had from time to time benefited from M.Y. between September 1994 and 30 November 1996.

On 25 April 2012, the applicant provided the Malatya Chief Public Prosecutor’s Office through his lawyer with electronic record (DVD) concerning the video-interview submitted by a person alleged to be a military officer A.A. to a foreign agency. In this interview, A.A. noted that he had seen M.Y. in the Gendarmerie Intelligence and Anti-Terror Unit in Diyarbakır (according to his own declaration) on the dates when the applicant’s daughter had been killed; that M.Y. introduced A.Ö. to him “the sister of a person named S.Ç., the person who was a member of the terrorist organization and responsible for the Tunceli region and who was an influential person within the organization”; and that he was of the opinion that A.Ö. had been killed with a view to intimidating S.Ç. and the people around him.

In his statement taken by the Malatya Chief Public Prosecutor’s Office, the retired senior colonel M.S.Y. alleged to have the applicant’s daughter meet with M.Y. at the commandership denied all allegations of the applicant.

On 8 June 2012, the Malatya Chief Public Prosecutor’s Office took the applicant’s statement once again. In his statement, the applicant mainly reiterated his previous statement before the Committee. He additionally stated that when he went to the Provincial Gendarmerie Command together with his deceased daughter A.Ö. and his other two daughters in May 1992 upon the call of the Tunceli Provincial Gendarmerie Commander, certain questions were addressed to their daughters by a bearded man in a room on the ground floor of the building, and photos of certain members of the terrorist organization were shown to them; that among these members, there was a photo of his elder daughter A.Ö.; and that his daughters told that their sister participated in the organization after getting married and then started living abroad with his husband S.Ç.; that his daughter A.Ö. was seen while being taken to a white car by three men one of whom was a bearded person. The applicant also maintained that he had talked with the gendarmerie retired non-commissioned officer H.O., whose name was included in the report pertaining to a case known by public as “Susurluk”, on the phone and H.O. told the applicant that he had knowledge concerning the murder of the applicant’s daughter, A.Ö..

H.O. noted in his statement taken on 13 June 2012 that the captain Z., who was the section commander at the JITEM in Elazığ (according to his own declaration), had explained him in July 1993 that M.Y. whose nickname was “Green” had kidnapped a woman named A. in Mazgirt as that woman’s brother-in-law had been the head of a terrorist organization in Tunceli region; that M.M. who was known to be confessor of the organization also accompanied him; that after kidnapping her, they had taken her to the JITEM in Diyarbakır and she was brought before A.K. who was the commander of the JITEM; and that M.M., M.Y., A.K. and A.A., who subsequently started living in Sweden, had tortured that woman for three days; however, captain Z. had not provided any information as to how the woman named A. had been killed.

H.O. also noted in the same statement that those who had been tortured in this region were killed in regions where the Gendarmerie Commands were authorized; that thereby, the duly investigation of the incident had been prevented; that the Mazgirt District Gendarmerie Station Commander and M.B., who was the commanding officer in 1994, were also aware of the incident; and that the records concerning the incident leading to the death of A.Ö. were saved in the Mazgirt District Gendarmerie Command.

Upon the instruction of the Malatya Chief Public Prosecutor’s Office, the persons whose names were mentioned in the applicant’s allegations noted in their statements that they had not known A.Ö., H.O. and M.Y.; and that they had not had any knowledge concerning the incident. The director of the Tunceli Private Provincial Directorate, K.K., noted in his statement dated 23 October 2012 that he could not remember who were the applicant and A.Ö.; and that the impugned evacuation of the lodging building was of a routine procedure.

The Malatya Chief Public Prosecutor’s Office did not take any further action until 13 March 2014 and once again sent the file to the Elazığ Chief Public Prosecutor’s Office which issued a new arrest warrant in respect of the suspect M.Y. on 29 September 2014.

On 25 May 2005, the applicants applied to the Damage Determination Committee of the Tunceli Governorship through their lawyers, and this request was dismissed by the Committee’s decision dated 10 October 2006.

The applicants brought an action for annulment of the dismissal decision in question, and the relevant court dismissed the action brought by its decision dated 3 June 2010. The decision was upheld by the judgment of the Supreme Administrative Court. The applicants’ request for rectification of the judgment was also dismissed by the Supreme Administrative Court.

IV. EXAMINATION AND GROUNDS

96. The Constitutional Court, at its session of 21 April 2016, examined the application and decided as follows.

A. The Applicants’ Allegations

97. The applicants maintained that their daughter had been tortured and killed after being a victim of forced disappearance by the security forces along with a person called M.Y. who was serving for the National Intelligence Agency; that an effective criminal investigation had not been conducted into this incident; that moreover, the action for compensation brought by them despite the arrest warrant issued against the suspect M.Y., who was mentioned within the criminal investigation, in his absence had been dismissed on the ground that the incident was not a terrorist act or an incident derived from terrorism. In this respect, the applicants alleged that the right to life safeguarded by Article 17 of the Constitution had been violated. They also claimed pecuniary and non-pecuniary compensation.

B. The Court’s Assessment

98. The Constitutional Court is not bound by the legal qualification of the facts by the applicants and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16).

99. In addition to their allegations that the State had acted in breach of its positive obligations within the scope of the right to life, the right to personal liberty and security as well as the prohibition of torture and ill-treatment by failing to conduct an effective investigation into the incident where their daughter had been killed by torture, the applicants further claimed that the State had also acted in breach of its negative obligations, maintaining that their daughter had been tortured and killed after being a victim of forced disappearance by certain public officials and persons serving for the security forces.

100. First, it should be noted that as stated in many judgments of the European Court of Human Rights (“the ECHR”), the prohibition of torture is a kind of regulation relating to the basic values of a democratic society. Unlike most of the substantive clauses of the European Convention on Human Rights (“the Convention”), Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], nos. 25803/94, 28/7/1999, § 95; and Labita v. Italy [GC], no. 26772/95, 6 April 2000, § 119). The ECHR has verified that even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment (see Cezmi Demir and Others, no. 2013/293, 17 July 2014, § 93; Labita v. Italy, § 119; and Chahal v. the United Kingdom, no. 22414/93, 15 November 1996, § 79).

101. The Court reiterates that the national authorities are responsible for the well-being of persons in custody and that respondent States bear the burden of providing a plausible explanation for any injuries, deaths and disappearances which occur in custody (see Er and Others v. Turkey, no. 23016/04, 31 December 2012, § 66; and Tanış and Others v. Turkey, no. 65899/01, § 160).

102. The ECHR also considers that is cases where it has been proven that a person was officially summoned by the military or the police, entered a place under their control and has not been seen since then, it is necessary to provide an explanation on the life and physical integrity of her/him. In such circumstances, the onus is on the Government to provide a plausible explanation as to what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty (see Tanış and Others v. Turkey, § 160). The authorities’ obligation to account for the fate of a detained individual continues until they have shown that the person has been released (see Er and Others v. Turkey, § 71).

103. The ECHR elaborated on the accountability in one of its judgments where it examined the unlawful killing of the husband of the applicant after being released from the police custody and stated that the absence of an official release document pointed out the authorities’ failure to discharge their burden of proving that the applicant’s husband was indeed released. It therefore concluded that the State had been responsible for the alleged killing (see Süheyle Aydın v. Turkey, no. 25660/94, 24 May 2005, § 154).

104. In the relevant judgment, the ECHR paid regard to Article 11 of the Declaration on the Protection of all Persons from Enforced Disappearance (United Nations General Assembly resolution 47/133 of 18 December 1992). The said Article provides that “[a]ll persons deprived of liberty must be released in a manner permitting reliable verification that they have actually been released and, further, have been released in conditions in which their physical integrity and ability fully to exercise their rights are assured” (for a judgment of the ECHR, in the same vein, see Meryem Çelik and Others, no. 3598/03, 16 April 2013, § 51).

105. In addition, alleged violations of the prohibition of ill-treatment must be substantiated with appropriate evidence (see Hamdiye Aslan, no. 2013/2015, 4/11/2015, § 92; for a judgment of the ECHR, in the same vein, see Klaas v. Germany, no. 15473/89, 22 September 1993, § 30). In order to prove the reality of the alleged facts, reasonable proof beyond any doubt is required. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Hamdiye Aslan, § 92; for the judgments of the ECHR, in the same vein, see Ireland v. the United Kingdom, no. 5310/71, 18 January 1978, § 161; and Labita v. Italy, § 121). In this context, the conduct of the Parties when evidence is being obtained has to be taken into account (see Tanlı v. Turkey, no. 26129/95, 10 April 2001, § 109). Where these conditions have been established, then ill-treatment may be deemed to have existed (see C.D., no. 2013/394, 6 March 2014, § 28).

106. In the examination of the complaints under Article 17 of the Constitution, when there are alleged violations of the right to life and prohibition of ill-treatment safeguarded therein, the Constitutional Court should conduct a full examination on this issue (see Hamdiye Aslan, § 93; for a judgment of the ECHR, in the same vein, see Ribitsch v. Austria, no. 18896/91, 4 December 1995, § 32).

107. In order to establish the authenticity of the alleged facts by carrying out a full examination of the complaints filed under Article 17 of the Constitution, reasonable proof, beyond any doubt, is required. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. However, in cases where the State is under an obligation to account for the fate of the disappeared persons and does not fulfil this obligation, it must be determined precisely -beyond reasonable doubt- that the person who has been lost has been under the control of the State in order to say that it is responsible for the impugned death.

108. In the present case, the application form and the documents annexed thereof as well as the information and documents included in the files pertaining to the criminal investigation and the administrative case do not include any evidence, beyond reasonable doubt, allowing for an assessment as to whether there have been violations of the substantive aspects of the right to life and the prohibition of torture and ill-treatment, safeguarded by Article 17 of the Constitution, as well as of the right to personal liberty and security, safeguarded by Article 19 of the Constitution. The circumstances of the incident, that is to say, whether the deceased had been killed by the public officials and those acting on their behalf after having been taken into the custody of the State arbitrarily where he had been tortured, or whether he had been deprived of his liberty by the third parties and then killed by them could not be established in order to be able to make an assessment in this respect.

109. Under these circumstances, it has been considered that the allegation that the applicants’ daughter A.Ö. had been tortured after being a victim of forced disappearance falls under the scope of the prohibition of torture and ill-treatment safeguarded by Article 17 § 3 of the Constitution, and the allegation that she had subsequently been killed falls under the scope of the right to life safeguarded by Article 17 § 1 therein. Therefore, it is considered necessary as well as sufficient that the examination on the admissibility and merits of the case be carried out only from the standpoint of the procedural aspect of Article 17 of the Constitution concerning the obligation to conduct an effective investigation.

110. In addition, the applicants’ allegation that the action for compensation they had brought, maintaining that their daughter had been killed within the scope of the fight against terrorism, had been dismissed due to the misevaluation of the evidence on the ground that the incident was not a terrorist act or an incident derived from terrorism has been considered to fall under the scope of the right to a fair trial safeguarded by Article 36 of the Constitution and the examination of the said allegation has been carried out under this Article.

1. Admissibility

a. Alleged Violation of the Right to a Fair Trial

111. The applicants maintained that their right to a fair hearing within the scope of the right to a fair trial had been violated due to the rejection of their requests as a result of an erroneous assessment of evidence in the administrative case.

112. The relevant part of Article 48 § 2 of the Code no. 6216 on the Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

 “The Court … may declare the applications inadmissible as being manifestly ill-founded.”

113. As a rule, the proof of material facts argued before the inferior courts, evaluation of evidence, interpretation and implementation of legal rules as well as whether the conclusion of the inferior courts regarding the dispute was fair in terms of the merits cannot be the subject matter of individual application. The only exception to this is that the findings and conclusions of the inferior courts are manifestly erroneous, disregarding the justice and common sense, and that this situation automatically violates the fundamental rights and freedoms within the scope of individual application. In this context, the merits of appellate requests cannot be examined by the Constitutional Court, unless the decisions of inferior courts contain a manifest error or explicit arbitrariness (see Necati Gündüz and Recep Gündüz, no. 2012/1027, 12 February 2013, § 26).

114. It is clearly provided in Article 2 of Law no. 5233 that the losses incurred due to economic and social reasons other than terrorism shall be out of scope.

115. The discretion as to whether the requests submitted in accordance with Law no. 5233 will be evaluated within the scope of the specified Law; the interpretation of the legal provisions in terms of determination of the scope of the Law; the establishment of a case-law criterion in this respect; and whether the present case will be assessed in accordance with this criteria, in principle, belongs to the inferior courts. As regards the requests raised previously as a subject matter of individual application in terms of the application of Law no. 5233; the Constitutional Court concluded that the allegations on the relevant matters were manifestly ill-founded, stating that they had to be examined by the appeal courts in the context of the interpretation of the facts of the case as well as interpretation and implementation of legal rules (see Sabri Çetin, no. 2013/3007, 6 February 2014, §§ 45-50; and for a judgment of the ECHR, in the same vein, see Akbayır v. Turkey, no. 30415/08, 28 June 2011, § 88). The discretion in this respect, in principle, belongs to the inferior courts. However, in cases where the judgments of the inferior courts contain manifest errors and explicit arbitrariness, a different assessment as to the determination of whether a constitutional right or freedom has been violated may be needed (see Mesude Yaşar, no. 2013/2738, 16 July 2014, § 93; and Cahit Tekin, no. 2013/2744, 16 July 2014, § 88).

116. In the present case, the applicants argued that their daughter had been tortured and killed after being a victim of forced disappearance by some groups allegedly structured within the State and acted on behalf of the security forces and that the losses incurred in this respect should be considered within the scope of Law no. 5233. They also maintained that the administrative action brought by them upon the dismissal of their request by the Damage Determination Committee was rejected by the authorities having disregarded the arrest warrant issued in respect of the suspect M.Y., in his absence, whom they alleged, within the scope of the ongoing criminal investigation into the incident, to have acted on behalf of the security forces. In this regard, the applicants maintained that their constitutional rights had been violated.

117. The first instance court and the Council of State specified in the reasoning of their dismissal of the case that on the basis of the information and documents included in the investigation file, it could not be established whether the incident had been a terrorist incident or had resulted from terrorism and thus there was no responsibility attributable to the administration.

118. In view of above and as it will separately be discussed below under the heading related to the obligation to conduct an effective investigation into the incident, given the fact that the individual application form and the documents annexed thereto as well as the information and documents included in the criminal investigation and case files pertaining to the incident failed to allow for the determination of the circumstances of the incident, the decisions of the first instance court cannot be said to have included erroneous assessment or manifest arbitrariness.

119. Consequently, as it has been understood that the allegations raised by the applicants are of a nature required to be subject to appellate review and that the judgments of the inferior courts contained neither erroneous assessment nor manifest arbitrariness, this part of the application has been declared inadmissible for being manifestly ill-founded and there being no further requirement for its examination under the other admissibility criteria.

b. Alleged Ineffectiveness of the Criminal Investigation

120. The applicants claimed that no effective investigation had been conducted into the incident where their daughter had been tortured and killed after being a victim of forced disappearance.

121. Article 17 §§ 1 and 3 of the Constitution, titled “Personal inviolability, corporeal and spiritual existence of the individual”, provides as follows:

“(1) 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.”

122. It is stipulated in Article 46 § 1 of Law no. 6216 that an individual application may only be lodged by those, whose current and personal right is directly affected due to the act, action or negligence that is claimed to result in the violation. By the very nature of the right to life, any application regarding this right with respect to a person who has lost his life can only be made by the relatives of the deceased, who have the victim status (see Serpil Kerimoğlu and Others, no. 2012/752, 17 September 2013, § 41). In the present case, the applicants are the parents of the deceased. Therefore, there is no deficiency in terms of the eligibility for an application.

123. The criminal investigation into the incident is still pending in the present case. Thus, an assessment should be made in terms of the exhaustion of legal remedies.

124. Article 148 § 3 of the Constitution reads as follows:

“… In order to make an application, ordinary legal remedies must be exhausted.”

125. Article 45 § 2 of Law no. 6216 provides as follows:

“… All of the administrative and judicial application remedies that have been prescribed in the code regarding the transaction, the act or the negligence that is alleged to have caused the violation must have been exhausted before making an individual application.”

126. The requirement of the exhaustion of legal remedies, as stipulated by the constitutional and legal provisions cited above, is a natural consequence of the fact that the remedy of individual application is to be used as a last and extraordinary resort for the prevention of human rights violations. In other words, the fact that administrative authorities and inferior courts are primarily responsible for remedying the violations of fundamental rights renders it mandatory to exhaust the ordinary legal remedies (see Necati Gündüz and Recep Gündüz, no. 2012/1027, 12 February 2013, § 20).

127. To respect fundamental rights and freedoms is the constitutional duty of all State bodies, and to remedy violations arising due to neglect of this duty is the task of administrative and judicial authorities. Therefore, it is essential that alleged violations of fundamental rights and freedoms first be raised before inferior courts for the latter to examine and resolve them (see Ayşe Ziraman and Cennet Yeşilyurt, no. 2012/403, 26 March 2013, § 16).

128. First of all, although the exhaustion of legal remedies is not absolutely necessary for making an assessment as to the effectiveness of the investigation, waiting for the conclusion of the incumbent public authorities on the condition that the ongoing investigation does not exceed the reasonable period in the particular circumstances of the case will be in compliance with the secondary nature of the protection mechanism introduced by the individual application.

129. However, as soon as the applicants realise or should realise the fact that no investigation will be launched, that there has been no progress in the investigation and that there is not the slightest chance of conducting such an investigation in the future, then the applications to be lodged by the applicants should be accepted. In such cases related to the right to life, the applicants should act in due diligence, be able to take the initiatives and submit their complaints to the Constitutional Court without too much time elapsing. In addition, in case of an application made before the investigation process has been completed, due to the excessive length of the investigation in the particular circumstances of the case, an assessment should be made without taking a very strict attitude towards the relatives of the deceased. However, such a situation will naturally be evaluated depending on the circumstances of each case (see Rahil Dink and Others, no. 2012/848, 17 July 2014, § 77; and Hüseyin Caruş, no. 2013/7812, 6 October 2015).

130. Accordingly, in terms of the assessment of admissibility of the applicants’ complaints under Article 17 of the Constitution, in order to be able to make a decision on the exhaustion of legal remedies, the framework of the State’s positive obligation “to conduct an effective investigation” within the scope of Article 17 as well as the manner in which this obligation has been fulfilled in the present case should be determined. It has been concluded that the examination on admissibility should be carried out along with the examination on the merits, as they are intertwined.

2. Merits

i. General Principles

131. Within the scope of the right specified in Article 17 of the Constitution, the State has the positive obligation to protect the corporeal and spiritual existence of all individuals who are within its jurisdiction against all risks which may arise out of the actions of public authorities, of other individuals or of the individual himself. The State is obliged to protect the individual's corporeal and spiritual existence from all kinds of dangers, threats and violence (see Cezmi Demir and Others, § 105; and Serpil Kerimoğlu and Others, § 51).

132. The positive liabilities of the State within the scope of the prohibition of ill-treatment also have a procedural aspect. Within the framework of this procedural liability, the State is obliged to conduct an effective investigation capable of identifying and punishing, if any, those responsible for any physical and psychological ill-treatment. The main aim of such an investigation is to ensure the effective implementation of law that protects human dignity and to hold the public officials or other individuals accountable for their actions constituting ill-treatment (see Cezmi Demir and Others, § 110).

133. Accordingly, where an individual has an arguable claim that he had unlawfully been subject to a treatment violating Article 17 of the Constitution by a state official or a third person, Article 17 of the Constitution, taken in conjunction with Article 5 titled “Fundamental aims and duties of the State”, requires an effective official investigation.

134. In case of a failure to fulfil properly such a procedural guarantee, whether the State has really fulfilled its negative and positive obligations cannot be established. Therefore, the obligation to conduct an investigation constitutes the guarantee of the State’s negative and positive obligations falling under the relevant article (see Salih Akkuş, no. 2012/1017, 18 September 2013, § 29).

135. The type of investigation entailed by the procedural obligation should be determined depending on whether the obligations under the substantive aspect of the right to protection of individual’s corporeal and spiritual existence have required a criminal sentence. In cases pertaining to the incidents of death occurring as a result of intention or assault or ill-treatment, the State has an obligation, by virtue of Article 17 of the Constitution, to conduct criminal investigations capable of leading to the identification and punishment of those responsible for the case of assault involving death or bodily harm. In such incidents, the mere payment of compensation as a result of administrative and civil investigations and proceedings is not sufficient to redress the violation of the right to life and to remove the victim status (see Serpil Kerimoğlu and Others, no. 2012/752, 17 September 2013, § 55).

136. The aim of the criminal investigation carried out within the scope of the rights safeguarded by Article 17 of the Constitution is to ensure the effective enforcement of the legislation provisions protecting the corporeal and spiritual existence of an individual and to hold those responsible accountable. This is not an obligation of result, but of means. In addition, the assessments included herein do not mean, under any circumstances, that Article 17 of the Constitution grants the applicants the right to have third parties tried or punished for a criminal offence or imposes an obligation to conclude all proceedings in a verdict of conviction or a specific penalty (see Serpil Kerimoğlu and Others, no. 2012/752, 17 September 2013, § 56).

137. The criminal investigations to be carried out must be effective and sufficient to enable the identification and punishment of those responsible. In order for a criminal investigation to be effective, it is required that the investigation authorities act ex officio and gather all the evidence capable of clarifying the incident and identifying those responsible. Accordingly, an investigation into the allegations of killing and ill-treatment must be conducted independently, speedily and thoroughly. In other words, the investigation authorities should investigate the facts seriously and should not rely on quick and ill-founded findings to conclude the investigation or to find a basis for their decisions (see Cezmi Demir and Others, §§ 114). A deficiency in the investigation that would reduce the likelihood of discovering the cause of the incident of death or those who are responsible bears the risk of clashing with the obligation of conducting an effective investigation (see Serpil Kerimoğlu and Others, § 57).

138. In order for an investigation into the allegations of torture and ill-treatment inflicted by the public officials to be “effective”, those who are responsible for the investigation and conduct it must be independent from the individuals involved in the incident. The independence of the investigation requires not only no hierarchical or institutional connection, but it also requires a concrete independence. Therefore, in order for an investigation to be effective, it must first be conducted independently (see Cezmi Demir and Others, § 117).

139. In addition, it is implicitly required that investigations be conducted at a reasonable speed and with due diligence. Of course, there may be difficulties which hinder progress of the investigation in certain specific circumstances. However, speedy actions taken by the authorities even in those circumstances is of critical importance for clarification of the events in a sounder manner, maintenance of the individuals’ commitment to the rule of law and hindering the impression that authorities tolerate and remain indifferent to unlawful acts (see Deniz Yazıcı, no. 2013/6359, 10 December 2014, § 96).

140. Moreover, lack of an investigation or failure to conduct a sufficient and effective investigation, within the scope of the State’s positive obligation, may per se constitute ill-treatment. Accordingly, in any circumstances, the authorities are expected to take an action as soon as an official complaint is made. Even if there is no complaint, an investigation must be launched in the presence of indications of torture or ill-treatment. In this scope, the investigation must be launched immediately; it must be conducted independently, rigorously and speedily, and be subject to public scrutiny; as well as it must be effective as a whole (see Tahir Canan, § 25; and Cezmi Demir and Others, § 116).

141. Lastly, one of the aspects ensuring the effectiveness of criminal investigations is the fact that the investigation or its results is open to public scrutiny to ensure accountability not only in theory but also in practice. In addition, it must be ensured that the relatives of the deceased can effectively participate in the investigation to the extent necessary for protecting their legal interests (see Serpil Kerimoğlu and Others, § 58).

ii. Application of Principles to the Present Case

142. The applicants claimed that no effective investigation had been conducted into the incident where their daughter had been tortured and killed after being a victim of forced disappearance by certain public officials and persons serving for the security forces.

143. It has been concluded that the present case should be subject to a two-stage examination by its particular circumstances. The first is the disappearance of the applicants’ daughter after she had left the factory where she had been working, and the second is the initial investigation phase that was initiated after the applicants had applied to the chief public prosecutor’s office regarding their daughter’s disappearance, as well as the subsequent prosecution phase.

144. As soon as the applicants notified that their daughter was lost, the chief public prosecutor’s office launched an investigation whereby the witnesses produced by the applicants were heard and the investigation was then extended to cover the third persons mentioned by the witnesses.

145. After the dead body of the applicants’ daughter had been found, a criminal case was opened against these persons. However, at the end of the proceedings, they were acquitted for lack of sufficient evidence for their conviction.

146. At this stage of the investigation, two men's handkerchiefs were found near the dead body of the applicants’ daughter, on which there was blood stain. Among the certified copies of the investigation documents, there was no information or document indicating that an investigation had been conducted into the matter as to whether the blood stain found on one of the handkerchiefs had belonged to the suspects against whom a criminal case had been filed or to the deceased or to a third person.

147. The Constitutional Court will not make a definitive comment on whether the science of criminology at the material time allowed for a biological comparison and the acquisition of biological data through the blood stain, since there is no information in this respect in the investigation file.

148. In addition, the report issued by the Forensic Medicine Institution Biological Specialization Department on 30 September 1992 stated that in order for a proper examination to be carried out on the blood-stained trousers of a woman named H.B. who was killed by a sharp object in the Karakoçan District of Elazığ on 11 August 1992 and on the blood-stained rag belonging to the person named N.B., with a view to finding the owner of the blood stains, it was requested from the Karakoçan Chief Public Prosecutor’s Office that the blood group of N.B. be notified. This incident did not relate to the present case, but the relevant documents had been included in the investigation file erroneously.

149. Thus, also with reference the above-mentioned document, it was possible to carry out a scientific examination on the handkerchief found near the dead body of A.Ö. to find out whether it had really been a blood stain and if so, whose blood it had been, as in the mentioned incident.

150. It has been observed that there was no information or document indicating that an examination had been carried out on the handkerchief found in the scene, as well as that no autopsy had been performed on the deceased on the ground that her exact cause of heath had already been established and that only a post-mortem examination had been conducted on the dead body.

151. First of all, it should be noted that the nature and degree of scrutiny which satisfies the minimum threshold of an investigation's effectiveness depends on the circumstances of each particular case. It must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work. Therefore, for the effectiveness of the investigation, it is not possible to determine a simple list of investigative acts or other simplified criteria applicable to any case (see Fahriye Erkek and Others, no. 2013/4668, 16 September 2015, § 68; and for a judgment of the ECHR in the same vein, see Velcea and Mazare v. Romania, no. 64301/01, 1 December 2009 § 105).

152. In accordance with the obligation to conduct an effective investigation under Article 17 of the Constitution, even though it is not possible to create a list of minimum procedures applicable to each case, the authorities are expected to take all reasonable measures –with a view to ensuring the effectiveness of the investigation– to collect the evidence concerning the impugned incident, along with the other evidence, including the conduct of a criminalistic expert examination as well as the performance of an autopsy allowing for the preparation of a complete and detailed report, where necessary (see Hüseyin Caruş, § 64; for the judgments of the ECHR, in the same vein, see Tanrıkulu v. Turkey [GC], no. 23763/94, 8 July 1999, § 104; and Gül v. Turkey, no. 22676/93, 14 December 2000, § 89).

153. In the present case, it can be easily said that the material evidence found at the incident scene is of critical importance in the clarification of the incident where there was no eyewitnesses and in the identification of those responsible. The Constitutional Court, considered the failure to investigate this issue, regardless of whether it was capable of leading to a conclusion in terms of the identification of the perpetrator(s), as a deficiency that weakened the effectiveness of the investigation from the very beginning in terms of the obligation to conduct an effective investigation that is not an obligation of result, but of means.

154. In addition, in the present case, the failure to perform a classic autopsy capable of revealing all findings on the body beyond any doubt –regardless of the difficulties in identifying externally all findings on the body due to certain deformations on it– and the conduct of only an external examination caused another deficiency in terms of the circumstances of the incident where the perpetrator(s) could not be identified and there have existed various doubts about its causes.

155. The criminal case initiated after this stage was concluded with an acquittal decision. Following a subsequent criminal complaint with the chief public prosecutor’s office, the second stage of the proceedings were started, and the investigation was continued over the same file, this time with a view to identifying the perpetrator(s). At this stage, the fact that the applicant and the President of the Human Rights Association and a lawyer, acting on behalf of the applicant, applied to the Tunceli Chief Public Prosecutor’s Office and claimed that the deceased had been had been tortured and killed after being a victim of forced disappearance by certain persons serving for the security forces gave a different dimension to the incident.

156. As a matter of fact, similar allegations were raised by the lawyer of an accused during the proceedings carried out by the Elazığ Assize Court, where the lawyer also put forth news published in a newspaper on the matter to substantiate his defence; however, the incumbent court specified that the relevant defence submission did not relate to the subject matter of the case. In addition, during the relevant proceedings, the applicants’ lawyer opposed the extension of the investigation in line with the impugned defence, claiming that the lawyer of the accused attempted to distort the facts.

157. Pursuant to Article 17 of the Constitution, the investigation authorities are not obliged to meet all claims and demands of the relatives of the deceased regarding the course of the incident and collection of evidence within the scope of the investigation (see Yavuz Durmuş and Others, no. 2013/6574, 16 December 2015, § 62; and for a judgment of the ECHR, in the same vein, see Sultan Dölek and Others v. Turkey, no. 34902/10, 28 April 2015, § 81). The investigation procedures to be carried out within the scope of the investigation shall be determined by the investigation authorities. The investigation authorities will determine a reasonable method by separately evaluating the circumstances of each incident.

158. In addition, while it is incumbent on the administrative and judicial authorities to evaluate the evidence related to a death incident, the Constitutional Court may be required to examine how the incident had occurred in order that it can understand the course of the incident and make an objective assessment of the steps to be taken by the investigation authorities as well as the inferior courts in order to clarify all aspects of the death of the applicants’ relative (see Rıfat Bakır and Others, no. 2013/2782, 11 March 2015, § 68).

159. In the present case, regard being had to the fact that at the first stage of the investigation, the applicant did not state during the proceedings before the court that his daughter and he had been summoned by the Tunceli Provincial Gendarmerie Commander to the premises of the gendarmerie command and had been asked some questions there as well as to the fact that his lawyer stated that the argument to the effect that the persons serving for the security forces had been involved in the incident aimed at distorting the truth, the investigation authorities did not have any negligence or fault in the non-expansion of the investigation at the first stage to cover the allegations that the act had been committed by the security forces and some persons acting on their behalf.

160. However, these allegations, which were raised by the applicant and the President of the Elazığ Branch of the Human Rights Association and a lawyer acting on behalf of the applicant on 1993 after the acquittal of the those accused of killing A.Ö. intentionally and when the perpetrator(s) were still being searched for, can be said to make a sense taken together with the above-mentioned defence of the accused before the assize court, and they are arguable in terms of the requirement for the extension of the investigation in the same respect.

161. In addition, the applicant stated that the reason why he had not related the killing of his daughter to the incident that had allegedly occurred prior to her disappearance was the fact that he had not considered it possible that the public officials could have been involved in such incidents.

162. Accordingly, it would not be appropriate for the ordinary course of life to expect the applicant to establish a quick relation between the disappearance and the subsequent finding of his daughter’s body buried in a land and the impugned incidents which he would later notify to the investigation authorities, as well as to immediately bring his allegations in this respect before the authorities.

163. As explained above, although the applicant and those acting on his behalf applied to the investigation authorities in 1993, claiming that his daughter had been killed after being tortured, the relevant authorities failed to take an action to examine the applicant’s allegations for a very long period, namely until 2012. The reason that forced the investigation authorities to take a step in this regard many years later was that the Grand National Assembly of Turkey Human Rights Investigation Commission asked the authorities about the outcome of the investigation after hearing the applicant, and also sent the Commission reports containing the applicant's statements to the authorities and that the applicant filed an application again on the same matter on 1 February 2012.

164. Although it is of greater importance in cases where there is no concrete information obtained from the incident scene or from the corpse about how the incident occurred and whom the perpetrators were, as in the present case, the failure to interrogate the people who are likely to have seen or heard something suspicious about the incident or a considerable delay in their interrogation appears to be a major deficiency in the investigation, weakening the possibility of determining the cause of death as well as identifying those responsible (see Yavuz Durmuş and Others, § 61; and for a judgment of the ECHR, in the same vein, see Sultan Dölek and Others v. Turkey, § 72).

165. In this scope, an immediate investigation to be launched, especially at the time and in the place of incident, is of great importance. It is clear that in the course of time, it will be increasingly difficult to collect evidence and determine how the incident took place due to the inevitable disappearance of evidence, displacement of witnesses and difficulty in remembering what happened (see Yavuz Durmuş and Others, § 62; and for a judgment of the ECHR, in the same vein, see Saygı v. Turkey, no. 37715/11, 27 January 2015, § 48).

166. In the impugned investigation, the fact that the investigation into the allegation that the impugned acts had been carried out by some public officials and some persons acting on behalf of the security forces had been initiated a long time after the incident and that in the absence of any type of investigation, the perpetrators had only been continuously sought in an indefinite manner made it difficult to collect evidence and reach a conclusion in terms of the clarification of the incident.

167. The present application includes the allegations that, as explained in the above-mentioned part of the facts, certain groups alleged to have been affiliated to the security forces had been involved in unidentified incidents on a certain date and in a certain region of the country and that this incident was one of them. In the present case, prior to the steps taken by the abovementioned Investigation Commissions and the publication of certain reports in this respect and discussion of these reports by the public, the investigation authorities’ failure to take a step beforehand to investigate the existence of such groups, whether they had been involved in the acts such as forced disappearance, torture and illegal killing, as alleged, and if so, the degree of their involvement was the most significant element undermining the effectiveness of the investigation.

168. Upon the letter of the Grand National Assembly of Turkey Human Rights Investigation Commission and the application subsequently lodged by the applicant, Hıdır Öztürk, through his lawyer, the competent authorities partially deepened the investigation to cover the allegation that some persons allegedly acting on behalf of the security forces as well as some public officials had been involved in the incident, and took statements of the applicant, some witnesses and some of the suspects in this respect.

169. However, it has been observed that although there were some difficulties in the collection of evidence as mentioned above, certain steps capable of clarifying the incident and identifying those responsible were not taken at this stage, either.

170. One of these steps the authorities failed to take was the failure to deepen the investigation to investigate the time and place of the incident which were reported by certain witnesses and substantiated the allegations that A.Ö. had been forcibly disappeared by official authorities. H.O. who was heard as a witness during the investigation and was serving as the gendarmerie intelligence non-commissioned officer at the material time, maintained that the records pertaining to the disappearance of A.Ö. had been issued and saved by the Mazgirt District Gendarmerie Command and himself.

171. As it was alleged that those who had committed the imputed acts were the third persons who had acted on behalf of the security forces and got their assistance to facilitate their acts and that the organization formed by these persons was illegal, even if A.Ö. had been abducted by force and captured for a long time, this situation may have been concealed by not keeping official records related to it. However, the witness taking office in the intelligence unit stated that the impugned incident had been recorded, and he provided some information concerning the said records.

172. In spite of the time having elapsed and the allegations that the public officials had also been involved in the incident; in the present application, where it was claimed that serious human rights violations such as forced disappear and torturing someone to death, the existence of such a record was not searched. However, all kinds of probabilities should have been taken into account for the identification of the perpetrators of the incident, as well as it should have been taken into consideration that the person providing the relevant information, who was a public officer, was likely to have knowledge about the incident.

173. In such cases of a missing person, where it can be established that the applicant’s relatives had been taken by the security forces to their superiors, the failure to keep a record of their custody and subsequent release helps those who had been involved in the incident of deprivation of liberty to conceal their involvement, to cover up their tracks and to avoid accountability for the fate of the persons concerned (for a judgment of the ECHR, in the same vein, see Er and Others, § 104).

174. As specified in the judgment of Süheyle Aydın, mentioned above, the absence of an official release document included in the file after a person was taken into custody may point to the fact that the State is unable to fulfil its obligation to prove that the relevant persons were released without any harm to their lives and physical integrities and thus the State may be held responsible for the death that occurred after custody.

175. In the present case, as also stated above, although it is not possible at this stage to make an assessment regarding the State’s substantial obligation, since there is not sufficient evidence beyond reasonable doubt that the deceased had been taken into custody, as regards the applicants’ allegation that their daughter had been tortured and killed after being a victim of forced disappearance, if it can be proven with a document that A.Ö. had been held in custody as alleged, this document will undoubtedly have a key role in the identification of those responsible for the subsequent death incident.

176. Along with the failure to search for the existence of such a record, it has also been observed that although the above-mentioned witness had stated that certain security officers had had knowledge about the impugned incident and he had provided identifying information about them, no step was taken to take the statements of these officers during the investigation. Likewise, it has been observed that any step was not taken by the authorities for taking the statement of A.A., who is alleged to be an eye-witness of the incident and who has been residing abroad and gave statement about the impugned incident, as appeared from other documents.

177. Moreover, in spite of existence of clear and certain statements by some witnesses concerning the place and the date where and when A.Ö. was taken to Diyarbakır, it has been observed that the competent authorities failed to try clarifying the incident in this aspect by not attempting to identify persons likely to have had information about the incident or had witnessed it by their position and status.

178. The same situation also applies to the allegation that before the incident, the applicant Hıdır Öztürk and his daughter had been summoned to the Tunceli Provincial Gendarmerie Command where they first interviewed with the regimental commander and subsequently with M.Y. As regards the relevant allegation, the statement of the regimental commander was taken whereby he denied the accusations. However, the accuracy of the said allegation and the regimental commander’s statement was not evaluated by means of identifying the personnel serving in the Command at the relevant time and likely to have knowledge thereof.

179. Nor were the statements of the applicant’s daughter who had been alive taken, as well as the possibility that applicant might have given different and detailed statements for clarification of the incident was not considered.

180. Another deficiency in the investigation was related to the process carried out to investigate the allegations that A.Ö. had been tortured to death. Firstly, according to the post-mortem examination report, dead body of the deceased had been photographed. If so, it could not be understood why such evidence had not been examined to make it clear whether the deformations on the deceased’s face and body had occurred during the time having elapsed after being killed or the deceased had been subject to a treatment as maintained in the allegations.

181. In the present case where there have existed various suspicions as to the causes and circumstances of the impugned incident, the fact that only a post-mortem examination had been performed instead of a classical autopsy does not make it possible to say that all the findings on the deceased’s body, as stated above, could have been identified in such a way enabling the preparation of a complete and detailed report when necessary; therefore, it is beyond any doubt that the relevant photographs had been of critical importance to illuminate the incident in this respect.

182. It should not be inferred from these considerations that the duty of the Constitutional Court is to decide whether an expert report or opinion is required during any investigation or prosecution. It is at the discretion of the investigation authorities to decide on the admissibility of and evaluate the expert reports and similar evidence (see Ahmet Gökhan Rahtuvan, no. 2014/4991, 20 June 2014, §§ 59, 60).

183. Moreover, it is not also for the Constitutional Court to scrutinize the conclusions of the experts and to speculate on the basis of the medical information at its disposal, on the accuracy of the scientific views of these experts (for a judgment of the ECHR, in the same vein, see Yardımcı v. Turkey, no. 25266/05, 5 January 2010, § 59).

184. In cases where it has to review such problems, the Court does not deal with how the relevant cases or investigations would be concluded as well, since it is not its duty. The duty of the Constitutional Court is to determine objectively whether or to what extent the procedural obligation incumbent on the investigation authorities under Article 17 of the Constitution has been fulfilled in the instant case (see Cemil Danışman, § 110).

185. As a matter of fact, it is the duty of administrative and judicial authorities to evaluate the evidence related to how the incident occurred (see Murat Atılgan, no. 2013/9047, 7 May 2015, § 44). In terms of pending proceedings or ongoing investigations, it is not for the Constitutional Court to substitute its own assessment of the facts for that of the inferior courts and, as a general rule, it is for these courts to assess the evidence before them (for the judgments of the ECHR, in the same vein, see Klaas v. Germany, § 29; and Jasar v. the Former Yugoslav Republic of Macedonia, no. 69908/01, 15 February 2007, § 49).

186. For this reason, such determinations regarding the impugned facts of the case within the scope of the obligation to conduct an effective investigation should in no way be considered as an indication that the Constitutional Court has made a comment regarding the innocence or guilt of the individuals. As stated in the general principles, the obligation to conduct an effective investigation is not an obligation of result, but of means. In this regard, while the Constitutional Court makes an assessment regarding all evidence collected or not collected in terms of the obligation to conduct an effective investigation, it makes no comment on the possible positive or negative consequences of this evidence on the clarification of the incident and the identification of those responsible. As a matter of fact, such assessments of the Court relating to the obligation to conduct an effective investigation only include the determination of whether the investigations into the incident had been conducted by collecting the evidence that may be capable of clarifying the incident as a whole or leading to the identification of those responsible, if any, and whether the investigation authorities had taken all reasonable measures to collect this evidence.

187. Besides, the conduct of an investigation solely with a view to establishing or ruling out the involvement of other persons in a suspicious death, instead of revealing how the incident had occurred, is not sufficient to satisfy the procedural obligation (see Turan Uytun and Kevzer Uytun, no. 2013/9461, 15 December 2015, § 89; for a judgment of the ECHR, in the same vein, see Sultan Dölek and Others, § 69). As stated above (see Serpil Kerimoğlu and Others, § 57), the investigation authorities’ obligation also extends to establishing the cause of the death.

188. In this respect, the considerations above as regards the collection of evidence within the scope of the impugned investigation did not concern the determination of the fact that certain persons had been involved or not involved in the incident, but the objective determination of whether or to what extent the investigation authorities fulfilled their obligation, under Article 17 of the Constitution, to conduct an effective investigation that was capable of revealing the cause of the incident and leading to the identification of those responsible.

189. In this context, the Constitutional Court acknowledged that as a rule, in cases where a criminal investigation was launched ex officio on the day when the applicants’ relative died, where there is no doubt in the light of the evidence obtained as a result of a rigorous and speedy action that the investigation authorities as well as the first instance judicial authorities endeavoured to clarify the incident, and where the investigations were capable of revealing the exact cause of the death and leading to the identification and punishment of those responsible, then the investigations and decisions taken cannot be claimed to be insufficient or contradictory, on the condition that there was no deficiency to affect the depth and seriousness of the investigations and prosecutions (see Sadık Koçak and Others, no. 2013/841, 23 January 2014, § 95).

190. In addition, the determination as to whether the investigation was conducted with due diligence at a reasonable speed may vary according to the particular circumstances of the case, the number of the suspects and accused under investigation, the gravity of charges, the complexity of the facts and the existence of elements or difficulties hindering the progress of the investigation (see Fahriye Erkek and Others, § 91).

191. The important point here is to reveal, considering the applicants’ interest in the conclusion of the investigation quickly and rigorously, whether the investigation was conducted at a reasonable speed and with due diligence with a view to maintaining the commitment of the applicants and other individuals in the society to the rule of law and preventing any appearance that the unlawful acts are tolerated or disregarded (see Fahriye Erkek and Others, § 91).

192. In view of the considerations above, it has been understood that the investigation authorities failed to take all reasonable measures expected of them to obtain evidence likely to be collected at the place and time where and when the incident took place. Nor did they subsequently take a concrete step with a view to clarifying the cause of the incident. It has been also observed that the single step taken by these authorities for ensuring the effectiveness of the investigation was to appoint a senior law enforcement officer 18 years later, namely on 16 February 2010, and to expect that the investigation be conducted in a more rigorous and comprehensive manner by this officer.

193. It is seen that the investigation, as a whole, remained insufficient for clarification of the cause of incident leading to the intentional violation of the right to life and for the identification of those who were responsible, even regardless of the applicants’ allegations and the deficiencies of the investigation in this regard.

194. Although the investigation authorities do not have to meet all claims and requests of the applicants regarding the course of the events and collection of the evidence, these authorities cannot be said to have assessed the circumstances of the incident independently of such allegations, to have ex officio determined the investigation procedure and to have subsequently applied a reasonable method in this respect.

195. Besides, although it could not be also found established that the investigation authorities, after determining the investigation procedure ex officio, applied this procedure in a manner undoubtedly leading to the clarification of the incident, to finding the exact cause of the death and to the punishment of those responsible, it has not been observed that they acted rigorously and speedily in order to investigate the applicants’ allegations.

196. Accordingly, the necessary steps for revealing the cause of the impugned death were not taken in a timely manner and sufficiently within the scope of the investigation. It has therefore been concluded that the investigation was not conducted at a reasonable speed and with due diligence, as required by Article 17 of the Constitution, for the collection of all evidence capable of leading to the identification of those responsible and for the prevention of creating an impression that illegal actions were tolerated or no action were taken against them; and that thereby the investigation was procrastinated for a long time without taking any step which might conclude the investigation.

197. Therefore, considering that the impugned investigation where no progress had been made for its not being conducted in an effective manner had no prospect of effectiveness if continued, the applicants lodged an individual application against the relevant investigation process, having realized the situation.

198. Consequently, the Constitutional Court has found a violation of the procedural aspect of Article 17 of the Constitution.

3. Application of Article 50 of Code no. 6216

199. Article 50 §§ 1 and 2 of Law no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

“1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled…

(2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed. In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown. The court, which is responsible for holding the retrial, shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

200. The applicants claimed 150,000 Turkish liras (TRY) and TRY 250,000 for respectively pecuniary and non-pecuniary damages, which is TRY 400,000 in total.

201. It has been concluded that the procedural aspect of Article 17 of the Constitution has been violated.

202. In this respect, a copy of the judgment should be sent to the Elazığ Chief Public Prosecutor’s Office to redress the consequences of the violation.

203. It has been concluded that in order to redress the applicants’ non-pecuniary damages that would not be redressed with the sole finding of a violation, as there has been a violation of the procedural aspect of Article 17 of the Constitution, the applicants will be awarded jointly TRY 50,000 in respect of non-pecuniary damages. In this sense, it has also been taken into consideration that a copy of the judgment will be sent to the Elazığ Chief Public Prosecutor’s Office to redress the consequences of the violation.

204. As a result of the examination of the present application, no violation of the substantial aspect of Article 17 of the Constitution, but only a violation of its procedural aspect was found. The applicants have not submitted any document to the Constitutional Court, substantiating their alleged pecuniary damage. In order for the Constitutional Court to be able to award pecuniary compensation, there must be a causal link between the pecuniary damage alleged to have been sustained by the applicants and their claim for compensation. Since the applicants have failed to submit any document in this respect, their request for pecuniary compensation must be rejected.

205. The total court expense of TRY 1,998.35, including the court fee of TRY 198.35 and the counsel fee of TRY 1,800, which is calculated over the documents in the case file, must be reimbursed to the applicants jointly.

V. JUDGMENT

The Constitutional Court UNANIMOUSLY held on 21 April 2016 that

A. 1. Alleged violation of the right to a fair hearing within the scope of the right to a fair trial safeguarded by Article 36 of the Constitution be DECLARED INADMISSIBLE as being manifestly ill-founded;

2. Alleged violation of the procedural aspect of Article 17 of the Constitution be DECLARED ADMISSIBLE;

B. The procedural aspect of Article 17 of the Constitution was VIOLATED;

C. A copy of the judgment be SENT to the Elazığ Chief Public Prosecutor’s Office to redress the consequences of the violation of the procedural aspect of Article 17 of the Constitution;

D. The applicants be AWARDED, in respect of non-pecuniary damages, TRY 50,000 jointly for the violation of the procedural aspect of Article 17 of the Constitution; and their other claims for compensation be REJECTED;

E. The total court expense of TRY 1,998.35, including the court fee of TRY 198.35 and the counsel fee of TRY 1,800, be REIMBURSED to the applicants;

F. The payment be made within four months as from the date when the applicants apply to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date; and

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