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THE FACTS

[9-38] The applicant, who was a university student and living in Eskişehir with his family at the material time, complained that he had been heavily beaten by police officers and a civil person at a demonstration he had participated in within the scope of the Gezi Park events. In this regard, he obtained a medical report from the military hospital, stating that he had been battered and thus suffered loss of teeth. The chief public prosecutor’s office (“the prosecutor’s office”) launched an investigation into the incident. As a result of the disciplinary investigation conducted against the police officers, three officers who had been involved in the incident were given disciplinary punishment of suspension of promotion.

The prosecutor’s office issued a decision of non-prosecution with respect to four police officers who had allegedly injured the applicant. The applicant, whose challenge against the decision of non-prosecution was dismissed by the magistrate judge, lodged an individual application.

In addition, as a result of the criminal case, a police officer was acquitted; two police officers were imposed judicial fines but the pronouncement of the said judgment was suspended; and the civil person in question was imposed a judicial fine. The sentences of all accused were reduced by 1/6 through discretionary mitigation in accordance with Article 62 of the Turkish Criminal Code. The applicant’s appeal against the suspension of the pronouncement of judgment was dismissed by the assize court.

The applicant lodged an individual application in this regard. He also challenged the acquittal of a police officer as well as the final conviction of the civil person.

V. EXAMINATION AND GROUNDS

39.          The Constitutional Court, at its session of 25 May 2019, examined the application and decided as follows.

A. The Applicant's Allegations and the Ministry's Observations

40.          The applicant maintained;

i.                that following the investigation initiated by the public prosecutor's office regarding the incident during which he was seriously injured by law enforcement officers and a civilian, the writ addressed to the Security Directorate for the identification of the perpetrators and their arrest dated 10 June 2013 was not answered; that following the failure to respond to the second writ dated 6 February 2014, the applicant's denunciation of misconduct was concluded with a decision for non-prosecution; and that the Security Directorate’s failure to provide the requested information rendered the investigation ineffective;

ii.             that the conduct of the investigation by police officers working in the same judicial and administrative law enforcement unit as the perpetrators did not comply with the principle of independence and impartiality; that the indifference, especially in the collection of evidence, such as the facts that the CCTV footage was not collected, that no effort was made to identify the witnesses, and that a crime scene investigation was not carried out, proved this point;

iii.           that the decision of non-jurisdiction rendered by the Criminal Court on the grounds that the relevant act constituted the offence of torture was annulled without stating any grounds;

iv.            that the imposition of the judicial fines at the lower limit for all the defendants and the suspension of the pronouncement of judgment in respect of the defendants who were police officers amounted to a sanction far from deterrence seeking to protect the torturers, and that such a sanction was a disappointment for a legal order based on human rights, as well as, for the applicant himself;

v.              that the decision rendered upon his appeal against the judgment on the suspension of the pronouncement of judgment lacked reasoning;

vi.            that the non-prevention of the other defendants' acts by the police officer at the incident scene in respect of whom an acquittal decision was delivered was against the State's obligation to protect the applicant, that the acts of the person in question amounted to misconduct or failure of the civil servant to report an offence;

vii.         and lastly, that even though the perpetrators' acts constituted the offence of torture, they were considered as if they had been acts of simple injury, that alongside his right to a fair trial, both the substantive and procedural aspects of the prohibition of ill-treatment had been violated on account of the failure of appellate authorities to address his legal arguments brought forward against this assessment.

41.          In its observations, the Ministry stated that the prosecutor's office had secured the CCTV footage without delay; that the Inspection Board of the Security Directorate had initiated an investigation against the relevant police officers; that a criminal case had been filed against three police officers and a civilian who were found to have battered the applicant; that the investigation had been completed in eleven months, and as a result, the defendant H.E. had been acquitted while the other three defendants, namely, two police officers and one civilian had been convicted; that the pronouncement of judgment had been suspended with respect to the police officers; that due to the criminal background of the civilian, such a decision had not been rendered in respect of him; and that the investigation had been effective and adequate.

B. The Court's Assessment

42.          Article 17 of the Constitution, in so far as relevant, is as follows:

"Personal inviolability, physical and moral existence of the individual

Article 17 - 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 ill-treatment; no one shall be subjected to penalties or treatment incompatible with human dignity."

43.          The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). Since the alleged violation of the applicant's right to a fair trial falls within the scope of the procedural aspect of the prohibition of ill-treatment, no separate examination has been made in terms of the right to a fair trial.

1.              Admissibility

a.              As regards the Decision of Non-Prosecution Issued in Respect of the Officers Not Responding to the Writ of the Public Prosecutor's Office and as regards the Acquitted Police Officer

44.          The applicant alleged that the prohibition of ill-treatment had been violated on account of the decision of non-prosecution issued within the scope of the investigation initiated into his injury during the Gezi Park incidents, where the public prosecutor's office communicated a writ dated 10 June 2013 to the Security Directorate requesting the identification and arrest of the perpetrators, as well as on account of the acquittal of the police officer H.E. as a result of the proceedings brought against him.

45.          Within the scope of the prohibition of ill-treatment, in the event that the individual has an arguable claim within the framework of the State's procedural obligation to conduct an effective investigation, the State must carry out an effective official investigation capable of identifying and punishing those responsible. The main purpose of such an investigation is to ensure the effective implementation of the law preventing such attacks and to hold the perpetrators accountable (see Cezmi Demir and Others, no. 2013/293, 17 July 2014, §§ 110, 111).

46.          On the other hand, any allegation of ill-treatment cannot be expected to avail of the protection provided by Article 17 § 3 of the Constitution and the positive obligations imposed on the State pursuant to Article 5 of the Constitution. In this context, the claims of ill-treatment must be substantiated with appropriate evidence. In order to confirm the accuracy of the allegations, existence of evidence beyond any reasonable doubt is necessary. Evidence to this extent may consist of sufficiently serious, clear, and consistent indications or certain presumptions that have not been proven otherwise (see Cezmi Demir and Others, § 95).

47.          The purpose of the criminal investigations is to ensure that the legal provisions protecting the corporeal and spiritual existence of the individual are effectively implemented and that those responsible are held accountable. This is not an obligation of result, but of means. On the other hand, the assessments mentioned here do not necessarily mean that Article 17 of the Constitution confers on the applicants the right to request the trial or punishment of third parties for a criminal offence or the duty to conclude all trials with a decision on conviction or a decision proving for a certain punishment (see Cezmi Demir and others, § 77).

48.          It has been understood that the applicant was injured in various parts of his body while returning home from a demonstration held within the scope of the Gezi Park evets, and that an official investigation was initiated immediately. It has been observed that the said investigation was joined with the investigation no. 2013/15785 carried out regarding the Gezi Park events; that within the scope of the joined investigation file, a total of seven files were dealt with together, and attempts were made by the public prosecutor's office to identify the suspected police officers. Mobile Electronic System Integration (MOBESE/CCTV) footage of the incident scene, cell phone signal data of the parties were examined and the statements of the suspects and victims were taken. The public prosecutor's office requested that the relevant procedure be implemented with regard to the unanswered writ.

49.          In the report issued on 28 February 2014, it was stated that the submission report of the Inspection Board of the Security Directorate was erroneously included in another file and that the public prosecutor in charge of the relevant file noticed this situation and appended the report to the correct file. In the investigation conducted by the public prosecutor's office on the said incident, it was established that this error did not cause loss of rights in a way such as the expiry of the statutory limitation period and that the courthouse and police officers did not have an intent of misconduct.

50.          There is no footage captured by the cameras indicating that the police officer H.E., who was acquitted, battered the applicant and the Hotel Operator, who was the only eyewitness to the incident, stated that the third police officer who came later had not taken any action against the applicant. The other two convicted police officers also stated that H.E. had not battered the applicant.

51.          Having regard to the facts that there is no indication suggesting that these grounds laid down in the decision of non-prosecution of the public prosecutors' office and in the judgment of the Court on acquittal did not comply with the information and findings in the investigation; and that the applicant expressed that he was unable to physically describe the perpetrators, there is no reason requiring departure from the conclusion reached by the first instance judicial authorities.

52.          The applicant alleged that even though the acquitted police officer H.E. did not commit any act that constituted ill-treatment, his indifference towards other defendants' actions was not compatible with the State's obligation to protect. As it has been understood from the statements of the witness E.G. that H.E. who was a goitre patient, who had undergone an appendicitis surgery approximately two months ago and who had difficulty wearing the gas mask, which he did not know exactly how to use, was having difficulty in moving due to his health condition, the alleged violation of the obligation to protect could not be substantiated.

53.          For the reasons explained above, this part of the application must be declared inadmissible for being manifestly ill-founded without any examination in terms of other admissibility criteria.

b.             As regards the Convicted Accused

54.          In the present case, it must be examined whether the suspension of the pronouncement of judgment in respect of the two police officers and the judicial fine imposed on a civilian as a result of the criminal proceedings, provided a sufficient and effective redress in respect of the applicant, i.e. whether the applicant lost his victim status.

55.          As protectors of the laws enacted to protect the lives and physical and mental integrity of persons within their jurisdiction, judicial authorities need to be determined to impose sanctions on those responsible and not to allow explicit disproportionality between the severity of the imputed offence and the sentence imposed. Otherwise, the positive obligation of the State to protect the physical and mental integrity of individuals by way of laws will not be fulfilled (see Cezmi Demir and Others, § 77).

56.          In accordance with this principle explained above, inasmuch as the admissibility examination as to whether the applicant's victim status continues overlaps with the examination on the merits, it has been concluded that these examinations should be carried out together.

57.          The alleged violation of the prohibition of torture and ill-treatment must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

2.              Merits

58.          The principles of the Court with regard to the prohibition of ill-treatment during the use of force in meetings and demonstrations marches were explained in the case of Özge Özgürengin (see ibid. § 46-54, 70-80).

59.          The 9^th Chamber of the Eskişehir Criminal Court convicted the applicants for the offence of simple injury. As indicated thereby, it was found established that the applicant was subjected to ill-treatment by three persons, two of whom were law enforcement officers. The Court has found no reason to depart from the conclusion of the inferior courts that acknowledged the ill-treatment.

60.          The applicant's other allegations under this head concern the conduct of the investigation against the law enforcement officers by other law enforcement officers under the same administrative structure, who were neither independent nor impartial, resulting in indifference in the evidence-collecting procedure, such as the failure to obtain the CCTV footage, lack of effort to identify the witnesses, and failure to carry out a crime scene investigation. The last part of the applicant's allegations focused on the point that though the relevant act constituted the offence of torture, the imposition of judicial fine as an alternative sanction for the offence of intentional injury at the lower limits raised a serious issue in terms of the deterrence of the said sanction.

61.          Therefore, the scope of the examination has been limited to whether the obligations as per the admissibility and merits within the context of the prohibition of ill-treatment were fulfilled, depending on whether the sanction imposed on the perpetrators was sufficient.

62.          In the present application, the applicant alleged that he had been battered by some law enforcement officers and civilians while he was returning home after participating in the demonstration held in Eskişehir within the scope of the Gezi Park events. The medical reports indicating signs of battery and coercion on various parts of the applicant's body and luxation on his three teeth, as well as the CCTV footage demonstrate that the applicant's allegations reached an arguable level. In addition, the initiation of an investigation and the filing of the criminal proceedings by the public prosecutor's office also confirm this.

63.          The police officers took the applicant's statement at the hospital where he was treated immediately after the incident. This shows that an investigation was initiated ex officio and immediately.

64.          It has been understood that the police officers working under the same administrative structure as the suspected law enforcement officers took part in the investigation and that the statements were taken by police officers. Even though the applicant alleged that the commission of the investigation against the police officers, again to police officers resulted in an incomplete collection of evidence, CCTV footage of the incident scene and security camera footage of a hotel and a bakery were provided. It has been considered that the applicant's allegation that the investigation had been carried out incompletely remained abstract as it has been understood that the applicant had no explanation as to which witnesses had not been identified and that the deficiencies mentioned by the applicant were eliminated by the statements of other persons identified by the prosecutor's office.

65.          There was no evidence indicating that the applicant was not able to effectively participate in the investigation.

66.          The applicant alleged that even though the act to which he had been subjected constituted the offence of torture pursuant to Law no. 5237, the fact that the perpetrators were convicted of the offence of intentional injury, the penalty for which is much lighter, demonstrated that the ill-treatment was tolerated.

67.          As regards the allegations of ill-treatment, in the event that the case is before the the inferior courts, liability within the meaning of criminal law should be separated from the liability within the meaning of the Constitution and international law. The jurisdiction of the Constitutional Court is limited to the fundamental rights and freedoms enshrined in the Constitution and those within the scope of the European Convention on Human Rights and the protocols thereto to which Turkey is a party (see Cezmi Demir and Others, § 96). Therefore, an examination as to which offence in criminal law constitutes the act recognized as ill-treatment in the context of human rights does not directly fall within the jurisdiction of the Constitutional Court.

68.          Although the Constitutional Court is not bound by the findings of the inferior courts, under normal circumstances, there must be strong reasons to depart from the conclusions of these courts in relation to the material facts (see Cezmi Demir and others, § 96). In accordance with the Court of Cassation’s case-law under the title "Relevant Domestic Law", it has been understood that the act that caused the applicant to lose his tooth constituted the offence of qualified injury. The determination of which act of the perpetrator had caused the said injury is an important element that may directly affect the amount of sentence, hence the limits with regard to the suspension of the pronouncement of judgment and suspension of the execution of sentence.

69.          As noted in Court’s judgments, -for the purposes of prevention and improvement- the rules in the provisions regarding criminal sanctions must be proportionate and fair (see the Court's Judgment, no. E.2010/104, K.2011/180, 29 December 2011). The principle of proportionality requires a reasonable relationship between the protection of the victim and the punishment of the perpetrator. In other words, in the provisions providing for deprivation of rights, a balance must be struck between the unlawful act and the sanction imposed in accordance with the principles of justice and equality. Moreover, the aim pursued by the sanctions in question is to ensure the individual's rehabilitation and subsequent reintegration into society following the offence he/she has committed. As a matter of fact, whereas Article 13 of the Constitution provides that the restrictions on the fundamental rights and freedom's restrictions shall not be contrary to the requirements of the democratic order of the society and the principle of proportionality, Article 3 of Law no. 5237 stipulates that the offender may be subject to punishment and imposition of security measures in proportion with the severity of the acts committed. (see Tahir Canan, § 36).

70.          In the assessment as to whether the suspension of the pronouncement of judgment, a concept introduced by the legislator for the individual's reintegration into society, will be applied, the deterrence of the sanction must be interpreted in proportion to the nature of the offence and to the extent to which the victim is affected by the offence in question within the framework of the particular circumstances of each case, without overlooking whether the victim status of the victim of ill-treatment has disappeared or not.

71.          Among the notions of torture, ill-treatment, and treatment incompatible with human dignity categorized under Article 17 § 1 of the Constitution, it must be determined where the act suffered by the applicant, who was injured in more than twenty parts of his body and lost his three teeth, falls into. As a result of this finding, it must be considered whether the sanction imposed by the inferior court is proportional to the act of ill-treatment.

72.          Having regard to the fact that the act in question was committed in the middle of the street by more than one person with sticks and batons, which are considered as weapons; that the fractures and dislocations in the applicant's teeth, per se, were of the nature that could not be treated with simple medical intervention; and that this situation might further damage the honour of the applicant, even though the injuries of the applicant might be treated with simple medical intervention except for those on his teeth, it has been concluded that the act in question falls within the scope of the prohibition of torture.

73.          In the reasoning for the decision, it was not stated on what grounds the imposition of judicial fines at the lower limits were favoured for three of the perpetrators among the alternative sanctions of imprisonment and judicial fines. Moreover, the amount of the fine imposed was calculated on the basis of the minimum limit of TRY 20 per day. Applying discretionary mitigation provisions, the relevant court imposed a fine of TRY 3,000, yet suspended the pronouncement of the judgment in respect of the defendants who were police officers, thereby concluding the proceedings. Pronouncement of the judgment in respect of the applicant who was not a civil servant was not suspended on account of his criminal records.

74.          It has been established that the application of judicial fines or the suspension of the pronouncement of judgment in respect of the law enforcement officers by way of repeating the reasons in the law in an abstract manner was a sanction that was not proportionate with the prohibition of torture on account of the unnecessary battery of the applicant, in respect of whom no investigation was initiated as there had been no finding that he had disrupted the peaceful nature of the demonstration march while dispersing, by the law enforcement officers tasked with maintaining the order at night and who represent the State on the streets.

75.          In the event of disproportionality between the offence committed and the sentence imposed, or of impunity, there would be no deterrent effect that would prevent such actions, and as a result, the State's positive obligation to protect the physical and mental integrity of persons through administrative and legal legislation would not be fulfilled.

76.          Accordingly, as it has been established in the present case, that a judicial fine was imposed disproportionately and the pronouncement of the judgment was suspended in such a way that would mitigate the consequences of the act rather than emphasizing that the acts that constitute ill-treatment cannot be tolerated, it must be decided that the procedural obligation to effective investigation under the prohibition of torture was violated.

77.          On account of the fact that the decision on suspension of the pronouncement of judgment in respect of the two police officers and the judicial fine imposed on the civilian perpetrator S.K. did not afford sufficient redress to the applicant, it cannot be stated that the applicant lost his victim status. For this reason, even though it has been established that the applicant suffered damages as a result of the decisions of the inferior courts in breach of the State's negative obligation, it must be decided that the substantive aspect of the prohibition of torture has also been violated, due to the fact that it has been understood that the defendants faced insufficient sanction in view of their acts. Thus, the applicant did not lose his victim status.

78.          Consequently, the Constitutional Court has found violations of the substantive and procedural aspects of the prohibition of torture safeguarded by Article 17 of the Constitution.

3.              Application of Article 50 of Code no. 6216

79.          Article 50 §§ 1 and 2 of the Code 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."

80.          The applicant requested TRY 200,000 for non-pecuniary damages on account of the violation of the prohibition of ill-treatment.

81.          In the judgment of Mehmet Doğan ([Plenary], no. 2014/8875, 7 June 2018), the Court set out the general principles as to the determination of how to eliminate the violation in the event of finding a violation.

82.          It was emphasized, in brief, in the judgment of Mehmet Doğan that in order to determine the appropriate way of redress, the source of the violation must be determined in the first place. Accordingly, in cases where a court decision leads to a violation, as a rule, it is decided that a copy of the decision be sent to the relevant court for retrial in order to redress the violation and its consequences in accordance with Article 50 § (2) of Code no. 6216 and Article 79 (a) of the Internal Rules of Court of the Constitutional Court (see Mehmet Doğan, §§ 57, 58).

83.          In the present application, it has been concluded that the substantive and procedural aspects of the prohibition of torture regulated under Article 17 of the Constitution were violated.

84.          In this connection, in order to eliminate the consequences of the violation of the prohibition of torture, a copy of the judgment must be sent to the 9^th Chamber of the Eskişehir Criminal Court (abolished) (E.2014/805, K.2014/737) for the retrial of the defendants S.B., Ş.G. and S.K.

85.          In the present application, on account of the violation of the prohibition of ill-treatment under its both substantive and procedural aspects, the applicant must be paid the net amount of TRY 25,000 in respect of his non-pecuniary damages which cannot be sufficiently compensated by the sole finding of a violation.

86.           The total court expense of TRY 3,147.50, including the court fee of TRY 672.50 and the counsel fee of TRY 2,475 calculated on the basis of the case file, must be paid to the applicant.

VI. JUDGMENT

For these reasons, the Constitutional Court UNANIMOUSLY held on 29 May 2019 that

A.            1. Alleged violation of the prohibition of torture in respect of the officers not responding to the writ of the public prosecutor's office and the police officer who was acquitted be DECLARED INADMISSIBLE;

2.              Alleged violation of the prohibition of torture in respect of the defendants who were convicted be DECLARED ADMISSIBLE;

B.            The substantive and procedural aspects of the prohibition of torture safeguarded by Article 17 § 3 of the Constitution were VIOLATED;

C.            A copy of the judgment be REMITTED to the (abolished) 9^th Chamber of the Eskişehir Criminal Court (E.2014/805, K.2014/737) for retrial in order to redress the consequences of the violation of the prohibition of torture;

D.            The applicant be AWARDED, in respect of non-pecuniary damages, TRY 25,000, and her other requests for compensation be REJECTED;

E.             The total court expense of TRY 3,147.50 including the court fee of TRY 672.50 and the counsel fee of TRY 2,475 be REIMBURSED to the applicant;

F.              The payment be made within four months as from the date when the applicant applies 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 the four-month time limit to the payment date;

G.            A copy of the judgment be SENT to the Ministry of Interior for its notice;

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