REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 SECOND SECTION

JUDGMENT

ÜMİT ÖMÜR SALAR

(Application no. 2014/187)

23 March 2017

THE FACTS

[8-32] Having been graduated from the Kuleli Military High School, the applicant dropped out the Air Force Academy on 24 May 2010 of his consent, alleging that some military officers and some 4th class students defined as leader students at the camp of student selection flight which he had attended in August 2009 had put physical and psychological pressure on him.

Then the applicant filed a criminal complaint with the Ankara Chief Public Prosecutor’s Office against some military officers in charge at the camp and during the school term and some 4th class students due to the physical and psychological pressure put on him. The Chief Public Prosecutor’s Office referred the file to the Military Prosecutor’s Office of the Northern Sea Area Command, stating that the subject matter of the complaint falls within the scope of military justice.

The applicant alleged that E.A. who was a student of the 4th class at the camp of student selection flight applied on him various methods of physical pressure such as leaning his face against the pole again and again, holding him for hours in the chair position called “Chinese sitting”, making him somersault for 3 kms, and methods of psychological pressure in such manners that “You are not a decent person, you are unprincipled, why are you so assertive and resistant? You will end up leaving even if you go to school…”. He also maintained that porno cds and ladies underwear were put in his case that no action was taken even though he had informed the administration of these issues, and that the commanders unjustly imposed disciplinary punishments on him.

Many of the persons whom the applicant requested to be heard as witnesses confirmed some statements of the applicant. The witnesses İ.A, H.B. and C.O.K alleged that they had been also subject to similar pressures.

On the other hand, it appears from the documents in the investigation file that fifteen persons including the applicant voluntarily dropped out the Air Force Academy during 2009 – 2010 educational year.

The Military Prosecutor’s Office decided not to prosecute, considering that in some parts of the applicant’s allegations there was no witness, that no complaint had been available in the records of the Air Force Academy and that there has been no report of battery, and stating that even if some alleged actions had been performed, the criminal complaint was not filed in due time in respect of the injury and defamation. The Military Prosecutor’s Office emphasized that there was no superior-subordinate relationship among the military students, and in this context the applicant was not under the obligation to carry out the instruction of the upper class students. In the decision rendered by the Military Prosecutor’s Office, it was stated that no evidence was found as to expression of the defamatory words with the intent to make the applicant leave school. In addition, it was recalled that in the disciplinary punishments imposed on the applicant, no evidence was found as to defamation made with criminal intent and that administrative remedies might be resorted against administrative disciplinary punishments.

In the decision of non-prosecution, it was stated that no evidence could be found as to the fact that the actions, which were assessed individually, were the output of a common will and part of a criminal intent aiming at causing the applicant to leave school, and also that the statements of the witnesses who had been called by the applicant and who had left the Military Academy for various reasons could not go beyond abstract assessments. In conclusion, the Military Prosecutor’s Office rendered a decision of non-prosecution in respect of all the suspects on 30 September 2013, stating that the applicant exercised his right to resign without being under pressure and that no concrete fact and evidence could be found as to the fact that there was a systematic sequence of actions covering the command echelon to ensure the applicant’s leave from the school.

The objection made against the decision of the Military Prosecutor’s Office was rejected by the judgment rendered on 11 November 2013 by the Military Court of the 1st Army Command.

It was included in the report drawn up upon the submission of numerous petitions of similar content to the Petition Committee of Grand National Assembly of Turkey that there were complaints regarding the understanding which aims to decrease the number of military staff systematically after having recruited excessive number of personnel for the Air Force Academy. It was also indicated that it was a negative situation for public interest that the distinguished human resource who had been carefully selected in high school years and whose placement had been under the initiative of the administration in all aspects could not be integrated into the profession at high rates.

V.   EXAMINATION AND GROUNDS

33. The Constitutional Court, at its session of 23 March 2017, examined the application and decided as follows.

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

34. The applicant maintained that having graduated from the Kuleli Military High School, he had attended the cadet selection flights camp of the Air Force Academy; that subsequently, he had continued his education at the Air Force Academy; that however, in the camp and during his subsequent education at the Air Force Academy, he had been subject to physical and psychological pressure by some military officers and some 4^th class students defined as “leader” students; that he had voluntarily left the school since he could not stand the psychological and physical pressure put on him and he had not wanted others to say “He was dismissed from school”; that the treatment and punishments towards him had been degrading; that he had had to undergo a psychological treatment due to the incidents he had experienced in civilian life as well; and that his complaints regarding this issue remained inconclusive. He therefore claimed pecuniary and non-pecuniary compensation.

35. The Ministry, in its observations, primarily made an assessment as to admissibility and stated that the Court had no jurisdiction ratione temporis, specifying that the acts complained of by the applicant had occurred approximately two years before the introduction of the mechanism of individual application to the Constitutional Court. The Ministry, in its observations on the merits, reiterated that in order for an act to fall into the scope of Article 17 § 3 of the Constitution, it must attain the minimum level of severity. In addition, reference was made to the case-law of the Constitutional Court, and it was specified that given the alleged physical and moral effects of the alleged acts, their duration and intensity, the minimum level of severity had not been exceeded, and that therefore the application must be examined from the standpoint of Article 17 § 1 of the Constitution. In this context, it was stated that the applicant’s complaints must be regarded as mobbing and that the individual application lodged after the exhaustion of only criminal remedies, instead of filing an action for compensation, must be declared inadmissible for non-exhaustion of legal remedies.

B.       The Court’s Assessment

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

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

…

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

37. Article 5 of the Constitution, titled “Fundamental aims and duties of the State”, in so far as relevant, provides as follows:

“The fundamental aims and duties of the State are to safeguard … the Republic and democracy, to ensure the welfare, peace, and happiness of the individual and society; to strive for the removal of political, economic, and social obstacles which restrict the fundamental rights and freedoms of the individual in a manner incompatible with the principles of justice and of the social state governed by rule of law; and to provide the conditions required for the development of the individual’s material and spiritual existence.”

1.        Admissibility

a.        Jurisdiction ratione temporis

38. Pursuant to Provisional Article 1 § 8 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, the start of the Constitutional Court’s jurisdiction ratione temporis shall be 23 September 2012 and it shall examine the individual applications to be lodged against the last actions and decisions that were finalized after that date (see Zafer Öztürk, no. 2012/51, 25 December 2012, § 17).

39. In terms of the examination of the alleged violations of the prohibition of torture and ill-treatment within the scope of Article 17 § 3 of the Constitution, the Constitutional Court has continued to examine the applications, even if the incidents had occurred before 23 September 2012 when the individual applications were started to be received, in the event that the investigation or the prosecution process was concluded after that date (see Cezmi Demir and Others, no. 2013/293, 17 July 2014; and Ali Rıza Özer and Others [Plenary], no. 2013/3924, 6 January 2015). Accordingly, it has been concluded that the application has been within the temporal jurisdiction of the Constitutional Court.

b.       Alleged Violations of the Prohibition of Torture and Ill-treatment

40. Article 17 of the Constitution safeguards everyone’s right to protect and improve their corporeal and spiritual existence. Paragraph 3 thereof provides that no one shall be subjected to “torture” or “mal-treatment” and that no one shall be subjected to “penalties or treatment incompatible with human dignity”. The relevant paragraph specifically ensures the protection of human dignity (see Cezmi Demir and Others, § 80). 

41. In this scope, the prohibition of torture, mal-treatment, as well as the prohibition of penalties or treatment incompatible with human dignity prescribed in Article 17 of the Constitution is absolute, and in this context, the officials who resort to the use of force by exercising the public authority entrusted to them are not allowed to harm the physical and mental integrity of the individuals in any way (see Cezmi Demir and Others, § 81).

42. In addition, Article 17 of the Constitution, when read in conjunction with Article 5 of the Constitution, also imposes on the State an obligation to take measures to prevent individuals from any torture and mal-treatment or any treatment incompatible with human dignity. This obligation is also applicable to the acts committed by third persons. Accordingly, the State’s obligation may arise in case of any failure to take the reasonable measures to prevent any ill-treatment that is known or ought to be known by the authorities (see Cezmi Demir and Others, § 82).

43. In the examination of complaints concerning the prohibition of torture and ill-treatment, the material and procedural aspects of the prohibition should be considered separately, taking into account the negative and positive obligations of the State. In this context, the material aspect of the prohibition does not only include the obligation not to subject individuals to torture, inhuman or degrading treatment or punishment (negative obligation). There also exists a positive obligation to establish effective preventive mechanisms to prevent individuals from being subjected to such treatments.

44. The procedural aspect of the prohibition of torture and ill-treatment includes the obligation to conduct an effective investigation capable of leading to the identification and punishment of those responsible for the alleged violations of this prohibition, which are “arguable” and “raise reasonable suspicion” (positive obligation).

45. However, all allegations of ill-treatment shall not avail of the protection specified in Article 17 § 3 of the Constitution as well as of the positive obligations it imposes on the State. In this scope, allegations of ill-treatment should be supported by appropriate evidence. In order to establish the authenticity of the alleged incidents, reasonable evidence is needed rather than a suspicion based on an abstract allegation. Any evidence within this scope may consist of serious, clear and consistent indications or certain presumptions that have not been proven otherwise. In this regard, the attitudes of those involved in the process should also be taken into consideration when evaluating the evidence (see Cezmi Demir and Others, § 95).

46.  Regard being had to the fact that the applicant’s allegation that he had been subject to physical and psychological pressure by some military officers and some 4^th class students to leave the Air Force Academy was partly supported by witness statements and that such allegations in military academies have increased according to the report issued by the General Assembly of the Petition Committee of Grand National Assembly of Turkey, there is no doubt that the applicant’s allegations are arguable. It must also be taken into consideration that it is very difficult to raise allegations of ill-treatment and to support these allegations by evidence and witness statements during studentship in the Air Force Academy where there is a chain of command. Accordingly, it is clear that the available findings have been sufficient to classify the alleged violation as arguable.

47. In addition, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 17 § 3 of the Constitution. This minimum threshold is relative and must be determined in accordance with the particular circumstances of each case. In this scope, certain factors such as duration of the treatment, its physical and psychological effects and the victim’s sex, age, and health condition are of importance. In addition, reason and purpose of the said treatment must also be taken into account. Whether the alleged ill-treatment had been imposed during an excited and strong emotional situation should be taken into consideration, as well (see Cezmi Demir and Others, § 83).

48. In the present case, the fact that the alleged treatment against the applicant had affected his physical and psychological values and resulted in stress, sorrow and similar situations for him evoked the concept of degrading treatment in view of especially these aspects. However, in order for the alleged treatment to be regarded as torture, mal-treatment or degrading treatment or punishment, it should have attained an important severity in terms of its manner and method and in particular its physical and physiological effects, in addition to the applicant’s subjective qualifications (see Yusuf Burak Çelik, no. 2013/2538, 20 November 2014, § 24).

49. In the light of the findings above, it has been understood that the applicant had been subject to physical and psychological pressure by some military officers and some 4^th class students to leave the Air Force Academy, and that therefore the applicant lodged an application for the alleged violation of Article 17 of the Constitution in this regard. The applicant's claim that he had been systematically subject to the alleged treatments which had not been based on individual incidents is the most important element to be taken into consideration in the assessment of the minimum threshold. In particular, the hierarchical order and the content of the military training practices may lead to an environment of ill-treatment on account of the existing military structure and systematic continuity or may be perceived by students as such. However, such a possibility should not lead to the questioning of the difficulties inherent in the military profession and the methods and content of the training applied to accustom individuals to these difficulties. Given that the applicant's allegations concerned his having been systematically and deliberately intimidated and forced to leave the school, it has been understood that there was a situation that transcended the specific training and difficulties of the military profession.

50. As a result of the evaluation of the physical and moral effects, duration and intensity of the acts alleged by the applicant, it has been understood that the alleged acts against the applicant referred to a systematic treatment and that they were not individual incidents. In view of the manner and method of the alleged treatment and in particular its physical and physiological effects on the applicant, it has been concluded that given the fact that the incidents alleged by the applicant had been beyond the difficulties inherent in the military profession as well as beyond an attempt to accustom the applicant to these difficulties and particularly given the applicant’s success in the Kuleli Military High School and sports, his allegations should be examined within the scope of Article 17 § 3 of the Constitution.

51. In the examination of complaints concerning individual applications, the Constitutional Court’s role is of secondary nature; and in certain circumstances, our Court is required to act very meticulously in cases where it is inevitable for it to assume the role of the first instance court and the Chief Public Prosecutor’s Office –in the present case, the Military Prosecutor’s Office. There is a risk of encountering such a situation in the examination of complaints made under Article 17 of the Constitution. In cases of alleged violations of the right to life and the prohibition of ill-treatment safeguarded by the same article, the Constitutional Court is expected to carry out a thorough examination on the matter. However, as it is, in principle, for the public prosecutors (military prosecutors) and the inferior courts to assess the evidence during the investigation and prosecution processess, the Constitutional Court’s duty is not to substitute its assessment for that of the mentioned authorities on the material facts. Therefore, the first thing to be done is to assess whether the allegations included in the individual application file and the evidence adduced in the investigation and/or prosecution files are sufficient in view of the substantive aspect of the allegations. Accordingly, the Constitutional Court has no duty to reach any finding of crime or innocence in the context of criminal responsibility. In addition, although the findings of the inferior courts are not binding for the Constitutional Court, under normal circumstances, there must be strong reasons to depart from the conclusions of the inferior courts regarding the material facts.

52. There is no sufficient evidence in the investigation file to carry out an examination as to the substantive aspect of the alleged acts to which the applicant had been subject to systematically and considered to have exceeded the minimum threshold of severity. Although there have been arguable allegations to the effect that the said acts had been inflicted systematically to intimidate the applicant, the information and findings in the investigation file are not sufficient to examine the substantive aspect of the allegations. However, it has been concluded that the allegations defined as arguable should be examined under the procedural aspect of the prohibition of ill-treatment

53. The alleged violation of the procedural aspect 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

54. It is stressed in Article 17 § 3 of the Constitution that the prohibition of ill-treatment should not be violated, regardless of the acts of the victims or the inducement of the authorities. No matter how great the importance of the inducement, torture, mal-treatment or treatment incompatible with human dignity is not allowed even in the most difficult circumstances such as the right to life. Pursuant to Article 15 § 2 of the Constitution, this prohibition cannot be suspended even in times of war, mobilization, martial law or a state of emergency. The philosophical basis that reinforces the absolute nature of the said right does not allow for any exceptions or justifying factors or interests to be weighed, regardless of the individual’s act and the nature of the offense (see Cezmi Demir and Others, § 104).

55. 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).

56. The aim of the criminal investigation 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).

57. In order for a criminal investigation to be effective, it is required that the investigative authorities act ex officio and gather all the evidence capable of clarifying the incident and identifying those responsible. They must take an action as soon as a complaint is made. Even in case of no complaint, they must launch an investigation if there exist sufficient indications that there had been torture or ill-treatment (see Cezmi Demir and Others, §§ 114, 116).

58. In the present case, the applicant, having graduated from the Kuleli Military High School, attended the cadet selection flights camp of the Air Force Academy and subsequently continued his education at the Air Force Academy. The applicant maintained that during this period, he had systematically been subject to physical and psychological pressure by some military officers and some 4^th class students and that therefore he had voluntarily left the Air Force Academy since he could not stand the psychological and physical pressure put on him. Afterwards, the applicant filed a complaint with the Ankara Chief Public Prosecutor’s Office due to the acts he had been subjected to at the cadet selection flights camp and the Air Force Academy. The file was sent to the Military Prosecutor’s Office at the Northern Sea Area Command for lack of jurisdiction.

59. During the investigation, the military prosecutor’s office took statement of a number suspects, including the applicant, as well as those witnesses. However, the military prosecutor’s office specified that the time limit for filing a complaint regarding the offences against the applicant such as insult, threat and actual bodily harm had expired. Thus, the military prosecutor’s office examined the applicant’s allegations separately on a case-by-case basis. It was stated in the decision of non-prosecution issued by the military prosecutor’s office that even if it was accepted that some words had been used against the applicant, which might be taken into consideration in terms of crime theory if within the scope of an act intended to cause a general psychological attrition, there was no evidence to the effect that those words had been used against the applicant to make him leave the school. It was also reminded that there was no evidence that the disciplinary punishments imposed on the applicant pursued no criminal intention and that administrative remedy could be availed of against the disciplinary actions as administrative acts.

60. Some witnesses heard by the Military Prosecutor’s Office within the scope of the investigation asserted that the 4th class students did not call each other by their real names and that they acted like an organization to make the students from the military high school be dismissed from the school by applying pressure. In addition, the witnesses declared that an effort was made to cause not only the applicant but also some other targeted students to leave school voluntarily through extremely harsh words, treatments and the imposed punishments. Likewise, similar assertions were included in the report of the General Assembly of the Petition Committee of Grand National Assembly of Turkey published on 27 June 2012 prior to the decision of non-prosecution rendered on 30 September 2013 by the Military Prosecutor’s Office. No assessment on the mentioned report was made in the decision rendered by the Military Prosecutor’s Office.

61. Given the allegations included in the report of the General Assembly of the Petition Committee of Grand National Assembly of Turkey, it is understood that the Military Prosecutor’s Office failed to take into account that it was very difficult for the applicant to allege that he was exposed to ill-treatment and to defend himself by witnesses or evidence that proved these allegations while he was a student at the Air Force Academy where a strict hierarchical structure prevailed. No assessment was made as well in the said decision as to whether or not the practices exercised on the applicant were by reason of the ordinary difficulties caused by being a student of the military school, and whether or not such practices were training methods applied with the purpose of familiarization of the military students with these difficulties. Without any hesitation, physical and psychological pressure can be put to a certain degree in respect of the practical requirements of some trainings in the military discipline with a view to enabling the students to become familiar with the difficulties arising from the very nature of the military career. However, within the scope of the applicant’s allegations and the witness statements, such an impression has been left as to the fact that unlike the training provided for all the students in the context of the military training, the treatments established to have been inflicted upon the applicant aimed deterring him. It is an expected situation that particularly the applicant leaving the Air Force Academy after having been a student at the military high school for four years was more resistant to the military training, compared with the students from civilian highs schools, for not being unfamiliar with the military trainings and for foreseeing the difficulties he would face during the training at the Air Force Academy. With regard to the investigation into the incident, it should also be taken into account that the applicant being a graduate of the Kuleli Military High School had to leave the Air Force Academy.

62. In this context, it was not considered either that the complaints that some students from the Military School had been pressed up to drop out the Military Academy increased intensively due to the fact that those students were subject to harassment applying systematically and to physical and psychological ill-treatments, which was incompatible with the training requirements, in the course of their trainings. This situation which is also shown by the statistics reveals the significance of the allegations.

63. On the other hand, it cannot be said that the Military Prosecutor’s Office investigated in detail whether or not the actions against the applicant had also been carried out against the other students within an organizational structure and in a prevalent way. The fact that the allegations of ill-treatment regarding the actions carried out against many people and extending over a period of time within an organizational structure, in line with a certain aim, were handled by the investigating authorities as isolated allegations of ill-treatment is one of the most significant obstacles before the efficiency of the investigation. Given the incident as a whole, finding the concrete data, through which connections could be established and which could be interpreted, insufficient in terms of separate incidents and not deepening the investigation in the light of concrete data may lead to the non-execution of specific procedures for the examination of evidence that could be resorted to in respect of organized crimes. The military prosecutor, considering that some actions which could be accepted as normal when the requirements of the military discipline are at issue may constitute ill-treatment when they are carried out by specific motivation other than this aim, should be more willing to examine the evidence supported by concrete data as well; should use all the necessary means of evidence collection and should deepen the investigation, handling it beyond being an individual claim.

64. The failure to investigate such allegations in due course and in a detailed manner also prevents the structures likely to organize within the Turkish Armed Forces from being revealed. This situation may lead to the continued violation of the individuals’ fundamental rights and freedoms implicitly and systematically and also to problems in respect of national security due to the fact that the actions were carried out at a military training institution.

65. Thus, it should be also examined the allegation that some persons, who were the suspects of the impugned incident and of the coup attempt taking place on 15 July subsequent to the decision of non-prosecution rendered by the Military Prosecutor’s Office, were the members of the terrorist organization known as “the Fethullahist Terrorist Organization” and “the Parallel State Structure” (“the FETÖ/PDY”) and that whether the organization which is asserted to be existent in the witness statements but which could not be foreseen in the investigation procedure was ”FETÖ/PDY”.

66. Consequently, the Constitutional Court concluded that Article 17 § 3 of the Constitution was violated under its procedural aspect, since the allegations in the concrete case were not carefully and diligently discussed at the investigation stage even if the applicant had a defensible allegation of torture and ill-treatment together with the other evidence in the investigation.

67. For the reasons explained above, the Constitutional Court has found a violation of the procedural aspect of the prohibition of torture and ill-treatment safeguarded by Article 17 § 3 of the Constitution.

c.     Application of Article 50 of Code no. 6216

68. 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.”

69. The applicant requested 40,000 Turkish liras (TRY) and TRY 500,000 respectively for pecuniary and non-pecuniary compensation.

70. It has been concluded that the prohibition of torture and ill-treatment had been violated under its procedural aspect.

71. As there is a legal interest in conducting retrial in order to redress the consequences of the violation of the prohibition of torture and ill-treatment, a copy of the judgment must be sent to the Military Prosecutor’s Office at the Northern Sea Area Command of the Turkish Naval Forces Command for retrial.

72. The applicant must be awarded TRY 24,000 for his non-pecuniary damages that cannot be redressed with the sole finding of a violation of the prohibition of torture and ill-treatment.

73. In order for the Court to award pecuniary compensation, a causal link must be established between the pecuniary damages allegedly sustained by the applicant and the violation found. As the applicant failed to submit any document to substantiate his claim for pecuniary damages, his claim must be rejected.

74. The total court expense of TRY 2,006.10 including the court fee of TRY 206.10 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.

VI. JUDGMENT

            For the reasons explained above, the Constitutional Court UNANIMOUSLY held on 23 March 2017 that

            A. Alleged violation of the procedural aspect of the prohibition of torture and ill-treatment be DECLARED ADMISSIBLE;

            B. The procedural aspect of the prohibition of torture and ill-treatment safeguarded by Article 17 § 3 of the Constitution was VIOLATED;

C. A copy of the judgment be SENT to the Military Prosecutor’s Office at the Northern Sea Area Command of the Turkish Naval Forces Command to conduct retrial in order to redress the consequences of the violation of the prohibition of torture and ill-treatment;

D. The applicant be AWARDED TRY 24,000 for non-pecuniary damages, and his other claims for compensation be REJECTED;

E. The total court expense of TRY 2,006.10 including the court fee of TRY 206.10 and the counsel fee of TRY 1,800 be REIMBURSED to the applicant;

            F. The payments 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.