REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

FIRST SECTION

JUDGMENT

SEYFULLAH TURAN

(Application no. 2014/1982)

9 November 2017

THE FACTS

[9-99] The applicants live in Hakkari. The applicant Seyfullah Turan, who was 17 years old at the material time, is the son of the other applicants.

On the date of incident, 23 April 2009, “National Sovereignty and Children’s Day” was celebrated. According to the documents in the case file, members and supporters of an armed terrorist organization had been called upon to carry out demonstrations and violent acts approximately 1 week before this date. On the subsequent days, some members and supporters of the said terrorist organization attacked the security forces by throwing stones, sticks, Molotov cocktails and etc. in the city centre of Hakkari.

On 23 April 2009, a national news agency published a video footage where a police officer harshly hit a child by the head with the bottom of his rifle many times and kicked him, and the child laid on the ground motionless. At the end of the footage, the police officer left the child at the scene and run away. The journalist recording the video went near the child and called an ambulance. The child had sustained fatal injuries. The footage appeared on the media also the next day. The Governor’s Office announced to the public that the relevant police officer B.T. was suspended from his duty and an investigation was launched against him.

The applicant Seyfullah Turan whose health condition had been serious was taken to the University Hospital and was discharged on 29 April 2009.

Disciplinary and criminal investigations were launched against the relevant police officer. Then, a criminal case was filed against the police officer B.T. The subsequent proceedings were initiated before the Hakkari Assize Court. The police officer B.T. requested that the case be transferred to another court in another city for public security reasons. Thereupon, the case was transferred to the Isparta Criminal Court. The relevant decision on the transfer of the case included no information as to why Isparta was chosen.

The applicants filed an objection to the decision to transfer the case to Isparta and stated that they would not be able to participate in the proceedings to be carried out in Isparta due to the distance between Isparta and Hakkari, the lack of direct air transportation between the two cities and the lack of sufficient economic opportunity to travel. However, their request was dismissed.

The applicants also brought an action for both pecuniary and non-pecuniary compensation against the Ministry of Inferior. The Van Administrative Court awarded the total of 42,142.71 Turkish liras (TRY) to the applicants as pecuniary and non-pecuniary compensation.

However, the 10^th Chamber of the Council of State quashed the decision of the administrative court on the ground that there had been contributory negligence in the incident. The applicants’ request for rectification of the decision is still pending.

V.   EXAMINATION AND GROUNDS

100. The Constitutional Court, at its session of 9 November 2017, examined the application and decided as follows.

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

101. The applicants claimed that although the police officer B.T. had acted with a direct intent to kill the applicant Seyfullah Turan who had had no relation with the social events, it was acknowledged during the proceedings that the conditions justifying the use of force had indeed been satisfied and that these conditions had been exceeded due to the police officer’s psychological situation. Hence, a punishment that was clearly disproportionate to the alleged act and accordingly a non-deterrent punishment had been imposed on the police officer; moreover, the pronouncement of the judgment was suspended, leaving ineffective this insufficient punishment by its consequences. The applicants argued that by suspending the pronouncement of the judgment, the court had intended to relieve the B.T. of even the insufficient punishment in question.

102. The applicants also maintained that the case had been transferred to Isparta from Hakkari that was thousands of kilometres away in order to prevent them from pursuing their case and thereby preventing their effective participation in the proceedings. Therefore, the relevant authorities had achieved their aim to this end, as the applicants had suffered from transportation difficulties as well as economic difficulties to pursue their case.   

103. The applicants further alleged that B.T. and another police officer (F.Y.) had left the applicant Seyfullah Turan in an injured condition in the scene.

104. The applicants Mehmet Turan and Emine Turan, inter alia, maintained that, as well as feeling sorrow for the alleged violent acts against their son, their sorrow increased after this incident had appeared on the media. In this regard, they claimed that the alleged act of violence resulted in a treatment incompatible with human dignity against themselves.

105. The applicants claimed that their right to life, right to a fair trial and right to an effective remedy, respectively safeguarded by Article 17, 36 and 40 of the Constitution and Articles 2, 3, 6 and 13 of the European Convention on Human Rights (“the Convention”) had been violated and requested retrial as well as non-pecuniary compensation.

106. The Ministry, in its observations, having mentioned the facts of the case and the relevant investigation proceedings, laid weight especially on the applicants’ complain about the impunity of the police officers and specified that the relevant law, which was Law no. 5271, granted full discretion to the judge in terms of the suspension of the pronouncement of the judgment and that therefore the fact that the relevant conditions had been satisfied in the present case did not necessarily require the application of the relevant provisions in respect of the accused.

B.       The Court’s Assessment

1.        Applicability

107. Article 17 of the Constitution, in so far as relevant, 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.

(As amended on May 7, 2004; Act No. 5170, April 16, 2017; Act No.6771) The act of killing in case of self-defence and, when permitted by law as a compelling measure to use a weapon, during the execution of warrants of capture and arrest, the prevention of the escape of lawfully arrested or convicted persons, the quelling of riot or insurrection, or carrying out the orders of authorized bodies during state of emergency, do not fall within the scope of the provision of the first paragraph.”

108. In the present case, the applicant Seyfullah Turan is alive. Therefore, first of all, it is necessary to make an assessment as to the applicability of Article 17 § 1 of the Constitution which guarantees the right to life.

109. While one of the conditions for the application of the principles concerning the right to life within the scope of an incident is the occurrence of an unnatural death, in some cases it is possible to examine the incident within the framework of the right to life, even if death has not occurred (see Mehmet Karadağ, no. 2013/2030, 26 June 2014, § 20).

110. An application concerning an incident that has not resulted in death can also be examined within the scope of the right to life taking into account the circumstances of the case, such as the nature of the act against the victim and the purpose of the perpetrator. In making this assessment, whether the act is potentially lethal or not, and the consequences of the act on the physical integrity of the victim, are of importance (see Siyahmet Şiran and Mustafa Çelik, no. 2014/7227, 12 January 2007, § 69; and Yasin Ağca, no. 2014/13163, 11 May 2017, §§ 109, 110).

111. In the present case, given the severity of the violence inflicted upon the applicant and the fact that he had been brought to life as a result of an urgent medical operation, it has been concluded that the said act had potentially been lethal. Considering this situation together with the other factors included in the case, it has been concluded that the present application is required to be examined within the framework of the right to life.

112. In addition, 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). It has been considered that the allegations submitted by the applicants in connection with the right to an effective remedy and the right to a fair trial fall within the scope of the right to life, and these allegations have been examined within the scope of the mentioned right.

113. However, it has been concluded that the allegation that the applicant Seyfettin Turan had been left at the scene in an injured condition should be examined within the scope of the prohibition of treatment incompatible with human dignity.

2.    Admissibility

a.    As Regards the Applicants Mehmet Turan and Emine Turan

114. The applicants claimed that the right to life and the prohibition of treatment incompatible with human dignity had been violated also with respect to themselves.

115. First, it must be determined whether the applicants had victim status in terms of the rights they put forth.

116. Article 148 § 3 of the Constitution provides as follows:

“Everyone may apply to the Constitutional Court on the grounds that one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights which are guaranteed by the Constitution has been violated by public authorities. …”

117. Article 45 § 1 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, titled “Right to an individual application”, provides as follows:

“Everyone can apply to the Constitutional Court based on the claim that any one of the fundamental rights and freedoms within the scope of the European Convention on Human Rights and the additional protocols thereto, to which Turkey is a party, which are guaranteed by the Constitution has been violated by public force.”   

118. Article 46 § 1 of the Code no. 6216, titled “Persons who have the right to an individual application” provides as follows:

“The 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.”

119. The Constitutional Court, in cases where it examined such complaints concerning the prohibition of treatment incompatible with human dignity, indicated that it was inevitable for the family members of the person whose rights had been violated to suffer from psychological breakdown and sadness due to the impugned incident. Therefore, in order to find a violation of these persons’ rights under Article 17 of the Constitution, the existing situation has not been sufficient. The victim status of a family member depends on whether there are special factors that will give a different dimension to the sadness he suffers (see Engin Gök and Others, no. 2013/3955, 14 April 2016, §§ 49-54).

120. In addition, in order for an individual application to be accepted, it is not sufficient for the applicant to claim that he has victim status, he must also prove that he has directly or indirectly affected by the alleged violation or must convince the Constitutional Court that he is a victim. Therefore, the suspicion of being a victim is not sufficient for the existence of victim status (see Ayşe Hülya Potur, no. 2013/8479, 6 February 2014, § 24).

121. Accordingly, in order for the family members to have victim status in terms of the prohibition of treatment incompatible with human dignity, the inevitable sadness suffered due to the violence against their relatives must be given a different dimension and form.

122. The applicants maintained that as the incident had appeared on the media, their sadness that they inevitably suffered due to the act of violence against their son was given a different dimension.

123. First of all, there is no doubt that the fact that the applicants learned about the manner in which the incident had occurred after it appeared on the media increased the sadness they inevitably experienced due to the violence against their son. However, in the assessment to be made in this respect, it should first be noted that the images of the incident had not been given to the media by the public authorities –to humiliate the applicants or for any other purpose. On the contrary, they had been reported and published by a national news organization and in this way, the perpetrator of the incident could be identified. Secondly, it should also be noted that the family members’ having watched the images of the incident on the media has not revealed that the applicants have directly or indirectly been victims in terms of the prohibition of treatment incompatible with human dignity. For a previous judgment of the Court finding a violation in a case –in the particular circumstances of the case– where violence had occurred in front of the eyes of the family members, see Mehmet Şah Araş and Others, no. 2014/798, 28 September 2016.

124. Accordingly, it has been concluded that the applicants have not been victims in terms of the prohibition of treatment incompatible with human dignity.

125. In addition, the Constitutional Court ruled that in some cases where the victim was not able to make an application in person and had close kinship - in particular in cases where the right to life was at stake- the applicants could lodge an application on their own behalf although they had not been directly but indirectly affected by the violation (see Serpil Kerimoğlu and Others, no. 2012/752, 17 September 2013, § 41; Cemil Danışman, no. 2013/6319, 16 July 2014; Sadık Koçak and Others, no. 2013/841, 23 January 2014; and Rıfat Bakır and Others, no. 2013/2782, 11 March 2015).

126. However, in order for the close relatives to claim to have been victim in terms of the right to life, the person of whom they are close relatives must have lost his life. In the present case, the applicants’ son is alive despite having sustained fatal injuries and could enjoy his right to lodge an individual application. Therefore, the applicants have not had the victim status in terms of the right to life.

127. For the reasons explained above, the present application must be declared inadmissible with regard to these applicants for not being compatible ratione personae and there being no need for further examination under other admissibility criteria.

b.    As Regards the Applicant Seyfullah Turan

i.     Alleged Violation of the Prohibition of Treatment Incompatible with Human Dignity

128. 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, no. 2013/293, 17 July 2014, § 104).

129. However, all allegations of ill-treatment shall not avail of the protection specified in and positive obligations imposed on the State by Article 17 § 3 of the Constitution. 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).

130. Article 148 § 3 of the Constitution provides as follows:

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

131. Article 45 § 2 of the Code 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.” 

132. The applicant claimed that although he had been injured as a result of the acts of the police officers, he was left at the scene and that no effective investigation was conducted into the incident.

133. In addition, the news agency reporters who disclosed the incident with the images they had recorded stated that some of the police officers had told them that they had been sorry for the incident but could not have taken the applicant to the hospital due to the act of stoning. The reporters added that thereupon they had been involved in the incident and called the ambulance for the applicant.

134. They also stated that while the ambulance they had called had not arrived at the scene yet, a group reacted to them due to the incident and took the applicant into the neighbourhood.

135. However, there is no sufficient information or documents before the Constitutional Court as to how and when the applicant was taken to the state hospital. The applicant, like the other applicants, did not make any explanation in this respect in the course of the relevant investigations, nor did he mention that issue in his individual petition.

136. The applicant's imprecise conduct in this regard while exhausting the legal remedies was not limited to these. That is to say, according to the application letter and the relevant investigation documents, at the end of the investigation conducted against the police officer (F.Y.) who was seen to have arrived at the scene after the applicant had been injured, a decision of non-prosecution was issued. However, the applicant did not appeal against the decision.

137. It may be argued that there is a connection between the investigation conducted against the police officer B.T. and the subject matter of this investigation and that it is necessary to wait for the result of the investigation against B.T. in order to learn about the assessments of the competent judicial authorities regarding the incident. However, the investigation conducted against B.T. and the subsequent criminal case were related to the use of force in the incident. As regards the applicant’s alleged abandonment at the scene, an indictment was issued against B.T. for the use of force. The indictment included a separate assessment on the matter and a further investigation was opened upon the applicant's application and a decision was rendered in line with this assessment.

138. This situation was also known by the applicant, and most importantly, he did not mention in his petition for individual application that he had been waiting, for any reason, the outcome of the investigation and the subsequent criminal case against B.T. and that he therefore had not appealed against the decision of non-prosecution in question. 

139. 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 Zıraman and Cennet Yeşilyurt, no. 2012/403, 26 March 2013, § 16).

140. Accordingly, in the criminal investigation into the alleged violation of the prohibition of treatment incompatible with human dignity, the judicial remedy had not been exhausted before the individual application. Therefore, the Constitutional Court cannot examine the alleged violation.

141. Consequently, this part of the application must be declared inadmissible for non-exhaustion of legal remedies and there being no need for a further examination under other admissibility criteria.

i.     Alleged Violation of the Right to Life

1.    Admissibility

142. The alleged violation of the applicant’s right to life must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

2.    Merits

a)    Alleged Violation of the Substantive Aspect of the Right to Life

i)     General Principles

143. Cases of death or fatal injuries occurring as a result of the use of force by public officers must be considered within the scope of the State’s negative obligation under the right to life. This obligation concerns both deliberate killing and the use of force that results or may result in death without premeditation (see Cemil Danışman, § 44). Within the scope of the negative obligation concerning the right to life, the officers who use force with a public authority bear the liability not to end the life of any individual in an intentional and unlawful way (see Serpil Kerimoğlu and Others, § 51).

144. The last paragraph of Article 17 of the Constitution provides that an interference with the right to life shall be lawful in the following cases: (i) for self-defence; and, when permitted by law as a compelling measure to use a weapon, (ii) during the execution of warrants of capture and arrest, (iii) the prevention of the escape of lawfully arrested or convicted persons, (iv) the quelling of riot or insurrection, or (v) carrying out the orders of authorised bodies during state of emergency.

145. Considering the above provisions regarding any interference with the right to life by use of force and the previous judgments of the Constitutional Court on this matter, it may be said that the police officers are allowed to resort to “proportionate” use of force “in case of exigencies” where there is no other remedy to achieve the objectives specified in the Constitution (see Cemil Danışman, § 50; and Nesrin Demir and Others, no. 2014/5785, 29 September 2016, § 113).

146. Similar to the arrangement in our Constitution, according to Article 2 of the Constitution, if a death has occurred as a result of "use of force which is no more than absolutely necessary"; (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or (c) in action lawfully taken for the purpose of quelling a riot or insurrection, it cannot be said that there has been a violation of the right to life (see Cemil Danışman,§ 51; and Nesrin Demir and Others, § 114).

147. However, lethal force should be used “as a last resort” in cases specified in the Constitution and where there is no other way of intervention. Therefore, having also regard to the inviolable nature of the right to life, the Constitutional Court must strictly review the necessity and proportionality of the use of force that might result in death (see Nesrin Demir and Others, § 107).

148. At this point, it must be noted that the Constitutional Court may not be completely bound by the assessments of the relevant authorities on the case and that it may make different assessments relying on absolutely convincing information or findings (see Cemil Danışman,§ 58; and Nesrin Demir and Others, § 117). In making an assessment on this aspect of the use of force by public officers, all aspects of the incident must be taken into account (see Cemil Danışman, § 57). In addition, regard must be had, as a whole, to the conditions under which the incident had occurred and the course over which it had developed (see Cemil Danışman, § 57; and Nesrin Demir and Others, § 108).

ii)    Application of Principles to the Present Case

149. In the present case, the Isparta Criminal Court of General Jurisdiction held that the police officer B.T. had unintentionally exceeded the limits of his authority to use force and injured the applicant. Therefore, firstly, it should be discussed whether the decision in question means that the use of force in the present case and exceeding the limits of the use of force have been considered to be in breach of Article 17 of the Constitution. In other words, it must first be established whether the inferior court had determined through the conviction order it had rendered that the right to life had been violated, in breach of the guarantees stipulated in Article 17 of the Constitution. The appropriateness and adequacy of the decision to remedy the applicant's victim status in terms of the violation should then be assessed separately. That’s because, due to the secondary nature of the individual application, it is primarily for the inferior court, not the Constitutional Court, to find the violations and provide appropriate and adequate remedy for the violation found.

150. The Isparta Criminal Court acknowledged that the conditions for the use of force had been fulfilled in the case and stated that there had been no consequence not intended by the police officer due to “his psychological state” as a result of the previous events. The court, stating that it was not an intentional act and the impugned responsibility concerned the negligence, reached this conclusion within the framework of the provisions related to the unintentional exceeding of the limits, which eliminates the criminal liability, not directly in accordance with the provisions of the relevant Law concerning negligence.

151. At this point, it must first be noted that the decision of the Isparta Criminal Court regarding the use of force in the incident included no explanation capable of revealing the fact that the court had taken into consideration all stages of the incident, the conditions under which it had occurred and its subsequent course. There was no sufficient assessment in the decision that the use of force had been absolutely necessary and that the lethal force had been used as a last resort since there had been no other way of intervention.

152. As the decision in question did not contain sufficient and convincing considerations that the use of force had been absolutely necessary, the application must be assessed separately by the Constitutional Court in terms of “being absolutely necessary and proportionate” which is set forth in Article 17 of the Constitution and constitutes safeguards (for individuals) regarding the use of force. However, it should be reiterated that in cases of use of force that have resulted or might result in death, the Constitutional Court may not be completely bound by the assessments of the relevant authorities on the case and that it may make different assessments relying on absolutely convincing information or findings.

153. Firstly, in view of the information and documents included in the case file, on the day when the incident occurred, there had been violent acts that had started some time ago and turned into social events in Hakkari. There is no doubt that these events had targeted the security forces. However, it should be noted that according to the images that appeared on the media and impartial witness statements taken during the investigations into the incident, which were also taken into consideration by the Isparta Criminal Court, it could not be exactly determined that the applicant had performed such an action during the incident.

154. Although it was claimed by the law enforcement officers that there were footages demonstrating the fact that the applicant had attended the social violent events the day before the incident by hiding his face, it must be indicated that the police officer who had resorted to the use of force against the applicant had not been in a position to know that issue at the time of the incident. Therefore, this issue cannot be taken into account in the assessment of whether the use of force had been necessary in the course of the incident. Furthermore, it could not be established that the applicant had participated in such an act of violence during the incident.

155. Accordingly, it cannot be concluded that the use of force had been absolutely necessary in the course of the incident. Pursuant to Article 17 of the Constitution, the use of force can only be resorted to in order to achieve the objectives set forth in the Constitution and “in case of exigencies” where there is no other remedy. Where these conditions have not been satisfied, then there will be a violation of the right to life.

156. On the other hand, in the absence of any situation absolutely requiring the use of force, the accused police officer had approached the applicant quietly behind without any warning and hit him by the head many times with the butt of the rifle and even continued hitting him although the applicant had fallen to the ground after the first hit; and afterwards, the police officer had kicked the applicant. Having been hit, the applicant’s skull bones had separated from each other and some of the bones had severely been broken. The applicant sustained fatal injuries but could able to be brought back to life as a result of an urgent operation carried out by the university hospital.

157. Accordingly, even if the contrary is accepted in terms of the necessity of the use of force in the incident, given the nature of the said attack that was acknowledged by the relevant judicial authorities, it cannot be said that there had been no other remedy available and that the use of lethal force had been “absolutely necessary”. In addition, there is no doubt that the police officer in question had resorted to obviously disproportionate use of force, given the aim sought to be achieved and the attack alleged to have been faced.

158. Therefore, it cannot be said that the use of lethal force had been necessary and that such a force had been used as a last resort since there had been no other way of intervention, as well as it is clear that the said force had not been used in a proportionate manner.

159. As a result, in the impugned incident the manner of which could be clearly seen by all people as it appeared on the media, -in spite of the said images that were relied on by the court in its assessment- it could not be understood how it was concluded that the use of force had been absolutely necessary, that the limits of the use of force had not been exceeded intentionally and that the accused police officer had not intended to cause severe injuries to the applicant. In fact, the accused police officer –as also clearly stated in the report issued at the end of the disciplinary investigation conducted against him- had acted individually without respecting the operation plans of the other police officers regarding the event and the information and instructions of the authorities carrying out the operation, and hence due to his such arbitrary and intentional acts, he severely harmed not only the applicant but also the police agency where he took office.

160. The most important issue that should be indicated at this point regarding the application is to ensure that the heavy attacks against life do not go unpunished with a view to maintaining the public security, ensuring the rule of law and preventing any impression that unlawful acts are tolerated (see Filiz Aka, no. 2013/8365, 10 June 2015, § 32).

161. In cases where the police officers have resorted to use of force, the same applies not only to impunity but also to the cases where there is a clear disproportionality between the severity of the acts and the punishment imposed. In such cases, as the applicants’ victim status on account of the violation of the right to life would not be removed, the Constitutional Court might be obliged to intervene in the case –although it respects the inferior courts’ decision on the sanction to be imposed and it does not directly have such a duty. At this point, it should again be noted that the Constitutional Court is also entrusted with constitutionality review of the sanctions imposed on the public officials on account of the offences they have committed within the scope of the right to life and the prohibition of ill-treatment which are safeguarded by Article 17 of the Constitution (see Cezmi Demir and Others, § 76)

162. Such practices concerning sanctions –as also stated in the assessments concerning the alleged violation of the procedural aspect of the right to life- impair the State’s obligation to conduct effective criminal investigation to prevent such violations, since they result in the impunity of the public officials who have caused similar violations of the right to life or prevent their duly punishment, thereby preventing any deterrence in this respect. In this part of the judgment, where the substantive aspect of the right to life is evaluated, the situation in question is of great importance in determining whether the applicant's victim status due to the said violation has been removed.

163. As stated above, in the present case, the inferior court did not sufficiently evaluate the absolute necessity of the use of lethal force, nor did it make an assessment as to the intentional exceeding of the limits of the use of force as well as its disproportionality. It only sentenced the police officer in question to 6 months and 7 days’ imprisonment. This caused a clear disproportionality between the impugned offence and the sentence imposed, thereby not removing the applicant’s victim status.

164. In addition, as explained in detail in the assessment made below on the alleged violation of the procedural aspect of the right to life, although there was no legal obligation and the trial court had a full discretion, it suspended the pronouncement of the judgment, which would have no legal consequences in respect of the accused as clearly stated in the law. Therefore, it has been concluded that there was again a failure to remove the applicant’s victim status for another reason.

165. For all these reasons, it has been concluded that the punishment of the accused police officer did not in principle mean that the inferior court had acknowledged that the excessive use of force in the incident had been contrary to Article 17 of the Constitution. Furthermore, it cannot be said that the applicant's victim status has been removed with a punishment which was clearly disproportionate (inadequate) to the severity of the offence and even the pronouncement of which was suspended.

166. Consequently, the Constitutional Court has found a violation of the substantive aspect of the right to life.

b)    Alleged Violation of the Procedural Aspect of the Right to Life

i)     General Principles

167. The State has an obligation to conduct an effective investigation within the scope of the right to life. The main purpose of such an investigation is to ensure effective enforcement of the law safeguarding the right to life and to ensure that those responsible for the deaths that have occurred by the intervention of public officials or under their responsibility or by the acts of other individuals account for the deaths in question (see Serpil Kerimoğlu and Others, § 54).

168. The procedural obligation concerning the right to life can be fulfilled via criminal, civil or administrative investigations, depending on the nature of the case. However, in cases pertaining to incidents of death or fatal injuries occurring as a result of intention or ill-treatment perpetrated by public officers, 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. In such cases, imposition of an administrative sanction or compensation as a result of administrative investigations and actions for compensation is not sufficient to redress the violation and thereby remove the victim status (see Serpil Kerimoğlu and Others, § 55).

169. In order to acknowledge that the obligation to conduct an effective investigation, the main purpose of which is to ensure effective enforcement of the law safeguarding the right to life and to ensure that those who are responsible for the deaths account for them, has been fulfilled, the followings are necessary:

- Investigation authorities need to act ex officio as soon as they are informed of the incident and collect all evidence which can shed light on the death incident and lead to the identification of those responsible (see Serpil Kerimoğlu and Others, § 57);

- It must be ensured that the investigation is open to public scrutiny and that the victims can effectively participate in the investigation to the extent necessary (see Serpil Kerimoğlu and Others, § 58);

- Investigation into the deaths and fatal injuries caused as a result of the use of force by the public officials must be conducted independently (see Cemil Danışman, § 96); and

- Investigations must be conducted with reasonable diligence and expedition (see Deniz Yazıcı, no. 2013/6359, 10 December 2014, § 96).

ii)    Application of Principles to the Present Case

170. In the present case, it was claimed that no effective investigation had been conducted into the incident. The applicant reached this conclusion with reference to two main complaints. The first complaint concerned the prevention of the applicant’s effective involvement in the proceedings due to the transfer of the case to another province for public safety reasons. The second main complaint was related to the fact that within the scope of the investigation the purpose of which should have been to ensure the effective implementation of the legal rules concerning the protection of the right to live and to ensure that those who were responsible account for properly, the competent authorities failed to punish the accused properly as well as they suspended the pronouncement of the judgment, with a view to mitigating the consequences of the act constituting a heavy offence.

171. The applicant did not complain about the fact that the investigation had not been launched ex officio and without delay; that the investigation had not been conducted independently and promptly; or that all evidence capable of clarifying the incident and leading to the identification of those who had been responsible had not been collected. Nor has there been any information or document pointing to the fact that the principles pertaining to the obligation to conduct an effective investigation in the present case had been contravened.

172. Accordingly, the present application will primarily be examined from the standpoint of whether the transfer of the case had precluded the applicant’s involvement in the case to the extent necessary for the protection of his legitimate interests.

173. At this point, in particular, hearing of a case in the place where the competent court is located may, in some cases, lead to incidents, which may prevent the State form fulfilling its obligation to conduct an effective investigation; which may lead to serious threats to the parties; and which may have some consequences that may impair or completely eliminate the procedural guarantees granted to the parties under the Constitution and pose a clear and imminent danger to the public safety.

174. Accordingly, it may be concluded that hearing of a case concerning the right to life in the place where the competent court is located poses a danger to the public safety, regard being had to the social events that may occur in the relevant place and to the other similar factors. Therefore, it is possible that the case may be transferred to another district on such grounds.

175. In this case, what should be taken into consideration while transferring a case to a court of the same instance located in another place is the fact that the main purpose of the effective investigation should not be jeopardized with the transfer of the cases carried out within the scope of the right to life and that there should be no consequences contrary to the principles falling into the scope of the impugned right.      

176. In this context, it should be noted that the transfer of the case must not impair the essence of the rights of the individuals, whose right to life has been violated, to request that they are provided with the opportunity to participate in the proceedings to the extent necessary to protect their legitimate interests.

177. In addition, in the assessment of whether the transfer is necessary in cases where hearing of the case in a certain place may pose a threat to the public safety, not only the general security problems should be taken into account, but also whether the said risk to the security has negative effects on the proceedings concerning the present case must be evaluated. In addition, after reaching the conclusion that initiation or continuation of the proceedings in the relevant place would pose a clear and imminent danger to the public safety, not only the purpose of preventing the deterioration of the public peace but also eliminating the risk of preventing the parties’ use of their constitutional rights concerning the proceedings should be taken into consideration.

178. However, the decisions on the transfer of the case must have relevant and sufficient grounds not only in relation to whether it would pose a danger to the public safety if the case was heard in the place where the competent court is located but also to the criteria taken into consideration -in the particular circumstances of the case- in determination of the place where the case will be referred to. This is of crucial importance so as not to shake the confidence in justice, to maintain faith in the rule of law and, most importantly, to prevent the public (in general terms) and the victims (in particular terms) from having the perception that the case has been transferred for the purpose of preventing the public scrutiny on accountability and preventing the effective participation of victims in the proceedings.

179. The incident subject to the present case had occurred in Hakkari, and following a set of proceedings, the case was heard in Isparta for public safety reasons. At the time where the proceedings were carried out in Hakkari, the applicant repeatedly stated that it was not necessary to transfer the case to another place and that the conditions had not been satisfied in that respect. Having seen that the competent authorities considered to the contrary, he requested that the case be transferred to a place close to Hakkari, including Elazığ where the accused lived, in order to ensure his participation.

180. The applicant stated that, if the case was transferred to a place far away from Hakkari, he would not be able to participate in the proceedings for reasons such as transportation difficulties and economic inadequacies. The applicant filed an objection to the decision to transfer the case to Isparta and stated that he would not be able to participate in the proceedings to be carried out in Isparta due to the distance between Isparta and Hakkari, the lack of direct air transportation between the two cities and the lack of sufficient economic opportunity to travel.

181. As a matter of fact, the applicant did not participate in the proceedings carried out in Isparta and reiterated his requests, through his representatives, that the case be transferred to a place close to Hakkari or even another place not close but easier transportation facilities were available, such as Ankara, putting forward the same grounds that he had submitted before the Hakkari Court.

182. Firstly, the proceedings pertaining to the present case were carried out for a period of more than 5 months in Hakkari; however, during this period no incident indicating that public safety was or could be in danger occurred. The accused left Hakkari after the incident and started to live in Elazığ and his defence submissions were taken there. Moreover, the other procedural proceedings concerning the case could be duly carried out, and there was no situation where the public safety was jeopardized and the procedural safeguards granted to the applicant or the accused were impaired.

183. Secondly, the decision on the transfer of the case provided no explanation as to why Isparta was chosen. In addition, there was no information in the case file that could enable making an assessment that Isparta had been preferred for reasons such as the workload in other courthouses, insufficient number of judges and public prosecutors in these courthouses or previous transfer of similar cases to other places.

184, The applicant did not absolutely object to the transfer of the case in his submissions to the inferior courts. He requested that the case be heard in cities with relatively easy access for him, including Elazığ where the accused lived. However his request was not replied and the case was transferred to Isparta without any justification.

185. As a result, the proceedings into the case were carried out in Isparta, about 1,500 kilometers away, not in a city located in a reasonable distance to Hakkari, without any justification. This meant for the applicant and his relatives who lived in Hakkari and wished to pursue the case that they had to go several kilometers during the period of several months while the proceedings were being carried out (six hearings in total). Unquestionably, in addition to convenient and adequate time as well as physical and mental strength, sufficient economic power was also needed. However, it was not reasonable to expect the victims of the right to life to endure such a situation in order to protect their legitimate interests, even without any justification.

186. It may be argued that the applicant pursued the case through his representatives and was informed of the relevant documents and developments in this way and had the opportunity to appeal against the relevant decisions and processes, and even appealed against the decision rendered at the end of the proceedings, and thus he could participate in the proceedings.

187. However, the effectiveness of the said participation may vary according to the particular circumstances of the investigation and prosecution. In any case, the victims should be provided with the opportunity to attend the hearings where statements of the accused are taken, witnesses are heard, expert reports are discussed, complaints about the incident are raised and other evidence are adduced and examined, in order to protect their legitimate interests. Otherwise, it might mean that the participation is only theoretically accepted, not ensured in practice and thus the essence of the right is impaired.

188. On the other hand, while the applicant was in this way deprived of the opportunity to participate in the proceedings, the accused police officer could participate in the proceedings carried out in Isparta and gave a different defence than the one he had given during the proceedings carried out in Hakkari. In addition to the fact that the relevant defence submissions were relied on by the Isparta Criminal Court of General Jurisdiction in its decision, it was observed that the accused was given a discount on his sentence on the basis of his respectful attitude during the hearing, and that even the pronouncement of this sentence was suspended on the same and similar grounds.

189. As a result, it was considered that the effectiveness of the investigation was impaired by preventing the applicant's participation in the case in order to protect his legitimate interests through the transfer of the case, which was considered to pose a danger to the public security if carried out in Hakkari, to Isparta, about 1,500 kilometers away from Hakkari, without any justification. This situation brought about the possibility of the impression that the transfer of the case was carried out in order to prevent effective participation of the public in general and of the applicant in particular. This situation caused the possibility that the public (in general terms) and the applicant (in particular terms) might have the perception that the case was transferred for the purpose of preventing effective participation in the proceedings.

190. Another important point that should considered in the present case in terms of the effectiveness of the investigation, the main purpose of which was to ensure the effective implementation of the legal rules for the protection of the right to life as well as to ensure the accountability of those responsible, is whether the deterrence with regard to similar violations of the right to life was ensured.

191. The suitability and adequacy of the sentence for the accused’s act was evaluated in detail (whether the applicant's victim status had been removed) in the section where the alleged violation of the substantive aspect of the right to life was examined. In this respect, it was underlined that within the scope of the State’s obligation to conduct an effective investigation that was capable of ensuring deterrence, it was necessary not to leave unpunished the severe attacks against life and to impose sufficient punishment on those who were responsible, in order to ensure the maintenance of public safety, rule of law and prevention of the impression that unlawful acts were tolerated.

192. Accordingly, here only the capacity of the decision of suspension of the pronouncement of the judgment to ensure deterrence in terms of the prevention of similar violations of the right to life will be examined in detail, and it will then be assessed whether both situations preclude the important role in preventing similar violations of the right to life.

193. At this point, first of all, it should be noted that the relevant legislation allows the inferior courts to suspend the pronouncement of the judgment. However, this is not an obligation and the judge enjoys full discretion in this regard. At the discretion of the judge, if the accused does not commit a new crime within the five-year period, the judgment cannot be executed for a period of time, as well as, the relevant case may be discontinued automatically in accordance with the relevant law. Accordingly, it means that the sentence imposed may disappear together with its all consequences.

194. In the present case, the trial court suspended the case for a period of time (five years) by suspending the pronouncement of the judgment, even though it had full discretion in this respect. As stated above, as a result of this decision, even the inadequate punishment that had been imposed on account of an act constituting a heavy offence was not executed for some time, as well as, at the end of the prescribed period the case would be discontinued in accordance with the relevant law and therefore the sentence imposed would disappear together with its all consequences.

195. The trial court therefore created the impression that, instead of using its discretion in terms of the suspension of the pronouncement of the judgment in order to demonstrate that the acts in question would never be tolerated, it preferred to use its discretion to mitigate or eliminate the consequences of an act constituting a heavy offence.

196. Taken together with the imposition of inadequate punishment for an act constituting a heavy offence, the trial court’s such attitude clearly contradicts with the State’s obligation to ensure the conduct of an effective criminal investigation capable of ensuring the imposition of appropriate and adequate punishment on those who are responsible, for the purpose of ensuring deterrence in order to prevent the violations of the right to life.

197. Consequently, the Constitutional Court has found a violation of the procedural aspect of the right to life concerning the obligation to conduct an effective investigation.

C.   Application of Article 50 of Code no. 6216

198. Article 50 §§ 1 and 2 of 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.”

199. The applicant requested 100,000 Turkish liras (TRY) for non-pecuniary damages.

200. It has been concluded that the applicant’s right to life was violated under both its substantive and procedural aspects.

201. There is a legal interest in conducting retrial in order to redress the consequences of the violation of the procedural aspect of the right to life. Therefore, a copy of the judgment must be sent to the Ministry of Justice to have the necessary actions taken for the transfer of the case to a place in a reasonable distance to Hakkari, where hearing of the case will not pose a threat to the public safety and the applicant will be able to participate in the proceedings effectively.

202. It has been considered that finding of a violation of the procedural aspect of the right to life, as well as sending of a copy of the judgment to the Ministry of Justice to have the necessary actions taken has sufficiently redressed the violation in this respect; however, the applicant will be awarded TRY 35,000 as non-pecuniary compensation for the violation of the substantive aspect of his right to life.

203. The total court expense of 2,006.10 Turkish liras (TRY) 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 applicant.

VI. JUDGMENT

            For the reasons explained above, the Constitutional Court UNANIMOUSLY held on 9 November 2017 that

            A. 1. Alleged violations of the right to life and the prohibition of treatment incompatible with human dignity, with respect to the applicants Mehmet Turan and Ayşe Turan, be DECLARED INADMISSIBLE for incompatibility ratione personae;

                 2. Alleged violation of the prohibition of treatment incompatible with human dignity, with respect to the applicant Seyfullah Turan, be DECLARED INADMISSIBLE for non-exhaustion of legal remedies;

                 3.    Alleged violation of the applicant Seyfullah Turan’s right to life, safeguarded by Article 17 of the Constitution, be DECLARED ADMISSIBLE;

            B. The applicant Seyfullah Turan’s right to life was VIOLATED;

C. A copy of the judgment be SENT to the Ministry of Justice to have the necessary actions taken for the redress of the consequences of the violation of the procedural aspect of the right to life;

D. The applicant Seyfullah Turan be AWARDED TRY 35,000 in respect of non-pecuniary damages for the violation of the substantive aspect of his right to life, 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 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 3^rd Chamber of the Isparta Criminal Court of General Jurisdiction.