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On 9
November 2017, the First Section of the Constitutional Court found a violation of the
procedural aspect of the right to life concerning the obligation to conduct
an effective investigation in the individual application lodged by Seyfullah
Turan (no. 2014/1982).
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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 10th 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 3rd Chamber of the Isparta Criminal
Court of General Jurisdiction.
