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(Elif Aydın Dost, B. No: 2014/19954, 12/6/2018, § …)
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I. CASE DETAILS

Deciding Body Second Section
Decision/Judgment Type Merits (violation)
Tag
(Elif Aydın Dost, B. No: 2014/19954, 12/6/2018, § …)
   
Case Title ELİF AYDIN DOST
Application No 2014/19954
Date of Application 17/12/2014
Date of Decision/Judgment 12/6/2018
Official Gazette Date/Issue 1/8/2018 - 30496
Press Release Available

II. SUBJECT-MATTER OF THE APPLICATION


The case concerns the alleged violation of the prohibition of treatment incompatible with human dignity for not punishing the use of excessive force by a police officer who was sentenced to an imprisonment but obtained a suspension of the pronouncement of the verdict.

III. EXAMINATION RESULTS


Right Alleged Violation Conclusion Redress
Prohibition of ill-treatment Use of force by public officer (general) (use of physical force, handcuffing, pepper spray and etc.) Violation Non-pecuniary compensation
Effective investigation into the alleged ill-treatment (deterrent effect of the sanction) Violation Re-trial
Effective investigation into the alleged ill-treatment (reasonable time) Violation Re-trial

IV. RELEVANT LAW



Type of legislation Date/Number of legislation - Name of legislation Article
Law 5237 Turkish Criminal Law 256
86
27
5271 Criminal Procedure Law 231
23

12 June 2018 Tuesday

Elif Aydın Dost (no. 2014/19954, 12 June 2018)

The Facts

While protesting university fees, the applicant’s finger had been broken due to the law enforcement officers’ intervention. The applicant received a report from the forensic medicine institute and filed a criminal complaint with the Chief Public Prosecutor’s office for bringing a criminal case against those who were responsible for the incident. Thereafter, the chief public prosecutor’s office brought a criminal case against the law enforcement officer who had used excessive force.

The incumbent criminal court found the law enforcement officer guilty and convicted him. After this conviction was quashed by the Court of Cassation, the criminal court convicted the applicant of intentional battery and suspended the pronouncement of the judgment.

Upon the dismissal of her appeal against the criminal court’s decision, the applicant lodged an individual application.

The Applicant’s Allegations

The applicant alleged that the prohibition of treatment incompatible with human dignity was violated due to suspension of the pronouncement of the judgment despite the fact that the law enforcement officer had broken her finger and that the officer was found guilty in this respect.

The Court’s Assessment

As regards the complaints concerning the prohibition of ill-treatment safeguarded under Article 17 of the Constitution, the negative obligation of the State entails the responsibility not to expose individuals to torture, inhuman or degrading treatment, or to punishment. The positive obligation entails both the responsibility to protect them from such treatments (preventive obligation) and to ensure identification and punishment of those who are responsible through an effective investigation (obligation of investigation).

The Court considers that, in spite of non-existence of any circumstances necessitating use of force, the applicant’s wounding caused by a law enforcement officer dispersing the meeting which the applicant had attended by exercising her democratic right falls within the scope of the treatment incompatible with human dignity. Besides, findings of the inferior court indicate that the applicant did nothing which necessitated use of force against her.

In the present case, the requirement that perpetrator must be sentenced to a punishment proportionate to his action was not fulfilled due to pronouncement of the judgment. Besides, as no disciplinary action was taken against the accused, the applicant was not provided with any chance of redress for her complaint.

Leaving the perpetrators unpunished reduces the deterrent effect which would ensure the prevention of similar actions as well as leads to the non-fulfilment of the positive obligation to protect the individuals’ corporeal and spiritual integrity.

For the reasons explained above, the Court found a violation of the prohibition of treatment incompatible with human dignity, which is safeguarded by Article 17 of the Constitution.

  • yazdir
The Constitutional Court of the Turkish Republic