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.