REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 FIRST SECTION

JUDGMENT

İRFAN DURMUŞ AND OTHERS

(Application no. 2014/4153)

11 May 2017

THE FACTS

[8-57] Hakan Durmuş (H.D.), who is the son of the applicants Muhammet Durmuş and Kadriye Durmuş and the brother of İrfan Durmuş, was a person who had been diagnosed with psychotic disorder by different health institutions before the incident.

At the material time, H.D. was being held in the Aydın E-Type Closed Prison. He was placed in a single cell. On 12 August 2012, a fire broke out in his cell as a result of which he sustained burns. Afterwards, he was taken to the state hospital by an ambulance (112 emergency service). Due to his serious health condition and to the lack of a burn treatment unit in the relevant state hospital, attempts were made to refer him to another state or university hospital with a burn treatment unit even in other cities. However, he was not admitted to the other hospitals for lack of space. It was three days later that he was referred to a hospital with a burn treatment unit in another city by an air ambulance. However, he lost his life five days later at the relevant hospital.

A criminal investigation was launched into the incident. The public prosecutor took the statements of the doctors and the prisoners who were held in the same unit with the applicant. The prisoners’ statements indicated that the administration had allowed the prisoners to smoke in the unit where the deceased had been held, that they could have lighters to smoke and that a cigarette lighter had been given to the deceased just before the incident upon his request. The officers in the penitentiary institution gave similar statements in the capacity of suspects. During the investigation, the public prosecutor and the crime scene investigation team carried out examinations to determine how the incident had occurred and to obtain material evidence that might shed light on the assessment to be made in this respect. At the end of the investigation, the public prosecutor’s office issued a decision of non-prosecution.

The applicants found inconsistent and contradictory the statements taken during the investigation process. They opposed to the public prosecutor’s decision. However their objection was dismissed by the 2^nd Chamber of the Söke Assize Court.

V. EXAMINATION AND GROUNDS

58. The Constitutional Court, at its session of 11 May 2017, examined the application and decided as follows.

59. By the very nature of the right to life, an application concerning this right with respect to the person who has lost his life can only be filed by his relatives who have suffered losses due to his death (see Serpil Kerimoğlu and Others, no. 2012/752, 17 September 2013, § 41). The applicants Muhammet Durmuş, Kadriye Durmuş and İrfan Durmuş are respectively father, mother and brother of the deceased. Therefore, there is no deficiency in terms of eligibility for filing a case.

A. As Regards the Applicant Muhammet Durmuş

60. Article 48 § 5 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court dated 30 March 2011, titled “Conditions for and examination of the admissibility of individual applications”, provides as follows:

“The conditions for the examination of admissibility and the procedures and principles thereof and other issues shall be regulated by the Internal Regulation.”

61. Article 80 of the Internal Regulations of the Court, in so far as relevant, provides as follows:

“(1) A decision of dismissal can be made by the Sections or the Commissions at all stages of the trial in the following circumstances:

…

d) That no reason justifying the continuation of the examination of the application is found due to another justification identified by the Sections or the Commissions. 

(2) The Sections or the Commissions can continue to examine an application which bears the quality indicated in the paragraph above in circumstances required by the implementation and interpretation of the Constitution or the determination of the scope and limitations of fundamental rights or the respect for human rights.”

62. Applicant Muhammet Durmuş, father of the deceased, lost his life on 6 September 2016 after the incident. Muhammet Durmuş’s wife and his five children, who are alive, are his legal inheritors and they are the mother and siblings of the deceased. Accordingly, there has been no obstacle for these persons to lodge an individual application for the alleged violation of the right to life safeguarded by Article 17 of the Constitution in terms of the incident where the their son and brother had lost his life. As a matter of fact, Kadriye Durmuş and İrfan Durmuş, the wife and the son of Muhammet Durmuş and the mother and the brother of the deceased filed an individual application for the alleged violation of the right to life, having exhausted the legal remedies; however, the other inheritors did not file an individual application. Given the fact that the persons who are among the inheritors of Muhammet Durmuş but did not file an individual application with the Constitutional Court are the siblings of the deceased and have had the opportunity to file an individual application from the very beginning on condition of exhausting the legal remedies, they have not been asked whether they wish to pursue the case.

63. For these reasons, as it has been understood that there has been no reason justifying the continuation of the examination of the alleged violations of the rights raised by the applicant Muhammet Durmuş who died after the application, it has been concluded that the relevant proceedings should be discontinued with respect to this applicant.

B. As Regards the Other Applicants

1. Alleged Violations of the Obligation Not to End the Life as well as the Obligation to Protect the Life, by Failure to Protect against the Violence of the Third Party

a. The Applicants’ Allegations

64. The applicants maintained that their relative had been held in a single cell in the penitentiary institution before his death and that therefore it had been impossible for him to obtain a lighter and a belt, and thus acknowledgement –during the investigation– of the fact that he had committed the said act by himself was not reasonable. In this regard, they alleged that their relative’s right to life safeguarded by Article 17 of the Constitution had been violated, and hence they sought to be awarded both pecuniary and non-pecuniary compensation.

65. The Ministry did not submit any observation as to the admissibility of the said allegation.

b. The Court’s Assessment

66. Article 17 §§ 1 and 4 of the Constitution, titled “Personal inviolability, corporeal and spiritual existence of the individual”, provides as follows:

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

…

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.”

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

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

68. 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. In addition, within the scope of its positive obligations, the State has a liability to protect the right to life of every person within its jurisdiction against risks which may arise out of the actions of public authorities, other individuals or the individual himself/herself. First and foremost, the State should introduce deterrent and protective legal regulations and take administrative measures against such risks to the right to life. This liability also includes the obligation to protect the life of an individual from all kinds of dangers, threats and violence (see Serpil Kerimoğlu and Others, § 51).

69. In this scope, under certain special circumstances, the State has an obligation to take the necessary measures to protect the life of an individual against the risks that may arise from his own acts. In order for such an obligation that also applies to the deaths occurring in the penitentiary institutions to arise, it is necessary to determine whether the authorities of the penitentiary institution knew or ought to have known the existence of a real risk that a person under their control would kill himself, as well as to examine, if such a risk exists, whether they have done everything expected from them reasonably and within the scope of their powers to eliminate the alleged risk (see Sadık Koçak and Others, no. 2013/841, 23 January 2014, § 74).

70. When the documents included in the file of the individual application as well as the investigation documents concerning the present case were examined, it was understood that the applicants complained about two situations. The first of these was that their relative had been burned in the penitentiary institution where he had been held, and the second was that he had died due to, inter alia, the deficiency and the negligence in the medical treatment process.

71. Therefore, in the present case, the framework for the assessment to be made within the scope of the right to life needs to be determined separately with respect to both allegations.

72. In the present case, it was claimed by the applicants that, contrary to what had been acknowledged at the end of the investigation conducted into the incident, their relative had not died as a result of his own act, and that the impossibility of this had not been considered under the circumstances of the case in the course of the investigation. In addition, it had not also been specified during the investigation that the prison officers had been aware of or predicted or ought to have been aware of or predicted the potential risk to the life of the applicant’s relative, although their relative had faced a danger as a result of his own act due to his psychological disorder or for any other reason.

73. It can be said, in terms of the individual applications lodged within the scope of the right to life, that for an examination to be made on the State’s obligation not to end the life, it is not always necessary to raise an allegation in this respect and it may be sufficient that there is suspicion under the circumstances of the incident where the obligation not to end the life has been violated. However, in order for an examination to be made on the State’s obligation to protect the life, there must be an alleged violation of this obligation.

74. 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). However, the issue to be determined by the Constitutional Court ex officio is the legal qualification of the facts submitted by the applicants, in other words, the right and freedom under which the application will be examined, and this should not be interpreted such as the fact that the issues not raised within the scope of the application will be examined. Otherwise, where a violation of the right to life has been found in each case filed within the scope of the right to life having several various aspects such as substantive and procedural with regard to the State’s obligations, then it may result in the examination of the State’s all obligations within the scope of the right to life, despite in the absence of allegedly insufficient redress. However, such a situation will fall foul of the secondary nature of the individual application.

76. In this regard, in the present case, no examination has been made on the State’s obligation to protect the deceased from his own acts, as no claim was raised in this sense.

77. However, the applicants complained about the alleged killing of their relative without specifying whether the act had been committed by public officials or by a third party. It appears that the applicants, according to the circumstances of the present case, considered that it was impossible for their relative to burn himself and claimed that he had been killed without specifying that the perpetrator had been a prisoner or a public official. In the present case, considering the relevant allegations and the circumstances of the case, it should be examined whether the State acted in breach of its obligation not to end the life by failing to protect the life of the applicant’s relative form the lethal violence of the third parties.

78. Cases of death 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 (see Cemil Danışman, no. 2013/6319, 16 July 2014, § 44). To ensure the effectiveness of investigations concerning cases of deaths arising from the use of force by public officers, the investigative authorities must be independent from those persons who might have been involved in the case. This requirement not only defines hierarchical and institutional independence but also necessitates that the investigation is actually (also in practice) carried out independently (see Cemil Danışman, § 96).

79. The public prosecutor took the statements of the prisoners held in the same unit with the applicant, within the scope of the investigation conducted into the incident. The statements indicated that the administration had allowed the prisoners to smoke in the unit where the deceased had been held, that they could have lighters to smoke and that a cigarette lighter had been given to the deceased just before the incident upon his request. The officers in the penitentiary institution gave similar statements in the capacity of suspects.

80. During the investigation, the public prosecutor and the crime scene investigation team carried out examinations to determine how the incident had occurred and to obtain material evidence that might shed light on the assessment to be made in this respect. It appears that such examinations and collection of evidence in the scene were not carried out by the administration of the penitentiary institution as well as the officers working there. As a result of these examinations, a lighter tied to a rope was found, but no signs of substances that might have started or accelerated the fire were found. According to the statement of the 112 Emergency Service doctor who had arrived at the scene upon receiving an emergency call, he remembered that the applicant had told him that the bed in his room had burst into flames.

81. In addition, although it was claimed by the applicants that the deceased had told them during his treatment at the State Hospital that he had been burned, it was then understood that their statements taken during the investigation process in this respect were inconsistent and contradictory. Nor there existed any finding within the scope of the investigation that the deceased had been able to speak and give statement after he had been referred to the State Hospital and taken to the intensive care unit.

82. Furthermore, the Chief Public Prosecutor's Office also put emphasis on the applicant Irfan Durmuş's allegation that the deceased had been battered by other prisoners before the incident and investigated the accuracy of these allegations, as well as whether this situation had had any relation with the death incident in question. The accuracy of these allegations and the alleged relation of the said situation with the present case could not be established.

83. In the course of the investigation process carried out into the alleged killing of the applicants’ relative, the Chief Public Prosecutor’s Office dealt with the incident immediately after the incident and carried out a crime scene investigation in person; the crime scene investigation team collected material evidence upon the instruction of the Chief Public Prosecutor’s Office; the material evidence collected from the scene was secured by the Chief Public Prosecutor’s Office; the officers of the Penitentiary Institution were not allowed to collect and secure the evidence; therefore, the risk of tampering with the evidence was eliminated from the very beginning; a post-mortem examination as well as a systematic autopsy were carried out under the supervision of the Public Prosecutor immediately after the death incident; the exact cause of death of the deceased was determined as a result of these procedures; and the statements of the suspects and witnesses were taken by the public prosecutor. All these findings indicate that there had been no deficiency in the investigation which might lead to the suspicion as regards the authorities’ willingness to clarify the incident in terms of the relevant allegation.

84. As a result, it appears that within the scope of the investigation which was launched ex officio and immediately and conducted independently and impartially, all evidence capable of revealing how the incident had occurred was collected and all reasonable measures were taken in this respect; the consistency of the evidence was confirmed in a way leading to an impartial and objective opinion about the course of the incident, so that how the fire had broken out could be understood without any doubt; and consequently, a conclusion was reached following a comprehensive and impartial analysis of the evidence obtained.

85. Consequently, in the present case, there was no evidence or information that would create the impression that the applicants’ relative had been killed by burning in the penitentiary institution where he had been held. The applicants raised such an allegation on account of the physical environment and certain deprivations of the deceased. They made no explanation as to the existence of indications before the incident that their relative had faced the risk of being killed or such an incident would occur, nor did they mention any case that could be taken into consideration in this scope.

86. On the other hand, it can be considered that it may be difficult for the applicants to obtain evidence to prove that their relative had been subjected to lethal violence. In fact, this should not be usually expected from the applicants. Especially in cases where the persons under the State control have lost their lives, the applicants should not be expected to obtain or provide conclusive evidence to prove the fact that their relative was killed deliberately.

87. However, in the present case, there is no reasonable suspicion, contrary to the conclusion reached at the end of the investigation, that the deceased had faced a threat of violence before the incident or was killed as a result of a sudden incident.

88. It appears that the applicants provided general explanations, in their petitions for complaint and appeal, which they had submitted in the course of the criminal investigation process, as well as in their letter of individual application, as to the alleged killing of their relative. They only argued about the actual impossibility of the fact that the fire had broken out as a result of their relative’s own act. In addition, they did not submit any detailed information regarding their allegation which might lead to a conclusion contrary to the one reached on the basis of the evidence obtained during the investigation

89. In the light of these assessments, it should be concluded that there is no evidence beyond any reasonable doubt as to the fact that the applicants’ relative had been killed in the penitentiary institution. Accordingly, the applicants’ allegations in this regard have been of abstract nature and unfounded. For this reason, this part of the application should be declared inadmissible for being manifestly ill-founded.

2. Alleged Violation of the Obligation to Protect the Life due to the Failure to Provide the Necessary Medical Treatment

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

90. The applicants maintained that there had been certain inadequacies and negligence in terms of the medical treatment applied to their relative after he had sustained burns. In this regard, they claimed that their relative’s right to life safeguarded by Article 17 of the Constitution had been violated, and they requested both pecuniary and non-pecuniary compensation.

91. The Ministry, in its observations, stated that the positive obligation to “establish an effective judicial system” within the scope of the right to life did not necessarily entail the initiation and conduct of a criminal investigation in any case; that in the present case, there was no information that the applicants had brought an action for compensation before the criminal or administrative courts against the relevant persons or the administration; and that therefore the applicants did not avail of a legal remedy capable of leading to the determination of the responsibility on the part of the relevant health personnel or the administration and the payment of compensation, if necessary. The Ministry argued that these issues should be taken into consideration in the examination to be carried out on the admissibility of the application.

b. The Court’s Assessment

92. Article 56 § 3 of the Constitution provides as follows:

“The State shall regulate central planning and functioning of the health services to ensure that everyone leads a healthy life physically and mentally, and provide cooperation by saving and increasing productivity in human and material resources.”

93. The positive obligation to protect life within the scope of the right to life also covers the medical activities. As a matter of fact, it is stipulated in Article 56 of the Constitution that everyone shall be entitled to live in a healthy and balanced environment, that the State shall “regulate central planning and functioning of the health services to ensure that everyone leads a healthy life physically and mentally (…)”, and that the State shall fulfil such a duty by taking advantage of and supervising the public and private medical institutions.

94. The State is obliged to regulate health services -whether they are carried out by public or private health institutions- in a way ensuring that the necessary measures are taken to protect the lives of patients (see Nail Artuç, no. 2013/2839, 3 April 2014, § 35).

95. Particular emphasis should be placed on the fact that the State would not be able to fulfil its positive obligations, if the mechanisms envisaged to protect the right to life remained only in theory. Therefore, such mechanisms must effectively function also in practice.

96. In this scope, in addition to the capacity within the legal and administrative framework to provide health services, if there is a legal and administrative framework that effectively protects the right to life, it should be examined whether the right to life is actually protected within that framework.

97. However, as detailed in the assessment made below, in the present application, there has been no argument that allows for an examination of the applicants' allegation within the scope of the aforementioned principles.

98. In the present case, although it has been understood that the deceased was first taken to the state hospital, and then attempts were made to refer him to another state or university hospital due to his serious health condition and lack of burn treatment unit, it is not clear that the deceased could not be referred to a burn treatment unit either due to the lack of space, in other words due to the State's failure to take administrative and legal measures concerning the capacity of burn treatment centres, or the relevant authorities’ failure to take the necessary actions expected from them and/or their failure to take the necessary measures.

99. Therefore, as regards the applicants’ allegations that there had been deficiencies in the treatment of their relative and there had been negligence on the part of the authorities, an examination was made only within regard to the State’s obligation to establish an effective judicial system in terms of protecting lives.

i. Admissibility

100. In the present case, the applicants did not submit any document to the individual application file indicating that they had brought an action for compensation before administrative or judicial courts. Accordingly, it appears that the applicants lodged an individual application having exhausted only the remedy of criminal investigation. In this regard, it should be examined whether the effective legal remedies have been exhausted with respect to the allegation raised.

101. The State’s positive obligation within the scope of the right to life requires carrying out an effective investigation capable of identifying those who are responsible for the death which is not natural and punishing them, if necessary. The main aim of such an investigation is to ensure the effective implementation of the law that protects the right to life and, in the incidents in which public officials or institutions are involved, to ensure that they are accountable against the deaths which occur due to their interference or under their responsibility or by the actions of other individuals (see Serpil Kerimoğlu and Others, § 54).

102. This 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).

103. A different approach may be adopted in terms of the obligation to conduct an investigation into deaths caused by unintentional acts. In this context, positive obligation does not necessarily entail criminal proceedings in all cases where the right to life has not been violated or the physical integrity has not been damaged intentionally. It may be sufficient to provide legal, administrative and even disciplinary remedies to the victims (see Serpil Kerimoğlu and Others, § 59).

104. This approach also applies to deaths alleged to have occurred as a result of medical errors. On the other hand, such an acknowledgement does not mean that the criminal investigations carried out in such cases will not be assessed by the Constitutional Court. However, in principle, the main remedy in terms of the complaints about medical errors is the civil or administrative action for compensation in order to determine the legal responsibility (see Kenan Sayın, no. 2013/5376, 14 October 2015, § 50; Coşkun Gömüç and Taşkın Gömüç, no. 2013/9597, 21 April 2016, § 64; Zeki Kartal, no. 2013/2803, 21 January 2016, § 78; and Nail Artuç, § 38).

105. However, if the public authorities fail to take necessary measures within their authority despite being aware of the probable outcomes of a dangerous situation or if they act based on erroneous judgment or fault going beyond mere inattention, a criminal investigation must be initiated against those putting the individuals’ lives at risk even if the victims have resorted to other legal remedies (see Serpil Kerimoğlu and Others, § 60).

106. The same applies to the activities carried out in the field of health if the authorized persons and institutions cause harm to the life or body integrity of a patient, who has applied to the health institutions, by disregarding their professional duties and to an extent beyond an assessment error regarding the diagnosis and treatment of the disease (see Kenan Sayın, § 47).

107. Considering the circumstances of the case in this regard, it has been concluded that the present application is related to the alleged violation of the right to life not due to a medical error made by a doctor or another medical personnel or an incorrect diagnosis of the disease, but due to the failure to take the necessary measures to protect the life of a patient (the deceased), the seriousness of whose health condition was known to the competent authorities, by not admitting him to a hospital with a medical treatment unit.

108. In other words, the present case relates to the failure of the medical institutions with a burn treatment unit to admit the deceased who had been suffering burns, rather than a wrong medical intervention or a wrong diagnosis. The present application therefore clearly differs in this respect from the other applications concerning medical errors which were declared inadmissible by the Constitutional Court for non-exhaustion of the legal remedies, namely an action for compensation.

109. Although in the applications concerning medical errors which the Constitutional Court has declared inadmissible for non-exhaustion of legal remedies on the ground that no action for compensation has been brought before the civil or the administrative courts it is claimed that the right to life has been violated due to an alleged mistake during the medical intervention or follow-up or due to a wrong diagnosis (see for example, among many other judgments, Kenan Sayın, Coşkun Gömüç and Taşkın Gömüç, and Zeki Kartal, cited above, and Saadet Ergün and Others, no. 2013/4194, 14 October 2015), the present case is not related to the failure to meet the medical requirements during the medical intervention of the deceased, but rather the failure to provide the necessary treatment.

110. For this reason, it has been concluded that the established case-law of the Constitutional Court concerning the requirement for the exhaustion of legal remedies is not applicable to the present case, that the criminal investigation process should be examined and that there has been no deficiency in terms of the exhaustion of legal remedies.

111. Consequently, the alleged violation of the right to life must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

Mr. Rıdvan GÜLEÇ did not agree with this conclusion.

ii. Merits

(1) General Principles

112. In order to be able to say that an investigation is effective and sufficient, investigation authorities need to act ex officio and collect all evidence which can shed light on the death and can be suitable for the identification of those who are responsible. A deficiency in the investigation that would reduce the likelihood of discovering the cause of the incident of death or those who are responsible bears the risk of clashing with the obligation of conducting an effective investigation (see Serpil Kerimoğlu and Others, § 57).

113. One of the matters which ensures the effectiveness of the criminal investigations to be conducted is the fact that the investigation process is open to public scrutiny in order to ensure accountability in practice. In addition, in each incident, it should be ensured that the relatives of the deceased person are involved in this process to the extent that it is necessary so as to protect their legitimate interests (see Serpil Kerimoğlu and Others, § 58).

114. The investigations must be conducted at a reasonable speed and diligence. Of course, there may be difficulties which hinder progress of the investigation in certain specific circumstances. However, speedy actions taken by the authorities even in those circumstances is of critical importance for clarification of the events in a sounder manner, maintenance of the individuals’ commitment to the rule of law and hindering the impression that authorities tolerate and remain indifferent to unlawful acts (see Deniz Yazıcı, no. 2013/6359, 10 December 2014, § 96).

115. However, on the condition that the particular circumstances of each given case are assessed separately, the acts that expressly jeopardise life and grave attacks towards corporeal and spiritual existence must not be allowed to go unpunished (see Filiz Aka, no. 2013/8365, 10 June 2015, § 32).

(2) Application of Principles to the Present Case

116. It is seen that the applicants did not submit any allegation as to the requirement that they should have been ensured to participate in the investigation process to the extent necessary for the protection of their legitimate interests as well as the requirement of reasonable expedition in the relevant process. As a matter of fact, there was no deficiency in this respect.

117. In spite of the fact that the applicants could participate in this process by objecting to the decision given at the end of the investigation and submitting their requests in this respect, as well as despite the necessity of carrying out various procedures such as conducting criminal examinations due to the nature of the incident, taking statements of witnesses and issuing expert reports, the investigation could be concluded within a reasonable period, namely within 1 year and 5 months.

118. Although there had been no deficiency in the investigation process in terms of ensuring the applicants' participation and conduct of the process at a reasonable speed, it should be examined, in terms of its effectiveness, as to whether all evidence was collected to clarify all aspects of the incident and to identify those responsible, if any.

119. As explained under the facts of the case, it is seen that the incident, subject matter of the application, had many stages in terms of the medical intervention and treatment of the deceased. The first stage is that the deceased was taken to the state hospital by the 112 Emergency Service team who arrived at the scene upon a call due to the deceased’s having sustained second and third degree burns as a result of the fire that had broken out in the single room where he had been held in the penitentiary institution. The next stage is that the deceased was taken to the intensive care unit in the state hospital for his medical treatment and that at the same time he was urgently tried to be referred to a state or university hospital with a burn treatment unit due to the seriousness of his health condition.

120. There is no doubt that at this stage, the deceased’s health condition was not good due to the severe burns on his body, that he had a risk of death, that his medical treatment should have been continued in a hospital with a burn treatment unit without any delay and that the relevant doctor made intensive efforts to transfer him to such a hospital. It was clearly stated in the statement of the doctor, the report issued by the First Specialization Board of the Forensic Medicine Institute and the decision of non-prosecution issued by the Chief Public Prosecutor's Office, which were included in the epicrisis report issued by the state hospital, that the deceased’s transfer could not be made for some time due to the lack of space and for some other reasons. It was also emphasized in the relevant decision of the Chief Public Prosecutor's Office that as the deceased could not be admitted to other hospitals for lack of space, his treatment had to be continued at the state hospital until 15 July 2012.

121. According to the statements taken during the investigation and to the relevant documents, the deceased could be transferred to another state hospital only after another patient had lost his life and a room could therefore be found.

122. It was observed that the investigation process conducted into the incident contained no deficiency concerning the period beginning from the time when the deceased had been referred to a state hospital and underwent medical treatment there for a certain period until the time when he was transferred to another hospital with a burn treatment unit where he subsequently lost his life. In addition, according to the report issued by the First Specialization Board of the Forensic Medicine Institute with regard to the medical personnel in charge, the deceased had been immediately referred to the state hospital from the penitentiary institution after the necessary measures had been taken, he underwent medical treatment under the existing conditions and then his follow-up and treatment process was also carried out appropriately at the training and research hospital which had a burn treatment unit. It was thus stated in the relevant report that there had been no error or negligence in the said interventions and treatments.

123. However, the investigation should be evaluated in terms of whether it was clarified why the deceased had not been admitted to other hospitals with a burn treatment unit in different regions of the country and thus whether this stage of the incident could be clarified.

124. The investigation documents stated that many state and university hospitals in different regions had been consulted regarding the transfer of the deceased; however it was also stated by some of these hospitals that there was no room and the rest of the hospitals did not admit the deceased through the 112 emergency service.

125. Although it was concluded at the end of the investigation that the deceased could not be admitted to the hospital with a burn treatment unit due to the lack of space, it was stated in the epicrisis report issued by the state hospital that some hospitals had specified some other reasons in addition to the lack of space. Namely, they had specified that they could not admit the deceased through the 112 Emergency Service. However, according to the epicrisis report in question, no investigation was conducted in this regard and hence the situation could not be clarified.

126. Besides this deficiency, although it was stated in the report issued by the First Specialization Board of the Forensic Medicine Institute that the medical personnel in the state hospital had endeavoured to transfer the deceased to another hospital and contacted various burn treatment units to have him admitted but had failed for a certain period, the said report included no explanation concerning the effect of this delay on the deceased’s life.

127. First of all, it should not be concluded that the Constitutional Court’s duty is to decide whether an expert report or an expert opinion is required in any investigation or case. The admissibility and evaluation of expert reports and similar evidence fall within the competence of the investigation authorities (see Ahmet Gökhan Rahtuvan, no. 2014/4991, 20 June 2014, §§ 59, 60).

128. It should also be noted that the Constitutional Court does not have a duty to scrutinize whether the conclusions of the experts or their scientific perspectives are accurate, by making speculations based on the available medical information.

129. In addition, although it is the duty of the administrative and judicial authorities to evaluate the evidence concerning a death incident, including expert reports, it might be necessary for the Constitutional Court to examine how the incident occurred in order to be able to understand the course of the incident and make an objective assessment on the steps to be taken by the investigation authorities and the inferior courts to clarify all aspects of the death of the applicant’s relative (see Rıfat Bakır and Others, no. 2013/2782, 11 March 2015, § 68).

130. In the present case, the deceased’s health condition posed a serious risk to his life due to the degree of the burns he had sustained. The degree of the risk was so high that it might result in death; therefore, his transfer to another hospital for treatment, as stated by the relevant health personnel, was required to be made by an air ambulance, not in ordinary ways. As a result, the transfer was made by an air ambulance, despite the short distance between Aydın and İzmir.

131. This situation per se requires a satisfactory answer about the effect of the delay in the transfer of the deceased on his health status. At this point, it should be said that the severity of the health status of a patient who applied to the health institution but not admitted there and the little chance of his survival given the similar incidents make no sense in this regard. The actual issue that needs to be carefully scrutinized and investigated by the investigating authorities is whether the authorized persons or institutions have done what could reasonably be expected of them to reduce or, if possible, to eliminate the risks against the patient's chance of survival.

132. Within the scope of the investigation conducted in the present case, it was not investigated whether the failure to admit the deceased to the burn treatment unit of the relevant health institutions through 112 Emergency Service had resulted from a legal or administrative requirement or from the failure of the authorities of these institutions to perform what could have reasonably be expected of them and/or to take the necessary measures. In addition, it was not investigated whether the deceased’s non-admission to the relevant institution had had an effect on the risk to the deceased’s life (regardless of his little chance to survive given the similar incidents).

133. This led to the uncertainty as to whether the life of the deceased, whose application to the health institutions had been made by the authorized persons or institutions, had been put at risk by the authorities as a result of disregarding their professional duties and going beyond an assessment error regarding treatment. Thus, all aspects of the incident could not be clarified.

134. Consequently, the Constitutional Court has found a violation of the obligation to protect life.

Mr. Rıdvan GÜLEÇ did not agree with this conclusion.

C. Other Allegations of Violation

135. It has been considered that the allegations raised by the applicants in conjunction with the right to a fair trial and the right to an effective remedy, which are respectively safeguarded by Articles 36 and 40 of the Constitution, fall within the scope of the right to life. Therefore, these allegations have been examined within this framework.

D. Application of Article 50 of Code no. 6216

136. Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

“1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled…   

(2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed.   In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown. The court, which is responsible for holding the retrial, shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

137. The applicants requested pecuniary and non-pecuniary compensation depending on the severity and gravity of the violation.

138. It has been concluded that the applicants’ relative’s right to life was violated.

139. There is a legal interest in conducting retrial (investigation) in order to redress the consequences of the violation, therefore, a copy of the judgment should be sent to the Aydın Chief Public Prosecutor’s Office.

140. The applicants Kadriye Durmuş and İrfan Durmuş should be awarded 30,000 Turkish liras (TRY), jointly, for their non-pecuniary damage that could not be redressed with a sole finding of a violation of the right to life.

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

142. The total court expense of TRY 2,006.10 including the court fee of TRY 206.10 and the counsel fee of TRY 1,800, which is calculated over the documents in the case file, must be reimbursed to the applicants jointly.

VI.  JUDGMENT

For the reasons explained above, the Constitutional Court held on 11 May 2017:

A. 1. UNANIMOUSLY that as there has been no reason justifying the continuation of the examination of the alleged violations of the rights raised by the applicant Muhammet Durmuş, the relevant proceedings be DISCONTINUED with respect to him;

2. UNANIMOUSLY that alleged violations of the State’s obligation not to end the life as well as its obligation to protect against the lethal force used by a third party, which were raised by the applicants Kadriye Durmuş and İrfan Durmuş, be DECLARED INADMISSIBLE as being manifestly ill-founded;

3. By MAJORITY and by dissenting opinion of Mr. Rıdvan GÜLEÇ that alleged violation of the State’s obligation to protect the life due to its failure to provide the necessary medical treatment, which were raised by the applicants Kadriye Durmuş and İrfan Durmuş, be DECLARED ADMISSIBLE;

B. By MAJORITY and by dissenting opinion of Mr. Rıdvan GÜLEÇ that the right to life was VIOLATED;

C. That a copy of the judgment be SENT to the Aydın Chief Public Prosecutor’s Office to conduct retrial (investigation) for redress of the consequences of the violation of the right to life;

D. That the applicants Kadriye Durmuş and İrfan Durmuş be AWARDED TRY 30,000, jointly, for their non-pecuniary damage, and their other claims for compensation be REJECTED;

E. That 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 JOINTLY REIMBURSED to the applicants;

F. That 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. That a copy of the judgment be SENT to the Ministry of Justice.

DISSENTING OPINION OF JUSTICE RIDVAN GÜLEÇ

I do not agree with the judgment, given by the majority, finding a violation of the right to life safeguarded by Article 17 of the Constitution due to the failure to provide the necessary medical treatment and thus failure to fulfil the obligation to protect the life.

It has been observed that the investigation process conducted into the incident contained no deficiency concerning the period beginning from the time when the deceased had been referred to a state hospital and underwent medical treatment there for a certain period until the time when he was transferred to another hospital with a burn treatment unit where he subsequently lost his life. In addition, according to the report issued by the First Specialization Board of the Forensic Medicine Institute with regard to the medical personnel in charge, the deceased had been immediately referred to the state hospital from the penitentiary institution after the necessary measures had been taken, he underwent medical treatment under the existing conditions and then his follow-up and treatment process was also carried out appropriately at the training and research hospital which had a burn treatment unit. It was thus stated in the relevant report that there had been no error or negligence in the said interventions and treatments.

Considering the above-mentioned information included in the file of the reports submitted within the scope of the individual application, as well as the allegations raised by the applicants together, the positive obligation of the State within the scope of the right to life is limited to an effective investigation. In the present case, rather than being the subject of alleged interference with the right to life by burning himself in the prison where he had been held, the applicant became the object due to his death as a result of the injuries he had sustained as a result of fire.

 Although the positive obligation of the State covers the interferences arising from the individual’s own acts, the course of the incident in question and the subsequent developments have made it difficult to reach the conclusion reached by the majority finding a violation.

It has been underlined that according to the principles laid down in a judgment (Serpil Kerimoğlu and Others) of the Constitutional Court, within the scope of the State’s positive obligation, if the public authorities fail to take necessary measures within their authority despite being aware of the probable outcomes of a dangerous situation or if they act based on erroneous judgment or fault going beyond mere inattention, a criminal investigation must be initiated against those putting the individuals’ lives at risk even if the victims have resorted to other legal remedies.

Given the chronological order of the facts, it is clear according to my personal conviction that the investigation process was concluded with a reasonable speed in a way protecting the applicants’ legitimate interests, and that in terms of the efficiency criterion, there has been no violation arising from the State’s failure to fulfil its positive obligation, regard being had to the relevant expert reports. Therefore, I do not agree with the conclusion reached by the majority.