THE FACTS

 [8-52] A group of university students organised a march in the university campus to protest the attacks carried out by the members of a terrorist organization against the security forces.

 Upon a warning by the police officers, the majority of the group dispersed, and a group of students moved towards the faculty where the students with opposing views had previously carried out various activities. In order to prevent a clash between the student groups with opposing views, the police officers asked both groups to disperse.

 As the students did not disperse and attacked the police officers by throwing stones, the police officers resorted to the use of force. During their intervention, the police officers also fired painted rubber balls. As a result, four students including the applicant were injured.

 The chief public prosecutor’s office launched an investigation into the incident and took the statements of the police officers and the injured students.

 The applicant stated that while she was walking on the road to her classroom; she saw a crowd approaching the building, and due to the rush around, she stood motionless with her friend. During that time something hit her left eye, her friend cleaned the paint on her face, her eye was swollen and turned red, and she was taken to the hospital.

 The report issued by the university hospital stated that the injury on the applicant’s left eye could not be treated by a simple medical intervention and that whether the lesion caused a loss of function could be determined after the treatment was completed.

 As the others sustained injuries that could be treated by a simple medical intervention and did not file a complaint regarding the incident, the chief public prosecutor’s office issued a decision of non-prosecution with respect to the unidentified perpetrators. With respect to the applicant’s injury, a permanent search warrant was issued.

 The permanent search warrant ordered the search and identification of the perpetrator(s) until its expiry and submission of periodical reports as to the search results. The police reports submitted to the prosecutor’s office at certain intervals stated that the perpetrators could not be identified.

 Afterwards, the chief public prosecutor’s office sent a writ to the security directorate, ordering that the identities and places of duty of the police officers using the guns firing painted rubber balls on the date of incident be reported.

 The security directorate reported that approximately a thousand and five hundred police officers intervened in the events, however, the official documents relating to the events were not signed by all of them. The security directorate sent to the chief public prosecutor’s office the identities and places of duty of the officers who had signed the document. A decision of non-prosecution was issued in respect of these officers.

 Upon applicant’s challenge, the incumbent assize court annulled the decision of non-prosecution. The chief public prosecutor’s office then initiated a criminal case before the criminal court against some police officers on the ground that they had committed the offence of grievous bodily harm by exceeding the limits of the use of force.

 The criminal court acquitted the accused persons as they were not proven guilty. This decision became final as it was not appealed. The criminal court then filed a criminal complaint for the identification of the real perpetrator(s). The chief public prosecutor’s office launched a new investigation and issued a search warrant to identify and arrest the perpetrators within the statute of limitation.

 V. EXAMINATION AND GROUNDS

53. The Constitutional Court, at its session of 28 June 2018, examined the application and decided as follows:

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

54. The applicant maintained that the right to a fair trial safeguarded by Article 36 of the Constitution had been violated, stating that she still suffered a loss of sight in one of her eyes due to the impugned incident; that during the investigation conducted into the incident, the law-enforcement officer using the gun firing painted rubber ball had not been identified; that the investigation could not be completed within a reasonable time; and that her physical integrity had been infringed and she suffered due to the law enforcement officers’ fault amounting to negligence.

55. In its observations as to the admissibility of the application, the Ministry noted that the application must be declared inadmissible as in cases where an infringement of the right to life or the physical integrity was not caused intentionally, the positive obligation to “set up an effective judicial system” did not necessarily entail the initiation and conduct of a criminal investigation in every case; that in the present case, there was no information that the applicant had brought an action for compensation before the criminal or administrative courts; and that the available legal remedies should have been exhausted prior to an individual application.

56. In its observations as to the merits of the application, the Ministry, making a reference to the judgments rendered by the European Court of Human Rights (“the ECHR”) as well as by the Court and considering the actions taken at the investigation stage in the present case, noted that the reasonable steps had been taken for the clarification of the particular circumstances of the present case and the identification of those who were responsible; and that there was no ground to reach a conclusion that the criminal investigation conducted into the present case had been ineffective.

57. In her counter-statements against the Ministry’s observations, the applicant reiterated her allegations stated in the application form and further maintained that she suffered a complete loss of sight in her one eye, which had been also raised before the incumbent administrative court, and that her application was to be examined under the scope of the right to a fair trial.

B. The Court’s Assessment

58. The Constitutional Court is not bound by the legal qualification of the facts by the applicants 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 applicant in connection with the right to a fair trial fall within the scope of the prohibition of treatment incompatible with human dignity safeguarded by Article 17 § 3 of the Constitution, and these allegations have been examined under the said provision.

59. On the other hand, in the examination of the complaints concerning the prohibition of treatment incompatible with human dignity, the substantive and procedural aspects of the prohibition should be considered separately, taking into account the negative and positive obligations of the State. Therefore, the applicant’s complaints have been assessed separately from the standpoint of the substantive and procedural obligations incumbent on the State under Article 17 § 3 of the Constitution.

1. Admissibility

60. In making an assessment as to the admissibility of the application, a separate examination must be conducted from the standpoint of the admissibility criterion of non-exhaustion of available legal remedies.

61. In the case of Özlem Kır where a criminal investigation was conducted into the applicant’s injury on account of a gas canister fired by the law enforcement officers intervening in a public event (no. 2014/5097, 28 September 2016, §§ 41 and 42), the Court reached the following conclusions with a reference to the cases of Serpil Kerimoğlu and Others (no. 2012/752, 17 September 2013, § 55) and Turan Uytun and Kevzer Uytun (no. 2013/9461, 15 December 2015, §§ 47 and 48):

 i. In cases pertaining to injuries resulting from a deliberate act or assault or ill-treatment, 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 who are responsible.

 ii. In such incidents, the mere award of compensation as a result of administrative and civil investigations and proceedings is not sufficient to redress the violation of the given right and to remove the victim status.

 iii. It is an indispensable requirement of the obligation of investigation to establish beyond a reasonable doubt the conditions under which an act towards the physical integrity, which is directly related to the use of force by the security forces, as well as any possible criminal liability.

 iv. Regardless of the legal remedies to which individuals have resorted on their own initiatives, bringing no criminal charge, or conducting no trial, against the public officials alleged to have caused death of an individual or damage to his physical integrity on account of such kinds of acts may give rise to the breach of Article 17 of the Constitution.

62. Accordingly, the present application cannot be declared inadmissible for non-exhaustion of the available legal remedies that are in the form of an administrative investigation or administrative and judicial action for compensation.

63. However, the investigation conducted by the incumbent chief public prosecutor’s office into the impugned incident has been still pending. Therefore, it must be assessed whether the applicant should have awaited the outcome of this investigation before lodging her individual application.

64. The requirement of exhausting legal remedies is a natural consequence of the fact that the remedy of individual application is to be used as a last and extraordinary resort for the prevention of human rights violations. In other words, the fact that it primarily falls upon the administrative authorities and inferior courts to remedy the violations of fundamental rights renders it mandatory to exhaust the ordinary legal remedies (see Necati Gündüz and Recep Gündüz, no. 2012/1027, 12 February 2013, § 20).

65. In order for an examination as to the effectiveness of an investigation with respect to the right to life, it would be compatible with the subsidiarity nature of the protection mechanism afforded by individual application to await the conclusion of the investigation by the relevant public authorities provided that it does not exceed a reasonable time; however, it is not absolutely necessary (see Rahil Dink and Others, no. 2012/848, 17 July 2014, § 77; and Hüseyin Caruş, no. 2013/7812, 6 October 2015, § 46).

66. However, the individual applications lodged as from the date when the applicants become, or are expected to become, aware that no investigation would be initiated; that there has been no progress in the investigation; that no effective investigation has been conducted into the incident; and that there is no real prospect of carrying out such an investigation in future must be declared admissible (see Rahil Dink and Others, § 77; and Hüseyin Caruş, § 47).

67. In the present case, in order to ascertain whether the available legal remedies have been exhausted, the framework of the State’s positive obligation to conduct an effective investigation under Article 17 of the Constitution as well as the question whether it was fulfilled in the present case must be determined. Such a determination necessitates an examination on the merits of the present application.

68. The application was accordingly declared admissible for not being manifestly ill-founded and there being no other ground to declare it inadmissible.

2. Merits

a. Alleged Violation of the Substantive Aspect of the Prohibition of Treatment incompatible with Human Dignity

i. General Principles

69. Article 17 § 3 of the Constitution reads as follows:

“No one shall be subjected to torture or mal-treatment; no one shall be subjected to penalties or treatment incompatible with human dignity.”

 70. The right to protect and develop one’s corporeal and spiritual existence is safeguarded under Article 17 of the Constitution. The first paragraph of the same provision intends to protect human dignity. In its third paragraph, it is prescribed that no one shall be subjected to torture and ill-treatment as well as to penalties or treatment incompatible with human dignity (see Cezmi Demir and Others, no. 2013/293, 17 July 2014, § 80).

 71. The State’s obligation to respect for the individuals’ right to protect and improve their corporeal and spiritual existence primarily requires the public authorities to refrain from interfering with this right, in other words, from causing individuals physical and mental damage in cases specified in the third paragraph of the said provision. It is the State’s negative duty emanating from its obligation to respect for individuals’ corporeal and spiritual integrity (see Cezmi Demir and Others, § 81).

 72. Article 17 § 3 of the Constitution does not contain any limitation and points to the absolute nature of the prohibition of torture, inhuman and degrading treatments or penalties. The absolute nature of the prohibition of ill-treatment does not allow for an exception even in times of war or any other general threat to the nation within the meaning of Article 15 of the Constitution (see Turan Günana, no. 2013/3550, 19 November 2014, § 33).

 73. Given its effects on individuals, ill-treatment is graded and defined with different terms in the Constitution. Therefore, it appears that the expressions included in Article 17 § 3 of the Constitution involve difference in terms of intensity. In order to ascertain whether a treatment may be qualified as torture, it is necessary to consider the distinction between the notions of mal-treatment as well as treatment incompatible with human dignity and the notion of torture that are specified in the said provision. It appears that such distinction is set by the Constitution with a view to attaching a special stigma to deliberate inhuman treatment causing very serious and cruel suffering and grading such treatments; and that these notions have a broader and different meaning than those of the offences of torture, ill-treatment and insult which are set out in the Turkish Criminal Code no. 5237 (see Cezmi Demir and Others, § 84).

 74. Accordingly, pursuant to the given constitutional provision, treatment causing damage, to the highest extent, to an individual’s corporeal and spiritual existence may be qualified as torture (see Tahir Canan, § 22). In addition to the severity of the treatment, there is a purposive element to torture, as recognised in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which in Article 1 defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating (see Cezmi Demir and Others, § 85).

 75. Inhuman treatments which do not attain the level of torture but which have been premeditated, inflicted for hours during a long period and have caused physical injury, or moral or physical suffering may be defined as mal-treatment (see Tahir Canan, § 22). Suffering caused in such cases must go beyond the suffering inevitably inherent in a legitimate treatment or punishment. Unlike torture, mal-treatment does not involve the condition of causing a suffering with a certain motivation (see Cezmi Demir and Others, § 88).

 76. Treatments which arouse feelings of fear, anguish or inferiority capable of humiliating and embarrassing individuals or which cause the victim to act against his own will and conscience may be characterised as treatment or penalty incompatible with the human dignity (see Tahir Canan, § 22). Unlike mal-treatment, such treatment creates a humiliating or degrading effect on the individual, rather than any physical or mental suffering (see Cezmi Demir and Others, § 89).

 77. In order to determine under the scope of which notion a treatment falls, each concrete case must be assessed in the light of its own particular circumstances. If a treatment is applied publicly or the public is informed of such treatment, it would play an important role in qualifying a treatment as degrading and incompatible with human dignity. However, it is also defined as ill-treatment if it makes him feel inferior. Besides, it is also taken into consideration whether the treatment is applied with the intent of humiliation or degradation. However, the failure to establish such intent would not mean that the treatment does not amount to ill-treatment. A treatment may be in the form of both inhuman treatment/mal-treatment and degrading treatment/treatment incompatible with human dignity. Any given form of torture constitutes inhuman or degrading treatment; however, every degrading treatment incompatible with human dignity may not amount to inhuman treatment/mal-treatment. Detention conditions, treatments towards those detained, discriminatory behaviours, defamatory expressions used by state agents, certain unfavourable situations experienced by the disabled, or degrading treatments such as forcing a person to eat or drink something unusual may constitute treatment incompatible with human dignity (see Cezmi Demir and Others, § 90).

 78. In addition, a treatment must attain a minimum level of severity if it is to fall within the scope of Article 17 § 3 of the Constitution. This minimum threshold is relative and must be determined in accordance with the particular circumstances of each case. In this scope, certain factors such as duration of the treatment, its physical and psychological effects and the victim’s sex, age, and health condition are of importance (see Tahir Canan, § 23). In addition, the reason and purpose of the said treatment must also be taken into account. Whether the alleged ill-treatment had been imposed during an excited and strong emotional situation should be taken into consideration, as well (see Cezmi Demir and Others, § 83).

 79. It should be noted that Article 17 of the Constitution does not prohibit the use of force for effecting an arrest. Nevertheless, such force may be used only if it is indispensable, and it must never be excessive (see Ali Rıza Özer and Others [Plenary], no. 2013/3924, 6 January 2015, § 81).

 80. Recourse to physical force by security officers only in certain circumstances with definite boundaries may be considered not to form ill-treatment. In this sense, it is possible to apply physical force in cases necessitating arrest during meetings and demonstration marches on account of the demonstrators’ own conducts. However, even in such cases, security officers may have recourse to physical force only if it is inevitable and applied in a proportionate way (see Ali Rıza Özer and Others, § 82).

 ii. Application of Principles to the Present Case

 81. As a result of panic and turmoil caused due to intervention by the law enforcement officers in social events, those who have attended the events but not led to any intervention or who have not attended the events but have been present at or around the incident scene may also be affected by this intervention. In this case, the law enforcement officers are to act in a controlled manner and to take the necessary measures so as to prevent any person other than those involved in the incident intervened by the law enforcement officers from being affected. It must nevertheless be acknowledged that it may be difficult for the law enforcement officers to strictly apply these measures given the turmoil and panic caused by the intervention (for the Court’s judgment in the same vein, see Ali Rıza Özer and Others, § 94).

 82. In the present case, the applicant complained of the use of a gun with painted rubber ball against her. In this sense, the question to be discussed in the present case is whether the way in which this gun was used, which may give rise to severe injuries in case of being fired in an inappropriate manner, was appropriate in the particular circumstances of the present case.

 83. Also, in the assessment which will be made as to the use of force by public officers, regard must be had to both the acts performed by those applying force and all stages of the incident, as a whole, including the planning and control of such acts (see Cemil Danışman, no. 2013/6319, 16 July 2014, § 57). The Court has applied this principle not only in the cases where the impugned interventions gave rise to death or fatal injuries and were examined under the scope of the right to life, but also in the case of Özlem Kır involving the alleged violation of the prohibition of ill-treatment given the dangerous nature of tear gas canisters, insofar as relevant.

 84. Besides, the Court has held that the principles so far set concerning the use of firearms must be taken into consideration, insofar as relevant, as a criterion also in the assessments as to the use of tear gas canisters, which may give rise to deaths or severe injuries if fired inappropriately (see Turan Uytun and Kevzer Uytun, § 59).

 85. Given the fact that O.N., K.D. and S.B. were also injured along with the applicant, who was severely injured during the impugned incident, it has been considered that the risk of causing death or injuries posed by guns firing painted rubber balls is not of lenient nature that could be ignored. Therefore, the criteria applied to the cases concerning deaths or injuries resulting from the use of firearm must also be applied, insofar as relevant, to the present case.

 86. In the cases directly resulting from the use of a gun, the investigation authorities must ex officio reveal that it has been used in an inevitable situation of the last resort and in a proportionate manner, as required by Article 17 of the Constitution. In this sense, the acts performed by the law enforcement officers, as well as the questions whether they were instructed appropriately, whether they were provided with sufficient training to use the guns firing painted rubber balls and whether they were negligent in taking measures so as to prevent the possible risks are to be assessed.

 87. In the present case, it has been found established that the applicant was injured for being hit in her eye by a painted rubber ball. However, there were certain deficiencies in the investigation conducted by the incumbent chief public prosecutor’s office with respect to the examination as to the alleged violation of the procedural aspect of the prohibition of treatment incompatible with human dignity. These deficiencies have hindered an assessment as to the questions whether the law enforcement officers using the gun had been trained in this respect, which actions had been performed and measures had been taken within the scope of the planning and control of the operation, as well as whether the legislation -whereby the law enforcement officers are empowered to use force- entails the necessary safeguards to prevent arbitrary and excessive use of such guns and to protect individuals from undesired accidents.

 88. Therefore, the assessment as to the alleged violation of the procedural aspect of the prohibition of treatment incompatible with human dignity would be limited to the acts performed by law enforcement officers firing the gun with painted rubber balls during the impugned incident.

 89. In the present case, the law enforcement officers taking measures to prevent any tragic events between students with opposing views after the demonstration held at the university campus tried to disperse the groups of students as some of them threw stones at them. The officers fired their guns with painted rubber balls to disperse the students, without pointing their guns at anyone, against those who were within the group attacking them and were far away. The law enforcement officers however failed to consider that there were also other students, who did not involve in the incident, as the incident scene was a university campus. The applicant sustained an injury for being hit by one of these painted rubber balls.

 90. Although it appears from the available information and documents that there was an uproar during the incident, such an uproar did not eliminate the law enforcement officers’ obligations to act in a controlled manner and to take the necessary measures to prevent any other person, who was not involved in the incident, from being affected by the intervention.

 91. Regard being had to the consideration that the impugned incident took place due to the law enforcement officers’ use of the gun with painted rubber balls in a way that would result in possible injuries and even deaths, it cannot be said that the applicant’s injury was compatible with the expected consequences of the force used, and the necessary measures taken, by the law enforcements officers.

 92. As a result, it has been concluded that the law enforcement officers failed to take the necessary measures to prevent the applicant from being affected by their intervention and caused her injury by firing painted rubber ball in an uncontrolled manner and without pointing the gun at anyone.

 93. Taking into consideration the particular circumstances of the present case and the report obtained by the administrative court with respect to the applicant’s injury, the Court concluded that the treatment by the law enforcement officers attained a certain level of severity, which went beyond a minimum level of severity envisaged by Article 17 § 3 of the Constitution.

 94. Following this determination, it must be ascertained to which level the impugned act by the law enforcement officers attained. In this sense, considering the present case as a whole, the Court qualified the impugned acts as a treatment incompatible with human dignity.

 95. For these reasons, the Court found a violation of the substantive aspect of the prohibition of treatment incompatible with human dignity, which is safeguarded by Article 17 § 3 of the Constitution.

 b. Alleged Violation of the Procedural Aspect of the Prohibition of Treatment incompatible with Human Dignity

 i. General Principles

 96. The positive obligation incumbent on the State within the scope of the right to protect one’s corporeal and spiritual existence also has a procedural dimension. Taken in conjunction with the general obligation laid down in Article 5 of the Constitution titled “Fundamental aims and duties of the State”, Article 17 thereof requires the State to conduct an effective official investigation capable of identifying and -if appropriate- punishing those responsible for any kind of unnatural physical and psychological assaults (see Cezmi Demir and Others, § 110).

 97. The purpose of the criminal investigations conducted into such incidents is to ensure the effective application of the provisions of law intended for protecting the individuals’ corporeal and spiritual existence as well as to hold those responsible accountable for death or injury. This is not an obligation of result, but one of means. However, the assessments specified herein do not imply that Article 17 of the Constitution entails the right for the applicants to have third parties prosecuted or sentenced for a criminal offence or imposes a duty to conclude all proceedings with a verdict of conviction or punishment (see Cezmi Demir and Others, § 113).

 98. The obligation to conduct an effective investigation is considered to be satisfied only when:

 - The competent authorities have acted ex officio immediately after becoming aware of the incident and gathered all available evidence capable of leading to the clarification of the incident and identification of those responsible (see Cezmi Demir and Others, § 114);

 - The investigation has been open to public scrutiny, and the victims have been ensured to effectively participate in the investigation for the protection of their legitimate interests (see Cezmi Demir and Others, § 115);

 - The individuals responsible for the investigation and those carrying out the inquiries are independent from those involved in the incident (see Cezmi Demir and Others, § 117);

 - The investigations have been carried out with reasonable diligence and expedition (see Deniz Yazıcı, no. 2013/6359, 10 December 2014, § 96).

ii. Application of Principles to the Present Case

99. It appears that in the present case, the applicant did not raise any allegation to the effects that the investigation authorities, being aware of the alleged violation of the prohibition of ill-treatment specified above under the heading “General Principles”, failed to take an action immediately; that her effective participation in the investigation process in pursuance of her legitimate interests was not ensured; and that the individuals responsible for the investigation and those carrying out the inquiries were not independent from those involved in the incident. Nor is there any deficiency in that regard. Indeed,

 i. The incumbent chief public prosecutor’s office immediately launched an ex officio investigation into the incident without waiting for an official complaint by the applicant.

 ii. At the investigation stage, the applicant’s statements were taken several times, and the applicant, who had the opportunity to challenge the decision of non-prosecution rendered at the end of the investigation, was not precluded from participating in the investigation.

 iii. The police officers of various departments, who had jointly intervened in the incident, did not take role in the investigation.

100. Moreover, the impugned investigation must be assessed also in terms of the requirements that all evidence capable of clarifying the particular circumstances of the incident be collected and that the investigation be conducted with reasonable diligence and expedition.

101. In her statement, the applicant stated that she had been walking along with her friend at the time of incident during which she saw a man in black and holding a gun. Her friend, O.N. also noted that there had been police officers in civilian clothes, who were holding a gun with painted rubber balls at their hands. Pursuant to these statements, although it was possible to identify the police officers in civilian clothes to whom these guns with had been provided and whether they had been provided necessary training and had received a certificate for the use of that kind of gun, as well as to identify and take the statements of the person who was with the applicant at the time of incident and thereby eye-witnessed to the impugned incident and to show the applicant and her friend the photos of the suspected police officers for identification, the incumbent chief public prosecutor’s office issued a permanent search warrant as regards those responsible on 15 November 2007. Besides, until 19 January 2010, the chief public prosecutor’s office did not take any step for the identification of the perpetrators other than including the minutes -issued to the effect that the perpetrators could not be identified- into the investigation documents.

102. Although the relevant security directorate indicated that the incident report had been signed only by certain law enforcement officers, the chief public prosecutor’s office sent a writ to the public security branch office and ordered that the defence submissions of a total of 42 chief police officers and officers who undersigned the incident report be obtained. The chief public prosecutor’s office also requested by letters rogatory from the relevant chief public prosecutor’s office to take the statements of the other officers who had been appointed to other places. However, the chief public prosecutor’s office also issued, for an unspecified reason, a new instruction to the public security branch office and ordered it not to take the submissions of the relevant chief public officers and public officers. A.G., one of the officers whose statement was taken by letters rogatory, stated “At the time of incident, I was holding office at the Kocaeli Security Directorate. The registration number and signature on the minute did not belong to me and there was a confusion for the similarity in name as there was another police officer with the name A.G.”. The other police officers, S.A., M.T., U.D. and A.E. indicated that receiving a training and a certificate was necessary to use this gun. The chief public prosecutor’s office, which did not conduct any inquiry into the allegations of the law enforcement officers whose statements had been taken, issued an additional decision of non-prosecution in respect of the officers whose statements had been taken on the grounds that 1.500 law enforcement officers had intervened in the incident; that the report issued with respect to the incident had been signed not by all officers involved in the incident, but only by a certain part of them; and that no sufficient evidence could not be obtained for filing a criminal case against them for the imputed offence.

103. Failing to take into account that the applicant’s challenge against the additional decision of non-prosecution was accepted as “the discontinuation of the prosecution due to the non-identification of the police officer who performed the impugned act would not comply with the provisions of law and conscience. If necessary, all police officers intervening in the impugned incident are to be identified and questioned, and those who possessed the guns at the time of incident are to be identified through the official records”, the chief public prosecutor’s office filed a criminal case against the police officers whose statements had been taken through letters rogatory for having caused a severe injury by exceeding the allowable limit of using force. However, an acquittal decision was issued at the end of the criminal case as there was no identified perpetrator.

104. At the end of the investigation initiated on the criminal complaint filed by the incumbent criminal court for the identification of the real perpetrator(s), a permanent search warrant was issued once again, and the investigation initiated on 23 October 2007 could not be concluded despite the period of over 10 years that elapsed.

105. Regard being had to the failures to take the necessary steps in a timely fashion for the identification of those responsible, to conduct an effective investigation for the identification of the perpetrator(s) for over 2 years until 19 January 2010, to file a criminal case without an inquiry into the arguments raised by the suspects in their defence submissions and without identifying the real perpetrator(s) as well as the period of over 10 years during which the investigation could not be concluded, the Court has concluded that the investigation in the present case was not conducted with reasonable diligence and expedition, and that all evidence capable of leading to the clarification of the incident and identification of those responsible was not collected during the investigation.

106. For these reasons, the Court found a violation of the procedural aspect of the prohibition of treatment incompatible with human dignity, which is safeguarded by Article 17 § 3 of the Constitution.

3. Application of Article 50 of Code no. 6216

107. 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.”

108. The applicant claimed 5,000 Turkish liras (“TRY”) and TRY 50,000 respectively for the pecuniary and non-pecuniary damage she sustained.

109. In the present case, it has been concluded that the substantive and procedural aspects of the prohibition of treatment incompatible with human dignity were violated.

110. The applicant did not submit to the Court any document to substantiate the pecuniary damage she had allegedly sustained. For the Constitutional Court to award pecuniary damages, a causal link must be established between the material damage alleged to be suffered by the applicant and the established violation. Therefore, the applicant’s claim for pecuniary compensation must be rejected as she did not submit any document on this matter.

111. A net amount of TRY 20,000 must be awarded to the applicant for the non-pecuniary damage she sustained due to the violation of the treatment incompatible with human dignity.

112. The case file must be sent to the chief public prosecutor’s office for the redress of the violation and its consequences.

113. The total court expense of TRY 2,206.90 including the court fee of TRY 226,90 and counsel fee of TRY 1,980, which is calculated over the documents in the case file, must be reimbursed to the applicant.

VI. JUDGMENT

The Constitutional Court UNANIMOUSLY held on 28 June 2018 that

A. The alleged violation of the prohibition of treatment incompatible with human dignity be DECLARED ADMISSIBLE;

B. The substantive and procedural aspects of the prohibition of treatment incompatible with human dignity safeguarded by Article 17 of the Constitution were VIOLATED;

C. A copy of the judgment be SENT to the Adana Chief Public Prosecutor’s Office for the redress of the violation and its consequences;

D. A net amount of TRY 20,000 be PAID to the applicant in respect of non-pecuniary damage, and other compensation claims be REJECTED;

E. The total court expense of TRY 2,206.90 including the court fee of TRY 226.90 and counsel fee of TRY 1,980 be REIMBURSED TO THE APPLICANT;

F. The payments 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 Ministry of Justice.