Press Release No: Individual Application 9/18


On 26 December 2017, the First Section of the Constitutional Court found violations of both substantive and procedural aspects of the right to life safeguarded in Article 17 of the Constitution in the individual application lodged by Recep Kolbasar (no. 2014/5042).

The Facts

The applicant’s brother F.K. was detained and imprisoned on 12 May 2008 for intentional killing. After a while, he was examined at the psychiatry department of a state hospital. He was diagnosed with “psychotic mood disorder” and was prescribed medications.

After some time, F.K. was referred to a psychiatric hospital with the diagnosis of “psychotic disorder due to substance use” and stayed there for approximately two months upon the court’s order. The report issued by the hospital stated that F.K. had been taking drugs and stimulants for seven or eight years, that he had been living on the streets for three or four years, that he had such behaviours as talking to himself and not eating foods by telling that medicine had been added to them, and that he had undergone inpatient treatments in different hospitals with the diagnosis of drug addiction and psychotic disorder. However, it was noted that he did not suffer from any mental illness or defectiveness that might affect his criminal liability.

After some time, F.K. was examined at the psychiatry department of a training and research hospital where he was diagnosed with “antisocial personality disorder” and “bipolar disorder” and was prescribed medications.

Afterwards, on 15 December 2008 when F.K. was in prison, he cut his both wrists. Some prisoners who were staying in the same ward with F.K. requested that F.K. be taken to another ward on the ground that they were disturbed. On 16 December 2008, F.K. was taken to a single ward. On the same day, he filled out a “requisition form” in which he demanded a laundry line together with some other things. What he demanded was provided to him by the prison officers.

On 17 December 2008 at around 1 a.m., the other prisoners who were staying in another ward were suspicious about F.K.’s situation and they pushed the emergency button. Thereupon, the guardians came to F.K.’s ward and found his dead body that was hanged on the window grill with a laundry line.

On the same day at around 2 a.m., the Public Prosecutor was informed of the incident. The Prosecutor launched an investigation without delay and carried out an incident scene investigation, as well as a post-mortem examination. The autopsy report issued by the Forensic Medicine Institute stated that the laundry line in question was suitable for hanging and that the death had resulted from hanging.

Within the scope of the investigation, the Chief Public Prosecutor’s Office took statements of some of the guardians and prisoners as suspects, as well as examining the footages. The Chief Prosecutor’s Office took statements of the 1st administrator and the 2nd administrator of the prison as suspects, who were on duty at the material time, on 15 July 2010 and 12 August 2010, respectively.

On 18 September 2013, the Chief Public Prosecutor’s Office issued a decision of non-prosecution. The applicant contested the decision, but it was refused by the assize court on 7 January 2014.

The Applicant’s Allegations

The applicant alleged that although the prison officers, who failed to take the necessary measures for his brother suffering from psychological problems, had negligence in the incident, they were not indicted and that thereby F.K.’s right to life was violated.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

a. Substantive aspect of the right to life

Under certain circumstances, the State is required to take necessary measures in order to protect an individual’s life from the risks likely to be caused by the individual’s own acts.

In order for such an obligation to arise, which is also applicable for death incidents taking place in prisons, it must be primarily determined whether the prison officers were aware of or ought to be aware of the real risk that a person under their control could kill himself, and if there was such a risk, it must be examined whether they have had performed what is expected from them for elimination of this risk, within reasonable limits and within the scope of their powers.

In the present case, F.K. had been examined at the psychiatry department several times and had been prescribed various medications for treatment. Furthermore, in order to determine whether F.K. had been mentally ill or not, he had stayed at the psychiatric hospital for approximately two months. Ultimately, he had cut his both wrists. Therefore, the authorities can be said to have known that there had been a risk on the part of F.K. to kill himself. Accordingly, in the circumstances of the present case, it is clear that the authorities ought to have taken the necessary preventive measures to protect F.K.’s health and to protect him from self-harm.

It is understood that in the prison there were two specially-designated wards where prisoners who suffered from mental illnesses or who might cause harm to themselves were kept until they calmed down or were referred to a healthcare institution. Although F.K. was undergoing a psychological treatment and had harmed himself, he was taken to a single ward, as well as being allowed to buy a laundry line. These cannot be regarded as simple erroneous considerations or negligence, and it also cannot be said that the necessary preventive measures had been taken to protect F.K.’s health and to protect him from self-harm.

In view of the reasons explained above, the Constitutional Court has found a violation of the obligation to protect one’s life under its substantive aspect.

b. Procedural aspect of the right to life

In order for a criminal investigation to be effective, the investigation authorities must act ex officio and immediately must determine all evidence capable of clarifying the death incident and identifying those responsible. Any deficiency in the investigation which undermines its ability to establish the cause of death or identify those responsible will fall short of the obligation to conduct an effective investigation. Investigations must also be conducted at reasonable speed.

In the present case, although the other investigation processes were concluded in a short period such as five months, the statements of the suspects were taken one and a half years after the incident, and the investigation lasted about five years. Given the acts carried out within the scope of the investigation, this period cannot be considered reasonable.

In addition, the Public Prosecutor’s Office held that selling laundry lines in prisons was in compliance with the legislation and issued a decision of non-prosecution on the ground that F.K. had committed suicide. However, the fact that the circumstances of the present case cannot be regarded as an erroneous consideration or negligence, as explained above, were not taken into consideration.

In view of the reasons explained above, the Constitutional Court has found a violation of the right to life under its procedural aspect.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

The Constitutional Court of the Republic of Turkey © 2019