Press Release No: Individual Application 23/18
03.07.2018

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF THE PROHIBITION OF ILL-TREATMENT DUE TO SYSTEMATIC ACTS TO FORCE STUDENTS TO QUIT THE AIR FORCE ACADEMY

On 24 May 2018, the Second Section of the Constitutional Court found a violation of the prohibition of ill-treatment, safeguarded in Article 17 of the Constitution, in the individual application lodged by Bayram Tuğrul Yıldırım and Hasan Yıldırım (no. 2014/5280).

The Facts

The applicant Bayram Tuğrul Yıldırım, while studying at the Air Force Academy (AFA), received disciplinary punishments, and therefore he was dismissed from the academy with the decision of the High Disciplinary Board of the AFA.

The applicant filed a criminal complaint with the Military Prosecutor’s Office, alleging that he had systematically been subject to ill-treatment in the AFA. In his petition, the applicant also claimed that he had been subjected to acts amounting to ill-treatment which had no relation with the education, and he gave details of these acts.

In addition, the applicant filed a case with the Supreme Military Administrative Court (SMAC) for annulment of the decision on his dismissal from the AFA. However, he subsequently withdrew the case. Therefore, the SMAC held that there was no ground to decide on the dispute as to its merits. However, although no decision was rendered on the merits of the case due to the applicant’s withdrawal, the SMAC submitted its observations on the merits of the case, by virtue of the importance of the application. In its observations, the SMAC stated that most of the applicant’s acts that led to his dismissal did not attain the minimum level of severity that might undermine the military discipline to an irreparable extent and that the decision on his dismissal from the AFA must be revoked.

The Military Prosecutor’s Office launched an investigation against those responsible and rendered a decision of non-prosecution.

The Military Court of the Provincial Army Command dismissed the applicant’s objection to this decision.

The Applicant’s Allegations

The applicant claimed that the prohibition of ill-treatment was violated because some military officers and students carried out systematic acts incompatible with human dignity against other students to force them to quit the AFA and resulted in their dismissal with made up disciplinary charges.

The Constitutional Court’s Assessment

Article 17 § 3 of the Constitution stresses that the prohibition of ill-treatment must not be violated regardless of the purpose of authorities or the acts of persons.

The States have a positive obligation to establish effective measures to prevent individuals from being subject to ill-treatment. This obligation requires that in cases where an individual has an arguable claim that s/he has been subject to unlawful treatment by a public official, the State must conduct an effective investigation capable of identifying those responsible and, if necessary, punishing them.

In a case in which similar complaints had been made on similar grounds to the present one, the Constitutional Court held that the prohibition of ill-treatment was violated in terms of procedural obligation.

The case file reveals that some witnesses heard within the scope of the investigation supported the applicant’s allegations to a great extent. Similar allegations were also included in the report of the Turkish Grand National Assembly issued prior to the Military Prosecutor’s decision of non-prosecution.

The fact that the applicant was given punishment approximately every ten days supports his claim that the acts he was subject to were conducted systematically. The determinations of the Constitutional Court in the –above mentioned– similar case that the FETÖ/PDY organization infiltrated the AFA and the fact that some of the suspects the applicant complained about were dismissed from the public service following the coup attempt of 15 July indicate that the applicant put forward an arguable claim.

It must be find out whether the applicant’s use of psychiatric drugs while he was a student and symptoms identified by the psychiatrists following his dismissal were resulted from the alleged acts of ill-treatment or not.

The investigation contained no element demonstrating that an examination was made into allegations as to whether the acts against the applicant had been conducted within an organizational structure and in a widespread manner and whether such acts were also directed towards other students.

Furthermore, there has been no satisfactory explanation as to why the witness statements supporting the applicant’s allegations were not taken into consideration. In the case of an alleged ill-treatment in a systematic and organized manner against those outside of a particular group, giving greater weight to the statements of some witnesses who testified against the applicant may have a hindering effect in finding substantive truth.

It has been concluded that even though the applicant made an arguable claim supported by certain evidence in the case file, this claim was not investigated adequately.

Consequently, the Constitutional Court has found a violation of the procedural aspect of the prohibition of ill-treatment safeguarded in Article 17 of the Constitution.

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

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