Press Release No: Individual Application 14/18
23.05.2018

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF RIGHT TO LIFE DUE TO FAILURE TO CONDUCT AN EFFECTIVE CRIMINAL INVESTIGATION INTO THE INCIDENT IN WHICH A POLICE OFFICER USED FIREARMS

On 18 April 2018, the First Section of the Constitutional Court found a violation of the right to life, safeguarded in Article 17 of the Constitution, under its procedural aspect concerning the obligation to conduct an effective investigation, in the individual application lodged by Cembeli Erdem (no. 2014/19077).

The Facts

On the date of incident, the hearing-impaired applicant, who resides in Diyarbakır, saw a crowd while he was going to his house. Then, he felt a pain on his back and fell to the ground.

It was noted in the incident scene investigation report that a bullet had been removed from the applicant’s body and was secured by the university hospital.

The Security Directorate informed; that on the date of incident it had been informed that an armed terrorist organization had been preparing an attack; that some officers had fired warning shots to protect an old woman who had stayed between the officers and the terrorists; that having seen a person (the applicant) behind the group lying wounded on the ground, the officers called the ambulance; and that a police officer had also been wounded on his foot during the incident.

The Security Directorate described the injury of the applicant as an unsolved incident and stated that the cause of the injury could not be determined.

The applicant, who was paralyzed from the waist down due to spinal cord injury as a result of the incident, stated in his statement to the public prosecutor that a police officer had shot him.

Upon the instruction of the Chief Public Prosecutor’s Office, criminal examinations were conducted on the guns of the police officers who had been at the scene, and it was determined that the bullet wounding the applicant and other bullets collected at the scene had been fired from the police officer R.Ç.’s gun.

The Governor’s Office did not granted a permission for an investigation on R.Ç. on the ground that according to the examinations, the bullet had been deformed and the police officer in question had fired a warning shot, the applicant had been wounded by the bouncing bullet, and therefore there was no fault or negligence in the incident. This decision was revoked by the regional administrative court.

 The Public Prosecutor’s Office initiated a criminal case against the police officer for causing aggravated injury with probable intent. The court sentenced the accused police officer to 1 year and 8 months’ imprisonment.

However, the court concluded that the accused did not have an intent or probable intent to injure the applicant and that it was just a reckless injury. Thereupon, the court suspended the pronouncement of the imprisonment sentence. The applicant’s appeal against the court’s decision was dismissed by the assize court.

The Applicant’s Allegations

The applicant claimed that his right to life was violated because he suffered a permanent disorder due to shooting by a police officer and no effective investigation was conducted into the incident.

The Constitutional Court’s Assessment

The right to life protected under Article 17 of the Constitution, read in conjunction with Article 5 of the Constitution, imposes positive obligations on the State as well as negative obligations.

The positive obligations imposed on the State within the context of the right to life entails a procedural aspect in addition to the substantive aspect of protection. This obligation requires the authorities to conduct an effective investigation capable of identifying those responsible and, if necessary, punishing them in cases of unnatural death. The essential purpose of such an investigation is to secure the effective implementation of the law that protects the right to life and to ensure the accountability of those responsible, if any.

Although the evidence concerning the injury of the applicant was secured and it was determined as a result of ballistic examinations that the bullet wounding the applicant had been fired by the police officer, there are certain aspects hindering the effectiveness of the investigation.

It was known that some of the police officers at the scene had fired their guns during the incident and it was also known that the bullet removed from the applicant’s body had been taken by the incident scene examination unit a few hours after the incident. In light of this, it is inexplicable why the authorities had waited about six months to compare the police officers’ guns with the bullet removed from the applicant’s body. It is also inexplicable that the authorities had waited about six months to examine the footages. They had been deleted after being secured for two months.

Further, although it was accepted that the police officer who was involved in the incident had fired his gun into the air and that however the bullet had bounced off and hit the applicant’s body, the incident was not reconstructed at the scene during the investigation process.

During the investigation, no research was carried out into the deformation of the bullet in question despite the request in this aspect, and it was assumed that the deformation had occurred before the bullet entered the applicant’s body.

The most important point to be considered within the scope of the investigation is that the first statement of the suspected police officer was taken about three years after the incident, although there was no obstacle, and his gun was taken about two months after it was proven by an expert report that it had been used during the incident.

As a result, it has been concluded that the relevant authorities failed to take or they were late in taking the measures reasonably expected from them so as to reveal the material fact, in other words, to enlighten the incident.

Consequently, the Constitutional Court found a violation of the right to life, safeguarded in Article 17 of the Constitution, under its procedural aspect concerning the obligation to conduct an effective investigation.

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