Press Release No: Individual Application 32/18
31.07.2018

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF THE PROHIBITION OF ILL-TREATMENT DUE TO INJURY RELATING TO POLICE FORCE AND FAILURE TO CONDUCT AN EFFECTIVE INVESTIGATION

On 28 June 2018, the First Section of the Constitutional Court found a violation of the prohibition of treatment incompatible with human dignity, safeguarded in Article 17 of the Constitution, in the individual application lodged by Pınar Durko (no. 2015/16449).

The Facts

A group of university students organized 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 a group of students did not disperse and attacked the police officers by throwing stones, the police officers resorted to the use of force. During their interference, 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 and 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 went to the hospital by her friend’s car.

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 until 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. Concerning the file of the applicant’s injury, a permanent search warrant was issued.

The permanent search warrant ordered the search of the perpetrator(s) until its expiry and submission of periodical reports of 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 whom had been given 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 interfered with 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. The Chief Public Prosecutor’s Office issued a decision of non-prosecution.

Upon the objection of the applicant, the Assize Court revoked the decision of non-prosecution. The Chief Public Prosecutor’s Office initiated a criminal case before the Criminal Court against some police officers on the ground that they committed the offence of grievous bodily harm by exceeding the limits of the use of force.

The Criminal Court acquitted the accused as they were not proven guilty. This decision became final as it was not appealed. The Criminal Court 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 time period.

The Applicant’s Allegations

The applicant states that she is unable to use one of her eyes as a result of the use of force by the police officers; however, the responsible officer was not identified and the investigation was not completed within the reasonable time. Accordingly, the applicant alleged that her right to a fair trial was violated.

The Constitutional Court’s Assessment

The applicant’s allegations relating to the right to a fair trial were considered within the scope of the prohibition of treatment incompatible with human dignity safeguarded in Article 17 of the Constitution.

In its previous judgments, the Constitutional Court held that individual applications would be honoured in cases if no investigation was launched, no progress was made in an investigation, no effective criminal investigation was conducted, or if there was no reasonable expectation that such an investigation would be conducted in the future.

The complaints concerning the prohibition of treatment incompatible with human dignity have been examined separately under the substantial and procedural aspects, regard being had to the State’s negative and positive obligations.

1. Alleged Violation of the Substantial Aspect
During interference with public incidents, the police officers are expected to act in a controlled manner and take the necessary measures to ensure that the persons other than those who created the situation requiring interference are not affected. The investigation authorities must ex officio prove that the use of force in the incidents that occurred as a result of the direct use of weapons was strictly necessary and proportionate in accordance with Article 17 of the Constitution.

The investigation conducted by the Chief Public Prosecutor’s Office did not allow for an assessment as to whether the police officers who fired painted rubber balls during the interference had been trained in this respect and whether the measures that were taken in the planning and control of the operation contained guarantees that would prevent the arbitrary and excessive use of such guns and prevent individuals from the accidents.

Although it has been understood that there was a rush during the incident, the uproar in question does not remove the police officers’ obligation to act in a controlled manner and to take the necessary measures to ensure that the persons other than those who created the situation requiring interference are not affected by it.

As a result, it was concluded that the police officers failed to take the necessary measures to prevent the applicant from being affected by the interference and that during the interference they used guns firing painted rubber balls in an uncontrolled manner, namely without setting a target, and caused the applicant to get injured.

Consequently, the Constitutional Court found a violation of the substantial aspect of the prohibition of treatment incompatible with human dignity safeguarded in Article 17 § 3 of the Constitution.

2. Alleged Violation of the Procedural Aspect

In the present case, although it was possible to determine which police officers had been given guns firing painted rubber balls and which police officers had received certificate to use this gun, as well as, it was possible to identify the perpetrator by determining the person near the applicant and taking her/his statement and making her/him identify the relevant police officers, the Chief Public Prosecutor’s Office issued a permanent search warrant.

The sole action taken by the Chief Public Prosecutor’s Office was to include in the investigation file the police reports issued occasionally to identify the perpetrator. The criminal case initiated by the Chief Public Prosecutor’s Office resulted in an acquittal decision, as it had been filed before the perpetrator was identified. A permanent search warrant was also issued within the scope of the investigation that was launched upon a motion filed by the Criminal Court for the identification of the perpetrator(s). However, the investigation could not be concluded although more than a decade has elapsed.

As a result, it cannot be said that the investigation was conducted with reasonable diligence and promptness and that all evidence capable of clarifying the incident and identifying those responsible was collected.

Consequently, the Constitutional Court found a violation of the procedural aspect of the prohibition of treatment incompatible with human dignity safeguarded in Article 17 § 3 of the Constitution.

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