Press Release Nr: Individual Application 38/16
12.10.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF Z.C. ON THE PROHIBITION OF TORTURE AND ILL-TREATMENT

The Constitutional Court held, at its plenary meeting on 11/5/2016, with regard to the individual application lodged by Z.C. (application no. 2013/3262) that there had been a breach of the prohibition of torture and ill-treatment guaranteed in Article 17 § 3 of the Constitution under its procedural aspect.

The facts

While the applicant Z.C. was sixteen years old, she started to live together with the suspect A.L., who was twenty four years old, without an official marriage only by holding a wedding ceremony on 15-16/10/2011. On 4/6/2012, they actually ended their relationship. On 21/6/2012, the applicant filed a criminal complaint before the Kayseri Chief Public Prosecutor’s Office against the suspect A.L. for the acts of aggravated sexual abuse of a child, depriving an individual of her liberty for sexual purpose, insult, threat and intentional wounding performed by him. Thereupon, the Chief Public Prosecutor’s Office initiated an investigation against A.L.

Z.C. and her father A.C. declared that A.L. started to live together and have a sexual intercourse with Z.C. through oppression, harassment and threat; that he had several times resorted to verbal and physical violence; that when the applicant’s father had become aware of the incident taking place, the applicant was given shelter by her family; and that they had thereupon filed a criminal complaint against A.L.. It was stated in the assessment report as to the forensic evaluation of 6/7/2012 prepared by the social service specialist that Z.C.’s psychological state was not good and therefore it would be appropriate for her to receive treatment in a juvenile psychiatric clinic. The suspect A.L. noted in his defence submissions before the Public Prosecutor’s Office that he and Z.C. held a wedding ceremony upon free will of their families; that as they were minors at the relevant time, they could not make an official marriage; that upon their marriage, they had voluntarily engaged in sexual intercourse; and that he accordingly denied the accusations against him. He also maintained that he himself had made Z.C. return her family’s home for having committed adultery. He submitted their photos taken at their wedding ceremony and messages in his mobile phone as evidence indicating that Z.C. had committed adultery. It was specified in the report dated 4/7/2012 and drawn up by the Presidency of the Forensic Medicine Department of the Erciyes University that there were signs on the applicant’s body matching with the violence and sexual intercourse alleged to be exposed by her; and that an examination to be made by child psychiatry would be appropriate for determination of the effects of such incidents on her mental health.

As a result of the investigation conducted, the Kayseri Chief Public Prosecutor’s Office rendered a decision of non-prosecution on 26/7/2012 indicating that as specified by the victim in her own defence submissions, she had engaged in sexual intercourse of her own free will; that the offence of having sexual intercourse with a minor is subject to a criminal complaint; that although the right to raise a complaint was to be enjoyed within 6 months as per Article 73/1 of the Turkish Criminal Code (“TCC”), the victim had lodged a criminal complaint more than one year after the incident; and that there was no sufficient and plausible evidence with regard to the intangible allegations that the offences of threat and insult had been committed. The objection made to this decision was dismissed by the Boğazlıyan Assize Court with its decision of 7/3/2012. The dismissal decision was notified to the applicant on 17/4/2013.

The Applicant’s Allegations

The applicant maintained that they had held a wedding ceremony as the suspect A.L. had threatened her and her family; that thereafter she had to live together with A.L. and she had to leave his school and the workplace where she was working due to his oppression; and that the suspect raped her for five or six times during that period and continuously insulted her. She also alleged that the investigation had not been carried out in an effective manner; that messages sent to the suspect had been sent from a mobile phone not belonging to her, however this situation had not been investigated; and that with regard to the allegation that “the complaint had not been filed within the prescribed time”, the determination specified in the report drawn up by the Forensic Medicine Institute that “there had been a sexual intercourse at least 7-10 days before the medical examination” had not been taken into account. The applicant accordingly maintained that there had been a violation of the prohibition of torture and ill treatment guaranteed in Articles 17 and 41 of the Constitution and of the legal provisions concerning the child rights.

The Court’s Assessment

The Constitutional Court briefly made the following assessments within the scope of such allegations:

Within the scope of the individuals’ right to protect and develop their material and spiritual entity, the State is liable to conduct an effective investigation capable of identifying those responsible for the incident of physical and mental assault and enabling them to be punished, if necessary. Although, with regard to the acts considered to fall into the scope of “sexual intercourse with a minor” and alleged to be performed in a successive manner, the date of offence and thereby the starting date of the six-month period during which the complaint petition would be submitted are the date when the last sexual intercourse took place and although the applicant maintained that they had engaged in sexual intercourse for five or six times during the period they had lived together, any step was not taken during the investigation stage for determination of the date of offence, and it was accepted contrary to the ordinary flow of life that such act had been performed voluntarily only on 15-16 October, the date of wedding ceremony. It was accordingly acknowledged that such kind of subsequent acts had been also performed voluntarily, and consequently held that the criminal complaint had not been filed within the prescribed period. All of these facts reflect the opinion that the investigative authorities failed to struggle for revealing the allegations of ill-treatment in a serious manner and reached manifestly ill-founded conclusions.

In her complaint petition and statement, the applicant alleged that the suspect had battered her on various dates. However, any assessment was not made with regard to such allegations in the decision of non-prosecution. Although the applicant asserted a defendable allegation, in conjunction with the other evidence obtained at the investigation stage, that she had been subject to a treatment degrading human dignity, it has been concluded that an effective investigation was not conducted into such allegations.

It has been consequently held by the Constitutional Court that there was a breach of the prohibition of treatment incompatible with human dignity, which is guaranteed in Article 17 § 3 of the Constitution, under its procedural aspect.

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

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