Press Release No: Individual Application 31/16
22.06.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF İPEK DENİZ AND OTHERS ON THE RIGHT TO LIFE

On 21/4/2016, the Second Section of the Constitutional Court held with regard to the individual application of İpek Deniz and others (no. 2013/1595) that there had been a breach of the right to life guaranteed in Article 17 of the Constitution.

The Facts

The applicants were born in 1998, 1999 and 2001 and are the children of Mehmet Deniz (M.D.) who was born in 1950 and lost his life on 5/3/2008 and his wife who was born in 1963.  

An activity which was organized by the district branch of a political party by means of obtaining authorization from the relevant District Governorship turned into a protest in favour of a terror organization and its leader, and the demonstrators blocking the roads during the protest were dispersed by the police. Quarrels took place between the citizens whose buildings and workplaces were damaged on account of the uproars created by the demonstrators by means of removing paving stones and the groups making protests, and the quarrel was terminated through the police intervention. In the course of the incidents taking place, 14 police officers were injured, and a large number of police vehicles, two vehicles belonging to the public banks and workplaces of the citizens were damaged. The police reported the incidents taking place to the Chief Public Prosecutor’s Office.

Upon the instruction of the Chief Public Prosecutor’s Office, 108 persons identified to get involved in the incidents were arrested until 04:30 p.m. on the incident day. Name of M.D., the next-of-kin of the applicants, was also included in this arrest warrant. After having been arrested by the law enforcement officers on the incident day, M.D. was directly taken to the Security Directorate without a forensic report drawn up in respect of him. M.D., who was held in the Security Directorate for a while (there is no record concerning the custodial cell), was subsequently taken to a State Hospital at 06:10 p.m. by a police vehicle upon deterioration of his state of health. The doctor performing his first medical examination issued a report in which it was specified that he was exposed to a risk of death on account of blows he had received on his head.

M.D. was urgently referred to the Van State Hospital and lost his life in this hospital on the same day. At the end of the post-mortem examination and autopsy carried out by the Van Chief Public Prosecutor’s Office, M.D.’s definitive cause of death was determined to be “respiratory and cardiac insufficiency resulting from cerebral haemorrhage suffered due to blunt trauma to his head”.

An ex-officio investigation was initiated into the incident on 6/3/2008 by the Chief Public Prosecutor’s Office. Within the scope of the investigation, the applicant İpek Deniz, who is M.D.’s wife, maintained that her husband had been beaten and killed by the police officers while returning from a condolence visit on the day of incident; and that she would subsequently report the name of the eye-witnesses in a petition. Upon the applicant’s request, M.D.’s grave was opened, and his death body was sent to the İstanbul Forensic Medicine Institute for being subject to an autopsy once again. As a result of the autopsy performed by the Morgue Specialization Board of the İstanbul Forensic Medicine Institute, the definitive cause of death of the person on whose body there were wide traumatic lesions and rib fractures was determined to be “brain tissue destruction and brain haemorrhage resulting from blunt head trauma.

A large number of witnesses were heard by the Chief Public Prosecutor’s Office concerning the incident. A large majority of the witnesses stated that they had not directly seen the incident. In this respect, only M.S.K., M.E.M., F.C. and S.S. stated that they had witnessed the incident. In their statements, the witnesses noted that the police officers had hit M.D. with pickaxe handles and truncheons, and one of the witnesses, S.S., identified one police officer.

Statements of other police officers whose names were included in the arrest warrant by the Chief Public Prosecutor’s Office were not taken. The authorities only examined the statements taken within the scope of administrative investigation conducted by the police inspectors into the incident. The investigation was completed within one year, and a criminal case was brought against the police officer in question for the offence of “causing death as a result of aggravated intentional wounding by exceeding the limit of the right to use force”.

The Erciş Assize Court decided to return the bill of indictment on the ground that “any police officer taking office on 5/3/2008 was not heard as a witness”. The objection raised against the decision by the Chief Public Prosecutor’s Office was accepted by the 1st Chamber of the Van Assize Court.

The proceeding starting with the hearing of 16/7/2009 lasted for twelve hearings and was completed on 2/6/2011. The police officers noted in their statements that they did not know who was the police officer taking M.D. under custody. The witnesses, M.S.K., M.E.M., F.C. and S.S. whose statements had been taken during the investigation were questioned by the court. They emphasized that they could not exactly remember the details as the incident took place approximately two years ago and gave statements partially contradicting with their previous statements before the prosecutor’s office. At the end of the proceedings, it was decided that the accused police officer be acquitted. 

The court also decided that when the decision became final, a criminal complaint would be filed before the Chief Public Prosecutor’s Office for the necessary action to be taken for the identification of the police officers causing the death of M.D. and subsequently opening a criminal case against them.  The appeal lodged by the applicant against this decision was dismissed by the Court of Cassation.

“A special report concerning the disproportionate use of force in the demonstrations taking place in Erciş and the death of Mehmet Deniz” was drawn up by a panel of five persons consisting of the Van Bar Association, the Van Branch of the Human Rights Association and the Van Branch of the Association of Human Rights and Solidarity for Oppressed People (“Mazlumder”) and submitted to the Chief Public Prosecutor’s Office on 14/3/2008.

This report included the interviews made with the persons named S.S., İ.M., F.C., M.P., M.T., M.S.K., S.K. and H.S., the observations and findings made and reached by the panel, the issues clarification of which was found necessary and the opinions and conclusions.  In the report drawn up, it was concluded that the police had used disproportionate force to disperse the demonstrators; and that it must be clarified where M.D. had been placed between the hour when he had been battered (01:30 p.m.) and the hour when he had been taken to hospital (07:30 p.m.), and the doctors examining M.D. in accompany with the police officers must be identified.

The Applicants’ Allegations

The applicants maintained that their next-of-kin had lost his life due to use of force by the law-enforcement officers while being taken into custody; and that an effective investigation had not been conducted into the incident. They accordingly alleged that there had been a breach of the right to life guaranteed in Article 17 of the Constitution and requested the establishment of the violations, an effective investigation to be conducted and to be awarded pecuniary and non-pecuniary damages.  

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of this allegation:

a. Alleged Violation of the Right to Life under its Substantive Aspect

There is uncertainty concerning the identifying information and description of the police officers who took M.D. into custody and intervened in the incident and concerning the period between the time when M.D. was taken into custody and the time he was referred to the hospital.

The public authorities did not make any explanation concerning the circumstances under which the fatal blow to the head, rib fractures and wide lesions on his body, which were specified in M.D.’s autopsy report, had occurred. The single information included within the file is the statements given at various stages by the eye-witnesses that M.D. had resisted for not being taken to the police vehicle. However, such information was not confirmed by the public authorities.

As it is acknowledged that the death took place as a result of use of force by the law enforcement officers, the burden to prove that the use of force leading to death was resulted from a situation that was “absolutely necessary” rests on the public authorities. However, any explanation could not be made in this respect. On the other hand, as the public authorities failed to make an explanation concerning the use of force and the grounds thereof, a separate assessment was not performed as to whether the intervention in question had an adequate legal and administrative framework or not. Any official record indicating that M.D. had been taken to the Security Directorate was not kept; his name was not recorded in the log of the custodial cell; and in spite of being compulsory, his state of health at the time of his arrest was not established.

It has been observed that the security units did not share the information as to how M.D. had died; the actions performed during the period from the time of his arrest to his referral to the hospital and the identity of the law enforcement officers performing these actions with the judicial authorities. It could not be understood under which conditions the intervention with the life of the applicants’ next-of-kin occurred due to non-existence of such information.  It has been concluded that the public authorities abstained from making cooperation with the judicial authorities for the clarification of the incident. 

When the applicants’ allegations, the case before the Assize Court and information and documents within the scope of the case-file are assessed together, it has been revealed that the death occurred due to the use of force by the law enforcement officers; and that there is no ground which would justify the use of force by the law enforcement officers as per Article 17 § 4 of the Constitution.

The Constitutional Court consequently held that there had been a breach of the right to life guaranteed in Article 17 of the Constitution under its substantive aspect. 

b. Alleged Violation of the Right to Life under its Procedural Aspect

Upon the death of M.D. in the hospital, the ex-officio action taken by the Chief Public Prosecutor’s Office is an important step for the effectiveness of the investigation; however, all evidence is also required to be collected. For this reason, the issues which have been or could not be established by the investigating and prosecuting authorities concerning the incident leading to M.D.’s death must be primarily set forth. 

The issues which could not be established at the investigation stage in spite of being important for comprehending how the incident of death occurred must be divided into two groups as the ones which were researched but could not be established and the ones which were never researched.

The issues which could not be established despite of being researched were as follows: who was the police officer in civilian clothes alleged to inflict the fatal blow to M.D.’s head; failure to obtain the camera footage of the Çapa Medical Centre showing the time of M.D.’s arrest; failure to draw up entry-exit forms pertaining to the custody process and the custodial cell; and the failure to verify the allegation that certain law enforcement officers used sticks similar to pickaxe handle due to insufficient number of truncheon during the intervention with the incidents taking place.

The issues which were never researched are as follows: whether M.D. attended illegal demonstrations or not; whether he resisted the law enforcement officers while being arrested and taken into custody to the extent which would require use of absolute necessary force likely to result in death; who were the law enforcement officers who were wearing uniforms and who were with the police officer in civilian clothes alleged to inflict the fatal blow to M.D.’s head; the vehicle by which he was taken to the Security Directorate after being arrested and its driver; the camera footages showing the inside of the building, entries and exits and custodial cells of the building between 01:00 p.m. and 06:00 p.m. during which M.D. was placed in the security directorate; statements of the superiors and their officers who were in charge in the Security Directorate building on the day of the incident along with the statements of the law enforcement officers who signed the arrest warrant; who were the law enforcement officers who considered that M.D.’s state of health deteriorated and took him to the hospital; and statements of certain persons who stated in the report drawn up by the Van Bar Association, the Van Branch of the Human Rights Association and the Mazlumder that they had witnessed the incident.

It has been concluded that there are certain deficiencies reducing the possibility of identifying those who were responsible for the death and undermining the stability and gravity of the investigation; that evidence and issues which are to be definitely collected and researched were ignored; and that therefore, there was a breach of the obligation to collect evidence within the context of the obligation to conduct an effective investigation.

The Chief Public Prosecutor’s Office initiated an ex-officio investigation due to the death taking place as a result of the use of force by the law enforcement officers. Although the offender was unknown and the offender was probably working in the relevant Security Directorate, the tasks of collection of evidence and identification of the offender were assigned to the same Security Directorate.

As the investigation into the incident of death (collection of evidence, statement-taking, identification) was caused to be conducted through the law enforcement officers involving in the incident, it has been concluded that there was a breach of the principle of independency of the investigating authority within the context of the obligation to conduct an effective investigation.

One of the most significant grounds on which the applicants invoked their allegations that an effective investigation was not conducted in the present incident is bringing of a criminal case only against one police officer although M.D. was battered by a great number of law enforcement officers.

In the present incident, the investigation conducted was limited to the question whether a certain person had involved in the incident or not and concluded within this scope. Moreover, the decision in question did not include any assessment as to the justification of the intervention with the right to life and as to whether the intervention falls within the scope of one of the exceptional circumstances specified in Article 17 § 4 of the Constitution. 

The Constitutional Court has consequently held that there was a breach of the right to life, guaranteed in Article 17 of the Constitution, under its procedural aspect for lack of an effective investigation into M.D.’s death. 

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

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