Press Release No: Individual Application 20/16


On 9/3/2016, the Second Section of the Constitutional Court held with regard to the individual application lodged by İrfan Yücesoy (application no. 2013/7625) that there had been a breach of the prohibition of treatment incompatible with human dignity, which is guaranteed in Article 17 of the Constitution, under its procedural aspect.

The Facts

A short time after the opening ceremony held on 19/4/2013, the applicant was taken from the crowd towards a room located in the place where the ceremony was holding on suspicion of assaulting the Mayor of the Kartal Municipality, A.Ö.. The manner in which he was taken to the room and his status at the relevant time were taken under record by the press members who were present at the ceremony. The attacks by the persons in the room against the applicant were tried to be prevented by a personnel who was then revealed to be a private security guard and by some other persons. The applicant was then taken from the incident scene by the police. A medical report was drawn up with respect to his health status at a hospital, and he was then taken to the police department where a minute signed by the applicant as a suspect was drawn up. Within the scope of this investigation in which the applicant was a suspect, the police officers drew up a deciphering minute pertaining to the CD of the incident scene. A criminal case was filed against the applicant by the İstanbul Anadolu Chief Public Prosecutor’s Office for the “offence of actual bodily harm to a public officer due to his office”.

The applicants filed a criminal complaint by maintaining that he had been attacked by stray dogs in 2012, and the stray dogs had also attacked his father on the incident day; that he had wished to get in contact with the Mayor for talking about this issue; that as he could not make himself heard through the crowd, he had wished to touch on the Mayor’s shoulder and thereupon, he had been attacked during the ceremony; and that he had been exposed to actual and verbal tort by the Guard of the Mayor, the Deputy Mayor, the 1st Deputy Chairman of the Municipal Council, the Consultant of the Municipality Mayor, the İstanbul Provincial Deputy Chairman of a political party and the other persons whose names he had not known upon the incitement of the Municipality Mayor. Within the scope of the applicant’s allegations, the suspects were questioned, and a final report was requested from the forensic medicine institute. It was specified in the report drawn up that the applicant had been wounded in a manner which could be treated with simple medical intervention. The İstanbul Chief Public Prosecutor’s Office issued a bill of indictment only in respect of N.Ç., who was a private security guard, on suspicion of committing the offence of actual bodily harm. On the other hand, a “decision of non-prosecution” had been rendered in respect of the other five suspects. The applicant’s objection to the decision of non-prosecution was conclusively rejected.

The Applicant’s Allegations

Maintaining that while he was shouting to the Mayor in the course of the ceremony and wishing to touch on him, he was suddenly subject to a lynching attempt; that although he wanted those who took him to a room to call the police, he was not surrendered to the police during a half hour; that the persons included in the petition submitted to the Chief Public Prosecutor’s Office had committed various offences; that there was a lack of effective investigation, and the offenders remained unpunished; that as the incident appeared on the national media, he was mentally depressed; that although a case was not filed against the offenders, he was subject to a criminal case; that his right to legal remedies was breached; and that statements of his family members were taken, the applicant accordingly maintained that his rights enshrined in the Constitution had been breached.

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of the allegations.

Everyone’s right to protect and develop his/her material and spiritual entity is guaranteed in Article 17 of the Constitution. In the first paragraph of this article, the protection of the human dignity is aimed. In its third paragraph, it is enshrined that no one may be subject to “torture” and “torment” and no one may be subject to any punishment or treatment “which is incompatible with human dignity”.

There is also a procedural aspect of the positive obligations incumbent on the State within the scope of the right to life and the right to protect material and spiritual entity. The State is, within the scope of this procedural obligation, to conduct an effective investigation which is capable of ensuring identification and, if necessary, punishment of those responsible for the incidents causing damage to the individual’s material and spiritual entity and for each unnatural death. The main aim of such kind of an investigation is to guarantee effective enjoyment of the individuals’ right to life and the right to protect their material and spiritual entities and, in incidents in which the public officers or institutions got involved, to ensure them to account for the deaths and the damages to the individuals’ material and spiritual entity occurring under their responsibilities.

The obligation to carry out an effective investigation into the allegations of “torture”, “torment” and “treatment or punishment incompatible with human dignity”, which are based on concrete facts cannot be restricted to only the incidents in which the State’s agents have involved. This obligation is also applicable to the acts specified to be performed by the third parties in breach of Article 17 of the Constitution. Moreover, Article 17 of the Constitution does not impose an obligation to conclude all proceedings with conviction or a certain criminal sentence or does not provide the applicants with the right to make the third parties tried or sentenced due to a criminal offence.

The investigation in which the applicant was a complainant was conducted independently from the investigation in which the applicant was a suspect. Therefore, the subject-matter of the investigation examined within the scope of the individual application is for the establishment as to whether there was a breach of the prohibition of treatment incompatible with human dignity and for the identification of those who were responsible although the applicant was neutralized just after the unlawful act alleged to be performed by him.

Taking the applicant to a room on suspicion of an offence thought to be committed against a public officer due to an unrest caused among the crowd and for ensuring security may be deemed reasonable. However, it must be investigated whether the acts performed against a person who was just waiting constituted an offence or not, and if an offence was committed, the questions who the offenders are and as to whether their acts were proportionate or not are to be examined.

Having regard to the medical report received, the documents included in the investigation file in which the applicant was a suspect and the fact that it was possible to clearly establish how the incident had taken place through the camera footage, it has been revealed that a decision of non-prosecution was rendered without making a sufficient investigation for establishing whether it would be necessary to identify and punish those who were responsible; and that the acts causing the injury of the applicant may be qualified as a treatment which is incompatible with human dignity.

As the incident was not clarified in a sufficient manner and an adequate assessment was not made with respect to the conditions of those who might be responsible, the Constitutional Court has consequently held that there was a breach of the state’s obligation to conduct an effective investigation which is enshrined 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 © 2015
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