Press Release No: Individual Application 30/16
22.06.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF NEJLA ÖZER AND MÜSLİM ÖZER ON THE RIGHT TO LIFE

On 21/4/2016, the Second Section of the Constitutional Court held with regard to the individual application of Nejla Özer and Müslim Özer (no. 2013/3782) that there had been a breach of the right to life enshrined in Article 17 of the Constitution.  

The Facts

The applicant’s son Hasan Özer was detained on remand by virtue of the decision of the 1st Chamber of the Küçükçekmece Magistrate’s Court with the allegation that he had committed the offence of premeditated murder and placed in the İstanbul H-Type Closed Penitentiary Institution. He was then transferred to the Metris T-Type Closed Penitentiary Institution no. 1 and subsequently to the Silivri L-Type Closed Penitentiary Institution no. 5. For setting fire his ward in the latter institution, he was punished with solitary confinement for twenty days and transferred to the Kocaeli T-Type Closed Penitentiary Institution no. 1 (hereinafter “the Penitentiary Institution”) as a disciplinary action.  

As a result of the medical examination of Hasan Özer performed on 4/9/2010 the day when he was taken to the Penitentiary Institution, it was determined that there were many cut scars on his arms, legs and the upper part of his umbilical region. The psychologist serving in the Penitentiary Institution interviewed with Hasan Özer on 8/9/2010. Hasan Özer was punished with solitary confinement for five days due to insulting the officers of the Penitentiary Institution in the course of the search carried out in the ward no. A-11 on 18/3/2011, and he was then placed in the ward no. A-18 on account of this incident.

Hasan Özer submitted a petition to the Penitentiary Institution on 11/1/2011 and requested to consult with the psychologist. He then submitted another petition on 17/1/2011. In this petition, he wrote “This is the 9th petition submitted by me for consulting with a psychologist. Why have you not allowed me to visit the psychologist? I have psychological problems. I respectfully request you to take the necessary action”. Upon these petitions, the psychologist of the penitentiary institution interviewed with Hasan Özer and reached the conclusion that he was suffering from an anger disorder. It was then decided that he must attend the “anger control program”.

Hasan Özer subsequently submitted another petition and reiterated his request for consulting with the psychologist. The social service specialist interviewing with Özer informed the authorities of the Penitentiary Institution that if the request made by him for change of his ward was not fulfilled, Özer could re-perform such kinds of acts.

The wards of Hasan Özer, who continuously experienced problems in the wards where he was staying and harmed himself for various reasons, were changed for many times between 6/9/2011 and 5/10/2015. Hasan Özer harmed himself also on 4/10/2016, the date when he was made present during the hearing. Thereupon, his ward changed on 5/10/2011 upon his lawyer’s petition just after the hearing, and he was placed in the ward no. 2. On 6/10/2011, he was found dead hanging from the showerhead with a rope made of shirt pieces in the ward where he was staying alone.

Hasan Özer’s autopsy was performed in accompany with his father Müslim Özer. The applicant Müslim Özer maintained that his son who had been detained on remand for about five years was transferred to the Penitentiary Institution (where he lost his life) before over one year; that his son had previously experienced no problem but during the last twenty days, he was having problems with a person from Tunceli in the ward no. A-18 and he was beaten. Although he was informed that his son had committed suicide, the applicant noted that he requested an extensive research be conducted concerning the incident and necessary actions be taken if his son had been killed.    

An investigation was initiated into the death of applicant’s son, and in this scope, statements of the convicts and the officers working in the Penitentiary Institution were taken. The relevant Chief Public Prosecutor’s Office rendered a decision of non-prosecution in respect of the suspects. The applicant’s objection against this decision was dismissed.

In the special supervision report prepared by the Directorate General for Penitentiary Institutions and Detention Houses of the Ministry of Justice concerning the death of Hasan Özer, it was established that convicts and detainees were placed in some of the wards; that moreover, the young detainees and convicts were held in the same place with the adults; that those who were staying in the wards for a long time, who had the greatest number of friends and were capable of speaking well were generally assigned as the one responsible for the ward in spite of not being set out in the legislation; and that the administration did not forbid such a practice in the wards. The special supervision report also included allegations by a significant amount of detainees and convicts who were had been heard as a witness that İ.K. staying in the ward no. C-4 had sworn at the other convicts and detainees, had applied physical force, insulted them and applied psychological pressure on them, and it was assessed that it would be appropriate to take a legal action against İ.K..

The Applicants’ Allegations

The applicants maintained that their son, Hasan Özer, had died while being under the custody of the state; that an effective and fair investigation had not been conducted into the incident; that evidence had not been sufficiently collected and assessed; that in spite of being requested for many times, printouts of the photos / camera footages required to be recorded during the autopsy had not been included in the case-file; and that any action had not been taken against the public officers notably the Administrator of the Penitentiary Institution. They also alleged that the accuracy of the statements of the persons who were questioned as a suspect had not been verified; that their son had been exposed to torture within the knowledge of the institution administration; that as specified in the autopsy report, there had been old signs of battery and physical coercion; and that although their son had declared that he had not wanted to stay in the ward no. B-14 and that he had been exposed to all kinds of maltreatment there, the administration of the Penitentiary Institution had ignored this fact. They accordingly maintained that there had been a breach of the right to life, the right to liberty and security, the right to a fair trial, the right to an effective remedy and the prohibition of torture.

The Court’s Assessment

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

a. Alleged Failure of the Authorities to Protect Hasan Özer’s Life from His Own Acts  

The applicants’ son Hasan Özer was punished with solitary confinement for twenty days for setting fire and subsequently transferred to the Kocaeli T-Type Closed Penitentiary Institution no. 1 as a disciplinary action. It is not possible for the Administration of the Penitentiary Institution not to be aware of this act performed by Hasan Özer. It is obvious that the authorities should have taken necessary measures for the protection of Hasan Özer’s health and for preventing him from harming himself or others. 

It has been observed that although Hasan Özer should have been placed in the part of the Penitentiary Institution allocated for the young detainees and after completing the age of twenty-one, he should have been transferred to the part allocated for adult detainees, he was not subject to any supervision and classification as from the moment he was placed in the Penitentiary Institution and accommodated in wards where both the adults and convicts were placed. It has been revealed that Hasan Özer had acted with an intensive belief that he would be released and when he was not, he showed a tendency of harming himself. It may be accordingly concluded that accommodation of such a detainee together with convicts who were not in a similar situation with him and did not share similar psychology has an influence on the psychological problems currently experienced by him.

Having previously harmed himself and started a fire at his ward, Hasan Özer once again harmed himself by means of cutting various parts of his body on 28/9/2011, 1/10/2011, 3/10/2011 and 4/10/2011.  The actions taken by the authorities of the Penitentiary Institution in respect of such acts of Hasan Özer were ensuring the treatment of the injuries sustained by Hasan Özer; initiation of a disciplinary investigation into the incident and accordingly imposing a penalty on him. However, endeavouring to resolve the psychological problems is of great importance for reoccurrence of such kinds of acts. However, it has been observed in the present incident that the authorities failed to take all actions which may be reasonably expected from them for providing psychological support needed by Hasan Özer and for the prevention of such kinds of attempts.

It has been revealed that Hasan Özer’s attempts to harm himself started to intensify before the day of hearing of 4/10/2011. In one of his petitions addressing to the Chief Public Prosecutor’s Office, Hasan Özer stated that he had harmed himself subsequent to each hearing he attended. Given these facts, the authorities of the Penitentiary Institution should have behaved towards Hasan Özer more cautiously and ensured sufficient protection for him. However, there is no information in the application file indicating that he was provided with special care prior to and subsequent to the hearings and kept under special guard except for being placed in a temporary room. 

Given all of these circumstances, it has been observed that necessary measures were not taken by the officers of the Penitentiary Institution for the prevention of Hasan Özer’s death within the framework of their powers.

Consequently, the Constitutional Court has held that there was a breach of the obligation to protect life as required by Article 17 of the Constitution as the life of Hasan Özer could not be protected against his own acts.

b) Alleged Failure to Conduct an Effective Investigation within the scope of the Right to Life

It has been comprehended that the relevant Chief Public Prosecutor’s Office investigated and established, in an effective manner, the question as to whether Hasan Özer had been killed as a result of intentional act or not. However, other aspects of the death could not be clarified other than the allegation of murder, and an effective investigation capable of identifying those responsible for the incident was not conducted.

In the special supervision report prepared by the Directorate General for Penitentiary Institutions and Detention Houses of the Ministry of Justice concerning the death of Hasan Özer, it was noted that a significant amount of detainees and convicts who were had been heard as a witness that İ.K. staying in the ward no. C-4 had sworn at the other convicts and detainees, had applied physical force, insulted them and applied psychological pressure on them, and it was assessed that it would be appropriate to take a legal action against İ.K.. Hasan Özer stayed in the ward no. C-4 for a period of time and was beaten by the other convicts and detainees staying in the same ward. Some of the convicts stated at the investigation stage that Hasan Özer’s ward had been changed for several times beyond the consent of Hasan Özer and placed in problematic wards; and that he had been exposed to pressure by the administration of the Penitentiary Institution. When all of these issues are taken into account, there appear severe hesitations concerning the question as to whether Hasan Özer had been kept under pressure by the administration of the Penitentiary Institution.  However, the Chief Public Prosecutor’s Office heard only one public officer as a suspect, and the other officers of the Penitentiary Institution whose statements were taken as a witness were questioned only with regard to the incident of death. Nor was a sufficient investigation conducted into the probabilities likely to drive Hasan Özer to suicide. The questions as to whether there was a pressure prevailing in the ward no. C-4; if so, why such an atmosphere where pressure was prevailing was ignored by the authorities; whether it was really for exercising influence over Hasan Özer; and whether the situation reported to have taken place in the ward no. C-4 was the same in the other wards where Hasan Özer was staying were not investigated. Moreover, Hasan Özer’s tendency to continuously harm himself was never questioned, and the reasons of such acts performed by him were never tried to be found out. 

It has been determined that there were many signs indicating that Hasan Özer might have performed such an act before his last attempt resulting in his death; and that given such indications, it might be expected from the authorities to take measures at more advanced level; however there was negligence on the part of the authorities in the protection of Hasan Özer’s right to life.  However, it has been observed that the investigation conducted into the incident, in respect of its scope and consequences, was not capable of clarifying the probabilities in question and if required, punishing those who were responsible for the incident.

It has been accordingly concluded that in the investigation conducted by the Chief Public Prosecutor’s Office, the incident of death could not be clarified in all aspects and those probably responsible for the incident could not be identified. Therefore, the investigation conducted into the incident could not ensure accountability in practice.

Consequently, the Constitutional Court has held that in the criminal investigation conducted, there was a breach of the right to life protected in Article 17 of the Constitution under its substantive aspect.  

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
Number of Visitors: