Press Release No: Individual Application 26/16
01.06.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF SİNAN IŞIK ON THE OBLIGATION TO CONDUCT AN EFFECTIVE INVESTIGATION

On 13/4/2016, the First Section of the Constitutional Court held with regard to the individual application lodged by Sinan Işık (application no. 2013/2482) that there had been a breach of the obligation to conduct an effective investigation within the scope of the prohibition of ill-treatment  guaranteed in Article 17 of the Constitution.

The Facts

While the applicant was performing his compulsory military service at the Security Service Unit Command of the İstanbul Kasımpaşa Military Hospital, he was examined at the emergency service of the Hospital where he was in charge after having become ill in the course of the training. He was then referred to the Gülhane Military Medical Academy (the GATA) Haydarpaşa Training Hospital because of severe abdominal pain. The applicant was taken under operation during which it was determined that his spleen had disintegrated, and therefore his spleen was extracted. After being discharged from the hospital, he was discharged from the military for being unfit for the military service. Although the applicant noted in his first statement that he had not been exposed to any strike, when he learned that he would be discharged from the military service upon extraction of his spleen, he stated that the sergeant H. had handcuffed him to the radiator pipe and beaten him for joking with for approximately twenty days before his illness. The applicant’s father filed a criminal complaint before the Public Prosecutor’s Office. Thereupon, an investigation was initiated by the Military Prosecutor’s Office, and statements of those who were concerned were taken, and the expert reports were received.

The applicant’s father maintained that his son had been taken by the section sergeant to the basement of the hospital where he had been in charge for three times within a week and beaten by means of being handcuffed to the radiator pipe; and that his son had been threatened not to make a complaint.

The applicant noted in his statement that in the first week of February 2012, H., who previously had a firm stand towards him, imposed a penalty on him in the mess for being late and subsequently handcuffed him to the radiator with his right hand which was close to the television and beat him by saying that H. would joke with him; that H. firstly hit on his shoulders and subsequently started to hit on his stomach as he lowered his guard for being tired; and that several days after the incident, he became ill during the training and his spleen was therefore extracted.  It has been observed that the suspect and the witnesses stated that the impugned act of handcuffing actually took place; but it was only a joke; that the applicant being exposed to non-severe strikes on his shoulders for 5-6 times was aware of the fact that it was only a joke and got involved in this joke; that there was no hostility between the applicant and H.; and that the applicant became ill just after the training.

The doctors examining and operating the applicant stated that any sign of strike and physical coercion were not found in the course of his examination; however, as his spleen was in normal sizes and any finding indicating that the applicant suffered from another disease was not detected, it was concluded that the applicant’s illness occurred as a result of a trauma. They also noted that after the applicant had learned that he would receive a report indicating that he was unfit for military service, he maintained that he had been beaten by the section sergeant; that he did not explain how the incident had taken place; that if the illness had occurred as a result of a trauma, its symptoms would appear in a few hours and may be extended for, at the most, twelve hours; and that as it was asked, it was not possible for the illness to appear within the period of twenty days.

In the expert report caused to be drawn up by the relevant Command, it was set out that out of the spleen injuries occurring subsequent to blunt abdominal trauma, in 85% cases spleen was burst at an early stage and required medical intervention within 24-48 hours while 15% of cases gave rise to spleen laceration; and that 97% out of the delayed spleen injuries at the rate of 15% appeared within the period of the first month.  It was also specified that the delayed spleen injuries occurred at a time when there was an increase in daily activities of the relevant person; and that this explanation was compatible with the present incident in which the applicant became ill in the course of the military training.

The Military Prosecutor’s Office rendered a decision of non-prosecution on the grounds that there were discrepancies among different statements of the applicant concerning the dates alleged to be battered; that it was stated that the act of handcuffing had been a joke; that he had received the strikes on his shoulders; and that the impugned incident could not lead to spleen disintegration. The objection to this decision was dismissed by the Military Court.

The applicant also brought a full remedy action against the Ministry of National Defence. It was decided by virtue of the judgment of the Supreme Military Administrative Court that the case be dismissed as in the impugned incident, there was no reason which would lead to the obligation to redress on the part of the defendant administration; and that the applicant would pay the attorney’s fees. The applicant’s request for rectification of the judgment was rejected.   

The Applicant’s Allegations

The applicant maintained that during the period when he had been performing his compulsory military service, he had been subject to violence and ill-treatment by his superiors; that on the day when his spleen had disintegrated, he had been battered by H.. Having noted that an effective investigation had not been conducted into such allegations, the applicant alleged that there had been a breach of the prohibition of ill-treatment.

The Court’s Assessment

In the expert report included in the investigation file, it was specified that 15% of the spleen injuries resulting from trauma might have led to spleen disintegration due to intensive physical activity at a subsequent date (mainly within the first month after the incident), which was in compliance with the applicant’s illness history. It has been revealed that the decision of non-prosecution rendered at the end of the investigation did not include any findings concerning the delayed spleen disintegrations and specified in the expert report.

It must be acknowledged that the applicant was mainly under the State’s supervision during the performance of the compulsory military service. In case when it is found out that a person is injured while being under the State’s supervision, the obligation to make a reasonable explanation as to how the injury in question was caused is incumbent on the State. Having regard to the fact that the expert report coherent with the applicant’s arguments concerning the incident was ignored, it has been revealed that due diligence was not shown in the clarification of the incident in question and in the establishment of a possible responsibility.  

It has been consequently held by the Constitutional Court that there was a breach of the State’s obligation to conduct an effective investigation within the scope of the prohibition of ill-treatment which is guaranteed in Article 17 of the Constitution.

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

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