Press Release No: Individual Application 10/16
11.03.2016

PRESS RELEASE ON THE JUDGMENT CONCERNING THE VIOLATION OF THE PROCEDURAL ASPECT OF THE RIGHT TO LIFE OF DOĞAN DEMİRHAN

On 6/1/2016, the First Section of the Constitutional Court held with regard to the individual application lodged by Doğan Demirhan (application no. 2013/3908) that the obligation to conducting an effective investigation.in the scope of the right to life was violated.

The Facts

In the incident giving rise to the present individual application which was concluded by the First Section of the Constitutional Court on 6/1/2016, E.D., the son of the applicant who worked at his uncle’s scrap shop and lived above it with his cousin (Y.Ç.) the son of his uncle, was found dead in the bureau part on the day of the incident due to a single gun bullet hitting his right temple area. In the investigation launched by the Chief Public Prosecutor’s Office, gunshot residue was found on the hand of the suspect Y.Ç. staying at the same place with E.D.. The applicant declared to the investigating authorities that there was no reason for his son to commit suicide, the testimonies of the suspect are contradictory, despite after the incident on the hand of one of the suspects gunshot residue was found the suspect should testify again about this matter and the incident, as his son was left-handed his suicide according to the examination of corpse and the autopsy was not in line with the ordinary course of life and requested to further deepen the investigation. In the end of the investigation, a decision of non-prosecution was given on the grounds that E.D. had committed suicide.

The Applicants’ Allegations

The applicant alleges that the Chief Public Prosecutor’s Office did not conduct an effective investigation and procedural aspect of the right to life guaranteed under Article 17 of the Constitution was violated.

The Court’s Assessment

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

In the scope of its positive obligation the state has the duty to investigate the causes of death, determine those whoever are responsible and must bring them to book when a death occurs. The objective of such prosecution conducted in the scope of the right to life is to secure effective implementation of law that protects the right to life and to ensure that those who are responsible account for the death incident. This is not an obligation of results but the obligation to use correct instruments.

As the procedural investigation obligation is not an obligation of goal but of means, the criminal investigation conducted must not be completed without collecting all evidence capable of clarifying the death incident in all aspects and identifying those who are responsible; that the investigation must not include certain deficiencies which undermine the opportunities of clarifying the cause of death and identifying those who are responsible, if any; and that if there are certain deficiencies of different nature, such deficiencies must not have an impact on the in-depth nature and gravity of the investigation being conducted. 

In the impugned incident, in the assessment made to see if the obligation to conduct an effective investigation was fulfilled or not, it was determined that all reasonable measures regarding to collect evidence like the allegation that the deceased was left handed and the shot that lead to his death was made not in line with the ordinary course of his life with his right hand not being investigated, the necessity to testify Y.Ç. again after he was investigated by law enforcement officers and later gunshot residue was detected after the investigation of his hand swabs was not observed, were not taken. In this way it is understood that there are some deficiencies that weaken and have a profound impact on the depth and seriousness on the possibility of the detection of the reason of death and if available of the responsible persons and it is concluded that the procedural aspect of the right to life was violated because of the deficiencies mentioned above and not conducting a sufficient investigation.

 

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

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