Press Release No: Individual Application 9/17
14.04.2017

PRESS RELEASE CONCERNING THE VIOLATION OF THE PROHIBITION OF TORTURE AND ILL-TREATMENT UNDER ITS PROCEDURAL ASPECT DUE TO THE FAILURE TO CONDUCT A SUFFICIENT INVESTIGATION INTO THE ALLEGATIONS OF ILL-TREATMENT FOR INTIMIDATION WHICH IS INCONSISTENT WITH THE REQUIREMENTS OF MILITARY TRAINING

The Second Section of the Constitutional Court held on 23/3/2017, with regard to the individual application lodged by Ümit Ömür SALAR (App. No. 2014/187) that the prohibition of torture and ill-treatment guaranteed in Article 17 § 3 of the Constitution was violated under its procedural aspect.

The Facts

Having been graduated from the Kuleli Military High School, the applicant dropped out the Air Force Academy on 24 May 2010 of his consent, alleging that some military officers and some 4th class students defined as leader students at the camp of student selection flight which he had attended in August 2009 had put physical and psychological pressure on him.

Then the applicant filed a criminal complaint with the Ankara Chief Public Prosecutor’s Office against some military officers in charge at the camp and during the school term and some 4th class students due to the physical and psychological pressure put on him. The Chief Public Prosecutor’s Office referred the file to the Military Prosecutor’s Office of the Northern Sea Area Command, stating that the subject matter of the complaint falls within the scope of military justice.

The applicant alleged that E.A. who was a student of the 4th class at the camp of student selection flight applied on him various methods of physical pressure such as leaning his face against the pole again and again, holding him for hours in the chair position called “Chinese sitting”, making him somersault for 3 kms, and methods of psychological pressure in such manners that “You are not a decent person, you are unprincipled, why are you so assertive and resistant? You will end up leaving even if you go to school…”. He also maintained that porno cds and ladies underwear were put in his case that no action was taken even though he had informed the administration of these issues, and that the commanders unjustly imposed disciplinary punishments on him.

Many of the persons whom the applicant requested to be heard as witnesses confirmed some statements of the applicant. The witnesses İ.A, H.B. and C.O.K alleged that they had been also subject to similar pressures.

 On the other hand, it appears from the documents in the investigation file that fifteen persons including the applicant voluntarily dropped out the Air Force Academy during 2009 – 2010 educational year.

The Military Prosecutor’s Office decided not to prosecute, considering that in some parts of the applicant’s allegations there was no witness, that no complaint had been available in the records of the Air Force Academy and that there has been no report of battery, and stating that even if some alleged actions had been performed, the criminal complaint was not filed in due time in respect of the injury and defamation. The Military Prosecutor’s Office emphasized that there was no superior-subordinate relationship among the military students, and in this context the applicant was not under the obligation to carry out the instruction of the upper class students. In the decision rendered by the Military Prosecutor’s Office, it was stated that no evidence was found as to expression of the defamatory words with the intent to make the applicant leave school. In addition, it was recalled that in the disciplinary punishments imposed on the applicant, no evidence was found as to defamation made with criminal intent and that administrative remedies might be resorted against administrative disciplinary punishments.

In the decision of non-prosecution, it was stated that no evidence could be found as to the fact that the actions, which were assessed individually, were the output of a common will and part of a criminal intent aiming at causing the applicant to leave school, and also that the statements of the witnesses who had been called by the applicant and who had left the Military Academy for various reasons could not go beyond abstract assessments. In conclusion, the Military Prosecutor’s Office rendered a decision of non-prosecution in respect of all the suspects on 30 September 2013, stating that the applicant exercised his right to resign without being under pressure and that no concrete fact and evidence could be found as to the fact that there was a systematic sequence of actions covering the command echelon to ensure the applicant’s leave from the school.

The objection made against the decision of the Military Prosecutor’s Office was rejected by the judgment rendered on 11 November 2013 by the Military Court of the 1st Army Command.

It was included in the report drawn up upon the submission of numerous petitions of similar content to the Petition Committee of Grand National Assembly of Turkey that there were complaints regarding the understanding which aims to decrease the number of military staff systematically after having recruited excessive number of personnel for the Air Force Academy. It was also indicated that it was a negative situation for public interest that the distinguished human resource who had been carefully selected in high school years and whose placement had been under the initiative of the administration in all aspects could not be integrated into the profession at high rates.

The Applicant’s Allegations

The applicant alleged that the prohibition of torture and ill-treatment provided for in Article 17 of the Constitution was violated, stating that he voluntarily left school since he  could not stand the psychological and physical pressure put on him and he did not want others to say “He was dismissed from school”, that the treatment and punishments towards him were degrading, that he had to undergo a psychological treatment due to the incidents he had experienced in civilian life as well, and that his complaints regarding this issue remained inconclusive. He therefore claimed pecuniary and non-pecuniary compensation.  

The Court’s Assessment

In brief, the Constitutional Court made the following assessments in the context of this allegation:

Some witnesses heard by the Military Prosecutor’s Office within the scope of the investigation asserted that the 4th class students did not call each other by their real names and that they acted like an organization to make the students from the military high school be dismissed from the school by applying pressure. In addition, the witnesses declared that an effort was made to cause not only the applicant but also some other targeted students to leave school voluntarily through extremely harsh words, treatments and the imposed punishments. Likewise, similar assertions were included in the report of the General Assembly of the Petition Committee of Grand National Assembly of Turkey published on 27 June 2012 prior to the decision of non-prosecution rendered on 30 September 2013 by the Military Prosecutor’s Office. No assessment on the mentioned report was made in the decision rendered by the Military Prosecutor’s Office.

Given the allegations included in the report of the General Assembly of the Petition Committee of Grand National Assembly of Turkey, it is understood that the Military Prosecutor’s Office failed to take into account that it was very difficult for the applicant to allege that he was exposed to ill-treatment and to defend himself by witnesses or evidence that proved these allegations while he was a student at the Air Force Academy where a strict hierarchical structure prevailed. No assessment was made as well in the said decision as to whether or not the practices exercised on the applicant were by reason of the ordinary difficulties caused by being a student of the military school, and whether or not such practices were training methods applied with the purpose of familiarization of the military students with these difficulties. Without any hesitation, physical and psychological pressure can be put to a certain degree in respect of the practical requirements of some trainings in the military discipline with a view to enabling the students to become familiar with the difficulties arising from the very nature of the military career. However, within the scope of the applicant’s allegations and the witness statements, such an impression has been left as to the fact that unlike the training provided for all the students in the context of the military training, the treatments established to be exposed to (by the applicant) aimed at deterring the applicant. It is an expected situation that particularly the applicant leaving the Air Force Academy after having been a student at the military high school for four years was more resistant to the military training, compared with the students from civilian highs schools, for not being unfamiliar with the military trainings and for foreseeing the difficulties he would face during the training at the Air Force Academy. With regard to the investigation into the incident, it should also be taken into account that the applicant being a graduate of the Kuleli Military High School had to leave the Air Force Academy.

In this context, it was not considered either that the complaints that some students from the Military School had been pressed up to drop out the Military Academy increased intensively due to the fact that those students were subject to harassment applying systematically and to physical and psychological ill-treatments, which was incompatible with the training requirements, in the course of their trainings.. This situation which is also shown by the statistics reveals the significance of the allegations.

On the other hand, it cannot be said that the Military Prosecutor’s Office investigated in detail whether or not the actions against the applicant had also been carried out against the other students within an organizational structure and in a prevalent way. The fact that the allegations of ill-treatment regarding the actions carried out against many people and extending over a period of time within an organizational structure, in line with a certain aim, were handled by the investigating authorities as isolated allegations of ill-treatment is one of the most significant obstacles before the efficiency of the investigation. Given the incident as a whole, finding the concrete data, through which connections could be established and which could be interpreted, insufficient in terms of separate incidents and not deepening the investigation in the light of concrete data may lead to the non-execution of specific procedures for the examination of evidence that could be resorted to in respect of organized crimes. The military prosecutor, considering that some actions which could be accepted as normal when the requirements of the military discipline are at issue may constitute ill-treatment when they are carried out by specific motivation other than this aim, should be more willing to examine the evidence supported by concrete data as well; should use all the necessary means of evidence collection and should deepen the investigation, handling it beyond being an individual claim.

The failure to investigate such allegations in due course and in a detailed manner also prevents the structures likely to organize within the Turkish Armed Forces from being revealed. This situation may lead to the continued violation of the individuals’ fundamental rights and freedoms implicitly and systematically and also to problems in respect of national security due to the fact that the actions were carried out at a military training institution.

Thus, it should be also examined the allegation that some persons, who were the suspects of the impugned incident and of the coup attempt taking place on 15 July subsequent to the decision of non-prosecution rendered by the Military Prosecutor’s Office, were the members of the terrorist organization known as “the Fethullahist Terrorist Organization” and “the Parallel State Structure” (“the FETÖ/PDY”) and that whether the organization which is asserted to be existent in the witness statements but which could not be foreseen in the investigation procedure was ”FETÖ/PDY”.

Consequently, the Constitutional Court concluded that Article 17 § 3 of the Constitution was violated under its procedural aspect, since the allegations in the concrete case were not carefully and diligently discussed at the investigation stage even if the applicant had a defensible allegation of torture and ill-treatment together with the other evidence in the investigation.

For the reasons explained above, the Constitutional Court held that the prohibition of torture and ill-treatment guaranteed in Article 17 § 3 of the Constitution was violated under its procedural aspect.

 

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

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