Press Release No: Individual Application 32/17
08.11.2017

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF THE PROHIBITION OF ILL-TREATMENT AGAINST A PRISONER

On 21 September 2017, the Second Section of the Constitutional Court found a violation of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution in the individual application lodged by Cihan Koçak (no. 2014/12302).

The Facts

On 25 February 2014 the applicant, who was serving his imprisonment sentence imposed for injuring a person, insulted and battered the prison doctor as his request for referral to a hospital was denied. He also had a quarrel with the guardians visiting the applicant’s ward the next day for head count. According to the incident report drawn up, the applicant threw the petitions at his hand towards the guardians and insulted them. Thereupon, the applicant was handcuffed and placed in an observation room for the fear that he might cause an uproar.

The next day the applicant filed a criminal complaint with the chief public prosecutor’s office against the guardians. In his complaint, he maintained that the guardians had insulted him and placed him in the observation room after handcuffing his wrists and ankles and that, therefore, his hands and feet were bruised and swollen. 

Within the scope of the investigation initiated thereupon, the prosecutor’s office requested the prison administration to refer the applicant to a hospital on 4 March 2014 for a forensic report, to identify the guardians having involved in the incident, to submit photos for the purpose of identification, and to communicate whether the applicant had been taken to the infirmary on 24 February 2014.

Two days later, the prison administration had the applicant identify the relevant guardians and submitted the identity information and photos of these guardians to the chief public prosecutor’s office.  

On 12 March 2014 the applicant’s statement was taken, and on 14 March 2014 a forensic examination report was drawn up in respect of him. It is specified in this report that skin scratches which were slightly scabbed were found on ulnar and radial laterals of his right and left wrist, on anterior surface of his right ankle and distal lateral of his left cruris.

On 14 March 2014 the guardians were questioned, and video footage of the incident was obtained. According to the analysis reports with respect to the footage, the applicant was placed in the observation room at 08.02 a.m. while his wrists and ankles were handcuffed and stayed in the room in this position. At 1:43 p.m., the guardians entering inside the observation room removed the handcuffs on the applicant’s ankles. However, as the handcuffs on his hands could not be opened, the applicant stayed there with handcuffs for about another two hours. He was then taken out of the observation room after with no handcuffs. In the footage, there was no indication that the applicant was subject to battery. This footage was also examined by the Constitutional Court. There is no footage showing images of guardians while they were in the ward. According to the footage of the corridor where headcount process was recorded, the guardians firstly entered inside the applicant’s ward for headcount; they then left the ward and locked the door; and thereupon they once again arrived in the ward accompanied by the other guardians. It was revealed from the footage that the guardians entering inside the ward took the applicant to the observation room with his wrists and ankles being handcuffed. The applicant was kept in the observation room for about six hours being handcuffed on his hands behind his back and on his ankles.

On 2 April 2014 the chief public prosecutor’s office rendered a decision of non-prosecution on the ground that any concrete evidence could not be obtained with respect to the applicant’s allegation. The applicant’s petition against this decision was dismissed by the assize court.

The Applicant’s Allegations

Maintaining that the guardians entering inside the ward for headcount attacked on him as he did not stand up and handcuffed his wrists and ankles and battered him, and that the decision of non-prosecution was a result of an ineffective investigation; the applicant alleged that there was a breach of the prohibition of torture and ill-treatment. He accordingly claimed compensation.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

Alleged Use of Force

Despite the lack of a clear determination as to whether there was a situation necessitating the guardians’ use of force, it cannot be concluded that the force used in the present case was an unnecessary and disproportionate intervention; given the applicant’s risk level of aggression, the guardians’ behaviours, and the fact that the medical report indicated that there were skin scratches only on the handcuffed parts of the applicant’s body.

Therefore, it was concluded that the alleged use of force did not constitute a breach of the substantive aspect of the prohibition of treatment incompatible with human dignity, which is safeguarded by Article 17 § 3 of the Constitution.

Regard being had to the above-cited findings, the Court did not separately examine the applicant’s allegations that the use of force constituted a breach of Article 17 of the Constitution under its procedural aspect.

Allegation of Being Taken to the Observation Room and the Subsequent Process

Substantive Aspect

Article 17 of the Constitution also extends to the requirement that a prisoner must be kept under conditions that are compatible with human dignity. The method of execution of a sentence and the attitude displayed during the execution process must not cause prisoners to feel distress and grief more than the degree required by the very nature of deprivation of liberty. In this respect, in examining the alleged ill-treatment under the detention conditions in prisons, the severity and purpose of the measures taken and their bearings on the individuals must  be considered together.   

In the present case, the applicant was restrained in order to avoid self-harm and damage to guardians and his ward and, in general, maintaining discipline and order in the prison as he was displaying aggressive attitudes. He was then taken to the observation room while his wrists and ankles were handcuffed. Therefore, this practice, which is considered as a temporary measure, cannot be regarded to form an ill-treatment by itself.

On the other hand, it must be determined whether the applicant’s placement in the observation room with handcuffs for about six hours amounted to an ill-treatment. Walls of the observation room, also called as “padded room”, are completely covered with sponge and designed in a manner that would avoid self-harm. In the present case, the applicant was placed in the padded room in order to avoid self-harm or damage to the guardians and to his ward. Even though this measure cannot be per se regarded as an ill-treatment, it is requisite that there should be a reasonable ground which certainly necessitates the applicant’s placement in that room for about six hours with handcuffs on his wrists and ankles. The applicant’s placement in the padded room —where he could not cause self-harm and damage to other individuals—with handcuffs gives the impression that the applicant was exposed to corporal punishment. Failure to remove handcuffs from his wrists for about two hours is also in support of this impression. Even if it is accepted that the applicant might have continued displaying aggressive behaviours, there is no finding in the footage that he was periodically monitored in order to check whether he was calmed down.    

As a result, regard being had to the injuries specified in the medical report and the impugned incident, the applicant’s placement in the observation room for about six hours as being handcuffed was considered to amount to “torment”. It was accordingly held that there was a breach of the prohibition of ill-treatment under its substantive aspect, which is safeguarded by Article 17 § 3 of the Constitution.

Procedural Aspect

There is also a procedural aspect of the positive obligation imposed on the State within the scope of an individual’s right to protect his/her corporal and spiritual existence. Within the scope of this procedural obligation, the State is to conduct an effective investigation capable of identifying and, if appropriate, punishing those who are responsible for any kind of physical and psychological attacks. Primary aim of such an investigation is to ensure the pursuit of justice and to have public officers or institutions account for the events which have occurred under their responsibility.

It must be primarily stated that the obligation to carry out investigation with respect to the alleged human rights violations in no way amounts to admission of these allegations. Besides, taking such allegations serious and conducting a fair investigation constitute the procedural requirement of the ill-treatment prohibition. In this respect, the most fundamental step in the investigations into an alleged ill-treatment is taking of victim’s statements and performance of a detailed medical examination without delay. This is because, a medical report is evidence sine qua non for revealing whether the alleged treatment took place and, if so, for determining the extent of such treatment.

In the instant case, the applicant underwent a medical examination seventeen days after being taken out of the observation room. In the investigation into the present incident, no inquiry was made about the failure to have the applicant examined by a doctor just after his getting out of the observation room. As a matter of fact, given the scratches which were still present on the applicant’s body seventeen days later, it must be examined why the applicant was not taken to a doctor for medical examination despite submitting a petition of complaint upon being taken out of the observation room. In addition, the investigation authorities failed to consider whether the applicant had been held in the padded room —with handcuffs on his wrists and ankles—for about six hours for the purpose of punishment. Therefore, within the scope of the applicant’s allegations, the grounds for his being kept handcuffed in the observation room were not investigated.

Consequently, the Constitutional Court held that the prohibition of ill-treatment safeguarded by Article 17 § 3 of the Constitution was breached under its procedural 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
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