03 Nov VIOLATION OF THE BAN ON TORTURE DUE TO THE FACT THAT A DEMONSTRATOR WAS BEATEN TO DEATH
The applicants are the parents and siblings of Ali Ismail Korkmaz, a university student who suffered a brain hemorrhage as a result of the intervention of civilian citizens and law enforcement officials in the demonstrations held in Eskişehir during the Gezi Park events (2/6/2013) and died in the intensive care unit where he was taken to the hospital where he was removed. Investigations and prosecutions have been conducted, a public lawsuit has been filed, and applications have been made to the Constitutional Court and the European Court of Human Rights (ECHR) on the matter. In these applications made while the case was ongoing, the ECTHR decided that the domestic legal remedies and the Constitutional Court decided that they were inadmissible due to the fact that the application remedies had not been exhausted.
At the end of the trial and appeal process conducted at the assize court, prison sentences were imposed on the defendants who caused the death of the applicants’ relatives. The accused police officer H.E.on the other hand, nin was sentenced to 7 months and 15 days in prison for intentionally wounding with a baton, which is considered a weapon, by abusing the influence she has as a public official, and the announcement of the verdict was postponed (HAGB). The applicants appealed against the HAGB decision. The assize court rejected the objection on the grounds that the necessary legal conditions had been created in order to decide on the HAGB in its examination of the file.
As a result of the full judicial proceedings related to the incident, it was decided to pay material and moral compensation to the applicants and the total amount awarded was paid to the applicants along with their legal interest.
The applicants claimed that the prohibition of ill-treatment was violated due to the fact that their relatives participating in the demonstration were beaten to death by law enforcement officers and civilian citizens.
The Court’s Assessment
17 Of the Constitution. the article does not prohibit the use of force in situations requiring arrest at meetings and demonstration marches and because of the attitude of the participants in the demonstration themselves. It is accepted that the use of physical force by the security forces is not ill-treatment, provided that it is not excessive only in certain cases and in accordance with the legislation, provided that it is unavoidable. However, unless it becomes absolutely necessary to resort to force because of one’s own behavior, this use of force will in principle violate the prohibition of ill-treatment.
In the concrete incident, the police officer, who is a public official and has the authority and duty to use force within the framework of the relevant laws, has clearly abused the authority provided to him by his official duty. The police officer has completely deviated from his purpose while fulfilling his duty related to the use of force established by laws and rules. As a matter of fact, the court of cassation also ruled that the police officer committed the crime of intentional wounding by abusing the influence he had. However, law enforcement officers are obliged to respect and protect fundamental rights, such as the inviolability of body integrity, and especially human dignity under all circumstances while performing their duties.
It is understood that the competent judicial authorities before the Constitutional Court have decided to punish the police officer and have decided that the prohibition of ill-treatment has been violated in the concrete case. On the other hand, even if it is decided that the negative obligation not to commit ill-treatment has been violated, it should be determined whether the victimization of the incident has been eliminated together with the HAGB regarding the punishment given to the responsible police officer and the deterrence of the application in question in preventing similar incidents.
According to the Constitutional Court, the rules governing criminal sanctions – in accordance with the purposes of prevention and improvement – should be measured, fair and proportionate. The principle of proportionality requires that there is a reasonable relationship between the protection of the victim and the Decriminalization of the perpetrator. With the decision of the HAGB, the fulfillment of the sanction determined in response to the crime constituting ill-treatment is left behind. At the same time, with this decision, the perpetrator of ill-treatment does not face any sanctions in response to the act that constitutes ill-treatment, if he does not commit another intentional crime within the specified probationary period. Even at the end of the said period, it is even a decision to drop the public lawsuit filed against him. For this reason, the relevant process, which should be linked to a criminal sanction of ill-treatment together with the decision of the HAGB, may result in the perpetrators of ill-treatment being completely exempted from punishment. Therefore, the HAGB institution is unable to provide deterrence in preventing similar types of violations due to the fact that it leads to impunity.
In this regard, it should be stated that the competent authorities should not use their discretion to mitigate the consequences of the act of ill-treatment when determining the sanctions for such acts. Some such practices related to sanctions under the ban on ill-treatment lead to the fact that public officials who commit similar violations go unpunished or are not punished properly, undermining the obligation to conduct an effective criminal investigation to prevent such violations, since it does not provide a deterrent to preventing similar acts. When evaluating whether the HAGB institution can be applied in cases of ill-treatment, it should be taken into account that not only the legal conditions necessary to decide on the HAGB have been created, but also that deterrence has not been provided to prevent similar incidents by delaying the disclosure of penalties for ill-treatment, and this does not contribute to the elimination of the victims of ill-treatment by providing judicial satisfaction.
The decision of the HAGB gives the impression that public officials involved in acts of ill-treatment are treated with tolerance. This situation, on the other hand, will be able to encourage officials who are prone to such acts. On the other hand, the fact that the police officer in the concrete incident was not subjected to a disciplinary investigation for his crime, which is considered fixed, also aggravates the effect of impunity caused by the fact that a HAGB decision was made in criminal procedure. In addition, with the decision of the HAGB, it was not the case that the perpetrator was deprived of certain rights, such as civil service, as a legal result of his conviction for imprisonment for a crime that constitutes intentional ill-treatment.
All these considerations lead to a weakening of the belief that ill-treatment is not tolerated. Such applications, in particular the victims, in general, the courts of public opinion needs to fulfil in order to protect against abuse by members of the competent authorities and, therefore, of critical importance because they have to fulfill their role in the immunity of public officials from taking advantage of an actual environment as possible creates the impression of abusing the rights of individuals; trust and faith in law and Justice clearly has a detrimental effect.
The failure to disclose the punishment given to the perpetrator of ill-treatment does not make it possible to say that the victimization in the incident has been eliminated for the same reasons. The fact that the perpetrator did not face any disciplinary sanctions also created another shortcoming in terms of revealing the perpetrator’s responsibility and demonstrating the need to correct the situation in this context.
The Constitutional Court has ruled that the prohibition of torture has been violated on the grounds described.