No Violation Of The Right To Life Due To Deaths In Terrorist Operations
Events
155 Police Help Line received a call at night stating that a bomb attack would be carried out and an operation was organised by the security forces at the address subject to the call at 01.45 hours. A hand grenade, improvised explosive devices, a pistol, a magazine, many cartridges and a mobile phone were found in the house where the suspect was not found. Although search operations were duly carried out in some houses in the neighbourhood, the suspect was not caught. On the same day, as a result of the information provided by some people, an operation was launched at around 16.30 upon learning that the suspects were in the outbuilding of another house. When the security forces responded to the warnings of the security forces with gunshots, a clash broke out and ended with the capture of three suspects.
The Chief Public Prosecutor’s Office immediately and ex officio initiated an investigation into the incident. Regarding the deaths of the applicant’s sons S.Y. and A.Y., the Chief Public Prosecutor’s Office decided not to prosecute the security forces on the allegation of intentional killing. The applicant’s appeal against this decision was rejected by the Criminal Court of Peace.
Allegations
The applicant claimed that their son was unlawfully killed as a result of the use of disproportionate force by the security forces, although the use of armed force was not necessary, and that the material circumstances of the incident were not revealed through an effective investigation and that the material and procedural aspects of the right to life were violated.
The Court’s Assessment
1. Regarding the Allegation of Violation of the Material Aspect of the Right to Life
In the case in question, the intervention of the security forces was not an operation with prior planning, intelligence and preparatory work, but an intervention that started with an instant notification.
The applicant claimed in the abstract that the security forces opened fire directly without any warning. The applicant did not explain on which evidence he based his claim and who the witnesses were, whose identities he claimed had not been investigated. It has been observed that K.Ö. and N.Ö., whose statements were referred to in the file, stated that the necessary warnings were given before the use of armed force, and that the Incident Report states that the necessary warning was given.
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From the Incident Report and the statements, it is established that the suspects did not surrender despite the call of the security forces and fired at the security forces with the automatic weapons they had with them. Although fingerprints were not found on the grenade as a result of the examination of some of the materials, it was determined in other criminal reports that the swab samples taken from the inside of the hands, cheeks and other body parts of the suspects contained gunshot residues. In the report prepared as a result of the examination of the rifles, bullet cores and casings found at the scene of the incident, it was stated that many bullets were fired from the weapons in question and that there was a use of weapons against security forces in the incident.
As a grenade was found in the crime scene investigations and a document on a bomb attack was found on the applicant’s son A.Y., it was considered that the suspects were preparing an attack. The security forces – in terms of the legitimate aim set out in the fourth paragraph of Article 17 of the Constitution – did not only use weapons in self-defence to protect their lives due to the use of weapons against them, but also acted within the scope of protecting the lives of third parties/civilians due to a strong suspicion that a bomb attack would be carried out.
For the reasons explained above, the Constitutional Court decided that the substantive dimension of the right to life was not violated.
2. Regarding the Allegation of Violation of the Procedural Aspect of the Right to Life
The Chief Public Prosecutor’s Office immediately initiated an investigation, issued a search warrant in case of undue delay, went to the scene of the incident immediately after the death was reported, made the necessary investigations and prepared the necessary reports.
It was understood that the police officers who examined the crime scene were not assigned to the Anti-Terror Branch, that there was no information that the persons who carried out the ballistic and biological examinations were related to the persons involved in the incident, and that the crime scene and examinations and material evidence investigations were carried out by the public prosecutor himself and hierarchically by law enforcement officers other than the security forces involved in the incident.
In the same context, the reports on the absence of fingerprints on the grenade found at the scene of the incident were also prepared by the criminal police laboratories involved in the investigation. For these reasons, the applicant made only abstract allegations without presenting any concrete data, documents or evidence that the investigation was not independent, thus it was considered that the investigation subject to the application was carried out in a sufficiently independent manner under the circumstances of the concrete case.
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In the investigation file, in which there was no restriction order from the beginning, it was understood that the applicant had the opportunity to participate actively from the first stage of the investigation, that he could also file a petition, that he was notified of the non-prosecution decision containing detailed justification regarding the death incident, and that the applicant, who had all kinds of opportunities, could use the appeal against the decision made as a result of the investigation. In this context, it has been assessed that the fact that the applicant’s statement was never taken during the investigation phase does not cause a deficiency in terms of this principle alone according to the circumstances of the concrete case.
It is understood that in the investigation subject to the application, which was initiated on 31/7/2015, a decision of non-prosecution was made on 16/3/2016 and the objection to the decision was rejected by the decision of the Criminal Court of Peace dated 8/4/2016, therefore, the investigation was carried out with reasonable speed and diligence.
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Crime scene investigations, discovery, death examination and autopsy procedures were carried out with the participation, accompaniment and supervision of the public prosecutor. The public prosecutor carried out numerous procedures to have all kinds of material evidence examined by specialised personnel and criminal laboratories.
In the decision of the public prosecutor on non-prosecution, the public prosecutor, after narrating the development of the incident, accepted that the suspects responded to the call of the security forces to surrender with firearms, and that the security forces used weapons in a proportionate and measured manner, staying within the limits of this legal authority, based on the authority and right set out in Article 16 of the Law No. 2559 on Police Duties and Powers.
Upon the petition of objection to this decision, which included the allegations raised in the individual application form, the Criminal Court of Peace, after referring to Article 2 of the European Convention on Human Rights, Articles 17 and 90 of the Constitution, paragraph (1) of Article 24 of the Turkish Criminal Code No. 5237 and Article 20 of the Anti-Terrorism Law No. 3713, accepted that the aforementioned conditions were the reason for compliance with the law as the fulfilment of the law order and rejected the objections raised.
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In the investigations to be conducted pursuant to Article 17 of the Constitution, the investigating authorities are not obliged to meet all kinds of claims and requests of the relatives of the deceased regarding the development of the incident and the obtaining of evidence, as long as it does not prevent the determination of the circumstances surrounding the death and the identification of those responsible, if any.
In the concrete case, none of the elements in the investigation subject to the application alone or as a whole indicate that the public prosecutor did not investigate the cause of the events and did not collect all the evidence that should have been collected during the investigation phase, that the investigation was not independent, and that the evidence collected was not analysed comprehensively, objectively and impartially. I.n such a situation and in a state of law that respects human rights, it is not possible to say that the investigation that resulted in the decision of non-prosecution was not carried out effectively by evaluating that the use of weapons was used in a proportionate manner compared to the necessity and the danger arising, and therefore the actions of the police officers who used armed force were in accordance with the law.
For the reasons explained, the Constitutional Court decided that the procedural aspect of the right to life was not violated.
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