No Violation Of The Procedural Aspect Of The Right To Life Due To The Failure To Conduct An Effective Criminal Investigation Into The Incident Of Death
Events
E.S., a relative of the applicants, took part in the demonstration in Ankara on 1/6/2013, which was publicly known as the Gezi Park protests. E.S. was injured when a bullet from the gun of one of the law enforcement officers intervening in the demonstration hit him in the head and he died in hospital on 14/6/2013. An immediate investigation was initiated by the Ankara Chief Public Prosecutor’s Office (Chief Public Prosecutor’s Office).
Upon the determination that the bullet core obtained during the autopsy of E.S. was fired from the gun of police officer A.Ş., the Chief Public Prosecutor’s Office requested the arrest of A.Ş. on the charge of killing by unintentionally exceeding the limit in self-defence. Ankara Criminal Court of Peace rejected the request for the arrest of the suspect and ruled for judicial control.
In the public case filed by the Chief Public Prosecutor’s Office, Ankara Heavy Penal Court ordered A.Ş. to be arrested. In the next hearing, the court sentenced A.Ş. to 7 years, 9 months and 10 days of imprisonment on the charge of murder with probable intent and ruled for the continuation of his detention. After the judgement was reversed by the Court of Cassation, the Court of Cassation decided to transfer the public case to Aksaray Assize Court on security grounds. Subsequently, Ankara Heavy Penal Court ordered the release of A.Ş.
Aksaray Assize Court sentenced A.Ş. to 1 year, 4 months and 20 days of imprisonment for the offence of killing by negligently exceeding the limit in self-defence and decided to convert the imprisonment sentence into a judicial fine and to continue the judicial control measure of ban on leaving the country.
Upon the appeal of the applicants, the Court of Cassation reversed the judgement in terms of the amount of the sentence. Upon the reversal decision, Aksaray Assize Court sentenced A.Ş. to 2 years and 1 month imprisonment for the offence of killing by negligently exceeding the limit in self-defence and to convert the imprisonment sentence into a judicial fine, and the decision was approved by the Court of Cassation.
Allegations
The applicants claimed that the procedural dimension of the right to life was violated due to the lack of an effective criminal investigation into the incident of death resulting from the use of force by the security forces.
The Court’s Assessment
In the concrete case, the Chief Public Prosecutor’s Office carried out a necropsy and autopsy. The Ankara Provincial Security Directorate transmitted the identity information and the weapon of the suspected police officer to the judicial authorities within a reasonable period of 11-12 days. It also sent all the CCTV footage of the incident to the Chief Public Prosecutor’s Office.
Again, the Public Prosecutor personally conducted a crime scene investigation six days after the incident in the presence of an expert. The Chief Public Prosecutor’s Office obtained all available footage of the incident from security cameras in all private and public buildings, MOBESE cameras, news agencies and RTÜK. These images were analysed by software hardware and image examination experts selected from the list of the Ankara Justice Commission during the investigation phase and an expert report was prepared.
In order to clarify the circumstances of the incident, the Chief Public Prosecutor’s Office sought the testimony of many witnesses, including citizens, police officers and news agency officials.
Expert reports on the clarified images of the incident were obtained at the trial stages. The video recordings of the incident, both those provided by the investigation authority and those submitted by the applicants, were watched by the Court Panel itself. In the light of all this information, it has been assessed that all necessary steps were taken by the judicial authorities during the investigation and trial stages to clarify the circumstances of the incident and to collect evidence in order to identify those responsible. Twenty-four days after the incident and within a reasonable period of time after the circumstances of the incident had been determined in general terms, A.Ş. was referred to the Criminal Court of Peace by the Chief Public Prosecutor’s Office with a request for his arrest after his statement was taken.
During the investigation phase, one of the applicants was present and listened to during the examination of the deceased, and a forensic medicine specialist doctor was present as an observer at the autopsy upon the request of the applicants, and a video recording was made. Again, one of the applicants and the applicants’ attorneys were present at the crime scene investigation carried out by the public prosecutor, and the statements of the witnesses they requested to be heard were taken by the public prosecutor during the crime scene investigation.
Considering that there are data indicating that the proceedings at the Ankara Assize Court cannot be conducted under conditions suitable for a safe and fair trial, that the applicants and/or their attorneys were present at every hearing of the proceedings held at the Aksaray Assize Court to which the case was transferred, that they were able to ask questions to the defendant in person at the hearing, that they submitted the special expert reports they obtained to the court, that these reports were evaluated by the Aksaray Assize Court, that the 5th Criminal Chamber of the Court of Cassation provided justification for the transfer of the case.
Considering that the 5th Criminal Chamber of the Court of Cassation provided justification when deciding on the transfer of the case, it is not possible to say that the decision to transfer the trial from an environment where there were serious security problems and the Ankara Assize Court considered that a fair trial could not be conducted to Aksaray, which is 2.5 hours away from Ankara and easy to reach, caused the applicants to be unable to participate in the trial to the extent necessary.
As a result of the examination made in terms of the principle of conducting the investigation with reasonable speed, which was completed in a total period of 5 years and 9 months, it has been determined that the investigation phase was completed in a fast period of approximately 1.5 months. As regards the trial phase, it was found that the period for the convictions to be reviewed by the Court of Cassation on appeal three times was 2 years and 8 months in total. It is considered that this review period should be accepted as a reasonable period of time.
In the examination of the duration of the trial phase, which is around three years excluding the appellate review, it is observed that many trial procedures were carried out, the applicants were represented by many attorneys throughout the entire trial, the parties and their attorneys were heard many times in the hearings, and the judge recused himself from the case due to the persistent objections made by the applicants regarding the impartiality and independence of the court and the unfair conduct of the trial.
İn addition to these issues, considering the fact that various security problems were experienced by both sides of the case during the trial, that the case was decided to be transferred due to these security problems, and that many expert reports had to be obtained in order to clarify the manner in which the incident occurred, it was considered that this period should also be accepted as a reasonable period.
In the examination on the necessity of conducting the investigation independently and impartially, it was concluded that there was no situation that harmed the effectiveness of the proceedings.
Finally, as a result of the Constitutional Court’s examination of the images before and after the incident and the images of the moment of the incident, the Aksaray Assize Court disregarded the allegation that A.Ş. separated from the other police officers he was with and ran towards the demonstrators by explaining the reasons specifically in the judgement, and the witness F.Ö. As confirmed by the statements of witness F.Ö., no matter that would require a departure from the acceptance that the incident occurred as a result of a momentary change in the posture of the arm above the shoulder level due to the effect and pain of the stones that hit the defendant while he was trying to repel the attack of a demonstrator by kicking in order to warn the crowd he was faced with, and that the police officer did not shoot with a targeted aim.
It was stated that the police group in which A.Ş. was a member had difficulty in retreating by getting stuck in the place where they were located, that A.Ş. was exposed to continuous stone throwing by a group of forty demonstrators, that A.Ş. fired bullets by pointing the barrel of his gun at the ground, that the three shots he fired into the air lasted for a total of 1 second, that he held his gun above his head during all three shots, that A.Ş. was exposed to intense stone throwing before and during the shots. A.Ş. was subjected to intense stone throwing before and during the shooting, he was not wearing any protective clothing or shield, he jumped backwards and sideways in order to escape, his hand holding the gun was shaking at the wrist, the size of the demonstrations and the intensity of the attacks,
Considering the experiences of the police officers who intervened in the demonstrations prior to the time of the incident as a whole, it is not possible to evaluate that – under the specific circumstances of the incident – the criminal qualification determined by the Aksaray Assize Court and the conviction decision based on this qualification were not based on a comprehensive, objective and impartial analysis of all the findings obtained and that the judicial fine imposed on the defendant, who was held in pre-trial detention for 14 months, was not proportionate to the result that occurred. In the concrete application, it is concluded that the judicial authorities’ discretion regarding the circumstances of the incident, the determination of the nature of the offence and the type and amount of the final sentence imposed must be respected.
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