Events
The applicants are the parents and siblings of Ali İsmail Korkmaz, a university student who suffered a cerebral haemorrhage as a result of the intervention of civilian citizens and law enforcement officers during the demonstrations in Eskişehir during the Gezi Park events (2/6/2013) and died in the intensive care unit of the hospital where he was taken. Investigations and prosecutions were carried out, a public lawsuit was filed, and applications were made to the Constitutional Court and the European Court of Human Rights (ECtHR). In these applications made during the pendency of the case, the ECtHR ruled inadmissibility on the grounds of non-exhaustion of domestic remedies and the Constitutional Court ruled inadmissibility on the grounds of non-exhaustion of remedies.
At the end of the trial and appeal process in the heavy criminal court, the defendants who caused the death of the applicants’ relative were sentenced to imprisonment. The heavy criminal court sentenced the defendant police officer H.E. to 7 months and 15 days’ imprisonment and deferred the announcement of the verdict (HAGB) for the offence of intentional injury with a baton, which is considered a weapon, by abusing his influence as a public officer. The applicants appealed against the HAGB decision. The heavy penal court rejected the appeal on the grounds that the legal conditions required for the decision on Leniency were fulfilled.
As a result of the full judgement case, the applicants were awarded pecuniary and non-pecuniary damages and the total amount was paid to the applicants together with legal interest.
Allegations
The applicants claimed that the prohibition of ill-treatment was violated due to the beating deaths of their relatives who participated in the demonstration by law enforcement officers and civilians.
The Court’s Assessment
Article 17 of the Constitution does not prohibit the use of force during meetings and demonstrations in cases requiring arrest and due to the behaviour of the participants in the demonstration. It is accepted that the use of physical force by security forces is not ill-treatment, provided that it is not excessive, only in unavoidable circumstances and in accordance with the legislation. However, unless it becomes absolutely necessary to use force due to the person’s own behaviour, this use of force would in principle violate the prohibition of ill-treatment.
In the concrete case, the police officer, who is a public officer and has the authority and duty to use force within the framework of the relevant laws, clearly abused the authority provided to him by his public office. The police officer completely deviated from his purpose in fulfilling his duty to use force, which was determined by law and rules. As a matter of fact, the court of first instance decided that the police officer committed the offence of intentional injury by abusing his influence. However, law enforcement officers are obliged to respect and protect fundamental rights, such as the inviolability of bodily integrity, and in particular human dignity, while fulfilling their duties under all circumstances.
It is understood that the competent judicial authorities before the Constitutional Court decided that the prohibition of ill-treatment was violated in the concrete case by deciding to punish the police officer. On the other hand, even if it is decided that the negative obligation not to use ill-treatment has been violated, it should be determined whether the victimisation in the case has been eliminated with the Leniency of the punishment given to the responsible police officer and the deterrence of the said practice in preventing similar incidents.
According to the Constitutional Court, the rules regulating criminal sanctions must be proportionate, fair and proportionate in accordance with the aims of prevention and rehabilitation. The principle of proportionality requires a reasonable relationship between the protection of the victim and the punishment of the perpetrator. By issuing a Leniency Decision, the fulfilment of the sanction determined for the offence constituting ill-treatment is postponed. At the same time, with this decision, the perpetrator of ill-treatment is not faced with any sanction in response to the act constituting ill-treatment if he does not commit another intentional offence within the trial period determined. It is even possible to decide to dismiss the public case filed against him at the end of the said period. For this reason, with the issuance of a HAGB decision, the relevant process in which ill-treatment should be subjected to a criminal sanction may result in the perpetrators of ill-treatment being completely exempted from punishment. Therefore, the Leniency Procedure cannot provide deterrence in preventing similar violations due to the impunity it leads to.
In this respect, it should be stated that while determining the sanctions for such acts, the competent authorities should not use their discretionary rights to mitigate the consequences of the act of ill-treatment. Some such practices regarding sanctions under the prohibition of ill-treatment undermine the obligation to conduct an effective criminal investigation to prevent such violations, as they fail to provide deterrence in preventing similar acts by leading to impunity or improper punishment of public officials who commit similar violations. When assessing whether the Leniency Period can be applied in cases of ill-treatment, it should be considered not only whether the legal conditions necessary for the Leniency Period to be decided are met, but also that by deferring the announcement of the sentences imposed in response to ill-treatment, deterrence is not provided for the prevention of similar incidents, and this situation also does not contribute to the elimination of the grievances of the victims of ill-treatment by providing judicial satisfaction.
Granting a Leniency Decision gives the impression that public officials involved in acts of ill-treatment are treated with leniency. This situation may encourage officials who are prone to such acts. On the other hand, in the concrete case, the fact that the police officer was not subjected to a disciplinary investigation due to the fixed offence aggravates the effect of impunity due to the Leniency decision in the criminal proceedings. In addition, with the issuance of a LAGB decision, the perpetrator was not deprived of certain rights such as civil service as a legal consequence of his conviction to a prison sentence for the offence constituting ill-treatment committed intentionally.
All these issues lead to a weakening of the belief that ill-treatment is not tolerated. Such practices create the impression among victims in particular and the public in general that the failure of the courts and competent authorities to fulfil their role, which is of critical importance, in order to protect individuals against ill-treatment creates an environment in which it is possible for public officials to abuse the rights of individuals by taking advantage of de facto immunity, and clearly damages the trust and belief in the rule of law and justice.
The fact that the punishment given to the perpetrator of ill-treatment is not disclosed does not make it possible to say that the victimisation in the incident has been eliminated for the same reasons. The fact that the perpetrator did not face any disciplinary sanction is another deficiency in terms of demonstrating the responsibility of the perpetrator and the need to correct the situation in this context.
For the reasons explained, the Constitutional Court decided that the prohibition of torture was violated.
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