Violation Of the Prohibition Of Ill-Treatment Due To The Failure To Punish The Persons Found Responsible For The Battery In Proportion To Their Acts
Events
The applicant was detained and beaten by the residents of the neighbourhood after it became known that some posts allegedly in favour of a terrorist organisation were made on his social media account registered in his name.
Upon the incident being reported to the law enforcement units, an investigation was immediately initiated by the Chief Public Prosecutor’s Office, the identities of those responsible for the act subject to the application were determined, their defence statements were taken, witness statements were determined, and images and photographs of the incident were examined. As a result of the investigation, a criminal case was opened against those responsible for the incident, and the court concluded that the perpetrators, acting in concert, deprived the applicant of his liberty and intentionally injured him in such a way as to cause bone fractures in his body.
The Court sentenced the perpetrators to 3 years and 4 months imprisonment for depriving the applicant of his liberty and explained in its reasoning that the provisions on deferment of the announcement of the verdict (HAGB), postponement of the imprisonment sentence or conversion of the sentence into a fine were not applied since the amount of the sentence was above the legal limits. On the other hand, three perpetrators were sentenced to 11 months and 20 days imprisonment for the non-simple injury of the applicant, but their sentences were not announced since the amount of the sentence was within the legal limits, and the imprisonment sentences imposed on the other four perpetrators were converted into a fine of 7,000 TL since HAGB could not be applied. The aforementioned decisions have been finalised.
Allegations
Applicant claimed that the prohibition of ill-treatment was violated as the persons responsible for the injury inflicted by third parties were not punished in proportion to their actions as a result of the criminal proceedings.
The Court’s Assessment
The Leniency Decision issued against the person is not in the nature of punishment, but consists of leaving the person under the threat of punishment. As in the concrete case, the punishment of the person who is accepted by the court to have committed the offence is conditioned on the condition that he/she commits a new offence intentionally within the supervision period, and thus, his/her act, whose responsibility is fixed by the court decision, remains de facto unpunished – unless he/she commits a new offence.
While evaluating whether this impunity institution, which was introduced by the legislator in order to reintegrate the person back into society due to the crime committed, should be applied or not, it is necessary to interpret the deterrence of the sanction in proportion to the nature of the crime and the degree to which the victim is affected by the crime in question within the framework of the concrete conditions of each case without ignoring the deterrence of the sanction.
At this point, it should be noted that it is an understandable fact that the state’s positive obligations are more flexible in cases where the acts contrary to Article 17 of the Constitution are committed by third parties rather than public officials. On the other hand, after evaluating the circumstances specific to the case as a whole, it should be assessed whether the result harmed the right protected under Article 17 of the Constitution.
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In the concrete case, at the end of the trial, the act of seven people acting together and detaining the applicant in a square for a while was punished with imprisonment for more than three years, while the act of the applicant being exposed in public and being beaten by the same people in a way that caused a broken nose bone and extensive ecchymosis on his body was punished with a fine or threat of imprisonment. Consequently, the disproportionality/contradiction between the acts detected by the judicial authorities and the penalties imposed for these acts is striking at first glance. It is clear that the contradiction in question arises from the fact that the court, which adopted the application of minimum sentences in respect of both offences, preferred to monetise some of the sentences or not to announce the verdict, as they were within the legal limits.
The more important point is that, without distinguishing the incident from the acts of wounding as a result of simple physical intervention as a result of a momentary anger at the time of an argument and without taking into account the severity of its development and its possible effects on the applicant and the society, the court imposed a sentence at the lower limit without taking into account the severity of its development and its possible effects on the applicant and the society.
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After applying legal reductions, the fact that the prison sentences imposed on three perpetrators were not announced on the grounds that they had not committed a crime before, and the sentences of the other four perpetrators were converted into fines due to the fact that they had committed a crime before – since the HAGB institution could not be applied – gives the impression that the judicial authorities approached the incident subject to the application with tolerance.
As a result, it is assessed that the court, although it has discretionary power in determining the sentence and converting the HAGB or prison sentence to a fine, did not use this power to show that the acts in question will not be tolerated in any way. Due to the specific circumstances of the case, it was concluded that the decision to punish the perpetrators of the act in a way that was not proportionate to their actions in the face of the gravity of the act committed against the applicant rendered the deterrent legal measures taken to protect individuals against the prohibition of ill-treatment ineffective.
The Constitutional Court decided that the prohibition of ill-treatment was violated for the reasons explained.
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