Events
On the day of the incident, three people called the 155 Police Help Line and reported that Y.C.C., a relative of the applicants, was using drugs in a park. Police officers M.C. and S.P. arrived at the scene of the incident and Y.C.C. and Y.C.C. got into a brawl and Y.C.C. collapsed after being sprayed with pepper spray by the police officers and died in hospital on the same day. The Chief Public Prosecutor’s Office immediately initiated an investigation into the incident. Chief Public Prosecutor’s Office stated that the actions of police officers S.P. and M.C. constituted the offence of causing death by negligence and requested permission for an investigation from the governor’s office in accordance with Law No. 4483 on the Prosecution of Civil Servants and Other Public Officials, since the suspected police officers were public officials and the offence was committed during and because of their duties.
The governorship requested the Ministry of Interior to appoint an inspector to conduct the investigation, and accordingly, the Ministry of Interior appointed a chief property inspector and a police chief inspector to conduct a preliminary investigation. Chief inspectors assigned to conduct a preliminary investigation heard the statements of law enforcement officers and other witnesses and collected the evidence they deemed necessary. In this context, they submitted the preliminary investigation report containing the opinion that no authorisation for investigation should be granted. In line with the aforementioned report, the district governor’s office decided not to authorise an investigation against the law enforcement officers. The applicants objected to this decision and the regional administrative court, which examined the objection, rejected the objection. Thereupon, the chief public prosecutor’s office decided that there was no need for an investigation since the objection was rejected and finalised.
Allegations
The applicants claimed that the right to life was violated due to the unnecessary and disproportionate use of force by law enforcement officers and the failure to authorise an investigation into the death.
The Court’s Assessment
1. In terms of the Material Aspect of the Right to Life
İn its previous judgements, the Constitutional Court has examined the use of pepper spray/tear gas, which is accepted as a tool in the intervention of law enforcement officers in social events and whose use is not prohibited by national and international legislation, within the scope of the right to life and the prohibition of ill-treatment, in the context of the proportionality of the use of material force. In these examinations, the fact that the information note on chemical weapons used in social events published by the Turkish Medical Association states that the gas used in Turkey may cause shortness of breath, nausea, vomiting, irritation and even death in children, the elderly, pregnant women and those with chronic diseases was taken into consideration.
Considering the possible effects, the use of such gases may be deemed lawful provided that other means to break the resistance are first tried and no result is obtained from them or it is clearly understandable that no result can be obtained under the circumstances of the concrete event.
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In the concrete case, the intervention of the law enforcement officers was not an operation that was planned and prepared in advance, but an intervention that lasted approximately two minutes and took place as a result of the radio announcement made by the 155 Police Help line officers due to the notifications received and two police officers were directed to the scene of the incident.
Considering the fact that the law enforcement officers were two people – together with the other law enforcement officer who came running to the scene of the incident, that the deceased who resisted them was lying on the ground at that time, and more importantly, that he was a 14-year-old child, and that it was not claimed that there was a suspicion that he was carrying a weapon or a weapon-like means of attack, it was understood that it was possible for the law enforcement officers to take alternative measures to prevent the child from escaping or resisting.
In other words, it is inconceivable that the danger posed by a 14-year-old child, who does not possess a weapon or similar means, cannot be prevented by two law enforcement officers, each of whom has an advantage over the child in terms of physical strength, and that the intervention would be inadequate. Therefore, it was concluded that the intervention in the form of the use of pepper spray by the law enforcement officer, which had an effect on the death of the applicants’ relative, was not proportionate.
For the reasons explained, the Constitutional Court decided that the material dimension of the right to life was violated.
2. In terms of the Procedural Aspects of the Right to Life
The purpose of the investigation authorisation procedure is to conduct a preliminary examination before proceeding with a criminal investigation in terms of the alleged offences in order to ensure that public officials do not face unnecessary accusations due to the offences they are alleged to have committed as a result of their duties and to prevent the disruption of public services by keeping them free from all kinds of concerns. In this examination, the reality of the alleged offence, its scope and nature in general terms, its framework, the evidence, etc. are investigated.
Care should be taken to ensure that both the administrative preliminary examination and the examinations and evaluations to be made by the administrative judicial bodies that evaluate the objections against the decision not to grant an investigation permit are carried out in a way that does not allow the application of the investigation permit procedure in a way that delays the functioning of the criminal proceedings and prevents the investigation from being carried out effectively, or does not allow the impression that public officials are exempted from criminal investigation.
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In the decision of the regional administrative court, it was decided to reject the objection to the decision not to grant an investigation permit by stating that there was not sufficient and reasonable suspicion to require an investigation against law enforcement officers. In the aforementioned decision, it has been observed that the reasons for the rejection of the objection were not explained and a conclusion was reached only in line with the opinion of the administration. It is understood that the decision of the regional administrative court does not meet the requirement of being based on a comprehensive, objective and impartial analysis of all the findings obtained in the investigation, does not include an assessment of whether the interference with the right to life is a proportionate interference, and prevents an investigation and, if necessary, prosecution in which these evaluations can be included.
For the reasons explained, the Constitutional Court decided that the procedural aspect of the right to life was violated.
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