Press Release No: Plenary Assembly 33/21
Press Release concerning the Decision Dismissing the Request for Annulment of the Provisions Allowing for an Increase in Penalties Prescribed for Offences Committed against Health-care Professionals
The Constitutional Court, at its session dated 13 October 2021, found constitutional and dismissed the request for annulment of the provisions stipulating that the penalty to be imposed in case of intentional injury and insult committed against health-care professionals taking office at public health institutions shall be increased by half and that the suspension of imprisonment sentence, as envisaged in Article 51 of the Turkish Criminal Code, shall not apply to the offences of intentional injury, threat and insult committed against these professionals (file no. E. 2020/91).
It is laid down in the contested provisions that the penalty to be imposed in case of intentional injury and insult committed -in relation to their offices- against health-care professionals taking office at public health institutions shall be increased by half, and that the suspension of imprisonment sentence, as envisaged in Article 51 of the Turkish Criminal Code, shall not apply to the offences of intentional injury, threat and insult committed against these professionals.
Grounds for the Request for Annulment
It was maintained in brief that the contested provisions were unconstitutional as according to the criminal regulations, in case of intentional injury and insult committed against health-care professionals who were considered as public officials, the said act shall be categorised as aggravated offence; in spite of this, the increase of penalty by half amounted to repetition of punishment; granting such a privilege to health-care professionals was contrary to the principle of equality before the law; they prevented the suspension of imprisonment sentences imposed for the offences of intentional injury, threat and insult committed against health-care professionals in relation to their offices, which would give rise to inequality between the health-care professionals and the other officials in the same legal position with them.
The Court’s Assessment
The adoption of a particular regime in terms of crime and criminal procedure in criminal law, with a view to fighting against crime and criminality, is related to the State’s criminal policy. Accordingly, on condition of being bound by the Constitution, the law-maker has discretionary power in the regulations related to the criminal law, such as determining the methods to be applied in relation to investigation and prosecution processes, whether certain acts shall be considered to constitute a crime within the society, and if so, which attitudes and conducts shall be regarded as aggravating and mitigating factors. However, in exercising this discretionary power, the law-maker must also observe the proportionality principle.
The contested provisions stipulate that the penalty to be imposed for the acts of intentional injury and insult committed against the health-care professionals shall be higher than the penalty to be imposed for such acts committed against other public officials, and that the imprisonment sentence prescribed for the aforementioned offences and threat shall not be suspended. In this scope, the impugned provisions aim at preventing the commission of the specified offences against the health-care professionals, thus ensuring deterrence. Imposition of a heavier punishment and hinderance of the suspension of the imprisonment sentence, as prescribed by the impugned provisions, is a reasonable/necessary way to achieve the aim pursued.
The acts of intentional injury and insult committed against public officials in relation their office constitute aggravated offences requiring heavier punishment. The contested provisions do not make any distinction between the health-care professionals of private institutions and those of public institutions. It is laid down in the 3rd paragraph of the article embodying the impugned provision that the personnel working in private health institutions shall be regarded as public officials in case of crimes committed against them in relation to their office. For this reason, in the determination of the penalty to be imposed for intentional injury and insult committed against health-care professionals in relation their office, two aggravating factors would be taken into consideration.
The types and extents of punishment for offences that vary according to the ordinary, namely, non-aggravated, and aggravated forms of the offences are regulated in Law no. 5237. In consideration of the severity and gravity of the punishment prescribed for the offences and the aim sought to be achieved by the law-maker through the impugned regulations, the increase in the penalty as stipulated therein shall be considered proportionate.
On the other hand, suspension of imprisonment sentence, is one of the processes whereby sentences and penalties are individualised, such as the suspension of the pronouncement of judgment and the sanctions alternative to short-term imprisonment. Suspension of imprisonment sentence is not an absolute right that must be afforded to individuals in all cases. Accordingly, it is the law-maker that has the discretionary power to determine the conditions under which the suspension of imprisonment sentence may be ordered, provided that these conditions are constitutional.
Given the burden imposed on the perpetrators through the prohibition of the suspension of imprisonment, which is at the law-maker’s discretion, vis-à-vis the aim sought to be achieved by the latter, the impugned provision is proportionate.
In addition, the principle of equality before the law as set forth in Article 10 of the Constitution applies to those who have the same legal status. It is obvious that health-care professionals, who are public officials, and the other public officials are in a comparably similar situation. Thus, in order to avoid any privilege to health-care professionals through different statutory regulations introduced, the said regulations must have an objective and reasonable basis, as well as being proportionate.
Health services, by their very nature, are indispensable services for ensuring health and well-being of individuals and society, which should be provided in a certain order. The objective underlying the contested provisions is the increase in the number of offences committed against health-care professionals in recent years. Therefore, it is clear that the impugned provisions have been formulated to prevent the commission of the aforementioned offences against health-care professionals. Hence, the impugned difference in treatment between persons in similar situations has an objective and reasonable basis. Since it has also been understood that the increase in penalties imposed for offences committed against health-care professionals is proportionate, it has been concluded that the impugned provisions do not infringe the principle of equality before the law.
Consequently, the Court has found the contested provisions constitutional and accordingly dismissed the request for their annulment.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.