Individual Application 17/19

Press Release Concerning the Judgment Finding a Violation of the Procedural Aspect of the Prohibition of Ill-Treatment Due to the Non-Consideration of Certain Allegations of the Juvenile Offenders

On 23 January 2019, the Second Section of the Constitutional Court found a violation of the procedural aspect of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution in the individual application lodged by F.E. and Others (no. 2014/15586).

The Facts

The applicants at the ages of 16-17 were being detained on remand, at the relevant time, for membership of a terrorist organization at a closed penitentiary institution for juveniles and youth.

A quarrel took place between the applicants and guardians during the inmate count procedure. The other children detained on remand at the same institution collectively involved in the incident after the uproar. After the incidents had been suppressed, an administrative investigation was initiated against 11 children whose transfers to another penitentiary institution were then ordered accordingly. Thereafter, the incident by the Turkish Parliament’s Human Rights Investigation Commission (“the Commission”) and the Human Rights Institution of Turkey issued a report concerning the incident.

The next day the penitentiary administration filed a criminal complaint against the detained children before the incumbent chief public prosecutor’s office to which CDs including medical reports of those involved in the incident and video footage of the incidents were submitted. On the other hand, lawyers having interviewed with the applicants filed a criminal complaint, with the interview reports in the annex, against the guardians who had allegedly ill-treated the detained children. Besides, the court expert assigned to examine the video footage of the incident issued two separate reports.

The chief public prosecutor’s office issued a decision of non-prosecution at the end of the investigation initiated against the guardians for allegedly causing actual bodily harm, defamation, threat and exceeding the limits of right to use force. In the reasoning of the decision, the chief public prosecutor’s office referred to the Commission’s report and indicated that the guardians had prevented riot by applying proportional force and that, as regards the alleged acts of defamation and threat, there was no concrete findings except for the applicants’ allegations that were abstract in nature. The applicants’ allegations that they had been battered at the observation unit, handcuffed behind their backs and strip-searched were not addressed in the decision. The applicants challenged the decision of non-prosecution; however, it was dismissed by the incumbent magistrate’s judge. Thereafter, they lodged an individual application with the Court. 

The Applicants’ Allegations

The applicants maintained that the prohibition of ill-treatment had been violated as the juvenile inmates had been exposed, by the guardians, to behaviours and conducts which had been systematic and incompatible with human dignity.

The Court’s Assessment

In examination of the complaints as regards the prohibition of ill-treatment safeguarded by Article 17 of the Constitution, the substantive and procedural aspects of the prohibition must be discussed separately. The procedural aspect of the prohibition of ill-treatment entails the requirement to conduct an effective investigation capable of identifying and punishing those responsible for the arguable allegations which give rise to a reasonable suspicion that the prohibition has been violated.

In the present case, the Court found no violation of the substantive aspect of the prohibition of ill-treatment and separately examined the alleged failure to conduct an affective investigation under the procedural aspect.

In the impugned incident, the issues requiring an examination as to the procedural aspect of the prohibition of ill-treatment are the applicants’ allegations that they were battered in the areas where there was no camera; that they were kept in the observation unit while their hands and feet were cuffed; that they were referred late for a medical report; and that the medical report did not reflect the truth.

Providing medical examination for those who are at the hands of the State constitutes one of the significant measures against ill-treatment, and it is of vital importance to properly carry out such medical examinations and duly issue, and submit to the relevant authorities, medical reports. Medical examinations must be concluded with reliable and veracious reports. Therefore, medical examinations must be carried out in private by medical specialists and in the absence of security officers and other public officials.

In the present case, it was not considered whether the medical report obtained by the penitentiary institution satisfied the necessary conditions, but it was per se taken as a basis for the decision, which was found to be contrary to the said principles.   

Besides, the applicants’ allegations that they had been subject to battery after being neutralised were not discussed thoroughly. Nor was the alleged battery sustained by the applicants at areas with no camera and at the observation unit taken into consideration. In its main assessment in the decision of non-prosecution, the chief public prosecutor’s office confined itself to taking into consideration the Commission’s findings as well as to considering whether the right to use force had been exceeded.

An examination as to the treatments allegedly sustained by the applicants after the incidents was not carried out. In this regard, the authorities failed to consider certain issues whether the allegations concerning the period after the incidents had been suppressed had been true and if so, whether there had been a situation necessitating use of force.

Consequently, the Court found a violation of the procedural aspect of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.