Individual Application

The Facts

The facts of the present case may be summarized as follows according to the reports submitted by the public authorities:

The applicant was taken into custody, for participating in the Gezi Parkı Protests, at his home where a search was conducted. The applicant, who was handcuffed for security reasons while being taken to the Karşıyaka State Hospital for the necessary custodial procedures, himself harmed his wrists by tightening and stretching his arms. Following the issuance of a medical report, he resisted to the security officers in order not to get in the vehicle and, within the vehicle, not to allow them to handcuff his left wrist. Thereupon, the security officers handcuffed the applicant’s hands behind his back by using force. The applicant’s fingerprints were taken at the police station once again by use of force as he continued resisting to the officers. Moreover, while he was taken to the detention room at the police station, his shoestrings were removed by making him lie on the ground. It is specified in the report that all these interventions by the security officers were recorded by the police surveillance cameras.

The facts of the present case may be summarized as follows according to the applicant’s statements:

In his statement, the applicant maintained that while being taken to the police vehicle following his custodial medical examination, a police officer in respect of whom a description was given by him kicked his right arm, and another officer kicked his feet; and that after being taken to the police station, he informed the officers that he had pain in his arm and requested to be referred to a hospital; however, the officers twisted his arm to take his fingerprints.  

The medical reports indicate the followings:

In the report drawn up at the Karşıyaka State Hospital where the applicant was taken just after his arrest for the custodial procedures, ecchymoses of about 2 cm were found on the exterior surface of his both wrists.

In the Atatürk Training and Research Hospital of the İzmir Katip Çelebi University where he was referred to on the day of his arrest due to the problem in his arm, no other report was drawn up, and the followings were noted at the bottom of the referral paper: “no bone fracture or dislocation was found on the body of the patient complaining of pain in his right elbow. There is only a red ecchymosis, 5-6 cm in diameter, on the inside surface of his left wrist”.

The next day of his arrest, the applicant was once again referred to the same hospital as he continued to suffer pain in his arm. In the medical report, it was specified that there was a bone fracture to his right elbow. 

In the medical report drawn up at the end of the police custody period, which was two days after his arrest, along with the fracture to his right elbow, an erythema was found on the inner surface of his left forearm and an erythema of 2 cm was found on the inner surface of his left upper arm, as well as superficial scratch of 3 cm on his right lower leg tibia.

Facts as to the post-custody period:

The applicant was detained on remand and held in prison for about five months. After being released, he underwent an operation on his arm.

While being detained on remand, the applicant filed a criminal complaint with the İzmir Chief Public Prosecutor’s Office for the identification and punishment of the relevant police officers on account of the acts he was exposed to. In his letter of complaint, the applicant requested the identification of the suspects and examination of the video footage from the surveillance cameras both inside and outside the Karşıyaka State Hospital where he had been taken just after his arrest.   

The İzmir Chief Public Prosecutor’s Office rendered a decision of non-prosecution on the basis of the existing medical reports and minutes, without fulfilling the applicant’s above-cited requests.

The applicant’s challenge to this decision was dismissed by the competent Assize Court.  

The Applicant’s Allegations

Maintaining that he had suffered no health problem until his custody; that he was handcuffed behind his back when taken into custody; that after obtaining the medical report, a police officer kicked his arm, and another officer kicked his feet; that his fingerprints were taken by use of force; and that his arm was broken due to ill-treatment he was exposed to, the applicant alleged that there was a breach of the prohibition of treatment incompatible with human dignity safeguarded by Article 17 § 3 of the Constitution. He requested finding of a violation, as well as claimed pecuniary and non-pecuniary compensation.

The Constitutional Court’s Assessment

As the Constitutional Court did not have sufficient materials at its disposal to reach a conclusion as to the merits of the applicant’s allegations, its examination in the present case would be limited to the State’s procedural obligation to carry out an effective investigation enshrined in Article 17 § 3 of the Constitution.

In brief, the Constitutional Court made the following assessments:

Pursuant to Article 17 of the Constitution taken in conjunction with Article 5 thereof, it is the State’s obligation to conduct an effective investigation in case of an alleged violation of torture and ill-treatment, which is defendable. It is not an obligation of result, but of means.

The criminal investigations to be conducted must be effective and sufficient to the extent which would lead to the identification and punishment of those responsible. An investigation may be deemed to be effective and sufficient only when the investigation authorities act ex officio  and collect all evidence capable of clarifying the incident and identifying those responsible. Therefore, an investigation into the alleged ill-treatment must be conducted in an independent, speedy and exhaustive manner. 

Besides, for an effective investigation into the alleged torture and ill-treatment by public officers, those who are conducting the investigation and making inquiries into the incident must be independent from those involved in the incident. An independent investigation entails not only hierarchical or institutional but also a concrete independence.

In the present incident, given the reports drawn up by the law enforcement officers and the applicant’s explanations, it has been revealed that there are several actions which may lead to the fracture to the applicant’s arm. During the investigation conducted into the applicant’s allegations of ill-treatment, it must be primarily determined when and due to which action the applicant’s arm might have been broken.

It seems impossible to make a sound assessment as to the determination of the responsibility, identification of those responsible and as to whether the permitted limit for use of force was exceeded or not in the incident, without making a determination as to the action which might have led to the fracture to the applicant’s arm, in other words, without making all inquiries for revealing the material fact. It has been observed that within the scope of the legal actions initiated with respect to the impugned incident, no step was taken in order to obtain an expert report where an assessment as to the time and reason of the fracture to the applicant’s arm is included; and that nor does the decision rendered at the end of the investigation include any assessment in this respect.

Although it is specified in the minutes drawn up by the law enforcement officers that the force used was recorded by the surveillance cameras, there is no indication within the investigation file that these footages were examined and assessed by the investigation authorities. It has been also revealed that footages of the surveillance cameras at the Karşıyaka State Hospital collection of which was requested by the applicant and which may be capable of revealing the material fact are not included in the investigation file.

There is no evidence such as footage, expert report, statements of complainants and witnesses or suspects’ defence submissions, other than the medical reports received and minutes drawn up by the law enforcement officers, within the investigation file. In the decision of non-prosecution, there is no assessment as to the injuries specified in the medical reports which are included in the investigation file.

Regard being had to the investigation file, it has been observed that the minutes drawn up by the law enforcement officers, who are the suspects, per se form a basis for the decision of non-prosecution. For an effective investigation into the alleged ill-treatment by the public officers, only the hierarchical or institutional independence of those conducting the investigation and making the inquiries from those involved in the incident is not sufficient. The investigation must be independent and impartial also in practice. In other words, this principle requires the investigation to be impartial and independent both de facto and de jure. In the present case, the minutes indisputably drawn up by the suspects were per se taken as a basis for the decision without being substantiated and supported with any other evidence, which is in breach of the principles of an independent and impartial investigation.   

When the process is considered as a whole, it has been concluded that due diligence was not exercised in conducting an effective and rigorous investigation capable of determining those responsible and revealing the material fact concerning the injury sustained by the applicant during a period when he was under the control of the State.

Furthermore, the fact that although it was stated in the medical reports that the applicant’s arm was broken and he appeared before the courts while his arm was casted, an ex officio investigation was not launched into the incident but an action was taken upon the applicant’s complaint lodged approximately one and a half month later constitutes a violation of the principle of ex officio investigation that is of importance in terms of the effectiveness of investigation.

Consequently, the Constitutional Court found a violation of the procedural obligation inherent in the prohibition of treatment incompatible with human dignity, which is enshrined in Article 17 § 3 of the Constitution. It also ordered re-opening of the proceedings (investigation) for the elimination of the breach and consequences thereof and awarded a net amount of 15,000 Turkish liras in favour of the applicant as non-pecuniary compensation.