Individual Application 73/19

Press Release concerning the Judgment Finding a Violation of the Procedural Aspect of the Right to Life for Lack of due Diligence in the Investigation and Prosecution Processes

On 20 June 2019, the Plenary of the Constitutional Court found a violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution in the individual application lodged by Mehmet Bayrakcı (no. 2014/6100). 

The Facts

The applicant’s brother was murdered in the Republic of South Africa where he had been residing. The South African authorities launched an investigation into the murder and identified the suspects who were Turkish nationals.

Since the murdered person and the suspects were Turkish nationals, the Ministry of Foreign Affairs pursued the process and requested information from the South African authorities.

The relevant authorities notified that the proceedings into the murder had been discontinued for lack of evidence and that the case had been closed. They also stated that if the Turkish authorities had needed any other information or assistance, they would have been required to submit a new request for judicial assistance.

Upon the re-submission of the request for judicial assistance by the chief public prosecutor’s office, the Ministry of Foreign Affairs stated “there is no benefit in repeating the request since the relevant authorities have already responded to our previous request”. The Chief Public Prosecutor’s Office issued an indictment against the suspects, requesting their punishment for incitement to murder as well as committing deliberate murder.

The assize court dismissed the indictment, stating that although it was understood that certain proceedings had been carried out against the accused in South Africa, no documents pertaining to the conclusion of the proceedings could be obtained, and therefore it could not be determined whether a judgment had been rendered in the foreign country. The court added that if the conditions were fulfilled, a permission would be requested from the Ministry; however, the above-mentioned issues were among the preconditions for bringing an action.

The Applicant’s Allegations

The applicant maintained that the Turkish authorities had remained inactive for a very long period on account of South Africa’s failure to deliver the requested documents and that although he had submitted most of the information and documents to the public authorities, the investigation had been procrastinated. In this regard, the applicant claimed that his brother’s right to life was violated.

The Court’s Assessment

Jurisdiction is a requirement of the State’s sovereignty and the State exercises its sovereignty within the borders of the country. However, the States may extend their jurisdictional authority to cover the crimes committed outside their countries for the purposes such as maintaining the international legal order, protecting their citizens, protecting State interests and ensuring the prosecution of the crimes, thereby preventing impunity.

The limits of the Republic of Turkey’s jurisdiction ratione loci to impose punishment are not regulated in the Constitution. The relevant jurisdiction arises from the State’s exercise of its sovereignty. According to the legislation, a Turkish national can be tried for the crimes he committed in a foreign country.

In the present case, the incident took place in 2002 and an investigation was launched in 2005. However, it was in 2014 that a criminal case, which has still been pending, was filed. The length of the proceedings carried out for deliberate murder, which lasted approximately fourteen years and covered the investigation phase lasting more than nine years, cannot be considered as reasonable. During this period, whether there had been a failure attributable to the Turkish authorities and whether they had fulfilled their obligation to act in due diligence were examined.

The South African authorities had initiated judicial proceedings prior to the investigation launched by the Turkish authorities. The incumbent chief public prosecutor’s office sent a letter rogatory to the competent judicial authority of South Africa in 2005, requesting information and documents related to the proceedings carried out. The letter was replied in 2012.

At this stage, the investigation authorities did not make any assessment as to whether the information and documents included in the case file, as well as the information received from the South African authorities, were sufficient to continue or conclude the investigation. In addition, further information was requested from the South African authorities, decisions of non-jurisdiction were issued, and a criminal case was brought after nine years had elapsed.

Turkish judicial authorities had requested information and documents from South Africa. However, although some information had been submitted by the competent authorities of South Africa at different stages, the Turkish authorities failed to make an assessment as to whether they were sufficient for the continuation of the investigation.

The failure or delay in sending the documents which had been requested from the South Africa cannot be attributed to the Turkish authorities. However, the investigation should not have been procrastinated for just that reason. In particular, while it had been necessary to make an assessment of the process by taking account of the reply letter received in 2012, the public authorities failed to show due diligence expected of them in this regard.

It has been concluded that the examination carried out during the investigation and prosecution processes lacked the due diligence that is required by the Constitution, and therefore the investigation was not effective, which indicates that the procedural obligation of conducting an effective investigation within the scope of the right to life has not been fulfilled.

Consequently, the Court has found a violation of the procedural aspect of the right to life 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.