Individual Application

The Facts

While performing his compulsory military service as a private soldier, the applicant was subjected to an assault by İ.H.D., who was serving as a corporal in the same unit. According to the statements of the eye-witnesses, the applicant was handcuffed to a radiator during the physical intervention while İ.H.D. was joking with him. The applicant, who became ill some time after the incident, had his spleen removed, and a report declaring him unfit for military service was issued following the medical process. He was accordingly discharged from military service. The applicant's father filed a complaint against those responsible on account of the physical violence inflicted on his son.

At the end of the criminal investigation, the military prosecuting authorities issued a decision of non-prosecution. The Court, examining the individual application lodged by the applicant with respect to the decision of non-prosecution, found a violation of the procedural aspect of the prohibition of ill-treatment, ordered a retrial and the payment of non-pecuniary compensation to him. Following the Court’s judgment finding a violation, the incumbent chief public prosecutor’s office obtained an expert report on the basis of which it decided not to prosecute. However, upon the applicant’s challenge, the chief public prosecutor’s office revoked the decision and filed a criminal action against İ.H.D. for allegedly committing torture. The applicant also brought a full-remedy action against the Ministry of National Defence before the Supreme Military Administrative Court (“SMAC”), which dismissed his action as there was no neglect of duty. The dismissal decision became final upon the appellate examination. Upon the second application lodged by the applicant, the Court found a violation of the procedural aspect of the prohibition of ill-treatment, in parallel with its previous judgment finding a violation in the applicant’s case.  

The assize court sentenced İ.H.D. to one year’s imprisonment for assaulting a subordinate. However, in consideration of the possible effects of the sentence on the offender’s future, the assize court ultimately sentenced the offender to ten month’s imprisonment and suspended the pronouncement of the judgment.

The Applicant’s Allegations

The applicant claimed that the prohibition of inhuman and degrading treatment had been violated due to the physical violence inflicted on him by his superior during the compulsory military service.

The Court’s Assessment

As laid down in Article 117 of the Military Penal Code no. 1632, dated 22 May 1930, the offence of assaulting a subordinate is punishable by imprisonment for up to two years. In the present case, İ.H.D., the applicant's superior, was sentenced to one-year imprisonment, which was subsequently reduced to 10 months by the exercise of a discretionary power. The court imposed a sentence close to the lower limit and reduced the sentence by taking into account the effects on the defendant's future. Although the exercise of discretion belongs to the judges, it should have been taken into consideration that the accused person is a military officer yielding public power, that the person against whom he used violence is his subordinate, and that the person who was subjected to violence during the action was handcuffed, and these issues should have been discussed in the reasoning. It should have also been demonstrated in the decision that an appropriate conclusion has been reached. It has been, however, observed that these issues were disregarded in the decision, which could not provide deterrence and would be insufficient to redress the suffering in relation to the criminal act for which imprisonment of up to two years is envisaged as a sanction.

In addition, there are objective and subjective conditions sought to issue a decision on the suspension of the pronouncement of judgment. In the reasoning, it should have been discussed that the accused person is a military person and has committed a deliberate act of violence and it should have been also demonstrated that the discretionary power was exercised accordingly. However, in the decision, the pronouncement of the judgment was suspended by merely referring to the provisions of the relevant law in the operative part of the decision. In this context, despite the circumstances surrounding the incident, the fact that the accused person is a military officer in the position of the applicant's superior and that the imputed act is of an intentional nature, no assessment was made in the decision so as to provide a legal basis for the pronouncement of the suspension of judgment. Although there is no legal obligation for the offence related to an intentional act of physical violence and there is a full discretionary power in this regard, the suspension of pronouncement of judgment, which will not bear any legal consequence as clearly stated in the law, was ordered in the case. Therefore, it has been concluded that the judges exercised their discretionary power not to demonstrate that the act of intentional physical violence cannot be tolerated in any way, but to minimise the consequences of this act as much as possible.

In consideration of all these findings, it has been concluded that although it was found established, at the end of the criminal proceedings, that the applicant had been subjected to physical violence, the decision rendered by the inferior courts did not provide deterrence in respect of the accused person and afford appropriate/sufficient redress for the suffering concerned. It has been accordingly concluded that the applicant still had the victim status.  In this context, it has been held that the impugned process, far from being deterrent, led to impunity and thus gave the impression that the accused was exempted from punishment, and that this situation was manifestly contrary to the State’s obligation to carry out a criminal investigation that could be capable of leading to the punishment of those responsible in an appropriate and sufficient manner to provide effective deterrence, for the purpose of preventing similar future violations.

Consequently, the Court has found violations of the substantive and procedural aspects of the prohibition of inhuman or degrading treatment.