Press Release No: Individual Application 77/20

Press Release concerning the Judgment Finding a Violation of the Right to an Effective Remedy for the Administration’s Failure to Compensate the Non-Pecuniary Damages Incurred due to Ill-treatment

On 5 November 2020, the Plenary of the Constitutional Court found a violation of the right to an effective remedy, safeguarded by Article 40 of the Constitution, in conjunction with the prohibition of ill-treatment, in the individual application lodged by Abdullah Yaşa (no. 2015/12486).

The Facts

The applicant, who was 13 years old at the material time, was injured in the face by a tear gas canister fired by the security forces who intervened in the illegal demonstration in Diyarbakır. The chief public prosecutor’s office, having launched an investigation into the incident, issued a decision of non-prosecution. The applicant’s subsequent challenge was dismissed. In addition, a criminal case was initiated against the applicant for his having participated in an illegal demonstration and disseminating terrorist propaganda as well as resisting the officers. Ultimately, the Juvenile Assize Court acquitted the applicant.

The applicant lodged an application with the European Court of Human Rights (“the ECHR”) regarding the incident where he had been injured. The ECHR found a violation of the substantial aspect of Article 3 of the European Convention on Human Rights (“the Convention”), and hence awarded compensation to the applicant. The applicant also applied to the Ministry of Interior, seeking the redress of the damages he had sustained due to his injury. Upon dismissal of his request by the Ministry of Interior, the applicant brought an administrative action. The administrative court dismissed the applicant’s claim on the ground that he had been injured as a result of participating in illegal events, namely as a result of his own fault, and thus there was no causal link between the damage sustained by the applicant and the administration’s act. The Council of State, having examined the applicant’s subsequent appeal, upheld the administrative court’s decision.

The Applicant’s Allegations

The applicant claimed that his right to an effective remedy had been violated in conjunction with the prohibition of ill-treatment for the administration’s failure to redress the non-pecuniary damage he had sustained due to his injury as a result of disproportionate use of force by the security forces.

The Court’s Assessment

In the present case, it was already found established by the ECHR that the prohibition of ill-treatment had been violated, and thus the applicant was awarded compensation. Therefore, the applicant's complaints regarding the action for compensation he had brought for the same incident have been examined within the scope of the right to an effective remedy in conjunction with the prohibition of ill-treatment.

The prerequisite for removing victim status in terms of the right to an effective remedy is the effective examination of the claim for compensation. In this regard, it cannot be concluded that the applicant lost his victim status, just because a violation had been found during the criminal proceedings and the applicant was awarded compensation in some way. It must also be demonstrated that his action for compensation was also examined effectively.

In the present case, contrary to the conclusion reached by the ECHR, the administrative court found no fault on the part of the State regarding the applicant’s injury. There is an explicit inconsistency between the ECHR’s judgment and the administrative court’s decision dismissing the applicant’s action for compensation, given their reasoning and conclusions. The ECHR acknowledged that the applicant had been injured as a result of the disproportionate acts of the law-enforcement officers. On the other hand, the administrative court, regardless of the ECHR’s judgment finding a violation as well as the considerations therein, specified that the applicant’s participation in an illegal demonstration was an obstacle to redress the damages he had suffered.

Pursuant to Article 46 § 1 of the Convention, the final judgments of the ECHR are binding for the Contracting Parties. In cases where the ECHR has found a violation of any constitutional right, the individual concerned shall have a right to an effective remedy. Such a constitutional obligation requires the national authorities to take measures and make decisions in compliance with the ECHR’s judgment with a view to redressing the consequences of violations.

In addition, as a result of the criminal case filed against the applicant seeking his punishment for some of his acts during the demonstration where he had been injured, the assize court acquitted the applicant. Having examined the footage obtained from the incident scene, the assize court could not reach a certain conclusion, positive or negative, as to whether the person in the footage was the applicant.

There is a contradiction between the findings of the administrative court, which concluded that the applicant had participated in the demonstration, and the findings of the assize court, which concluded that there was no definite observation in this regard. In addition, there is no legal arrangement preventing the administrative courts from reaching a different conclusion than those reached during the criminal proceedings. Besides, the Court acknowledges that, given the principles of freely collecting and evaluating the evidence which are applicable to the criminal proceedings, criminal investigations are the most effective method for revealing the material fact in cases of ill-treatment.

As a requirement of the right to an effective remedy, in any case before the administrative courts, the objective and concrete evidence obtained during the criminal proceedings should be evaluated, as well as the conclusions reached should be taken into consideration.

Consequently, the Court has found a violation of the right to an effective remedy for dismissal of the applicant’s claim for compensation regarding the damages caused by the violation, in contradiction with the violation judgment of the ECHR as well as with the evidence obtained in the course of the criminal proceedings.

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