Press Release No: Individual Application 66/21

Press Release concerning the Judgment Finding a Violation of the Right to an Effective Remedy of the Detainee Wounded during the Operations at a Penitentiary Institution

On 30 June 2021, the First Section of the Constitutional Court found a violation of the right to an effective remedy safeguarded by Article 40 of the Constitution, taken in conjunction with the right to life, in the individual application lodged by Özgür Sağlam (no. 2016/9076).

The Facts

The applicant, who was detained on remand, lost his left eye during the operations conducted at the penitentiary institution in 2000. The incumbent chief public prosecutor’s office initiating an investigation into the incident indicted the respective gendarmes for causing death and injury of several persons. The proceedings before the assize court resulted in impunity. The decision has not become final yet as the case is still pending before the regional court of appeal. On the other hand, at the end of the proceedings initiated against 399 accused persons including the applicant, the incumbent assize court discontinued the proceedings as time-barred and acquitted the accused persons. The applicant lodged an application with the European Court of Human Rights (“ECHR”), complaining of the lethal nature of the operation and ineffectiveness of the criminal proceedings. The ECHR awarded 25,000 euro in compensation for non-pecuniary damage to the applicant.

Besides, the administrative court awarded, at the end of the full remedy action brought by the applicant, 25,000 Turkish liras (“TRY”) and TRY 12,500 in compensation for pecuniary and non-pecuniary damage respectively. However, the Council of State quashed this decision, stating that the administrative court had failed to take into consideration the outcome of the criminal case -filed against the accused persons including the applicant for launching an armed rebellion against the prison administration, causing intentional killing and injury- and had therefore conducted an incomplete inquiry. According to the Council of State, if it was found established that the applicant had been among the persons instigating the impugned incidents at the penitentiary institution, taking an active role in the incidents and using weapons and that therefore the damage sustained by him had resulted from his own act, the administration would relieve itself of the liability to compensate for the sustained damage. The administrative court, which conducted a retrial following the quashing decision, dismissed the case on the grounds that the applicant was among those taking a role in the impugned incidents, that the damage sustained by the applicant had been caused by his own act, and that therefore, the administration was not under the obligation to compensate. Subsequently, the Council of State upheld the decision.

The Applicant’s Allegations

The applicant maintained that there had been a violation of the right to an effective remedy, taken in conjunction with the right to life, due to the dismissal of his full remedy action.

The Court’s Assessment

In the present case, it is the State itself that is liable to provide an explanation as to the course of the operation, which was revealed to be planned in advance, and the conditions under which the applicant was wounded. The State is also required to demonstrate which acts of the applicant made strictly necessary the use of force against him.

However, the criminal proceedings conducted against the applicant did not elucidate the conditions under which he had been wounded and his acts strictly necessitating the use of force against him. Nor was it found established that he had actively taken a role in the rebellion by using a weapon together with the other rebellious detainees and convicts.

The decision whereby the administrative court rejected the applicant’s request for compensation clearly run counter to the outcomes of the criminal proceedings, which could exactly prove neither the applicant’s act nor his involvement in the rebellion, resistance to or attack against the security officers to the extent that would require the security officers to use armed force. As a matter of fact, the ECHR also reached the same conclusion by finding a violation in the applicant’s case.  

Consequently, the Court has found a violation of the right to an effective remedy taken in conjunction with the right to life.

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