Individual Application 100/19

Press Release concerning the Judgment Finding a Violation of the Right to Life due to the Shortcomings in the Investigation into Death

On 10 October 2019, the Second Section 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 Mahin Parjani and Others (no. 2015/19219).

    The Facts

    The applicants, citizens of a neighbouring country, are relatives of S.K. who had been killed. The incident occurred when S.K. and a group of his friends, who were trying to enter Turkey, came across the Turkish soldiers at the border and fled to a village. The Chief Public Prosecutor’s Office that had launched an investigation into the incident sent the file to the military prosecutor’s office, for lack of jurisdiction. The latter issued a decision of non-prosecution on the basis of the relevant evidence and information as well as the statements taken. Upon the applicants’ objection, the military court decided that the investigation be extended and certain shortcomings in the file be eliminated. Thereupon, the military prosecutor’s office obtained the requested documents. Subsequently, the military court dismissed the applicants’ objection with final effect, having regard, inter alia, to the outcome of the inquiries carried out within the scope the extended investigation.

    The Applicants’ Allegations

    The applicants maintained that their relatives’ right to life had been violated on the ground that he had died as a result of use of force by the security officers and that no effective investigation had been conducted into the incident.

    The Court’s Assessment

In the present case, the applicants claimed that their relative had been killed by the security forces. The soldiers intervening in the incident stated that the applicants’ relative might have been killed by a gun fired from the village. At the end of the investigations conducted into the incident, the investigation authorities concluded that there had been no sufficient evidence to open a criminal case concerning the allegation that the incident had been caused the security forces.

In order for an investigation into a suspicious death to be effective, it is crucial that the investigation authorities that have been informed of the incident act ex officio and immediately. The reports pertaining to the incident contained no information concerning the time when the incident had been notified to the prosecutor’s office as well as the Gendarmerie and when the Gendarmerie officers had arrived at the scene.

As the relevant reports did not contain any information on such issues, it has become almost impossible to find out whether the investigation authorities had been informed of the incident in a timely manner and if so, whether they had acted immediately to ensure that the evidence be secured. Accordingly, it will be discussed whether a rigorous investigation was conducted, as required by the procedural aspect of the right to life.

It appeared from the documents sent by the military authorities to the prosecutor’s office that the number of bullets used in the incident had been higher than the one determined during the crime scene investigation. The investigation authorities failed to make a plausible explanation in this sense.

In the present incident where several guns had allegedly been fired repeatedly, the search that was carried out one day after the incident with metal detectors did not comply with the due diligence requirement within the scope of the procedural obligation under the right to life.

The Chief Public Prosecutor’s Office started to take the statements of the relevant soldiers about fifty days after the incident. Such delays might create an impression on the victims and in general the society that the law enforcement officers act within an authority gap where they are not responsible to anyone for their own acts. This situation is incompatible with the requirement of due diligence within the scope of the procedural aspect of the right to life.

In addition, the information as to the existence of radio communication records as well as thermal camera footages could be included in the investigation file only after the inquiries that had been carried out in accordance with the decision on the extension of the investigation, namely 1 year and 8 months after the incident. It had been unreasonable in the circumstances of the present case that the inquiry that might have clarified the incident had been carried out so late.

In addition, there were substantial differences in the statements of the villagers, soldiers and S.M. a citizen of the neighbouring country, who had witnessed the incident. The investigation authorities reached a decision without questioning the authenticity of S.M.'s statement which was incompatible with the statements of both the villagers and the soldiers.

The military prosecutor’s office emphasized that the civilians that might have been the perpetrators of the incident were investigated by the Chief Public Prosecutor’s Office. However, the investigation concerning the probable civilian perpetrator(s) of the incident was not continued. It is clear that the failure to conduct an investigation into the incident where the applicants’ relative had died did not meet the procedural requirements of the right to life.

All in all, it has been concluded that the investigation authorities had failed to carry out the initial procedures with due diligence; that they also failed to make a comprehensive analysis of the evidence collected at the end of the investigation; and that therefore the procedural aspect of the right to life had been violated for these shortcomings.

    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.