Events
On the day of the incident, three people, relatives of the complainants, called the 155 Police Emergency Hotline to report that YCC was using drugs in the park. Following these reports, police officers MC and SP arrived at the scene. During the altercation between the police officers and YCC, the police sprayed pepper spray and YCC became ill. YCC was taken to the hospital and died the same day. The Chief Prosecutor’s Office immediately launched an investigation into the incident.
T he Chief Public Prosecutor’s Office stated that the actions of police officers SP and MC constituted the crime of causing death by negligence and, given that they were public officials and the crime was committed during and because of their duties, requested permission from the governor’s office to conduct a preliminary investigation of the police officers as suspects in accordance with Law No. 4483 on the Trial of Civil Servants and Other Public Officials.
The governor’s office requested that the Ministry of Interior assign an inspector to conduct the investigation. Upon this request, the Ministry of Interior assigned a local government administrator and a chief police inspector to conduct the preliminary investigation. The chief inspectors assigned to conduct the preliminary investigation interviewed law enforcement officers and other witnesses and gathered the evidence they deemed necessary. In this context, they submitted a preliminary investigation report stating that permission for the investigation should not be granted.
In accordance with the report in question, the district governor’s office decided not to grant permission to investigate the law enforcement officers. The applicants appealed this decision, and the regional administrative court reviewing the appeal decided to reject the appeal. Upon this, the Chief Public Prosecutor’s Office decided that there were no grounds for an investigation, stating that the conditions for an investigation had not been met due to the rejection and finalization of the appeal.
Allegations
The applicants claimed that their right to life had been violated as a result of the unnecessary and disproportionate use of force by law enforcement authorities, which led to death, and the failure to grant permission to investigate the death.
The Court’s Assessment
1. Regarding the Substantive Dimension of the Right to Life
In its previous decisions, the Constitutional Court has examined the methods of use of pepper spray/tear gas, which is accepted as a means of intervention by law enforcement in social events and whose use is not prohibited by national and international legislation, in the context of the right to life and the prohibition of ill-treatment, in the context of the proportionality of the use of physical force. In these examinations, consideration was also given to the information note published by the Turkish Medical Association on chemical weapons used in social events, which stated that the gas used in Turkey could cause serious consequences in children, the elderly, pregnant women, and people with chronic illnesses, including respiratory distress, nausea, vomiting, irritation, and even death.
Considering the possible effects, the use of these gases may be considered legitimate if other means suitable for breaking resistance have been tried and no result has been achieved, or if it is clear that no result can be achieved under the circumstances of the specific incident.
In the specific incident, the intervention by law enforcement was not a pre-planned operation with preparatory work, but rather an intervention lasting approximately two minutes, in which police officers from the 155 Police Emergency Hotline directed two police officers to the scene via radio in response to incoming reports.
The presence of two law enforcement officers at the scene – along with another law enforcement officer who ran to the scene – the deceased person was lying on the ground at the time of the incident and, more importantly, was a 14-year-old child, there was no allegation that he possessed physical strength or carried a weapon or similar means of attack, it is understood that it was possible for law enforcement officers to take alternative measures to prevent the child from escaping or resisting.
In other words, it is inconceivable that the danger posed by a 14-year-old child who was not carrying a weapon or similar device could not be prevented by two law enforcement officers with a clear physical advantage over the child and that their intervention would be insufficient. Therefore, it has been concluded that the intervention of the law enforcement officer who used pepper spray, contributing to the death of the applicant’s relative, was disproportionate.
The Constitutional Court ruled that the substantive aspect of the right to life had been violated for the reasons stated.
2. Procedural Aspects of the Right to Life
The purpose of the investigation authorization procedure is to ensure that public officials are not faced with unnecessary accusations for alleged crimes committed in the course of their duties and to prevent any disruption in public services by conducting a preliminary investigation into the alleged crimes before proceeding to a criminal investigation. This investigation examines the general scope and nature of the alleged crime, its context, and the available evidence.
Care is taken to ensure that the examination and evaluation conducted by administrative courts reviewing appeals against the decision not to grant an administrative preliminary investigation and investigation authorization is not conducted in a manner that would delay criminal proceedings, prevent the effective conduct of the investigation, or give the impression that public officials are exempt from criminal investigation.
The regional administrative court ruling stated that there was insufficient and reasonable suspicion to warrant an investigation into the law enforcement agencies, and the appeal against the decision not to grant permission for an investigation was rejected. The ruling did not explain the reasons for rejecting the grounds for appeal, but merely reached a conclusion in line with the administration’s opinion. It was understood that the regional administrative court’s decision did not meet the requirement of being based on a comprehensive, objective, and impartial examination of all findings obtained during the investigation, did not include an assessment of whether the interference with the right to life was proportionate, and prevented an investigation and, if necessary, prosecution that could include such assessments.
The Constitutional Court ruled that the procedural aspect of the right to life had been violated for the reasons stated.