Events
The applicants are the mother, father, and siblings of Ali İsmail Korkmaz, a university student who suffered a brain hemorrhage as a result of the intervention of civilians and law enforcement during demonstrations in Eskişehir (June 2, 2013) during the Gezi Park events and who died in the intensive care unit of the hospital where he was taken. An investigation and prosecution were conducted in relation to the incident, a public case was opened, and applications were made to the Constitutional Court and the European Court of Human Rights (ECHR) regarding the matter. While the case was ongoing, the ECHR ruled that the applications were inadmissible because domestic legal remedies had not been exhausted, while the Constitutional Court ruled that the avenues of appeal had not been exhausted.
At the end of the trial and appeal process at the High Criminal Court, the defendants responsible for the death of the applicants’ relative were sentenced to imprisonment. The High Criminal Court sentenced the defendant police officer HE to 7 months and 15 days in prison for intentionally causing injury with a baton, which is considered a weapon, by abusing his authority as a public official, and decided to defer the announcement of the sentence (HAGB). Th e applicants appealed against the HAGB decision. The High Criminal Court reviewed the case file and rejected the appeal on the grounds that the legal conditions for the HAGB decision were met.
As a result of the full trial related to the incident, it was decided that the applicants would be paid material and moral damages, and the full amount awarded, together with legal interest, has been paid to the applicants.
Allegations
The applicants alleged that the prohibition of ill-treatment had been violated because their relatives participating in the demonstration had been beaten to death by law enforcement officers and civilians.
The Court’s Assessment
Article 17 of the Constitution does not prohibit the use of force in situations requiring arrest during meetings and demonstrations, or in situations arising from the conduct of those participating in the demonstration. It is accepted that the use of physical force by security forces does not constitute ill-treatment provided that it is proportionate, limited to specific situations, lawful, and applied only in unavoidable circumstances. However, the use of force based solely on a person’s own behavior violates the prohibition of ill-treatment as a matter of principle, unless it is absolutely necessary.
In the specific case, the police officer, a public official with the authority and duty to use force within the framework of the relevant laws, clearly abused the authority granted to him by his office. The police officer completely deviated from his purpose while performing his duty regarding the authority to use force as defined by laws and regulations. Indeed, the court of first instance also concluded that the police officer had committed the crime of intentional assault by abusing his authority. However, law enforcement officers are obliged to respect and protect fundamental rights, such as the inviolability of physical integrity and, in particular, human dignity, under all circumstances while performing their duties.
It appears that the competent judicial authorities before the Constitutional Court, when deciding to impose a penalty on the police officer, essentially ruled that the prohibition of ill-treatment had been violated in the specific case. On the other hand, even if it is decided that the negative obligation not to commit ill-treatment has been violated, it must be determined whether the punishment imposed on the responsible police officer, together with the HAGB, remedies the victimization in the case and whether the application in question has a deterrent effect in preventing similar cases.
According to the Constitutional Court, rules governing criminal sanctions must be proportionate, fair, and balanced in accordance with the objectives of prevention and rehabilitation. The principle of proportionality requires a reasonable relationship between the protection of the victim and the punishment of the perpetrator. With the HAGB decision, the execution of the sanction determined for the crime of ill-treatment is postponed.
With this decision, the perpetrator of ill-treatment will not face any sanctions for the act of ill-treatment if they do not commit another intentional crime during the specified supervision period. It is even possible that the public prosecution against them may be dropped at the end of this period. Therefore, with the HAGB decision, the process of applying criminal sanctions for ill-treatment may result in the perpetrators of ill-treatment being completely exempt from punishment. Consequently, the HAGB institution fails to provide a deterrent effect in preventing similar violations due to the impunity it creates.
In this context, it should be noted that the competent authorities should not use their discretion to mitigate the consequences of ill-treatment when determining sanctions for such acts. Certain practices regarding sanctions under the prohibition of ill-treatment weaken the obligation to conduct effective criminal investigations to prevent such violations, as they lead to public officials who commit similar violations going unpunished or not being punished as they should be, thereby failing to deter similar actions.
When assessing whether HAGB can be applied in cases of ill-treatment, consideration should be given not only to whether the legal conditions for a HAGB decision are met, but also to the fact that postponing the announcement of penalties for ill-treatment does not provide a deterrent effect to prevent similar incidents and does not contribute to redressing the grievances of victims of ill-treatment through judicial satisfaction.
The HAGB decision creates the impression that public officials involved in ill-treatment are treated leniently. This may encourage officials who are prone to such actions. On the other hand, the fact that the police officer was not subject to disciplinary investigation for his proven crime further exacerbates the immunity effect created by the HAGB decision in criminal proceedings. Moreover, with the HAGB decision, the perpetrator was not deprived of certain rights, such as public office, as a legal consequence of being imprisoned for intentional ill-treatment.
All these problems lead to a weakening of the belief that mistreatment should not be tolerated. Such practices create the impression that public officials can exploit individuals’ rights by taking advantage of de facto immunity, as courts and authorities fail to fulfill their critical duty of protecting individuals from ill-treatment, thereby clearly undermining confidence in the rule of law and justice.
The failure to disclose the punishment imposed on the perpetrator of ill-treatment also makes it impossible to claim that the harm caused by the incident has been remedied. Th e fact that the perpetrator did not receive any disciplinary punishment is another shortcoming in terms of establishing the perpetrator’s responsibility and demonstrating the need to remedy the situation in this context.
The Constitutional Court ruled that the prohibition of torture had been violated for the reasons stated.