Events
On Saturdays, a group called “Saturday Mothers”, who claim that their relatives have been forcibly disappeared, hold a sit-in and make a press statement in Galatasaray Square. Although their relatives have not disappeared, some people claiming to be human rights defenders also support this group.
Beyoğlu District Governorate, based on Articles 10 and 17 of the Law No. 2911 on Meetings and Demonstrations and Article 32 of the Provincial Administration Law No. 5442, decided not to allow unauthorized sit-in protests, press statements and similar activities in the district on Saturday, 22/9/2018. According to the report dated 22/9/2018 prepared by some police chiefs and officers, on the same day, the group who waited in front of the Human Rights Association Istanbul Branch (Association) wanted to make a press statement. The police told the group that the march and press statement would not be allowed, citing the banning decision of the Beyoğlu District Governorate; upon the group’s insistence to gather and make a press statement, they warned the group with sound amplification devices. The group was directed into the Association by using physical force and dispersed at 13.00 hours. The group intervened included the applicants.
Saime Sebla Arcan Tatlav, who claimed to be a human rights defender, requested an investigation into the police chiefs and officers on duty in Çukurlu Çeşme Street on the date of the incident for torture, intentional injury, threats and abuse of office. The Chief Public Prosecutor’s Office immediately initiated a criminal investigation. According to the forensic report obtained as part of this investigation, the applicant, Saime Sebla Arcan Tatlav, was injured to an extent that could not be remedied by simple medical intervention.
The applicant Ali Ocak, who claims that his brother was forcibly disappeared, submitted a petition to the Chief Public Prosecutor’s Office on 8/10/2018, similar to the petition submitted by the applicant Saime Sebla Arcan Tatlav. The forensic report received as part of the investigation described pain and tenderness in the left shoulder.
As a result of the investigations, the chief public prosecutor’s office decided not to prosecute. The objection of the applicants to this decision was rejected by the (closed) criminal judgeship of peace, stating that the minutes issued by the law enforcement officers should be relied upon unless the contrary is established by concrete evidence, and that according to the said minutes, the applicants who resisted the incident were intervened within the limits of the authority to use force.
Allegations
The applicants claimed that the prohibition of ill-treatment was violated due to the injury of some people as a result of the use of force by law enforcement officers and the ineffectiveness of the criminal investigation into this incident, and that the right to organize meetings and demonstrations was violated due to the ban on holding a press statement by the local authority and the intervention of law enforcement officers to the intended press statement due to the said ban.
The Court’s Assessment
For the Applicant Ali Ocak
In the concrete case, the applicant claimed that he was injured as a result of the disproportionate use of force, that he was beaten, and that he was squeezed between the shields and the wall for a long time despite having difficulty breathing. Despite this, the applicant did not receive any medical report on the day of the incident and waited until 8/10/2018 to apply to the chief public prosecutor’s office. The report issued sixteen days after the incident did not mention any physical findings. The cause of the pain and tenderness in the left shoulder described in the report is unclear. The applicant claimed that he did not receive a forensic report after the incident, but that some people received forensic reports on the effects of the intervention they were subjected to on the day of the incident. However, it is clear that these reports do not prove that the applicant was subjected to ill-treatment. The use of force by law enforcement officers to intervene in an assembly or demonstration, even if peaceful, does not automatically violate the prohibition of ill-treatment in respect of persons who participated in the assembly or demonstration but were not subjected to the force used.
Under these circumstances, it must be accepted that the applicant cannot have a justifiable expectation for a more in-depth investigation since his allegation that he was subjected to ill-treatment is not defensible and he did not provide the chief public prosecutor’s office with more solid grounds for his allegation. In a situation where the allegation of violation of the prohibition of ill-treatment is not defensible, the investigating authorities cannot be obliged to conduct an investigation with the aim of identifying a responsible person and ensuring that this person is punished.
For the reasons explained above, the Constitutional Court ruled that the allegation of violation of the prohibition of ill-treatment against the applicant Ali Ocak was inadmissible.
In respect of the applicant Saime Sebla Arcan Tatlav
In the concrete case, there is no determination made by the law enforcement officers and no evidence in the investigation file subject to the application that the applicant had actions that would lead to the use of force. Moreover, the law enforcement officers directed the group, including the applicant, only to the Association and did not open an area where the group members who did not want to enter the Association could disperse. As a result, the applicant was trapped between the shields and the wall with other persons in a very narrow street and was injured to an extent that could not be remedied by a simple medical intervention. Since force was not used in a necessary and proportionate manner, the treatment the applicant was subjected to was characterized as persecution.
As regards the allegations of violation of the procedural dimension of the prohibition of persecution regarding the obligation to conduct an effective investigation, following the applicant’s complaint, the chief public prosecutor’s office immediately initiated a criminal investigation. However, it was found that there were some important deficiencies in the investigation. First of all, although the directive written to the Istanbul Security Directorate was not fully complied with, the chief public prosecutor’s office did not make any effort to fulfill the unfulfilled instructions. As a result, the Istanbul Security Directorate only sent the video footage taken by law enforcement officers to the investigation file and the statements of the law enforcement officers who used force against the applicant could not be taken because their identities were not identified. Furthermore, the external memory containing the video recordings of the incident subject to the application submitted by the applicant to the chief public prosecutor’s office was not examined by the chief public prosecutor’s office and was not examined by an expert.
Despite the forensic reports on the applicant, the chief public prosecutor’s office did not make any statement that force was used against the applicant in a compelling and proportionate manner. It also decided not to prosecute the law enforcement officers on the grounds that they had beaten the applicant, stating that it was not possible to obtain evidence and indications requiring a public prosecution. However, although there was no statement in the police reports that the applicant exhibited actions that would lead to the use of force, the judgeship stated that the law enforcement officers intervened within the limits of their authority to use force.
For the reasons explained above, the Constitutional Court ruled that Saime Sebla Arcan Tatlav had violated the substantive and procedural aspects of the prohibition of torture.
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