Events
The applicants are the parents 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 officers during demonstrations in Eskişehir (June 2, 2013) at the time of the Gezi Park events, and who died in the intensive care unit of the hospital where he was taken. Investigations and prosecutions 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 in the high criminal court, the defendants responsible for the death of the applicants’ relative were sentenced to prison. The High Criminal Court sentenced the defendant police officer H.E. 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). The applicants appealed the HAGB decision. The High Criminal Court reviewed the case file and rejected the appeal on the grounds that the legal conditions necessary for a HAGB decision had been met.
As a result of the full trial related to the incident, it was decided that the applicants should be paid material and moral damages, and the total amount awarded, together with legal interest, was paid to the applicants.
Allegations
The applicants alleged that the prohibition of ill-treatment had been violated because their relatives who participated in the demonstration were 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 and when due to the attitude of the participants in the demonstration. It is accepted that the use of physical force by security forces is not considered ill-treatment, provided that it is proportionate, limited to specific situations, and in accordance with the law, and only in unavoidable circumstances. However, the use of force based solely on a person’s own behavior will, in principle, violate the prohibition of ill-treatment unless it is absolutely necessary.
In the specific case, the police officer, who was 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 official position. The police officer completely deviated from his purpose while performing his duty related to the use of force, which is determined by laws and rules. Indeed, the court of first instance also ruled 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 especially human dignity, under all circumstances while performing their duties.
It is understood that the competent judicial authorities prior to the Constitutional Court, by deciding to punish 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 has been 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, has remedied 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 regulating 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 enforcement 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 their act of ill-treatment if they do not commit another intentional crime during the specified probation period. It is even possible that the public prosecution against them will be dismissed at the end of the period in question. Therefore, with the issuance of a HAGB decision, the process of imposing a criminal sanction 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 regard, it should be stated 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 undermine 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 required, thereby failing to deter similar acts. When assessing whether HAGB can be applied in cases of ill-treatment, it is necessary to consider not only whether the legal conditions for a HAGB decision are met, but also that the postponement of the announcement of penalties for ill-treatment fails to provide deterrence to prevent similar incidents, and that this situation does not contribute to redressing the grievances of victims of ill-treatment through judicial satisfaction.
The decision to grant HAGB creates the impression that public officials involved in acts of ill-treatment are treated with leniency. This situation may encourage officials who are prone to such acts. On the other hand, the fact that the police officer was not subject to disciplinary investigation for his proven crime further exacerbates the effect of impunity created by the HAGB decision in criminal proceedings. Furthermore, with the HAGB decision, the perpetrator was not deprived of certain rights, such as public office, as a legal consequence of his imprisonment for the crime of intentional ill-treatment.
All these issues lead to a weakening of the belief that ill-treatment is not 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 role of protecting individuals from ill-treatment. clearly undermining trust and 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. The fact that the perpetrator did not face any disciplinary sanctions also constitutes another shortcoming in terms of establishing the perpetrator’s responsibility and demonstrating the need to rectify the situation in this context.
The Constitutional Court ruled that the prohibition of torture had been violated based on the reasons stated.