Events
On the day of the incident, three individuals called the 155 Police Emergency Hotline to report that Y.C.C., a relative of the applicants, was using drugs in a park. Following these reports, police officers M.C. and S.P. arrived at the scene. During the ensuing altercation between the officers and Y.C.C., the officers sprayed pepper spray, causing Y.C.C. to become ill. He was taken to the hospital, where he died the same day. The Chief Prosecutor’s Office immediately launched an investigation into the incident. The Chief Public Prosecutor’s Office stated that the actions of police officers S.P. and M.C. constituted the crime of causing death by negligence and requested permission from the governor’s office to investigate the police officers on suspicion, in accordance with Law No. 4483 on the Trial of Civil Servants and Other Public Officials, due to their status as public officials and the fact that the crime was committed during and because of their duties.
The governor’s office requested that the Ministry of Interior assign an inspector to conduct the investigation. Accordingly, the Ministry of Interior assigned a chief inspector of the civil service and a chief police inspector to conduct a preliminary investigation. The chief inspectors assigned to conduct the preliminary investigation interviewed law enforcement officers and other witnesses and collected the evidence they deemed necessary. Within this scope, they submitted a preliminary investigation report containing the opinion that the investigation permit should not be granted. In line with the aforementioned report, the district governor’s office decided not to grant the investigation permit regarding the law enforcement officers. The applicants objected to this decision, and the regional administrative court, which examined the objection, decided to reject it. Upon this, the chief prosecutor’s office stated that the conditions for an investigation had not been met due to the rejection and finalization of the appeal and decided that there was no need for an investigation.
Allegations
The applicants alleged that their right to life had been violated as a result of the unnecessary and disproportionate use of force by law enforcement officers, 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 using pepper spray/tear gas, which is accepted as a tool for law enforcement officers’ intervention in social events and whose use is not prohibited in national and international legislation, within the scope 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 reviews, consideration was also given to the fact that the information note published by the Turkish Medical Association on chemical weapons used in social events indicated that the gas used in Turkey could cause respiratory distress, nausea, vomiting, irritation, and even serious consequences leading to death in children, the elderly, pregnant women, and those with chronic illnesses.
Considering the possible effects, the use of such gases may be deemed lawful provided that other means suitable for breaking resistance are first attempted and no result is obtained from them, or it is clearly understandable under the circumstances of the specific incident that no result can be obtained.
In the specific case, the intervention by law enforcement officers was not a pre-planned operation with preparatory work, but rather an intervention that lasted approximately two minutes, resulting from a radio announcement made by 155 Police Emergency line officers in response to reports received, directing two police officers to the scene. The fact that there were two law enforcement officers – together with another law enforcement officer who ran to the scene – the fact that the deceased person, who resisted them, was lying on the ground at the time, and, more importantly, that he was a 14-year-old child, and that 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 the 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 did not possess a weapon or similar means, could be such that it could not be prevented by two law enforcement officers, each of whom had a distinct physical advantage over the child, and that their intervention would be insufficient. Therefore, it was concluded that the intervention of the law enforcement officer, who used pepper spray, which contributed to the death of the applicants’ relative, was disproportionate.
The Constitutional Court ruled that the material dimension of the right to life had been violated based on the reasons explained.
2. Procedural Aspects of the Right to Life
The purpose of the investigation authorization procedure is to ensure that public officials do not face unnecessary accusations for alleged crimes committed in the course of their duties, thereby preventing any disruption to 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 evidence available.
Care must be taken to ensure that the preliminary investigation, which is administrative in nature, and the review and assessment conducted by the administrative judicial bodies evaluating the objections to the decision not to grant permission for investigation are not carried out in a manner that would delay the criminal proceedings and prevent the investigation from being conducted effectively, or that would give the impression that public officials are exempt from criminal investigation. Care must be taken to ensure this.
The regional administrative court decision stated that there was insufficient and reasonable suspicion to warrant an investigation into law enforcement officers and rejected the appeal against the decision not to grant an investigation permit. The decision did not explain the reasons for rejecting the grounds for appeal and 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 analysis 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 dimension of the right to life had been violated based on the reasons stated.