Violation Of The Substantive And Procedural Aspects Of The Right To Life Due To Failure To Conduct An Effective Criminal Investigation
Events
The Istanbul Provincial Security Directorate received information that there would be demonstrations and meetings that could turn into acts of violence as a result of the provocation of a terrorist organization. On the date of the incident, officer S.K., who had about five years of professional experience, was one of the police officers in the team assigned to the area where the demonstrations were to take place. When the demonstrations turned into attacks on the security forces with stones, sticks and Molotov cocktails, the security forces chased the attackers into the alleyways. In the meantime, a Molotov cocktail was thrown at the vehicle in which S.K. was riding and the vehicle started to burn. After the officers got out of the burning vehicle, another group approaching from another street continued to throw Molotov cocktails at the vehicle and the officers; these officers and some officers in the other vehicle fired shots in the air to repel the attack. While these incidents were taking place, U.K., who was in a group of 15-20 people waiting for a funeral in the courtyard of a cemevi, died as a result of a bullet hitting his head.
In the minutes of the incident, it was stated that shots were fired in the air as a warning. When it was understood that the shot that caused U.K.’s death was fired from the pistol of officer S.K., the Chief Public Prosecutor’s Office requested the Governor’s Office to grant permission for an investigation against officer S.K. on the charge of negligent homicide. In the report prepared by the Provincial Administrative Board in line with this request, it was stated that S.K. was in fear and panic due to his inexperience and caused the death of U.K. with a gun that he should not have used or should have used properly. Following the permission for investigation granted by the Governorate, an investigation was opened by the Chief Public Prosecutor’s Office and the suspect was charged with negligent homicide. The Criminal Court of First Instance issued a decision of non-jurisdiction and the defendant’s objection to this decision was rejected by the 14th High Criminal Court. The 11th Assize Court (Assize Court), which conducted the trial, also decided to sentence the defendant on the charge of negligent homicide. The Chief Public Prosecutor’s Office, the defendant S.K. and the applicant appealed on different grounds; the regional court of justice rejected the appeal on the merits.
Allegations
The applicant claimed that his right to life was violated due to the killing of his wife by a law enforcement officer and the lack of an effective criminal investigation into the incident.
Assessment of the Court
The Assize Court found that the use of weapons in the concrete case was in violation of Article 17 of the Constitution and that the right to life was violated. Therefore, it was concluded that there was no need to examine whether the use of the weapon was necessary and proportionate for the purpose of legitimate defense.
The Assize Court first imposed 1 year and 8 months imprisonment as a sanction for the act that caused death, then converted this sentence into a judicial fine, which was to be paid in ten equal monthly installments. First of all, it should be noted that the relevant law also allows for the conversion of the prison sentence sanction imposed for the offense of negligent homicide into money. On the other hand, it should be stated that the conversion of the prison sentence sanction into money is at the discretion of the competent authorities and there is no legal obligation in this regard. In the event that the sanction of imprisonment is converted into a judicial fine sanction, the convicts are faced with the sanction of imprisonment. However, this situation arises in case the judicial fine is not paid or partially paid. As a matter of fact, in the case subject to the application, the enforcement of the prison sentence imposed on the convict did not come to the agenda with the payment of the fine.
First of all, it should be noted that the courts should use their discretionary rights to show that such acts will not be tolerated and should not give the impression that they prefer to use them to mitigate the consequences of the crime. This is vital for maintaining public confidence, ensuring the rule of law and avoiding the appearance of tolerance of such acts. In the case of deaths resulting from the use of force or ill-treatment by State agents, this applies not only to impunity but also where there is a clear disproportion between the gravity of the offenses and the penalties.
In the case, it has been observed that the judicial authorities preferred 2 years imprisonment as the minimum penalty for the crime, which stipulates a sanction of 2 to 6 years imprisonment in the Law, in response to the unlawful use of weapons that cost the life of a person, and moreover, a judicial fine instead of this prison sentence as an appropriate and sufficient punishment. The imprisonment sentence and the judicial fine determined as the consequential punishment for the death that is accepted to have occurred as a result of the use of such weapons by a law enforcement officer are not appropriate and sufficient sanctions in terms of protecting the lives of individuals by preventing similar violations of rights. In accordance with the constitutional obligation to protect the right to life by law – within the scope of the State’s negative obligation not to kill – the courts of appeal must effectively apply the criminal law against those who kill a person, thus preserving the deterrent effect of the legal system. The minimum imprisonment sentence imposed in the case of the application and the conversion of even this sentence into a monetary sanction does not have a deterrent effect in terms of preventing similar violations. The possibility to pay the fine sanction in installments cannot even be subject to such an evaluation. While making a choice in the use of such discretionary rights, it is vital for maintaining public confidence in justice and ensuring the rule of law that no impression is created that they are used to mitigate the consequences of acts that cause violation of the right to life.
Law No. 5237 states that the purpose of the Law is to protect individual rights and freedoms and that the offender should be punished in proportion to the gravity of the act committed. Criminal sanctions that do not have a deterrent effect – even if the material and moral damages caused by the incident have been eliminated and the perpetrator or perpetrators have been punished with adequate disciplinary penalties – are insufficient to eliminate the victimization. In this respect, it has been concluded that the conviction subject to the application not only did not eliminate the victimization of the applicant, but also did not have a deterrent effect in terms of preventing similar violations, thus leading to a violation of the material and procedural aspects of the right to life.
For the reasons explained, the Constitutional Court held that the substantive and procedural aspects of the right to life were violated.
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