Events
The applicant was detained and transferred by the residents of the neighborhood after hearing that some of the social media accounts registered in his name had been made in favor of a terrorist organization.
Upon reflection of the incident on the law enforcement agencies, an investigation was immediately started by the prosecutor general’s office, the identities of those responsible for the action subject to the application were identified, their defenses were taken, witness statements were identified, and images and photographs related to the incident were examined. As a result of the investigation, a criminal case was opened against those responsible for the incident, and as a result of the trial by the court, it was concluded that the perpetrators, acting together, deprived the applicant of his liberty and intentionally injured him in a way that led to a bone fracture in his body.
The Court decided that the perpetrators should be sentenced to 3 years and 4 months in prison due to the deprivation of liberty of the applicant, and explained on the grounds of the decision that the provisions of revoking the disclosure of the sentence (HAGB), postponing the prison sentence or fining the sentence were not applied because the amount of the punishment was above the legal limits. However, the applicant is not simple because of the injury, which was imprisoned for 11 months and 20 days if three fail, because it is disclosed the amount of the penalty within the limits of legal provisions, other four HAGB given prison sentences about the perpetrator due to the lack of applicable fined EUR 7.000 it has been translated. These decisions have been finalized.
Count
The applicant claimed that the prohibition on ill-treatment was violated as a result of the criminal proceedings against the act of wounding committed by third parties, the responsible persons were not punished in proportion to their actions.
Evaluation of the Court
The HAGB decision made about the person consists of not being a punishment but leaving the person under threat of punishment. As in the concrete case, the punishment of the person admitted by the court to have committed the crime is only conditional on the fact that he has committed a new crime intentionally during the inspection period, so that his act, whose responsibility is fixed by a court decision – if he has not committed a new crime – remains effectively unpunished. The legislator, in order to integrate back into society he committed the crime that has brought the person for the institution when assessing whether to apply the concrete conditions in each case of impunity within the framework of the nature of the crime and the victim for the crime of proportionally with the degree of exposure of the aspects without being concerned deterrence of sanctions should be interpreted.
At this point, it should be noted that Article 17 of the Constitution. if the actions contrary to the article are carried out by third parties, and not by public officials, it is a phenomenon that can be understood that the state behaves more flexibly within the scope of its positive obligations. On the other hand, it should be noted that the result obtained after evaluating the event-specific conditions reflected in the application as a whole is 17 of the Constitution. it should be evaluated whether it damages the right protected in the article.
In the concrete case, the act of detaining the applicant in the square for a period of seven people acting together at the end of the trial was punished with a prison sentence of more than three years, while the applicant’s exposure in the community by the same people causing a fracture of the nasal bone and widespread ecchymosis in his body was punished with a fine or a threat of imprisonment. Therefore, as a result, the disproportionality /contradiction between the actions Dec by the judicial authorities and the penalties imposed on these actions attracts attention at first glance. It is clear that the contradiction in question arises from the fact that the court, adopting the practice of a minimum penalty in both criminal cases, prefers to cash out part of the penalties due to the fact that they remain within legal limits or not to disclose the provision.
More important, the discussion of the event instantly the result of simple physical intervention that occur with an instant rage-mutilation without distinguishing between acts of the applicant with regard to the possible effects on development and society vahamet without penalty by pointing to the legal determination after applying discounts from the lower limit, the three perpetrators of the sentence that is given to earlier disclosure on the grounds that they did not commit the crime, the penalty for the perpetrators committed a crime before the other four because they are the institution of HAGB could not be implemented due to- the translation into a fine gives the impression that the judicial authorities treat the incident that is the subject of the application with tolerance.
As a result, although the court has discretion in determining the punishment and finalizing the HAGB or the prison sentence, it has been assessed that it has not used this authority to show that these actions will not be tolerated in any way. Event-specific weight to the applicant of the action taken due to circumstances the actions of those who act in the face of the decision on the punishment is not commensurate with the mistreatment of the individuals in a way that the ban on legal measures taken in order to protect against it was concluded that ineffective deterrent.
The Constitutional Court has ruled that the ban on ill-treatment has been violated on the grounds described.
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