Events
The applicants’ son N.K., who was 12 years old at the time of the incident, was killed by police officer M.N.G. on 14/1/2015 during the social unrest in Cizre. The Chief Public Prosecutor’s Office initiated an ex officio investigation into the incident; as a result of the investigations, it was determined that M.N.G. fired the shot that caused the death individually, and there was no evidence other than the rifle embezzlement receipt that H.V. committed the offence of killing, and decided that there was no additional prosecution against officer H.V. for the offence of intentional killing. The applicants objected to the aforementioned decision; upon the criminal court of peace’s decision to accept the objection and to lift the decision on additional non-prosecution, a separate indictment was issued against H.V. for the offence of killing a child with probable intent and a public case was opened at the heavy criminal court. As a result of the prosecution, the court sentenced M.N.G. to 13 years and 4 months’ imprisonment, sentenced other officers O.Ç., U.İ., G.T. and H.V. to 5 months’ imprisonment for the offence of failure to report a crime by a public officer, but deferred the announcement of the verdict and acquitted police officer H.V. of the offence of killing with probable intent. The applicants applied to the legal remedies of appeal against the decisions of deferral of the announcement of the judgement, and to the legal remedies of appeal and cassation against the acquittal and conviction judgements. As a result of the aforementioned legal remedies, the decisions to defer the announcement of the verdicts were finalised by rejecting the objections of the applicants, and the acquittal and conviction verdicts were confirmed on appeal.
Allegations
The applicants claimed that the right to life was violated due to the impunity or lack of deterrent punishment of the law enforcement officers responsible for the death of their child as a result of the use of armed force by the law enforcement officers.
The Court’s Assessment
In the concrete case, while the heavy penal court accepted that the police officer M.N.G., who caused the death of the applicants’ son, committed his act under unjust provocation, it first drew attention to the risky security situation in the region. Although the general situation referred to by the Court is of great importance in the context of the proportionality of the measures taken by the public authorities in the region, especially the security forces, in order to combat terrorism and to ensure public security, it does not seem possible to accept the police officer M.N.G.’s act of shooting with a gun, which resulted in the death of the applicants’ children, as a reason for unjust provocation. In this framework, firstly, it does not need to be explained that the aforementioned general conditions were not caused by the deceased, who was a 12-year-old child at the time of the incident. In addition, it is not a matter of debate that it is not legitimate for the security forces or law enforcement officers to use lethal firearms in a disproportionate manner -automatically- against all kinds of meetings or demonstrations in places where the security risk arising from terrorism is high, based on the existence of this risk.
In its assessment of unjust provocation, the Assize Court took into account the fact that the terrorist organisation used children in such incidents in order to take advantage of their lack of criminal responsibility and emphasised that the deceased child was among the children who threw stones towards the place where the defendants, who were law enforcement officers, were present. First of all, it should be remembered that the security forces or law enforcement officers in charge of such incidents have milder methods of intervention before resorting to direct armed force in cases where crowds turn unlawful and evolve into violence. In such an incident, the use of lethal firearms, and moreover, the firing of firearms towards people, should be a last resort that can be resorted to under very exceptional circumstances.
In this context, it should not be overlooked that law enforcement officers may not resort to armed force except in cases of self-defence against a real and imminent danger to their own lives or the lives or serious injuries of others, and for purposes such as preventing the commission of serious crimes involving a serious threat to life, or apprehending a person who poses such a danger, and unless milder measures are insufficient to achieve these purposes.
Considering the aforementioned points, the Constitutional Court has concluded that the aforementioned exceptional conditions were not present in the incident, which took place in the form of the death of a 12-year-old child as a result of the indiscriminate firing of a gun towards a group of a small number of children, including the children of the applicants, on the sole grounds that some of the people from this group threw stones towards the police officers, and as a result, one of the cartridges fired hit him.
On the other hand, in the concrete case, while the court accepted that the offence of murder with probable intent was committed under unjust provocation, in the reasoning explained, the fact that the deceased child was among the group throwing stones at the police officers was pointed out, but no determination was made that the child was one of the persons throwing stones. In order for unjust provocation to be in question, the wrongful act constituting the provocation must be committed by the victim. Moreover, it cannot be said that the deceased, who was only a 12-year-old child at the time of the incident, had a responsibility to prevent the acts committed by other (stone-throwers) in this context. Moreover, the deceased N.K., as a 12-year-old child at the time of the incident, lacks the ability to perceive the legal meaning and consequences of the actions of the crowd he was in and to direct his behaviour accordingly.
As such, it does not seem possible to say that accepting the existence of unjust provocation conditions for the defendant, who is a law enforcement officer who fired the gun in the direction of the people causing death based on general conditions and mass actions without establishing a direct relationship with the behaviour of the deceased child, is compatible with the guarantees regarding the right to life protected by the Constitution.
In addition to these issues, it is noteworthy that during the application of the provisions on unjust provocation, the heavy criminal court reduced the sentence by departing from the minimum limit. After accepting the existence of unjust provocation, the court reduced the sentence to 16 years imprisonment by making a reduction beyond the minimum limit without explaining any justification, while it had the opportunity to impose a sentence of 12 to 18 years imprisonment instead of life imprisonment in accordance with Article 29 of Law No. 5237. In this context, it has been observed that no evaluation has been made regarding the criteria stated in the case law of the Court of Cassation (such as the manner, place, nature, time, local conditions and the situation of the provocateur and the provoked). The court has not revealed how intense and significant the unjust act in the form of stones has reached and why the provocation is heavy and severe to a certain extent.
In this respect, the application of the unjust provocation discount in the concrete case prevented the perpetrator from receiving a punishment proportionate to the act that resulted in the killing of a young child with probable intent and prevented the provision of an appropriate and adequate remedy for the victim applicants. Therefore, as a result of the application of an unjust provocation discount to the police officer who was found to have used a weapon unlawfully, it was assessed that there was a disproportion between the act that clearly violated the right to life and the penalty imposed in response to the act. It is concluded that this situation also prevents deterrence aimed at preventing similar violations.
As a result, in the application where the use of armed force against the child was clearly contrary to the Constitution, it was concluded that the sentence given by the competent authorities before the Constitutional Court to the police officer, who was determined to be responsible for the death of the child, was reduced for unjust provocation in a way that is incompatible with the constitutional guarantees regarding the right to life, and that the deterrence in terms of preventing similar violations within the framework of the requirements of the protection of the right to life and the provision of an appropriate and adequate remedy for the aggrieved applicants.
The Constitutional Court decided that the right to life was violated for the reasons explained.
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