Events
The applicant participated in a demonstration in Kızılay, Ankara, organised for the funeral of a person who had lost his life during the demonstrations known as the Gezi Park events. The law enforcement intervened in the demonstration on the grounds that it was not in accordance with the law and the applicant was seriously injured by a gas canister shell hitting his head. Upon the filing of a criminal complaint, the Chief Public Prosecutor’s Office initiated an investigation, which resulted in a decision of non-prosecution. Within the scope of the investigation, the Chief Public Prosecutor’s Office examined the HTS records and issued an indictment against a police officer whose mobile phone signal information was accessed at the scene of the incident on the date of the incident and a public case was opened as a result. The criminal court of first instance issued a decision of non-jurisdiction on the grounds that there was a legal obligation to evaluate the act characterised as negligent injury in terms of the claim of attempted intentional homicide. Upon the annulment of the counter decision of non-jurisdiction given by the heavy criminal court by the regional court of justice, the trial continued at the heavy criminal court and the defendant police officer was acquitted. The trial is pending at the legal remedy stage.
Allegations
The applicant claimed that the prohibition of ill-treatment and the right to organise meetings and demonstrations were violated due to the gas cartridge used by the law enforcement officers during the intervention to a social event causing injury and the ineffectiveness of the criminal investigation into this incident.
The Court’s Assessment
In the concrete case, it was understood from the police minutes and radio recordings that some demonstrators blocked the road to traffic by setting up a barricade, and therefore it was necessary to intervene in the said demonstrators. Within the scope of the investigation, no allegation was made that the applicant had committed any act that required the use of force against him. Moreover, no judicial action was taken against the applicant due to the demonstration he participated in, and no such situation was mentioned in the non-prosecution decisions issued by the Chief Public Prosecutor’s Office or in the indictment issued. Pursuant to Article 17 of the Constitution, the use of force is only possible in cases of absolute necessity in order to achieve the purposes set out in the Constitution and when there is no other remedy. If force is used before these conditions are met, there may be a violation of the right to life. Accordingly, the use of force by the police force against the applicant was not absolutely necessary.
On the other hand, the applicant’s claim that the gas rifle was used by the law enforcement officers without complying with the rules of shooting from a minimum distance and at a certain angle is supported by the forensic reports. The injury sustained by the applicant clearly shows that the public force used involved violence beyond the necessary proportion. Therefore, the material dimension of the right to life has been violated.
The fact that the proceedings initiated on a serious allegation that the right to life was violated by public officials have not been concluded even though nearly nine years have passed since the incident and even the perpetrator has not been identified clearly shows that the investigation could not be finalised within a reasonable time. This delay in the proceedings is incompatible with the obligation to conduct an effective investigation. Moreover, the fact that the court did not make a criminal complaint to the Chief Public Prosecutor’s Office in order to reveal the real perpetrator of the crime in its acquittal decision – if this decision becomes final at the legal remedy stage – may lead to a situation that is unacceptable in terms of the obligation to conduct an effective investigation, such as the termination of the search for the perpetrator of the crime by the public authorities before the statute of limitations expires.
The applicant’s allegation and the evidence submitted by the applicant centred on the fact that he had been subjected to a deliberate act by a law enforcement officer. The applicant justified his claim that the action was committed with intent by supporting it with the facts that the vehicle from which the gas ammunition was fired did not have a licence plate and that the gas weapon was not used properly. The court before which the public case was filed decided that these allegations were important and should be evaluated by the competent court, and the counter decision of non-jurisdiction was lifted by the regional court of appeal.
In such serious investigations where the right to life is alleged to have been violated by public officials, the judicial authorities are expected to be more careful in the characterisation of the crime in terms of the obligation to conduct an effective investigation. This is because it is known that such characterisation is closely related to the statute of limitations, and the statute of limitations for such offences is incompatible with the obligation to conduct effective investigations.
In the concrete case, the Constitutional Court does not determine whether the offence was committed with intent, probable intent, conscious negligence or negligence. However, it should be stated that in investigations related to the violation of the negative obligation of the right to life, in such cases where there is no clear determination between the judicial authorities regarding the nature of the offence, the final choice to be made should not reduce the effectiveness of the investigation. Therefore, the procedural dimension of the right to life was violated.
On the other hand, in the concrete case, it is not understood why the applicant was subjected to the use of force by the security forces when there was no allegation that the applicant was among the people blocking the road to traffic. This situation had a deterrent effect on the applicant’s right to organise meetings and demonstrations. Moreover, the fact that the applicant suffered a life-threatening injury as a result of the intervention to the meeting by the security forces showed that the public force used was not proportionate.
For the reasons explained above, the Constitutional Court decided that the right to life and the right to organise meetings and demonstrations were violated.
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