Events
The applicant is I, who served as a corporal in the same unit while performing his compulsory military service as a private.H.D. he was attacked by. According to the witness statements, the applicant was handcuffed to the heating system during the physical intervention and I.H.D. he’s joking. Some time after the incident, the applicant’s spleen was removed, an unfit for military service report was issued on him after the medical process, and the applicant was demobilized. The applicant’s father filed a complaint against the concerned persons due to the physical violence inflicted on his son.
At the end of the criminal investigation conducted by the military judicial authorities, it was decided that there was no place for prosecution. As a result of the individual application made on the basis of the said decision, the Constitutional Court ruled that the procedural dimension of the prohibition of ill-treatment had been violated, a re-investigation was conducted and moral compensation was paid to the applicant. Following the violation decision, the prosecutor general’s office received an expert report, decided that there was no place for prosecution based on this report, but lifted the decision on appeal, and I.H.D. he has filed a public lawsuit against him on charges of torture. The applicant also filed a full judicial case against the Ministry of National Defense before the Military High Administrative Court (AYIM); AYIM rejected the case on the grounds that there was no service defect, and the decision was finalized by going through a legal review. Upon the application of the applicant, the Constitutional Court ruled that the procedural dimension of the prohibition of ill-treatment had been violated in parallel with the justification of the violation decision.
As a result of the criminal proceedings, the high criminal court I.H.D.he sentenced yi asta to 1 year in prison for the crime of an established act, but taking into account the possible effects of the sentence on the perpetrator’s future, he determined the sentence to be 10 months in prison and decided to postpone the announcement of the verdict (HAGB).
The Allegations
The applicant claimed that the prohibition of torture had been violated due to the physical violence applied by his superior during his compulsory military service.
The Court’s Assessment
117 of the Military Penal Code dated 22/5/1930 and numbered 1632. in accordance with the article, the crime of committing an ordinary act requires a prison sentence of up to two years. In the final judgment, I, who is the superior of the applicant.H.D. he was sentenced to 1 year in prison and the sentence was set as 10 months with a discount at discretion. The court imposed a sentence close to the lower limit and made a reduction in the sentence by taking into account the effects on the future of the accused. Although the discretion belongs to the judges, when reaching the criminal result, this issue should be discussed in the justification, taking into account that the accused is a military person, uses public force, the person who committed violence is a subordinate, and the person who was subjected to violence during the action was handcuffed, and it should be shown in the decision that an appropriate result was reached. In the decision, it was assessed that without compliance with these considerations, the sentence was established in such a way that imprisonment of up to 2 years as a sanction could not provide deterrence for the crime and would also be insufficient to eliminate victimization.
On the other hand, there are objective and subjective conditions for a HAGB decision to be made. In the justification of the decision, it should be discussed that the accused is a military person and that he has committed a deliberate act of violence, and it should be shown that appropriate discretion has been used. However, in the decision, it was seen that the HAGB institution was justified only by repeating the statements written in the relevant law in the provision paragraph. In this context, the provision; although the circumstances surrounding the incident, the defendant was a military person in the position of the applicant’s superior and the act was intentional, no assessment was made that would put the establishment of the HAGB provision on a legal basis. The HAGB institution, which is clearly stated in the law that there is no legal obligation for a crime related to an intentional act of physical violence and although there is full discretion in this regard, it will not have any legal consequences for the accused, has been applied. For this reason, it has been concluded that judges use their discretion to minimize the consequences of this act as much as possible, instead of showing that an intentional act of physical violence cannot be tolerated in any way.
Within the framework of all these determinations, although physical violence against the applicant was detected during the criminal trial process, it was assessed that the sentence given at the end of the process did not provide appropriate /adequate relief for the defendant in terms of deterrence and victimization, therefore, the applicant’s victim status continued. In this context, it has been concluded that the process that does not provide deterrence creates the impression that the accused is exempt from punishment, resulting in impunity, and clearly contradicts the state’s obligations to conduct a criminal investigation that can ensure that those responsible are punished with appropriate and adequate penalties in order to ensure deterrence in order to prevent similar violations.
The Constitutional Court has decided that the material and procedural aspects of the prohibition of torture have been violated on the grounds described.