Events
The applicant participated in the demonstration at the Ankara Red Crescent organized due to the funeral ceremony of a person who lost his life during the demonstrations, which are publicly known as the Gezi Park events. The law enforcement agency intervened in the demonstration on the grounds that it was not in compliance with the law; the applicant was seriously injured by a gas flare capsule that hit him on the head. Upon filing a criminal complaint about the incident, the public prosecutor’s office launched an investigation and decided that there was no place for prosecution as a result of the investigation. The public prosecutor’s office, which examined the HTS records within the scope of the investigation, issued an indictment against a police officer who accessed the signal information of his mobile phone at the scene on the date of the incident, and as a result of this, a public lawsuit was opened. The criminal court of first instance has made a decision of dereliction of duty on the grounds that there is a legal obligation to evaluate the act, which is characterized as cumulative wounding, in terms of the claim of attempted premeditated murder. After the dismissal of the counter-dismissal decision issued by the high criminal court by the district civil court, the trial was continued at the high criminal court and an acquittal decision was made against the accused police officer. The trial is a problem at the legal route stage.
The Allegations
The applicant claimed that due to the fact that the gas flare used by law enforcement officers during the intervention of a social incident caused injury and the criminal investigation conducted on this incident was not effective, his right to organize meetings and demonstration marches was violated with the prohibition of ill-treatment.
The Court’s Assessment
In the concrete incident, it was understood from the law enforcement minutes and radio recordings that some demonstrators blocked the road to traffic by setting up a barricade, therefore it was necessary to intervene against the said demonstrators. Within the scope of the investigation, no claim was put forward that the applicant had any actions that required the use of force against him. In addition, no judicial proceedings were taken against the applicant due to the demonstration he participated in, and such a situation was not mentioned in the decisions of non-prosecution made by the chief public prosecutor’s office or in the indictment issued. 17 of the Constitution. the use of force in accordance with the article is only possible in order to achieve the objectives set out in the Constitution and in cases of absolute necessity where there is no other option left. If force is used before these conditions occur, a violation of the right to life may be mentioned. Accordingly, the use of force by the law enforcement agency against the applicant is not absolutely mandatory.
On the other hand, the applicant’s claim that the gas rifle was used by the law enforcement agency from a minimum distance and without following the rules for shooting from a certain angle is also supported by the judicial reports prepared. The state of injury suffered by the applicant clearly shows that the public force applied involves violence beyond the required proportion. For this reason, the material dimension of the right to life has been violated.
The fact that the trial initiated on a serious allegation of violation of the right to life by public officials has not ended despite the fact that it has been about nine years since the incident, and even the perpetrator has not been identified, clearly shows that the investigation cannot be completed in a reasonable time. This delay in the trial is incompatible with the obligation to conduct an effective investigation. Moreover, in the acquittal decision made by the court, the failure to file a criminal complaint with the prosecutor general’s office to reveal the true perpetrator of the crime -if this decision is finalized at the legal route stage – may lead to an unacceptable situation in terms of the obligation to conduct an effective investigation, such as the termination of the criminal perpetrator investigation by public authorities before the statute of limitations expires.
The applicant’s claim and the evidence he put forward about it focused on the fact that he was subjected to a deliberate act by a law enforcement officer. The applicant based his claim that the act was committed intentionally by supporting it with the facts that the vehicle in which the gas ammunition that caused his injury did not have a license plate and the gas weapon was not used properly. The court where the public lawsuit was filed regarding the incident issued a decision of non-duty on the grounds that these allegations were considered important and should be evaluated by the competent court, and the counter-decision of non-duty was lifted by the regional court of justice.
In such serious investigations where it is stated that the right to life has been violated by public officials, it is expected that judicial authorities will treat the characterization of the crime with more care in terms of the obligation to conduct an effective investigation. Because it is known that the qualification in question is closely related to the statute of limitations, and the statute of limitations for such crimes is incompatible with the obligation to conduct an effective investigation.
In the concrete case, the Constitutional Court does not make a determination as to whether the crime was committed intentionally, with possible intent, with conscious installment or with installment. However, it should also be stated that in such cases where a clear determination cannot be made between the judicial authorities regarding the nature of the crime in investigations related to the violation of the negative obligation of the right to life, the final choice to be made should not Decrement the effectiveness of the investigation. For this reason, the procedural dimension of the right to life has been violated.
On the other hand, while there is no claim that the applicant was among the people who blocked the road to traffic in the concrete incident, it has not been Deciphered why the law enforcement officer was subjected to the use of force. This situation, on the other hand, had a deterrent effect on the applicant’s right to organize meetings and demonstration marches. Moreover, the applicant’s life-threatening injury as a result of the intervention made by the law enforcement agency at the meeting also showed that the public force used was not proportionate.
The Constitutional Court ruled that the right to life and the right to organize meetings and demonstration marches were violated on the grounds described.
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