Cezmi Demir and Others, Application No: 2013/293, 17 July 2014

A) Facts

The applicants, proceedings for the offence of theft in relation to whom were conducted, claimed that they were subjected to ill-treatment during detention and their testimonies were taken under those circumstances, the medical reports that were issued upon their complaints did not reflect the truth and they were issued under pressure of the security forces. Following these claims, prosecution was commenced in regard to the security forces and doctors and one member of the security forces was sentenced to imprisonment while other suspects were acquitted. The judgment of the first instance court was reversed by the Court of Appeal due to deficiencies in the prosecution process and at the end of the re-trial another suspect was sentenced to a judicial fine. The Court of Appeal reversed the latter judgment on other grounds and this time, the first instance court dismissed the case in relation to the suspect which had been sentenced a judicial fine, on the ground that the limitation period had expired, and insisted in the accuracy of its other rulings. The judgment of the court was then upheld and became final.

B) Judgment and Reasoning of the Court

The Constitutional Court examined the applicants’ claims that public officers tortured them, forged documents were issued by doctors, and the trials regarding these persons were ineffective in terms of substantive and procedural dimensions of the prohibition of torture inhuman and degrading treatment regulated under Article 17(3) of the Constitution.

It first stated that the disproportionately light sentences given at the end of the proceedings in relation to serious claims such as torture do not remove the status of victim.

Looking into the substantive dimension of the prohibition of torture, the Court defined the terms of torture, inhuman and degrading treatment and remarked that the state was obliged not to engage in such treatment and to take measures capable of preventing persons from being subjected to such treatment. Furthermore, it was stated that recourse to violence against persons deprived of their liberty could violate Article 17(3) of the Constitution, unless it was not strictly necessary. With reference to the case law of the ECtHR, it was affirmed that in case of an injury or damage caused during detention, the state is under an obligation to bring a reliable and reasonable explanation.

In the case at hand, it was found that the verbal and physical harassment against the applicants who were in a vulnerable position under detention, that the applicants were brought to the doctors together with the persons who were claimed to be the perpetrators of torture act and that the doctors were under pressure, violated the prohibition of torture, inhuman and degrading treatment. Additionally, that a dismissal decision was given in relation to one suspect and that the sanction against the suspect who was sentenced was disproportionately light are not found in line with the positive obligation of the state to prevent torture.

The Constitutional Court examined the complaint that the investigation on the claims of torture were insufficient in terms of the procedural dimension of Article 17(3) of the Constitution. The elements of the procedural dimension meaning an obligation on the state to have an effective investigation ensuring determination and punishment of the individuals responsible when the prohibition of torture is violated by public officers or third persons was

set forth by the Court and it was asserted that in cases of death or injury resulting from intentional harassment or ill-treatment, this obligation would require a criminal investigation. In this regard, an effective investigation should be initiated ex officio by independent authorities and evidence should be collected in a fast and diligent manner. Furthermore, it is important that methods such as limitation periods or a general amnesty not to be invoked in relation to the investigations on torture claims.

In the case at hand, considering, inter alia, that the proceedings which lasted more than 11 years ended with a dismissal decision due to the limitation period, it is found that the trial was not conducted in a reasonable pace and thus could not be deemed effective.

C) Significance of the Judgment

In the Cezmi Demir and Others judgment, the Constitutional Court laid down the definitions of the terms of torture, inhuman and degrading treatment, the relations between those definitions and the case law of the European Court of Human Rights on this topic. It is a significant judgment since it states that excessive violence against persons who are deprived of their liberty by the state will be examined within the scope of this prohibition. In addition, it is explained that the principles concerning procedural obligation in relation to the right to life in Serpil Kerimoğlu and Others application (App. No: 2012/752, 17 September 2013) will be applied to the requirements of an effective investigation regarding the prohibition of torture.