Tahir Canan, Application No: 2012/969, 18 September 2013

A) Facts

The applicant who was serving his sentence in a penal institution filed a complaint against a guardian on the ground that he attempted to injury and committed insult against him. Upon complaint, administrative and judicial investigations were started. The criminal proceedings initiated after the judicial investigation, resulted in the decision to the deferment of the announcement of the verdict with regard to the guardian and later on, this judgment was finalized.

B) Judgment and Reasoning of the Court

The Constitutional Court examined the application in relation to Article 17 of the Constitution which articulates the prohibition of torture, inhuman or degrading treatment (incompatible with human dignity) and declared that the application was manifestly ill-founded and thus inadmissible.

According to the Court, the duty to protect the individual’s corporeal and spiritual existence includes specifically the protection of those held under the custody of the State from abuse. The prohibition of torture, inhuman and degrading treatment should also be considered within this scope. The difference between torture, inhuman and degrading treatment lies in the degree of intensity of the treatment. However, for an action to be considered within the scope of this prohibition, it should have reached a certain threshold of intensity determined pursuant to the facts of each case. In the present circumstances, it is observed that the action of the guardian was momentary and non-continuous. Despite the custodial relationship between the applicant and the guardian, it could not possibly be said that this non-physical action reaches the threshold of intensity to be considered within the scope of Article 17(3) of the Constitution.

The Constitutional Court, after declaring that the relevant action did not fall within the scope of Article 17(3) of the Constitution, went on to examine the complaint also in relation to the right to protection of corporeal and spiritual existence. Under the interpretation of Article 17(1) in conjunction with Article 5 of the Constitution, the Court stated that the state is under an obligation to conduct an effective investigation in the event of a violation of a right that would enable to identify and prosecute the individuals responsible. For that matter, sometimes even the lack of investigation could violate the prohibition of ill-treatment.

Examining the judicial investigation conducted in the present case, the Constitutional Court holds the view that when there exists a claim of violation of a right, there should be an effective remedy against it both in theory and in practice. It is only possible to regard a remedy as effective if and only if it has the ability to prevent the violation, put an end to the violation and if needed rule for a compensation to counteract the effects of the violation. Further, the individuals responsible for the violation should be identified. The right to an effective remedy enshrined in Article 40 of the Constitution is also articulated in this way and further emphasis is put on the principle that the public officials could be responsible from violations of rights as well.

Examining whether the judicial investigation resulting with the deferment of the announcement of the verdict is in compliance with the state’s duty to conduct an effective investigation, the Constitutional Court first stated that it is not a part of its duty to comment on whether the individuals are guilty or not or the sentences given, however it also set forth the principle that the rules relating to the criminal procedure should be fair and proportionate and thus examined the concrete case from this perspective. In this regard, the first instance judgment was not found disproportionate and it was concluded that the deterrent function of the criminal sanctions was exercised effectively.

C) Significance of the Judgement

The Tahir Canan application is one of the most referenced decisions regarding the torture, inhuman and degrading treatment. The judgment includes a parallel attitude to the case-law of the European Court of Human Rights in relation to the concepts within the ambit of the prohibition and the detainees were considered as in need of special protection regarding this prohibition. Moreover, it was explicitly stated that even when the violation of a right is committed by the state or its officials, no defence of immunity as stipulated in Article 40 of the Constitution shall be accepted. With regard to the decision of deferment of the announcement of the verdict, the Court expressed that the proceedings resulted with this decision could be proportionate and effective to the extent of meeting the ends of criminal proceedings.