Individual Application

The Facts

The applicants are the parents of T.Y. who was a prisoner injured (vision loss) during an operation known as “return to life” (hayata dönüş) in the penitentiary institution. After the operation where several people had died or been injured, investigations were conducted against the security forces and prisoners. The criminal cases brought subsequent to the relevant investigations were dismissed due to the statute of limitations. The proceedings initiated before the assize court after the investigation conducted into the operation have been pending since 14 March 2019.

T.Y. submitted a request for compensation before the Ministries of Justice and Interior, claiming that he suffered vision loss in one of his eyes. Upon dismissal of his request, he brought an action for compensation. Upon the applicant’s death pending the proceedings, the applicants (his parents) became a party to the proceedings. At the end of the said proceedings, the administrative court awarded compensation to the applicants. Upon appeal, the Council of State quashed the judgment in so far as it was related to the awarding of compensation and upheld the judgment in so far as it was related to the dismissal of the case. The administrative court complied with the Council of State’s judgment and thus dismissed the case. The applicants’ subsequent appeal and request for rectification of the judgment were also dismissed. Hence, they lodged an individual application.

The Applicants’ Allegations

The applicants claimed that their son (a prisoner) had suffered vision loss as a result of an operation carried out in the penitentiary institution, which was in breach of his right to life.

The Court’s Assessment

It had become inevitable for the State to carry out an operation in the penitentiary institution where the applicants’ son was being held, due to the acts of disorder and threat there. The State has a burden of explaining the course of the operation and the circumstances in which the applicant had been injured, as well as proving which conducts of the applicant had made it absolutely necessary to use force against him.

The applicants claimed that at the time of the operation, their son was on the 46^th day of the death fast and accordingly, could not be in a state to resist the gendarmerie officers who carried out the operation. In addition, the criminal case initiated against T.Y. had been dismissed due to the statute of limitations. Therefore, the allegations against him could not be proven within the scope of the criminal case. At this point, the investigation conducted should be capable of determining whether the use of force had been justified, as well as leading to the identification and punishment of those responsible.

The criminal case opened for certain reasons -such as the failure to identify, within the scope of the investigation launched against the security officers taking part in the operation, the security officers who had actually carried out the operation as well as the failure to grant a leave for investigation- has been pending for more than nine years. With the lapse of time, it becomes difficult to collect evidence and to establish how the incident occurred.

Unreasonable length of investigations –especially in cases of abuse of power– may create the impression that such acts are tolerated and encouraged.

In the present case, regard being had to fact that during the criminal proceedings lasting so long, it was difficult to put forth clear information on the course of events as well as the circumstances in which the applicants’ son had been injured, it was not reasonable to wait for the outcome of the criminal proceedings which were not conducted effectively to ensure the accountability of those responsible.

It has been concluded that the State failed to fulfil its obligation to provide a convincing explanation on the circumstances in which T.Y., who had been under its supervision at the material time, had been injured and accordingly also failed to prove that it had been absolutely necessary to use force against him. Therefore, it has been concluded that the use of force by the public officials against T.Y. had not been absolutely necessary.

In addition, it is not convincing that the administrative authorities, after a long time, concluded within the scope of the action for compensation that the applicants’ son had actively participated in the events.

Consequently, the Court has found a violation of the right to life safeguarded by Article 17 of the Constitution.