Events
155 A bomb attack was reported to the police Help line at night, and the security forces conducted an operation at the address subject to the notification at about 01:45. Grenades, hand-made explosives, a pistol, a magazine, a large number of firecrackers and a mobile phone were found in the house where the suspect was not found. Although searches were carried out Decently in some surrounding houses, the suspect was not caught. On the same day, as a result of the information provided by some persons, the operation was started at about 16:30 after it was learned that the suspects were located in the outbuildings of another house. The conflict, which began after the warnings of the security forces were responded to by firing a gun, ended with the capture of three people dead.
The Prosecutor General’s Office has launched an immediate and formal investigation into the incident. The applicant’s sons are S.Y. and A.Y.in connection with the death of the Prosecutor General’s Office has decided that there is no room for prosecution against the security forces for the alleged intentional killing. The applicant’s appeal against this decision was rejected by the Magistrate’s Court.
Count
The applicant claimed that his sons were unlawfully killed as a result of the use of disproportionate force, although the use of armed force by the security forces was not required, and also that the material circumstances of the incident had not been revealed by effective investigation, stating that the material and procedural dimensions of the right to life had been violated.
Evaluation of the Court
1. From the Point of View of the Alleged Violation of the Material Dimension of the Right to Life
The intervention of the security forces in the incident that is the subject of the application is not an operation that has been planned, intelligence and preparatory work in advance, but an intervention that begins with instant notification.
The applicant abstractly asserted that the security forces had opened fire directly without any warning. The applicant did not make a statement about the evidence on which he based his claim and who the witnesses were, whose identities he claimed had not been investigated. The file refers to the statements of K, to whom the house belonging to the garage where the shooting took place belongs.He. with N.He.it has been observed that the necessary warnings have been given before the use of armed force, and it has also been stated that the necessary warning has been given in the Event Minutes.
It is fixed from the Incident Minutes and statements that the suspects did not surrender despite the call made by the security forces and fired at the security forces with automatic weapons next to them. A study on the grenade found his fingerprints on some materials, also in reports from other criminal suspects shot in the hand and other body parts SVAP cheeks, it was determined that encountered the remains of examples. As a result of the examination of rifles, bullet cores and casings found at the scene, the report stated that a large number of bullets were fired from these weapons, and the use of a weapon against the security forces was mentioned in the incident.
The presence of a grenade in the crime scene examinations and the applicant’s son A.Y.in the face of the seizure of documents related to the arrangement of the bomb attack, it was assessed that the suspects were preparing for an attack. Security forces -Article 17 of the Constitution. in terms of the legitimate objective in the fourth paragraph of the article – just the use of weapons to protect their lives against them due to the scope of a weapon in self defense at the same time to perform a bomb attack in the direction of a strong suspicion of third parties has/have acted within the scope of protection of civilians in harm’s way.
The Constitutional Court has decided that the material dimension of the right to life has not been violated on the grounds described.
2. From the Point of View of the Alleged Violation of the Procedural Dimension of the Right to Life
The Prosecutor General’s Office immediately launched an investigation into the matter and decided to search it in accordance with the Decency of its delay, immediately went to the scene after the death was reported, made the necessary examinations and prepared the minutes.
The police who investigate the crime scene of the anti-terrorism branch is not in charge of, ballistics, biological and persons connected with the people who made the examination in the absence of any information he was involved in the incident, Crime Scene Investigation and the prosecutors involved in the incident personally and as tangible evidence of outside research is performed by means of hierarchical, it is understood that law enforcement security forces. In the same context, reports that no fingerprints were found on the grenade found at the crime scene were also prepared by the criminal police laboratories involved in the investigation. For these reasons, it was assessed that the applicant made allegations only in an abstract manner without providing any concrete data, documents or evidence that the investigation was not independent, so that the investigation subject to the application was conducted independently enough in the circumstances of the concrete incident.
From the beginning the decision of the investigative file that is not in the restriction, the applicant has the possibility to actively participate in the first stage of the investigation from where the petition she also can contain a detailed justification in relation to the event of death upon notification of a decision, accordingly, as a result of the investigation, which has all kinds of possibilities, use the path to the applicant’s appeal against the decision can be understood. In this context, it has been evaluated that the fact that the applicant’s statement was never applied for at the investigation stage did not cause a deficiency in terms of this principle alone according to the circumstances of the concrete incident.
In the investigation initiated on 31/7/2015, which was the subject of the application, it was decided that there was no room for prosecution on 16/3/2016, and the appeal against the decision was rejected by the decision of the Magistrate’s Court dated 8/4/2016, so it was understood that the investigation was conducted with reasonable speed and care.
Crime scene investigations, discovery, examination of the dead and autopsy procedures were carried out with the participation, accompaniment and supervision of the Public prosecutor personally. The public prosecutor has carried out a large number of operations aimed at examining all kinds of material evidence by specialized personnel and criminal laboratories.
Given the decision on whether to prosecute viewed by the public prosecutor, the prosecutor after transferring the development of the incident, the suspects in the direction of the security forces that can respond to the call with the surrender of firearms by security forces, police duties and powers of the Law No. 2559 16. in accordance with the authority and right set out in its article, this legal authority has recognized that it uses weapons in a proportionate and measured manner, staying within the limits.
2 of the European Convention on Human Rights in relation to the issues raised at the Magistrates’ Court upon the appeal petition containing the claims made to this decision and put forward in the individual application form. according to Article 17 of the Constitution. and 90. according to articles 24 of the Turkish Criminal Code No. 5237. 20 of the Anti-Terrorism Law No. 3713 with paragraph (1) of its article. having included the article in it, he accepted that the mentioned conditions are the reason for compliance with the law in the form of execution of a legal order, and rejected the objections raised.
17 of the Constitution, as long as it does not interfere with the determination of the circumstances surrounding the death event and the determination of those responsible, if any. in the investigations to be carried out in accordance with the article, the investigating authorities are not obliged to meet any claims and requests of the relatives of the deceased person regarding the development of the incident and the acquisition of evidence. In the concrete case, no element of the investigation subject to the application indicates that the Public prosecutor alone or as a whole has not investigated the cause of the events and that all the evidence that should have been collected during the investigation stage has not been collected, that the investigation is not independent, and that he has not conducted a thorough, objective and impartial analysis of the evidence collected. Considering that the use of weapons in such a situation and in a legal state that respects human rights is mandatory and proportionate to the emerging danger, so the actions of police officers using armed force are in accordance with the law, it is impossible to say that the investigation that resulted in the decision not to prosecute was not conducted effectively.
The Constitutional Court has decided that the procedural dimension of the right to life has not been violated on the grounds described.
You can access our other article examples and petition examples by clicking here.
