Ruling on Injury by Gas Cartridge: Prosecutor Didn’t Investigate Police

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The Constitutional Court has announced its justified ruling on Serhat Ölğen, who was both injured by a gas cartridge in the head and battered by the police in Turkey's southeastern province of Diyarbakır.

The Court has concluded that the prohibition of maltreatment guaranteed by the Article 17/3 of the Constitution has been violated.

The Court has ruled that the file of the case shall be referred to the Diyarbakır Chief Public Prosecutor's Office so that the consequences of the violation can be eliminated by launching a new investigation.

Serhat Ölğen was wounded by a gas cartridge in front of his house during a protest demonstration in 2015 and appealed to the Constitutional Court as his criminal complaints against the police officers who battered and detained him ended in a verdict of non-prosecution.

Court: Prosecutor didn't collect evidence or act

In its justified ruling, the Constitutional Court has underlined that the prosecutor's office did not investigate the allegations of ill treatment against the police and did not collect the evidence:

"It needs to be identified which law enforcement officer fired the gas cartridge that caused the injury of Serhat Ölğen, from what distance and angle the cartridge was fired, whether the applicant was especially targeted or not and with what motives the cartridge was fired.

"To provide evidence for the incident, it is important that the law enforcement officers who caught the wounded applicant and brought him to the armed vehicle be heard as suspects, the security camera footages of the workplaces at the scene of incident and city surveillance camera records be identified, an examination be conducted and the people who were at the scene of incident be heard as witnesses.

"It is seen that none of the aforementioned actions were taken during the investigation of the prosecutor's office. The investigating authority did not fulfil the obligation to detect the evidence that would clarify the allegation of maltreatment and ensure that the responsible parties were identified.

"The prosecutor's office gave a decision of non-prosecution by examining the file in terms of proportionality, without working to identify the perpetrators or meticulously inspecting under what conditions the incident took place."

Referring to the allegation of the applicant who claimed that he was not taken to a hospital on time and kept waiting in the police station with his head bleeding, the Constitutional Court has indicated that the prosecutor's office did not investigate this allegation, either.

Dissenting opinion: Police intervention not proportional

According to the Constitutional Court verdict, the prosecutor's office alleged that the intervention of the police was proportional. The Court has argued that there is no sufficient data to make a concrete evaluation. "It cannot be understood based on what criteria the prosecutor's office evaluated [the intervention] in terms of proportionality", the Court has indicated.

In his dissenting opinion, Engin Yıldırım, a member of the Constitutional Court, has stated that the intervention of the police was not proportional and the prohibition of maltreatment has been violated in its physical dimensions.

He was beaten, taken to police station while wounded

On September 13, 2015, a group of 50-60 people with improvised explosives, molotov cocktails and long barreled weapons set the garbage bins on fire and closed the road to traffic on Emek Neighborhood in Bağlar, Diyarbakır. Police intervened against the protesters.

Serhat Ölğen, who lives in Bağlar and was 19 years old at the time of incident, was found lying on the ground wounded in the head. The police officers who found Ölğen on a side street took him to the police station in an armed vehicle and took his deposition.

Deposing at the police station, Ölğen denied any participation in the protest and recounted that he came home from work on the day of incident, but went to the market to buy food for his daughter at around 8 p.m., on his way back home, he saw an 8- or 10-year-old child with his face covered and warned him against the incidents, the child left after his warning.

Ölğen also indicated that when he entered the street where he lived, an armed vehicle was intervening with pepper gas, he heard the sounds of gas cartridges fired by police for two or three times and he felt a pain behind his right ear after he heard the fourth shot and fell to the ground.

He wanted camera footage to be examined

Deposing to the police, Serhat Ölğen also stated that while he was lying on the ground, the police came to him, searched his body, took him to the armed vehicle by dragging him on the floor and battering him and took him to the former Police School in Bağlar.

He added that it could be understood from the security cameras and city surveillance cameras around the scene of incident that he did not participate in the protests. He also requested that the camera footage of the market where he went shopping be examined. Ölğen filed a criminal complaint against the police officers who battered him.

Taking down minutes at the scene of incident, police officers alleged that Ölğen was one of the protesters.

He was taken to hospital by police who battered him

Indicating that while all these were happening, his head was still bleeding, Ölğen said that his wound could only be treated and his bleeding was stopped after one and a half hours by the 112 Emergency Service teams that came to the police station where he was held.

Kept waiting for another hour after the medical treatment, Ölğen was taken to the Selahattin Eyyubi State Hospital by the police officers who caused his injury. He was referred to Gazi Yaşargil Training and Research Hospital. He was discharged from there at around 3 a.m.

'Loss of balance, inability to walk straight, nausea...'

Serhat Ölğen received three separate medical reports about his injuries. The report issued by the first hospital documented that he had "a 3x2 cm subcutaneous cut behind his right ear" and was diagnosed with "loss of balance, inability to walk straight, nausea and hearing loss."

The medical report issued by the second hospital also documented that Ölğen had signs of trauma on his body.

He was arrested, acquitted in first hearing

Ölğen was arrested on charge of "committing crimes on behalf of an armed terrorist organization as a non-member" on September 16, 2015. He was also charged with carjacking or retaining land transportation vehicles and resisting to prevent fulfilment of duty. Ölğen was acquitted in his first hearing.

According to the justified ruling of the local court, it was understood that Ölğen was not one of the protesters.

Non-prosecution without investigation

The prosecutor's office gave a decision of non-prosecution without conducting any investigations against the related police officers.

As Ölğen's appeal against this decision was rejected by the Diyarbakır 2nd Penal Judgeship of Peace, he made an individual application to the Constitutional Court on February 11, 2016.

In his appeal to the supreme court, he argued that the prohibition of maltreatment was violated as he was wounded as a result of the use of armed force by the police and no effective effective criminal proceedings were conducted. The Constitutional Court pronounced its justified ruling on the Official Gazette today (December 25). (AS/SD)