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Arrested in Turkey's western Kırklareli province at the time, Fırat Can, a student at Marmara University Faculty of Communication, was taken to İstanbul so that he could take his exams.
He was beaten by gendarmerie officers at Maslak Transfer Company. Standing trial over this battery, one person was sentenced to pay a fine and the announcement of the verdict was suspended by the court.
With the ensuing judicial process ending in impunity, Fırat Can made an individual application to the Constitutional Court via his attorney Ercan Kanar.
The Constitutional Court announced its detailed judgement today (August 20) and concluded that the prohibition of maltreatment guaranteed by the Article 17 of the Constitution was violated both materially and procedurally.
The Constitutional Court has ruled that Fırat Can shall be paid 70 thousand lira in non-pecuniary damages. The file of the case will also be sent back to the Bakırkör 4th Heavy Penal Court for retrial.
'Humiliation in his own eyes is also maltreatment'
In its detailed judgement, the Constitutional Court has noted, "...in determining whether an act is humiliating or degrading, the fact that it is open to public plays a role; however, in some cases, humiliation of a person in his or her own eyes can also suffice for an act to be considered maltreatment."
Referring to the signs of trauma on Can's body as well as the fact that he was wounded while he was in handcuffs and under the supervision of public officers, the Court has underlined that "while [these points] were obvious, a judicial fine, rather than a prison sentence, was preferred for the perpetrator and he was penalized on the lower limit."
Against this backdrop, the Court has said, "...it cannot be concluded that the perpetrator was penalized in proportion to his act and the consequences of the act on the part of the applicant were properly eliminated."
'State officials can benefit from practical immunity'
The Constitutional Court ruling has also discussed the possible consequences of impunity as the judicial fine of the defendant was deferred:
"On the grounds that the defendant was penalized on the lower limit by preferring a judicial fine and that the announcement of the verdict was suspended, which means that no legal consequences will arise, it has been understood that the verdict was not in a position to effectively eliminate the aggrievance suffered by the applicant.
"An investigation shall ensure the identification of the responsible parties as well as their penalization. Otherwise, in some cases, it will be possible for some persons to benefit from the practical immunity arising from their public duties and abuse the rights of persons under their control."
What happened?
Arrested in Kırklareli Type E Closed Prison and charged with "membership of a terrorist organization," Fırat Can was transferred to İstanbul so that he could take his exams at Marmara University Faculty of Communication.
After taking his exams, Can was brought to the İstanbul Maslak Transfer Company on June 11, 2007 to be taken to the penal institution where he was held. On the same day, he appealed to the Kırklareli Chief Public Prosecutor's Office and filed a criminal complaint.
In his petition, Can noted that "before he got on the shuttle at Bayrampaşa Penal Institution, he was taken to the toilets of the Penal Institution by the specialized sergeant on duty at Maslak Transfer Company and 10 soldiers at his command, he was beaten there, his testicles were squeezed, he was hit on his throat with bludgeons and he was insulted..."
Can also said that "those persons whose names he did not know did these acts because he was allegedly the member of the organization and they wanted to take his ring from his finger, he took the ring in the end and he did not know what happened to the ring after that."
He was heard to be chanting 'Human dignity will beat torture'
Another arrested person was also witness to what happened. In his statement about the incident, the witness said:
"When Fırat Can said that he would not take off his wedding ring, two gendarmerie officers held him in his arms, the senior officer hit him on his back with a bludgeon for several times and insulted him, the other gendarmerie officers dragged him to another room, where Can was heard to the chanting the slogan, 'Human dignity will beat torture'."
Can was examined by the doctor on the same day. The medical report also documented the signs of trauma on his body.
150-day fine was deferred
A lawsuit was filed against only one person, the specialized sergeant, who was charged with "willful injury by exceeding the authority to use force."
The Bakırköy 4th Heavy Penal Court ruled that defendant M.N.T. should be sentenced to pay a judicial fine for 180 days on the offense charged and then reduced it to 150 days for good behavior, which accounted for 3,000 lira. The court also suspended the announcement of the verdict.
With all his objections against this impunity rejected, Fırat Can made an application to the Constitutional Court on January 8, 2016. The Court announced its detailed judgement today. (AS/SD)
