Public Prosecutor Asım Ekren: Are law enforcement agencies using their authority to use force correctly?

Public Prosecutor Asım Ekren, in his work titled "Who is Right? Police, Gendarmerie, Municipal Police or Citizens?" (Use of Force Authority), addresses a topic that is often discussed in the public and media following unwanted incidents that occasionally occur, focusing on the limits of the use of force authority as stated in the law concerning law enforcement officers, commonly known as police, gendarmerie, neighborhood watchmen, municipal police, correctional officers (guards), forest rangers, coast guard, customs officers, and private security personnel, and whether they exceed these limits, as well as who is right or wrong.

"LAW ENFORCEMENT AGENCIES MAY USE WEAPONS WHEN NECESSARY"

Prosecutor Ekren stated that the issue cannot be accurately analyzed based on feelings or perspectives, and that it is more about adapting a regulation found in the relevant legislation to an incident that occurs under certain conditions. He said, "The laws clearly state that the relevant law enforcement agencies may use force when necessary, and even use weapons if the situation requires it." Ekren emphasized that the use of this authority is a duty and is beneficial for public safety, and that this authority/duty has certain limits and measures, which also relate to the individual's security, bodily integrity, and dignity.

"THERE IS A NEED FOR LAW ENFORCEMENT OFFICERS TO PROTECT THE HEALTH AND MORALITY OF SOCIETY"

As frequently mentioned in the laws, issues such as the protection of national security, public order, the health and morality of society, the prevention of crimes, and ensuring the authority and impartiality of the judiciary are of utmost importance. One of the most important tools for achieving this is the power of law enforcement officers (armed public officials) who have the authority to use force when necessary. Additionally, the personal security, bodily integrity, reputation, and rights of individuals that make up society are also very important. One of the most important tools for achieving this is ensuring that citizens are safe from the use of force. Although these two tools complement each other when necessary, we sometimes encounter two situations that are almost in conflict with each other. In fact, each of these two situations is essential to the matter. In other words, they have a complementary nature like halves of an apple. It is difficult for one to function without the other. I will try to contribute to the understanding of the issue by discussing the relevant legislation that delineates the boundaries of these two indispensable situations, in light of the decisions of the Court of Cassation and the appellate courts, along with case examples," he stated, providing the following example:

"To better illustrate the issue, let’s explain with an example: A police team sees a citizen named (A), who is reported to be disturbing the environment by loudly cursing, continuing his actions in front of a shopping center. Despite a verbal warning, (A) continues his actions. When he insists on not getting into the police vehicle and tries to escape, police officer (E) from the three-person team catches him. As (A) continues to resist, he is taken to the ground, and while trying to put handcuffs on him, (A) attempts to punch him, at which point the officer sprays him with pepper spray. As a result, (A) stumbles and falls, hitting his head on the concrete curb and getting injured. He kicks the police officer who is trying to lift him off the ground while cursing at him. As a result, the officer's finger is broken. One police officer jumps on (A), while another officer punches him to stop him. When (A) remains motionless on the ground, handcuffs are applied. At this moment, the angry officer (S) kicks him while he is motionless on the ground. The officers, together, cover his mouth to prevent him from shouting and hold him by his arms, partially dragging him on the ground, and force him into the police vehicle. (A) breaks the door opening handle inside the vehicle by kicking it. While sitting in the police station (holding cell) with his hands handcuffed, police officer (E) punches him, saying why he is showing off outside. (A)'s nose is broken.

In the mentioned incident, which can frequently be encountered in similar cases;

Crimes: The citizen (A) is subject to criminal proceedings for resisting the police officers in the performance of their duties, publicly insulting a public official working in a collective capacity, and damaging public property under Articles 265/1, 86/1,3-c, 87/3, 125/1,3-a,4, 152/1-a of the Turkish Penal Code (TCK). Additionally, he faces administrative sanctions for behaving in a way that disturbs the peace and tranquility of others while being drunk, according to Article 35 of the Misdemeanor Law No. 5326.

Actions exceeding the limits of the use of force authority: The act of kicking the citizen while he is handcuffed and on the ground falls under the scope of intentional injury by exceeding the limits of the use of force authority, as referred to in Article 256 of the TCK, and thus requires criminal liability under Article 86/2,3-d of the TCK. Because it involves the use of force beyond what is required against a person whose resistance has already been broken.

Actions within the limits of the use of force authority: The uses of force performed until the citizen (A) is brought to the police station (the arrest, being taken to the ground, being sprayed with pepper spray, being jumped on, hitting his head on the concrete curb, being handcuffed, being punched and kicked, having his mouth covered, and being forcibly dragged into the vehicle) are lawful and do not incur criminal liability, as they are proportional to the breaking of the citizen's resistance according to the circumstances.

Actions unrelated to the limits of the use of force authority: The act of being punched by police officer (E) while handcuffed in the police station falls directly under the scope of intentional injury without any relation to the limits of the use of force authority, thus requiring criminal liability under Articles 86/1,3-d, 87/3 of the TCK.

If the police (E) had made a couple of similar moves (such as insulting, pulling hair afterward, pushing, etc.) shortly before or after the punching, it could even be possible to evaluate it as torture due to the systematic and continuous nature of the actions carried out in a certain process.

"USING FORCE ON A HANDCUFFED PERSON IS ILLEGAL"

Ekren concluded his remarks as follows: "The mistakes and violations observed in this example are as follows: The use of force increasing until the person's resistance is broken is legally legitimate or lawful, while the intentional use of force after the resistance is broken, exceeding the limits, falls under the scope of intentional injury. Therefore, using force on a handcuffed person lying on the ground is wrong and constitutes an illegal act since there is no resistance. The actions taken while in the police station are mistakes or violations that are unrelated to exceeding the limits of the authority to use force and are criminal in nature."