SECOND SECTION
DECISION
Application no. 63129/15
Ömer ELÇİ against Turkey
and 8 other applications
(see list appended)
The European Court of Human Rights (Second Section), sitting on 6 December 2016 as a Chamber composed of:
Julia Laffranque, President,
Işıl Karakaş,
Paul Lemmens,
Valeriu Griţco,
Ksenija Turković,
Jon Fridrik Kjølbro,
Georges Ravarani, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the decisions to grant priority to the above applications under Rule 41 of the Rules of Court,
Having regard to the information submitted by the respondent Government on 8 January 2016,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants, all of whom are Turkish nationals, is set out in Appendix A.
A. Background to the events giving rise to the applications
2. Since August 2015 a number of curfews have been imposed in certain towns and cities in south-east Turkey by the local governors, including the towns of Cizre and Sur where the applicants live. The stated aim of the curfews was to clear the trenches dug up and the explosives planted by members of a number of outlawed organisations, as well as to protect the civilians from violence. Some of those curfews were lifted and then re-imposed on various dates. In imposing the curfews the governors relied on section 11 (c) of the Provincial Administration Law (see “Relevant domestic law” below).
3. On 14 December 2015 a curfew was imposed in the town of Cizre, prohibiting people from leaving their homes at any time of the day. The 24‑hour curfew in Cizre continued until it was modified on 2 March 2016, whereby people were allowed to leave their homes between the hours of 5 a.m. and 7.30 p.m. Another modification of the modalities of the curfew made on 28 March 2016 allowed people to leave their homes between 4.30 a.m. and 9.30 p.m. and a final modification made on 5 June 2016 limited the curfew hours to between 11 p.m. and 2.30 a.m.
4. On 11 December 2015 a 24-hour curfew was imposed in six of the fifteen neighbourhoods in the town of Sur. On 13 and 16 March and 22 May 2016 the curfew was lifted from some parts of those neighbourhoods.
5. The applicants allege that a large number of people have been killed in areas under curfew and that a large number of houses have been bombed and destroyed by fire opened from military vehicles such as tanks. In support of their allegations the applicants submitted to the Court video recordings and photographs, showing tanks and armed military vehicles driving on the streets and on the outskirts of towns and helicopters flying overhead; houses and blocks of flats being pounded by heavy artillery and the extensive damage caused to the insides and outsides of a number of buildings; smoke billowing from a large number of buildings; injured people - including children and elderly - being carried on makeshift stretchers.
6. According to a report published by the Human Rights Foundation of Turkey on 22 March 2016, the number of civilians killed between August 2015 and 18 March 2016 in areas under curfew ‐ including Cizre and Sur ‐ was at least 310. Of those 310 deceased persons, 72 were children, 62 were women and 29 were aged 60 and older. A further 79 persons killed in the area during that same period were not yet identified. It was estimated that 76 of those persons lost their lives because they had not been able to have access to medical facilities.
7. It was stated in the report pertaining to an Urgent Action launched by Amnesty International on 11 January 2016 that “[i]n all areas under curfew many residents are facing severe electricity and water shortages and they cannot leave their homes to access basic food supplies. Residents requiring medical care have also been unable to safely leave their neighbourhoods to access such care. Ambulances in some cases have been unable to enter areas under curfew due to the security situation or because they were denied access by the security services.”
8. According to the Mardin Chamber of Pharmacies which oversees the pharmacies in a number of towns and cities including Cizre, after 14 December 2015 only five of the nineteen pharmacies in Cizre managed to stay open and even then only for three hours a day. As a result, substantially fewer people were able to obtain their prescription medicines and no baby food was sold. Furthermore, since the beginning of the curfew all family health clinics in Cizre have been closed.
B. The circumstances of the cases
9. The facts of the cases, as submitted by the applicants and as they appear from the documents submitted by them, may be summarised as follows.
1. Ömer Elçi v. Turkey, no. 63129/15
10. The applicant and his family live in the Nur Neighbourhood of Cizre.
11. A curfew had been imposed on Cizre between 4 and 12 September 2015 and according to a report prepared by Mr Tahir Elçi, the president of the Diyarbakır Bar Association at the time, during that period fifteen civilians were killed by firearms and six other civilians lost their lives because they were not taken to hospital. A further nine civilians were injured by firearms.
12. On 9 September 2015 the applicant introduced an individual application before the Constitutional Court concerning that curfew and requested an interim measure. In that application the applicant alleged, inter alia, that as a result of the curfew his rights guaranteed in Articles 2, 3, 5 and 8 of the Convention had been violated and asked for the curfew to be lifted.
13. The applicant’s request was rejected by the Constitutional Court on 11 September 2015. The Constitutional Court considered that the applicant had failed to show that his life would be endangered if he complied with the rules of the curfew and that there was no serious danger necessitating the granting of an interim measure (see also paragraph 48 below in “Relevant Domestic Law and Practice”).
14. After the introduction of the round-the-clock curfew in Cizre on 14 December 2015, the applicant and his family members became unable to leave their home and they were cut off from the outside world. They had to live in harsh winter conditions without water or electricity and without access to health and other public services. Because of the lack of a supply of food, the applicant and his family members were able to have only one meal per day.
15. The applicant’s house is in an area where the military operations were more intense. After the imposition of the curfew, military tanks surrounded the applicant’s neighbourhood and shelled the buildings in it, endangering the lives of those living in the neighbourhood. On one such occasion a tank shell landed in the garden of the applicant’s house, smashing the windows of the house. The house belonging to the applicant’s brother, which neighboured the applicant’s house, was burned down by the security forces. The applicant submitted photographs of his house and garden showing the remains of a tank shell lying in the garden and bullet holes in the walls and windows. He also submitted photographs of his brother’s house which show a burned house and extensive damage inside it.
16. Fearing that their house might get bombed, the applicant, his family members and around forty of their neighbours left their homes on 8 January 2016 and moved to another neighbourhood of Cizre where the clashes were less severe. They returned to their homes on 26 February 2016.
17. On 13 January 2016 the applicant’s legal representatives sent a letter to the governor of Şırnak and asked for permission to be allowed to see the applicant with a view to obtaining information and documents from him in order to prepare the application form to be submitted to the Court and to obtaining the applicant’s signature on the application form. On 15 January 2016 the governor informed the applicant’s legal representatives that armed clashes in Cizre were continuing and his office was under an obligation to protect all civilians from violence. They could not, therefore, allow the legal representatives to visit the applicant in Cizre but if the applicant wanted to contact the police and was prepared to go to a secure location to be specified by the authorities, then the security forces could take him from there to a location outside of Cizre where the legal representatives could meet him. The governor also informed the legal representatives that personnel from his office had telephoned the applicant and that the applicant had told them that he had not asked for a meeting with his lawyers but that he would nevertheless meet with the lawyers if they so wished.
18. Fearing for the applicant’s safety, the lawyers decided not to meet with the applicant. After the curfew in Cizre was lifted during daytime hours, the applicant’s legal representatives went to Cizre and met with the applicant who signed the application form and provided them with an update about his circumstances.
2. Vesek v. Turkey, no. 63138/15
19. After the curfew was imposed in the applicant’s home town of Cizre on 14 December 2015, the applicant and his family members became unable to leave their home. The applicant was living in a house together with his wife, their two children and the latter’s families. When the security forces started shelling the houses in the applicant’s neighbourhood with heavy artillery, the applicant and his family members left their house on 5 January 2016 and moved to a relatively safer neighbourhood of Cizre where they started living with eleven other persons. While moving to that address the applicant noticed that almost all the houses in his neighbourhood had been shelled with artillery. After the applicant had left his house he was unable to obtain any information about the fate of his house. In the opinion of the applicant, given that his entire neighbourhood has been completely evacuated because of the intensive artillery shelling, it was likely that his house was also destroyed.
3. Eroğlu v. Turkey, no. 478/16
20. Following the imposition of the round-the-clock curfew in the town of Sur on 11 December 2015, the two applicants – husband and wife – and their children became unable to leave their home situated in a part of the town covered by the curfew and where there were armed clashes. Their children were unable to go to school or even outside to play with other children. A large number of buildings in their town were demolished during the armed clashes. In support of their allegations the applicants submitted to the Court a number of photographs showing extensive explosives’ damage to the outsides and insides of a number of houses.
21. The applicants were unable to work and their living standards therefore deteriorated considerably. When on occasions the first applicant Kasım Eroğlu was able to leave the family home in order to buy food and other supplies, he had to persuade the security forces to allow him to return to the house. When he was unable to persuade them, he had to stay with his relatives in other parts of Diyarbakır which were not under curfew. The applicants and their children suffered psychological problems because of hearing frequent explosions, living in constant fear and witnessing their town being destroyed.
4. Görgöz v. Turkey, no. 480/16
22. Following the imposition of the curfew in their home town of Sur on 11 December 2015, the applicants – mother and daughter – became unable to leave their home which is in a part of the town covered by the curfew and where there were armed clashes. The second applicant was unable to go to school. A large number of buildings in their town were demolished during the armed clashes. In support of their allegations the applicants submitted to the Court a number of photographs showing extensive explosives’ damage to the outsides and insides of a number of houses.
23. The applicants were unable to work and their living standards therefore deteriorated considerably. They suffered psychological problems because of hearing frequent explosions, living in constant fear and witnessing their town being destroyed.
5. Sultan and Süleyman Düzgün v. Turkey, no. 891/16
24. Following the imposition of the curfew in Sur on 11 December 2015, the two applicants – husband and wife – became unable to leave their home situated in a part of the town covered by the curfew and where there were armed clashes. Most of the time they did not have electricity, water or heating. Their children were unable to go to school or even outside to play with their friends. A large number of buildings in the applicants’ town were demolished during the armed clashes. In support of their allegations the applicants submitted to the Court a number of photographs showing extensive explosives’ damage to the outsides and insides of a number of houses.
25. The applicants were unable to work and their living standards therefore deteriorated considerably. They suffered psychological problems because of hearing frequent explosions, living in constant fear and witnessing their town being destroyed.
6. Bedri and Halime Düzgün v. Turkey, no. 901/16
26. Following the imposition of the curfew in Sur on 11 December 2015, the applicants – husband and wife – became unable to leave their home which is in a part of the town covered by the curfew and where there were armed clashes. Their children were unable to go to school or outside to play with their friends. A large number of buildings in the applicants’ town were demolished during the armed clashes. In support of their allegations the applicants submitted to the Court a number of photographs showing extensive explosives’ damage to the outsides and insides of a number of houses.
27. The applicants were unable to work and their living standards therefore deteriorated considerably. They suffered psychological problems because of hearing frequent explosions, living in constant fear and witnessing their town being destroyed.
7. Çağlak v. Turkey, no. 2200/16
28. The applicant and her family live in the town of Sur. Following the imposition of the round-the-clock curfew on 11 December 2015, they became unable to leave their home and they were cut off from the outside world. They had to live in harsh winter conditions without water, food, electricity and medication, and without access to health care, education, communication facilities or other public services. Severe armed clashes took place in the vicinity of the applicant’s home which endangered her and her family members’ lives.
29. A large number of buildings in the applicant’s town were demolished and a number of people were killed and injured during the armed clashes. In support of her allegations the applicant submitted to the Court a number of photographs and a video footage recording, showing extensive explosives’ damage to the outsides and insides of a number of houses.
8. Dağlı and Others v. Turkey, 6990/16
30. The 22 applicants are members of four families who live in Cizre. Following the imposition of the round-the-clock curfew in Cizre on 14 December 2015, they became unable to leave their homes which were located in areas where there were heavy clashes.
31. Shortly after the imposition of the curfew, the Dağlı family sent their 11-year-old son Kadir to another town so that his life would not be endangered in Cizre. Although the Dağlı family home was not shelled, a neighbouring house was riddled with bullets. As a result of such incidents the applicants lived in constant fear for their lives. Although the applicants were told that some shops would be open, they did not dare to leave their home for fear of being shot at on the street. They also did not want to leave their homes because if they did so they would be subjected to numerous searches and insults by the security forces and ordered to pay a fine of 219 Turkish liras (approximately 65 Euros) for breaching the curfew. The applicant Mr Mehmet Senan Dağlı owned a small shop situated beneath the family home but he was unable to open it for business. The Dağlı family were practically imprisoned in their own house where there were frequent power cuts. Their son, the applicant Muhammed Dağlı, was unable to go to school.
32. The Zeren family live in two neighbouring flats in Cizre. When the curfew was imposed, obtaining food became a life-threatening event for them even though there was a small shop in their block of flats which was open until midday but whose food stocks were not replenished. The Zeren family and their young children lived in fear for their lives because of artillery shelling in nearby neighbourhoods. The applicant Narin Zeren is a pharmacist but she was unable to open her pharmacy after the imposition of the curfew. Four of the applicants from the Zeren family are students but they were unable to go to school.
33. The Kırmızıgül family lived in their family home until the middle of January 2016. When an artillery shell hit a neighbouring house and the shrapnel from that explosion spread to their house, they abandoned the family home and moved to a relative’s house in another part of Cizre. However, the houses in that neighbourhood were also hit by bullets and they lived in constant fear. In both houses the members of the Kırmızıgül family suffered extreme difficulties such as a lack of food, drinking water, electricity, heating and access to health facilities. The applicant Emin Kırmızıgül has heart problems and became unable to go to work after the imposition of the curfew. Six of the applicants from the Kırmızıgül family are students but they were unable to go to school.
34. The Değer family lived in their family home in Cizre. On 15 December 2015 - that is the day after the curfew was imposed - there was a power and water cut. The water they had stocked in their house beforehand lasted until the beginning of January 2016 and afterwards they had to abandon their home and move into the house of a friend in another part of Cizre. They were unable to take with them their belongings and had to leave their cow and car behind. Four of the applicants from the Değer family are students but they were unable to go to school. Artillery shelling continued in their new neighbourhood as well, killing one child, injuring two children and demolishing a mosque. The applicants lived in constant fear for their lives.
35. On 29 January 2016 the 22 applicants and four other relatives applied to the Constitutional Court and asked for an interim measure for, inter alia, the curfew to be lifted. They argued that their lives were at risk, that they were unable to obtain the necessary food and other household goods and that their children were unable to go to school.
36. On 3 February 2016 the Constitutional Court rejected their request. While examining the applicants’ request the Constitutional Court apparently contacted the governor of Cizre and obtained information about the applicants’ situation. The governor apparently informed the Constitutional Court that the applicants had not contacted the authorities to ask for help. The lawyer representing the applicants informed the Constitutional Court that the reason why the applicants had not asked for help was because they did not trust the authorities. The Constitutional Court also considered that members of the Değer family were in a part of Cizre unaffected by the curfew.
37. In the light of the foregoing the Constitutional Court rejected the request for the interim measure and considered that it was open to the applicants to contact the local authorities and ask for help. In its decision the Constitutional Court also reiterated the reasoning it had adopted in a previous and comparable case (see paragraph 13 above and paragraph 48 below).
9. Kaya v. Turkey, no. 9712/16
38. After the introduction of the round-the-clock curfew in Sur on 11 December 2015, the applicant became unable to leave her home and she was cut off from the outside world. She had to live in harsh winter conditions without water, food, heating or electricity and without access to health care and other public services.
39. Her house was in the midst of heavy clashes and as a result of those clashes the applicant suffered a number of injuries. Her psychological well-being deteriorated as a result of the trauma she suffered because of her fears for her life.
40. After having lived in such circumstances for almost three months, the applicant was evacuated from her house on 2 March 2016 and taken into police custody on suspicion of membership of an outlawed organisation. After having been detained there for four days, a judge ordered her release.
C. The proceedings before the Court
41. On 29 December 2015 Mr Ömer Elçi, that is the applicant in application no. 63129/16, requested the Court, under Rule 39 of the Rules of Court, to indicate to the Turkish Government to lift the curfew imposed in Cizre and to ensure that the operations in Cizre by the security forces were either halted or were conducted in compliance with the applicable international standards.
42. On 31 December 2015 the Court requested the Government to submit the following information:
“1. What is the legal basis for the curfews?
2. Given the curfew, is the applicant able to have realistic and adequate access to health services and obtain his elementary needs such as food, water, electricity, etc.? In that connection, would his life be endangered if he were to leave his house for any emergencies or for procuring basic goods such as food and medicines?
3. In view of the number of civilian casualties reported in the areas affected by the curfew, including, in particular, the area in which the applicant lives, what measures have been and are being taken to safeguard the right to life of the residents living in those areas?”
43. On 8 January 2016 the Government submitted their reply to the above questions.
44. Between 31 December 2015 and 18 February 2016 the applicants in the remaining eight applications also requested similar interim measures from the Court under Rule 39 of the Rules of Court.
45. The applicants’ requests for interim measures were declined by the Court between 12 January and 19 February 2016. The Court decided to give priority treatment to the applications in accordance with Rule 41 of the Rules of Court and, given the apparent gravity of the situation in the region, it also informed the Government that it relied on the Government to take all reasonable steps in order to ensure that applicants in a vulnerable situation with regard to their physical integrity would be enabled to have access to necessary care if they so requested.
D. Relevant domestic law and practice
46. Article 13 of the Turkish Constitution provides as follows:
“Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality.”
47. Section 11 of the Provincial Administration Law (Law No 5442, 10 June 1949), in so far as relevant, provides as follows:
“A) Governors are the superiors of all regular or private armed forces located within their provinces. They [governors] take the necessary steps in order to prevent a crime from taking place and to maintain the public order and safety. To that end they may employ all regular and private armed forces of the State; managers and employees of such entities are obliged to swiftly comply with the governors’ orders”.
...
C) Governors have the duty to maintain and to protect the peace and safety, personal integrities, well-being of the public, enjoyment of possessions, and preventative law-enforcement within their provinces.”
48. The Constitutional Court adopted a number of decisions in relation to the requests it received for interim measures for, inter alia, the curfews to be lifted. In its first such decision, which concerned the request made by the applicant Ömer Elçi (see paragraph 13 above), the Constitutional Court stated the following in response to the applicant’s allegations that the curfews lacked a legal basis:
“Pursuant to section 11 § C of Law No. 5442, the Governor of Şırnak declared a curfew in the town of Cizre where the applicants claim they are living. The Governor’s reasoning for taking that decision was to apprehend members of the terrorist organisation and to protect the lives and property of members of the public during terrorist incidents. The declaration of the curfew by the Governor for the above-mentioned reasons, in order to maintain public order and to protect the lives and property of the public, cannot be said to be devoid of basis.”
49. In its subsequent decisions the Constitutional Court rejected the requests for interim measures and reiterated its conclusion set out in the preceding paragraph.
E. Relevant international materials
50. On 2 December 2016 the Council of Europe Commissioner for Human Rights published his Memorandum on the “Human Rights Implications of Anti-Terrorism Operations in South-Eastern Turkey” (CommDH(2016)39). The Memorandum’s conclusions and recommendations are as follows:
“5. Conclusions and recommendations
118. The Commissioner is fully aware of the extent of the terrorist threat faced by Turkey and recognises the right and duty of the Turkish state to fight against terrorism in all its forms. The Commissioner also understands the circumstances in South-Eastern Turkey, where an armed, separatist organisation, recognised as terrorist by the EU, NATO and many countries, has systematically used violence and terror in a decades-long conflict which has claimed tens of thousands of lives. Nothing in this memorandum should be considered as justifying the actions of the PKK or any other terrorist activity in South-Eastern Turkey.
119. At the same time, the response of the Turkish state, in accordance with its international obligations, must adhere to the principles of rule of law and human rights standards, which require any interference with basic human rights to be defined in law, necessary in a democratic society and strictly proportionate to the aim pursued. In this respect, Turkey has a very long record of extremely grave human rights violations recognised as such by the European Court of Human Rights, with the most severe forms of violation having occurred in South-Eastern Turkey in the 1990s. Following a period of relative peace during the so-called “solution process”, the Commissioner deeply regrets the resumption of hostilities and their rapid escalation in South-Eastern Turkey.
120. For the purposes of this memorandum, the Commissioner examined the response of the Turkish authorities to the situation in the South-East since the summer of 2015, which mainly took the form of declaration of curfews accompanied by police and/or military operations. In the light of this examination as set out in the body of this memorandum and in view of the applicable international and European standards, as well as of the tremendous restrictions on the enjoyment of core human rights that they imposed, the Commissioner considers these measures to have been neither legal, in the sense of being sufficiently foreseeable and defined in law, nor roportionate to the legitimate aim pursued by Turkey.
121. In the opinion of the Commissioner, therefore, the response the Turkish authorities developed since August 2015, characterised by the declaration of open-ended, 24-hour curfews, have caused a number of very serious human rights violations simply by virtue of having been imposed on the affected local populations. The Commissioner urges the Turkish authorities in the strongest possible terms to put an immediate end to this practice. Any future measures deployed in the region must show much higher regard to the human rights of the local civilian population when balancing them against the imperative of the fight against terrorism.
122. As regards numerous allegations of human rights violations committed by security forces, the Commissioner finds them to be extremely serious and consistent. He considers many of these allegations to be credible, given their sources and considering past patterns of human rights violations committed by Turkish security forces during anti-terrorism operations in the South-East, as well as the Turkish authorities’ efforts to reinforce the immunity of security forces from prosecution during this period. At any rate, given the fact that these allegations concern violations in areas cut off from the world during operations which were under the complete control of the authorities, it is for the Turkish authorities to prove convincingly that they are unfounded.
123. The Commissioner observes that the Turkish authorities not only have not shown any willingness to tackle the long-standing problem of impunity and to implement the recurrent recommendations of the Commissioner’s Office on this issue, but that the patterns which have led to serious human rights violations in the past remained in operation during the period in question. All evidence indicates that the authorities did neither treat with the requisite seriousness the allegations of human rights violations, nor conduct ex officio criminal investigations into lives lost during the operations in a way that would be liable to shed light on the events. The priority seems to have rather been to reassure and shield from prosecution the security forces, who have only been subjected to disciplinary sanctions for particularly egregious forms of misconduct with the exception of very few criminal cases where members of security forces were treated as suspects, while at the same time vilifying human rights NGOs and lawyers bringing these allegations. In the Commissioner’s opinion, this situation falls woefully short of Turkey’s international obligations.
124. For investigations into these allegations to be considered effective, they should have been immediate, diligent and thorough. Unfortunately, given the elapsed time since some of the operations, the fact that evidence might have been actively destroyed with heavy machinery in the affected zones, as well as the general attitude of prosecutors, it seems very improbable that any future investigation will fully satisfy the criteria for effectiveness. Turkish authorities will therefore have to contend with the fact that Turkey will be presumed to have committed many serious human rights violations, including violations of the right to life, during the period in question.
125. This situation brings home the urgency for a mentality shift in Turkey when it comes to the accountability of state agents. The Commissioner considers that impunity has been a nefarious influence throughout Turkey’s recent history, legitimising and fostering behaviour fundamentally at odds with human rights, and undermining all efforts to protect and promote them. It is true that the authorities took swift action to punish state agents suspected of involvement in the coup attempt of 15 July 2016, but the Commissioner regrets that one of the first measures taken in this connection was to give administrative, legal and criminal immunity to other state agents enforcing emergency decrees. In the opinion of the Commissioner, a crucial test for human rights in Turkey is whether the same diligence can be shown when the actions are not directed against the state but the human rights of its individual citizens.
126. The Commissioner once more urges Turkey in the strongest possible terms to finally tackle the numerous root causes of impunity in Turkey (see paragraph 83 above) and implement the recommendations he repeatedly made to Turkey for combatting it.
127. In the light of his examination set out in this memorandum, the Commissioner considers that numerous human rights of a very large population in South-Eastern Turkey have been violated in the context of the anti-terrorism operations conducted since August 2015. The priority for Turkey must therefore be to abandon the approach which has led to this situation, followed by the demonstration of a clear will to remedy its effects.
128. This requires, firstly, public recognition by the authorities of the mistakes and human rights violations committed. This must be accompanied by serious efforts to compensate moral and material damages suffered by the people concerned, be it because of the failure of the Turkish state to protect them from terrorism or the direct effect of the anti-terrorist operations themselves. The Commissioner gained the impression that the Turkish authorities do not grasp the scale of the efforts needed in this connection and the existing framework for compensation appears clearly insufficient in many respects. Regarding the approach to expropriate the local population in certain cities affected by the operations, the Commissioner thinks that such a measure would represent a double punishment for the persons affected and cannot be considered a form of redress.
129. The Commissioner wishes to stress his willingness to pursue his constructive dialogue with the Turkish authorities and to offer his assistance and support to their efforts to improve the protection and promotion of human rights in Turkey.”
51. On 13 June 2016 European Commission for Democracy Through Law (Venice Commission) published its opinion on “The Legal Framework Governing Curfews”, which had been adopted at its 107th Plenary Session (Venice, 10-11 June 2016). The report’s conclusions are as follows:
“V. Conclusions
93. The Venice Commission has taken note with concern of the developments occurring since summer 2015 in South-East Turkey, where there have been particularly violent confrontations and major losses of human lives, including a large number of civilian losses, along with considerable material damage.
94. The Commission also recognises the scale and complexity of the challenges facing the Turkish authorities given the seriousness and the number of terrorist attacks which have been carried out recently in the country. Their efforts and their commitment to combating terrorism are legitimate.
95. The Commission would like to point out, however, that although it is a state’s duty to muster all its resources to combat the terrorist threat and protect its citizens from such attacks, it is also crucial in a democratic society to strike the right balance between security needs and the exercise of rights and freedoms, showing due regard for the requirements of the rule of law.
96. Despite the seriousness of the situation they were facing, the Turkish authorities chose not to declare a state of emergency to engage in the security operations they considered necessary in the areas concerned, whereas these operations and the related measures (such as curfew) inevitably entail restrictions to rights and freedoms, which sometimes have extremely serious consequences.
97. The Venice Commission has taken note of the authorities’ choice, which they justify through their desire to protect rights and freedoms in all circumstances including in a context in which, as they themselves state, all the prerequisites to declare a state of emergency were met.
98. The Commission therefore notes that the curfews imposed since August 2015 have not been based on the constitutional and legislative framework which specifically governs the use of exceptional measures in Turkey, including curfew. To comply with this framework, any curfew measure should be associated with emergency rule, as provided for in Articles 119 to 122 of the Constitution. This would also be in keeping with the approach of the Commission, which has stressed in its work that de facto emergency powers should be avoided and it is better to declare them officially along with their accompanying lists of obligations and guarantees including the obligation to inform international organisations of any derogations from fundamental rights and the reasons for these, thus subjecting their application to the supervision of these organisations or to parliamentary debate and approval.
99. In the Venice Commission’s opinion, the Provincial Administration Law, on which decisions imposing curfews were based, and the decisions themselves do not meet the requirements of legality enshrined in the Constitution and resulting from Turkey’s international obligations in the area of fundamental rights, in particular under the ECHR and relevant case-law.
100. To remedy this situation, the Venice Commission invites the Turkish authorities to implement the following recommendations in particular:
- to no longer use the provisions of the Provincial Administration Law as a legal basis for declaring curfews and to ensure that the adoption of all emergency measures including curfews is carried out in compliance with the constitutional and legislative framework for exceptional measures in force in Turkey, showing due regard for the relevant international standards and complying with national rules and international obligations with regard to the protection of fundamental rights;
- to review the legal framework on states of emergency to ensure that all exceptional decisions and measures such as curfew taken by the authorities when a state of emergency is formally declared are subject to an effective review of legality including, in particular, consideration of their necessity and proportionality;
- to introduce all the necessary amendments to the State of Emergency Law so that there is a clear description in the law of the material, procedural and temporal arrangements for the implementation of curfews, particularly the conditions and safeguards to which they must be subject (including parliamentary and judicial supervision).
101. The Venice Commission remains at the disposal of the Turkish authorities for any assistance they may require.”
COMPLAINTS
A. Ömer Elçi v. Turkey, no. 63129/15
52. Under Article 2 of the Convention the applicant complains that the security forces conducted their operations in complete disregard of the principles concerning the use of force and in doing so they endangered the lives of the civilians in Cizre. He argues that the respondent State was under an obligation to take appropriate steps to safeguard lives, and alleges that his life, like those of a number of others who had been killed in Cizre, was also put at risk.
53. The applicant complains that he and his family members were confined to their home, cut off from the outside world and lived in fear for their lives on account of the operations conducted by the security forces in his town involving the use of heavy artillery. He alleges that he and his family members were deprived of food, medication, heating, schooling for their children and access to services such as health care, electricity and water. He alleges that their suffering on account of the foregoing, coupled with the uncertainty as to when the curfew would be lifted, amounted to inhuman treatment contrary to Article 3 of the Convention.
54. The applicant alleges that the decision to impose the curfew, which was taken by a governor and not by a judicial body and which was in force indefinitely, was in breach of his right to liberty and security guaranteed in Article 5 § 1 of the Convention. In this connection the applicant argues that the wording of the legal provision relied on by the governor when imposing the curfew (see paragraph 47 above) was very vague, in contravention of Article 13 of the Constitution (see paragraph 46 above) and, in any event, did not authorise the governor to impose a curfew.
55. Under Article 8 of the Convention the applicant argues that he and his family members were confined to one room of their house in order to reduce to the greatest extent possible damage from a possible bombing by tanks. This, the applicant argues, had a negative bearing on his family and private life, contrary to Article 8 of the Convention.
56. Finally, under Article 34 of the Convention the applicant alleges that, as a result of the national authorities’ refusal to allow him to consult his legal representatives in person, he was unable to sign the application form and his legal representatives were unable to carry out their examinations in Cizre with a view to obtaining information and evidence to support his above allegations.
B. Vesek v. Turkey, no. 63138/15
57. The applicant complains under Article 2 of the Convention that his right to life was endangered on account of the heavy bombardment of his neighbourhood which forced him and his family to flee their home in life-threatening circumstances. In support of his complaint the applicant refers to the killings of tens of civilians in Cizre by members of the security forces since the beginning of the curfews.
58. Relying on Article 3 of the Convention the applicant complains that he was effectively imprisoned in his house and was unable to have access to food, medication and was deprived of services such as health care, electricity, water and heating in harsh winter conditions. He alleges that on account of the foregoing, coupled with the uncertainty as to how long the curfew would continue, his suffering amounted to inhuman treatment.
59. The applicant argues that, as a result of the curfews, he was unable to leave his house or the house to which he and his family subsequently moved and that that inability amounted to deprivation of his liberty. He complains that the decision to deprive him of his liberty was taken without the involvement of a judge, without an end in sight and therefore in breach of Article 5 of the Convention.
60. Under Article 8 of the Convention the applicant complains that he had to live with members of his extended family in a small place for a prolonged period and that that was in breach of his right to respect for his private and family life.
61. Finally, under Article 34 of the Convention the applicant complains that his inability to have access to official documents prevented him from adducing evidence to substantiate his arguments and that this was therefore in breach of the Government’s obligations under Article 34 of the Convention.
C. Eroğlu v. Turkey, no. 478/16; Görgöz v. Turkey, no. 480/16; Sultan and Süleyman Düzgün v. Turkey, no. 891/16; and Bedri and Halime Düzgün v. Turkey, no. 901/16
62. The applicants complain that the security operations in their home town of Sur were conducted without having regard to civilians living there and endangered their right to life, in breach of Article 2 of the Convention. They feared that they could have lost their lives like a number of their fellow residents in Sur and argue that Article 2 of the Convention obliged the responding State to take steps to protect the lives of the people living within their jurisdiction.
63. The applicants allege that their imprisonment in their houses in harsh winter conditions, cut off from the world and without water, electricity, health care and without access to other public services and being forced to live in such conditions in fear for their lives for an uncertain period of time, amounted to inhuman treatment contrary to Article 3 of the Convention.
64. The applicants complain that they were effectively imprisoned in their own homes for indefinite periods of time on account of the decision of a governor and that their right to liberty and security within the meaning of Article 5 of the Convention was thus breached.
65. Under Article 8 of the Convention the applicants allege that they had to live in a single room of their house because that room was in a part of the house where it was least likely to be affected during a potential bombardment. That, coupled with the destruction of their neighbourhood where they had lived all their lives, breached their right to respect for their private and family lives.
66. The applicants complain that their children were denied the right to education within the meaning of Article 2 of Protocol No. 1 to the Convention because they were unable to go to school due to the curfew and because their schools were in any event damaged and could not be used.
67. Finally, the applicants complain that the nature and the duration of the curfews, which in any event were illegal and breached their rights, was also in contravention of Articles 17 and 18 of the Convention.
D. Çağlak v. Turkey, no. 2200/16
68. The applicant complains that the security operations in Sur were conducted without having regard to civilians living there and endangered her right to life, in breach of Article 2 of the Convention. She feared that she could have lost her life like a number of her fellow residents in Sur and argues that Article 2 of the Convention obliged the responding State to take steps to protect the lives of the people living within their jurisdiction.
69. The applicant alleges that her imprisonment in her house in harsh winter conditions, cut off from the world and without water, electricity, health care and other public services and being forced to live in such conditions in fear for her life for an uncertain period of time, amounted to inhuman treatment contrary to Article 3 of the Convention.
70. The applicant complains that she was effectively imprisoned in her own home for an uncertain period of time on account of the decision of a governor and that her right to liberty and security within the meaning of Article 5 of the Convention was thus breached.
71. Under Article 8 of the Convention the applicant alleges that she and her family members had to live in a single room of their house because that room was in a part of the house where it was least likely to be affected during a potential bombardment. That meant that she was unable to live in and enjoy her own home in a way that she normally would have done, and it thus breached her right to respect for her private and family life.
E. Dağlı and Others v. Turkey, 6990/16
72. Relying on Article 2 of the Convention the applicants argue that their right to life was endangered on account of the respondent State’s failure to take steps to protect their lives.
73. They complain that the fear and trauma they suffered as a result of having been forced to live through the military operations, explosions and ricocheting bullets for a prolonged period of time amounted to ill-treatment within the meaning of Article 3 of the Convention.
74. Finally, the applicants complain that having been effectively imprisoned in their own homes for long periods breached their right to liberty and security guaranteed in Article 5 of the Convention. In this connection they argue that a curfew was a serious measure which could only be imposed in case of a state of emergency or under the Martial Law; imposing a curfew on the basis of Law No. 5442 (see paragraph 47 above) by a governor was not only in breach of the Constitution but also of Article 17 of the Convention.
75. In support of the foregoing allegations and complaints the applicants emphasise that the respondent State did not seek to derogate from its obligations under the Convention by virtue of Article 15 of the Convention.
F. Kaya v. Turkey, no. 9712/16
76. The applicant alleges that during her stay in her house between 11 December 2015 and 2 March 2016 she was unable to have water, food, electricity or heating and unable to leave her house. She complains that her suffering amounted to ill-treatment within the meaning of Article 3 of the Convention.
77. She also complains that her de facto imprisonment in her own house on the basis of a decision which lacked a legal basis and in fear of her life was in breach of her rights under Article 5 of the Convention.
78. Under Article 2 of Protocol No. 4 to the Convention she complains that her right to liberty of movement was breached on account of her inability to leave her house for three months.
79. Finally, she argues that the imposition of the curfew on the basis of a decision which lacked a legal basis and the actions of the respondent State rendered her the Convention rights null and void and breached Article 15 of the Convention.
THE LAW
A. Joinder of the applications
80. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.
B. Complaints under Article 2 of the Convention
81. With the exception of the applicant in application no. 9712/16, the applicants complain that the security operations in Sur and Cizre were conducted without having regard to civilians living there and endangered their right to life, in breach of Article 2 of the Convention.
82. The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the applications to the respondent Government.
C. Complaints under Articles 3 and 8 of the Convention
83. The applicants in all applications alleged that the cumulative effects of their confinements to their homes in harsh winter conditions, cut off from the world and without water, electricity, health care and without access to other public services and being forced to live in such conditions in fear for their lives for an uncertain period of time, had amounted to inhuman treatment contrary to Article 3 of the Convention.
84. Finally, with the exception of the applicants in application nos. 6990/16 and 9712/16, the applicants complained that their confinement to their homes had been in breach of their rights under Article 8 of the Convention.
85. The Court observes that the rule of exhaustion of domestic remedies stipulated in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV).
86. Having regard to the nature of the applicants’ complaints and the circumstances giving rise to those complaints, the Court considers that compensation proceedings, a remedy that the Turkish legal system affords and which could lead both to the establishment of any liability on the part of the authorities in respect of the applicants’ complaints and to the payment of damages, is a relevant and effective remedy in respect of these complaints. The Court observes, however, that the applicants have not made use of the possibility of bringing any such proceedings in respect of these complaints.
87. In light of the foregoing, the Court concludes that the complaints under Article 3 and 8 of the Convention must be rejected under Article 35 §§ 1 and 4 of the Convention on account of the applicants’ failure to exhaust domestic remedies.
D. Complaints under Article 5 of the Convention
88. The applicants complain that they were effectively imprisoned in their own homes for indefinite periods of time on account of the decisions of the local governors and without an adequate legal basis and that their right to liberty and security within the meaning of Article 5 of the Convention was thus breached.
89. The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
E. Remaining complaints
90. As set out above, some of the applicants complained that the curfews and the measures taken during the curfews had also been in breach of their rights under Articles 17, 18 and 34 of the Convention, Article 2 of Protocol No. 1 to the Convention and Article 2 of Protocol No. 4 to the Convention.
91. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
92. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to adjourn the examination of the complaints under Articles 2 and 5 of the Convention;
Declares the remainder of the applications inadmissible.
Done in English and notified in writing on 15 December 2016.
Hasan BakırcıJulia Laffranque
Deputy RegistrarPresident
Appendix
List of the Applicants:
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Represented by
63129/15
29/12/2015
Ömer ELÇİ
03/02/1951
Şırnak
Erkan ŞENSES
63138/15
12/01/2016
Ahmet VESEK
01/01/1949
Şırnak
Veysel VESEK
478/16
12/01/2016
Kasim EROĞLU
10/08/1981
Diyarbakır
Meral EROĞLU
20/09/1984
Diyarbakır
Murat GÜZEL
480/16
12/01/2016
Latife GÖRGÖZ
01/03/1966
Diyarbakır
Yeşim GÖRGÖZ
17/05/2001
Diyarbakır
Murat GÜZEL
891/16
12/01/2016
Sultan DÜZGÜN
26/03/1987
Diyarbakır
Süleyman DÜZGÜN
06/05/1983
Diyarbakır
Murat GÜZEL
901/16
12/01/2016
Bedri DÜZGÜN
01/04/1939
Diyarbakır
Halime DÜZGÜN
01/01/1950
Diyarbakır
Murat GÜZEL
2200/16
08/01/2016
Meliha ÇAĞLAK
20/05/1960
Diyarbakır
Cemile TURHALLI BALSAK
6990/16
03/02/2016
Mehmet Senan DAĞLI
01/09/1967
Şırnak
Melahat DAĞLI
02/06/1971
Şırnak
Muhammed DAĞLI
26/03/2002
Şırnak
Narin ZEREN
10/11/1988
Şırnak
Mehmet Şirin ZEREN
05/02/1959
Şırnak
Gurbet ZEREN
01/01/1960
Şırnak
Zeynep ZEREN
16/08/1999
Şırnak
Mehmet ZEREN
20/03/1986
Şırnak
Mehmet Selim DEĞER
01/02/1970
Şırnak
Emin KIRMIZIGÜL
01/01/1959
Şırnak
Vecihe DEĞER
01/03/1964
Şırnak
Medine KIRMIZIGÜL
13/11/1971
Şırnak
Elif DEĞER
07/09/1993
Şırnak
Cemile DEĞER
10/08/1998
Şırnak
Suzan KIRMIZIGÜL
27/08/1996
Şırnak
Dijvar DEĞER
24/07/2006
Cizre
Zilan KIRMIZIGÜL
13/04/1998
Şırnak
Renas DEĞER
12/02/2003
Cizre
Jiyan KIRMIZIGÜL
23/11/1999
Cizre
İsmail KIRMIZIGÜL
25/03/2001
Şırnak
Helin KIRMIZIGÜL
02/01/2004
Şırnak
Abdullah KIRMIZIGÜL
21/12/2005
Şırnak
Öztürk TÜRKDOĞAN
9712/16
18/02/2016
Fatma KAYA
13/04/1960
Diyarbakır
Mahmut ÇİFTÇİ
Full & Egal Universal Law Academy