SECOND SECTION
DECISION
Application no. 63133/15
İrfan UYSAL against Turkey
and 4 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 interim measure indicated to the respondent Government in application no. 4817/16 under Rule 39 of the Rules of Court on 21 January 2016 and the decision to lift that interim measure on 1 February 2016,
Having regard to the information submitted by the respondent Government on 28 January 2016 in application no. 4817/16,
Having regard to the decisions to grant priority to the applications nos. 4817/16 and 5332/16 under Rule 41 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants, all of whom are Turkish nationals, is set out in the appendix.
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 town of Cizre where the events giving rise to the present applications took place in the course of 24-hour curfews that were imposed on 14 December 2015. 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. The applicants allege that hundreds of civilians have been killed in areas under curfew, including Cizre. In support of their allegations the applicants relied on a number of reports prepared by non-governmental organisations which detail the numbers and circumstances of the killings.
B. The circumstances of the cases and the proceedings before the Court
4. 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. Uysal v. Turkey, no. 63133/15
5. The applicant lives in Cizre and works for the local town council where he is responsible for waterworks. On 18 December 2015 – that is four days after the imposition of the curfew in Cizre – while the applicant was working to fix a burst water-pipe in an area under curfew, he was shot in the arm by soldiers. He claims that, as per usual practice he and his colleagues had given prior notice to the security forces about exactly where they would be working at that particular time but this had not stopped them from firing at him. After he was shot the applicant and his colleagues unsuccessfully tried to call for an ambulance but were not able to do so.
6. The applicant’s colleagues subsequently managed to take the applicant to hospital in a vehicle. On the way to hospital they were stopped by police officers a number of times but were subsequently allowed to proceed. On arrival at the hospital the doctors started treating him. However, while he was being treated the doctors abandoned him, under orders from police officers, to tend to injured police officers instead. When the doctors finally turned their attention to him it was too late to save his arm which had to be amputated to avoid the risk of gangrene. On account of the curfew, after he was discharged from the hospital on 26 December 2015 the applicant was unable to return to his house in Cizre where his wife and baby –who had been born two days before the incident– are living.
7. In the meantime, on 22 December 2015 the applicant made an official complaint to the Cizre prosecutor against the law enforcement officers who shot him. Furthermore, on 25 December 2015 the applicant made an individual application to the Constitutional Court and asked for an interim measure for the curfew imposed in his home town of Cizre to be lifted and for the respondent Government to be urged to ensure that their authorities, including the security forces, act in compliance with the Convention.
8. His application was rejected by the Constitutional Court on 26 December 2015. While examining his complaints the Constitutional Court contacted the district Governor who informed the Constitutional Court that there had been no delays in the treatment of the applicant and that he had made no requests to be transferred to another hospital. In light of the information given to it by the Governor, the Constitutional Court rejected the applicant’s request for an interim measure on the ground, inter alia, that he was no longer in an area under curfew and that there was therefore no ground or danger which necessitated the granting of an interim measure.
9. The applicant applied to the Court on 30 December 2015 and requested a similar interim measure. On 31 December 2015 the Court rejected the request.
10. The applicant subsequently submitted an application form to the Court and maintained his complaints.
2. Adem Tunç v. Turkey, no. 4552/16
11. On 18 January 2016 a bomb exploded in Cizre in the vicinity of a house where a funeral was being held. At midday the same day the applicant’s father Ahmet Tunç left his house to go to the area to assist the people injured in the explosion.
12. When nothing was heard from his father the applicant applied to the Court on 20 January 2016 and requested an interim measure under Rule 39 of the Rules of Court. He asked the Court to indicate to the respondent Government to protect his father’s life and physical integrity.
13. On 20 January 2016 Mr Faysal Sarıyıldız – an MP for Şırnak within whose administrative jurisdiction Cizre is located – and approximately 30 other persons went to the Cudi neighbourhood of Cizre to retrieve a number of injured persons and the bodies of deceased persons. Once in the Cudi neighbourhood the group found and retrieved the bodies of a number of persons, including that of the applicant’s father, and those of Serhat Altun and Mehmet Kaplan (applications lodged in respect of those deceased persons are currently pending before the Court; see Cemil Altun v. Turkey, no. 4353/16 and Abdullah Kaplan v. Turkey, no. 4159/16).
14. In the evening of 20 January 2016 the applicant informed the Court of the finding of his father’s body. On 21 January 2016 the Court rejected the request for interim measure.
15. A post-mortem examination was carried out on the body and on 23 January 2016 it was handed over to the family for burial. According to the report of the post-mortem examination, the applicant’s father had been shot with a single bullet which caused an internal bleeding.
16. The applicant subsequently submitted an application form to the Court and maintained his allegations.
3. Sarıyıldız v. Turkey, no. 4684/16
17. The applicant is a Member of Parliament for the province of Şırnak which covers the town of Cizre where, as described above, a 24-hour curfew was imposed on 14 December 2015. During the curfew the applicant stayed in Cizre and offered his assistance to the people affected by the curfew.
18. As explained above (see paragraphs 13), on 20 January 2016 the applicant informed the Governor of Cizre of his intention to go, together with the Mayor of Cizre and approximately 30 relatives of persons who had been injured or killed in Cizre, to the Cudi neighbourhood to retrieve a number of injured persons and the bodies of deceased persons.
19. Once in the Cudi neighbourhood the group found and retrieved the bodies of a number of persons, including those of Serhat Altun, Ahmet Tunç and Mehmet Kaplan (applications lodged in respect of those deceased persons are currently pending before the Court; see Cemil Altun v. Turkey, no. 4353/16; Adem Tunç v. Turkey, no. 4552/16; and Abdullah Kaplan v. Turkey, no. 4159/16).
20. On their way back the group came under fire from armoured vehicles, during which two of the group’s members were killed and ten others, including a cameraman who was filming the incident, were injured. The surviving members of the group, including the applicant and the injured persons, took refuge in a building but the security forces started shelling that building as well. While in the building the applicant contacted his lawyer and asked that lawyer to apply to the Court. The same day the lawyer applied to the Court and requested an interim measure to to protect the life and physical integrity of the applicant and to lift the curfew.
21. This incident was criticised by the United Nations’ High Commissioner for Human Rights in his report of 1 February 2016. The UN High Commissioner Zeid Ra’ad Al Hussein “urged the Turkish authorities to respect the fundamental rights of civilians in its security operations and to promptly investigate the alleged shooting of a group of unarmed people in the south-eastern town of Cizre, after shocking video footage of the event emerged last week.”
22. In the evening of 20 January 2016, after having spent there approximately six hours, the applicant and other members of the group were taken out of the building.
23. On 21 January 2016 the Court rejected the request for interim measure.
24. The applicant subsequently submitted an application form and maintained his allegations.
4. Öncü v. Turkey, no. 4817/16
25. The applicant is a university student who went to Cizre, together with 40-50 other students, before the curfew was imposed on 14 December 2015, in order to offer their support to the local residents. When the curfew was imposed on 14 December 2015 they became unable to leave the town.
26. In the evening of 20 January 2016 the applicant was shot in the chest by members of the security forces and injured. Although the local people and MP Faysal Sarıyıldız called the emergency services a number of times and asked for an ambulance to be sent to take the applicant to hospital, they were told that no ambulances could be allowed to go into the street where the applicant was because of security concerns. The emergency services informed the callers that if they took the applicant to Dörtyol – a location some one and a half kilometre away – they could pick her up from there. There were, however, no persons in the vicinity who could carry her to that location. In similar incidents in the past, civilians taking injured persons to ambulances had all been shot at and as a result people were scared to offer her any assistance.
27. MP Sarıyıldız contacted the Cizre Governor and urged the Governor on a number of occasions to help, but his efforts did not yield any results.
28. On 21 January 2016 the applicant applied to the Court and requested an interim measure to enable her immediate access to medical institutions with a view to protecting her right to life and physical integrity.
29. The same day the Court accepted the request and indicated to the Turkish Government, under Rule 39 of the Rules of Court, to take all measures within their powers to protect her life and physical integrity. The Court also requested the parties to provide information concerning the applicant’s current circumstances, state of health and of any further developments.
30. On 28 January 2016 the Government submitted information and comments regarding the applicant’s allegations and the interim measure.
31. On 22 January 2016 the applicant’s legal representative informed the Court that by 6.30 p.m. on 21 January 2016 the applicant had still not been taken to hospital despite the indication of the interim measure. He added that three female health workers who had tried to take the applicant to hospital were fired upon but that they survived without any injuries. In his same letter the legal representative also informed the Court that at 8 p.m. on 21 January 2016 the applicant had finally been taken to hospital, operated for internal bleeding and placed in intensive care.
32. On 1 February 2016 the Court decided to lift the interim measure indicated on 21 January 2016.
33. On 11 February 2016 the applicant was arrested by police officers while still in the hospital. The same day a prosecutor questioned her and subsequently asked a judge to order her detention on remand pending introduction of criminal proceedings against her for membership of an outlawed organisation. The judge ordered her release on bail.
34. The applicant is currently living with her family and her medical treatment for her injuries is still continuing. She subsequently submitted an application form to the Court and maintained her allegations.
5. Geçim v. Turkey, no. 5332/16
35. The applicant lives in Cizre. At 3 a.m. on 20 January 2016 the applicant’s 15 year-old son, together with a 10-year-old cousin, went to his aunt’s house to check whether his aunt and her family members were alive. The cousin came back but nothing was heard from the applicant’s son.
36. Although the applicant informed the authorities about the disappearance of his son on a number of occasions and asked for help, he did not receive any information about his son’s fate.
37. On 25 January 2016 the applicant applied to the Court and claimed that nothing had been heard from his son since 3 a.m. on 20 January 2016 and asked for an interim measure to protect his son’s life and physical integrity. In support of his request the applicant argued that, as happened to a large number of people in the area, his son could have been injured and waiting for help and that his life was thus in danger.
38. On 26 January 2016 the Court rejected the request. The same day the Court decided to give priority treatment to the application in accordance with Rule 41 of the Rules of Court and it also gave notice of the application to the Government in accordance with Rule 40 of the Rules of Court.
39. The applicant subsequently submitted an application form and maintained his allegations.
C. Arrest and detention of the legal representative of the applicants in application no. 9414/16
40. In the early hours of 16 March 2016 the applicants’ legal representative Mr Ramazan Demir’s house in Istanbul was raided by officers from the counter-terrorism department of the police and he was taken into custody.
41. In the evening of 17 March 2016 a prosecutor wanted to question him at the police station. Mr Demir refused to answer the prosecutor’s questions, stating that according to the applicable procedure he could only be questioned at a court house and not at a police station.
42. During the questioning the prosecutor asked Mr Demir questions such as whether he had ever been imprisoned for a PKK-related offence; whether he had any relatives who had links to the PKK or who were in prison for PKK-related activities; whether he visited any relatives or any of his clients in prison; whether he was a member of any association; whether he uses social media; and details of all telephone lines he has had.
43. Mr Demir did not answer any of the questions. In the same statement the prosecutor also accused Mr Demir of the following: “... it is considered that [Mr Demir] will be meeting and conducting interviews with a person, whom he named as Delegasyon, as part of his propaganda and agitation activities and as part of his activities to weaken our country inside and at the international arena by making allegations of torture and alleging violations of human rights.”
44. After his above-mentioned questioning Mr Demir continued to be detained at the police station until he was brought before a judge on 19 March 2016 and his release on bail was ordered by that judge. When questioned by the judge Mr Demir and the lawyers representing him referred to the above-mentioned accusation made by the prosecutor and argued that the real reason for his arrest was to prevent him from representing applicants before the European Court of Human Rights in cases concerning the curfews. They alleged that doing so was in breach of Article 34 of the Convention.
45. After his release the prosecutor objected to Mr Demir’s release and an arrest warrant was issued for Mr Demir on 22 March 2016.
46. On 6 April 2016 Mr Demir went to the courthouse and informed the judge that the reason why he had not surrendered immediately after the arrest warrant had been issued on 22 March 2016 was because he had had to complete a number of application forms and submit them to the Court as he owed a duty to his clients to do so. The judge ordered his detention in a prison, pending the introduction of criminal proceedings against him.
47. On 20 April 2016 Mr Demir authorised his legal representative Ms Ayşe Demir-Bingöl to act on his behalf before the Court regarding a total of 16 applications - including the present ones. Mr Demir was released from the prison on bail on 7 September 2016.
D. Relevant domestic law
48. 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.”
E. Relevant international materials
49. 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.”
50. The United Nations High Commissioner for Human Rights stated the following on 10 May 2016:
“UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein said Tuesday that he had received a succession of alarming reports about violations allegedly committed by Turkish military and security forces in south-east Turkey over the past few months, and urged the Turkish authorities to give independent investigators, including UN staff, unimpeded access to the area to verify the veracity of such reports.
“More and more information has been emerging from a variety of credible sources about the actions of security forces in the town of Cizre during the extended curfew there from mid-December until early March,” Zeid said. “And the picture that is emerging, although still sketchy, is extremely alarming.”
“I strongly condemn violence and other unlawful acts committed by the youth groups and other non-state agents, allegedly affiliated with the PKK, in Cizre and other areas, and I regret any loss of life as a result of terrorist acts wherever they have occurred,” Zeid said. “However, while Turkey has a duty to protect its population from acts of violence, it is essential that the authorities respect human rights at all times while undertaking security or counter-terrorism operations – and international law prohibiting torture, extrajudicial killings, disproportionate use of lethal force and arbitrary detention must be observed.”
The High Commissioner said he had received reports of unarmed civilians – including women and children – being deliberately shot by snipers, or by gunfire from tanks and other military vehicles.
“There also appears to have been massive, and seemingly highly disproportionate, destruction of property and key communal infrastructure – including buildings hit by mortar or shellfire, and damage inflicted on the contents of individual apartments and houses taken over by security forces,” he said. “There are also allegations of arbitrary arrests, and of torture and other forms of ill-treatment, as well as reports that in some situations ambulances and medical staff were prevented from reaching the wounded. On top of all this, there has been huge displacement triggered by the curfews and by subsequent fighting, shelling, killings and arrests in many places in the south-east.”
“Most disturbing of all,” the High Commissioner said, “are the reports quoting witnesses and relatives in Cizre which suggest that more than 100 people were burned to death as they sheltered in three different basements that had been surrounded by security forces.”
“All these allegations, including those levelled at the groups fighting against the security forces, are extremely serious and should be thoroughly investigated, but do not appear to have been so far,” Zeid said. “The Turkish Government has not responded positively to requests by my Office and other parts of the United Nations to visit the region to collect information first-hand.”
The UN Human Rights Chief noted that more information has emerged from Cizre compared to other districts, towns and villages in the south-east – including Silopi, Nusaybin and the Sur district of Diyarbakır, the main city in the region – which were sealed off for weeks on end, and are still next to impossible to access, because of the heavy security presence.
“In 2016, to have such a lack of information about what is happening in such a large and geographically accessible area is both extraordinary and deeply worrying,” Zeid said. “This black-out simply fuels suspicions about what has been going on. I therefore renew my call for access for UN staff and other impartial observers and investigators, including civil society organizations and journalists.”
Noting alarm bells rung by other international human rights entities in recent weeks,* Zeid called for a prompt investigation and prosecution of all those suspected of being involved in violations of the right to life, including extrajudicial killings and disproportional use of lethal force, and stressed that the judiciary should act independently from all other branches of the State, including the military and the Executive. He also called on the Turkish authorities to allow the return of all those who have been forcibly displaced, and urged them to ensure that, in future, curfews are limited to the minimum duration necessary and with due concern for human rights obligations and humanitarian considerations.
The High Commissioner noted Turkey’s continued engagement with UN human rights bodies, including the recent visit of UN Working Group on Enforced or Involuntary Disappearances; the recent review of the country’s record by the UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families; and the ongoing review by the UN Committee against Torture which will issue its concluding observations on Friday 13 May.
* On 14 April, the Council of Europe’s Commissioner for Human Rights stated that “respect for human rights has deteriorated at an alarming speed in recent months in the context of Turkey’s fight against terrorism;” and the UN Working Group on Enforced or Involuntary Disappearances, which visited Turkey from 14-18 March, stated its concern “at the increasingly worrisome situation in the South-East of the country and its wide impact on human rights.” The Working Group also stressed “the need to undertake a thorough and impartial investigation into all allegations of human rights violations in the context of the current security operations, including of families not being able to have access to the bodies of their killed loved ones or of bodies being disposed of.
...”
COMPLAINTS
A. Uysal v. Turkey, no. 63133/15
51. The applicant complains under Article 2 of the Convention that the soldiers shot him with the intention to kill him and that they thus endangered his right to life. Moreover, no investigation was conducted into the shooting even though he had made an official complaint to the prosecutor. He also alleges that the Constitutional Court did not carry out an adequate examination of his complaints under this provision.
52. Relying on Article 3 of the Convention the applicant alleges that the respondent State failed to satisfy even the minimum needs of the persons in curfew areas, including those of his family.
53. Under Article 5 of the Convention the applicant complains that the curfew lacked a legal basis and violated his, his wife’s and his baby’s right to liberty and security.
54. Finally, the applicant complains that the Government, by arresting and detaining his legal representative, acted in breach of their obligations under Article 34 of the Convention.
B. Adem Tunç v. Turkey, no. 4552/16
55. Relying on Article 2 of the Convention the applicant alleges that his father was shot by members of the security forces and lost his life when he was not provided with any medical assistance for his injury. He also alleges that those who tried to offer his father assistance were prevented from doing so by the security forces. Under the same provision the applicant also complains that no investigation was opened into the killing.
56. The applicant complains that his suffering on account of the circumstances in which his father lost his life and his and his family members’ inability to retrieve his father’s body for a long time amounted to ill-treatment within the meaning of Article 3 of the Convention.
57. Relying on Article 5 of the Convention the applicant complains that the curfew was implemented so strictly that it had not been possible to retrieve the body of his father from the street for a long time.
58. Finally, the applicant complains that the Government, by arresting and detaining his legal representative, acted in breach of their obligations under Article 34 of the Convention.
C. Sarıyıldız v. Turkey, no. 4684/16
59. Relying on Article 2 of the Convention the applicant alleges that his life was endangered on account of the fire opened on the group and the constant shelling of the building in which he and the remaining members of the group subsequently took refuge. He also alleges under the same provision that no steps were taken by the prosecutors to investigate the incident.
60. Relying on Articles 3 and 5 of the Convention the applicant complains that the curfew was executed so strictly that he and other members of the group did not have the possibility to leave the building and that their suffering while waiting in the building – in the presence of injured and deceased persons – to be rescued amounted to ill-treatment.
61. Finally, the applicant complains that the Government, by arresting and detaining his legal representative, acted in breach of their obligations under Article 34 of the Convention.
D. Öncü v. Turkey, no. 4817/16
62. Under Article 2 of the Convention the applicant alleges that she was shot by members of the security forces and that the national authorities failed to offer her medical assistance even after the indication of the interim measure by the Court. She alleges that her survival could only be described as fortuitous and that the only reason why she was taken to hospital was the indication of the interim measure. Under the same provision she also complains that no investigation was opened into the shooting.
63. The applicant complains that her suffering while waiting for medical help amounted to ill-treatment within the meaning of Article 3 of the Convention.
64. The applicant also argues that the curfew was executed very strictly and in breach of Article 5 of the Convention.
65. Finally, the applicant complains that the Government, by arresting and detaining her legal representative, acted in breach of their obligations under Article 34 of the Convention.
E. Geçim v. Turkey, no. 5332/16
66. The applicant complains under Article 2 of the Convention that his son disappeared in life-threatening circumstances in an area where hundreds of people had been killed unlawfully. It was likely that his son was shot and killed. He alleges that the investigating authorities did not take any steps to find his son or to investigate his son’s disappearance.
67. Under Article 3 of the Convention the applicant argues that his suffering on account of his inability to go out and look for his son and his helplessness to find out what happened to his son amounted to ill-treatment.
68. Under Article 5 of the Convention the applicant complains that he was deprived of his right to liberty on account of the curfew because he was unable to leave his house for months. He alleges that the curfew was unlawful and applied so strictly that he was even unable to go out and look for his son.
69. Finally, the applicant complains that the Government, by arresting and detaining his legal representative, acted in breach of their obligations under Article 34 of the Convention.
THE LAW
A. Joinder of the applications
70. 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
71. The applicant in application no. 4552/16 alleges that his father was shot by members of the security forces and lost his life when he was not provided with any medical assistance. He also argues that no investigation was carried out into the killing of his father.
72. The applicant in application no. 5332/16 complains that his son disappeared in life threatening circumstances and that the authorities who were informed about the disappearance did not take any steps to investigate his disappearance.
73. The applicant in application no. 4684/16 complains that his life was endangered on account of the fire opened on the group and the constant shelling of the building in which he and the remaining members of the group subsequently took refuge. He also alleges under the same provision that no steps were taken by the prosecutors to investigate the incident.
74. The applicants in the remaining two applications complain that their lives were endangered on account of the actions of the security force members who opened fire on them and injured them. Under the same provision they also complain that no investigations were conducted into the attacks.
75. 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 Article 3 of the Convention
76. The applicant in application no. 63133/15 complains that the respondent State failed to satisfy even the minimum needs of the persons in curfew areas, including those of his family.
77. The applicant in application no. 4552/16 complains that his suffering on account of the circumstances in which his father lost his life and his and his family members’ inability to retrieve his father’s body for a long time amounted to ill-treatment.
78. The applicant in application no. 4684/16 complains that his suffering while waiting in the building – in the presence of injured and deceased persons – to be rescued amounted to ill-treatment.
79. The applicant in application no. 4817/16 complains that her suffering while waiting for medical help amounted to ill-treatment within the meaning of Article 3 of the Convention.
80. 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).
81. Having regard to the nature of the above-mentioned 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 these applicants have not made use of the possibility of bringing any such proceedings in respect of their complaints under this provision.
82. In light of the foregoing, the Court concludes that the complaints made under Article 3 of the Convention by these four applicants must be rejected under Article 35 §§ 1 and 4 of the Convention on account of their failure to exhaust domestic remedies.
83. The applicant in application no. 5332/16 complains that his suffering on account of his inability to go out and look for his son and his helplessness to find out what happened to his son amounted to ill-treatment.
84. The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.
D. Complaints under Article 5 of the Convention
85. The applicant in application no. 63133/15 complains the curfew lacked a legal basis and violated his, his wife’s and his baby’s right to liberty and security.
86. The applicant in application no. 4552/16 complains that the curfew was implemented so strictly that it had not been possible to retrieve the body of his father from the street for a long time.
87. The applicant in application no. 4684/16 complains that the curfew was executed so strictly that he and other members of the group did not have the possibility to leave the building which was being shelled by the security forces.
88. The applicant in application no. 4817/16 argues that the curfew was executed very strictly and in breach of Article 5 of the Convention.
89. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that these applicants failed to substantiate their allegations that they had been deprived of their liberty and there is therefore no appearance of a violation of the provision invoked. It follows that this part of the applications must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
90. The applicant in application no. 5332/16 complains that he was deprived of his right to liberty on account of the curfew because he was unable to leave his house for months. He alleges that the curfew was unlawful and applied so strictly that he was even unable to go out and look for his son.
91. The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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. Complaints under Article 34 of the Convention
92. Finally, the applicants complain that the Government, by arresting and detaining their legal representative, acted in breach of their obligations under Article 34 of the Convention.
93. The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to adjourn the examination of the complaints made by the applicants under Articles 2 and 34 of the Convention and the complaints made by the applicant in application no. 5332/16 under Articles 3 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
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Represented by
63133/15
29/12/2015
İrfan UYSAL
20/10/1986
Cizre
Ramazan DEMİR
4552/16
20/01/2016
Adem TUNÇ
19/01/1990
Şırnak
Ramazan DEMİR
4684/16
20/01/2016
Faysal SARIYILDIZ
10/04/1975
Ankara
Ramazan DEMİR
4817/16
21/01/2016
Helin ÖNCÜ
19/02/1995
Mardin
Ramazan DEMİR
5332/16
25/01/2016
Mehmet GEÇİM
05/01/1959
Şırnak
Ramazan DEMİR
Full & Egal Universal Law Academy