YAVUZEL A OSTATNÍ proti Turecku

SECOND SECTION

DECISION

Application no. 5317/16
Halil YAVUZEL and Others against Turkey
and 2 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 23 January 2016 and 26 January 2016 respectively,

Having regard to the decision 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 29 January, 2 February and 26 February 2016,

Having deliberated, decides as follows:

THE FACTS

1. The application no. 5317/16 was introduced by Mehmet Yavuzel, Ruhat Aktaş, Sercan Uğur, Murat Aslan, Muharrem Erbek, Azat Yılmaz, Abdullah Zileyaz, Feride Yıldız, İslam Balıkesir, Faik Özkan, Mehmet Tunç, Asiye Yüksel and Mahmuttin Duymak.

2. The application no. 5628/16 was introduced by Sultan Irmak.

3. They were represented by Mr Ramazan Demir, a lawyer practising in Istanbul.

4. Following their demise in February 2016, Mehmet Yavuzel’s father Halil Yavuzel; Ruhat Aktaş’s father Ferit Aktaş; Muharrem Erbek’s father Mehmet Salih Erbek; Feride Yıldız’s father İzzettin Yıldız; İslam Balıkesir’s brother Rahmi Balıkesir; Asiye Yüksel’s brother Selahattin Ürün, Mahmuttin Duymak’s son Fırat Duymak; and Sultan Irmak’s brother Hanifi Irmak expressed their intention to pursue the applications on behalf of their deceased relatives and submitted their application forms.

5. The complaints made in application no. 5317/16 by the remaining deceased persons, namely Sercan Uğur, Murat Aslan, Azat Yılmaz, Abdullah Zileyaz, Faik Özkan and Mehmet Tunç, were registered as a separate application (Ahmet Tunç v. Turkey, no. 39419/16). The deceased Mehmet Tunç’s father Ahmet Tunç subsequently expressed his intention to pursue the application on behalf of his deceased son and submitted an application form. The applicants’ legal representative informed the Court that the families of the remaining deceased persons, namely Sercan Uğur, Murat Aslan, Azat Yılmaz, Abdullah Zileyaz and Faik Özkan, had to move away from their addresses as a result of the pressure exerted on them by the security forces and that the legal representative had been unable to contact them.

6. Halil Yavuzel, Ferit Aktaş, Mehmet Salih Erbek, İzzettin Yıldız, Rahmi Balıkesir, Selahattin Ürün, Fırat Duymak, Hanifi Irmak and Ahmet Tunç, who were born in 1964, 1969, 1963, 1948, 1976, 1981, 1997, 1974 and 1943 respectively, will be referred to as the applicants. They are Turkish nationals and are represented before the Court by Mr Ramazan Demir.

A. The circumstances of the case

1. The applicants

7. The facts of the case, as submitted by the applicants and their deceased relatives and as they appear from the documents submitted by them, may be summarised as follows.

a. Background to the events giving rise to the application

8. Since August 2015 a number of curfews have been imposed in certain towns and cities in south-east Turkey by the local Governors. 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.

9. 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.

10. According to a report published by the Human Rights Foundation of Turkey on 18 March 2016, the number of civilians killed between August 2015 and 18 March 2016 in areas under curfew ‐ including Cizre ‐ 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 have not yet been identified.

11. The following was stated in an Amnesty International Briefing, entitled “Turkey: End abusive operations under indefinite curfews” (AI Index: EUR 44/3230/2016), which was published on 21 January 2016:

“Operations by police and the military in [curfew] areas have been characterised by abusive use of force, including firing heavy weaponry in residential neighbourhoods. The Turkish government must ensure that any use of firearms is human rights compliant, and doesn’t lead to the deaths and injuries of unarmed residents.

More than 150 residents have reportedly been killed as state forces have clashed with Revolutionary Patriotic Youth Movement (YDG-H), the youth wing of the Kurdistan Workers’ Party (PKK). The dead include women, young children and the elderly casting serious doubt over the government’s claims that very few of the dead were unarmed.”

b. The incident and the proceedings before the Court

12. The applicants’ relatives were shot by members of security forces and injured. On 22 January 2016 they took refuge in the basement of a building in Cizre. Although a number of calls were made to the emergency services for ambulances to be dispatched, none were sent. Moreover, members of the security forces did not allow anyone to go to the building to help the injured persons but instead shelled the building with heavy weapons.

13. The injured persons telephoned and spoke to the local Member of Parliament, Mr Faysal Sarıyıldız, who was in the area at the time. They asked the MP to help them and to make all necessary applications on their behalf. The MP spoke to the local governor on the telephone and asked for help. The governor informed the MP that he could not take the injured persons away from the area due to the ongoing military operations but if the injured persons could walk to a location some two kilometres away from their building ambulances could pick them up from there. However, it was not possible for the injured persons to do so due to the seriousness of their injuries.

14. The applicants’ lawyer Mr Ramazan Demir managed to speak to some of the injured persons and they instructed Mr Demir to make an application to the Court.

15. On 23 and 25 January 2016 Mr Demir requested the Court to indicate to the Turkish Government, under Rule 39 of the Rules of Court, that they should enable, inter alia, the injured persons’ immediate access to hospitals. In his letter of 23 January Mr Demir gave the address of the building as No. 5-7 Cafer-i Sadık Street in Cizre. In his letter of 25 January 2016 Mr Demir informed the Court that he had found out that the actual address was No. 23 Bostancı Street in Cizre and not no. 5-7 Cafer-i Sadık Street. He alleged that there were a number of other injured persons in the same basement and that a number of others had already lost their lives. As a result of the bombardment, the upper floors of the building had completely collapsed and it was a matter of time before all those in the basement were killed. Indeed, in application no. 5628/16 Sultan Irmak’s injuries were very serious and she was about to die.

16. The lawyer also informed the Court that a number of Members of Parliament from the Peoples’ Democratic Party (Halkların Demokratik Partisi; hereinafter “HDP”) had gone to the Ministry of the Interior to seek help but that no one at the Ministry had been willing to speak to them.

17. On 26 January 2016 the Court adjourned its examination of the requests under Rule 39 of the Rules of Court and sent the following letter to both parties:

“...

- [the Court] requests the Government as soon as possible and in any event before midday on 29 January 2016 to clarify the procedural steps to be followed by those who seek interim measures from the Constitutional Court, in particular where time is of the essence;

- it encourages the applicants immediately to seek interim measures from the Constitutional Court, noting, in line with the principle of subsidiarity, that domestic courts should be better placed to deal with such emergencies and have the power and opportunity to contact directly the relevant national and local authorities in order to provide redress to persons whose lives are real and immediate risk of harm;

- it requests the parties to provide information about any developments on the situation, in particular the applicants’ progress in any domestic proceedings or concerning the health or other status of the applicants;

- in the meantime, it urges the Government to take appropriate measures necessary to protect the lives and physical integrities of the applicants;

- it will keep the request under review in light of the information from the parties.

...”

18. The same day the applicants’ legal representative made an application to the Constitutional Court by fax and sought an interim measure from that court. The following morning the application form was handed in to the Constitutional Court in person.

19. On 29 January 2016 the Court was informed of the rejection that day by the Constitutional Court of the applicants’ request for interim measure (a summary translation of the Constitutional Court’s decision can be consulted in “Relevant domestic law and practice” below).

20. On 1 February 2016 the applicants’ legal representative informed the Court of the death of Sultan Irmak on 30 January 2016 (application no. 5628/16). According to the information provided to the Court subsequently, her body was given to the family on 11 February 2016 and was subsequently buried.

21. In his letter of 1 February 2016 the lawyer also informed the Court that a Crisis and Coordination Desk (hereinafter the “Crisis Desk”) had been set up jointly by the Prime Minister’s Office, the Ministry of the Interior and the Ministry of Health. On 30 January 2016 the Crisis Desk had issued the necessary authorisation for the ambulances and paramedics waiting at the Cizre Town Hall to go and pick up the applicants’ injured relatives and at 9.30 a.m. the ambulances had started making their way to the building. After the ambulances had driven as close to the building as possible and when they were at a distance of some 150-200 metres away from it, the Crisis Desk had informed a group of MPs from the HDP that within the next 15 minutes they would issue an authorisation for the injured persons to leave the basement so that they would be picked up by the waiting ambulances. The HDP MPs had then established telephone contact with the injured relatives and had stayed on the line for approximately thirty minutes. Then they had heard loud explosions and screams coming from down the line. The injured relatives screamed and told the MPs over the telephone that the security forces had started throwing explosives into the basement. No further contact had been established with the applicants’ relatives.

22. On 2 February 2016 the Court rejected the requests made for interim measures. It considered the decision adopted by the Constitutional Court on 29 January 2016 to be relevant and potentially capable of providing interim relief for the applicants’ relatives and took note of the Constitutional Court’s willingness to monitor the applicants’ relatives’ situation. The same day the Court informed the Government that it expected that the Government will take all necessary steps within their powers to protect the right to life and physical integrity of the applicants’ relatives, regardless of their identities, and that they will comply with the decision of the Constitutional Court the effectiveness of which depended on taking prompt action by the authorities. The Court also urged the applicants’ relatives to contact the emergency services directly and invited them to provide the emergency services with accurate and relevant information about their health status and their exact location. On the same date, the Court also decided to give priority treatment to the applications in accordance with Rule 41 of the Rules of Court.

23. On 23 February 2016 applicants’ legal representative informed the Court that they had found out between 10 and 11 February 2016 that all the relatives had been killed by the security forces.

24. In the same letter the legal representative also informed the Court that a total of more than 170 corpses had been taken out of three basements in Cizre, including the one where the applicants’ relatives had taken refuge. As all those persons had been burned beyond recognition, only 25-30 corpses had been identified.

25. Subsequently, in their application forms the applicants informed the Court that the bodies of their relatives Ruhat Aktaş, Muharrem Erbek, Sultan Irmak and Muhittin Duymak had been formally identified. They also informed that 80 of the 170 deceased persons had still not been identified.

26. In their application forms the applicants also informed the Court that, as the buildings in question had been completely destroyed in the course of the bombardments, the rubble from the buildings had been taken to a landfill. The applicants submitted to the Court photographs of the debris in the landfill in which a number of body parts can be seen. They alleged that the rubble from the buildings had been moved with a view to destroying the evidence which incriminated the security forces. They also informed the Court that the lawyers representing the families were not allowed to take part in the autopsies.

27. The applicants submitted to the Court a report, prepared by the presidents of the Turkish Human Rights Association and the Turkish Human Rights Foundation following their visit to Cizre on 3 March 2016, that is the day after the curfew in Cizre was lifted during daytime (see paragraph 9 above). The report was drafted by Ms Şebnem Korur Fincancı, who is a professor in forensic medicine and president of the Human Rights Foundation. According to the report, Professor Korur Fincancı and a number of lawyers and NGO workers accompanying her entered one of the three buildings in question and in the basement they observed a large number of fire-damaged human bones and skulls and photographed them. The group members were told by the locals that a prosecutor had visited the building but had not entered in it on account of safety concerns.

28. The group also visited the locations of the remaining two buildings. They noted that one of those buildings had been completely destroyed and were told that the rubble and the body parts in it had been dumped in a landfill. The third building had been damaged so extensively that the group members did not deem it safe to enter.

c. Arrest and detention of the legal representative of the applicants

29. 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.

30. 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.

31. 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.

32. 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.”

33. 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.

34. After his release the prosecutor objected to Mr Demir’s release and an arrest warrant was issued for Mr Demir on 22 March 2016.

35. 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.

36. 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.

2. The Government

37. On 29 January, 2 February and 26 February 2016 the Government provided information.

B. Relevant domestic law and practice

38. The following is a summary translation of the Constitutional Court’s decision on the request for interim measure made by the applicants’ relatives (see paragraph 19 above). The decision was adopted on 29 January 2016 by a Chamber of five judges:

“The applicants requested our court to indicate an interim measure, ordering that the curfew be lifted and that their lives and physical integrities be protected.

The applicants’ lawyers were unable to obtain full identification details of the applicants, submit powers of attorneys or pay the application fee. They informed our court that they would do so subsequently. Having regard to the nature of the subject matter of the application, it was nevertheless decided to examine their request for an interim measure.

The lawyers argued that the applicants and a number of other persons whose names they did not know had been injured by the security forces and were in the basement of a house at No. 23 Bostancı Street in Cizre. They alleged that the applicants were not being taken to hospital and that the security forces had been bombing the building.

In their initial application submitted to the European Court of Human Rights (ECtHR) the applicants stated that they were in the basement of a house at No. 5-7 Cafer’i Sadık Street, Cizre and alleged that the floors above them had been demolished during the bombing, that they were unable to breath and that there were a total of 30 persons in the basement most of whom in a critical condition. Subsequently the applicants informed the ECtHR that the actual address was No. 23 Bostancı Street in Cizre.

In order to be able to examine the request for an interim measure, our court asked the Şırnak Governor a number of questions. The replies provided by the Governor are as follows:

“1. The office of the Governor has been taking all necessary steps in order to ensure that public services are continuing to work effectively and that the residents in the area are supplied with food and other elementary goods. The Cizre hospital is open and working. Between 14 December 2015 and 27 January 2016 ambulances have responded to a total of 1,295 calls.

2. The area where the applicants allegedly are is an area where terrorists have been carrying out armed attacks. The streets in the area are booby-trapped with explosives and there are also trenches and barricades. Since the beginning of the operations, a total of 276 terrorists and 15 members of security forces have been killed.

3. No attacks have been or are being carried out by the security forces at the building at no. 23 Bostancı Street.

4. The applicants have never directly called public officials and asked for help. All the calls to the emergency ambulance telephone line (112) were made by the local Member of Parliament Mr Faysal Sarıyıldız.

a. The MP called the 112 line on 23 January 2016 and stated that the injured persons were on Cafer-i Sadık Street. Medical teams were then dispatched to a petrol station near that street but the injured persons did not come to the ambulances.

b. The officials have never been able to contact the injured persons directly; all their contacts regarding the injured persons were with the MP. The MP told the officials that there was no one to carry the injured persons from the basement to the ambulances. However, it appears from the application form submitted to the ECtHR that there are between 15-23 persons in the basement which means that there are also persons there who are not injured. It appears that those uninjured persons are not cooperating with the emergency teams and are not carrying the injured persons to the waiting ambulances.

Although the applicants Mehmet Tunç and Mehmet Yavuzel were able to talk to journalists from BBC Turkish on the telephone, they have not called official help lines to ask for help.

According to the information provided to the ECtHR by the applicants’ lawyer on 25 January 2016, the applicant Mehmet Tunç was seriously injured. However, on 26 January 2016 that particular applicant was able to have a telephone conversation with journalists from BBC Turkish. Moreover, according to the information provided by the MP to journalists on 27 January 2016, the applicant Mehmet Tunç was only slightly injured.

The above-mentioned events constitute contradictory information which has been misleading the officials and the ECtHR.

We repeat that we have given instructions to the emergency personnel to dispatch ambulances, depending on the situation, in the event that they are contacted. However, as explained above, the applicants have been refusing to get in direct contact with the emergency services.

The person who owns the building on 23 Bostancı Street has been contacted by the authorities. He informed us that he and his family are not living there at the moment and that access to the basement is via two metal doors. He also informed the authorities that he does not know any of the applicants with the exception of Mehmet Tunç.

5. At 11.23 p.m. on 27 January 2016 ambulances were dispatched to the area to pick up the injured persons. The MP, who was contacted by the ambulance drivers, told the ambulance drivers that he did not know the injured persons’ exact location and added that he knew that there were injured persons in a building in Ömer Hayyam Street.

At the time of writing the injured persons have not contacted the emergency lines and we do not therefore know where they are, what their state of health is and whether or not they are alive. Emergency personnel are making every effort despite the fact that there are ongoing armed clashes in the area between terrorists and the security forces”.

It appears from the above information provided by the Governor that none of the applicants has directly contacted the public services. It also appears that the ECtHR and the national authorities have been given three different addresses.

In order to be able to examine their request our court has put the following questions to the applicants’ lawyers on 28 January 2016 and requested them to submit their replies by 3 p.m. the same day:

“1- Have the applicants’ lawyers been in direct contact with the applicants before or after they introduced the application?

2- If the lawyers are able to contact the applicants directly, how do they establish that contact?

3- If the lawyers have not been in direct contact with the applicants, how did they obtain the information that the applicants had been injured or the information about their medical condition, current location and their names?

4- How were the applicants injured? Were the applicants armed at the time of getting injured, are they armed now? Were they injured in the course of an armed clash they had with the security forces? Were they injured in the course of clashes between the security forces and the terrorists? Or were they injured when the security forces fired at unarmed persons?

5- Having regard to the fact that different addresses have been given to the authorities and the ECtHR; did that happen because the applicants have been moving from one place to another or because their exact address is not known? If the applicants have moved from one place to another, why did they do so?

6- Can you confirm that the injured persons are still at the address which you indicated in your application form? In case the applicants have moved to another address after you introduced your application, do you know their current address?

7- Given that the persons who contacted the authorities gave varying information to the authorities; why do the applicants, who can provide reliable information, not contact the authorities directly?”

The lawyers’ replies are as follows:

“Your questions 1-3 concern the lawyer/client relationship defined in the Law on Attorneys and your court is not a part of that relationship and these questions are not directly related to our request. In any event, as we have explained in our application form and also told you in person, we have contacted the applicants by telephone as that is the only way to contact persons who are stuck in a building in a curfew area. That is the reason why we are unable to obtain powers of attorney from them. As they are in the basement of a building, their telephone reception/signal is not reliable.

Your fourth question relates to issues which should be investigated by the security forces; we would like to remind you that every person has the right to life and physical integrity.

We also would like to know whether you have also asked the authorities why it is not possible to use the methods of urgent intervention employed when saving the lives of injured members of security forces, such as an ambulance helicopter, to save the applicants.

As for your fifth and sixth questions; we are hereby giving you the applicant Mehmet Yavuzel’s mobile phone numbers. We invite you to contact him directly, and not rely solely on the information provided to you by the authorities who have been refusing to take steps to save their lives.

Concerning your seventh question, as we have stated in our application form, the authorities have been contacted on many occasions.

We urge your court once again to take account of the urgency of the situation and we request you to indicate an interim measure.”

The telephone numbers of the applicant Mehmet Yavuzel were immediately passed on by our court to the Governor with a view to enabling emergency services to contact the applicants and to find out their location and their medical condition. We were subsequently informed that two doctors and a paramedic managed to contact that applicant by telephone the same evening. The applicant Mehmet Yavuzel apparently told those health professionals that they were in the basement of a building and that there were a total of nineteen injured persons, three of whom in a critical condition. When the applicant was asked to give their exact location, he apparently told them that they should contact the MP Sarıyıldız. The applicant was then informed that ambulances were waiting in a secure area but were unable to drive to the building because of security concerns, and asked whether persons in the basement who were in a better condition could carry the more seriously injured persons to the ambulances. The applicant apparently responded by saying that if they were to do so they would be shot at by the security forces. When the applicant was then informed that the ambulances would continue waiting, he replied by saying that there was nothing he could do and asked them not to call him again but to call the MP.

The applicants’ allegations are threefold. They argue that they had been injured by fire opened by the security forces and that they are in the basement of a building; that the security forces are continuing to fire at the building; and that the security forces are preventing them from having access to health services.

As to the first allegation; it is to be noted that the applicants have not provided our court with information as to how they were injured. Coupled with that lack of information is the fact that some of them, who were purportedly seriously injured, have been in contact with the press. There is therefore uncertainty about their location and about whether or not the applicants were indeed injured and if they were injured, about the nature and extent of their injuries and current medical condition. This uncertainty follows from the applicants’ unwillingness to contact the authorities directly.

Concerning their second allegation; although the applicants alleged that their building was being bombarded by the security forces and that it had been extensively demolished, the photographs of that building and of the street on which the building is located which were provided to us by the Governor refute those allegations conclusively. As the lawyers have not answered our question about whether the applicants are still in that building or have moved elsewhere, we do not have information to support their allegation that their building has indeed been bombed.

Concerning their third allegation; the Governor has informed our court that ambulances cannot go to the building in question because of booby-traps, trenches and barricades put in place in the vicinity by the terrorists. The ambulances are however waiting in a secure location nearby and the applicants have been advised on a number of occasions that those who are able to carry the more critically injured persons to the ambulances can do so. All those offers have been rejected by the applicants.

The lawyers have not submitted information to show that the applicants’ lives are in imminent danger or given information as to how that danger could be eliminated.

The applicants’ unwillingness to contact the emergency services directly, their persistence in communicating with the emergency services via third parties and their providing different addresses raise the suspicion that they have been changing their locations and are avoiding contacts with the authorities.

There is uncertainty about whether or not they were injured and, if they were, about the extent of their injuries; how they came to be injured; whether they are armed; and their exact location. On account of that uncertainty it is not possible to accede to their request for an interim measure. However, if and when those uncertainties are eliminated, the taking of the necessary steps by the public authorities - while also protecting the lives of the security forces and emergency personnel - in order to protect the lives of all individuals regardless of their identities would be in accordance with the requirements of the rule of law.

In the light of the foregoing it is decided, unanimously, as follows:

A. The request for an interim measure is rejected;

B. The applicants are invited to contact the public authorities directly;

C. If the uncertainty surrounding the issue is eliminated, the public authorities are to take, while also ensuring the protection of the security forces and of the emergency services personnel, all necessary measures to ensure the applicants’ access to medical institutions;

D. The Governor is invited to keep the Constitutional Court informed of any developments;

E. The applicants can bring a new request for an interim measure in all subsequent stages of the proceedings if there are new developments;

F. A copy of this decision is to be communicated to the Governor and the Ministry of the Interior;

G. A copy is to be communicated to the applicants.”

C. Relevant international materials

39. 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.”

40. 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

41. The applicants complain under Article 2 of the Convention that their relatives were shot and injured by members of the security forces and that the national authorities, instead of providing them medical assistance, killed them intentionally.

42. Under the same provision the applicants argue that no steps were taken by the prosecutors to investigate the deaths of their relatives. In that connection they highlight, in particular, that no investigative steps were taken by the prosecutors other than supervising the carrying out of a number of autopsies. The building in which their relatives had been killed was not visited by any prosecutor or any expert with a view to collecting the evidence, but was instead demolished in order to destroy the evidence implicating the security forces. None of the security forces members or any civilians were questioned and their lawyers were not allowed to take part in the autopsies.

43. The applicants complain that their suffering on account of the combination of factors (such as having to witness their relatives being burned to death; searching for the bodies of their relatives in a number of hospitals; inability of some of them to find the bodies of their loved ones; and their inability to give their relatives a burial for long periods of times during which the bodies deteriorated and lost their integrity) amounted to inhuman treatment within the meaning of Article 3 of the Convention.

44. Under Article 5 of the Convention the applicants argue that the curfew was executed so strictly that their relatives were not permitted to leave the basement to get medical assistance and ambulances were not allowed to pick them up.

45. The applicants complain that the bodies of their relatives were not handed over to them and that the family members were not given the opportunity to organise and to be present during a funeral, in breach of their right to respect for their private lives within the meaning of Article 8 of the Convention.

46. Finally under Article 34 of the Convention the applicants allege that the real reason for the arrest and detention of their legal representative, Ramazan Demir, was his representation of applicants from the curfew areas and complain that Mr Demir’s arrest and detention constitute a serious interference with their right of individual application.

47. In addition to the above, the applicant in application no. 5628/16 also complains that his and his family’s inability to receive the body of his sister for a period of two weeks and their inability to be present during her funeral was in breach of their rights under Article 9 of the Convention.

48. Relying on Articles 1 and 34 of the Convention applicant in application no. 5628/16 also complains that, by failing to fulfil the Court’s request to take steps to protect his sister’s right to life and physical integrity and by preventing other persons from offering her assistance, the respondent State failed to comply with their obligations under Article 34 of the Convention not to hinder his right of individual application.

THE LAW

A. Joinder of the applications

49. 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 Articles 2, 3, 8, 9 and 34 of the Convention

50. The applicants complain under Article 2 of the Convention that their relatives lost their lives not only as a result of the national authorities’ failure to allow ambulances to pick them up from the basement and take them to hospital after they were shot and seriously injured, but also as a result of having been killed by the security forces. Under the same provision they also complain that the national authorities failed to carry out an effective investigation into the deaths. They further complain that their own rights under Articles 3 and 8 of the Convention were breached on account of their inability to retrieve their relatives’ bodies. The applicant in application no. 5628/16 also complains that his rights under 9 of the Convention were breached on account of his inability to bury his sister in a timely manner and be present during the funeral.

51. 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.

52. 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 them to the respondent Government.

C. Complaints under Article 5 of the Convention and the complaint under Article 34 of the Convention by the applicant in application no. 5628/16

53. The applicants argue under Article 5 of the Convention that the curfew was executed so strictly that their relatives were not permitted to leave the basement to get medical assistance and ambulances were not allowed to pick them up.

54. The applicant in application no. 5628/16 argues that the respondent State failed in its obligations under Article 34 of the Convention by ignoring the Court’s request and by not providing assistance to his sister.

55. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the provisions 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.

D. Application no. 39419/16 in so far as it concerns Sercan Uğur, Murat Aslan, Azat Yılmaz, Abdullah Zileyaz and Faik Özkan

56. As explained above (see paragraph 5), according to the applicants’ legal representative, the families of these five deceased persons, namely Sercan Uğur, Murat Aslan, Azat Yılmaz, Abdullah Zileyaz and Faik Özkan, moved from their addresses as a result of the pressure exerted on them by the security forces and that the legal representative had been unable to contact them. No application forms were therefore submitted in respect of these five deceased persons.

57. The Court considers that, in these circumstances, no relatives of these five deceased persons may be regarded as wishing to pursue the application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of their complaints. In view of the above, it is appropriate to strike application no. 39419/16, in so far as it concerns these five deceased persons, namely Sercan Uğur, Murat Aslan, Azat Yılmaz, Abdullah Zileyaz and Faik Özkan, out of the Court’s list of cases.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to adjourn the examination of the applicants’ complaints under Articles 2, 3, 8, 9 and 34 of the Convention;

Decides to strike application no. 39419/16, in so far as it concerns Sercan Uğur, Murat Aslan, Azat Yılmaz, Abdullah Zileyaz and Faik Özkan, out of the Court’s list of cases;

Declares the remainder of the applications inadmissible.

Done in English and notified in writing on 15 December 2016.

Hasan Bakırcı Julia Laffranque
Deputy Registrar President

APPENDIX