AHMET TUNÇ AND OTHERS v. TURKEY

 
 
SECOND SECTION
DECISION
Applications nos. 4133/16 and 31542/16
Ahmet TUNÇ and Zeynep TUNÇ against Turkey
and Ahmet TUNÇ and Güler YERBASAN against Turkey
 
The European Court of Human Rights (Second Section), sitting on 29 January 2019 as a Chamber composed of:
Robert Spano, President,
Paul Lemmens,
Ledi Bianku,
Işıl Karakaş,
Nebojša Vučinić,
Valeriu Griţco,
Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above applications lodged on 19 January 2016 and 11 February 2016 respectively,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court in application no. 4133/16 on 19 January 2016 and the decision to lift that interim measure on 24 February 2016,
Having regard to the decision to grant priority to the above applications under Rule 41 of the Rules of Court,
Having regard to the partial decision of 6 December 2016, where it was decided to join the two applications,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the comments submitted by the Council of Europe Commissioner for Human Rights (“the Commissioner for Human Rights”),
Having regard to the parties’ oral submissions at the hearing on 13 November 2018,
Having deliberated in private on 13 November 2018 and 29 January 2019, decides as follows:
PROCEDURE AND FACTS
1. Application no. 4133/16 was lodged by Mr Mehmet Tunç, a Turkish national who was born in 1977 and who lived in Cizre. He was represented before the Court by Mr Ramazan Demir, a lawyer practising in Istanbul. Mehmet Tunç had lodged the application on behalf of his brother Orhan Tunç. Following the death of Mehmet Tunç and his brother Orhan Tunç in February 2016, their father, Mr Ahmet Tunç, and the wife of Mr Mehmet Tunç, Ms Zeynep Tunç, expressed their intention to pursue application no. 4133/16 and submitted an application form.
2. On 11 February 2016 twenty individuals, including Orhan Tunç, lodged a separate application with the Court (Koç and Others v. Turkey, no. 8536/16). That application, in so far as it was lodged by Orhan Tunç, mainly concerned the same events as those forming the subject matter of application no. 4133/16. Following Orhan Tunç’s death, his father Mr Ahmet Tunç and partner Ms Güler Yerbasan expressed their intention to pursue application no. 8536/16 and submitted an application form. For practical reasons, the complaints brought in that application by Mr Ahmet Tunç and Ms Güler Yerbasan were subsequently registered as a separate application (no. 31542/16).
3. Mr Ahmet Tunç, Ms Zeynep Tunç and Ms Güler Yerbasan, who will be referred to as “the applicants” in the present applications, are Turkish nationals who were born in 1943, 1980 and 1999 respectively and live in Cizre. They were represented before the Court by Mr Ramazan Demir (principal representative), a lawyer practising in Istanbul.
4. The Turkish Government (“the Government”) were represented by their Agent.
5. A hearing took place in public in the Human Rights Building, Strasbourg, on 13 November 2018 (Rule 59 § 3).
 
There appeared before the Court:
 
(a) for the Government
 
Mr Erdoğan İşcan, Agent,
Mr Hacı Ali Açikgül,
Mr Stefan Talmon, Counsel,
Mr Nuri Uzun,
Mr Öner Aydin,
Mr Gökhan Dursun,
Mr Erkan Çapar,
Mr Ahmet Adanur,
Mr Can Öztaş, Advisers.
 
(b) for the applicants
 
Mr Ramazan Demİr,
Ms Benan Molu, Counsel,
Ms Helen Duffy,
Ms Senem Gürol,
Mr Hüseyin Tül,
Ms Nevroz Uysal, Advisers.
 
6. The Court heard addresses by Mr Talmon, Mr Demir and Ms Molu.
A. Background to the events giving rise to the applications
7. Following a period of relative calm – owing to the peace process initiated in late 2012 to find a lasting, peaceful solution to the “Kurdish question” – the security situation in south-east Turkey deteriorated in the summer of 2015 on account of the intensification of hostilities by illegal armed groups affiliated with the PKK (the Workers’ Party of Kurdistan). In addition to carrying out armed attacks, those armed groups resorted to other means to disturb social life and public order in the region, such as digging trenches, some of which were planted with explosives, and blocking the roads with barricades in certain neighbourhoods. In response, starting from August 2015, the Turkish authorities declared curfews in urban centres, including in the town of Cizre, where the events giving rise to the present applications took place. The curfews were imposed on the basis of section 11 (c) of the Provincial Administration Act (Law no. 5442), and their stated aim was to clear the trenches dug up and the explosives planted by members of the armed organisations, as well as to protect the civilians from violence. As indicated by the Council of Europe Commissioner for Human Rights in his memorandum of 2 December 2016[1], while those curfews were initially declared for shorter periods in relatively restricted areas, their length, scope and intensity increased quickly and considerably.
8. According to a resolution adopted by the Parliamentary Assembly of the Council of Europe, 1.6 million people were affected by the curfews and at least 355,000 people were displaced[2]. For a detailed account of the events which took place during the curfews, see the comments submitted to the Court by the Commissioner for Human Rights[3] in his capacity as an intervener under Article 36 § 3 of the Convention in these cases, as well as the aforementioned memorandum of 2 December 2016.
9. There are a total of thirty-six cases currently pending before the Court concerning alleged violations of human rights arising from these curfews.
B. The circumstances of the case
10. The facts of the present case, as submitted by the parties, may be summarised as follows.
1. The incident and the requests for interim measures lodged with the European Court of Human Rights and the Constitutional Court
11. On 14 December 2015 a curfew was imposed in the town of Cizre, prohibiting the residents of the town from leaving their homes at any time of the day. The twenty-four‑hour curfew in Cizre continued until it was modified on 2 March 2016, on which date people were allowed to leave their homes between the hours of 5 a.m. and 7.30 p.m. Another adjustment on 28 March 2016 to the conditions of the curfew allowed people to leave their homes between 4.30 a.m. and 9.30 p.m., and a final adjustment on 5 June 2016 limited the curfew hours to between 11 p.m. and 2.30 a.m.
12. On 18 January 2016 Orhan Tunç ­– who was 21 years old at the time – was allegedly shot by fire opened from armoured vehicles as he was on his way to visit his brother Mehmet Tunç’s house in Cizre. Although calls were made by a number of people, including the local member of parliament (MP), Mr Faysal Sarıyıldız, to the emergency services for an ambulance and the police headquarters were informed of the incident, no ambulance was sent to pick up Orhan Tunç, allegedly because of security concerns. The emergency services informed the callers that if they took Orhan Tunç to Dörtyol, it would be possible to pick him up from there. The distance between the suggested meeting place and Orhan Tunç’s location is disputed between the parties: while the applicants claim that the location was some one and a half kilometres away, the Government maintain that the relevant distance was only 400 metres.
13. When attempts to arrange for his transfer to a hospital failed, on 19 January 2016 Orhan Tunç’s brother Mehmet Tunç lodged an application with the Court and requested it to indicate to the Turkish Government, under Rule 39 of the Rules of Court, that they should ensure his brother Orhan Tunç’s immediate access to a hospital (application no. 4133/16).
14. The same day the Court acceded to the request and indicated to the Turkish Government that they should take all measures within their power to protect Orhan Tunç’s life and physical integrity. On 20 January 2016, when they received information from the applicants that Orhan Tunç had still not been taken to hospital, the Court requested further information from the Government about the steps taken by the national authorities for the implementation of the interim measure indicated the previous day.
15. On 3 February 2016 the applicants’ legal representative informed the Court that Orhan Tunç had still not been taken to hospital and had taken refuge in the basement of a house in Ömer Hayyam Street in Cizre. The representative alleged that the authorities were not taking any steps to help Orhan Tunç or any other injured persons who had also taken refuge in the same basement, other than sending ambulances to locations some 400-500 metres away from the building and inviting the injured persons to walk to those ambulances.
16. On 9 and 10 February 2016 lawyers representing a total of thirty-one individuals, including Orhan Tunç, applied to the Constitutional Court of Turkey and claimed that those persons had been injured and were waiting for medical assistance in the basements of three buildings in Cizre and that the buildings in question were under attack by the security forces (application no. 2016/2602). They requested an interim measure from that court to ensure the thirty-one persons’ immediate access to medical facilities. The lawyers argued that the persons in question and their family members had contacted the emergency services on a number of occasions and asked for ambulances. However, on each occasion the emergency services had informed them that the ambulances sent had been stopped by police officers. The lawyers argued that the denial of medical assistance to these persons amounted to a violation of their right to life.
17. Upon receipt of the applications, the Constitutional Court requested information from the Şırnak governor’s office in respect of the applicants’ allegations. In its response dated 10 February 2016, the Şırnak governor’s office stated that it had thus far not been possible to reach the injured persons on account of their failure to give clear information as to their location and other contact details, and also because of the ongoing armed clashes between the security forces and the members of the terrorist organisation in the area. The governor’s office stated that efforts were nevertheless under way to reach the persons in question. It also stressed that many of these allegedly wounded people often changed addresses and that if they were able to move from one building to another, they could also reach the medical facilities nearby.
18. In their responses dated 10 and 11 February 2016, the lawyers stated that the addresses of the wounded individuals had been clearly indicated in the application forms and submitted the relevant information once again. They also asserted that the individuals in question had been forced to change location to save their own lives as they were fleeing from the security forces’ attacks.
19. On 11 February 2016 at 9.58 p.m. the Şırnak governor’s office informed the Constitutional Court that paramedics dispatched to the indicated addresses had not been able to find the wounded individuals despite numerous attempts. However, in some of the buildings, dead bodies of members of the terrorist organisation had been found and the investigating authorities had been informed accordingly.
20. On 11 February 2016 twenty of the thirty-one individuals concerned, including Orhan Tunç – as explained in paragraph 2 above – lodged an application with the Court (Koç and Others v. Turkey, no. 8536/16; the application lodged by Orhan Tunç was subsequently disjoined from that application and registered under application no. 31542/16)[4]. They submitted that they had all been injured and were trapped in the basement of a building in Cizre and argued that the Constitutional Court was not examining their application speedily. They requested the Court to indicate to the respondent Government, under Rule 39, that they should ensure their immediate access to a hospital.
21. On 12 February 2016 the Court decided to adjourn the examination of the request under Rule 39 pending receipt of information from the respondent Government. Accordingly, it requested the Government, under Rule 54 § 2 (a), to submit information by 15 February 2016 on a number of issues including, in so far as relevant to the circumstances of the present applications, the following:
“... Your Government are also reminded that the interim measure indicated on 19 January 2016 in relation to Mr Orhan Tunç (Tunç v. Turkey, no. 4133/16), who is also one of the applicants in the present case, is still in force and you are therefore urged to comply with that measure by taking all steps within your powers to protect his life and physical integrity. ... Your Government are also requested to inform the Court, by the same date, about the steps which will be taken by your authorities after receipt of this letter in order to comply with the interim measure indicated in the case of Tunç v. Turkey, no. 4133/16 ...”
22. Also on the same day, after the Court had requested the above‑mentioned information from the Government, the Constitutional Court rejected the request for interim measures made by the thirty-one persons concerned, referring to the latest information received from the Şırnak governor’s office as noted in paragraph 19 above. The Constitutional Court nevertheless held that, regardless of the identities of the injured persons, the public authorities had to continue to take the necessary measures to determine their locations and to ensure their access to healthcare services as part of their obligation to protect the right to life. According to the latest information in the case file, an examination on the merits of this case is still pending before the Constitutional Court.
23. On 15 February 2016 the Government informed the Court that “[i]n the course of a search carried out in the building [at 16 Akdeniz Street in Cizre] by the security forces, a body [with] a driving licence drawn up in the name of Orhan Tunç was found, along with the bodies of eight other persons. It was understood as a result of the examination of the body performed by the Cizre chief public prosecutor’s office that the body belonged to Orhan Tunç”. According to the information subsequently received from the Government, in the room where Orhan Tunç’s body was located, the incident-scene investigation team had found, amongst other things, two Kalashnikov AK-47 rifles, ten Kalashnikov magazines (two of them deformed), twelve spent cartridges discharged from Kalashnikov rifles, a 9 mm-calibre gun, eight bullet cases, a hand grenade and two assault vests. More weapons and ammunition were recovered in other parts of the building. Moreover, according to a sketch map prepared by the national authorities, the street in which the building was located had been blocked by ditches and barricades and planted with mined devices.
24. Before the Court forwarded the above-mentioned information provided by the Government to the applicants’ legal representatives, one of the representatives, Mr Demir, informed the Court on 16 February 2016 that he was unable to establish contact with Orhan Tunç and his brother Mehmet Tunç. He further informed the Court that the bodies of over 100 people had been found in the area where Orhan Tunç and his brother Mehmet Tunç had last been awaiting assistance.
25. In a subsequent letter dated 22 February 2016 the applicants’ legal representative Mr Demir informed the Court that he and Orhan Tunç’s family had learned of the death of Orhan Tunç when the Court had forwarded to them the information provided by the Government on 15 February 2016, and alleged that the authorities had not informed the family directly. Mr Demir further informed the Court that more than 170 people who had been injured and who – like Orhan Tunç – had taken refuge in the basements of a number of buildings in Cizre had been killed when the security forces had shelled those buildings. Their families were in the process of trying to find and identify the bodies but it was proving difficult because the buildings in question had all been demolished and the rubble from the buildings, together with some of the bodies, had been dumped in a landfill. Some of the bodies had also been burned beyond recognition. The legal representative submitted photographs to the Court in which a number of body parts could be seen in the rubble dumped at a landfill site, and alleged that the authorities were demolishing the buildings in order to destroy evidence implicating the security forces in the killings.
26. On 24 February 2016 the Court decided, in the light of the information provided by the parties regarding the death of Orhan Tunç, to lift the interim measure previously indicated in the case no. 4133/16 on 19 January 2016 under Rule 39.
27. The authorities did not allow the body of Orhan Tunç to be buried in Cizre and he therefore had to be buried in Şırnak on 1 March 2016.
2. The investigation into the death of Orhan Tunç and the ensuing legal proceedings
(a) Investigation
28. On 11 February 2016 a post mortem examination was carried out on Orhan Tunç’s body at the Cizre State Hospital. The examination revealed a bullet in the pubic area of the body, but the exact cause of death could not be established. The body was therefore sent to the Silopi Forensic Medicine Institute for a full autopsy. The bullet recovered from Orhan Tunç’s body was sent for a ballistic examination, and his clothes were secured for further forensic examination as necessary.
29. On the same day, swab samples were taken from the inside and outside of Orhan Tunç’s hands, as well as from his neck, in order to detect any gunshot residue.
30. On 12 February 2016 an autopsy was conducted on Orhan Tunç’s body. During the autopsy, three deformed bullets, one bullet with a torn jacket and a more intact conical-shaped bullet were extracted from the body. A large number of wounds, caused by penetrating objects, were observed on the victim’s neck, back, gluteus, arms, legs, chest, abdomen, and the right shoulder and clavicular area. The cause of death was identified as fractures and internal bleeding due to gunshot wounds. For an unknown reason, the body was classified as “unidentified” in the autopsy report, and it was indicated that the body would be buried by the authorities if not identified within fifteen days. Following the autopsy, Orhan Tunç’s body was taken to the cold storage space at the Harbur border gate. It appears that Orhan Tunç’s family eventually managed to locate his body in Harbur on 29 February 2016 through their own efforts, and on the same day the body was handed over to them for burial.
31. In the meantime, on 21 February 2016 the Cizre public prosecutor’s office sent a letter to the Cizre District Security Directorate, indicating in detail the steps to be taken within the scope of the investigation into the death of Orhan Tunç, including the conduct of a crime-scene investigation, the examination of all records from cameras located in the vicinity of the crime scene, the questioning of the victim’s next-of-kin, and the identification and questioning of the perpetrators and any witnesses.
32. On 20 March 2016 an examination was performed by the Criminal Department of the Diyarbakır Security Directorate on the bullets extracted from Orhan Tunç’s body. The report noted that the bullets had been fired from a rifle, but did not provide any further specifics.
33. On 23 March 2016 the Diyarbakır Criminal Police Laboratory issued a forensic report indicating that gunpowder residue had been found on the swab samples taken from Orhan Tunç’s hands and cheeks, which suggested that he had either fired a gun or had been in close proximity to a gun at the time it was fired, or that he had been in close contact with an object or surface that contained gunpowder residue. It was noted in the same report that gunshot residue had also been observed around the holes in his clothes, yet it had not been possible to determine the distance from which the shots had been fired.
34. On 21 May 2016 the Cizre public prosecutor questioned an anonymous witness about the activities of the illegal armed groups in Cizre during the curfews, and asked him to take part in a photo identification procedure. As part of the procedure, photos of various individuals who were believed to be members of the armed groups were shown to him randomly. When Orhan Tunç’s photo was shown, the anonymous witness recognised him as the brother of Mehmet Tunç. He stated that he had seen Orhan Tunç walking around the barricades in the Nur neighbourhood in Cizre, and claimed that he had participated in the building of ditches and barricades.
35. On 1 June 2016 the Cizre public prosecutor took a statement from the applicant Ahmet Tunç, Orhan Tunç’s father. The applicant noted in his statement that following the imposition of the curfew on 14 December 2015, he and his family had continued to stay in their house in the Nur neighbourhood for the first eighteen days. However, following the intensification of the clashes, they had all left the house except for his wife Esmer Tunç, who had been ill, and his son Orhan Tunç, who did not want to leave before finding his brother Mehmet Tunç. Ahmet Tunç stated that he had lost contact with his son after leaving the house. Upon being informed of the injury to Orhan Tunç, they had instructed their lawyers to lodge a request for an interim measure with the Court to ensure his access to treatment. Although their request had been granted by the Court, the State authorities had not taken any action to remove Orhan Tunç from the area. He added that he did not know how and where his son had died, but that he wanted the identification and punishment of all those responsible.
36. On 27 June 2016 a search was carried out by the police in the vicinity of the building where Orhan Tunç’s body had been found, in order to identify any cameras from which video footage of events leading to his death could be obtained. It appears, however, that the search did not yield any results.
(b) The Şırnak public prosecutor’s decision not to prosecute
37. On 17 February 2017 the Cizre public prosecutor issued a decision of lack of jurisdiction (görevsizlik kararı) and transmitted the investigation file to the Şırnak public prosecutor’s office. The Cizre public prosecutor nevertheless stated in the decision that the evidence in the investigation file, including the statements of the anonymous witness and the weapons and ammunition recovered from the building in which Orhan Tunç’s body had been found, showed that he had been a member of the PKK and had engaged in armed clashes with the security forces in Cizre during the curfew. He had accordingly been killed by the security forces, who had acted in self-defence after coming under attack from the applicant and other members of the terrorist organisation. The public prosecutor emphasised that many soldiers, police officers and civilians had fallen victim to the attacks by the terrorist organisation, and that the security forces had responded in accordance with the lawful commands they had received from the competent authorities. There was no evidence to suggest that the security forces had responded disproportionately or had otherwise gone beyond the bounds of legitimate self‑defence. The public prosecutor therefore concluded that the use of force against Orhan Tunç had complied with the law and that the perpetrators could not be prosecuted.
38. On 8 March 2017 the Şırnak public prosecutor found it established, on the basis of the evidence and witness statements in the investigation file, that the deceased suspect Orhan Tunç had been a member of the PKK/KCK terrorist organisation, that he had been involved in armed clashes with the security forces in the context of his terrorist activities, and that he had committed the offence of destroying the unity of the State, with which he had been charged. However, having regard to the fact that Orhan Tunç had been found dead following the fight he had entered into with the security forces, the public prosecutor delivered a decision not to prosecute in respect of his death. The public prosecutor also ordered the destruction of his belongings that had been registered as evidence.
39. On 7 April 2017 the applicants’ representative objected to that decision, arguing that it was in breach of the right to life safeguarded under Article 2 of the Convention. He mainly made the following arguments.
(i) Contrary to the case-law of the Court, which required States to take all feasible precautions in choosing the means and methods to be employed in a security operation in order to avoid or minimise the incidental loss of civilian life, no such precautions had been taken by the Turkish authorities in the areas under curfew, and at least 300 people had accordingly lost their lives.
(ii) Like many other civilians in Cizre, Orhan Tunç had been seriously injured on account of fire opened by the security forces; he had subsequently been denied medical assistance by the State authorities despite an interim measure indicated by the Court to that effect and had eventually been killed by those authorities in a basement, along with tens of other people.
(iii) Under the case-law of the Court, if the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual, a failure to take the necessary measures to avoid that risk would amount to a violation of the right to life. The emergency services had been contacted numerous times to dispatch medical assistance to Orhan Tunç and others in need, yet instead of providing the necessary assistance, the authorities had instead killed all those people.
(iv) The search and crime-scene investigation at the building where Orhan Tunç was found dead had been carried out by the security forces implicated in the events, and not by an independent and impartial public prosecutor, which tainted the effectiveness of the investigation from the outset.
(v) Not a single police officer or soldier who had taken part in the operation had been questioned by the public prosecutor.
(vi) Contrary to the conclusions drawn by the public prosecutor, the anonymous witness had not claimed that Orhan Tunç had been a member of the terrorist organisation or had engaged in armed clashes with the security forces.
(vii) No photographs had been taken of the bodies and weapons found at the incident scene; no fingerprint examination had been conducted on the weapons allegedly recovered from the building; and no forensic examination had been carried out to identify the weapons which had caused the extensive injuries observed on the victim’s body.
(viii) Footage taken by police and military vehicles and drones at the time of the operation, or by private cameras, had not been included in the investigation file.
(ix) The situation of Orhan Tunç had been under close scrutiny by the Court, by reason of the interim measure applied on 19 January 2016. Despite that fact, the public prosecutor had failed to conduct an effective investigation to establish the circumstances in which Orhan Tunç had lost his life and those responsible for his death.
(x) The radio transmission transcripts of the soldiers conducting the operation had not been included in the investigation file.
(xi) The decision of the public prosecutor had effectively amounted to impunity for those who had been involved in the security operations.
40. On 17 July 2017 the Şırnak Magistrates’ Court dismissed the objection against the Şırnak public prosecutor’s decision. The magistrates’ court stressed at the outset that in the event of disturbance of public order through the escalation of acts of violence, the State authorities were under an obligation to take certain measures to restore public order. The court acknowledged that a strict test of lawfulness, legitimate aim and proportionality had to be performed when examining whether a particular act amounted to a violation of Article 2 of the Convention and Article 17 of the Turkish Constitution. In the magistrates’ court’s opinion, the acts of the security forces at issue had posed no problem in terms of lawfulness, in view of the legal provisions in Turkish law regulating the use of force and firearms by security forces, as well as the provisions concerning the right to self-defence. Moreover, having regard to the extent of the terrorist attacks in Şırnak and its districts at the material time, which had led to the death of many members of the security forces, it was clear that the use of force in the circumstances had pursued a legitimate aim. The magistrates’ court further observed that the body of Orhan Tunç had been found in a building used by members of the terrorist organisation along with the bodies of eight other persons who were considered to be terrorists and who were armed. According to the court, that fact, when viewed against the background of the other evidence available in the case file, showed that Orhan Tunç had died during the course of a security operation conducted against terrorists. These considerations were sufficient for the magistrates’ court to establish that the force used in the circumstances, which had resulted in Orhan Tunç’s death, had been proportionate. The magistrates’ court added that the investigating authorities had taken the necessary steps as soon as they had been informed of the death of Orhan Tunç, such as the collection of evidence and the conduct of an autopsy and other forensic examinations. They had therefore fulfilled their investigative obligations.
41. On 9 May 2018 the applicants submitted a fresh application to the Şırnak Magistrates’ Court for the quashing of the Şırnak public prosecutor’s decision not to prosecute and the conduct of an effective investigation into the death of Orhan Tunç. That application was also dismissed by the Şırnak Magistrates’ Court on 1 August 2018 for the same reasons as in its previous decision dated 17 July 2017.
(c) Individual application lodged with the Turkish Constitutional Court (application no. 2018/361)
42. In the meantime, on 18 December 2017 the applicant Ahmet Tunç, along with his wife Esmer Tunç and his son Murat Tunç, lodged an individual application with the Constitutional Court, arguing that the decision not to prosecute delivered on 8 March 2017 in respect of Orhan Tunç’s death had amounted to a violation of the right to life and the obligation to conduct an effective investigation, as well as a violation of the right to a reasoned judgment (application no. 2018/361). The applicants, who also requested priority treatment, mainly made the following arguments before the Constitutional Court, which largely coincided with the observations that they had already filed with the Strasbourg Court on 4 October 2017 (see paragraph 91 below).
(i) The information made available to them in relation to the operation plan did not give any indication as to the types and range of weapons used, when and how they had been used, and how the target buildings had been selected. This information had been of vital importance, given that every single person in the attacked buildings had been killed.
(ii) It was clear from the Court’s case-law that in a situation which involved a real and immediate risk to life, such as that caused by the military operation in question, one of the primary tasks of the competent authorities was to set up a clear distribution of lines of responsibility and communication. However, since the relevant information had not been shared with them, and no effective investigation had been conducted to shed light on such matters, it was unclear when and how any decisions that would serve to protect Orhan Tunç’s life had been taken and communicated to the relevant authorities, and who had taken those decisions.
(iii) Despite their obligation to take all necessary measures to minimise the risk to life during the open-ended curfews, including measures to keep wounded persons alive, the State authorities had failed to protect Orhan Tunç’s right to life by providing him with the requisite medical assistance despite repeated requests, including by the Court. When requesting Orhan Tunç to walk to a “safe point” to access an ambulance, the authorities had not considered whether his condition allowed him to walk or whether he risked being shot at by the security forces or members of the armed organisation while doing so. The State authorities had thus obliged him to put his life at further risk without offering any protection.
(iv) There was no information as to whether there had been any negotiations to get Orhan Tunç out of the basement alive or to ensure his peaceful surrender.
(v) Under the Convention, it fell to the Government to prove that the lethal force used against Orhan Tunç had been absolutely necessary and strictly proportionate to the achievement of the aims set out in the various sub-paragraphs of Article 2 § 2. However, the failure of the investigating authorities to question the commander, or any other members, of the security forces who had conducted, or otherwise taken part in, the operation had removed any prospects of obtaining satisfactory information concerning the details of the operation and the nature of the force used.
(vi) The public prosecutor had concluded on the basis of incomplete and/or erroneous evidence, including an anonymous witness statement obtained under duress, that Orhan Tunç had been a terrorist who had taken part in the attacks against the security forces. However, although it was common knowledge that the operation had been recorded and followed from the air by drones and on the ground by armoured vehicles, there was no evidence in the investigation file to show that the security forces had come under fire from the alleged terrorists, including Orhan Tunç.
The applicants argued that in the light of the foregoing, it had not been proven that the lethal force used against Orhan Tunç had been absolutely necessary. Even assuming that Orhan Tunç had entered into a clash with the security forces as alleged, the question remained whether the force used against him had been strictly proportionate in the circumstances. The applicants argued that bearing in mind the state of the bodies, and of the building from which they had been recovered, it was impossible to accept that the lethal force used had in any way been proportionate to the threat allegedly perceived from the victims.
43. In addition to their aforementioned allegations regarding the planning and conduct of the security operation and the disproportionate nature of the force used by the security forces, none of which had been duly investigated by the public prosecutor, the applicants also noted a number of technical shortcomings in the investigation. Reiterating, once again, the arguments that they had brought before the Strasbourg Court on 4 October 2017, the applicants made the following assertions in particular.
(i) The public prosecutor had not gone to the location of the incident to secure the scene and collect evidence; therefore, the initial and critical phases of the investigation, which effectively determined the outcome of the investigation, had been carried out by the security forces, who had themselves been implicated in the events.
(ii) The failure to duly secure the incident scene had allowed third parties to access the scene, which had not only potentially led to the loss of important evidence, but had also created the risk of evidence being planted.
(iii) The photographic and video material allegedly obtained from the incident scene had not been included in the investigation file, nor had a sketch map been prepared to show the location of the bodies or of the weapons allegedly found in the building.
(iv) No fingerprint examination had been conducted on the weapons allegedly recovered from the building.
(v) The fact that gunpowder residue had allegedly been found on Orhan Tunç’s clothes had been taken as evidence to show that he had engaged in an exchange of fire with the security forces, whereas there could have been another explanation for the presence of such residue, such as contamination.
(vi) No effort had been made to identify the weapons with which Orhan Tunç had been killed.
(vii) Not a single police officer or soldier who had taken part in the operation had been questioned by the public prosecutor.
(viii) No permission had been given for lawyers or independent experts to be present during the autopsy.
(ix) The building from which Orhan Tunç’s body had allegedly been recovered had been demolished shortly after the incidents.
(x) The investigation into the death of Orhan Tunç had resulted in a decision not to prosecute him as a terrorist on account of his death, but no decision had been taken on the criminal responsibility of the security forces responsible for his death.
(xi) Orhan Tunç’s clothes and belongings had been destroyed prior to the finalisation of their objection to the public prosecutor’s decision not to prosecute.
(xii) The judicial authorities had exercised their discretion more in order to minimise the consequences of an extremely serious unlawful act than to show that such acts could in no way be tolerated.
44. The applicants lastly alleged before the Constitutional Court that their right to a fair trial had been violated on account of the failure of the Şırnak public prosecutor and the Şırnak Magistrates’ Court to deliver duly reasoned decisions supported by proper evidence.
45. According to information obtained from the parties, application no. 2018/361 is still pending before the Constitutional Court for an examination on the merits.
3. Examination of the cases pending before the Constitutional Court in respect of the right to life of Orhan Tunç
46. In their submissions dated 23 October 2018, the Government provided a detailed account of the actions taken by the Constitutional Court in respect of the two applications currently pending before it in relation to the right to life of Orhan Tunç (applications nos. 2016/2602 and 2018/361).
(a) Application no. 2016/2602
47. According to information provided by the Government, which was not contested by the applicants, the following steps were taken by the Constitutional Court after the rejection of the request for interim measures on 12 February 2016 (see paragraph 22 above).
- On 18 February 2016 the Constitutional Court decided to examine the admissibility and merits of applications nos. 2016/2602, 2016/2603 and 2016/2629 jointly under application no. 2016/2602, given their similar factual and legal background.
- On 19 February 2016 the Cizre public prosecutor’s office submitted information to the Constitutional Court in respect of the investigation concerning the death of Orhan Tunç.
- On 23 February 2016 the Constitutional Court requested the Ministry of Justice to submit observations on the application.
- On 23 February 2016 the decision to reject the request for interim measures was served on the lawyers.
- On 24 February and 13 March 2016 the Şırnak governor’s office submitted follow-up information in connection with the requests for interim measures.
- On 5 May 2016 the Ministry of Justice submitted its observations in respect of the application. The following day, the Constitutional Court sent the observations of the Ministry of Justice to the applicants’ lawyers and requested them to submit their observations in reply.
- On 9 November 2017 the Constitutional Court sent a letter to the lawyers requesting them to complete the case file. It was noted in the letter that at the time of the lodging of the application in February 2016, the lawyers had not provided all the necessary information and documents, such as the applicants’ identity information, powers of attorney and court fees, in view of the physical difficulties encountered at the material time, and that they had undertaken to complete the case file in due course. Given the nature of the allegations, the Constitutional Court had proceeded with the examination of the request for interim measure at the time despite the incomplete state of the case file. The Constitutional Court noted, however, that the necessary information and documents had still not been submitted and granted the lawyers fifteen days, from the receipt of the letter, to complete the case file.
- On 23 and 27 November 2017 the lawyers requested additional time from the Constitutional Court for the submission of the requested information and documents, having regard to the difficulties encountered in obtaining powers of attorney from the next-of-kin of the applicants, who had all lost their lives, and to the need to compile updated information regarding the state of the respective criminal investigations. The Constitutional Court granted the lawyers an additional thirty days.
- On 26 and 29 December 2017 the lawyers submitted the necessary information and documents to complete the case file.
- On 12 February 2018 the Constitutional Court requested the Ministry of Justice to submit observations on the application.
- On 16 April 2018 the Ministry of Justice submitted its observations, which were added to the case file.
- On 15 May 2018 the lawyers submitted information to the Constitutional Court on recent developments. The case has since been under review before the Section Rapporteurs’ Office (Bölümler Raportörlüğü) at the Constitutional Court.
(b) Application no. 2018/361
48. According to information provided by the Government, which was not contested by the applicants, the following steps were taken by the Constitutional Court after the lodging of the individual application on 18 December 2017.
- On 22 January 2018 an acknowledgment of receipt of the application was sent to the applicants.
- The Commission Rapporteurs’ Office (Komisyonlar Raportörlüğü) reviewed the application and decided that it should be examined by the Section Rapporteurs’ Office. The application was thus referred to the latter office on 4 September 2018, where it is still pending examination.
4. Application to the administrative courts
49. According to information provided by the Government at the hearing, which was not contested by the applicants, on 28 February 2018 the applicant Ahmet Tunç instituted an action for a full remedy (tam yargı davası) before the Mardin Administrative Court, claiming compensation for the pecuniary and non-pecuniary damage resulting from, inter alia, the failure of the authorities to provide medical services to his son Orhan Tunç. It appears that the case is still pending before the Mardin Administrative Court.
5. Arrest and detention of the applicants’ legal representative in application no. 4133/16
50. In the early hours of 16 March 2016 the house of the applicants’ legal representative Mr Ramazan Demir in Istanbul was raided by officers from the counter-terrorism department of the police and he was taken into custody.
51. 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 in accordance with the procedure concerning the questioning of lawyers, he could only be questioned at a courthouse and not at a police station.
52. 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 had visited any relatives or any of his clients in prison; whether he was a member of any association; whether he used social media; and details of all of his telephone lines. The public prosecutor also made the following notes: “... it is considered that [Mr Demir] will be meeting and conducting interviews with a person whom he named as ‘Delegasyon’ as part of his activities to weaken our country internally and in the international arena by making allegations of ... violations of human rights”.
53. After his 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 the judge. When questioned by the judge, Mr Demir and the lawyers representing him referred to the above-mentioned accusations by the prosecutor and argued that the real reason for his arrest had been to prevent him from representing applicants before the European Court of Human Rights in cases concerning the curfews, in breach of Article 34 of the Convention.
54. Following an objection by the public prosecutor to his release, an arrest warrant was issued for Mr Demir on 22 March 2016.
55. 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 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 pending the institution of criminal proceedings against him.
56. On 14 April 2016 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court against Mr Ramazan Demir, along with forty-nine other people, on charges of membership of an armed terrorist organisation and disseminating propaganda in favour of a terrorist organisation between the years 2013 and 2016. The public prosecutor accused Mr Demir of acting as a courier for the PKK to enable communication with the members of the organisation in prison, and praising the PKK on social media. The public prosecutor indicated that in one of his social media posts, Mr Demir had referred to the security operation conducted in Cizre during the curfews as a “blockade”.
57. On 7 September 2016 Mr Demir was released from prison on bail. According to the information in the case file, the criminal proceedings against him are still pending before the Istanbul Assize Court.
C. Relevant domestic law
1. Relevant provisions of the Constitution
58. Article 153 §§ 1 and 6 of the Constitution reads as follows:
“The decisions of the Constitutional Court are final. Decisions entailing annulment shall not be made public until a statement of reasons has been drafted.
...
Decisions of the Constitutional Court shall be published immediately in the Official Gazette, and shall be binding on the legislative, executive and judicial organs, the administrative authorities and natural and legal persons.”
2. Relevant provisions of Law no. 6216 on the establishment and rules of procedure of the Constitutional Court
59. Section 45(1) and (2) of Law no. 6216 provides:
“(1) Anyone claiming that a public authority has violated one of his or her fundamental rights and freedoms as protected by the Constitution and secured under the European Convention on Human Rights and the Protocols thereto that have been ratified by Turkey may apply to the Constitutional Court.
(2) An individual application may be lodged only after the exhaustion of all the administrative and judicial remedies provided for by law in relation to the measure, act or negligence complained of.”
60. Section 50(1) and (2) of Law no. 6216 reads as follows:
“(1) Following the examination on the merits, a decision shall be given as to whether or not there has been a violation of the applicant’s right. If a violation is established, the measures to be taken to put an end to the violation and redress its effects shall be specified in the operative provisions of the decision. No review of the appropriateness of an administrative act may be carried out, and no decision amounting to such an act may be given.
(2) Where a violation is established on account of a judicial decision, the file shall be sent to the relevant court for reopening of the proceedings with a view to putting an end to the violation and redressing its effects. Where there is no legal interest in reopening the proceedings, the applicant may be awarded compensation or be invited to institute proceedings in the appropriate courts. The court before which the proceedings are reopened shall deliver a decision, if possible on the basis of the case file, with a view to putting an end to the violation found by the Constitutional Court in its decision and redressing the effects of the violation.”
61. Section 66(1) of Law no. 6216 emphasises the final and binding nature of the decisions of the Constitutional Court.
3. Relevant provisions of the Internal Regulations of the Turkish Constitutional Court (Anayasa Mahkemesi İçtüzüğü)
62. Section 68(1) of the Internal Regulations of the Turkish Constitutional Court provides as follows concerning the order of examination of applications by that court:
“Individual applications shall be examined and concluded in the order in which they have been submitted. However, the Court may decide on a different order of examination, on the basis of criteria determined by it, taking into account the topical importance and urgency of the applications.”
4. Relevant provisions of the Provincial Administration Act (Law no. 5442)
63. Section 11 of the Provincial Administration Act, 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] shall take the necessary steps in order to prevent crime and to maintain public order and safety. To that end they may employ any regular and private armed forces of the State; commanders and personnel of such entities are obliged to swiftly comply with the governors’ orders.
...
(C) Governors have the duty to maintain and to protect peace and safety, personal integrity, the well-being of the public, enjoyment of possessions, and preventive law enforcement within their provinces.”
COMPLAINTS
64. The applicants complained under Article 2 of the Convention that the authorities had failed to comply with their positive obligation to protect Orhan Tunç’s right to life as they had not ensured his access to medical facilities despite having been aware that he had been seriously injured. They further complained under Article 2 that Orhan Tunç had been killed as a result of disproportionate use of force by agents of the State in the building in which he had taken refuge. They lastly maintained under Article 2 that no effective investigation had been conducted into the death of Orhan Tunç. The applicants Ahmet Tunç and Güler Yerbasan (application no. 31542/16) submitted that the lack of an effective investigation had also amounted to a violation of Article 13 of the Convention, and further complained under the same provision of the absence of any effective remedies to prevent the infringement of the right to life.
65. The applicants complained under Article 3 of the Convention that the fear of death that Orhan Tunç must have felt on account of hearing the constant bombings in the vicinity of the basement where he had been trapped as an injured person had amounted to ill-treatment.
66. The applicants Ahmet Tunç and Zeynep Tunç (application no. 4133/16) argued that their suffering, as Orhan Tunç’s close relatives, on account of a combination of factors (such as the keeping of Orhan Tunç’s body in the basement for weeks, during which it had decomposed and lost its integrity; their inability to give Orhan Tunç a proper burial; and finally, the national authorities’ indifference to their calls for help to retrieve Orhan Tunç’s body for many weeks) had amounted to inhuman treatment within the meaning of Article 3 of the Convention.
67. The applicants Ahmet Tunç and Zeynep Tunç (application no. 4133/16) complained under Article 8 of the Convention that the body of Orhan Tunç had not been handed over to them for weeks and that they had not been given the opportunity to organise and attend the funeral, in breach of their right to respect for their private life.
68. Relying on Articles 1 and 34 of the Convention, the applicants Ahmet Tunç and Zeynep Tunç complained that the respondent State had failed to comply with the interim measure indicated by the Court in application no. 4133/16 by not taking any steps to protect the physical integrity and life of Orhan Tunç and by preventing other persons from offering him assistance.
69. The applicants Ahmet Tunç and Zeynep Tunç (application no. 4133/16) also alleged under Article 34 of the Convention that their representative, Mr Ramazan Demir, had been arrested and detained by the authorities on account of the cases he had brought before the Court in connection with the curfews, and contended that this had constituted a serious interference with their right of individual application.
70. Lastly, the applicants Ahmet Tunç and Güler Yerbasan (application no. 31542/16) argued that the imposition of the curfew without a prior declaration of a state of emergency had been in breach of Articles 15 and 17 of the Convention.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2, 3, 8 AND 13 OF THE CONVENTION
A. The parties’ arguments
1. The Government
71. The Government argued that these complaints should be declared inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies. Referring to the subsidiary nature of the Convention mechanism, the Government stated that the purpose of the rule of exhaustion of domestic remedies was to afford the national authorities, and primarily the courts, the opportunity of preventing or putting right the violations alleged against them before those allegations were submitted to the Convention institutions. The Government pointed out in this connection that States were not required to answer before an international body for their acts until they had had an opportunity to put matters rights through their own legal system, and those who wished to invoke the supervisory jurisdiction of the Court as concerns complaints against a State were thus obliged to use first the remedies provided by the national legal system. The Government further noted that under the Court’s case-law, mere doubts regarding the effectiveness of a particular remedy did not exempt an applicant from the obligation to make use of that remedy.
72. Turning to the particular circumstances of the present case, the Government submitted that the national law provided the applicants with a number of effective remedies in relation to their complaints, such as (i) criminal-law remedies; (ii) administrative-law remedies, in particular an action for a full remedy pursuant to Article 125 of the Constitution and section 2 of the Administrative Procedure Act (Law no. 2577); and (iii) the remedy of an individual application to the Constitutional Court. The applicants had, however, applied to the Court before fully exhausting those available remedies.
73. The Government stressed that with effect from 23 September 2012, the Constitutional Court had begun to accept applications from individuals who had already exhausted all other available and ordinary remedies in relation to their complaints. The Court, in turn, had found that an individual application to the Constitutional Court offered, in principle, a direct and expeditious remedy for violations of the rights and freedoms protected by the Convention and that it had to be attempted in respect of any decision that had become final after 23 September 2012 (see, for instance, Uzun v. Turkey (dec.), no. 10755/13, §§ 67 and 69-70, 30 April 2013, and Erol v. Turkey (dec.), no. 73290/13, 6 May 2014). According to the Government, this remedy offered prospects of appropriate redress for complaints under the Convention.
74. In this connection the Government also referred to the Court’s decisions in the cases of Korkmaz and Others v. Turkey ((dec.), no. 64200/13, 25 March 2014) and Sarısülük v. Turkey ((dec.), no. 64126/13, 25 March 2014), which concerned the killing of two of the applicants’ relatives by police officers during large-scale demonstrations in Turkey in June 2013. In its decisions in those two cases the Court, noting that the criminal proceedings in relation to the killings were still pending and that the remedy of an application to the Constitutional Court had not been used, had concluded that the applicants had failed to comply with the obligation to exhaust domestic remedies and rejected the applications.
75. The Government argued that the decisions referred to above illustrated that there was no doubt on the part of the Court as regards the effectiveness of the Constitutional Court remedy. It was unprecedented for the Court to proceed with an examination on the merits of a case lodged after 23 September 2012, in circumstances where the Constitutional Court remedy remained unexhausted. The individual applications lodged by the applicants before the Constitutional Court were, however, still pending before that court for an examination on the merits. Moreover, if the applicants deemed the ordinary criminal and administrative‑law remedies in relation to any of their complaints to be ineffective, they could have complained about that to the Constitutional Court directly.
76. The Government drew the Court’s attention to the fact that the security operations in the region had continued for a while after the incidents giving rise to the present applications had taken place, and the return to normal life in the region had therefore taken some time. Many civilians and members of the security forces had lost their lives during the curfews and therefore the national authorities had had to conduct a much greater number of investigations and other judicial acts compared with normal periods. In these circumstances, expecting the authorities to conduct and finalise the domestic proceedings within a short time would place too heavy a burden on the State. Despite this reality, the Court had given notice of the present applications to the Government within less than a year from the dates of the incidents, which was too short a period for the completion of all domestic remedies. The Government emphasised, once more, that the safeguards guaranteed under the Convention were of a subsidiary nature and that what really mattered was the protection afforded by the national authorities. In this connection the Government underlined that the Court was not an authority with which an application could be lodged from the date of the incident and which could take the place of the national authorities in rendering a decision.
77. In their additional observations submitted to the Court on 23 October 2018, as well as during the hearing, the Government emphasised that the Constitutional Court had established a priority policy, as set out in section 68 of its Internal Regulations (see paragraph 62 above), whereby applications concerning alleged violations of the right to life, the prohibition of torture and ill-treatment and the right to liberty and security were examined first of all. Applications involving a “continuing violation” of those matters were treated with particular urgency by the Constitutional Court, as in the cases of Erdem Gül and Can Dündar (application no. 2015/18567) and Şahin Alpay (application no. 2018/3007), both of which concerned an alleged continuing violation of the right to liberty. In both those cases decisions on the merits had been rendered within some two months following the lodging of the respective applications.
78. The Government further informed the Court that between 23 September 2012 and 30 June 2018, 191,371 applications had been lodged before the Constitutional Court. Among those applications, 7,704 concerned alleged violations of the right to life, 3,578 concerned alleged violations of the prohibition of torture and ill‑treatment, and 13,439 applications concerned alleged violations of the right to liberty and security. The Constitutional Court was therefore currently facing some 24,000 applications falling within the scope of priority examination. The situation had been further exacerbated by the fact that since 2016 the Constitutional Court had received some 140,000 new applications.
79. Turning to the present applications, the Government explained that the requirement for the immediate examination of the application lodged by Orhan Tunç had ceased to exist following his death, as there was no longer a “continuing violation” requiring an urgent response. The Government argued that such an approach was in line with the Court’s priority policy and practice. They added that the Constitutional Court had nevertheless continued to examine the applications concerning his right to life in accordance with its priority policy. Bearing in mind that the investigation concerning Orhan Tunç’s death had only become final on 17 July 2017 and that the individual application in respect of his death and the ensuing investigation had not been lodged with the Constitutional Court until 18 December 2017, and also taking account of the Constitutional Court’s current caseload as explained above, it could not be said that the Constitutional Court had failed to deal with the cases concerning Orhan Tunç within a reasonable time. As part of their submissions, the Government also provided a timeline of the actions taken so far by the Constitutional Court regarding the individual applications lodged concerning the alleged violation of Orhan Tunç’s right to life, as noted in paragraphs 47 and 48 above.
80. At the hearing on 13 November 2018, the Government once more contested the applicants’ assertion that no remedy had been available domestically, and argued that the applicants’ own actions proved otherwise: the applicants had availed themselves of criminal and administrative-law remedies in respect of their complaints, as well as lodging two individual applications before the Constitutional Court. These remedies were currently pending before the Turkish courts, and they were all capable of providing the applicants with redress. The Court itself had noted in cases such as Zihni v. Turkey ((dec.), no. 59061/16, 29 November 2016) that the remedy of an individual application to the Constitutional Court, in principle, offered prospects of appropriate redress for grievances under the Convention and that it was up to the individual victim to test the limits of that protection. The Government stressed that the decisions delivered by the Constitutional Court to date in respect of the requests for interim measures had no bearing on the discussions concerning the exhaustion of domestic remedies.
81. The Government asserted that, contrary to the applicants’ unfounded criticisms (see paragraph 96 below), the handling of the applications in question by the Constitutional Court had conformed to the priority policy, in circumstances where the Constitutional Court was faced with more than 41,000 pending applications, of which several thousand concerned alleged violations of the right to life and other core rights which fell within the framework of priority examination.
82. In the Government’s view, the applicants’ argument regarding the absence of any precedent where the Constitutional Court had found a violation of the right to life on account of the unlawful use of force by the security forces was also erroneous (see paragraph 98 below). While the complaints arising from the counter-terrorism operations conducted during the curfews at issue had not yet been examined – as the first application concerning an alleged killing by the security forces during the curfews had only been received by the Constitutional Court on 23 March 2017 – the Constitutional Court had found violations of the right to life arising from the use of force by the security forces in other contexts. The Government referred in this connection to the judgments delivered by the Constitutional Court in the cases of, inter alia, Cembeli Erdem (case no. 2014/19077, 18 April 2018) and Seyfullah Turan and Others (case no. 2014/1982, 9 November 2017).
83. The Government concluded by arguing that if the Court were to render a decision on the present applications now, it would unduly interfere with the ordinary judicial process in Turkey and would in fact pre-empt and prevent any impending decision by the Turkish courts. It would thus deny the Turkish authorities the opportunity to address and, where appropriate, to afford redress for the breaches alleged. The Government noted that the applicants had from the very beginning been pursuing a dual-track strategy of applying both to the Turkish judicial authorities and to the Court at the same time. They urged the Court, however, not to lose sight of the fact that the machinery of protection established by the Convention was not additional, but subsidiary to the national systems safeguarding human rights.
2. The applicants
84. The applicants submitted that the respondent Government bore the burden of proving that the remedies referred to by them were effective and accessible, that they were capable of providing adequate redress and that they offered reasonable prospects of success. According to the applicants, the Government had failed to discharge that burden. For example, although hundreds of people affected by the curfews had embarked on exhausting the domestic remedies by lodging criminal complaints with the prosecutors and by lodging individual applications to the Constitutional Court, the Government had not been able to show to the Court that any of them had succeeded in obtaining redress.
85. The applicants submitted that, in any event, no effective remedies existed in Turkey that were capable of providing redress for their complaints and argued that they should not be expected to exhaust remedies which only existed in theory. Referring to the Court’s judgment in the case of Akdıvar and Others v. Turkey (16 September 1996, § 67, Reports of Judgments and Decisions 1996‑IV), the applicants argued that there were special circumstances which rendered the domestic remedies ineffective and which therefore exempted them from having to exhaust the existing domestic remedies.
86. The applicants argued in that connection that there was an administrative and judicial practice of impunity concerning the large-scale and systematic human rights violations that had been committed during the curfews, despite their gravity. The respondent Government were refusing to acknowledge that the Turkish security forces had acted unlawfully, whereas in actual fact the State authorities themselves had requested the security forces to behave in the way that they had during the curfews. The systematic violation of fundamental rights during the curfews was indeed the product of a deliberate State policy. The applicants also complained that their lawyers and the non-governmental organisations who had assisted them during the curfews and represented them before the judicial authorities, including the Court, had been targeted, by politicians as well as the authorities, arrested and imprisoned.
87. In the opinion of the applicants, there was no independent and impartial judicial system in Turkey to investigate the offences committed during the curfews. They referred in that connection to the reports published by various governmental and non-governmental organisations – including the European Commission for Democracy through Law (Venice Commission), the Group of States against Corruption (GRECO) and the International Commission of Jurists – and argued that according to those reports, the judiciary in Turkey was not impartial or independent and had lost its effectiveness on account of the intervention of the executive.
88. When the widespread problem of impunity and the failures to execute the judgments of the European Court of Human Rights were taken into account together, it was apparent that the existing domestic remedies offered no prospect of success and were insufficient to meet even the minimum standards of effectiveness required by the Court in its case-law.
89. The applicants added that the shield of impunity, which had been a cause for concern since the 1990s, had been further strengthened by a number of laws passed since March 2015, as also noted by the Commissioner of Human Rights in his submissions (see paragraph 102 below).
90. After making the aforementioned observations of a more general nature, the applicants argued that the three remedies specifically referred to by the Government were ineffective for the following reasons.
(a) Criminal-law remedies
91. The applicants argued that the criminal-law remedies had been ineffective in the present circumstances. In making this claim, they largely relied on the arguments which they subsequently made before the Constitutional Court, as noted in paragraphs 42 and 43 above. The applicants stressed that the main purpose of the investigations conducted into the killings in the areas under curfew had been to criminalise the deceased persons rather than investigate their deaths. Considering the investigation process as a whole, it was obvious that it had not been capable of leading to the identification and punishment of those responsible.
(b) Administrative-law remedies
92. Referring to the Court’s judgments in the cases of, inter alia, Assenov and Others v. Bulgaria (28 October 1998, § 102, Reports 1998‑VIII) and İlhan v. Turkey [GC] (no. 22277/93, §§ 60-64, ECHR 2000‑VII), the applicants mainly argued that the Court had not regarded compensatory remedies as referred to by the Government as effective in similar cases raising issues under Article 2 of the Convention.
(c) Constitutional Court remedy
93. The applicants submitted that, while the curfews were in place, a total of sixteen applications concerning many people affected by the curfews, including Orhan Tunç, had been made to the Constitutional Court for interim measures and that all of those applications had been rejected. In their applications to the Constitutional Court the applicants had argued that the curfews were unlawful and therefore in breach of their rights under, inter alia, Article 2 of the Convention. In the opinion of the applicants, the Constitutional Court had demonstrated its ineffectiveness when it had rejected all of their requests for interim measures without examining them adequately and by relying solely and readily on the information it had been provided with by the local governor’s office. The applicants maintained that this exclusive reliance on information furnished by the local authorities, in disregard of other possible sources of information and in the absence of any further assessment of the situation on the ground, suggested that the Constitutional Court had used its judicial power in the administration’s favour.
94. As also noted by the Commissioner for Human Rights (see paragraph 102 below), the Constitutional Court, in its decisions rejecting the requests for interim measures, had failed to take a firm stance against impunity to make sure that perpetrators of human rights violations committed during the curfews would be brought to justice and that no further offences would be committed. The applicants argued that the Constitutional Court had adopted this passive and hesitant approach after facing heavy criticism from the President of Turkey following its decisions in a number of politically sensitive cases, such as that of 25 February 2016 in the case of Erdem Gül and Can Dündar (application no. 2015/18567).
95. The applicants added that the absence of any meaningful action by the Constitutional Court since the lodging of their individual applications was further proof of its ineffectiveness in the curfew cases.
96. In their additional observations submitted on 25 October 2018, the applicants argued that although a prioritisation policy had purportedly been put in place to allow the Constitutional Court to examine certain groups of cases more speedily, there was no transparency as to how that policy was applied. The court’s practice to date suggested that the prioritisation policy was applied inconsistently and arbitrarily.
97. The applicants stated that priority treatment had been requested from the Constitutional Court at the time of the lodging of the individual applications on behalf of Orhan Tunç. They had not, however, received any response to their request. It had taken the Constitutional Court some twenty months after Orhan Tunç’s initial application in February 2016 (no. 2016/2602) to give them notice of the documents missing from the case file. Although the case file had been completed in December 2017, there had been no further action on the Constitutional Court’s part. The individual application that they had subsequently lodged on December 2017 had suffered the same fate: the Constitutional Court appeared to have taken no action on that case, except for assigning it a case number.
98. The applicants contended that the Constitutional Court’s indifference was not specific to their cases, but could be observed in all cases brought before it concerning human rights violations committed during the curfews. In none of those cases had the Constitutional Court rendered a decision so far. The applicants further submitted that as a matter of fact, since the introduction of the remedy of an individual application, the Constitutional Court had not delivered a single judgment where a violation of the right to life had been found in respect of the actions of the security forces during a security operation, and the applicants expressed doubts as to whether it would ever do so.
99. At the hearing on 13 November 2018, the applicants reiterated their view that in the particular circumstances of the present case, the Constitutional Court had provided no realistic prospects of success and had not constituted an effective remedy. The applicants stressed, in particular, that although a considerable amount of time had elapsed since the lodging of the individual applications on behalf of Orhan Tunç, the Constitutional Court had yet to take any action in respect of their claims. In the applicants’ opinion, even if the prosecutors were now to reopen the investigation following a favourable judgment from the Constitutional Court, vital evidence had not been collected, or had been spoiled or destroyed. In those circumstances, the prospects of any investigation being capable of establishing the truth or punishing the perpetrators, more than two years and nine months after the incident, were substantially undermined. While the Government had attributed this delay to the large volume of cases pending before the Constitutional Court, the applicants argued that that could not be a sufficient justification for not processing speedily urgent applications concerning the right to life.
100. The applicants further argued at the hearing that the prospects of success following a favourable judgment from the Constitutional Court were further diminished by virtue of the recent practice of lower courts and public prosecutors, which did not always consider themselves bound by the rulings of the Constitutional Court. The applicants referred in that connection to the Constitutional Court’s decisions in the cases of Şahin Alpay (application no. 2016/16092) and Mehmet Hasan Altan (application no. 2016/23672) (for further details, see the Court’s judgments in Şahin Alpay v. Turkey, no. 16538/17, §§ 29-43, 20 March 2018, and Mehmet Hasan Altan v. Turkey, no. 13237/17, §§ 34-55, 20 March 2018), and to an academic study, not submitted to the Court, according to which a considerable proportion of decisions involving violations of the right to life and of the prohibition of ill-treatment remained unimplemented by the public prosecutors.
101. The applicants reiterated that the “shield of impunity” granted to members of the security forces had been further strengthened by the legislature in recent years (see paragraphs 89 above and 102 below), and that the Constitutional Court did not have competence to strike down the relevant legal provisions.
B. Submissions of the Commissioner for Human Rights
102. The submissions made by the Commissioner for Human Rights can be consulted via the link provided in paragraph 8 above. His submissions, in so far as they concern the issue of domestic remedies, read as follows (with footnotes omitted):
“Deficiencies in investigations and risk of impunity
25. The Commissioner is mindful of the fact that the need for effective investigations into alleged violations of the right to life and the prohibition of torture stems from the procedural limbs of Articles 2 and 3 of the Convention and that the essential purpose of these investigations is to ensure accountability and impose deterrent sanctions on those responsible.
26. The Commissioner finds the number of criminal investigations initiated by judicial authorities disheartening compared to the large number and gravity of allegations concerning the excessive use of force and misconduct of security forces. During his visit, the Commissioner was informed of only two cases where security personnel were suspended pending investigations, following the outrage caused by images of a dead body being dragged behind an armoured police vehicle in Şırnak in October 2015 (see paragraph 16). Another investigation was instigated where the death of a civilian was confirmed by the public prosecutor; however, no suspects had been identified at the time of the Commissioner’s visit. Moreover, the investigation into the murder of Tahir Elçi, who as mentioned, was fatally shot in Diyarbakır, has similarly been unacceptably slow and hindered by deficiencies in the collection of evidence, such as the crime scene being damaged due to armed clashes and footage from the police and several CCTV cameras in the street being lost or irretrievable. The expert report submitted in the investigation file concluded that it was impossible to determine the source of the bullet which killed Mr Elçi and the Commissioner understands that no indictment has been issued to this date. In May 2016 the authorities informed the Commissioner that disciplinary proceedings had been issued against 63 personnel; however, no up-to-date information was provided regarding the number of on-going judicial investigations. The Commissioner is alarmed by the failure of the Turkish authorities to effectively investigate the allegations of serious human rights violations which took place in the region despite the length of time elapsed since 16 August 2015, which is the date of the first declared curfew.
27. During his April 2016 visit, the Commissioner was particularly worried by consistent reports about the public prosecutors’ alleged refusal to carry out crime‑scene investigations in the basements in Cizre due to safety concerns, prompting the relatives and lawyers of the deceased to collect the relevant evidence. The Commissioner understands that law enforcement officers and prosecutors may have encountered challenging work conditions in areas damaged by operations; however, given the information blackout prevailing in the region at the relevant time, the Commissioner stresses the importance of the state authorities’ duty to establish the facts relating to alleged violations through credible and effective investigations.
28. The Commissioner also received accounts of deliberate destruction of evidence. In this respect, he particularly notes the hasty removal of rubble of the destroyed buildings in Cizre where a number of presumed terrorists had taken shelter. He was also the recipient of reports of irregularities in the way bodies had been transported to forensic laboratories, particularly the fact that they appeared in morgues without any clothing, thus stripped of crucial evidence that might reveal the cause of death. The number and consistency of such allegations indicate an irreversible state of loss of evidence, which, combined with the time elapsed since some of the operations and the general attitude of prosecutors, raises serious doubts that any future investigation will comply with the standards of effectiveness set by the Court. The Commissioner considers that one of the main problems in the present cases is the reluctance of prosecutors and judges to confront security forces in an independent and impartial fashion, as well as to take independent sources of information conflicting with the official version of the events seriously.
29. Looking more broadly at remedies that would allow for alleged violations of the right to life or the prohibition of torture flowing from the counter-terrorism operations to be addressed, the Commissioner notes the five Turkish Constitutional Court rulings in response to requests for interim measures from persons taking shelter in the basements in Cizre. He notes that the Constitutional Court rejected all of these requests considering that either the applicants had not reached out to the authorities to inform them of their need for assistance or they had not sufficiently collaborated with the authorities to meet the ambulance dispatched in a nearby location. He also notes that the said decisions did not examine the question of the legality of the curfews; nor did they appear to take into account the specific vulnerabilities of the applicants, who were suffering life endangering injuries with no access to basic necessities or means of communication. Some of the Commissioner’s interlocutors have underlined that these decisions have not sent out a clear message compelling the authorities to take all necessary steps to protect the fundamental rights of persons in the curfew zones and to effectively investigate alleged violations. The Commissioner can only note in this respect that while more than a year has lapsed since the allegations were brought to the attention of the authorities, including the Turkish Constitutional Court, no meaningful action has been taken by the investigating authorities to this date.
30. More generally, the Commissioner cannot but take note of the fact that a number of international bodies including the Venice Commission, GRECO, the EU and the International Commission of Jurists expressed their concerns regarding the erosion of judicial independence and the increasing interference by the executive in the judiciary in Turkey, which in turn diminishes public trust in the effectiveness of judicial remedies in the country.
31. The Commissioner maintains that his above-mentioned concerns about the effectiveness of investigations and domestic remedies are further magnified by the deep-rooted problem of impunity in the country, which has been an issue of concern for both the Commissioner and his predecessor. The Commissioner notes with regret that the attitude and conduct of the Turkish authorities during the curfews and anti‑terrorism operations in the South-East not only justified but also exacerbated such concerns.
32. In this respect, the Commissioner must note that a series of laws adopted since March 2015 further strengthened the shield of impunity. In particular, Law No. 6722 of 23 June 2016 introduces the requirement to seek authorisation from the relevant ministries before launching judicial investigations into the acts of public officials carried out during counter-terrorism operations and provides that any offence committed in the framework of these operations would fall within the jurisdiction of military courts, effectively shielding military personnel from any civil investigation or proceedings. Crucially, this law also introduced a provisional article to the Provincial Administration Law, making these provisions retroactively applicable to operations conducted before its adoption.
33. The Commissioner observes that the tolerance for excessive use of force employed by security forces in counter-terrorism operations in South-Eastern Turkey has been reinforced during the state of emergency which was declared following the coup attempt in July 2016 via a series of legislative decrees. In particular, the decree No. 667 issued on 22 July 2016 granted legal, administrative, criminal and financial immunity to administrative authorities acting within the framework of the said decree. In the Commissioner’s view, these legislative changes which grant broad immunity to state agents, including immunity from criminal liability, send the wrong message in the fight against impunity and bear the risk of opening the door to further abuses.”
C. The Court’s assessment
103. The Court reiterates at the outset the general principles developed in its case-law regarding the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention (see, for instance, Sargsyan v. Azerbaijan [GC], no. 40167/06, §§ 115-16, ECHR 2015), and notes in particular that in so far as there exists at the national level a remedy enabling the domestic courts to address, at least in substance, the argument of a violation of a given Convention right, that remedy should be used (see, mutatis mutandis, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 75, 25 March 2014).
104. It must be stressed that the Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, take the place of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected at domestic level. The Court also cannot emphasise enough that it is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts, which should, as a matter of principle and effective practice, be the domain of domestic jurisdiction (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 et al, § 69, ECHR 2010).
1. Alleged violation of Articles 2 and 13 of the Convention
105. The Court considers firstly that the applicants’ complaints under Articles 2 and 13 of the Convention as outlined in paragraph 64 above should be examined from the standpoint of Article 2 of the Convention alone, the relevant part of which reads as follows:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally ...”
106. The Court observes that there are currently two individual applications pending before the Constitutional Court concerning the alleged violation of the right to life of Orhan Tunç: the first one lodged directly by Orhan Tunç himself in February 2016 to complain of the alleged failure of the State authorities to provide him with the requisite medical care, in breach of their positive obligation to protect his life, and the second one lodged in December 2017 by the applicants in the aftermath of the public prosecutor’s decision not to prosecute any State agents in connection with the death of Orhan Tunç. The Court notes that the arguments and complaints brought before the Constitutional Court in those two applications are virtually identical to the ones that were submitted to the Court in the present case under Article 2.
107. The Court notes that it has found the procedure available in Turkey of an individual application to the Constitutional Court to be an effective remedy for violations of the rights and freedoms protected by the Convention, and has held that it offers prospects of appropriate redress for complaints under the Convention (see, for instance, the decisions in the cases of Uzun, cited above, §§ 67 and 69-70; Erol, cited above, §§ 30‑33; and Zihni, cited above, §§ 25-27).
108. In its recent decision in Kaya and Others v. Turkey, the Court observed that the Constitutional Court’s examination of the complaints concerning the effectiveness of the investigation into the death of the applicants’ relative had been adequate and in accordance with its case-law. The Court further noted in the decision that, after having established that the investigation into the applicants’ relative’s death had been flawed, the Constitutional Court had remitted the case to the relevant prosecutor to reopen the investigation with a view to remedying the deficiencies. The Court remarked that such action was the keystone of the individual application mechanism instituted on 23 September 2012 in the Turkish legal system, in particular for cases raising issues under Articles 2 and 3 of the Convention (see Kaya and Others v. Turkey (dec.), no. 9342/16, 20 March 2018).
109. In these circumstances, the Court notes at the outset that the applicants’ complaints under this head are prima facie premature, having regard to their applications pending before the Constitutional Court in respect of those complaints. The Court also notes, however, that the applicants consider the remedy available before the Constitutional Court to be ineffective for the purposes of the present case, for the reasons stated in paragraphs 84-90 and 93-101 above. The applicants mainly argue that the alleged erosion of the independence and impartiality of the judiciary in recent years in Turkey, coupled with the alleged administrative and judicial practice of impunity concerning the large-scale and systematic human rights violations committed during the curfews release them from the obligation to make use of the remedy of an individual application to the Constitutional Court, or any other court for that matter. They further argue that even if, despite the political context prevailing in the respondent State, the Constitutional Court were to deliver a judgment favourable to them, the inordinate length of time for which their cases have already been pending before that court and the serious doubts regarding the enforceability of its decisions are sufficient to render that remedy ineffective in the particular circumstances of their case.
110. Having regard to the arguments put forward by the applicants, the Court will first examine whether there existed special circumstances exempting them from the requirement to make use of the remedy of an individual application to the Constitutional Court. It will then proceed to examine whether that remedy is for some other reason – mainly pertaining to its functioning – inadequate and/or ineffective in the particular circumstances of the case.
(a) Existence of special circumstances
111. The Court reiterates firstly that in assessing whether an applicant has exhausted the available domestic remedies in a particular case, it must take realistic account not only of formal remedies available in the domestic legal system, but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicant (see Akdıvar and Others, cited above, §§ 68-69; Chiragov and Others v. Armenia [GC], no. 13216/05, § 119, ECHR 2015; and Sargsyan, cited above, §§ 117-19). According to the generally recognised rules of international law, there may be special circumstances which exempt the applicant from the obligation to exhaust the domestic remedies at his disposal (see Akdıvar and Others, cited above, § 67). One such reason may be constituted by the national authorities remaining totally passive in the face of serious allegations of misconduct or infliction of harm by State agents, for example where they have failed to undertake investigations or offer assistance.
112. The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective (see Akdıvar and Others, cited above, § 67, and Georgia v. Russia (I) [GC], no. 13255/07, §§ 122-24, ECHR 2014 (extracts)). Such “official tolerance” may be found to exist where a competent authority, in the face of numerous allegations, manifests indifference by refusing any adequate investigation of their truth or falsity, or where a fair hearing of such complaints is denied in judicial proceedings (see Georgia v. Russia, cited above, § 124).
113. The Court also notes, however, that the threshold for a “special circumstances” dispensation is high (see, mutatis mutandis, N.J.D.B. v. the United Kingdom, no. 76760/12, § 57, 27 October 2015), and the Court has been prepared to find the existence of such special circumstances only in exceptional cases, such as in Akdıvar and Others (cited above), Aksoy v. Turkey (18 December 1996, §§ 51-57, Reports 1996-VI) and Isayeva and Others v. Russia (nos. 57947/00 and 2 others, § 150, 24 February 2005).
(i) Alleged administrative and judicial practice of impunity
114. Turning to the facts before it, the Court notes the submissions of the applicants and the Commissioner for Human Rights regarding the grave allegations of human rights violations committed in south-east Turkey during the curfews, as well as allegations of serious deficiencies observed in virtually all investigations conducted into deaths resulting from the security operations carried out in the curfew areas. The Court also notes the arguments as to the existence of a practice of impunity in Turkey in respect of human rights violations committed by the security forces, particularly within the context of the fight against terrorism, as evidenced, allegedly, by a series of laws which, in the applicants’ and the Commissioner’s opinion, serve to provide the perpetrators with a “shield of impunity” (see paragraph 102 above).
115. While the Court in no way underestimates the gravity of those allegations, it does not consider that they exempt the applicants from the obligation to exhaust the available domestic remedies in the present circumstances. The Court notes in this connection that all of the complaints regarding both the unlawful acts allegedly committed by State agents and the ineffective response of the judicial apparatus to those acts – whether resulting from the alleged indifference of individual prosecutors in the face of those serious allegations or from laws subjecting the prosecution of such allegations to the discretionary approval of administrative authorities – have been, or could have been, brought by the applicants before the Constitutional Court, a mechanism which did not exist at the time of the aforementioned cases of Akdıvar and Aksoy. The Court reaffirms in this regard that the remedy of an individual application, available before the Constitutional Court since 23 September 2012, is fully capable, in a similar fashion to an application to the Court, of leading to an examination of those allegations, as well as any other complaints raised by the applicants before the Court (see, once again, Kaya and Others, cited above). Although the applicants argued that since September 2012 the Constitutional Court had yet to deliver a single judgment on violations committed by the security forces within the context of counter‑terrorism operations, and expressed doubts as to its capacity to address such complaints, the Court reiterates that in a legal system providing constitutional protection for fundamental rights, it is incumbent on the aggrieved individual to test the extent of that protection (see, for instance, Vučković and Others, cited above, § 84). Moreover, mere doubts regarding the effectiveness of a particular remedy will not exempt applicants from the obligation to try it (see, for instance, Vučković and Others, cited above, §§ 74 and 84).
116. In these circumstances, the Court cannot accept the applicants’ argument regarding the existence of an administrative and judicial practice of impunity in Turkey which exempted them from the obligation to exhaust the available domestic remedies. In the Court’s opinion, it is not possible to argue that the national authorities have remained “totally passive in the face of serious allegations of misconduct or infliction of harm by State agents”, before the Constitutional Court, as the supreme constitutional judicial authority, has ruled on those allegations. The Court is of course mindful of the applicants’ arguments regarding the alleged passivity of the Constitutional Court itself in the face of their serious allegations, as evidenced – according to the applicants – by the length of time for which their cases have been pending before that court. The Court does not, however, accept those arguments, for reasons that will be explained below (see paragraphs 120-125).
(ii) The applicants’ arguments regarding the lack of independence and impartiality of the Turkish judiciary
117. The applicants also complained, in a general manner, of the lack of independence and impartiality of the judiciary in Turkey, arguing mainly that the judiciary had increasingly come under undue political pressure from the executive in recent years. In the absence of a judicial mechanism that was capable of an independent and impartial examination of human rights violations committed by the security forces during the curfews, the applicants maintained that they were exempted from the obligation to exhaust domestic remedies.
118. The Court is aware of the allegations of erosion of judicial independence in Turkey made by a number of international bodies, as also noted by the Commissioner for Human Rights in his submissions. While it notes the seriousness of those concerns, the Court may not, however, examine in the abstract whether there exists in Turkey a general problem of independence and impartiality that affects the overall functioning of the judiciary, and draw conclusions from such an assessment for the purposes of the present case. The Court must rather focus its examination on the facts and evidence presented before it in respect of the present case. It considers in that regard that the applicants have not submitted sufficient evidence to support the argument that the Turkish judiciary in general, and the Constitutional Court in particular, lacked the willingness and the competence to examine their complaints in the present case in an independent and impartial manner owing to the undue influence of the executive (see, mutatis mutandis, Zihni, cited above, § 29). The Court reiterates that doubts as to the lack of independence and impartiality of investigatory authorities or courts may in certain circumstances raise an issue under Article 2 of the Convention (see, for instance, Oğur v. Turkey [GC], no. 21594/93, § 91, ECHR 1999‑III, and Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, §§ 169 and 177, 14 April 2015), but they cannot, in principle, be raised as a pre-emptive claim to escape the obligation to exhaust domestic remedies (see, mutatis mutandis, Mercan v. Turkey (dec.), no 56511/16, § 26, 8 November 2016).
119. To the extent that the applicants claimed that the Constitutional Court’s lack of independence and impartiality, or of overall effectiveness, in the context of the present case was evidenced by its reaction vis-à-vis the requests for interim measures (see paragraph 94 above), the Court, once again, does not accept this argument. It notes in this connection that the Constitutional Court did not reject the request for interim measures by Orhan Tunç and others without justification, but on the basis of material information – the accuracy of which the Court is not in a position to verify – provided by the local authorities to the effect that the individuals in question could not be located at the addresses indicated. In delivering that decision the Constitutional Court urged the authorities to continue to take the necessary measures to determine the locations of the individuals in question, regardless of their identities – meaning affiliations – and to ensure their access to healthcare services as part of the State’s obligation to protect the right to life. The Constitutional Court’s reaction may be unsatisfactory in the applicants’ opinion; however, in the absence of further evidence, it does not as such cast doubt on that court’s independence and/or impartiality. The Court notes in any event that, as also mentioned by the Government (see paragraph 80 above), the interim measure mechanism serves a very specific purpose, and does not per se prejudice or predetermine the Constitutional Court’s assessment of the merits of the case.
(b) The applicants’ arguments regarding the length of the proceedings before the Constitutional Court
120. The Court next notes the applicants’ argument that the remedy of an individual application had in any event become ineffective in the particular circumstances of their case, as the applications brought by or on behalf of Orhan Tunç had been pending before the Constitutional Court since 10 February 2016 and 18 December 2017 respectively. The Court reiterates in this connection that for any remedies in respect of allegations of deprivations of life to be regarded as effective, the proceedings must be conducted promptly and with reasonable expedition (see, for instance, Mustafa Tunç and Fecire Tunç, cited above, §§ 178 and 225, and Seyfettin Acar and Others v. Turkey, no. 30742/03, §§ 23-24, 6 October 2009).
121. That said, having regard to the detailed information and arguments submitted by the respondent Government regarding both the Constitutional Court’s priority policy, which appears to be in line with that of the Court, and the steps taken so far by that court in the processing of the applications in question, the Court considers that the length of those proceedings may not yet be said to have rendered that remedy wholly ineffective for the purposes of the present case.
122. The Court would emphasise that while a considerable period has indeed elapsed particularly since Orhan Tunç first applied to the Constitutional Court in February 2016 (application no. 2016/2602), the reasonableness of that period may not be assessed independently from the events that ensued after his application. The Court notes in this connection that Orhan Tunç and others who applied to the Constitutional Court on 9 and 10 February 2016 all lost their lives in the days that followed their application, and it appears that criminal investigations were promptly initiated into their deaths. The public prosecutors in charge of the investigations had the duty and the authority to shed light on all the circumstances that had led to the deaths, including the alleged denial of medical care in the case of Orhan Tunç, which was the subject of his initial application to the Constitutional Court. That particular complaint was in fact brought to the attention of both the Şırnak public prosecutor and the Şırnak Magistrates’ Court by the applicants, who rightly expected the investigating authorities to establish all the acts and omissions of the State authorities which had led to the death of Orhan Tunç, including, once more, the alleged denial of medical care (see paragraphs 35 and 39 above).
123. In these circumstances, the Court does not consider it unreasonable that the Constitutional Court remained somewhat inactive while the criminal investigations into the deaths, including that of Orhan Tunç, were still pending and the factual circumstances surrounding the deaths were, at least in theory, being uncovered by the investigating authorities. It appears from the information in the case file that the criminal proceedings in respect of Orhan Tunç came to an end on 17 July 2017. It further appears from the information provided by the Government that since November 2017, that is, after the criminal proceedings ended, the Constitutional Court has started to deal with the case more actively, for example by reminding the applicants of the requirement to complete the case file and requesting the parties to submit their observations. Contrary to the arguments submitted by the applicants, the timeline provided by the Government (see paragraphs 47 and 48 above) does not indicate any lengthy periods of inactivity since the termination of the criminal proceedings. The same considerations hold true for application no. 2018/361, lodged subsequently by the applicants with the Constitutional Court, which has, in any event, only been pending before that court since 18 December 2017.
124. Bearing in mind that it has only been about one year and six months since the conclusion of the criminal proceedings in respect of the death of Orhan Tunç, and also noting the apparent complexity of the cases and the reasonable progress of the proceedings before the Constitutional Court, that court cannot yet be said to have failed to examine the applicants’ allegations in a timely manner.
125. The Court also notes the applicants’ argument that the delay in the proceedings had compounded the deficiencies in the collection of evidence and had thus substantially undermined the prospects of an effective future investigation into the death of Orhan Tunç (see paragraph 99 above). The Court considers once again, however, that the Constitutional Court has the competence to establish whether the integrity of the evidence has been compromised owing to the passage of time or for other reasons, and to determine what measures would be appropriate to put an end to a violation caused by such failures and to redress its effects (see section 50(1) of Law no. 6216, cited in paragraph 60 above). The Court cannot therefore speculate as to the prospects of success of any future investigation into the death of Orhan Tunç at this point.
(c) The applicants’ arguments regarding the non-enforcement of the Constitutional Court’s decisions
126. The applicants lastly argued that even if the Constitutional Court were to find a violation of the right to life on account of the ineffectiveness of the criminal investigation and to refer the case back to the public prosecutor’s office, recent practice had shown that the lower courts and public prosecutors might not consider themselves bound by the Constitutional Court’s judgments (see the applicants’ arguments in paragraph 100 above). They relied in particular on the reaction of the assize courts to the Constitutional Court’s judgments in the cases of Şahin Alpay and Mehmet Hasan Altan, as well as to the findings made in one academic study.
127. The Court observes, as indicated in the decision of Uzun (cited above), and as reiterated in the cases of Şahin Alpay (cited above, § 111) and Mehmet Hasan Altan (cited above, § 132), that pursuant to Article 153 § 6 of the Constitution and section 66(1) of Law no. 6216 on the establishment and rules of procedure of the Constitutional Court, the decisions of the Constitutional Court are binding on all State organs and authorities, as well as on all natural and legal persons. The fact that this is so has been confirmed unequivocally by the Constitutional Court in an application lodged by Mr Şahin Alpay himself against the Istanbul Assize Court’s refusal to release him, contrary to the Constitutional Court’s ruling to that effect. In its decision dated 15 March 2018 the Constitutional Court held that the failure of the Assize Court to end Mr Alpay’s pre‑trial detention, despite its earlier decision declaring that detention to be in breach of his right to liberty and security, had constituted a fresh breach of the right at issue. Referring to a number of judgments of the Court of Cassation and the Supreme Administrative Court on the binding nature of the Constitutional Court’s decisions on individual applications, it also held that there was no problem in practice in Turkey as to the enforcement of its decisions. The Court notes that Mr Alpay was released from pre-trial detention on the following day (that is, on 16 March 2018), and the Constitutional Court’s decision was thus effectively executed.
128. The Court acknowledges that deliberate failure to implement a final and enforceable judgment may have the effect of undermining the credibility and authority of the judiciary and of jeopardising its effectiveness (see, for instance, Broniowski v. Poland [GC], no. 31443/96, § 175, ECHR 2004‑V, and Kurić and Others v. Slovenia [GC], no. 26828/06, § 300, ECHR 2012 (extracts)). That said, having regard to the foregoing considerations, and in the absence of any compelling evidence to the contrary, the Court has no cause for the time being to doubt that any eventual findings of a violation by the Constitutional Court in respect of the applicants’ complaints would be effectively implemented. The Court also emphasises in this regard that it cannot accord weight to the applicants’ allegations regarding the poor rate of implementation of the Constitutional Court’s decisions by public prosecutors, in the absence of concrete and consistent evidence to that effect.
(d) Conclusion
129. The Court has examined the applicants’ arguments as to why they could not be expected to exhaust the available domestic remedies, in particular that of an individual application to the Constitutional Court, in connection with the complaints they have brought before the Court. However, for the reasons set out above, it considers that the applicants have failed to establish that the remedy before the Constitutional Court is inadequate and/or ineffective in the particular circumstances of their case or that there exist special circumstances exempting them from the requirement to pursue it. In this connection, the Court reiterates once again the principle that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to make use of that remedy (see Akdıvar and Others, cited above, § 71).
130. The Court therefore finds that in the circumstances of the present applications, the applicants cannot be considered to have complied with the exhaustion of domestic remedies rule laid down in Article 35 of the Convention. The applicants’ complaints under Article 2 of the Convention must therefore be rejected under Article 35 § 1 of the Convention for non‑exhaustion of domestic remedies.
131. Having made that finding, the Court also points out, however, that it retains the ultimate authority to supervise the implementation by Contracting States of their obligations under the Convention. The above findings do not prevent the applicants from lodging a new application before the Court in the event of any subsequent developments that may cast doubt on the effectiveness of the remedy of an individual application to the Constitutional Court, for example if the examination of their applications by that court is unduly prolonged, or if the Constitutional Court fails to examine their complaints in a manner that satisfies the requirements of Article 2 of the Convention (see, mutatis mutandis, Sarısülük, cited above, § 26). The Court refers in this connection to the principles set out in its case-law in respect of the substantive and procedural obligations under that Article (see, for instance, McCann and Others v. the United Kingdom, 27 September 1995, §§ 148‑49, Series A no. 324; Isayeva and Others, cited above, §§ 168‑200 and §§ 208‑25; Erdoğan and Others v. Turkey, no. 19807/92, §§ 65-95, 25 April 2006; Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, §§ 206-82, ECHR 2011 (extracts); Gülbahar Özer and Others v. Turkey, no. 44125/06, §§ 58-76, 2 July 2013; Cangöz and Others v. Turkey, no. 7469/06, §§ 105-49, 26 April 2016; Döndü Günel v. Turkey, no. 34673/07, §§ 22-35, 6 September 2016; and Tagayeva and Others v. Russia, nos. 26562/07 and 6 others, §§ 478-611, 13 April 2017).
2. Alleged violation of Articles 3 and 8 of the Convention
132. The applicants complained that the circumstances in which Orhan Tunç had been made to wait for medical assistance in a basement constituted ill-treatment within the meaning of Article 3 of the Convention. They further complained that their own suffering on account of their inability to retrieve Orhan Tunç’s body and give him a proper burial in a timely manner had amounted to violations of Articles 3 and 8 of the Convention.
133. The Court notes the Government’s assertion, which was not contested by the applicants, that the latter have not resorted to any domestic remedies in relation to these complaints, such as bringing an action for compensation against the competent authorities or lodging an individual action with the Constitutional Court.
134. The applicants, for their part, maintained their allegation that the available domestic remedies could not be expected to function effectively, considering the political climate in the region.
135. The Court notes that it has already declared inadmissible similar complaints raised by the relatives of other victims of the counter-terrorist operation at issue for non-exhaustion of domestic remedies (see, for instance, Oran and Others v. Turkey (dec.), no. 1905/16 and 3 others, §§ 55‑59, 6 December 2016), and sees no reason to depart from that finding in the present case. In these circumstances, and having regard also to its findings above regarding the effectiveness of the remedy of an individual application to the Constitutional Court, the Court finds that these complaints must likewise be rejected under Article 35 § 1 of the Convention for non‑exhaustion of domestic remedies.
II. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
A. Complaint concerning the Government’s alleged failure to comply with the interim measure in application no. 4133/16
1. The parties’ arguments
136. The applicants complained under Article 34 of the Convention that the respondent State had failed to comply with the interim measure indicated by the Court on 19 January 2016 by not taking any steps to ensure Orhan Tunç’s access to medical facilities and by preventing other persons from offering him assistance.
137. They argued firstly that the Government had not provided any information as to what measures had been taken to protect the lives of civilians during the security operation. Although the authorities claimed that the ambulances could not reach the injured persons on account of terrorist action, there was no evidence in the file to corroborate that allegation: while there were a couple of virtually identical statements from healthcare workers regarding the refusal of the security forces to let ambulances pass on the pretext of ongoing clashes, there was no direct account of a healthcare worker who had actually witnessed a clash and had been prevented from accessing an injured person on that account.
138. In Orhan Tunç’s specific circumstances, despite numerous calls, an ambulance had not been made available to take him to hospital. Even assuming that an ambulance had been made available at a “safe” place some 1,500 metres from his location, as alleged, no consideration had been given as to how an injured person could have walked that distance or whether he would have risked being shot by the security forces or terrorists while doing so, as had happened in some other cases. The applicants stressed that the Court had specifically asked the Government to provide a detailed timeline indicating all the steps that had been taken to protect Orhan Tunç’s right to life and physical integrity, in accordance with the requirements of the interim measure granted on 19 January 2016. In their response, however, the Government had merely stated that all necessary efforts had been taken by the State authorities to save Orhan Tunç’s life, without actually stating what those efforts had involved or providing a detailed timeline as requested by the Court.
139. The Government, for their part, argued that the Court’s interim measure had been promptly notified to the national authorities in order for the necessary actions to be taken, and the healthcare personnel had made meticulous efforts to access all injured persons, including Orhan Tunç. They further submitted, however, that the street where Orhan Tunç had been told to wait for an ambulance had been planted with improvised explosive devices and blocked with ditches and barricades; there had been intense fighting on that street between the security forces, who had been tasked with removing those traps, and the members of the terrorist organisation. The ambulances could not, therefore, access that street in order to assist Orhan Tunç. Moreover, the only contact with the emergency services for Orhan Tunç’s removal had been made by a local MP, Mr Faysal Sarıyıldız, and not by Orhan Tunç himself or a family member. Mr Sarıyıldız had not been able to provide the contact information and full address of Orhan Tunç, and had told the emergency services that Orhan Tunç could not be taken to the designated safe area to meet the ambulance. The emergency services had nevertheless made all possible efforts in the circumstances to reach him. The authorities had also called Mehmet Tunç, Orhan Tunç’s brother, a number of times on 21 January 2016, in order to locate Orhan Tunç, but had not been able to get in touch with him. When they had finally managed to get hold of him on 23 January 2016, Mehmet Tunç had told the authorities that he had no information as to the state of health or the location of his brother.
140. The Government further asserted that the address specified in the application form as to the location of Orhan Tunç had been different from the one given to the emergency services by Mr Sarıyıldız, which indicated that the applicants had not only failed to cooperate with the authorities in order to determine the location of Orhan Tunç, but had misled them.
2. The Court’s assessment
141. The Court refers at the outset to the principles set out in its case‑law regarding the obligations laid down under Article 34 of the Convention and their relationship to the interim measures provided for by Rule 39 (see, for instance, Paladi v. Moldova [GC], no. 39806/05, §§ 84-92, 10 March 2009). According to those principles, the starting-point for verifying whether a respondent State has complied with an interim measure is the formulation of the interim measure itself (see Paladi, cited above, § 91).
142. The Court notes in this connection that the interim measure indicated on 19 January 2016 requested the Turkish Government to “take all measures within their powers to protect Orhan Tunç’s life and physical integrity”. The Government did not dispute their obligation, under Article 34 of the Convention, to comply with that interim measure. Instead, they contended that the competent authorities had done everything in their power to comply with the measure, to the extent that the extraordinary circumstances at the material time had allowed. They submitted in that connection that all relevant units had been notified of the interim measure and had been instructed to take the necessary action. Despite the hardships faced, the emergency services had made all possible efforts to locate and access Orhan Tunç, such as contacting Mr Faysal Sarıyıldız and Mr Mehmet Tunç to obtain up-to-date information regarding Orhan Tunç’s whereabouts and state of health, and dispatching an ambulance to a nearby location. The applicants contested the accuracy of the facts as presented by the Government, as well as the adequacy of the actions that they claimed to have taken in compliance with the interim measure.
143. The Court notes that the question whether the Government in fact took all reasonable steps to comply with the interim measure at issue requires an assessment of the circumstances prevailing in the area on the dates in question. It also notes, however, that as set out above, the domestic proceedings concerning the incidents are still continuing and the relevant facts remain unestablished for the time being. The Court reiterates in this connection that it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate cases which require the finding of basic facts, which should, as a matter of principle and effective practice, be the domain of domestic jurisdiction (see Vučković and Others, cited above, § 70, and the references cited therein). Noting in particular the disputed nature of the facts, the Court considers that the domestic courts must first be given the opportunity to establish the facts that would serve for the Court’s examination under Article 34.
144. The Court further notes that the complaint under this head concerns, in effect, the respondent State’s positive obligation under Article 2 to safeguard the lives of those within its jurisdiction (see, for instance, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998‑III), and as such, it is closely related to the complaint raised by the applicants before both the Strasbourg Court and the Constitutional Court to that effect. The Court has already found that the Constitutional Court, as the supreme judicial authority, must be given the opportunity to examine the substance of that complaint. In these circumstances, and bearing in mind the close relationship between the complaints under Articles 2 and 34 in the present context, the Court considers that it should also refrain from examining the complaint under Article 34 for the time being, as the latter necessarily entails an examination of the State’s positive obligations under Article 2. While the Court is aware that there is no exhaustion requirement in respect of Article 34 complaints and that the Court is the sole authority to verify compliance with an interim measure, it considers that proceeding with an examination of the complaint under Article 34 in the present circumstances would in effect amount to circumventing the exhaustion rule in respect of the related complaints under Article 2 of the Convention.
145. The Court considers, in the light of the foregoing, that it is unable to examine the present complaint under Article 34 as it is premature for the time being.
B. Complaint concerning the arrest and detention of the applicants’ legal representative in application no. 4133/16
146. The applicants complained that the real reason for the arrest and detention of their legal representative, Mr Ramazan Demir, had been the applications he had brought before the Court in connection with the curfews, and that this had constituted a serious interference with their right of individual application under Article 34 of the Convention.
147. The Government submitted that Mr Demir had been arrested and detained in connection with an investigation that had been initiated in 2011, long before he had started representing the applicants. Moreover, that investigation had concerned an entirely different matter and therefore had no connection to the present applications.
148. In the Government’s submission, the public prosecutor’s reference to a meeting held by Mr Demir with an individual referred to as “Delegasyon” (see paragraph 52 above) had concerned a telephone conversation in 2014 during which Mr Demir had said that he would be meeting with a “Dutch delegation”, and had nothing to do with his representation of the applicants before the Court.
149. The applicants submitted in response that the investigation leading to Mr Demir’s arrest and detention had been opened in 2011, but had become dormant in 2014. They found it noteworthy that the investigation had then been revived in 2016, immediately after Mr Demir had started bringing the curfew cases before the Court with the associated requests for interim measures. In the opinion of the applicants, the authorities had had the ulterior motive of preventing Mr Demir from bringing and litigating their application before the Court.
150. The Commissioner for Human Rights stated in his submissions that around the time of the revival of the investigation against Mr Demir, his Office had contacted the latter to organise a meeting during their visit to Turkey, to be able to obtain information directly from the lawyer who had lodged requests for interim measures with the Court. The Commissioner continued as follows:
“The Commissioner takes this situation, which indeed suggests that Mr Demir was arrested, whether primarily or incidentally, in connection with his legitimate role of bringing cases to the Court, very seriously. The Commissioner is also deeply concerned by the assertion of Mr Demir’s lawyers that this arrest and detention had an impact on the pursuit by the families in question of their applications to the Court and served as a deterrent.”
151. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see Colibaba v. Moldova, no. 29089/06, § 65, 23 October 2007 and the cases cited therein). In this connection, the Court also reiterates that exerting any such pressure on a legal representative, as observed in the case of Colibaba (ibid.), can also amount to a “chilling effect” and lead the Court to conclude that the respondent State has failed to comply with its obligations under Article 34 of the Convention.
152. The Court notes, on the basis of the material before it, that it has insufficient elements to conclude that the measures taken against Mr Demir, apparently in relation to an investigation pending since 2011, had the effect of hindering the effective exercise of the applicants’ right to individual application within the meaning of Article 34 of the Convention. The Court therefore decides not to pursue the matter (see, mutatis mutandis, Egmez v. Cyprus (dec.), no. 12214/07, § 70, 18 September 2012, and Beçaj v. Albania (dec.), no. 1542/13, § 44, 24 June 2014).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
153. The applicants Ahmet Tunç and Güler Yerbasan argued that the imposition of the curfew without declaring a state of emergency had been in breach of Articles 15 and 17 of the Convention.
154. The Court notes that it has already rejected similar complaints as manifestly ill-founded (see, for instance, Koç and Others v. Turkey (dec.), no. 8536/16, §§ 33-34, 6 December 2016), and it finds no reason to depart from that finding in the present case. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court,
Declares, by a majority, inadmissible the applicants’ complaints under Article 34 of the Convention;
Declares, unanimously, inadmissible the remainder of the applicants’ complaints.
Done in English and notified in writing on 7 February 2019.
Stanley NaismithRobert Spano
RegistrarPresident
[1]. (2016)39
[2]. Resolution 2121 (2016) of the Parliamentary Assembly of the Council of Europe on the functioning of democratic institutions in Turkey, 22 June 2016, paragraph 10.
[3].
[4]. The remaining eleven individuals also lodged applications with the Court: Mehmet Balcal and 8 others v. Turkey, no. 8699/16, and Ferhat Karaduman and Veli Çiçek v. Turkey, no. 6758/16.

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