AYDIN AND OTHERS v. TURKEY

 
 
SECOND SECTION
DECISION
Application no. 63130/15
Sedat AYDIN and others against Turkey
and 31 other applications
(see list appended)
 
The European Court of Human Rights (Second Section), sitting on 12 March 2019 as a Chamber composed of:
Robert Spano, President,
Paul Lemmens,
Işıl Karakaş,
Valeriu Griţco,
Stéphanie Mourou-Vikström,
Arnfinn Bårdsen,
Darian Pavli, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the interim measures indicated to the respondent Government under Rule 39 of the Rules of Court in applications nos. 3758/16, 4353/16, 4817/16 and 5237/16 on 18 January, 19 January, 21 January and 22 January 2016 respectively, and the decisions to lift those interim measures on 28 January, 28 January, 1 February and 3 February 2016 respectively,
Having regard to the decisions to grant priority to twenty-eight of the thirty-two applications under Rule 41 of the Rules of Court,
Having regard to the partial decisions of 6 December 2016,
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 deliberated, decides as follows:
THE FACTS
1. A list of the applicants, all of whom are Turkish nationals, is set out in the appendix.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. Background to the events giving rise to the applications
3. The present case mainly concerns the curfews imposed in certain towns in south-east Turkey in 2015‑2016 by local governors – on the basis of section 11 (c) of the Provincial Administration Act (Law no. 5442) – and the security operations conducted during the course of those curfews. Information on the background to the events giving rise to the present applications may be found in the cases of Elçi v. Turkey ((dec.), no. 63129/15, §§ 4-6, 29 January 2019) and Ahmet Tunç and Others v. Turkey ((dec.), nos. 4133/16 and 31542/16, §§ 7-9, 29 January 2019). A detailed account of the events which took place during the curfews may also be found in the comments submitted to the Court by the Commissioner for Human Rights[1] in his capacity as an intervener under Article 36 § 3 of the Convention in these cases, as well as in his memorandum of 2 December 2016[2].
B. The circumstances of the cases
4. The applicants in applications nos. 1905/16, 2005/16, 2105/16, 3758/16, 4159/16, 4353/16, 4552/16, 5237/16, 5317/16, 5332/16, 5628/16, 6758/16, 8536/16, 8699/16 and 39419/16 are the relatives of persons who lost their lives in the course of the security operations conducted in certain districts of Şırnak and Diyarbakır during the round-the-clock curfews imposed in the relevant areas, either because they were allegedly denied medical care by the State authorities or because they were allegedly killed as a result of the use of force by the security forces. In three of those applications (nos. 3758/16, 4353/16 and 5237/16), the Court had accepted requests for an interim measure under Rule 39 of the Rules of Court, and had indicated to the respondent Government to take all measures within their power to protect the lives and physical integrity of Hüseyin Paksoy, Cemil Altun and Cihan Karaman respectively, who were awaiting medical assistance after having sustained serious injuries. None of those individuals was, however, provided with the requisite medical care, allegedly because of the security situation on the ground, and they all lost their lives. The applicant’s son in application no. 5332/16, namely Yılmaz Geçim, had been missing at the time of giving notice of the application to the respondent Government on 6 December 2016. The Court was subsequently informed, however, that his body had been found in the basement of a building in Cizre.
5. The applicant in application no. 4817/16, Helin Öncü, was shot and injured in Cizre, allegedly by members of the security forces. When attempts to provide her with medical assistance failed allegedly due to security reasons, on 21 January 2016 the applicant requested an interim measure from the Court under Rule 39 of the Rules of Court. The Court accepted her request and indicated to the Government to take all measures within their power to protect the applicant’s right to life and physical integrity. The applicant was thereupon taken to a hospital by healthcare workers and received the necessary treatment.
6. The applicant in application no. 63133/15, İrfan Uysal, was an employee of the Directorate for Water and Infrastructure of the Municipality of Cizre at the material time. He was shot in the arm, allegedly by members of the security forces, while he was working on a water valve near the Nur neighbourhood of Cizre. Despite various difficulties encountered, he was taken to a hospital by his colleagues, where his arm was amputated.
7. The applicant in application no. 4684/16, Faysal Sarıyıldız, was a local member of parliament (MP) at the material time. On 20 January 2016 Mr Sarıyıldız went to the Cudi neighbourhood of Cizre, with a group of people, in order to help the injured and to retrieve the bodies of the deceased. The group found the bodies of a number of persons, including those of Serhat Altun, Ahmet Tunç and Mehmet Kaplan, whose deaths are the subject matter of applications nos. 4353/16, 4552/16 and 4159/16. On their way back, the group came under fire, allegedly opened from armoured vehicles. Two of the group’s members were killed and ten others were injured. The applicant, who was not injured, took refuge in a building with the surviving members of the group. They were only able to leave the building, which was allegedly under continuous fire from the security forces, after some six hours.
8. The applicants in the remaining fourteen applications are individuals who were not able to leave their own homes, or the homes of others in which they had taken refuge, for lengthy periods of time as a result of the round-the-clock curfews. Most of them claim that their lives were endangered on account of the security operations conducted in residential areas, during which the security forces had allegedly used heavy weaponry despite the presence of civilians.
C. Domestic proceedings
9. The Court notes from the information submitted by the parties that most of the applicants had applied to the Constitutional Court for interim measures either before or shortly after lodging their applications with the Court. Many of the applicants had requested urgent access to medical facilities, whereas others had asked for the lifting of the curfews, arguing that the decisions to impose those curfews had no basis in domestic law and/or that their lives had been put at serious risk on account of the security operations conducted in urban centres during the curfews. The Court notes that all the requests for interim measures were rejected by the Constitutional Court, which held in a number of its decisions that the imposition of the curfews with a view to ensuring public order and safety of people’s lives and property could not be said to have been “unfounded” (see Elçi, cited above, § 12). It appears that an examination on the merits of those applications is still pending before the Constitutional Court.
10. While some of the applicants claimed that the public prosecutors had not carried out any investigations into the incidents which are the subject matter of the present applications, the information in the case-file reveals that investigations were opened into most of the deaths at issue. The Court observes that some of those investigations have in the meantime been closed by the public prosecutors, with a decision not to prosecute, while some others are still ongoing. It further appears from the information submitted by the parties that as from March 2017, a number of applicants have brought a second round of individual applications before the Constitutional Court, mainly to complain about the outcome of the criminal investigations. Those applications are also pending before the Constitutional Court for an examination on the merits.
11. The Court notes furthermore that a small number of applicants have resorted to administrative-law remedies in connection with the complaints raised in the present cases. To the Court’s knowledge, none of those attempts has resulted in a favourable outcome to the applicants, either because they have not fully exhausted the relevant remedies, or because the administrative courts have dismissed their claims.
D. Arrest and detention of the applicants’ legal representative in applications nos. 63133/15, 2105/16, 4159/16, 4353/16, 4552/16, 4684/16, 4817/16, 5237/16, 5317/16, 5332/16, 5628/16, 6758/16, 8699/16, 9414/16 and 39419/16
12. 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.
13. 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. 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 DEMİR] 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”.
14. 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.
15. Following an objection by the public prosecutor to his release, an arrest warrant was issued for Mr Demir on 22 March 2016.
16. 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.
17. 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”.
18. 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.
E. Relevant domestic law
19. A description of the relevant domestic law has been set out in the cases of Elçi (cited above, §§ 19-21) and Ahmet Tunç and Others (cited above, §§ 58-63).
COMPLAINTS
A. Aydın and Others v. Turkey (no. 63130/15)
20. Under Article 2 of the Convention the applicants complained that the security forces had conducted their operations in complete disregard of the principles concerning the use of force and in so doing they had endangered the lives of the civilians in areas under curfew, including in Sur and Cizre where they lived. They also argued that the respondent State had failed in its obligation to take appropriate steps to safeguard their lives.
21. The applicants alleged that they had been deprived of their liberty as a result of the curfews, which had amounted to a violation of Article 5 § 1 of the Convention.
22. They argued under Article 8 that they had had to take refuge in other people’s homes during the course of the security operations, which had interfered with their family lives.
23. The applicants also complained of a violation of Article 1 of Protocol No. 1 to the Convention, without substantiating their claims.
B. Yavuzel and Others v. Turkey (no. 5317/16), Irmak v. Turkey (no. 5628/16) and Ahmet Tunç v. Turkey (no. 39419/16), Balcal and Others v. Turkey (no. 8699/16) and Karaduman and Çiçek v. Turkey (no. 6758/16)
24. The applicants complained under Article 2 of the Convention that the State authorities had not taken the necessary measures to protect their relatives’ right to life, that their relatives had been unlawfully killed as a result of the security operation carried out by the security forces and that no effective investigation had been conducted into their deaths.
25. The applicants complained that their suffering on account of the combination of factors (such as having to witness their relatives being burned to death; searching for the bodies of their relatives in a number of hospitals; inability of some of them to find the bodies of their loved ones; and their inability to give their relatives a burial for long periods of times during which the bodies deteriorated and lost their integrity) had amounted to inhuman treatment within the meaning of Article 3 of the Convention.
26. The applicants complained that the bodies of their relatives had not been handed over to them and that the family members had not been given the opportunity to organise and to be present during a funeral, in breach of their right to respect for their private lives within the meaning of Article 8 of the Convention. In addition, the applicants in applications nos. 5628/16 and 6758/16 complained that their inability to receive the bodies of their loved ones for a period of two to three weeks and to be present during their funerals had been in breach of their rights under Article 9 of the Convention.
27. Finally, under Article 34 of the Convention the applicants also alleged that their legal representative, 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.
C. Koç and Others v. Turkey (no. 8536/16)
28. The applicants complained under Article 2 of the Convention that their relatives had been killed by the security forces, which had opened fire with heavy weapons without first evacuating civilians. They argued that the security forces’ actions during the operations had not been proportionate, and that the State authorities had not taken any measures to prevent a breach of the right to life. Under the same provision and relying also on Article 13 of the Convention, the applicants complained that no effective investigation had been carried out into the deaths of their relatives.
29. Under Article 3 of the Convention the applicants complained that the fear and anguish which their relatives must have suffered on account of hearing constant explosions and gunfire had amounted to ill-treatment.
D. Altun v. Turkey (no. 4353/16) and Karaman v. Turkey (no. 5237/16)
30. The applicants complained under Article 2 of the Convention that their brother and son, Serhat Altun and Cihan Karaman, respectively, had lost their lives on account of the respondent State’s failure to fulfil its positive obligation to provide them with the necessary medical assistance. They also complained under the same provision that no effective investigation had been conducted into the deaths.
31. The applicant in application no. 4353/16 alleged that after he had been shot and injured, his brother had had to wait for a long time for medical assistance, which had never arrived. His brother’s suffering in such circumstances had amounted to ill‑treatment within the meaning of Article 3 of the Convention.
32. The applicant in application no. 5237/16 complained that his suffering on account of a combination of factors (such as the keeping of his son’s body in the basement for weeks during which it had decomposed and lost its integrity, their inability as a family to give him a burial, and finally, the national authorities’ indifference to their calls for help to retrieve the body for many weeks) had amounted to inhuman treatment within the meaning of Article 3 of the Convention. He further argued under Articles 8 and 9 that the body of his son had been kept in the basement for weeks and that they had therefore been unable to give him a burial in accordance with their religious convictions.
33. Relying on Articles 1 and 34 of the Convention the applicants complained that the respondent State had failed to comply with the interim measure indicated by the Court by not taking any steps to protect the physical integrity and life of their brother and son, respectively, and by preventing other persons from offering them any assistance.
34. Finally, under Article 34 of the Convention the applicants also alleged that their legal representative, 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.
E. Paksoy v. Turkey (no. 3758/16)
35. The applicants complained under Article 2 of the Convention that Hüseyin Paksoy had lost his life on account of the respondent State’s failure to fulfil its positive obligation to provide him with medical assistance. They also complained under Article 13 of the Convention that no effective investigation had been conducted into his death.
36. The applicants argued that after he had been shot and injured, Hüseyin Paksoy had had to wait for a long time for medical assistance, during which time he must have suffered unbearable pain. His suffering in such circumstances had amounted to ill‑treatment within the meaning of Article 3 of the Convention.
37. The applicants alleged that their own right to liberty within the meaning of Article 5 of the Convention had been violated on account of the curfews.
38. The applicants lastly invoked Articles 14 and 18 of the Convention, without substantiating their claims under those provisions.
F. Uysal v. Turkey (no. 63133/15), Adem Tunç v. Turkey (no. 4552/16), Sarıyıldız v. Turkey (no. 4684/16), Öncü v. Turkey (no. 4817/16) and Geçim v. Turkey (no. 5332/16)
39. The applicants made the following complaints under Article 2 of the Convention:
- application no. 63133/15: (i) the security operations at issue had not been organised and conducted with a view to minimising the risk to the lives of civilians and the applicant had been targeted by the security forces while was on duty assigned by the Municipality of Cizre; (ii) no investigation had been conducted into his shooting even though he had made an official complaint to the prosecutor.
- application no. 4552/16: (i) the applicant’s father, Ahmet Tunç, had been shot by members of the security forces and had lost his life when the authorities had failed to provide him with medical assistance; (ii) no investigation had been opened into the killing.
- application no. 4684/16: (i) the applicant’s life had been endangered on account of the unlawful use of force by the security forces; (ii) no effective investigation had been conducted into the incident.
- application no. 4817/16: (i) the applicant had been shot by members of the security forces and the national authorities had failed to offer her medical assistance in a timely manner even after the indication of an interim measure by the Court; (ii) no investigation had been opened into the shooting.
- application no. 5332/16: (i) the applicant’s son had disappeared in life-threatening circumstances in an area where hundreds of people had been killed unlawfully as a result of a security operation, which had been conducted in disregard of the lives of civilians, and it was likely that his son had also been killed; (ii) no steps had been taken to investigate his son’s disappearance. As explained in paragraph 4 above, the applicant’s son’s body was subsequently found by the authorities.
40. The applicant in application no. 5332/16 also complained under Article 3 that his suffering on account of his inability to search for his son and his helplessness in finding out what had happened to him had amounted to ill-treatment. Lastly, he complained under Article 5 of the Convention that he had been deprived of his right to liberty on account of the curfew because he had been unable to leave his house for months. He alleged in this connection that the curfew had been unlawful and that it had been applied so strictly that he had not even been able to go out and look for his son.
41. Finally, the applicants complained that the Government, by arresting and detaining their legal representative Mr Ramazan Demir, had acted in breach of their obligations under Article 34 of the Convention.
G. Oran v. Turkey (no. 1905/16), Seviktek v. Turkey (no. 2005/16), İnan v. Turkey (no. 2105/16) and Kaplan v. Turkey (no. 4159/16)
42. The applicants complained under Article 2 of the Convention that their relatives had been shot and injured by agents of the respondent State and had subsequently lost their lives because no steps had been taken to provide them with medical assistance. Under the same provision they also complained that no effective investigations had been conducted into the deaths.
43. The applicants in applications nos. 2105/16 and 4159/16 complained that the Government, by arresting and detaining their legal representative, had acted in breach of their obligations under Article 34 of the Convention.
H. Vesek v. Turkey (no. 63138/15), Eroğlu v. Turkey (no. 478/16), Görgöz v. Turkey (no. 480/16), Sultan and Süleyman Düzgün v. Turkey (no. 891/16), Bedri and Halime Düzgün v. Turkey (no. 901/16), Çağlak v. Turkey (no. 2200/16), Dağlı and Others v. Turkey (no. 6990/16) and Kaya v. Turkey (no. 9712/16)
44. With the exception of the applicant in application no. 9712/16, the applicants complained that the security operations conducted in the vicinity of their homes in Sur and Cizre had been carried out without having regard to the safety of the civilians living in those areas and had endangered their right to life, in breach of Article 2 of the Convention.
45. The applicants in all eight applications complained that they had effectively been imprisoned in their own homes for indefinite periods of time during the curfews, which had had no adequate legal basis in domestic law, and that their right to liberty and security within the meaning of Article 5 of the Convention had thus been breached.
46. Lastly, the applicant in application no. 9712/16 complained that the curfews at issue had also breached Article 15 of the Convention.
I. Dolan v. Turkey (no. 9414/16), Seniha Sürer and Others v. Turkey (no. 10073/16), Cengiz Abiş and Others v. Turkey (no. 10079/16), Erkaplan v. Turkey (no. 10085/16) and Alpaydıncı and Others v. Turkey (no. 10088/16)
47. The applicants complained that their lives had been endangered as a result of the bombing of the buildings in which they had taken refuge by the security forces, in breach of Article 2 of the Convention. They argued that their survival had been fortuitous given the extent of the bombings. Under the same provision they also complained that no investigations had been conducted into the bombings.
48. The applicants complained that they had been deprived of their liberty in breach of Article 5 of the Convention as a result of the round-the-clock curfews, which had had no legal basis.
49. The applicant in application no. 9414/16 also complained that the Government, by arresting and detaining his legal representative Mr Ramazan Demir, had acted in breach of their obligations under Article 34 of the Convention.
THE LAW
I. JOINDER OF THE APPLICATIONS
50. Given their similar factual and legal backgrounds, the Court decides that the applications should be joined, in accordance with Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLES 2, 3, 5, 8, 9 AND 13 OF THE CONVENTION
51. Some of the applicants complained that the deaths of their relatives, either because of denial of medical care or because of the direct use of force by the security forces, or the injuries sustained personally by some of them during the security operations, coupled with the authorities’ alleged failure to carry out effective investigations into those incidents, had been in breach of Articles 2 and 13 of the Convention. A number of applicants argued under Article 2 that the security operations conducted in the vicinity of their homes had not been carried out with a view to minimising the risk to the lives of civilians – having regard to the heavy weaponry used by the security forces – and had thus put their lives in potential danger. Most of the applicants also complained that their relatives’ suffering after they had been shot and injured and their inability to recover their bodies with a view to giving them burials in accordance with their religious convictions had been in breach of Articles 3, 8 and 9 of the Convention. Finally, some of the applicants complained that they had been deprived of their liberty within the meaning of Article 5 § 1 of the Convention on account of their inability to leave their homes during the curfews and that their deprivation of liberty had had no basis in domestic law.
A. The parties’ arguments
1. The Government
52. The Government argued mainly that the applicants’ 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 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.
53. 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.
54. 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).
55. The Government argued that the decisions referred to above, amongst many others, illustrated that there was no doubt on the part of the Court as regards the effectiveness of the Constitutional Court remedy. The applicants in the present cases, however, had either not lodged any individual applications with the Constitutional Court in respect of the complaints that they raised before the Strasbourg Court, or their applications were still pending before the Constitutional Court for an examination on the merits. The Government emphasised that 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.
2. The applicants
56. 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 a great number of people affected by the curfews had embarked on exhausting the domestic remedies referred to by the Government, none of them had actually succeeded in obtaining redress.
57. Some of 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 mainly 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), these applicants claimed that there were special circumstances which rendered the domestic remedies ineffective and which therefore exempted them from having to exhaust the existing domestic remedies.
58. They 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. They further claimed that there was no independent and impartial judicial system in Turkey to investigate the offences committed during the curfews (see, for similar arguments, Ahmet Tunç and Others, cited above, §§ 85-89).
59. 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, mainly for the reasons noted in Ahmet Tunç and Others (cited above, §§ 91-95) and Elçi (cited above, §§ 34 and 35). They particularly noted in respect of the individual application remedy before the Constitutional Court that while the curfews were in place, a total of sixteen applications concerning many people affected by the curfews, including most of the applicants, had been made to the Constitutional Court for interim measures. In the opinion of the applicants, the Constitutional Court had demonstrated its ineffectiveness when it had rejected all of those requests for interim measures without examining them adequately. According to some applicants, the fact that the Constitutional Court had not considered “unfounded” the decisions to declare the curfews gave an indication as to how it would decide the relevant cases on the merits. The applicants added that the absence of any meaningful action by the Constitutional Court since the lodging of the individual applications was further proof of its ineffectiveness in the curfew cases.
B. Submissions of the Commissioner for Human Rights
60. The full text of the submissions made by the Commissioner for Human Rights in his capacity as an intervener in these applications can be consulted via the link provided in paragraph 3 above. His submissions, in so far as they concern the issue of domestic remedies, have been noted in paragraph 38 of Elçi (cited above) and paragraph 102 of Ahmet Tunç and Others v. Turkey (cited above).
C. The Court’s assessment
61. 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).
62. 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 the 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).
63. Turning to the case before it, the Court observes that while some of the applicants have not lodged any individual applications with the Constitutional Court in relation to their complaints, the applications lodged by the remaining applicants are still pending before that court for an examination on the merits. The Court recalls in this connection 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 v. Turkey ((dec.), no. 59061/16, §§ 25-27, 29 November 2016).
64. In these circumstances, the applicants may not at the outset be considered to have exhausted the available domestic remedies in relation to their complaints at issue. The Court also notes, however, that the applicants consider the available domestic remedies, including the individual application remedy before the Constitutional Court, to be ineffective for the purposes of the present case, for the reasons stated in paragraphs 56-59 above. It therefore falls to the Court to determine whether the applicants were exempted from the obligation to exhaust the relevant domestic remedies in the present circumstances, on account of their inadequacy or ineffectiveness.
65. The Court recalls that the arguments raised by the applicants in respect of the alleged ineffectiveness of the domestic remedies, in particular the remedy before the Constitutional Court, have already been examined and rejected in the cases of Elçi (cited above, §§ 43-49 and §§ 52-55) and Ahmet Tunç and Others (cited above, §§ 103-130 and § 135, and the cases cited therein). The Court sees no reason to depart from those findings in the present case.
66. It therefore concludes that the complaints under this head must be rejected under Article 35 § 1 of the Convention for non‑exhaustion of domestic remedies.
67. 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 finding does 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 the relevant provisions of the Convention (see Ahmet Tunç and Others, cited above, § 131).
III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
A. Complaint concerning the Government’s alleged failure to comply with the interim measures in applications nos. 4353/16 and 5237/16
68. As set out in paragraph 4 above, interim measures were sought from the Court under Rule 39 of the Rules of Court in respect of Serhat Altun and Cihan Karaman (applications nos. 4353/16 and 5237/16, respectively) in order to ensure their access to medical facilities. The Court accepted those requests and indicated to the respondent Government to take all measures within their power to protect the lives and physical integrity of the individuals in question. Following the deaths of those individuals, allegedly because of the Government’s failure to comply with the interim measures to take them to hospital, the Court lifted the interim measures.
69. The applicants complained under Article 34 of the Convention that the respondent State had failed to comply with the interim measures indicated by the Court on 19 and 22 January 2016, respectively, by not taking any steps to ensure the access of Serhat Altun and Cihan Karaman to medical facilities.
70. The Government argued that the Court’s interim measure had been promptly notified to the national authorities in order for the necessary actions to be taken. It had, however, not been possible to send ambulances to the places where the injured persons were located, because of the trenches dug up, booby-traps set up and fire opened by members of terrorist organisations.
71. The Court notes that a similar complaint has recently been examined and dismissed by the Court in the case of Ahmet Tunç and Others (cited above, §§ 143-145) as being premature for the time being, having particular regard to its close connection to the complaint under Article 2 concerning the State’s positive obligation to protect the right to life, which remains to be assessed by the Constitutional Court. The Court sees no reason to depart from those findings in the present case.
B. Complaint concerning the arrest and detention of the legal representative of the applicants in applications nos. 63133/15, 2105/16, 4159/16, 4353/16, 4552/16, 4684/16, 4817/16, 5237/16, 5317/16, 5332/16, 5628/16, 6758/16, 8699/16, 9414/16 and 39419/16
72. 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.
73. 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.
74. 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.
75. 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.”
76. The Court notes that similar complaints have recently been reviewed and dismissed by the Court in the case of Ahmet Tunç and Others (cited above, §§ 151-152). The Court sees no reason to depart from the reasoning in that case and decides, therefore, not to pursue the matter on the present facts.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
77. A number of applicants also complained, without substantiating their claims, that Articles 14, 15 and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention had been violated.
78. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the provisions invoked. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court,
Decides, unanimously, to join the applications;
 
Declares, by a majority, inadmissible the applicants’ complaints under Article 34 of the Convention;
 
Declares, unanimously, inadmissible the remainder of the applications.
Done in English and notified in writing on 4 April 2019.
Stanley NaismithRobert Spano
RegistrarPresident


APPENDIX
 
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Principal Representative
1
63130/15
29/12/2015
Sedat AYDIN
01/06/1969
Diyarbakır
 
Evin ÇAĞLI
01/01/1995
Şırnak
 
Osman KÜLTÜR
02/01/1955
Şırnak
 
Maşallah ÖZDEMİR
01/01/1937
Şırnak
 
Halise KULJA
08/07/1982
Şırnak
 
Nevroz YILMAZ
21/03/2000
Şırnak
Oya AYDIN GÖKTAŞ
2
63133/15
29/12/2015
İrfan UYSAL
20/10/1986
Cizre
Ramazan DEMİR
3
63138/15
12/01/2016
Ahmet VESEK
01/01/1949
Şırnak
Veysel VESEK
4
478/16
12/01/2016
Kasım EROĞLU
10/08/1981
Diyarbakır
 
Meral EROĞLU
20/09/1984
Diyarbakır
Murat GÜZEL
5
480/16
12/01/2016
Latife GÖRGÖZ
01/03/1966
Diyarbakır
 
Yeşim GÖRGÖZ
17/05/2001
Diyarbakır
Murat GÜZEL
6
891/16
12/01/2016
Sultan DÜZGÜN
26/03/1987
Diyarbakır
 
Süleyman DÜZGÜN
06/05/1983
Diyarbakır
Murat GÜZEL
7
901/16
12/01/2016
Bedri DÜZGÜN
01/04/1939
Diyarbakır
 
Halime DÜZGÜN
01/01/1950
Diyarbakır
Murat GÜZEL
8
1905/16
10/01/2016
Mehmet ORAN
01/01/1964
Istanbul
Yunus MURATAKAN
9
2005/16
10/01/2016
Ayhan SEVİKTEK
03/03/1986
Diyarbakır
Ramazan DEMİR
10
2105/16
08/01/2016
Mehmet İNAN
11/02/1983
Şırnak
Ramazan DEMİR
11
2200/16
08/01/2016
Meliha ÇAĞLAK
20/05/1960
Diyarbakır
Cemile TURHALLI BALSAK
12
3758/16
16/01/2016
Zehide PAKSOY
01/01/1952
Şırnak
 
Mesut PAKSOY
15/08/1979
Şırnak
 
Mehmet PAKSOY
01/01/1949
Şırnak
Nuray ÖZDOĞAN
13
4159/16
19/01/2016
Abdullah KAPLAN
20/04/1988
Şırnak
Ramazan DEMİR
14
4353/16
19/01/2016
Cemil ALTUN
01/01/1991
Van
Ramazan DEMİR
15
4552/16
20/01/2016
Adem TUNÇ
19/01/1990
Şırnak
Ramazan DEMİR
16
4684/16
20/01/2016
Faysal SARIYILDIZ
10/04/1975
Ankara
Ramazan DEMİR
17
4817/16
21/01/2016
Helin ÖNCÜ
19/02/1995
Mardin
Ramazan DEMİR
18
5237/16
22/01/2016
Mehmet Latif KARAMAN
01/03/1966
Siirt
Ramazan DEMİR
19
5317/16
23/01/2016
Halil YAVUZEL
01/04/1964
Şanlıurfa
 
Ferit AKTAŞ
01/01/1969
Şanlıurfa
 
 
 
Selehattin ÜRÜN
10/03/1981
Şırnak
 
Fırat DUYMAK
30/11/1997
Şırnak
 
İzzettin YILDIZ
05/03/1948
Diyarbakır
 
Rahmi BALIKESİR
18/10/1976
Hakkari
 
Mehmet Salih ERBEK
13/04/1963
Siirt
Ramazan DEMİR
20
5332/16
25/01/2016
Mehmet GEÇİM
05/01/1959
Şırnak
Ramazan DEMİR
21
5628/16
26/01/2016
Hanifi IRMAK
04/04/1974
Diyarbakır
Ramazan DEMİR
22
6758/16
29/01/2016
Ahmet KARADUMAN
20/12/1976
Şırnak
 
Salahattin ÇİÇEK
29/11/1958
Şırnak
Ramazan DEMİR
23
6990/16
03/02/2016
Mehmet Senan DAĞLI
01/09/1967
Şırnak
 
Melahat DAĞLI
02/06/1971
Şırnak
 
Muhammed DAĞLI
26/03/2002
Şırnak
 
Narin ZEREN
10/11/1988
Şırnak
 
Mehmet Şirin ZEREN
05/02/1959
Şırnak
 
Gurbet ZEREN
01/01/1960
Şırnak
 
Zeynep ZEREN
16/08/1999
Şırnak
 
Mehmet ZEREN
20/03/1986
Şırnak
 
Mehmet Selim DEĞER
01/02/1970
Şırnak
 
Emin KIRMIZIGÜL
01/01/1959
Şırnak
 
 
Vecihe DEĞER
01/03/1964
Şırnak
 
Medine KIRMIZIGÜL
13/11/1971
Şırnak
 
Elif DEĞER
07/09/1993
Şırnak
 
Cemile DEĞER
10/08/1998
Şırnak
 
Suzan KIRMIZIGÜL
27/08/1996
Şırnak
 
Dijvar DEĞER
24/07/2006
Cizre
 
Zilan KIRMIZIGÜL
13/04/1998
Şırnak
 
Renas DEĞER
12/02/2003
Cizre
 
Jiyan KIRMIZIGÜL
23/11/1999
Cizre
 
 
İsmail KIRMIZIGÜL
25/03/2001
Şırnak
 
Helin KIRMIZIGÜL
02/01/2004
Şırnak
 
Abdullah KIRMIZIGÜL
21/12/2005
Şırnak
Öztürk TÜRKDOĞAN
24
8536/16
11/02/2016
Kemal KOÇ
05/09/1955
Muğla
 
Nermiye İVERENDİ
01/01/1963
Şırnak
 
Zekiye EDİN
11/11/1964
Şırnak
 
Berivan EDİN
11/08/1992
Şırnak
 
Muhammed Ali EDİN
04/10/2012
Şırnak
 
Arjin EDİN
04/07/2014
Şırnak
 
Süleyman EDİN
14/06/2010
Şırnak
 
Sait BİLGİÇ
01/01/1962
Şırnak
 
Mehmet AKYOL
05/03/1968
Şırnak
 
Selim ÖZKÜL
04/02/1949
Şırnak
 
Süleyman TURGUT
03/02/1970
Istanbul
 
Mehmet Siraç ÖZGÜL
10/03/1956
Diyarbakır
 
Recep DEMİR
13/07/1980
Mardin
Öztürk TÜRKDOĞAN
25
8699/16
12/02/2016
Mehmet BALCAL
01/01/1961
Şırnak
 
Mehmet Gürü AYAZ
25/11/1990
Şırnak
 
Mehmet ÇAĞDAVUL
03/07/1989
Şırnak
 
Abdullah ÇIKMAZ
01/04/1971
Şırnak
 
Abdulkerim ÖZBEK
08/07/1952
Şırnak
 
Osman TANKAN
10/11/1967
Şırnak
 
Mevlüt DADAK
04/04/1992
Şırnak
Ramazan DEMİR
26
9414/16
17/02/2016
Mazlum DOLAN
22/01/1993
Diyarbakır
Ramazan DEMİR
27
9712/16
18/02/2016
Fatma KAYA
13/04/1960
Diyarbakır
Mahmut ÇIFTÇI
28
10073/16
20/02/2016
Seniha SÜRER
18/12/1957
Diyarbakır
 
Seda ARSLAN
05/07/1990
Diyarbakır
 
Elif Su ARSLAN
20/10/2015
Diyarbakır
Ramazan DEMİR
29
10079/16
20/02/2016
Cengiz ABİŞ
Diyarbakır
Emine ABİŞ
Diyarbakır
 
Talat ABİŞ
Diyarbakır
Yunus MURATAKAN
30
10085/16
21/02/2016
Hülya ERKAPLAN
01/06/1990
Diyarbakır
Yunus MURATAKAN
31
10088/16
21/02/2016
Mehmet Can ALPAYDINCI
Diyarbakır
 
Aynur ARSLAN
12/02/1970
Diyarbakır
 
Gulistan ARSLAN
Diyarbakır
 
Rojda ARSLAN
Diyarbakır
 
Muaz ARSLAN
Diyarbakır
 
Özgür ARSLAN
Diyarbakır
Yunus MURATAKAN
32
39419/16
23/01/2016
Ahmet TUNÇ
22/06/1943
Şırnak
Ramazan DEMİR
 
 
[1].
[2]. (2016)39

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