ELÇİ v. TURKEY

 
 
 
 
SECOND SECTION
DECISION
Application no. 63129/15
Ömer ELÇİ
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 application lodged on 29 December 2015,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the partial decision of 6 December 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
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.  The applicant, Mr Ömer Elçi, is a Turkish national who was born in 1951 and lives in Şırnak. He was represented before the Court by Mr E. Şenses and Mr M.N. Girasun, lawyers practising in Batman and Diyarbakır respectively.
2.  The Turkish Government (“the Government”) were represented by their Agent.
3.  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 applicant
 
Mr Erkan Şenses,
Mr M. Neşet Gİrasun,Counsel,
Ms Senem Gürol,Adviser.
 
The Court heard addresses by Mr Talmon, Mr Girasun and Mr Şenses.
A.  Background to the events giving rise to the application
4.  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 application took place. The stated aim of the curfews 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.
5.  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 the present case, as well as the aforementioned memorandum of 2 December 2016.
6.  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
7.  The facts of the present case, as submitted by the parties, may be summarised as follows.
8.  The applicant and his family live in the Nur neighbourhood of Cizre.
9.  On 4 September 2015 the governor of Şırnak decided to impose a round-the-clock curfew in Cizre, on the basis of section 11 (c) of the Provincial Administration Act (Law no. 5442). The curfew stayed in force until 12 September 2015.
10.  On 7 September 2015 the applicant applied to the Mardin Administrative Court and requested the suspension and annulment of the curfew imposed by the governor of Şırnak on 4 September 2015, arguing that the governor had acted ultra vires, as Law no. 5442 did not give him the authority to declare a curfew. On 9 October 2015 the Mardin Administrative Court rejected the applicant’s request for the suspension of the curfew and subsequently on 19 October 2016 it dismissed the case on the merits, holding that the governor had acted within his authority and that the administrative act in question had been lawful. The applicant did not appeal against the latter decision of the Mardin Administrative Court.
11.  In the meantime, on 9 September 2015 the applicant, together with a certain M.G., also lodged an individual application with the Constitutional Court. He argued that his rights under Articles 2, 3, 5 and 8 of the Convention had been violated as a result of the curfew and the security operation conducted during the curfew. He argued, in particular, that the decision to impose the curfew had been unlawful and disproportionate, and that his right to life had been put at serious risk on account of the actions of the security forces. He referred in that connection to a number of civilian deaths in the curfew areas that had been reported in the social and print media. He also requested the lifting of the curfew by way of an interim measure.
12.  On 11 September 2015 the Constitutional Court rejected the request for an interim measure, on the following grounds:
“12. Under section 49(5) of Law no. 6216 and section 73(1) of the Internal Regulations of the Constitutional Court, entitled ‘interim measures’, in the event of the existence of a serious threat against the applicant’s life or physical or mental integrity, the Sections [the Sections Rapporteurs’ Office] may decide, of their own motion or upon the request of the applicant, on the necessary measures to be taken pending the examination of the case on merits.
...
14. The Şırnak governor’s office declared a curfew in the district of Cizre, where the applicants reside, pursuant to section 11 (c) of Law no. 5442. According to the governor’s office, this decision was justified by the need to apprehend members of the terrorist organisation and to ensure the safety of people’s lives and property, [which had been put in danger] by terrorist incidents. The imposition of the curfew by the governor’s office for the aforementioned reasons with a view to ensuring public order and the safety of people’s lives and property could not be said to have been unfounded.
15. The applicants have not submitted any concrete information or evidence to prove that the curfew, which had been put in place for the purpose of protecting their right to life and property, had affected them to such an extent as to require an immediate measure, and that their lives had been put at risk by the acts of State authorities even when they acted in compliance with the terms of the curfew. The applicants based their allegations that their lives were at risk on the alleged deaths of civilians in the district. However, they confined themselves to only making general references to information published via social and print media.
16. For these reasons, since the information and documents available in the case file do not for the time being reveal a serious threat that requires an immediate decision to apply an interim measure in respect of the applicants, the request for an interim measure, the conditions for which have not been met, should be dismissed.”
According to the information in the case file, the examination as to the merits of the applicant’s complaints is still pending before the Constitutional Court (application no. 2015/15266).
13.  On 14 December 2015 the governor of Şırnak imposed another round-the-clock curfew in Cizre, which remained in force until 2 March 2016. According to the applicant’s submissions, which were not contested by the Government, the operations intensified in the applicant’s neighbourhood after the imposition of the curfew. The applicant alleged that the whole neighbourhood was surrounded by military tanks, which shelled the buildings in the area. On one such occasion, shrapnel from mortar had allegedly landed in the applicant’s courtyard, smashing the windows of his house. The neighbouring house, which was owned by the applicant’s brother, had allegedly been burned down by the security forces. The applicant submitted photographs of his house and garden showing the remains of the shrapnel lying in the garden and some bullet holes in the walls and windows. He also submitted photographs showing the state of the neighbouring house.
14.  On 29 December 2015 the applicant, along with fifteen other individuals, requested the Court, under Rule 39 of the Rules of Court, to indicate to the Turkish Government to lift the curfew imposed in Cizre on 14 December 2015 and to ensure that the operations conducted there by the security forces were either halted or were conducted in compliance with the applicable international standards.
15.  On 12 January 2016 the Court rejected the request for interim measures, as it considered that there were insufficient elements at its disposal to grant such measures. It nevertheless stressed its reliance on the Government to take all reasonable steps in order to ensure that applicants in a vulnerable situation with regard to their physical integrity would be given access to the necessary care, if they so requested.
16.  In the meantime, on 8 January 2016, the applicant and his family members, along with some forty of their neighbours, left their homes, for fear that their houses might become the target of attacks, and moved to another neighbourhood of Cizre where the clashes were less severe. They returned to their homes on 26 February 2016.
17.  On 13 January 2016 the applicant’s legal representatives sent a letter to the governor of Şırnak and asked for permission to be allowed to see the applicant in connection with the application he had lodged with the Court. On 15 January 2016 the governor informed the applicant’s legal representatives that armed clashes in Cizre were continuing and that his office was under an obligation to protect all civilians from violence. They could not therefore allow the legal representatives to visit the applicant in Cizre, but if the applicant wanted to contact the police and was prepared to go to a secure location, to be specified by the authorities, then the security forces could take him from that location to a meeting point outside of Cizre where the legal representatives could consult with him.
18.  Fearing for the applicant’s safety, the lawyers decided not to meet the applicant until the partial lifting of the curfew on 2 March 2016.
C.  Relevant domestic law
19.  Section 11 of the Provincial Administration Act (Law no. 5442 of 10 June 1949), in so far as relevant, provides as follows:
“(A) Governors are the superiors of all regular or private armed forces located within their provinces. They [governors] shall take the necessary steps in order to prevent crime from taking place 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.”
20.  Section 45(1) and (2) of Law no. 6216 on the establishment and rules of procedure of the Constitutional Court 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.”
21.  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 emergency of the applications.”
COMPLAINTS
22.  Referring to the events that had taken place in Cizre after the imposition of the curfew on 14 December 2015, the applicant complained under Article 2 of the Convention that the security operation conducted in his neighbourhood had not been carried out with a view to minimising the risk to the lives of the civilians residing in the area – having regard to the heavy weaponry used by the security forces – and had thus put his life in potential danger. He also complained under Article 5 of the Convention that he had effectively been imprisoned in his home during the course of the curfew, which had lacked an adequate legal basis and had therefore violated his right to liberty and security.
THE LAW
A.  The parties’ arguments
1.  The Government
23.  The Government argued that the applicant’s 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.
24.  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 that 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.
25.  They submitted that the applicant had had a number of remedies available to him in domestic law in respect of his complaints brought before the Court, such as (i) criminal-law remedies; (ii) administrative-law remedies, in particular an action for annulment or 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 before the Constitutional Court. The applicant had, however, applied to the Court before fully exhausting those available remedies.
26.  The Government stressed that the applicant had neither lodged a criminal complaint in relation to his allegations that his right to life had been put in danger, nor brought an action for a full remedy before the administrative courts to obtain compensation from the authorities which he held responsible for the alleged endangerment of his life and the violation of his right to liberty. Furthermore, although he had brought an administrative action for annulment with a request for the lifting of the curfew declared on 4 September 2015 – a remedy which he had also failed to pursue fully by not appealing against the administrative court’s last decision – he had not brought a similar action after the imposition of the curfew on 14 December 2015. Lastly, the Government drew the Court’s attention to the fact that the individual application lodged by the applicant with the Constitutional Court after the September 2015 curfew was still pending before that court.
27.  The Government referred in this connection to the Court’s finding 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 (citing, for instance, Uzun v. Turkey (dec.), no. 10755/13, §§ 67 and 69-70, 30 April 2013; Korkmaz and Others v. Turkey (dec.), no. 64200/13, § 30, 25 March 2014; and Sarısülük v. Turkey (dec.), no. 64126/13, § 25, 25 March 2014). In the Government’s submission, those decisions 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 had remained unexhausted.
28.  The Government noted that the Court had given them notice of the present application less than a year after 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 that connection the Government underlined that the Court was not an authority with which an application could be lodged from the date of the incident complained of and which could take the place of the national authorities in rendering a decision.
29.  In their additional observations submitted to the Court on 23 October 2018, the Government stated that the scope of the individual application no. 2015/15266 currently pending before the Constitutional Court was strictly limited to the curfew imposed on 4 September 2015, which had been lifted on 12 September 2015, and thus concerned solely the effects of that particular curfew and the security operations conducted between the specified dates in September 2015. The applicant’s case currently pending before the Constitutional Court did not therefore extend to the December 2015 curfew, which concerned a separate administrative act. The applicant had not, however, sought any remedies in relation to the December 2015 curfew. In particular, he had not lodged an individual application with the Constitutional Court to complain of the imposition of the December 2015 curfew, or of the acts, actions or omissions following from that curfew. In those circumstances, the Constitutional Court did not have the competence to examine, of its own motion, any complaints arising from the latter curfew.
30.  The Government emphasised at the hearing held on 13 November 2018 that the present application, which had been lodged with the Court on 29 December 2015, had nothing to do with the September 2015 curfew, but solely concerned the curfew declared in Cizre on 14 December 2015. However, although the applicant had resorted to some domestic remedies following the September 2015 curfew, he had taken no action in respect of the December 2015 curfew, except for applying to the Court. They drew attention to the principle that mere doubts regarding the effectiveness of a particular remedy did not exempt an applicant from the obligation to make use of that remedy.
31.  The Government argued that the Constitutional Court, in particular, was not only capable of providing redress in connection with the applicant’s complaints arising from the December 2015 curfew, but was capable of doing so promptly. They referred in that connection to the Constitutional Court’s priority policy as set out in section 68 of its Internal Regulations (see paragraph 21 above), whereby applications concerning, inter alia, alleged violations of the right to liberty and security were given priority treatment. Moreover, if the violations were alleged to be ongoing, an examination was conducted “as soon as possible”. The Government stated that the applicant’s individual application concerning the September 2015 curfew had been received on 10 September 2015, and his request for an interim measure had been decided in little more than twenty‑four hours. However, the “prompt examination status” of the merits of the application had ended upon the lifting of the curfew on 12 September 2015 and the termination of the accompanying security operation. The application had nevertheless continued to be assessed as a matter of priority in accordance with the Constitutional Court’s priority policy. Considering the Constitutional Court’s current caseload, the length of time for which his application no. 2015/15266 had been pending before that court could not be considered unreasonable.
32.  The Government further stated that the applicant had deemed the remedy before the Constitutional Court to be ineffective by making reference to a number of requests for interim measures in respect of the December 2015 curfew which that court had rejected (see paragraph 35 below). However, in each of those cases, the interim measure had been refused on factual grounds pertaining specifically to the request. In view of the nature of the individual applications, a request for an interim measure had to be assessed separately with regard to each individual applicant. The cases referred to by the applicant did not therefore allow a general conclusion to be drawn that requests lodged with the Constitutional Court for interim measures concerning curfews were bound to fail.
2.  The applicant
33.  The applicant 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. He contended that the Government had failed to discharge that burden in the present circumstances.
34.  He firstly argued in that connection that there was no criminal-law remedy in Turkey that could be sought against the potentially lethal threat caused to the lives of civilians by a security operation. He also stated that compensatory remedies before the administrative courts were not suitable for providing effective redress for his complaints under Article 2, noting in particular that such remedies would not be capable of putting an end to the immediate risk posed to his life. He added that, in any event, the request that he had lodged with the Mardin Administrative Court for the annulment of the September 2015 curfew had been rejected by that court more than one year after the imposition of the curfew. Having regard to the delay with which the administrative court had handled his case, it could hardly be argued that an action for annulment had constituted an effective remedy for his particular grievances. The applicant further argued that given the administrative court’s findings in the action for annulment, it was evident that an action for a full remedy before the administrative courts with a view to claiming compensation would be devoid of any prospects of success. He also drew the Court’s attention to the practical difficulties encountered in resorting to the domestic remedies mentioned by the Government in the blockade-like circumstances prevailing in Cizre at the material time, as exemplified by the inability of his legal representatives to meet him in January 2016 (see paragraph 17 and 18 above).
35.  As for the remedy of an individual application to the Constitutional Court, the applicant stated that he had already brought an application in respect of the curfew imposed in September 2015, together with a request for an interim measure, which had been rejected by that court on 11 September 2015. The reasoning used by the Constitutional Court in rejecting his request for an interim measure, dismissing wholly his concerns relating to his life and safety, was evidence that that court did not provide an effective remedy in connection with requests for interim measures concerning the curfews. Moreover, the fact that the Constitutional Court had not considered unfounded the decision to declare the curfew gave an indication as to how it would decide the case on the merits. The applicant argued that in those circumstances, he could not be expected to lodge a new application with the Constitutional Court following the curfew imposed on 14 December 2015. He added that, in any event, a number of people had in fact applied to the Constitutional Court specifically in connection with the December 2015 curfew, and that that court had rejected all their requests for interim measures, referring to the decision it had delivered on 11 September 2015 in relation to his application.
36.  In his additional submissions dated 15 October 2018, the applicant confirmed that his application currently pending before the Constitutional Court concerned only the curfew imposed on 4 September 2015.
37.  At the hearing, after reiterating his arguments as set out above, the applicant highlighted the fact that the individual application that he had lodged on 9 September 2015 was still pending before the Constitutional Court, despite the lapse of some three years and three months, which demonstrated the Constitutional Court’s ineffectiveness in the present circumstances. In the applicant’s opinion, the Constitutional Court had not yet proven itself capable of resolving cases concerning collective violations committed by State agents in the context of national security. The applicant stated that in view of the apparent ineffectiveness of the Constitutional Court in respect of his particular complaints, he had brought an application directly with the Court after the December 2015 curfew, instead of lodging another application with the Constitutional Court or any other domestic courts.
B.  Submissions of the Commissioner for Human Rights
38.  The submissions made by the Commissioner for Human Rights can be consulted via the link provided in paragraph 5 above. His submissions, in so far as relevant, read as follows (with footnotes omitted):
“9. In essence, persons subjected to the curfews in question were confined to their homes for extended periods of time, with any deviation from this required behaviour being not only unlawful, but punishable with penalties extending to imprisonment. In the Commissioner’s view, this amounts to a restriction of liberty equivalent to house arrest for all intents and purposes...
...
12. The Commissioner recalls that he has already examined the question of the existence of a legal basis in Turkish legislation for the practice surrounding these curfews, an issue also dealt with by the Venice Commission and the Parliamentary Assembly of the Council of Europe. He concluded, in line with the findings of the Venice Commission, that such practice could not be considered as meeting the applicable standards of legality.
...
15. The Commissioner fully recognises that the Turkish authorities faced an extremely dangerous and volatile situation fighting the PKK and armed groups affiliated with it in South-Eastern Turkey, including the deployment by terrorist militia of advanced urban guerrilla tactics and the death of many members of security forces. However, the Commissioner notes that when conducting counter-terrorism operations such as these, authorities must plan and control them so as to minimise recourse to lethal force and show the requisite care for the lives of the civilian population by taking all feasible precautions in the choice of means and methods.
...
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.
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Conclusions
42. In conclusion, the Commissioner considers that the curfews imposed and counter-terrorism operations carried out in South-Eastern Turkey since August 2015 caused widespread human rights violations. In particular:
- the curfews did not rest on a sufficient legal basis. The practice surrounding the curfews and the counter-terrorism operations have been seriously disproportionate to the declared aims behind the curfews.
...
- the anti-terror operations have been characterised by excessive use of force, including the employment of heavy weaponry in residential neighbourhoods, strongly suggesting that the authorities did not minimise lethal force or show the requisite care for the lives of the civilian population by taking all feasible precautions in the choice of means and methods;
- the authorities did not adequately plan and implement the safe evacuation of curfew zones and humanitarian assistance in order to minimise the harm inflicted on the civilian population;
...”
C.  The Court’s assessment
39.  The Court notes at the outset the Government’s argument that the applicant had not duly exhausted the domestic remedies at his disposal before lodging the present application with the Court.
40.  The Court reiterates in this regard 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).
41.  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 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).
42.  Before the Court can proceed to examine whether the applicant has exhausted the available domestic remedies in relation to his complaints at issue, it must clearly establish the scope of those complaints. It notes accordingly that the present application was lodged on 29 December 2015, some two weeks after the imposition of a curfew in Cizre on 14 December 2015, and entailed complaints that the curfew imposed on that date was unlawful and that there was a potential risk to the applicant’s life and physical integrity as a result of the security operation conducted during the curfew. The Court therefore considers that the present application before it concerns, technically, alleged human rights violations arising from the curfew imposed on 14 December 2015 and the security operation carried out from that date. The fact that this is so has been confirmed by the applicant, who stated that – for reasons that will be discussed below – he had decided to bring his complaints arising from the December 2015 curfew directly before the Court, without first resorting to any domestic remedies (see paragraph 37 above).
43.  The Court next notes, as is clear from his aforementioned statement, that the applicant did not avail himself of any domestic remedies in respect of the facts that he complained of before the Court. The Court reiterates that Article 35 § 1 of the Convention requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance, unless the remedies at issue were considered to be inadequate or ineffective for some reason (see Vučković and Others, cited above, §§ 72-73). It therefore falls to the Court to determine whether the applicant was exempted from the obligation to exhaust the remedies at his disposal in the present circumstances, on account of their inadequacy or ineffectiveness.
44.  The applicant mainly argued in this connection that he had already attempted domestic remedies, including an action for annulment before the administrative courts and an individual application before the Constitutional Court, together with requests for interim measure in both cases, in respect of an earlier curfew imposed in September 2015. However, neither of those remedies had proven effective in the circumstances. He contended in particular that the manner in which the Constitutional Court had disposed of his request for an interim measure made it clear that that court could not afford an effective remedy in respect of complaints arising from curfews. He stressed in this regard the Constitutional Court’s finding that the decision to impose the curfew had not been unfounded, which had predetermined any future decision to be delivered in that respect. In those circumstances, resorting to the same remedies, which had already proven ineffective, would have served no purpose in the applicant’s opinion. As evidence, the applicant argued that the requests lodged by other persons with the Constitutional Court for an interim measure in connection with the December 2015 curfew had been dismissed with reference to the decision on his own request for an interim measure.
45.  The Court notes the applicant’s misgivings about the domestic remedies at his disposal in the circumstances of the present case. It considers, however, that they are not of a nature to call into question the effectiveness of those remedies for the purposes of Article 35 § 1 of the Convention, in particular the remedy before the Constitutional Court.
46.  The Court firstly notes, in respect of the applicant’s complaints under Article 2, that the Constitutional Court’s impugned decision of 11 September 2015 was delivered in response to a specific request for an interim measure, which was limited in its scope to the particular threats that the applicant had allegedly faced during the curfew imposed on 4 September 2015. As the Government have stated above, that decision was delivered on the basis of the facts and documents that the applicant had presented before the Constitutional Court as evidence of those threats, and did not as such prejudge that court’s decision in respect of a future request concerning new circumstances. The subsequent refusal of requests for interim measures lodged by other people in respect of the December 2015 curfew could not, for the same reason, be taken to render an application to the Constitutional Court futile.
47.  Having reviewed the applicant’s allegations before the Constitutional Court as to the presumed risks to his life, the Court cannot but note that they were of a rather general nature. In these circumstances, the applicant could not rule out the possibility that the Constitutional Court might decide otherwise if presented with more concrete evidence as to the risks to his life, particularly if the operations in his neighbourhood had intensified after the December 2015 curfew as he had alleged (see paragraph 13 above). The Court observes in this connection that the detailed allegations noted in paragraph 13 regarding the risks that the applicant and his family had been exposed to were never in fact brought to the Constitutional Court’s attention.
48.  The Court lastly notes that the Constitutional Court’s decision of 11 September 2015 only concerned the applicant’s request for an interim measure. Having regard to the very particular purpose served by the interim measure mechanism, which – as the Constitutional Court has also indicated (see paragraph 12 above) – comes into play where urgent measures are needed to prevent harm until a decision on the merits is taken, the refusal of such a measure cannot as such be said to prejudice or predetermine the Constitutional Court’s eventual assessment of the merits of the applicant’s complaint under Article 2.
49.  In these circumstances, the applicant cannot be considered to have been exempted from resorting to the domestic remedies at his disposal in connection with his complaints under Article 2, in particular the remedy before the Constitutional Court. Although the applicant complained of the “blockade-like” circumstances in Cizre, which had made access to the domestic remedies difficult in practice, he did not explain why he could not apply to the Constitutional Court in circumstances where he had been able to bring an application before the Court.
50.  As for the complaints under Article 5, the Court notes the applicant’s arguments that he had already complained before both the Mardin Administrative Court and the Constitutional Court of the lack of a legal basis for the curfews, but that neither of them had accepted his complaints. In these circumstances, he argued that he could not be expected to bring new applications before those courts in relation to the same complaints.
51.  The Court cannot, however, agree with the applicant’s arguments. It notes in the first place that, while the Mardin Administrative Court did reject the applicant’s request for an interim measure in connection with the September 2015 curfew and subsequently declared the administrative act at issue to be lawful on 19 October 2016, the applicant never appealed against that decision, thereby preventing the appeal court from ruling on his complaint.
52.  The Court secondly notes that the Constitutional Court has not yet ruled on the issue of the lawfulness of the curfews: in its interim decision dated 11 September 2015, the Constitutional Court held that the decision to impose a curfew could not be said to have been “unfounded”, as it had been taken with a view to ensuring public order and protecting people’s lives and property (see paragraph 12 above). However, the specific question whether the curfew had a valid basis in domestic law remains to be addressed by the Constitutional Court as part of its examination of the merits of the case. The Court reiterates in this regard the limited scope and purpose of the decision of 11 September 2015 as a decision on an interim measure, and stresses that that decision cannot be regarded as prejudging the Constitutional Court’s assessment of the merits of the applicant’s complaint under Article 5. The Court further reiterates that 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 v. Turkey, 16 September 1996, § 71, Reports of Judgments and Decisions 1996‑IV).
53.  The Court accepts, nevertheless, that an argument could be made that since an application had already been lodged with the Constitutional Court challenging the lack of legal basis of the September 2015 curfew, it was not necessary to bring the same complaint again after the December 2015 curfew, as both curfews were imposed on the basis of the same law, and the Constitutional Court’s decision in respect of the September 2015 curfew would also have applied to the December 2015 curfew. Following that line of reasoning does not, however, change the fact that the applicant has failed to exhaust the available domestic remedies.
54.  The Court notes in this connection that the individual application lodged with the Constitutional Court on 9 September 2015 is still pending before that court, and as stated above, the Constitutional Court is yet to deliver its decision on the merits of the applicant’s complaint under Article 5. The complaint under that provision is therefore premature at this stage (see, mutatis mutandis, Mustafa Avcı v. Turkey, no. 39322/12, § 79, 23 May 2017). The Court refers in this connection to its finding in many cases that the procedure of individual application to the Constitutional Court available in Turkey provides, in principle, an effective remedy for violations of the rights and freedoms protected by the Convention, for which reason it must be attempted (see, for instance, Uzun, cited above, §§ 67 and 69-70; Koçintar v. Turkey (dec.), no. 77429/12, §§ 34-46, 1 July 2014; and Mustafa Avcı, cited above, §§ 71-80).
55.  The Court is aware that the case in question has been pending before the Constitutional Court for more than three years now. It is also aware that a remedy which is effective in principle may lose its effectiveness in practice for the purposes of Article 35 § 1 as a result of the undue prolongation of the proceedings (see, for instance, Story and Others v. Malta, nos. 56854/13 and 2 others, §§ 82-85, 29 October 2015). The Court does not, however, consider that the length of the proceedings in the applicant’s case has rendered this remedy ineffective in the present circumstances, at least not for the time being, noting in particular that the applicant’s alleged deprivation of liberty came to an end shortly after his application to the Constitutional Court. The Court also refers in this connection to its decision in the case of Mustafa Avcı (cited above, §§ 79‑80), where it confirmed the effectiveness of the remedy of an individual application to the Constitutional Court in respect of an Article 5 § 1 complaint, although the proceedings in that case had been pending before the Constitutional Court for some three years and two months.
56.  The Court finds, for the reasons explained above, that the applicant has failed to establish that the domestic remedies at his disposal were inadequate and/or ineffective in the particular circumstances of his case, or that there existed special circumstances exempting him from the requirement to pursue those remedies. The Court therefore finds that the applicant cannot be considered to have complied with the rule on exhaustion of domestic remedies laid down in Article 35 of the Convention. His complaints under Articles 2 and 5 must therefore be rejected under Article 35 § 1 of the Convention for non‑exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
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].  

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