SECOND SECTION

DECISION

Application no . 3758/16 Zehide PAKSOY and O thers against Turkey

The European Court of Human Rights (Second Section), sitting on 6 December 2016 as a Chamber composed of:

Julia Laffranque, President, Işıl Karakaş, Paul Lemmens, Valeriu Griţco, Ksenija Turković, Jon Fridrik Kjølbro, Georges Ravarani, judges, and Hasan Bakırcı , Deputy S ection Registrar,

Having regard to the above application lodged on 16 January 2016,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court on 18 January 2016 and the decision to lift that interim measure o n 28 January 2016,

Having regard to the decision to grant priority to the application under Rule 41 of the Rules of Court,

Having regard to the information submitted by the respondent Government on 21 and 25 January 2016 and by the applicant on 21 January 2016,

Having deliberated, decides as follows:

THE FACTS

1. The application was introduced by Mr Hüseyin Paksoy, a Turkish national who was born in 1999 and who lived in the town of Cizre within the administrative jurisdiction of the province of Şırnak. He was represented before the Court by Ms Nuray Özdoğan, a lawyer practising in Ankara.

2. Following Hüseyin Paksoy ’ s demise on 18 January 2016, his mother Mrs Zehide Paksoy, his father Mr Mehmet Paksoy and his brother Mr Mesut Paksoy expressed their intention to pursue the application and submitted an application form.

3. Zehide Paksoy, Mehmet Paksoy and Mesut Paksoy, who will be referred to as the applicants, are Turkish nationals. They were born in 1952, 1949 and 1979 respectively and live in Cizre. They are represented before the Court by Ms Nuray Özdoğan.

A. The circumstances of the case

1. The applicants

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

a. Background to the events giving rise to the application

5. Since August 2015 a number of curfews have been imposed in certain towns and cities in south-east Turkey by the local Governors. The stated aim of the curfews was to clear the trenches dug up and the explosives planted by members of a number of outlawed organisations, as well as to protect the civilians from violence. Some of those curfews were lifted and then re-imposed on various dates.

6. On 14 December 2015 a curfew was imposed in the town of Cizre, prohibiting people from leaving their homes at any time of the day. The 24 ‑ hour curfew in Cizre continued until it was modified on 2 March 2016, whereby people were allowed to leave their homes between the hours of 5 a.m. and 7.30 p.m. Another modification of the modalities of the curfew made on 28 March 2016 allowed people to leave their homes between 4.30 a.m. and 9.30 p.m. and a final modification made on 5 June 2016 limited the curfew hours to between 11 p.m. and 2.30 a.m.

7. According to a report published by the Human Rights Foundation of Turkey on 6 February 2016, the number of civilians killed between August 2015 and 5 February 2016 in areas under curfew ‐ including Cizre ‐ was at least 300. Of those 300 deceased persons, 42 were children, 31 were women and 30 were aged 60 and older.

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

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

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

b. The incident and t he proceedings before the Court

9. The applicants and their 16-year-old son and brother, Hüseyin Paksoy, were living in the town of Cizre. When the armed clashes intensified in the vicinity of their house, the applicants left their home and moved to the nearby town of Uludere, which was not under curfew, on 13 January 2016. Hüseyin Paksoy stayed behind in Cizre in the family home.

10. At around 4.30 or 5 p.m. on 15 January 2016 the applicants were informed by telephone that Hüseyin Paksoy had been shot in the leg and was losing a lot of blood. The callers suggested to the applicants that they could take Hüseyin Paksoy to a nearby petrol station from where he could be picked up by an ambulance. The applicants then contacted the emergency services and asked for an ambulance. They were told to wait. When they heard nothing else from the ambulance service, they contacted the police but were told that it was not a matter for the police to deal with. When the applicants contacted the ambulance service once more, they were told that the ambulance could not be sent to the area on account of security concerns. The local Member of Parliament, Mr Faysal Sarıyıldız, who was in the area at the time, spoke to the local Governor a number of times but failed to obtain help.

11. On 16 January 2016 the applicants ’ legal representative 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 enable Hüseyin Paksoy ’ s immediate access to a hospital.

12. On 18 January 2016 the Court acceded to the request and at 11.49 a.m. the same day it indicated to the Turkish Government that they should take all measures within their powers to protect Hüseyin Paksoy ’ s life and physical integrity.

13. According to a report prepared by four police officers and made available to the Court by the Government on 25 January 2016, at midday on 18 January 2016 police officers went to an address in the Nur neighbourhood of Cizre to carry out a search in a house in accordance with a decision taken by the Cizre prosecutor the same day. On the ground floor of the building they found the body of a person whom they considered to be approximately 18-20 years of age. The left leg of the body was bandaged and the officers found a large amount of medical equipment in the building. The body was taken to Cizre hospital and the search was completed at 2 p.m. It was not known at the time that the body belonged to Hüseyin Paksoy.

14. At 5 p.m. the same day the Cizre prosecutor went to the hospital and carried out a preliminary examination of the body together with a doctor. The doctor noted in the report that rigor mortis was setting in and considered that the death had occurred within the last 12-24 hours. The doctor also noted in the report a number of injuries, some of which had been caused by bullets, on the arms and legs. A decision was taken to carry out a fuller post mortem examination to establish the cause of death.

15. The post mortem examination was carried out in the morning of 19 January 2016. According to the post mortem report, the third applicant, Mr Mesut Paksoy, was present at the hospital and formally identified the body as that of his brother Hüseyin Paksoy. He also informed the prosecutor that his family had decided to leave Cizre for Uludere after their house had been hit by a mortar but that his brother Hüseyin Paksoy had stayed behind. When a couple of days later Hüseyin Paksoy had also tried to leave the town, he had been shot and injured.

16. According to the report of the post mortem examination, Hüseyin Paksoy had been shot in his left leg and had died as a result of loss of blood.

17. In their letter of 21 January 2016 the applicants informed the Court that Hüseyin Paksoy had lost his life and alleged that it was due to the Government ’ s failure to comply with the interim measure in a timely manner.

18. On 28 January 2016 the Court decided, in the light of the information provided by the parties regarding the death of Hüseyin Paksoy, to lift the interim measure previously indicated on 18 January 2016 under Rule 39 of the Rules of Court.

2. The Government

19. On 21 and 25 January 2016 the Government provided information and comments regarding the applicants ’ allegations and the interim measure indicated by the Court.

B. Relevant international materials

20. On 2 December 2016 the Council of Europe Commissioner for Human Rights published his Memorandum on the “Human Rights Implications of Anti-Terrorism Operations in South-Eastern Turkey” (CommDH(2016)39). The Memorandum ’ s conclusions and recommendations are as follows:

“5. Conclusions and recommendations

118. The Commissioner is fully aware of the extent of the terrorist threat faced by Turkey and recognises the right and duty of the Turkish state to fight against terrorism in all its forms. The Commissioner also understands the circumstances in South-Eastern Turkey, where an armed, separatist organisation, recognised as terrorist by the EU, NATO and many countries, has systematically used violence and terror in a decades-long conflict which has claimed tens of thousands of lives. Nothing in this memorandum should be considered as justifying the actions of the PKK or any other terrorist activity in South-Eastern Turkey.

119. At the same time, the response of the Turkish state, in accordance with its international obligations, must adhere to the principles of rule of law and human rights standards, which require any interference with basic human rights to be defined in law, necessary in a democratic society and strictly proportionate to the aim pursued. In this respect, Turkey has a very long record of extremely grave human rights violations recognised as such by the European Court of Human Rights, with the most severe forms of violation having occurred in South-Eastern Turkey in the 1990s. Following a period of relative peace during the so-called “solution process”, the Commissioner deeply regrets the resumption of hostilities and their rapid escalation in South-Eastern Turkey.

120. For the purposes of this memorandum, the Commissioner examined the response of the Turkish authorities to the situation in the South-East since the summer of 2015, which mainly took the form of declaration of curfews accompanied by police and/or military operations. In the light of this examination as set out in the body of this memorandum and in view of the applicable international and European standards, as well as of the tremendous restrictions on the enjoyment of core human rights that they imposed, the Commissioner considers these measures to have been neither legal, in the sense of being sufficiently foreseeable and defined in law, nor roportionate to the legitimate aim pursued by Turkey.

121. In the opinion of the Commissioner, therefore, the response the Turkish authorities developed since August 2015, characterised by the declaration of open-ended, 24-hour curfews, have caused a number of very serious human rights violations simply by virtue of having been imposed on the affected local populations. The Commissioner urges the Turkish authorities in the strongest possible terms to put an immediate end to this practice. Any future measures deployed in the region must show much higher regard to the human rights of the local civilian population when balancing them against the imperative of the fight against terrorism.

122. As regards numerous allegations of human rights violations committed by security forces, the Commissioner finds them to be extremely serious and consistent. He considers many of these allegations to be credible, given their sources and considering past patterns of human rights violations committed by Turkish security forces during anti-terrorism operations in the South-East, as well as the Turkish authorities ’ efforts to reinforce the immunity of security forces from prosecution during this period. At any rate, given the fact that these allegations concern violations in areas cut off from the world during operations which were under the complete control of the authorities, it is for the Turkish authorities to prove convincingly that they are unfounded.

123. The Commissioner observes that the Turkish authorities not only have not shown any willingness to tackle the long-standing problem of impunity and to implement the recurrent recommendations of the Commissioner ’ s Office on this issue, but that the patterns which have led to serious human rights violations in the past remained in operation during the period in question. All evidence indicates that the authorities did neither treat with the requisite seriousness the allegations of human rights violations, nor conduct ex officio criminal investigations into lives lost during the operations in a way that would be liable to shed light on the events. The priority seems to have rather been to reassure and shield from prosecution the security forces, who have only been subjected to disciplinary sanctions for particularly egregious forms of misconduct with the exception of very few criminal cases where members of security forces were treated as suspects, while at the same time vilifying human rights NGOs and lawyers bringing these allegations. In the Commissioner ’ s opinion, this situation falls woefully short of Turkey ’ s international obligations.

124. For investigations into these allegations to be considered effective, they should have been immediate, diligent and thorough. Unfortunately, given the elapsed time since some of the operations, the fact that evidence might have been actively destroyed with heavy machinery in the affected zones, as well as the general attitude of prosecutors, it seems very improbable that any future investigation will fully satisfy the criteria for effectiveness. Turkish authorities will therefore have to contend with the fact that Turkey will be presumed to have committed many serious human rights violations, including violations of the right to life, during the period in question.

125. This situation brings home the urgency for a mentality shift in Turkey when it comes to the accountability of state agents. The Commissioner considers that impunity has been a nefarious influence throughout Turkey ’ s recent history, legitimising and fostering behaviour fundamentally at odds with human rights, and undermining all efforts to protect and promote them. It is true that the authorities took swift action to punish state agents suspected of involvement in the coup attempt of 15 July 2016, but the Commissioner regrets that one of the first measures taken in this connection was to give administrative, legal and criminal immunity to other state agents enforcing emergency decrees. In the opinion of the Commissioner, a crucial test for human rights in Turkey is whether the same diligence can be shown when the actions are not directed against the state but the human rights of its individual citizens.

126. The Commissioner once more urges Turkey in the strongest possible terms to finally tackle the numerous root causes of impunity in Turkey (see paragraph 83 above) and implement the recommendations he repeatedly made to Turkey for combatting it.

127. In the light of his examination set out in this memorandum, the Commissioner considers that numerous human rights of a very large population in South-Eastern Turkey have been violated in the context of the anti-terrorism operations conducted since August 2015. The priority for Turkey must therefore be to abandon the approach which has led to this situation, followed by the demonstration of a clear will to remedy its effects.

128. This requires, firstly, public recognition by the authorities of the mistakes and human rights violations committed. This must be accompanied by serious efforts to compensate moral and material damages suffered by the people concerned, be it because of the failure of the Turkish state to protect them from terrorism or the direct effect of the anti-terrorist operations themselves. The Commissioner gained the impression that the Turkish authorities do not grasp the scale of the efforts needed in this connection and the existing framework for compensation appears clearly insufficient in many respects. Regarding the approach to expropriate the local population in certain cities affected by the operations, the Commissioner thinks that such a measure would represent a double punishment for the persons affected and cannot be considered a form of redress.

129. The Commissioner wishes to stress his willingness to pursue his constructive dialogue with the Turkish authorities and to offer his assistance and support to their efforts to improve the protection and promotion of human rights in Turkey.”

COMPLAINTS

21. The applicants complain under Article 2 of the Convention that Hüseyin Paksoy lost his life as a result of the respondent State ’ s failure to take steps to protect his right to life. In this connection they argue that the emergency services were aware that Hüseyin Paksoy had been injured and in need of urgent medical intervention but that they did not send an ambulance and did not make any real attempts to help him. Concerning the official reason for not sending an ambulance to Hüseyin Paksoy, namely for security reasons, the applicants refer to the above-summarised report prepared by four police officers pertaining to the discovery of Hüseyin Paksoy ’ s body. They argue that that report illustrates that it would have been possible to find him without any security problems at the indicated address.

22. Relying on Article 13 of the Convention the applicants complain that no effective investigation was conducted into Hüseyin Paksoy ’ s death. In this connection they highlight in particular that no examinations were carried out at the place where his body was discovered and that the post mortem examinations conducted were not adequate and left many questions unanswered.

23. The applicants argue that after he was shot and injured, Hüseyin Paksoy had to wait for a long time for help and during that time he must have suffered unbearable pain. His suffering, in the opinion of the applicants, amounted to ill-treatment within the meaning of Article 3 of the Convention.

24. The applicants allege that their own right to liberty within the meaning of Article 5 of the Convention was violated on account of the curfews. They argue that no precautions were taken and no planning was made by the authorities with a view to protecting the civilian population. The residents of Cizre were asked to leave the town but those who tried to do so were targeted by snipers. Homes of those who refused to leave, on the other hand, were attacked with heavy weapons and the civilians inside them were killed. Such use of disproportionate force and the shelling of the whole town with tanks resulted in forcing hundreds of persons to take shelter in the basements of buildings and in animal sheds and thus breached their right to liberty and security.

25. Finally, under the same provision, the applicants also complain that the authorities failed to ensure Hüseyin Paksoy ’ s right to liberty and security within the meaning of Article 5 of the Convention by not taking any meaningful steps to find him and to save him because of the strict application of the curfew.

THE LAW

A. Articles 2, 3, 5 and 13 of the Convention

26. The applicants allege that their son and brother Hüseyin Paksoy ’ s rights under Articles 2, 3, and 13 of the Convention were breached on account of the national authorities ’ failure to provide him assistance after he was injured and to investigate his death.

27. The applicants also argue that they were deprived of their liberty in breach of Article 5 of the Convention on account of the imposition of the curfew.

28. The Court considers that it cannot, on the basis of the case-file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of them to the respondent Government.

B. Article 5 of the Convention in respect of Hüseyin Paksoy

29. Relying on Article 5 of the Convention the applicants complain that the authorities failed to ensure their son and brother Hüseyin Paksoy ’ s right to liberty and security by not taking any meaningful steps to find him and to save him because of the strict application of the curfew.

30. Having regard to all the material in its possession, and in so far as this complaint falls within its competence, the Court finds that there is no appearance of a violation of the provision 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 unanimously

Decides to adjourn the examination of the applicants ’ complaints under Articles 2, 3 and 13 of the Convention concerning the death of Hüseyin Paksoy and the complaint under Article 5 of the Convention concerning the applicants ’ alleged deprivation of liberty;

Declares the remainder of the application inadmissible.

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

Hasan Bakırcı Julia Laffranque              Deputy Registrar President