SECOND SECTION

DECISION

Application no . 8536/16 Kemal KOÇ 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 Section Registrar ,

Having regard to the above application lodged on 1 1 February 2016,

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

Having regard to the information submitted by the respondent Government on 15 and 19 February 2016;

Having deliberated, decides as follows:

THE FACTS

1. The application was introduced by Derya Koç , Ferhat (surname not known), Barış Ağadır , Meryem Akyol , Agit Aydın, Emek Aydın, Lokman Bilgiç , Nursel Dalmış , Fatma Demir , Sahip Edin , İbrahim İverendi , Sinan Kaya, Murat Keskin , Fırat Malda , Mesut Özel , Abdullah Özgül , Sitar Özkül , Murat Tunç , Orhan Tunç and Abdülselam Turgut .

2. Following their demise in February, Derya Koç ’ s father Kemal Koç ; Meryem Akyol ’ s father Mehmet Akyol ; Lokman Bilgiç ’ s father Sait Bilgiç ; Fatma Demir ’ s brother Recep Demir ; Sahip Edin ’ s mother Zekiye Edin , wife Berivan Edin and children Muhammed Ali, Arjin and Süleyman Edin ; İbrahim İverendi ’ s mother Nermiye İverendi ; Abdulah Özgül ’ s father Mehmet Siraç Özgül ; Sitar Özkül ’ s father Selim Özkül ; Orhan Tunç ’ s father Ahmet Tunç and partner Güler Yerbasan ; and Abdulselam Turgut ’ s brother Süleyman Turgut expressed their intention to pursue the application on behalf of their deceased relatives and submitted an application form.

3. The applicants ’ legal representative informed the Court that at the time of the introduction of the request for interim measure he did not know the surname of “ Ferhat ” but that he had since found out that it was “ Karaduman ”. As a separate application had already been introduced by Ferhat Karaduman ( Karaduman and Ç i ç ek v. Turkey , no. 6758/16), the legal representative asked the Court to examine the complaints concerning Mr Karaduman ’ s death in that other application.

4. The applicants ’ legal representative also informed the Court that he had been unable to obtain the necessary documentation regarding the remaining deceased persons who had introduced the request for interim measure in the present application (namely Barış Ağadır , Agit Aydın, Emek Aydın, Nursel Dalmış , Sinan Kaya, Murat Keskin , Fırat Malda , Mesut Özel and Murat Tunç ). The legal representative stated that his inability had been due to the fact that the identification process of those persons had not been completed and also because of the difficulties he had been encountering in locating their family members.

5. As another application had been introduced regarding the death of Orhan Tunç ( Ahmet and Zeynep Tunç v. Turkey , no. 4133/16), the complaints made in the present application concerning the death of Orhan Tunç were registered as a separate application ( Tunç and Yerbasan v. Turkey , 31542/16) and they will therefore be examined in the joint applications nos. 4133/16 and 31542/16.

6. In the light of the foregoing, Kemal Koç , Mehmet Akyol , Sait Bilgiç , Recep Demir , Zekiye Edin , Berivan Edin , Muhammed Ali Edin , Arjin Edin , Süleyman Edin , Nermiye İverendi , Mehmet Siraç Özgül , Selim Özkül and Süleyman Turgut , who were born in 1955, 1968, 1962, 1980, 1964, 1992, 2012, 2014, 2010, 1963, 1956, 1949 and 1970 respectively, will be referred to as the applicants. They are Turkish nationals and are represented before the Court by Mr Öztürk Türkdoğan , a lawyer practising in Ankara.

A. The circumstances of the case

1. The applicants

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

a. Background to the events giving rise to the application

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

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

10. According to a report published by the Human Rights Foundation of Turkey on 18 March 2016, the number of civilians killed between August 2015 and 18 March 2016 in areas under curfew ‐ including Cizre ‐ was at least 310. Of those 310 deceased persons, 72 were children, 62 were women and 29 were aged 60 and older. A further 79 persons killed in the area during that same period have not yet been identified.

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

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

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

b. The incident and t he proceedings before the Court

12. On 9 and 10 February 2016 lawyers representing a total of 31 persons, including the applicants ’ relatives, made an application to the Constitutional Court in Turkey. They claimed that their clients had been shot and injured and had taken refuge in the basements of three buildings in Cizre . They gave the address of the first building as “No. 23 Bostancı Street, Cizre ” and stated that they did not know the numbers of the remaining two buildings which were located on Narin Street and Beyazıt Street in Cizre . They requested an interim measure to ensure their clients ’ immediate access to medical facilities and maintained that their clients and their family members had been unsuccessfully contacting the emergency services to ask for help.

13. In the evening of 11 February 2016 the applicants ’ relatives applied to the Court. They alleged that the Constitutional Court was not examining their request speedily and requested the Court to indicate to the Turkish Government, under Rule 39 of the Rules of Court, that they should enable, inter alia , their immediate access to hospitals. They informed the Court that they were in the basement of the house located on Beyazıt Street and stated that in the same basement there were also bodies of more than 20 persons. They stated that their relatives had been calling the emergency services and asking for ambulances without any success.

14. In the morning of 12 February 2016 the Court adjourned its examination of the requests and asked the Government to provide the following information by 15 February 2016:

“1. Were the applicants injured as alleged? What is the applicants ’ current health status?

2. What attempts have been made by the emergency services to take the applicants to hospitals?

3. Given the apparent urgency of the applicants ’ situation, is the Constitutional Court carrying out a prompt examination of their request?”

15. On 15 February 2016 t he Government provided the requested information .

16. In the afternoon of 12 February 2016 the Constitutional Court rejected the applicants ’ requests for interim measure. According to the information which had apparently been provided to the Constitutional Court by the local governor, paramedics had gone to the addresses in question on a number of occasions but had been unable to find the injured persons. Instead, they had seen the bodies of a number of persons.

17. On 17 February 2016 the Court requested the following information from the Government and asked the Government to submit their replies by 19 February 2016:

“According to the information provided by the Şırnak Governor to the Constitutional Court on 11 February 2016 (see page 7 of the Constitutional Court ’ s decision in case no. 2016/2602), health professionals, who visited the addresses in question on a number of occasions, found no injured persons there but only the bodies of a number of deceased persons. According to the information provided by your Government, however, it was not possible to get close to the buildings in the street due to the barricades set up and the buildings could not be checked since the security of the medical personnel could not be safeguarded (see pages 3-4 of your Government ’ s submissions in the case of Balcal and Others v. Turkey, no. 8699/16 and page 4 of your Government ’ s submissions in the case of Koç and Others v. Turkey, no. 8536/16, submitted to the Court on 15 February 2016).

In view of the above, your Government are requested to clarify the current situation and to inform the Court whether any of the applicants are among the deceased persons whose bodies, according to the Constitutional Court, were found in the buildings in question.

....”

18. On 19 February 2016 t he Government submitted their replies to the questions .

19. On 19 February 2016 the applicants ’ legal representative informed the Court that according to the national media all those who had taken refuge in the three basements in Cizre (a total of 176 persons including the applicants ’ relatives) had been killed. He further informed the Court that some of the families had found out about the deaths of their relatives and the whereabouts of their bodies from the information provided to the Court by the Government on 15 February 2016 (see paragraph 15 above). In his letter the legal representative also informed the Court that the evidence implicating the security forces in the killing of their relatives was being destroyed by the authorities.

20. On 22 February 2016 the Court rejected the requests made for interim measures and decided to give priority treatment to the applications in accordance with Rule 41 of the Rules of Court.

21. In their application forms submitted subsequently, the applicants informed the Court that the bodies of their relatives Derya Koç , Meryem Akyol , Fatma Demir , Abdullah Özgül , Sitar Özkül and Abdülselam Turgut had been identified and returned to them. The bodies of the remaining applicants ’ relatives, namely those of Lokman Bilgiç , Sahip Edin and İbrahim İverendi , had not yet been identified but been buried in a municipal cemetery.

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

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

2. The Government

24. On 15 and 19 February 2016 t he Government provided i nformation regarding the applicants ’ allegations.

B. Relevant international materials

25. 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.”

26. The United Nations High Commissioner for Human Rights stated the following on 10 May 2016:

“UN High Commissioner for Human Rights Zeid Ra ’ ad Al Hussein said Tuesday that he had received a succession of alarming reports about violations allegedly committed by Turkish military and security forces in south-east Turkey over the past few months, and urged the Turkish authorities to give independent investigators, including UN staff, unimpeded access to the area to verify the veracity of such reports.

“More and more information has been emerging from a variety of credible sources about the actions of security forces in the town of Cizre during the extended curfew there from mid-December until early March,” Zeid said. “And the picture that is emerging, although still sketchy, is extremely alarming.”

“I strongly condemn violence and other unlawful acts committed by the youth groups and other non-state agents, allegedly affiliated with the PKK, in Cizre and other areas, and I regret any loss of life as a result of terrorist acts wherever they have occurred,” Zeid said. “However, while Turkey has a duty to protect its population from acts of violence, it is essential that the authorities respect human rights at all times while undertaking security or counter-terrorism operations – and international law prohibiting torture, extrajudicial killings, disproportionate use of lethal force and arbitrary detention must be observed.”

The High Commissioner said he had received reports of unarmed civilians – including women and children – being deliberately shot by snipers, or by gunfire from tanks and other military vehicles.

“There also appears to have been massive, and seemingly highly disproportionate, destruction of property and key communal infrastructure – including buildings hit by mortar or shellfire, and damage inflicted on the contents of individual apartments and houses taken over by security forces,” he said. “There are also allegations of arbitrary arrests, and of torture and other forms of ill-treatment, as well as reports that in some situations ambulances and medical staff were prevented from reaching the wounded. On top of all this, there has been huge displacement triggered by the curfews and by subsequent fighting, shelling, killings and arrests in many places in the south-east.”

“Most disturbing of all,” the High Commissioner said, “are the reports quoting witnesses and relatives in Cizre which suggest that more than 100 people were burned to death as they sheltered in three different basements that had been surrounded by security forces.”

“All these allegations, including those levelled at the groups fighting against the security forces, are extremely serious and should be thoroughly investigated, but do not appear to have been so far,” Zeid said. “The Turkish Government has not responded positively to requests by my Office and other parts of the United Nations to visit the region to collect information first-hand.”

The UN Human Rights Chief noted that more information has emerged from Cizre compared to other districts, towns and villages in the south-east – including Silopi , Nusaybin and the Sur district of Diyarbakır, the main city in the region – which were sealed off for weeks on end, and are still next to impossible to access, because of the heavy security presence.

“In 2016, to have such a lack of information about what is happening in such a large and geographically accessible area is both extraordinary and deeply worrying,” Zeid said. “This black-out simply fuels suspicions about what has been going on. I therefore renew my call for access for UN staff and other impartial observers and investigators, including civil society organizations and journalists.”

Noting alarm bells rung by other international human rights entities in recent weeks,* Zeid called for a prompt investigation and prosecution of all those suspected of being involved in violations of the right to life, including extrajudicial killings and disproportional use of lethal force, and stressed that the judiciary should act independently from all other branches of the State, including the military and the Executive. He also called on the Turkish authorities to allow the return of all those who have been forcibly displaced, and urged them to ensure that, in future, curfews are limited to the minimum duration necessary and with due concern for human rights obligations and humanitarian considerations.

The High Commissioner noted Turkey ’ s continued engagement with UN human rights bodies, including the recent visit of UN Working Group on Enforced or Involuntary Disappearances; the recent review of the country ’ s record by the UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families; and the ongoing review by the UN Committee against Torture which will issue its concluding observations on Friday 13 May.

* On 14 April, the Council of Europe ’ s Commissioner for Human Rights stated that “respect for human rights has deteriorated at an alarming speed in recent months in the context of Turkey ’ s fight against terrorism;” and the UN Working Group on Enforced or Involuntary Disappearances, which visited Turkey from 14-18 March, stated its concern “at the increasingly worrisome situation in the South-East of the country and its wide impact on human rights.” The Working Group also stressed “the need to undertake a thorough and impartial investigation into all allegations of human rights violations in the context of the current security operations, including of families not being able to have access to the bodies of their killed loved ones or of bodies being disposed of.

...”

COMPLAINTS

27. The applicants complain under Article 2 of the Convention that their relatives were killed by the security forces. They argue that the security forces ’ actions during the operations were not proportional and, as held by the Court in a number of its judgments, opening fire with heavy weapons without first evacuating civilians was in breach of this provision. The applicants allege that the respondent State did not take any measures to prevent a breach of this provision. Under the same provision and relying also on Article 13 of the Convention the applicants complain that no effective investigation was carried out into the deaths of their relatives. In particular, the place where they lost their lives was not examined by the investigating authorities and the evidence was not secured; the autopsies conducted on the bodies were not compliant with the applicable procedure and the lawyers representing the families and a number of volunteer doctors were not allowed to be present during the autopsies.

28. Under Article 3 of the Convention the applicants complain that the fear and anguish which their relatives must have suffered on account of hearing constant explosions and gunfire amounted to ill-treatment.

29. The applicants argue that the imposition of the curfew for an unspecified period amounted to a house arrest and was in breach of Article 5 of the Convention.

30. Finally, the applicants also argue that the imposition of the curfew without declaring a state of emergency was in breach of Articles 15 and 17 of the Convention.

THE LAW

A. Complaints under Articles 2, 3 and 13 of the Convention

31. The applicants complain that their relatives lost their lives in breach of Article 2 of the Convention and that the failure to investigate their deaths was in breach of Articles 2 and 13 of the Convention. They also complained that their relatives ’ suffering in the basement amounted to ill-treatment within the meaning of Article 3 of the Convention.

32. 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. Complaints under Article 5, 15 and 17 of the Convention

33. The applicants complain that the imposition of the curfew in such circumstances was in breach of Articles 5, 15 and 17 of the Convention.

34. 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.

C. Application in so far as it concerns Barış Ağadır , Agit Aydın, Emek Aydın, Nursel Dalmış , Sinan Kaya, Murat Keskin , Fırat Malda , Mesut Özel and Murat Tunç

35. As explained above (see paragraph 4), the applicants ’ legal representative informed the Court that he had been unable to obtain the necessary documentation regarding these nine deceased persons because the identification process of those persons had not been completed and also because of the difficulties he had been encountering in locating their family members. No application forms were therefore submitted in respect of these five deceased persons.

36. The Court considers that, in these circumstances, no relatives of these nine deceased persons may be regarded as wishing to pursue the application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of their complaints. In view of the above, it is appropriate to strike the application, in so far as it concerns these nine deceased persons, namely Barış Ağadır , Agit Aydın, Emek Aydın, Nursel Dalmış , Sinan Kaya, Murat Keskin , Fırat Malda , Mesut Özel and Murat Tunç , out of the Court ’ s list of cases.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants ’ complaints under Articles 2, 3 and 13 of the Convention;

Decides to strike the application, in so far as it concerns Barış Ağadır , Agit Aydın, Emek Aydın, Nursel Dalmış , Sinan Kaya, Murat Keskin , Fırat Malda , Mesut Özel and Murat Tunç , out of the Court ’ s list of cases;

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