SECOND SECTION

DECISION

Application no . 4353/16 Cemil ALTUN 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 19 January 2016,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court on 19 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 above application under Rule 41 of the Rules of Court,

Having regard to the information submitted by the respondent Government on 21 and 26 January 2016 and by the applicant on 20, 22 and 26 January and 3 and 16 February 2016,

Having deliberated, decides as follows:

THE FACTS

1. The application was introduced by Mr Serhat Altun, a Turkish national who was born in 1997 and who lived in Van. He was represented before the Court by Mr Ramazan Demir, a lawyer practising in Istanbul.

2. Following Mr Serhat Altun ’ s demise on 20 January 2016, his brother, Mr Cemil Altun, expressed his intention to pursue the application and submitted an application form.

3. Mr Cemil Altun, who will be referred to as the applicant, is a Turkish national. He was born in 1991 and lives in Van. He is represented before the Court by Mr Ramazan Demir.

A. The circumstances of the case

1. The applicant

4. The facts of the case, as submitted by the applicant and as they appear from the documents submitted by him and his deceased brother Serhat Altun, 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 applicant ’ s brother Serhat Altun was a university student who, together with 40-50 of his fellow students, went to Cizre before the curfew was imposed on 14 December 2015 in order to offer his support to the local residents. When the curfew was imposed on 14 December 2015, Serhat Altun and the other students became unable to leave the town. One of the students was subsequently killed by the security forces and a number of others were shot and injured.

10. In the evening of 18 January 2016 Serhat Altun was also shot by the security forces and injured. At that time he was on Siti Hayat Street in the Cudi neighbourhood of Cizre. He managed to go into the garden of a house from where he was able to inform the residents of the surrounding houses – by shouting – that he had been injured and was losing a lot of blood. Security forces in the area did not, however, allow anyone to go near him and opened fire indiscriminately. Although some locals and Mr Faysal Sarıyıldız, who is a Member of Parliament for Şırnak and who was in Cizre at the time, called the emergency services a number of times and asked for an ambulance to be sent for Serhat Altun, they were told that no ambulances were being allowed into the street because of security concerns. The emergency services informed the callers that if they took Serhat Altun to Dörtyol – a location some one and a half kilometres away – they could pick him up from there.

11. There were, however, no persons in the vicinity willing to carry Serhat Altun to that location. In a number of similar incidents in the past, civilians taking injured persons to ambulances had been shot at by the security forces and, as a result, people were too scared to offer Serhat Altun any assistance. In one such incident the grandparents of a three-month-old baby, who had been shot and injured by a bullet, had been making an attempt to take the baby to hospital when they had come under fire. Both the baby and her grandfather had died and the grandmother had survived with injuries.

12. On 19 January 2016 the applicant ’ s lawyer, who had been informed about the incident by Mr Sarıyıldız, 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 Serhat Altun ’ s immediate access to a hospital.

13. The same day the Court acceded to the request and indicated to the Turkish Government that they should take all measures within their powers to protect Serhat Altun ’ s life and physical integrity.

14. However, the Government did not take any steps to take the applicant ’ s brother to hospital.

15. The applicant ’ s brother lost his life on 20 January 2016.

16. The same day Mr Sarıyıldız informed the Governor of Cizre that he, together with the Mayor of Cizre and approximately 30 relatives of persons who had been injured or killed in Cizre, were going to go to the Cudi neighbourhood to retrieve a number of injured persons and the bodies of deceased persons. Once in Cudi neighbourhood, the group found and retrieved the bodies of a number of persons, including that of the applicant ’ s brother, Serhat Altun, and the bodies of Ahmet Tunç and Mehmet Kaplan (applications lodged in respect of those two deceased persons are currently pending before the Court; see Adem Tunç v. Turkey , no. 4552/16, and Abdullah Kaplan v. Turkey , no. 4159/16). On their way back, the group came under fire from armoured vehicles, during which two of the group ’ s members were killed and a number of others were injured, including a cameraman who was filming the incident.

17. This incident was criticised by the United Nations ’ High Commissioner for Human Rights in his report of 1 February 2016. The UN High Commissioner Zeid Ra ’ ad Al Hussein “urged the Turkish authorities to respect the fundamental rights of civilians in its security operations and to promptly investigate the alleged shooting of a group of unarmed people in the south-eastern town of Cizre, after shocking video footage of the event emerged last week.”

18. A post mortem examination was conducted on the body of the applicant ’ s brother in the evening of 20 January 2016. The doctors noted that he had been shot with three bullets.

19. The applicant ’ s brother was buried in his home town of Erciş on 22 January 2016.

20. On 28 January 2016 the Court decided, in the light of the information provided by the parties regarding the death of Serhat Altun, to lift the interim measure previously indicated on 19 January 2016 under Rule 39 of the Rules of Court.

c. Arrest and detention of the applicant ’ s legal representative

21. In the early hours of 16 March 2016 the applicant ’ s legal representative Mr Ramazan Demir ’ s house in Istanbul was raided by officers from the counter-terrorism department of the police and he was taken into custody.

22. In the evening of 17 March 2016 a prosecutor wanted to question him at the police station. Mr Demir refused to answer the prosecutor ’ s questions, stating that according to the applicable procedure he could only be questioned at a court house and not at a police station.

23. During the questioning the prosecutor asked Mr Demir questions such as whether he had ever been imprisoned for a PKK-related offence; whether he had any relatives who had links to the PKK or who were in prison for PKK-related activities; whether he visited any relatives or any of his clients in prison; whether he was a member of any association; whether he used social media; and details of all telephone lines he has had.

24. Mr Demir did not answer any of the questions. In the same statement the prosecutor also accused Mr Demir of the following: “... it is considered that [Mr Demir] will be meeting and conducting interviews with a person, whom he named as Delegasyon, as part of his propaganda and agitation activities and as part of his activities to weaken our country inside and at the international arena by making allegations of torture and alleging violations of human rights.”

25. After his above-mentioned questioning Mr Demir continued to be detained at the police station until he was brought before a judge on 19 March 2016 and his release on bail was ordered by that judge. When questioned by the judge Mr Demir and the lawyers representing him referred to the above-mentioned accusation made by the prosecutor and argued that the real reason for his arrest was to prevent him from representing applicants before the European Court of Human Rights in cases concerning the curfews. They alleged that doing so was in breach of Article 34 of the Convention.

26. After his release the prosecutor objected to Mr Demir ’ s release and an arrest warrant was issued for Mr Demir on 22 March 2016.

27. On 6 April 2016 Mr Demir went to the courthouse and informed the judge that the reason why he had not surrendered immediately after the arrest warrant had been issued on 22 March 2016 was because he had had to complete a number of application forms and submit them to the Court as he owed a duty to his clients to do so. The judge ordered his detention in a prison, pending the introduction of criminal proceedings against him.

28. On 20 April 2016 Mr Demir authorised his legal representative Ms AyÅŸe Demir-Bingöl to act on his behalf before the Court regarding a total of 16 applications ­ - including the present one. Mr Demir was released from prison on bail on 7 September 2016.

2. The Government

29. On 21 and 26 January 2016 the Government provided information and comments regarding the applicant ’ s allegations and the interim measure indicated by the Court.

B. Relevant international materials

30. 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

31. The applicant complains under Article 2 of the Convention that, although the authorities knew his brother ’ s location and owed him a duty of care under national law, they did not intervene to save his life. In this connection he refers to the positive obligation under Article 2 of the Convention and argues that if the authorities knew or ought to have known of the existence of a risk to the life of a person but failed to take measures in order to prevent that risk from materialising, they will have acted in breach of the right to life.

32. Under the same provision the applicant further complains that, apart from carrying out a post mortem examination, the prosecutor has not taken any steps in the investigation into the death of his brother.

33. The applicant alleges that after he was shot and injured, his brother had to wait for a long time and no one dared approach him in order to help him. His brother ’ s suffering, in the opinion of the applicant, amounted to ill ‑ treatment within the meaning of Article 3 of the Convention.

34. The applicant argues that the curfew was executed so strictly that his brother ’ s body could not immediately be retrieved from the place where he lost his life, and alleges that that was in breach of his brother ’ s right to liberty and security within the meaning of Article 5 of the Convention. He adds that the residents of the whole town of Cizre were effectively imprisoned in their homes because the security forces shot and killed anyone seen on the streets.

35. Relying on Articles 1 and 34 of the Convention the applicant complains that the respondent State failed to comply with the interim measure indicated by the Court by not taking any steps to protect the physical integrity and life of his brother and by preventing other persons from offering his brother any assistance. To that end the applicant argues that the Government ’ s excuse, namely that armed clashes were continuing in the area at the time, did not absolve the Government from their obligations.

36. Finally, under Article 34 of the Convention the applicant also alleges that the real reason for the arrest and detention of his legal representative, Ramazan Demir, was his representation of applicants from the curfew areas, and complains that Mr Demir ’ s arrest and detention constitute a serious interference with his right of individual application.

THE LAW

A. Complaints under Articles 2, 3 and 34 of the Convention

37. The applicant complains under Article 2 of the Convention that his brother lost his life as a result of the national authorities ’ failure to take him to hospital after he was shot and seriously injured and also that the national authorities failed to carry out an effective investigation into his death. He also complains that his brother ’ s suffering on account of the national authorities ’ failure to help him while he was losing blood amounted to ill-treatment within the meaning of Article 3 of the Convention.

38. Finally, the applicant complains that the Government, by failing to comply with the interim measure and by arresting and detaining his legal representative acted in breach of their obligations under Article 34 of the Convention.

39. 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. Complaint under Article 5 of the Convention

40. Relying on Article 5 of the Convention the applicant complains that as a result of the strict application of the curfew the body of his brother could not immediately be retrieved and that the residents of the whole town of Cizre were effectively imprisoned in their homes because the security forces shot and killed anyone seen on the streets.

41. 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 applicant ’ s complaints under Articles 2, 3 and 34 of the Convention;

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