Lexploria

Information Note on the Court’s case-law 226

February 2019

Ahmet Tunç and Others v. Turkey (dec.) - 4133/16 and 31542/16

Decision 29.1.2019 [Section II]

Article 35

Article 35-1

Exhaustion of domestic remedies

No special circumstances for exemption from requirement to apply to Constitutional Court: inadmissible

Article 34

Hinder the exercise of the right of application

Proceeding with examination of complaint abou t failure to comply with interim measure would amount to circumventing exhaustion rule

Facts – In 2015 the security situation in south-east Turkey deteriorated on account of the intensification of hostilities by illegal armed groups affiliated with the PKK (the Workers’ Party of Kurdistan). In response, curfews were imposed by the Turkish authorities in certain towns and cities with the stated aim of clearing the trenches dug up and the explosives planted by members of the armed groups, as well as protectin g civilians from violence. On 14 December 2015 a curfew was imposed in the town of Cizre, prohibiting people from leaving their homes at any time of day. The 24-hour curfew in Cizre continued until it was modified in March 2016.

On 18 January 2016, Orhan Tunç, the applicants’ relative, was allegedly shot by fire opened from armoured vehicles. Although repeated calls were made by a number of people to the emergency services, no ambulance was sent. On 19 January 2016 the European Court granted an interim mea sure under Rule 39 of the Rules of Court indicating to the Turkish authorities that they should ensure Orhan Tunç’s immediate access to a hospital. On 3 February 2016, Orhan Tunç had st ill not been taken to hospital. On 15 February 2016 he was found dead in the basement of a building where he had taken refuge, allegedly shot by the security forces when they had shelled that building.

The applicants complained, inter alia , that the authorities had failed to comply with their positive obligation to protect Orhan Tunç’s life as they had not ensured his access to medical facilities despite having been aware that he had been seriously injured. They further complained that he h ad been killed as a result of disproportionate use of force by agents of the State in the building in which he had taken refuge and that no effective investigation had been conducted into his death. Under Article 34 of the Convention the applicants complai ned that the respondent State had failed to comply with the interim measures indicated by the Court.

Law

Article 35 § 1 ( exhaustion of domestic remedies ): The procedure available in Turkey of an individual application to the Constitutional Court was an effective remedy for violations of the rights and freedoms protected by the Convention and offered prospects of appropriate redress. The applicants’ compla ints were prima facie premature, having regard to their applications in respect of those complaints pending before the Constitutional Court.

(a) Existence of special circumstances – According to the generally recognised rules of international law, there m ight be special circumstances which exempted an applicant from the obligation to exhaust domestic remedies. One such reason might be constituted by the national authorities remaining totally passive in the face of serious allegations of misconduct or infli ction of harm by State agents, for example where they had failed to undertake investigations or offer assistance. The threshold for a “special circumstances” dispensation was high and the existence of such special circumstances had been found only in excep tional cases.

The grave allegations of human rights violations committed in south-east Turkey during the curfews and the arguments as to the existence of a practice of impunity in Turkey in respect of human rights violations committed by the security force s did not exempt the applicants from the obligation to exhaust the available domestic remedies. All of the complaints regarding both the unlawful acts allegedly committed by State agents and the ineffective response of the judicial apparatus to those acts had been, or could have been, brought by the applicants before the Constitutional Court.

The remedy of an individual application, available before the Constitutional Court since 23 September 2012, was fully capable of leading to an examination of those al legations, as well as any other complaints raised by the applicants before the European Court. Although the applicants had argued that since September 2012 the Constitutional Court had yet to deliver a single judgment on violations committed by the securit y forces within the context of counterterrorism operations, and expressed doubts as to its capacity to address such complaints, in a legal system providing constitutional protection for fundamental rights, it was incumbent on the aggrieved individual to te st the extent of that protection. Mere doubts regarding the effectiveness of a particular remedy would not exempt applicants from the obligation to try it.

Allegations of erosion of judicial independence in Turkey had been made by a number of international bodies. While the Court noted the seriousness of those concerns, it could not examine in the abstract whether there existed in Turkey a general problem of independence and impartiality that affected the overall functioning of the judiciary, and draw concl usions from such an assessment for the purposes of the applicants’ case. The Court had rather to focus its examination on the facts and evidence presented before it. It considered in that regard that the applicants had not submitted sufficient evidence to support the argument that the Turkish judiciary in general, and the Constitutional Court in particular, lacked the willingness and the competence to examine their complaints in an independent and impartial manner owing to the undue influence of the executi ve. Doubts as to the lack of independence and impartiality of investigatory authorities or courts might in certain circumstances raise an issue under Article 2 of the Convention but they could not, in principle, be raised as a pre-emptive claim to escape t he obligation to exhaust domestic remedies.

(b) Length of the proceedings before the Constitutional Court – It was not unreasonable that the Constitutional Court had remained somewhat inactive while the criminal investigations into deaths, including that of Orhan Tunç, were still pending and the factual circumstances surrounding the death were, at least in theory, being uncovered by the investigating authorities. It appeared that, after the criminal proceedings had ended, the Constitutional Court had star ted to deal with the case more actively. Bearing in mind that it had only been about one year and six months since the conclusion of the relevant criminal proceedings and also noting the apparent complexity of the case and the reasonable progress of the pr oceedings before the Constitutional Court, that court could not yet be said to have failed to examine the applicants’ allegations in a timely manner.

(c) Alleged non-enforcement of the Constitutional Court’s decisions – The decisions of the Constitutional Court were binding on all State organs and authorities, as well as on all natural and legal persons. Deliberate failure to implement a final and enforceable judgment might have the effect of undermining the credibility and authority of the judiciary and o f jeopardising its effectiveness. However, in the absence of any compelling evidence to the contrary, there was no cause at that time to doubt that any eventual findings of a violation by the Constitutional Court in respect of the applicants’ complaints wo uld be effectively implemented.

Conclusion : inadmissible (failure to exhaust domestic remedies).

Article 34: The complaint under Article 34 about failure to comply with the interim measure under Rule 39 of the Rules of Court concerned, in effect, the resp ondent State’s positive obligation under Article 2 to safeguard the lives of those within its jurisdiction. The Constitutional Court, as the supreme judicial authority, had to be given the opportunity to examine the substance of that complaint. Bearing in mind the close relationship between the complaints under Articles 2 and 34 in the present context, the Court considered that it should refrain from examining the complaint under Article 34 for the time being, as the latter necessarily entailed an examinati on of the State’s positive obligations under Article 2. While there was no exhaustion requirement in respect of Article 34 complaints and the Court was the sole authority to verify compliance with an interim measure, proceeding with an examination of the c omplaint under Article 34 would in effect amount to circumventing the exhaustion rule in respect of the related complaints under Article 2.

Conclusion : inadmissible (premature).

(See also Sargsyan v. Azerbaijan [GC], 40167/06, 16 June 2015, Information Note 186 ; Vučković and Others v. Serbia (preliminary objection) [GC], 17153/11 et al., 25 March 2014, Information Note 172 ; Kaya and Others v. T urkey (dec.), 9342/16 , 20 March 2018; Akdivar and Others v. Turkey , 21893/93 , 16 September 1996)

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