Communicated on 12 May 2017

SECOND SECTION

Application no. 63130/15 Sedat AYDIN and others against Turkey lodged on 29 December 2015

STATEMENT OF FACTS

1. The applicants, Sedat Aydın, Halise Kulja , Osman Kültür and Nevroz Yılmaz, are Turkish nationals who were born in 1969, 1982, 1955 and 2000 respectively. Sedat Aydın lives in the Sur district of Diyarbakır and the remaining three applicants live in the town of Cizre . They are represented before the Court by Ms Oya Aydın Göktaş , a lawyer practising in Ankara.

A. Background to the events giving rise to the application

2. Since August 2015 a number of curfews have been imposed in certain towns and cities in south-east Turkey by the local governors, including in Cizre and Sur where the applicants live. 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. In imposing the curfews the governors relied on section 11 (c) of the Provincial Administration Law (see “Relevant domestic law” below).

3. 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. A subsequent modification made on 28 March 2016 allowed people to leave their homes between 4.30 a.m. and 9.30 p.m. and another modification made on 5 June 2016 limited the curfew hours to between 11 p.m. and 2.30 a.m. On 10 April 2017 the curfew in Cizre was lifted completely.

4. On 11 December 2015 a 24-hour curfew was imposed in six of the fifteen neighbourhoods in the town of Sur. On 13 and 16 March and 22 May 2016 the curfew was lifted from some parts of those neighbourhoods.

5. The applicants allege that a large number of people have been killed in areas under curfew – some of whom in their own homes – and that a large number of houses have been bombed and destroyed by fire opened from military vehicles such as tanks.

6. According to a report published by the Human Rights Foundation of Turkey on 22 March 2016, the number of civilians killed between August 2015 and 18 March 2016 in areas under curfew ‐ including Cizre and Sur ‐ 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 were not yet identified. It was estimated that 76 of those persons lost their lives because they had not been able to have access to medical facilities.

7. It was stated in the report pertaining to an Urgent Action launched by Amnesty International on 11 January 2016 that “[ i ] n all areas under curfew many residents are facing severe electricity and water shortages and they cannot leave their homes to access basic food supplies. Residents requiring medical care have also been unable to safely leave their neighbourhoods to access such care. Ambulances in some cases have been unable to enter areas under curfew due to the security situation or because they were denied access by the security services.”

B. The circumstances of the case

8. 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.

1. Sedat Aydın

9. At the time of the events Mr Aydın was living in Sur district of Diyarbakır with his elderly mother and four siblings and the two-month-old baby of one of those siblings. Their house was riddled with bullets and with heavy artillery shells and the family was unable to leave the house to source their and the baby ’ s needs. When Mr Aydın made an attempt to leave the house on 10 December 2015 to go to his place of work, he was beaten up and unlawfully detained by gendarmes for three days.

10. On 10 December 2015, after a previously imposed curfew was lifted but before the new one was imposed the following day, the family left the house by taking with them some of their belongings. They moved in with their friends and relatives living in other areas not covered by the curfew.

2. Halise Kulja

11. At the time of the events Ms Kulja was six months pregnant and was living with her husband and three children ‐ aged 9, 7 and 5 ‐ in their house in Cizre in the midst of heavy armed clashes. When their building was hit with bullets they were not hurt, as at that time they were taking shelter in the basement of their house. Although they telephoned the police, no help was given to them. After that incident she and her family left their neighbourhood one day when the clashes were not very intensive and moved into the house of a relative on the outskirts of Cizre . After having stayed at that house for a few days, they moved into her father ’ s house in the town of Yüreğir which was not under curfew. While moving from house to house they risked their lives and she risked having a miscarriage. After they moved to Yüreğir they found out that their two elderly relatives who had stayed behind in Cizre had been killed when their house was shelled with mortars. As a result of their ordeal their psychological well-being deteriorated.

3. Osman Kültür

12. Mr Kültür was left paralysed from a previous stroke and is unable to walk. As a result, after the imposition of the curfew in his home town of Cizre he became unable to leave his house and to obtain his basic needs such as food and medication. Areas in the vicinity of his house were all bombed and, completely unable to move to take shelter in a relatively safer part of his house, he lived in constant fear that his house might also be hit.

4. Nevroz Yılmaz

13. This applicant was also paralysed and was living in Cizre after the curfew was imposed. He had to live in fear that his house might get hit by explosives.

C. The proceedings before the Constitutional Court

14. On 25 December 2015 the applicants made an individual application to the Constitutional Court and requested an interim measure for the curfews to be lifted.

15. While examining their complaints the Constitutional Court contacted the district Governor and members of the security forces for information. The Governor informed the Constitutional Court that the applicants had not brought their complaints to his attention and that it was possible for them to telephone the emergency services should they need them. Furthermore, a hospital in Cizre was functioning 24 hours a day.

16. The security forces informed the Constitutional Court that they had contacted the applicant Sedat Aydın and found out from him that he was temporarily living in an area of Diyarbakır where there was no curfew and that the two-month-old baby in his household had already had all her injections.

17. In light of the above-mentioned information given to it by the Governor and the security forces, on 26 December 2015 the Constitutional Court rejected the applicants ’ request for interim measure on the ground that there was no ground or danger which necessitated the granting of an interim measure and that the applicants had access to health services.

D. T he proceedings before the Court

18. On 29 December 2015 the applicants requested the Court, under Rule 39 of the Rules of Court, to indicate to the Turkish Government to immediately cease the shoot to kill policy; to ensure that their rights under Articles 2, 3 and 5 were protected; to ensure that the curfews were lifted and that access to medical care, medical and social assistance, food and medication were ensured; to ensure compliance with the obligations and principles under Article 2 of the Convention; to enable the judicial authorities to supervise the security operations; and to provide the possibility for the applicants to give powers of attorneys to their legal representatives given that so far they had only been able to speak to their lawyers on the telephone.

19. On 31 December 2015 the Court requested the Government to submit the following information in respect of the present application and another application:

“ 1. What is the legal basis for the curfews?

2. Given the curfew, are the applicants ‐ two of whom are pregnant and three of whom have serious health problems ‐ able to have realistic and adequate access to health services and obtain their elementary needs such as food, water, electricity, etc.? In that connection, would their lives be endangered if they were to leave their houses for any emergencies or for procuring basic goods such as food medicines?

3. In view of the number of civilian casualties reported in the areas affected by the curfew, including, in particular, the area in which the applicants live, what measures have been and are being taken to safeguard the right to life of the residents living in those areas? ”

20. On 8 January 2016 the Government submitted their reply to the above questions.

21. The applicants ’ request for an interim measure was declined by the Court on 12 January 2016. The Court decided to give priority treatment to the application in accordance with Rule 41 of the Rules of Court and, given the apparent gravity of the situation in the region, it also informed the Government that it relied 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 enabled to have access to necessary care if they so requested.

E. Relevant domestic law

22. Article 13 of the Turkish Constitution provides as follows:

“Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality.”

23. Section 11 of the Provincial Administration Law (Law No 5442, 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] take the necessary steps in order to prevent a crime from taking place and to maintain public order and safety. To that end they may employ all regular and private armed forces of the State; managers and employees of such entities are obliged to swiftly co mply with the governors ’ orders .

...

C) Governors have the duty to maintain and to protect the peace and safety, personal integrity, well-being of the public, enjoyment of possessions, and preventative law-enforcement within their provinces.”

F. Relevant international materials

24. 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 proportionate 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.”

25. On 13 June 2016 European Commission for Democracy Through Law (Venice Commission) published its opinion on “The Legal Framework Governing Curfews”, which had been adopted at its 107 th Plenary Session (Venice, 10-11 June 2016). The report ’ s conclusions are as follows:

“V. Conclusions

93. The Venice Commission has taken note with concern of the developments occurring since summer 2015 in South-East Turkey, where there have been particularly violent confrontations and major losses of human lives, including a large number of civilian losses, along with considerable material damage.

94. The Commission also recognises the scale and complexity of the challenges facing the Turkish authorities given the seriousness and the number of terrorist attacks which have been carried out recently in the country. Their efforts and their commitment to combating terrorism are legitimate.

95. The Commission would like to point out, however, that although it is a state ’ s duty to muster all its resources to combat the terrorist threat and protect its citizens from such attacks, it is also crucial in a democratic society to strike the right balance between security needs and the exercise of rights and freedoms, showing due regard for the requirements of the rule of law.

96. Despite the seriousness of the situation they were facing, the Turkish authorities chose not to declare a state of emergency to engage in the security operations they considered necessary in the areas concerned, whereas these operations and the related measures (such as curfew) inevitably entail restrictions to rights and freedoms, which sometimes have extremely serious consequences.

97. The Venice Commission has taken note of the authorities ’ choice, which they justify through their desire to protect rights and freedoms in all circumstances including in a context in which, as they themselves state, all the prerequisites to declare a state of emergency were met.

98. The Commission therefore notes that the curfews imposed since August 2015 have not been based on the constitutional and legislative framework which specifically governs the use of exceptional measures in Turkey, including curfew. To comply with this framework, any curfew measure should be associated with emergency rule, as provided for in Articles 119 to 122 of the Constitution. This would also be in keeping with the approach of the Commission, which has stressed in its work that de facto emergency powers should be avoided and it is better to declare them officially along with their accompanying lists of obligations and guarantees including the obligation to inform international organisations of any derogations from fundamental rights and the reasons for these, thus subjecting their application to the supervision of these organisations or to parliamentary debate and approval.

99. In the Venice Commission ’ s opinion, the Provincial Administration Law, on which decisions imposing curfews were based, and the decisions themselves do not meet the requirements of legality enshrined in the Constitution and resulting from Turkey ’ s international obligations in the area of fundamental rights, in particular under the ECHR and relevant case-law.

100. To remedy this situation, the Venice Commission invites the Turkish authorities to implement the following recommendations in particular:

- to no longer use the provisions of the Provincial Administration Law as a legal basis for declaring curfews and to ensure that the adoption of all emergency measures including curfews is carried out in compliance with the constitutional and legislative framework for exceptional measures in force in Turkey, showing due regard for the relevant international standards and complying with national rules and international obligations with regard to the protection of fundamental rights;

- to review the legal framework on states of emergency to ensure that all exceptional decisions and measures such as curfew taken by the authorities when a state of emergency is formally declared are subject to an effective review of legality including, in particular, consideration of their necessity and proportionality;

- to introduce all the necessary amendments to the State of Emergency Law so that there is a clear description in the law of the material, procedural and temporal arrangements for the implementation of curfews, particularly the conditions and safeguards to which they must be subject (including parliamentary and judicial supervision).

101. The Venice Commission remains at the disposal of the Turkish authorities for any assistance they may require.”

COMPLAINTS

26. Under Article 2 of the Convention the applicants complain that the security forces conducted their operations in complete disregard of the principles concerning the use of force and in doing so they endangered the lives of the civilians in areas under curfew, including in Sur and Cizre where they live. They argue that the respondent State was under an obligation to take appropriate steps to safeguard lives, and allege that their lives, like those of a number of others who had been killed in Cizre and Sur, were also put at risk.

27. The applicants allege that as a result of the curfews they were unable to leave their homes and they were therefore deprived of their liberty in breach of Article 5 § 1 of the Convention.

QUESTIONS TO THE PARTIES

1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

2. H as the applicants ’ right to life, ensured by Article 2 of the Convention, been endangered on account of the security operations in the vicinity of their houses?

Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), have investigations been opened into the circumstances of those security operations, as required by Article 2 of the Convention? If so, are those investigations being conducted in compliance with the requirements of an effective investigation, within the meaning of the Court ’ s case-law under Article 2 of the Convention?

The Government are requested to submit a copy of the investigation files.

3. Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention?

If so:

a) Did the deprivation of liberty fall within any of the paragraphs of this provision?

b) Was the applicants ’ deprivation “in accordance with a procedure prescribed by law”?