DOLAN AND OTHERS v. TURKEY - 9414/16 (Decision (Partial) : Court (Second Section)) [2016] ECHR 1130 (06 December 2016)

SECOND SECTION

DECISION

Application no. 9414/16
Mazlum DOLAN against Turkey
and 4 other applications
(see list appended)

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 applications lodged on the various dates indicated in the appended table,

Having regard to the decisions to grant priority to the above applications under Rule 41 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants, all of whom are Turkish nationals, is set out in the appendix.

A. Background to the events giving rise to the applications

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 the town of Sur where the events giving rise to the present applications took place in the course of 24-hour curfews that were imposed on 11 December 2015. 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. The applicants allege that a large number of people have been killed in areas under curfew and that the number of civilians killed in Sur alone was 75. They also allege that a large number of buildings in Sur were destroyed by the fire opened from military vehicles. In support of their allegations the applicants relied on a number of reports prepared by non-governmental organisations which detail the numbers and circumstances of the killings of hundreds of civilians in areas under curfew.

B. The circumstances of the cases and the proceedings before the Court

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

1. Dolan v. Turkey, no. 9414/16

5. The applicant is a journalist who was in Sur after the imposition of the curfew on 11 December 2015. One day, while he was paying a work-related visit to a family in their home in Sur, an artillery shell hit the house. A large number of people in the house were injured, including the owner of the house Mrs F.A. whose injury was very serious. The applicant and the remaining people - which included families with babies and young children - thus got trapped in the building and all their requests for help and for ambulances were rejected. Moreover, the security forces continued to shell the building with tanks and mortars.

6. On 17 February 2016 the applicant applied to the Court and requested an interim measure. He asked the Court to indicate to the Government, under Rule 39 of the Rules of Court, to stop the bombing in the area so that he and the others could get out of the building and leave the area. He submitted that he did not want to share the exact address with the national authorities because he feared that if he were to do so, the security forces would execute everyone in the building like they had done in three buildings in the nearby town of Cizre some days previously.

7. On 18 February 2016 the Court rejected the request. On the same date the Court decided to give priority treatment to the application in accordance with Rule 41 of the Rules of Court.

8. The applicant subsequently submitted an application form to the Court and informed the Court that he and five others - including Mrs F.A. who had been critically injured - had been taken out of the building on 19 February 2016 and placed in police custody. Mrs F.A. had lost her life in hospital. After having been detained in police custody for four days the applicant and the remaining four persons had been brought before a judge who ordered their detention in prison pending introduction of criminal proceedings against them.

2. Seniha Sürer v. Turkey, no. 10073/16; Cengiz Abiş and Others v. Turkey, no 10079/16; Erkaplan v. Turkey, no. 10085/16; and Alpaydıncı and Others v. Turkey, no. 10088/16

9. On 20 February 2016 the applicants in these four cases applied to the Court - with the assistance of four of their relatives - and requested interim measures under Rule 39 of the Rules of Court. They alleged that they had been caught in the midst of the armed clashes in Sur and became trapped in various buildings.

10. The applicants in application no. 10073/16 - namely Mrs Seniha Sürer, Mrs Seda Arslan and her four month-old baby Elif Su Arslan - alleged that they had been trapped in the basement of a house for 80 days. They and 30 other people who had taken shelter with them were unable to leave the building. They alleged that seven of those persons, including a 9 year-old boy, had been injured and that the building was being shelled by the security forces. They stated that on 18 February 2016 a relative had made an official application at a police station on their behalf and asked for help but he had not received any response.

11. The applicants in application no. 10079/16, - namely Mr Cengiz Abiş, his wife Mrs Emine Abiş and their seven year-old son Talat Abiş - alleged that they had been trapped in a house for 80 days. They and members of another family who were with them did not have electricity, water or food. They claimed that the building in question was being fired upon by soldiers and that the people in it could not get out of the building. They stated that parts of the building had already been destroyed.

12. The applicants in application no. 10088/16 - namely Mehmet Can Alpaydıncı, his partner Aynur Arslan and their four children, Gülistan, Rojda, Muaz and Özgür Arslan, aged 4, 6, 7 and 10 respectively - had been trapped in the basement of a house for 80 days. There were 20 other people - 8 women and 12 children - with them and two or three of those persons were seriously injured. They did not have water, electricity or food. Their building was being shelled and they could not leave the building. On 20 February 2016 one of the persons in the house had tried to leave the building in order to get water but got injured with shrapnel; she was losing blood and her condition was deteriorating.

13. Ms Hülya Erkaplan in application no. 10085/16 alleged that she is the person who had tried to get out of the house and injured and who was mentioned in application no. 10088/16 above.

14. The applicants requested the Court to indicate to the Turkish Government to lift the curfew and to protect their lives and physical integrities by helping them to get out safely from the buildings. The applicant in application no. 10085/16 also requested the Court to indicate to the Turkish Government to enable her immediate access to medical institutions.

15. On 23 February 2016 the Court adjourned the examination of the requests, encouraged the applicants to seek interim measures from the Constitutional Court and requested the parties to provide information about any developments on the situation, in particular the applicants’ progress in any domestic proceedings and concerning their health or other status. The same day the Court decided to give notices of the applications to the Government in accordance with Rule 40 of the Rules of Court and requested the Government to take appropriate measures necessary to protect the lives and physical integrities of the applicants. On the same date the Court also decided to give priority treatment to the applications in accordance with Rule 41 of the Rules of Court.

16. The applicants -through their above-mentioned four relatives- complied with the Court’s request and applied to the Constitutional Court on 25 February 2016. They asked the Constitutional Court to indicate an interim measure to protect their right to life and to ensure their access to secure areas and medical institutions.

17. On the same day the Constitutional Court requested the Diyarbakır Governor’s office to submit information and documents in relation to the applicants’ situation.

18. The Diyarbakır Governor’s office complied with that request and informed the Constitutional Court that the emergency telephone lines in Sur were in working order and that all precautions had been taken to ensure that the persons in the curfew areas would have access to medical establishments if and when needed.

19. The Governor’s office further stated that the security operations had been halted between 4 p.m. and 5.30 p.m. on 17, 18, 19, 22, 23, 24 and 26 February 2016 and that those who wanted to leave their homes were allowed to do so by opening them a “security corridor”. Nevertheless, the applicants had not availed themselves of those opportunities to leave their buildings. Moreover, the applicants had not contacted the national authorities directly and there was no information in the possession of the Governor’s office about their health status or their exact location. On four occasions health workers had tried, without success, to contact the applicants by calling their mobile telephones the numbers of which were given in the application forms.

20. Having examined the information obtained from the Governor’s office, on 29 February 2016 the Constitutional Court rejected the requests for interim measures. It noted that the only information proffered by the applicants was that they were “trapped in an area under curfew”. It also noted that all attempts by the national authorities to locate the applicants had been unsuccessful. Moreover, the applicants had not contacted the authorities directly in order to inform them of their addresses and health status, and that they had not left the buildings when the security operations were temporarily halted. The Constitutional Court held, therefore, that it could not be said that the national authorities had failed to take the necessary measures to ensure the applicants’ evacuation from the building.

21. The Constitutional Court also held that the applicants’ failure to contact the authorities directly and to share their addresses and information about their health status had raised questions about whether they really wanted to get out of the buildings. It noted that the national authorities’ attempts to find the applicants were continuing, and urged the applicants to directly contact the national authorities. It asked to be kept updated about any developments.

22. When the applicants forwarded to the Court on 1 March 2016 the Constitutional Court’s above-summarised decision, they also repeated their requests for interim measures and made a number of submissions on the Constitutional Court’s decision. They stated, in particular, that the reason why the authorities had been unable to contact them by telephone was due to the lack of reliable telephone signal coverage in the area. Whenever they had telephone reception they were calling their relatives and providing updates about their situation. They further informed the Court that they did not have any food or water and that the bombing was continuing.

23. They alleged that, if the authorities found out about their exact location, the soldiers would bomb the buildings like they had done on a number of occasions in Cizre. They also alleged that, instead of facilitating their exits from the buildings, the security forces had in fact intensified their bombing on each occasion that a “security corridor” was opened during the times mentioned in the Constitutional Court’s above-mentioned decision.

24. On 2 March 2016 the Court invited the applicants to provide their exact addresses, as well as information about their current health status. The applicants persons failed to comply with the Court’s request. On 16 March 2016 the Court decided to reject the requests for interim measures.

25. Subsequently, the applicants submitted application forms and maintained their complaints

26. In their application forms the applicants informed the Court that they had been evacuated from the buildings on 2 March 2016. In the course of the evacuation they had been insulted and threatened by police officers and the male applicants had been beaten up. They had subsequently been detained in police custody for four days and at the end of their police custody Seniha Sürer, Mehmet Can Alpaydıncı, Cengiz Abiş and Emine Abiş had been detained on remand in a prison and Hülya Erkaplan, Seda Arslan and Aynur Arslan had been released on bail. The applicants Talat Abiş (aged 7), Gülistan Arslan (aged 10), Rojda Arslan (aged 7), Muaz Arslan (aged 6) and Özgür Arslan (aged 4) had been taken into the care of the social services. The applicant Hülya Erkaplan maintained her allegation that while she was trapped in the building she had been injured in the foot by shrapnel. The applicant Seniha Sürer alleged that she had also been injured by shrapnel in her arm, back and head.

C. Arrest and detention of the legal representative of the applicant in application no. 9414/16

27. In the early hours of 16 March 2016 the legal representative of the applicant in application no. 9414/16 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.

28. 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.

29. 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 uses social media; and details of all telephone lines he has had.

30. 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.”

31. 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.

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

33. 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.

34. On 20 April 2016 Mr Demir authorised his legal representative Ms Ayşe Demir-Bingöl to act on his behalf before the Court regarding a total of 16 applications - including the application no. 9414/16. Mr Demir was released from the prison on bail on 7 September 2016.

D. Relevant domestic law

35. 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 the 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 comply with the governors’ orders”.

...

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

E. Relevant international materials

36. 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.”

37. 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.

...”

38. 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

A. Application no. 9414/16

39. The applicant complains that the house in which he had taken refuge was shelled by the security forces and his life was thus endangered, in breach of Article 2 of the Convention. Under the same provision he also complains that no investigation was conducted into the bombing.

40. The applicant complains that his suffering on account of having been trapped in the building in such circumstances and his subsequent detention in the prison amounted to ill-treatment within the meaning of Article 3 of the Convention.

41. Relying on Article 5 of the Convention the applicant complains that the curfew was applied so strictly that he did not have the possibility to leave the building for days. Under the same provision he also complains that he was deprived of his liberty on account of his detention in the prison.

42. Finally, the applicant complains that the Government, by arresting and detaining his legal representative, acted in breach of their obligations under Article 34 of the Convention.

B. Applications nos. 10073/16, 10079/16, 10085/16 and 10088/16

43. Relying on Article 2 of the Convention the applicants in these four applications complain that their lives were endangered during the course of their stay in the buildings. They allege that when their flats were damaged by fire opened by the security forces they had to move into the basements of their buildings but the soldiers continued shelling the building, injuring two of the applicants, namely Hülya Erkaplan and Seniha Sürer. Under the same provision the applicants also allege that no investigation was opened by the authorities into the bombings.

44. The applicants allege that their suffering on account of their homes having been bombed and their constants fears for their lives amounted to ill-treatment within the meaning of Article 3 of the Convention.

45. The applicants complain that they were deprived of their liberty within the meaning of Article 5 of the Convention on account of their confinement to the buildings in question as a result of the curfew which had no legal basis.

46. Finally, under Article 8 of the Convention the applicants argue that their confinement to the buildings without water and food breached their right to private and family life within the meaning of Article 8 of the Convention.

THE LAW

A. Joinder of the applications

47. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.

B. Complaints under Article 2 of the Convention

48. The applicants complain that their lives were endangered during the bombing of their building by the security forces, in breach of Article 2 of the Convention. They argue that their survival was fortuitous given the extent of the bombing. Under the same provision they also complain that no investigations were conducted into the bombing.

49. 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 this part of the applications to the respondent Government.

C. Complaints under Articles 3 and 8 of the Convention

50. The applicants complain that their suffering on account of having been trapped in the buildings in such conditions and in an atmosphere of fear for their lives amounted to ill-treatment within the meaning of Article 3 of the Convention. They complain that it was particularly worse for the young applicants and argue that the events will leave long-lasting scars in their psychological health. Under the same provision the applicant in application no. 9414/16 also complains about his detention in the prison which, he argues, amounted to ill-treatment.

51. The applicants in applications nos. 10073/16, 10079/16, 10085/16 and 10088/16 complain under Article 8 of the Convention that their confinement to the buildings without water and food breached their right to private and family life within the meaning of Article 8 of the Convention.

52. The Court observes that the rule of exhaustion of domestic remedies stipulated in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV).

53. Having regard to the nature of the applicants’ complaints and the circumstances giving rise to those complaints, the Court considers that compensation proceedings, a remedy that the Turkish legal system affords and which could lead both to the establishment of any liability on the part of the authorities in respect of the applicants’ complaints and to the payment of damages, is a relevant and effective remedy in respect of these complaints. The Court observes, however, that the applicants have not made use of the possibility of bringing any such proceedings in respect of their complaints.

54. In light of the foregoing, the Court concludes that the complaints under Articles 3 and 8 of the Convention must be rejected under Article 35 §§ 1 and 4 of the Convention on account of the applicants’ failure to exhaust domestic remedies.

D. Complaints under Article 5 of the Convention

55. The applicants complain that they were deprived of their liberty on account of the curfew and in breach of Article 5 of the Convention.

56. The applicant in application no. 9414/16 also complains under the same provisions that he was deprived of his liberty on account of his detention in the prison. He argues that, although the authorities knew that he was in the area to work as a journalist, they ordered his detention on remand.

57. The Court considers that it cannot, on the basis of the case file, determine the admissibility of the complaint concerning the applicants’ alleged deprivation of liberty on account of the curfew and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

58. Concerning the complaint raised by the applicant in application no. 9414/16, namely his detention in prison as a remand prisoner, and 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.

E. Complaint under Article 34 of the Convention

59. Finally, the applicant in application no. 9414/16 complains that the Government, by arresting and detaining his legal representative, acted in breach of their obligations under Article 34 of the Convention.

60. The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to adjourn the examination of the complaints under Articles 2, 5 and 34 of the Convention;

Declares the remainder of the applications inadmissible.

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

Hasan Bakırcı Julia Laffranque
Deputy Registrar President

APPENDIX

No.	Application No.	Lodged on	Applicant Date of birth Place of residence	Represented by
1.	9414/16	17/02/2016	Mazlum DOLAN 22/01/1993 Diyarbakır	Ramazan DEMİR
2.	10073/16	20/02/2016	Seniha SÜRER 18/12/1957 Diyarbakır Seda ARSLAN 05/07/1990 Diyarbakır Elif Su ARSLAN 20/10/2015 Diyarbakır	Yunus MURATAKAN
3.	10079/16	20/02/2016	Cengiz ABİŞ Diyarbakır Emine ABİŞ Diyarbakır Talat ABİŞ Diyarbakır	Yunus MURATAKAN
4.	10085/16	21/02/2016	Hülya ERKAPLAN 01/06/1990 Diyarbakır	Yunus MURATAKAN
5.	10088/16	21/02/2016	Mehmet Can ALPAYDINCI Diyarbakır Aynur ARSLAN 12/02/1970 Diyarbakır Gülistan ARSLAN Diyarbakır Rojda ARSLAN Diyarbakır Muaz ARSLAN Diyarbakır Özgür ARSLAN Diyarbakır	Yunus MURATAKAN

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You are here: BAILII >> Databases >> European Court of Human Rights >> DOLAN AND OTHERS v. TURKEY - 9414/16 (Decision (Partial) : Court (Second Section)) [2016] ECHR 1130 (06 December 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/1130.html Cite as: [2016] ECHR 1130, ECLI:CE:ECHR:2016:1206JUD000941416, CE:ECHR:2016:1206JUD000941416