European Court of Human Rights

 

 

SECOND SECTION

DECISION

Application no. 1905/16
Mehmet ORAN against Turkey
and 3 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 towns of Cizre, Sur and Silopi where the events giving rise to the present applications took place. 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. In support of their allegations the applicants relied on a number of reports prepared by non-governmental organisations according to which over 150 civilians were killed 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.  Oran v. Turkey, no. 1905/16 and Seviktek v. Turkey, no. 2005/16

5.  A 24-curfew was imposed in the applicants’ home town of Sur on 11 December 2015.

6.  Mr Mehmet Oran, who is the applicant in application no. 1905/16, found out from newspapers that his 24-year old son İsa Oran had been killed by members of the security forces on 23 December 2015 in Sur district of Diyarbakır where a 24-hour curfew had been imposed on 11 December 2015.

7.  Mr Ayhan Seviktek, who is the applicant in application no. 2005/16, also found out from newspapers that his 24 year-old brother Mesut Seviktek had been killed by members of the security forces on 23 December 2015 in Sur district.

8.  The applicants spoke to the local governor and asked for information about their relatives’ fates. The governor told them that the authorities did not have their relatives. The applicants then made official applications to the Diyarbakır prosecutor and asked for the bodies of their relatives to be returned to them. In reply they were told by the deputy prosecutor that they did not have their relatives’ bodies.

9.  Subsequently, a Member of Parliament for Diyarbakır and the president of the Human Rights Association’s Diyarbakır branch contacted the Diyarbakır governor. The governor told them that there was a body in the garden of a mosque and two bodies in the garden of a primary school but that the authorities were unable to retrieve those bodies on account of the security situation in the area.

10.  On 4 and 5 January 2016 Mr Oran and Mr Seviktek applied to the Constitutional Court and asked for an interim measure to enable them to retrieve the bodies of their relatives.

11.  The Constitutional Court joined the two applications and obtained information from the local governor and prosecutor. According to that information, there were no bodies in the garden of the mosque and that there was no information to suggest that the applicants’ two relatives had been killed. The Constitutional Court then requested clarification from the applicants and the applicants forwarded to the Constitutional Court the information obtained by the Member of Parliament and the president of the Human Rights Association’s Diyarbakır branch (see paragraph 9 above). The applicants also informed the Constitutional Court that it was widely reported in the press that their relatives had been killed but that on account of the curfew they were unable to verify those allegations.

12.  After having been informed of the foregoing the Constitutional Court obtained information from the Ministry of Interior according to which there was no information about the applicants’ relatives’ alleged killing. The garden of the mosque had been searched by the police and there were no bodies there. It was impossible to search the garden of the primary school because of intense armed clashed in its vicinity.

13.  The requests made by the applicants for interim measures were rejected by the Constitutional Court on 8 January 2016 because it considered that there was insufficient evidence to prove that the applicants’ relatives had been killed. The Constitutional Court also noted that, according to the information it had been provided with by the security forces, security forces were in the process of retrieving the bodies in the area and that if they were to find the bodies of the applicants’ relatives, they would hand them over to the families.

14.  On 10 January 2016 the applicants applied to the Court and requested a similar interim measure under Rule 39 of the Rules of Court.

15.  The applicants’ requests for interim measure were declined by the Court on 14 January 2016. The same day the Court decided to give priority treatment to the applications in accordance with Rule 41 of the Rules of Court and it also gave notice of the applications to the Government in accordance with Rule 40 of the Rules of Court.

16.  Subsequently the applicants submitted application forms and maintained their allegations. In their applications the applicants stated that the bodies of their relatives had been brought to a hospital on 19 January 2016 by members of the security forces and post-mortem examinations had been carried out the same day.

17.  According to the report of the post-mortem examination on the body of the applicant’s son in application no 1905/16, the body had decomposed. The doctors observed a large number of firearm injuries on the body but were unable to establish the cause of death. Samples taken from the body were sent for toxicological examinations. The doctors also recommended that the clothes be secured in evidence if the judicial authorities wished to establish the distance from which he had been shot. On 21 January 2016 the body was released to the applicant and it was buried on 22 January 2016.

18.  According to the report of the post-mortem examination on the body of the applicant’s brother in application no. 2005/16, his body had also decomposed. The doctors observed a large number of firearm injuries on the body which, in the opinion of the doctors, had caused the death. A number of bullets and metal objects found in the body were secured in evidence. Samples taken from the body were sent for toxicological examinations. On 21 January 2016 the body was released to the family for burial and it was buried on 22 January 2016.

2.  İnan v. Turkey, no. 2105/16

19.  A 24-hour curfew was imposed in the applicant’s home town of Silopi on 14 December 2015.

20.  At around 7 p.m. on 19 December 2015 the applicant’s mother Taybet İnan was returning from visiting a neighbour when she was shot outside the family home by fire opened from an armoured vehicle. Her brother-in-law Yusuf İnan made an attempt to offer assistance to the applicant’s mother but was also shot and injured as soon as he left the house. The applicant and other family members who witnessed the events from inside their house made numerous calls to the emergency services and unsuccessfully sought help. Yusuf İnan died the following day.

21.  The applicant and other family members continued to make calls to the emergency services and the police and asked for assistance to remove the body of Taybet İnan who had lost her life in the meantime. Although they were told in response that they could leave the house to retrieve the body provided that they displayed a white flag, each time they made an attempt to leave the front door fire was opened in their direction. A Member of Parliament Ms Aycan İrmez contacted the local governor but she was told that the family could only retrieve the body “after arrival of the security forces in the vicinity”.

22.  Some days after the shooting the applicant’s father made an attempt to retrieve the body from the street but he was also shot and injured. Afterwards the family abandoned their house and took shelter in a relative’s house. The body was finally moved from the street by the authorities on 25 December 2016 and taken to the local hospital.

23.  When the authorities continued to refuse to hand over the body to the family, on 6 January 2016 the applicant applied to the Constitutional Court and requested an interim measure for her mother’s body to be returned to the family.

24.  On 7 January 2016 an amendment was made in the Regulations on the Application of the Law on Forensic Medicine Institute. According to the amendment, bodies unclaimed by families within three days would be handed over to the offices of the local councils or local governors. Before the amendment the Regulations in question required the unclaimed bodies to be handed over to local councils only.

25.  On 8 January 2016 the applicant applied to the Court and requested an interim measure under Rule 39 of the Rules of Court in order to be able to retrieve the body of his mother and give her a funeral.

26.  The applicant’s request for interim measure was declined by the Court on 14 January 2016. The same day the Court decided to give priority treatment to the application in accordance with Rule 41 of the Rules of Court and it also gave notice of the application to the Government in accordance with Rule 40 of the Rules of Court.

27.  At 1 a.m. on 11 January 2016 police officers went to the applicant’s family home and asked the applicant’s illiterate brother to sign a document. The document stipulated that the family had until 9 a.m. the same day to take Taybet İnan’s body from the hospital and bury her. Otherwise, in accordance with the recent amendment in the Regulations, employees from the office of the local governor would bury her in a place of their own choosing.

28.  The police officers informed the family that they had been instructed by the local governor to bury Taybet İnan “with or without the attendance of the family members”. Eventually, only three members of the family were allowed when Taybet İnan’s body was buried by the authorities the same day without any religious ceremony.

29.  On 2 February 2016 the Constitutional Court rejected the request for interim measure because it noted that the applicant’s mother’s body had already been buried on 11 February 2016.

3.  Abdullah Kaplan v. Turkey, no. 4159/16

30.  The applicant’s 33 year-old brother Mehmet Kaplan worked for the Cizre Town Council. On 18 January 2016 he was on his way home from his work when he was shot in the head and killed. As the security forces in the vicinity were carrying out an intense bombardment of the neighbourhood at the time, his body could not be retrieved from the street.

31.  On 19 January 2016 the applicant applied to the Court and requested an interim measure under Rule 39 of the Rules of Court. He asked for the body of his brother to be handed over to the family. He referred to the applications summarised above and stated that in light of the rejections of those similar requests by the Constitutional Court he had not requested an interim measure from that court.

32.  The applicant’s request for interim measure was declined by the Court on 20 January 2016. The same day the Court decided to give priority treatment to the application in accordance with Rule 41 of the Rules of Court and gave notice of the application to the Government in accordance with Rule 40 of the Rules of Court.

33.  Subsequently the applicant submitted an application form and maintained his allegations. In his application the applicant stated that his brother’s body had been retrieved from the street on 20 January 2016 and taken to hospital where an autopsy was conducted.

C.  Arrest and detention of the legal representative of the applicants in applications nos. 2105/16 and 4159/16

34.  In the early hours of 16 March 2016 the legal representative of the applicants in applications nos. 2105/16 and 4159/16 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.

35.  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.

36.  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.

37.  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.”

38.  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.

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

40.  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.

41.  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 applications nos. 2105/16 and 4159/16. Mr Demir was released from the prison on bail on 7 September 2016.

D.  Relevant domestic law

42.  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

43.  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.”

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

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

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

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

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

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

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

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

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

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

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

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

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

...”

COMPLAINTS

45.  The applicants complain under Article 2 of the Convention that their relatives were shot and injured by agents of the respondent State and subsequently lost their lives because no steps were taken to provide them medical assistance. Under the same provision the applicants also complain that no investigations were conducted into the deaths.

46.  The applicants complain under Article 3 of the Convention that their suffering on account of their inability to retrieve the bodies of their relatives from the streets amounted to ill-treatment.

47.  Under Article 5 of the Convention the applicants complain that the curfew was implemented so strictly that they were not able to retrieve the bodies of their relatives for a long time and that that was in breach of their right to liberty and security.

48.  The applicants argue that their inability to retrieve the bodies of their relatives and to give them a burial in a timely manner was in breach of their rights under Article 8 of the Convention. The applicants in applications nos. 1905/16, 2005/16 and 2105/16 also relied on Article 9 of the Convention in respect of the same complaint.

49.  Finally, the applicants in applications nos. 2105/16 and 4159/16 complain that the Government, by arresting and detaining their legal representative, acted in breach of their obligations under Article 34 of the Convention.

THE LAW

A.  Joinder of the applications

50.  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

51.  The applicants complain that their relatives were shot and lost their lives in breach of Article 2 of the Convention and that no investigations were conducted into their deaths.

52.  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.  Complaint under Article 5 of the Convention

53.  The applicants argue under Article 5 of the Convention that the curfews were executed so strictly that they were not able to retrieve the bodies of their relatives from the places where they were shot and killed

54.  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 applications must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

D.  Complaints under Articles 3, 8 and 9 of the Convention

55.  The applicants complain that their suffering on account of their inability to retrieve the bodies of their relatives in a timely manner amounted to ill-treatment within the meaning of Article 3 of the Convention.

56.  The applicants also argued that their inability to retrieve their relatives’ bodies for long periods of time and to give those relatives a burial in a timely manner was in breach of their rights under Article 8 of the Convention. With the exception of the applicant in application no. 4159/16, the applicants also relied on Article 9 of the Convention in respect of this complaint.

57.  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).

58.  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 these complaints.

59.  In light of the foregoing, the Court concludes that the complaints under Articles 3, 8 and 9 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.

E.  Complaint under Article 34 of the Convention

60.  Finally, the applicants in applications nos. 2105/16 and 4159/16 complain that the Government, by arresting and detaining their legal representative, acted in breach of their obligations under Article 34 of the Convention.

61.  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 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.	1905/16	10/01/2016	Mehmet ORAN 01/01/1964 İstanbul	Yunus MURATAKAN
2.	2005/16	10/01/2016	Ayhan SEVİKTEK 03/03/1986 Diyarbakır	Yunus MURATAKAN
3.	2105/16	08/01/2016	Mehmet İNAN 11/02/1983 Şırnak	Ramazan DEMİR
4.	4159/16	19/01/2016	Abdullah KAPLAN 20/04/1988 Şırnak	Ramazan DEMİR