Events
The PKK terrorist organisation has implemented the strategy of urban warfare in line with the conjuncture-related developments especially since 2015. Within the framework of this strategy, the organisation has transferred personnel, weapons and ammunition to urban centres, ditches and barricades were created on the roads, buildings were connected to each other with tunnels and started to be used as shelters and headquarters. With this strategy, it is understood that the PKK terrorist organisation is trying to transform city centres into armed conflict zones by moving its actions from rural areas to residential centres. The PKK terrorist organisation, which declared self-administration in 18 settlements, including Cizre, and prepared for a prolonged armed conflict, aimed to confront the civilian population in the settlements with the security forces in the operations to be carried out against its actions and to create the perception that the security operations were carried out against the civilian population.
Upon the declaration of self-government, the public authorities implemented the evacuation of the people of the region as a priority measure. Upon the terrorist organisation’s attempts to prevent evacuations, curfews were declared and security operations were launched in some of these centres in order to ensure public order and protect the security of life and property of the people. At the time of the events subject to the application, the curfew declared in Cizre on 14 December 2015 and implemented on a full-day basis was still in effect.
The extent and gravity of the events that took place during these incidents, which are referred to as the “Trench Incidents” in the public opinion, are revealed in the balance sheet of terrorist acts in the statement of the Ministry of Interior dated 23/1/2017. According to this statement, since 22 July 2015;
i. 247 public buildings, 6 dams, 231 private commercial enterprises, 19 ambulances and 1,643 vehicles were attacked.
ii. Security forces seized a total of 2,166 firearms including 45 Bixi, 44 Kanas, 997 Kalashnikov, 22 M16, 2 Launchers, 2 G3, 3 Zagros, 1 Doçka, 1 M1, 3 mortars, 115 rocket launchers, 1,445 rocket launcher rounds, 3,046 improvised explosive devices, 1,341 grenades, 342,016 ammunition, 33,546 kg of material used in making explosives.
iii. In residential centres under curfew, 3,630 pit-barricades were removed and 6,187 bomb plots were destroyed.
iv. 335 civilian citizens lost their lives and 2,106 people were injured in the attacks of the PKK terrorist organisation. During the terrorist attacks, 859 security officers were martyred and 4,711 security officers were wounded. In these attacks, the district governor of Derik was also martyred by terrorist organisation members.
Mehmet Tunç, Asya Yüksel, Yasemin Çıkmaz, Serdar Özbek, B.K., and M.B. were found dead on 9 February 2016 during a search conducted on 9 February 2016 after an operation conducted by security forces against terrorist organisation members during the curfew in Cizre district of Şırnak. The investigations conducted by the Cizre and Şırnak Chief Public Prosecutor’s Offices into the deaths of these persons ended with a decision of non-prosecution.
Allegations
The applicants claimed that the right to life and the obligation to conduct an effective investigation in the context of this right were violated due to the fact that Mehmet Tunç, Asya Yüksel, Yasemin Çıkmaz, Serdar Özbek, B.K., B.B., and M.B. were waiting in the basements of certain buildings with injuries during the curfew imposed in Cizre, but they were not provided with medical assistance and treatment and died as a result of the use of force by the security forces.
The Court’s Assessment
1. Allegation of Violation of the Right to Life Due to Failure to Provide Necessary Medical Assistance
There is no evidence in the application file that the persons in question were injured in any way before the date on which they were found dead or that they were present at the alleged addresses. On the contrary, all the evidence before the Constitutional Court shows that these persons were constantly moving around in the conflict zone, that the roads leading to almost all the addresses where they were allegedly waiting wounded in the meantime were blocked by ditches and barricades with explosives and that many security officers were wounded and martyred in the attacks with heavy weapons against the security forces trying to reach these addresses. Therefore, it is concluded that there is no reason to deviate from the conclusions reached in the investigations carried out after the deaths of Mehmet Tunç, Asya Yüksel, Yasemin Çıkmaz, Serdar Özbek, B.K., and M.B., and that these persons participated in armed terrorist acts in Cizre from the beginning of the trench incidents until the date they were found dead without any thought of surrendering, and that Mehmet Tunç and Asya Yüksel organised these acts.
For the reasons explained, it is concluded that the allegations of violation of the right to life due to the failure to provide the necessary medical assistance are inadmissible.
2. Allegation that the right to life was violated in terms of the obligation not to kill
The Constitutional Court analysed the national legislation regulating the use of force and weapons by law enforcement forces, as well as Article 1 of Law No. 3201 and Article 11 of Law No. 5442, which contain regulations to ensure coordination in an operation in which these forces participate together, as well as the operational plan prepared before the operations, and considered that the said rules met the criterion of legality.
The fact that the bodies of Mehmet Tunç, Asya Yüksel, Yasemin Çıkmaz, Serdar Özbek, B.K., and M.B. were found together with automatic weapons and their ammunition in an area where there had been intense terrorist attacks and armed clashes, the entrances of which had been blocked with ditches and barricades by members of terrorist organisations, and which had been booby-trapped with explosives, constituted a strong conviction that these persons had been killed in armed clashes with security forces and under conditions of self-defence. In addition, it has been concluded that the use of force resulting in the deaths of the persons mentioned in the concrete application was motivated by the legitimate aim of suppressing an uprising under Article 17 of the Constitution, as well as the aim of protecting the lives of the security officers who used force and the lives of others.
Article 5 of the Constitution imposes on the public authorities the duty to eliminate the PKK terrorist organisation’s attempt to occupy a part of the territory of the State by force of arms and to establish a separate administration therein. In fact, it is obvious that protecting the territorial integrity and the lives of its citizens is one of the fundamental reasons for the existence of the state. Therefore, it cannot be said that the use of lethal force is not a favourable means of preventing the grave terrorist incidents and suppressing the uprising subject to the concrete application.
All the evidence in the application file shows that the method of close combat, which is much more risky for the security forces, was chosen taking into account the possibility that there might be civilians in the conflict zones who were not allowed to leave by the PKK terrorist organisation or members of the terrorist organisation who would want to surrender, and thus the right of discretion was used to prevent or minimise the loss of life in the operations. It also shows that necessary measures were taken at the planning stage to consider the use of lethal force as a last option and to comply with the principle of proportionality.
Mehmet Tunç, Asya Yüksel, Yasemin Çıkmaz, Serdar Özbek, B.K., B.K., and M.B., who continued their armed terrorist activities from 12 August 2015 until 9 February 2016, when they were found dead, never considered laying down their arms or surrendering to the security forces as an option, although they were subjected to calls to “surrender” many times during this period and had the opportunity to surrender. Under the described circumstances of the concrete incident, it is concluded that it is not possible for the security forces to achieve their legitimate aims of protecting their own lives and the lives of others and suppressing the armed uprising with a lesser limitation and that the use of lethal force is absolutely necessary.
Large terrorist groups in the conflict zone organised attacks on security forces using sniper rifles, automatic rifles, grenades, explosives and rocket launchers. As a matter of fact, 66 security officers were martyred and 428 officers were wounded in Cizre in attacks carried out with such weapons. In the light of these explanations, in the case subject to the concrete application, it was concluded that the use of lethal force by the security forces against the uninterrupted and unpredictable lethal terrorist attacks carried out using heavy weapons within the scope of an armed uprising was a proportionate intervention in order to suppress the armed uprising and to eliminate the danger to the lives of security forces and other persons.
For the reasons explained above, the Constitutional Court held that the obligation not to kill was not violated.
3. Allegation of Violation of the Right to Life in terms of Procedural Obligation
It is understood that the public authorities took action of their own accord and immediately initiated criminal investigations after discovering that persons had died in clashes during counter-terrorism operations. The maximum period of 2 years, 3 months and 25 days from the commencement to the conclusion of the investigations was considered reasonable under the circumstances of the concrete case. In the investigations subject to the concrete application, it was understood that search warrants were requested by judicial law enforcement units that do not participate in counter-terrorism operations and that the requirements of the warrant were fulfilled by expert crime scene investigation officers. The fact that crime scene investigation and evidence collection procedures are carried out by these specialised units, which are separate from the Gendarmerie and Police Special Operations units that actually participate in the clashes, is considered an important measure in terms of ensuring the independence of the investigation under the circumstances of the concrete case. In addition, the judicial law enforcement officers recorded all the procedures that they later recorded with videos and photographs, allowing the public prosecutors in charge of the investigation to examine them. The death examinations and autopsies, which are of critical importance for the investigations, were carried out in the presence of public prosecutors. Therefore, it is concluded that in the concrete case, all possible measures were taken to ensure that the independence of the investigation was not compromised.
In the concrete case, Crime Scene Investigation units, despite being subjected to a terrorist attack on 8 February 2016, went to the crime scene once again on 9 February 2016 and continued to collect evidence. All findings on the corpses were recorded and samples were taken from the corpses for identification and evidence determination during the death examination and autopsy procedures carried out in accordance with the rules of procedure. In the circumstances of the concrete case, the removal of the clothes of the corpses was accepted as an appropriate and ordinary measure due to the possibility of the presence of an explosive substance on the corpses. Considering the extremely difficult and severe circumstances surrounding the concrete incident, the Constitutional Court concluded that the evidence collection procedures regarding the corpses were carried out with the utmost care and diligence.
The evidence collected revealed the material fact of the incident and showed that the force used was absolutely necessary and proportionate within the meaning of Article 17 of the Constitution. Therefore, in the concrete case, not taking the statements of the officers who participated in the clashes was not considered as a compulsory evidence gathering process that must be fulfilled in terms of the purpose to be achieved by the obligation of effective investigation. Moreover, since the operational units participating in armed conflicts, which are of a continuous and unpredictable nature, are constantly changing according to the course of the conflicts, it is almost impossible to determine the deaths, which are highly probable to have occurred at different times, as a result of the force used by the officers of which unit.
For the reasons explained above, the Constitutional Court decided that the right to life was not violated in terms of procedural obligation.
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