No Violation Of The Substantive And Procedural Aspects Of The Right To Life
Events
The PKK terrorist organization has implemented the strategy of urban warfare in line with the conjuncture-related developments especially since 2015. Within the framework of this strategy, the organization dispatched personnel, weapons and ammunition to urban centers, created ditches and barricades on the roads with explosive traps, connected buildings with tunnels and started to use them as shelters and headquarters. With this strategy, it is understood that the PKK terrorist organization is trying to transform urban centers into armed conflict zones by moving its actions from rural areas to residential centers. The PKK terrorist organization, 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-administration, public authorities implemented the evacuation of the people of the region as a priority measure. Upon the terrorist organization’s attempts to prevent evacuations, a curfew was declared and security operations were launched in some of these centers 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 December 14, 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 July 22, 2015;
i. 247 public buildings, 6 dams, 231 private commercial enterprises, 19 ambulances and 1,643 vehicles were attacked.
ii. Security forces have seized a total of 2,166 firearms (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 centers 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 PKK terrorist attacks. 859 security personnel were martyred and 4,711 security personnel were wounded in terrorist attacks. In these attacks, the district governor of Derik was also martyred by members of the terrorist organization.
Mehmet Tunç, Asya Yüksel, Yasemin Çıkmaz, Serdar Özbek, B.K., and M.B. were found dead during a search on 9 February 2016 following an operation conducted by security forces against terrorist organization members during the curfew in Cizre district of Şırnak. The investigations conducted by the Cizre and Şırnak Public Prosecutor’s Offices into the incident in which these persons were found dead resulted in 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 not provided with medical assistance and treatment during the curfew imposed in Cizre, although they were waiting in the basements of certain buildings in a wounded state, and that they died as a result of the use of force by the security forces.
The Court’s Assessment
- 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 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 individuals were constantly moving around in the conflict zone, that the roads leading to almost all the addresses where they were allegedly waiting wounded were blocked by ditches and barricades, and that many security personnel were wounded and martyred in attacks with heavy weapons against 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 people 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 organized these acts.
For the reasons explained above, it is concluded that the allegations regarding the violation of the right to life due to the failure to provide the necessary medical assistance are inadmissible.
- Allegation that the right to life has been violated in terms of the duty not to kill
The Constitutional Court examined 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 the terrorist organization, and which had been booby-trapped with explosives, constituted a strong conviction that these persons had been killed in an armed clash with the security forces and under conditions of self-defense. In addition, 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 organization’s attempt to occupy 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 was not an appropriate 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 may be civilians in the conflict zones who were not allowed to leave by the PKK terrorist organization or members of the terrorist organization who would want to surrender, and thus the right of discretion was used to prevent or minimize 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.
From August 12, 2015 until February 9, 2016, when they were found dead, Mehmet Tunç, Asya Yüksel, Yasemin Çıkmaz, Serdar Özbek, B.K., B.K., and M.B. continued their armed terrorist activities and although they were subjected to many calls to “surrender” and had the opportunity to surrender, they never considered laying down their arms or surrendering to the security forces as an option. 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 organized 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 light of these explanations, in the case subject to the concrete application, it is concluded that the response of the security forces to the uninterrupted and unpredictable lethal terrorist attacks using heavy weapons within the scope of an armed uprising by using lethal force is a proportionate intervention to suppress the armed uprising and to eliminate the danger to the lives of security forces and other persons.
For the reasons explained, the Constitutional Court held that there was no violation of the duty not to kill.
- Allegation of Violation of the Right to Life in terms of Procedural Obligation
It is understood that when the public authorities discovered that persons had died in clashes during anti-terrorist operations, they acted on their own and immediately initiated criminal investigations. 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 is 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 the crime scene investigation and evidence collection procedures are carried out by these specialized units, which are in a separate structure 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 forensic 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. Death examinations and autopsies, which are of critical importance for 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, despite being subjected to a terrorist attack on February 8, 2016, the Crime Scene Investigation units once again went to the crime scene on February 9, 2016 and continued to collect evidence. All findings on the corpses were recorded and samples were taken from the corpses for identification and identification of evidence in 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 an explosive substance being found 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 bodies 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 continuous and unpredictable, are constantly changing according to the course of the conflicts, it is almost impossible to determine which unit officers used force to cause the deaths, which are highly probable to have occurred at different times.
For the reasons explained above, the Constitutional Court held that the right to life was not violated in terms of procedural obligation.
