Elçi v. Turkey (dec.) (European Court of Human Rights)

Information Note on the Court’s case-law 226

February 2019

Elçi v. Turkey (dec.) – 63129/15

Decision 29.1.2019 [Section II]

Article 35

Article 35-1

Exhaustion of domestic remedies

No exemption from requirement to apply to Constitutional Court: inadmissible

Facts – In 2015 the security situation in south-east Turkey deteriorated on account of the intensification of hostilities by illegal armed groups affiliated with the PKK (the Workers’ Party of Kurdistan). In response, curfews were imposed by the Turkish authorities in certain towns and cities with the stated aim of clearing the trenches dug up and the explosives planted by members of the armed groups, as well as protecting civilians from violence.

In September 2015 a round-the-clock curfew was imposed in the town of Cizre. The applicant applied to the administrative court requesting the suspension and annulment of the curfew, arguing that the governor had acted ultra vires, as the law did not give him the authority to declare a curfew. The administrative court rejected the applicant’s request for the suspension of the curfew and dismissed the case on the merits. The Constitutional Court subsequently rejected his request for an interim measure. The examination as to the merits was still pending.

In December 2015 a further round-the-clock curfew was imposed and remained in force until March 2016. The operations intensified in the applicant’s neighbourhood and in January 2016 the applicant and his family left their home and moved to another neighbourhood of Cizre where the clashes were less severe.

Referring to events occurring after the imposition of the curfew in December 2015, the applicant complained to the European Court under Article 2 that the security operation conducted in his neighbourhood had not been carried out with a view to minimising the risk to the lives of civilians residing in the area. He also complained under Article 5 that he had effectively been imprisoned in his home during the course of the curfew, which had lacked an adequate legal basis.

Law – Article 35 § 1 (exhaustion of domestic remedies)

(a) In relation to the applicant’s Article 2 complaints – The applicant had decided to bring his complaints arising from the December 2015 curfew directly before the Court, without first resorting to any domestic remedies. He argued that he had already attempted domestic remedies which had not proven effective in the circumstances. He contended in particular that the manner in which the Constitutional Court had disposed of his request for an interim measure had made it clear that that court could not afford an effective remedy in respect of complaints arising from curfews.

In respect of the applicant’s complaints under Article 2, the Constitutional Court’s impugned decision had been delivered in response to a specific request for an interim measure, which had been limited in its scope to the particular threats that the applicant had allegedly faced during the curfew imposed in September 2015. That decision had been delivered on the basis of the facts and documents that the applicant had presented before the Constitutional Court as evidence of those threats, and had not as such prejudged that court’s decision in respect of a future request concerning new circumstances. The subsequent refusal of requests for interim measures lodged by other people in respect of the December 2015 curfew could not, for the same reason, be taken to render an application to the Constitutional Court futile.

The applicant’s allegations before the Constitutional Court as to the presumed risks to his life were of a rather general nature. In those circumstances, the applicant could not rule out the possibility that the Constitutional Court might decide otherwise if presented with more concrete evidence as to the risks to his life, particularly if the operations in his neighbourhood had intensified after the December 2015 curfew as he had alleged.

The Constitutional Court’s decision only concerned the applicant’s request for an interim measure. Having regard to the very particular purpose served by the interim measure mechanism, which came into play where urgent measures were needed to prevent harm until a decision on the merits was taken, the refusal of such a measure could not as such be said to prejudice or predetermine the Constitutional Court’s eventual assessment of the merits of the applicant’s complaint under Article 2. The applicant could not be considered to have been exempted from resorting to the domestic remedies at his disposal in connection with his complaints under Article 2, in particular the remedy before the Constitutional Court.

(b) In relation to the applicant’s Article 5 complaint – The Constitutional Court had not yet ruled on the issue of the lawfulness of the curfews. In its interim decision, the Constitutional Court had held that the decision to impose a curfew could not be said to have been “unfounded”, as it had been taken with a view to ensuring public order and protecting people’s lives and property. However, the specific question whether the curfew had had a valid basis in domestic law remained to be addressed by the Constitutional Court as part of its examination of the merits of the case.

The individual application lodged with the Constitutional Court was still pending before that court, and the Constitutional Court was yet to deliver its decision on the merits. The complaint under that provision was therefore premature. The procedure of individual application to the Constitutional Court available in Turkey provided, in principle, an effective remedy for violations of the rights and freedoms protected by the Convention and therefore had to be attempted.

Conclusion: inadmissible (failure to exhaust domestic remedies).

(See also Vučković and Others v. Serbia (preliminary objection) [GC], 17153/11 et al., 25 March 2014, Information Note 172; and Koçintar v. Turkey (dec.), 77429/12, 1 July 2014, Information Note 176)

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