2016 | Case 2016 ECtHR - Tunç & Yerbasan v. Turkey
This case turns on the difficulty of obtaining accountability and justice for the conduct of Turkish government forces inside townships isolated by curfews. Access to the national courts, both lower and higher, is available. However, this and other cases point to a history of protecting the impunity of government officials in Turkish courts. Meanwhile, the ECtHR held that the cases were inadmissible for failure to exhaust local remedies, as the Turkish Constitutional Court is still considering a claim from this applicant.
On 18th January 2016, during the ongoing curfews, Orhan Tunç was injured by gunfire from armoured security vehicles in the area. Security restraints imposed at the time prevented access by emergency vehicles. The emergency services informed the callers that if they took Orhan Tunç to Dörtyol, a location some one and a half kilometers away, they could pick him up from there. There were, however, no persons in the vicinity willing to carry Orhan Tunç to that location: in a number of similar incidents in the past, civilians taking injured persons to ambulances had been shot at by the security forces and, as a result, people were too scared to offer Orhan Tunç any assistance.
However, in February 2016, the applicants’ legal representative informed the authorities that Orhan was never taken to a hospital but instead, had been held in the basement of a house located at Ömer Hayyam Street in Cizre. On 9 and 10 February 2016 lawyers representing a total of 31 persons, including Orhan Tunç, applied to the Constitutional Court of Turkey and claimed that the 31 people had been injured and were waiting for medical assistance in the basements of two buildings in Cizre. They requested an interim measure from that court to ensure the 31 persons’ immediate access to medical facilities. The lawyers argued that the 31 persons and their family members had contacted the emergency services on a number of occasions and asked for ambulances. However, on each occasion the emergency services had informed them that ambulances had been sent but been stopped by police officers.
The Constitutional Court rejected the applicants’ request for an interim measure, referring to information from the office of the local governor that paramedics had been unable to find the injured people but had seen a number of bodies. In December 2017 Orhan Tunç’s family lodged an application with the Constitutional Court, separate from the one lodged previously, complaining, among other things, of a violation of the right to life, and a breach of the duty to carry out an effective investigation. The Constitutional Court is still considering both applications.
Relying on the obligation of applicants to first exhaust all domestic remedies, the ECtHR dismissed both claims as inadmissible, because the Constitutional Court in Turkey was still considering the cases. The applicants had argued that the Turkish Constitutional Court does not provide effective remedies, pointing to its history of maintaining the impunity of state officials for violations committed during curfews, and to the lack of an independent and impartial judiciary in Turkey. The ECtHR was unpersuaded, and held that concerns about impunity do not obviate an applicant’s obligations to exhaust all domestic remedies.