On 29 January 2019, the ECtHR adopted two inadmissibility decisions in the cases of Elçi v. Turkey and Ahmet Tunç and Others v. Turkey concerning the alleged human rights violations that occurred during curfews and counter-terrorism operations in South-Eastern Turkey. The curfew cases as a whole address violations of the right to life, arbitrary detention, impact on private and family life, the associated impunity of the security forces and lack of effective remedies for victims in Turkish courts. The applicants in the Ahmet Tunç and Others case, for example, were shot by security forces, denied access to medical care and left to die in an area under curfew, despite an interim measures order in their favour delivered by the ECtHR. Despite the grave allegations of unlawful conduct by security forces, and complaints about the passiveness of the judicial authorities in response to those allegations, the Court found that no special circumstances had been established to exempt the applicants from the requirement to exhaust domestic remedies - in this case the Constitutional Court.
The ECtHR handed down its judgment in Selahattin Demirtaş v. Turkey (No.2) on 20 November 2018. The Court found that the detention of Selahattin Demirtaş, the former co-chair of HDP (a pro-Kurdish political party) and two times presidential candidate, constituted a violation of his rights protected under Article 5(3) and Article 3 of Protocol 1 of the Convention. The Court held that the continued detention of the applicant lacked a sufficient legal basis and “pursued the predominant ulterior purpose of stifling pluralism and limiting freedom of political debate” and was therefore in violation of Article 18 of the Convention (limitation on use of restrictions on rights) in conjunction with Article 5(3) (the right to be brought promptly before a judge).
The case concerned the detention of journalist Sahin Alpay. In a judgement handed down on 20 March 2018, the Court found that there had been a violation of Article 5(1) (right to liberty and security), and a violation of Article 10 (freedom of expression). However, no violation of Article 5(4) (right to a speedy review of the lawfulness of detention) was found. While the Court emphasised the fact that the continued use of pre-trial detention, despite the Turkish Constitutional Court’s ruling against such a measure, raised doubts as to the effectiveness of the remedy, it would not depart from the previous finding in Kocintar v Turkey (para. 44) that the right to appeal to the Constitutional Court constituted an effective remedy for those deprived of their liberty.
The case concerned the detention of professor and journalist Mehmet Altan. In a judgment handed down on 20 March 2018, the Court held that there had been a violation of Article 5(1) (right to liberty and security), and a violation of Article 10 (freedom of expression). No violation of Article 5(4) (right to a speedy review of the lawfulness of detention) was found. While the court emphasised the fact that the continued use of pre-trial detention despite the Turkish Constitutional Court’s ruling against the measure raised doubts as to the effectiveness of the remedy, it would not depart from the previous finding in Kocintar v Turkey (para. 44) that the right to appeal to the Constitutional Court constituted an effective remedy for those deprived of their liberty. Concerning the alleged lack of speedy judicial review of the applicant’s continued detention (14 months and three days) by the Turkish Constitutional Court, the Court held that the case was exceptional in light of the Constitutional Court’s current caseload. On the grounds of failure to exhaust domestic remedies, the Court rejected the complaint with regard to the lawfulness of detention in police custody.
The case concerns Mr Köksal’s dismissal by legislative decree. On the 6 June 2017, the Court dismissed the application for failure to exhaust domestic remedies, finding that Mr Köksal had to use the remedy provided for under Legislative Decree no. 685. i.e. a newly established Commission tasked with adjudicating appeals against measures adopted directly by Legislative Decrees issued in the context of the state of emergency (including the dismissals of civil servants). The Court found that the line of domestic remedies has to be exhausted before introducing an application to the ECtHR. Decisions of the Commission can be appealed before the administrative courts, and subsequently before the Constitutional Court by individual petition. When that highest court had examined a case and given judgment, then an individual could submit a complaint under the European Court of Human Rights.
The applicant was dismissed from his post in accordance with the legislative decrees passed following the attempted coup. The applicant applied straight to the ECtHR and did not seek any domestic remedies on the grounds that the avenues available were not effective. Firstly, he argued that he could not appeal the measures taken under the legislative decree in the context of the state of emergency, and secondly, that the Constitutional Court is not capable of reaching an impartial decision given that several of its members had been arrested and detained. In a judgement delivered on 7 March 2017, the Court rejected these arguments holding that the Supreme Administrative Court and the possibility of individual appeal to the Constitutional Court – were not “obviously futile” avenues of redress.
The case concerns the dismissal of a judge by the Supreme Council of Judges in accordance with a legislative decree adopted during the state of emergency. In a judgement handed down on 29 November 2016, the Court rejected the application on the grounds that she had not exhausted domestic remedies which became available at the time of the decision of the Court. Namely, the new remedy (in Legislative Decree no. 685 adopted in January 2017) allowing for judges and prosecutors to challenge their dismissal before the Supreme Administrative Court. The decision of this body in turn can be challenged via individual application to the Constitutional Court, “putting an end to the dispute as to whether the domestic courts had jurisdiction to judicially review the measures taken by the Supreme Council of Judges.” The Court also held however, that this conclusion did not “in any way prejudice a possible re-examination of the question of the effectiveness of the remedy in question.”