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Bericht der Delegation nach Diyarbakır

21 to 24 January 2016
Report – Lawyers Delegation to Diyarbakır – I. Introduction
  • Participants
    From 21 to 24 of January 2016, a delegation of 10 lawyers from Austria, Belgium, Germany and Italy visited Diyarbakır, Turkey. The mission was coordinated by two European lawyers’ organizations—the European Association of Lawyers for Democracy and Human Rights (ELDH) and European Democratic Lawyers (EDL)—and the Unione delle Camere Penali Italiane. It was supported by the ÇHD (Çağdaş Hukukçular Derneği) (Contemporary) Progressive Lawyers Association.
  • Purpose of the Delegation
    The purpose of the delegation was to collect information about curfews imposed on Kurdish districts in the provinces Diyarbakır and Şırnak and their impact on the population. The delegation concentrated on the situation in Diyarbakır.
  • Organizations and Institutions that Received the Delegation and gave Testimonies
    The lawyers had meetings with the Diyarbakır Bar Association, two human rights organizations, the Diyarbakır Chamber of Doctors, the Free Woman’s Congress (KJA), the co-mayor of the city of Diyarbakır, the People’s Democratic Party (HDP) and families of victims. In the course of these meetings, they received reports about the dramatic situation.
  • Individual Witnesses and Lawyers who Gave Testimonies
    The lawyers delegation also met families (mostly women), some of whom had been on hunger strike to receive permission from the army, police or the governor to bury their killed children, whose bodies had been left lying in the street for up to 28 days.
    The lawyers delegation spoke to a lawyer representing seven citizens of Sur (five living under the curfew and two in the security zone) and who, after taking legal action before the Turkish courts in vain, had appealed to the European Court of Human Rights.
  • Meetings with the Representatives of the Army or the Governor
    The members had no chance to meet the military commander or the governor. This report will be sent to them for their comments and explanations.
In the course of these meetings, the delegation received reports and testimonies about the dramatic situation inside but also outside the curfew zones. II. Preliminary Remarks and Limitations of the Fact-Finding Mission
  • The government of Turkey has ordered a news embargo on curfew areas and security zones. Journalists and independent observers are not allowed to access these areas. Thus the number of killed and injured people and other incidents are estimates and are incomplete. They are based on the documentation of human rights organisations that collect evidence from statements from former inhabitants of the areas, from media reports (which are controlled by the Turkish government) and from social media. The delegation refers to the respective source in its report when numbers are mentioned.
  • Due to the lack of independent documentation, proper investigations and autopsies, the delegation is unable to assess the numbers and circumstances of incidents and thus, abstains from categorizing the victims as civilians and/or fighters.
  • Both national and international journalists face unprecedented legal obstacles and arrests, even serious threats to their lives. By the end of 2015, the government had blocked access to over 90 news portals, media outlets and websites. More than 23 websites reporting on issues mostly related to the resolution of the Kurdish question were shut down. Diyarbakır-based JİNHA News Agency reporters, consisting solely of women, were taken into custody.
  • Further, the delegation abstains from an assessment of whether the situation in the curfew and neighbouring areas amounts to an armed conflict and thus a less extensive form of war, to which the rules of war apply as laid down in the Geneva Conventions, in particular number IV. Subsequently, the delegation refers to the minimum standards that apply to human rights law violations. If the situation is a non-international armed conflict, international humanitarian law applies.
However, the delegation strongly underscores that basic fundamental human rights are non-disposable and indivisible rights to which both civilians and fighters are entitled.
III. Personal Observations by the Members of the Delegation and Testimonies and Reports Received by Witnesses and Interlocutors The delegation had no access to the area under curfew. However, the lawyers could walk on the main street that separates Sur’s curfew area from the special security area. They could also see helicopters and fighter jets over Sur, as well as armoured vehicles, including a tank, at the entrance of the curfew zone. They could see the metal fence that prevents citizens living in Sur leaving the area and people from outside entering.
Moreover, from outside the curfew area they could hear machine guns and artillery inside the curfew zone.
Human rights defenders and centres of documentation can only gather information through telephone contact with people inside the area or from reports of people who have left the respective towns or districts. In addition, (social) media contributes to the collection of information. Only for the (short) periods when the curfew is lifted outsiders can access the area. Independent investigations and comprehensive documentations are impossible. 1. The Curfew Imposed on Various Districts in Diyarbakır
  • The area of Curfew in Diyarbakır
    At the time of the lawyers delegation visit, a round-the-clock curfew had been imposed for 57 days on six out of Sur’s 15 neighbourhoods, the ancient centre of Diyarbakır. The military had declared the other part of Sur a special security area, where access was limited and under the strict control of the Turkish military and special police forces.
    A few days after the delegation left Sur, the authorities extended the curfew to five additional neighbourhoods, 11 in total. Two weeks later, the curfew on these additional neighbourhoods was lifted again.
    It is estimated that around 22,000 inhabitants of Sur have moved out of the curfew area to save their own lives. The curfew in Sur is now gradually being lifted, street by street. Those who had fled the fighting and moved to other areas of the country have finally been allowed to go home.(1) However, in other towns such as those in the province of Hakkari’s Yüksekova district, the curfew continues or has even intensified.
  • Other Districts where a Curfew has been Declared
    The Human Rights Foundation of Turkey says in its report: “Since 16 August 2015 until 18 March 2016, there have been 63 officially confirmed, open-ended and round-the-clock curfews in at least 22 districts of seven cities (primarily Diyarbakır, Cizre-Şırnak in the provinces, Şırnak, Mardin Hakkâri, Muş, Elazığ, Batman) where approximately 1 million 642 thousand people reside (according to the 2014 population census).”(2) The number of people affected by the curfew rises every day.
  • Duration of the Curfews
    The curfews differ in length. Some are lifted for short periods of several hours, some last for days or take place only at night. Some, including the curfew in Diyarbakır, were declared open-ended and round the clock. From time to time, they are lifted. People are allowed to leave their homes and the curfew area. Once they leave the zone, they are not always allowed to return to their homes and thus become displaced.
  • Official Justification for the Curfews
    The official reasoning for the curfews is to ensure the security of the population and restore law and order. In addition, the Şırnak governor’s office said in a statement, “A curfew is declared to neutralize separatist terror group members, remove explosives-laden barricades and ditches...and secure public order.”(3) A curfew was also imposed in the town of Nusaybin, on the Syrian border, to restore order “in response to increasing terror incidents”.(4)
    President Erdoğan has vowed to “eliminate and annihilate”(5) the PKK (Kurdistan Workers’ Party; Partiya Karkerên Kurdistanê).
    On 8 January 2016, the Turkish Minister for EU Affairs, Volkan Bozkır, referring to the demand of the European Court of Human Rights to the Turkish State to give an explanation on the legal ground of the curfews said “These operations will continue until this region is fully cleared of terrorists. The state has its determination and nobody can question this. Like all countries, Turkey has the obligation, responsibility and right to provide security and comfort to its citizens. An important operation is being carried out in Turkey. Militants had launched a massive campaign in the aforementioned areas under the guise of democratic autonomy with their own flag and legal system.”(6) He continued, “In such a situation, the EU has no word to say. And until now, there were no serious criticism…directed at us by the EU.”
  • Who Declares the Curfews?
    The governors or deputy governors of the respective districts/towns order the curfews and announce them on their websites, on TV, radio and through the muezzins from the minarets. However, these announcements do not always reach everybody and several cases have been reported of people not knowing a temporarily lifted curfew had restarted again. Subsequently, they were killed.(7)
  • Characteristics of the Curfews
    When the curfew is in place, people in the concerned area have to remain in their houses. They are only allowed (and even encouraged by the military) to leave the area when the curfew is lifted.
    The government does not provide any assistance to those who leave the area and they rely exclusively on the support of their families and the local municipalities. The Turkish government offers a one-off lump sum of between TL500–1,000 (approx. €155–310) and in some cases TL3,000 (approx. €930), which people only receive if they sign a document to say they were victims of terrorists. Thus, they are barred from complaints against the police/military and from requests for compensation. Consequently, most of them refuse to sign.
    The military bans families from burying their killed children or family members. In two cases, bodies lay on the street for 28 days, even after the governor gave his permission for burial.
    In Turkey, the procedure of delivering corpses to their families for burial after an autopsy is set out in the Regulation on the Implementation of the Law of the Institution of Forensic Medicine.
    On 7 January 2016, article 10, § 2 (c) of this regulation was amended by the Ministry of Justice. The following paragraph was added:
    “If the Governor evaluates that the public order may be disturbed or public events may occur or crimes may be committed during the process of delivery or burial of the corpse, then the corpses shall be delivered to the municipality or the office of the governor to be buried.”
    On this basis, in some incidents the governors of curfew areas have ordered that corpses are buried by the office of the governor. Families are excluded from receiving and burying their relatives properly. During the time of the curfew, nobody is allowed to enter the curfew zone without the military’s permission. This is not even granted to the members of Chamber of Diyarbakır doctors who try to enter the zone every day to provide health care to the people under curfew. In addition, the mayor and co-mayor of Diyarbakır are also not allowed to enter the curfew area.
    Due to the curfew, people cannot lead their regular lives: they cannot go to work and earn a living, children cannot go to school. The life and health of everybody is endangered by the lack of food, water, electricity, health services and of course by the violence of the military and the police.
    The police and the military enforce the curfews. People who violate the curfew risk being shot, like many people, including children who were unaware a curfew had restarted.
    The curfews are mainly imposed in areas governed by the HDP (People’s Democratic Party;
    Halkların Demokratik Partisi).
    In some cases, entrance of civilians to the neighbouring security zones has also been banned.
    Any protests outside the curfew area against the curfews are banned and guns are pointed against the heads of demonstrators to disperse them. Several cases from Adana have been reported where the police have shot unarmed protesters or children.(8)
    The HDP representative declared that the curfew is not just a conflict, but a war. This remains to be examined.
  • How many People are Affected by the Curfew in Diyarbakır?
    Around 125,000 citizens of Sur have been victims of the curfew. According to Turkish officials, over 20,000 people have fled from Sur district.
  • Impact of the Curfew on Women
    The delegation met with the Free Women Congress (KJA) and learned about the particular impact of the war-like situation on women. In January 2016, the KJA submitted two reports with annexes to the European Council.
    The KJA promotes gender parity in all institutions, including structures of the HDP and has led to all positions being held by a male and a female at the level of the municipalities. Therefore, women who play a role in parliament and the local authorities are specifically targeted because of their emancipated position. In Silopi, three members of KJA and of the city parliament - a grandmother, mother and daughter, so three generations - were killed during the curfew. In total, at least 62 women have been killed under the curfew.
    Many pregnant women have lost their babies. Many women have to give birth at home without access to medical assistance. Their lives and those of their babies are put at risk.
    Women have been subjected to sexual harassment, assault and outrage on their personal dignity. The delegation received information about a woman who was stripped naked(9), killed and photographed by security forces who posted the photos on social media.
    The KJA has seen a forced transfer of the population through destroying houses and forcing people to leave the curfew area. The Turkish government wants an urban transformation and building new police stations is part of new regulations.
    Some women have set up a communication system in the curfew areas.

  • Law Suits against the Curfew and Decision by the ECtHR
    Several human rights lawyers, including Tahir Elçi (the former President of the Diyarbakır Bar Association) who was assassinated on 28 November 2015 in Sur district, submitted requests to administrative courts for urgent interim measures. They also demanded the immediate end of the curfews because of their unlawfulness and for the end of the violations of the fundamental human rights of the population concerned.
    These requests were rejected or not decided on. Subsequently the lawyers went to the Constitutional Court. The Constitutional Court rejected the application for precautionary measures to protect applicants.(10)
    In the meantime, several lawyers have submitted applications to the European Court of Human Rights (ECtHR). In a press statement(11), the ECtHR informed the public that, “Since December 2015 the European Court of Human Rights (ECtHR) has received more than twenty requests for the indication of interim measures in the context of the curfew measures imposed by local governors in certain towns and villages of south-eastern Turkey since August 2015. On behalf of their clients the lawyers requested interim measures for protection of their clients, in particular immediate access to medical assistance.

    In the case Ömer Elci vs Turkey, the EtCHR asked the Turkish government:

    "1. What is the legal basis for the curfews?
    2. Given the curfew, is the applicant to have realistic and adequate access to health services and to obtain his elementary needs such as food, water, electricity, etc.? In that access, would his life be endangered if he were to leave his house for any emergencies or for procuring basic goods such as food or medicines?
    3. In view of the number of civilian casualties reported in the areas affected by the curfew, including, in particular, the area in which the applicant lives, what measures have been and are being taken to safeguard the right to life of the residents living in those areas?”(12)

    In some cases, the lawyers were successful and the ECtHR set out interim measures for the government of Turkey, namely “to take all measures within their powers to protect the applicant’s life and physical integrity.”(13)
    To the knowledge of the delegation, the government of Turkey has not complied with the court’s indicated interim measures. In the case application of Tunç vs Turkey, the court requested further explanations from the government after it failed to comply.
    In its 5 February 2016 press release, the ECtHR said it did not indicate interim measures in two cases because it considered the Turkish Constitutional Court’s decision, dated 29 January, “to be relevant and potentially capable of providing interim relief for the applicants for their complaints. It also took note of the Constitutional Court’s willingness to monitor the applicants’ situation.”(14)
    The Constitutional Court expressed doubts on the applicants’ whereabouts and changing addresses. The court eventually dismissed the applications because the applicants did not contact the local authorities. It ordered:
    “That the applicants shall be invited to contact directly with the public authorities;
    That public authorities shall take necessary measures to ensure the applicants’ access to health services upon elimination of uncertainties taking into account the right to life of health personnel and security forces;
    That the Governorship of Şırnak shall urgently provide information about any developments to the Constitutional Court.”(15)
    In all cases, the ECtHR gave priority to the applications according to Rule 41 of the Rules of Court.

2. Police and Military Violence
  • How Many People Have Been Victims of Violent Acts Committed by the Police or the Military?
    The Turkish military boasts to have killed more than 700 PKK fighters in the two districts of Diyarbakır and Şırnak . However, the army does not mention the civilians it has killed or injured. The government did not present any evidence that the victims of the military violence were PKK fighters and not just citizens who acted in self-defence.
    In a report, on 5 February the Human Rights Association (IHD) in Diyarbakır documented that 224 civilians had been killed during the curfews across the south-east as a result of fighting and the other conditions of the curfews, including 43 women and 42 children. Of those civilians, 40 were killed in Diyarbakır's Sur district.
    Some 109 women have been killed and 44 others injured in south-eastern Turkey, according to the 2015 Violation of Women Rights Toll released by the IHD’s Diyarbakır branch in a press statement on 5 February 2016.(16)
  • Using Heavy Weapons of War Inside Urban Areas
    • Most reports mention that in Sur and other areas under curfew the military/special police use: heavy artillery, bombs, machine guns, shells, howitzers, mines, mortars, tear gas, snipers, airstrikes, tanks and thousands of combat troops.(17)
      Many houses have been shelled.
      The use of heavy weapons of war in densely populated areas indicates that the army is not only aiming at fighters but is taking into account civilian losses. This explains the high number of civilians who have been killed.
  • Other Acts of Violence Committed by the Military and the Police: Deliberate Destruction of Cultural Heritage(18)
The so-called Turkish security forces are responsible for large-scale house destruction in the Sur district of Diyarbakır and the Cizre and Silopi districts of Şırnak, the İdil district of Şırnak, Nusaybin district of Mardin and Yüksekova district of Hakkari. In many cases, houses were destroyed by the military because it knew or suspected Kurdish resistance forces were inside.Between 16 August 2015 and 10 January 2016, numerous military operations were undertaken in urban and rural areas across Kurdistan; Şemdinli town, Lice town and the Dersım province in particular. The use of artillery caused fires in rural parts of these towns, burning down thousands of acres of forestland and destroying many gardens and village houses (Ecological Damage Report prepared by Union of South Eastern Region Municipalities (GABB)). Between 12 September 2015 and 10 January 2016, in the rural areas of 11 provinces, the security forces bombarded and destroyed 13 cemeteries, home to PKK members who lost their lives at various points in the protracted war on Kurdistan. Mosques and djemevi (religious places) attached to the cemeteries have also been destroyed on the pretext that they served as arsenal storage sites for the PKK. Each time local people stood, watching, as human shields to prevent the destruction. UNESCO (United Nations Educational, Scientific and Cultural Organization) has included the Sur District of Diyarbakır in its list of World Heritage sites. Helicopter bombs and heavy artillery are now destroying the city walls, houses, mosques and churches bearing thousands of years of history. Kurşunlu Mosque has been bombarded by an airstrike, Paşa Hammam burned down and Surp Giragos Armenian Church and Armenian Catholic Church heavily damaged.  3. Credibility of Witnesses  Since all interlocutors whom the delegation met confirmed the reports and testimonies about the curfews, its characteristics and its impact on the civilians, they had no doubt about the credibility of the witnesses. In addition, reports of journalists and photographs from the curfew areas showed the same situation.  IV. Legal Conclusions Related to the Curfews
1. The Imposition of the Curfews under Turkish Law The respective governors/deputy governors ordered curfews based on Article 11 (c) of the provincial Administration Law No. 5442.(19)
The governor shall have the duty, inter alias, to secure peace and security, personal immunity, safety of private property, public well-being and the authority of preventive law enforcement.
A curfew is not specifically mentioned in this article. However, even if curfews were a legitimate way to secure peace, security and public order, the length and means through which they are implemented need to be proportionate and must not affect basic fundamental rights, such as the right to life, access to medical services, food and drinkable water. This applies for both fighters and civilians.
Thus, the long-lasting curfews, like 24/7 in Diyarbakır for more than two months where everybody in the area is cut off from basic needs, are unlawful. In addition, the means that special police forces and the military use for securing peace and security are weapons of war. In densely populated areas the use of helicopter bombs, heavy artillery, shells, howitzers, mines, mortars, machine guns, tear gas, snipers, airstrikes, tanks and thousands of combat troops necessarily affects the civilian population and is therefore unlawful. The delegation notes that Turkish law explicitly allows for imposing “a limited full curfew” but only if a state of emergency is declared. Turkish law states as follows: Article 11 of ACT NO. 2935 STATE OF EMERGENCY LAW
Measures to be taken in the Case of Violence
Whenever a state of emergency is declared in accordance with Article 3 (1)(b) to protect general security, security and public order and to prevent the spread of acts of violence, in addition to the measures taken in accordance with Article 9, the following measures may be taken:a) Imposition of a limited or full curfew;Article 3/l of Act 1402 Martial Lawl) to impose restrictions on the movement of people; to impose curfews; and, as and when necessary, to introduce appropriate civil defence measures. The delegation submits for consideration that the Council of Ministers did not declare a state of emergency and martial law. Therefore, the imposed curfews have no legal basis. Further, the curfew restricts or/and suspends fundamental basic rights and freedoms. The Constitution allows for such restriction only through law and in times of war, mobilization, martial law, or state of emergency. The Constitution of the Republic of Turkey provides: Article 13 of the Constitution of the Republic of Turkey
II. Restriction of Fundamental Rights and Freedoms
Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be in conflict with the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular Republic and the principle of proportionality. Article 15 of the Constitution of the Republic of Turkey
I. Suspension of the Exercise of Fundamental Rights and Freedoms
In times of war, mobilization, martial law, or state of emergency, the exercise of fundamental rights and freedoms can be partially or entirely suspended, or measures may be taken, to the extent required by the exigencies of the situation, which derogate the guarantees embodied in the Constitution, provided that obligations under international law are not violated.
Even under the circumstances indicated in the first paragraph, the individual’s right to life, and the integrity of his or her material and spiritual entity shall be inviolable except where death occurs through lawful act of warfare; no one may be compelled to reveal his or her religion, conscience, thought or opinion, nor be accused on account of them; offences and penalties may not be made retroactive, nor may anyone be held guilty until so proven by a court judgment.
The delegation observes that the restrictions and suspension of basic fundamental rights and freedoms in the curfew zones and the neighbouring security zones have no legal basis and are not in accordance with the provisions of the Constitution, which is higher in rank than the Law on Provisional Administration, which the governors used as legal basis.
Therefore, the rights violations caused through the declaration and implementation of curfews are unconstitutional.
However, even if the imposed curfews are a legitimate measure that governors may take to secure security and public order, they lack proportionality by length and means of implementation and violate the fundamental rights of the population. They violate the Constitution, which allows for restrictions and suspension of fundamental rights and freedoms only in times of war, mobilization, martial law or state of emergency. Conclusion The curfews have no legal basis. Even if the curfews were/are legal as a measure to secure security and public order, they disproportionally affect the (civilian) population by length (24/7) over 53(20) days and are therefore unlawful.
The characteristics (manner of enforcement, prevention of medical care, lack of sufficient and clean water, lack of electric energy) of the curfews’ making are absolutely disproportionate.
The destruction of houses by the military to “neutralize” suspected fighters is not authorized by any law.
2. Relevant Articles of the European Convention on Human Rights (ECHR) and of Turkish Law Concerning the Impact of the Curfew and the Violence of the Military and the PoliceArticle 2 ECHR Right to Life1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force, which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection. 
Article 2 of the ECHR, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. Together with Article 3 (which prohibits torture and inhuman and degrading treatment or punishment), it also enshrines one of the basic values of the democratic societies making up the Council of Europe.(21)
A state has to refrain from intentional and unlawful taking of lives and is only allowed to use lethal force if it is “absolutely necessary”. If lethal force is used, it has to be proportional.
As a positive obligation, a state has to protect the lives of those within its jurisdiction. As a procedural obligation, a state has to investigate violations properly, including cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility.  Article 17 of the Turkish Constitution on Personal Inviolability, Corporeal and Spiritual Existence of the Individual  Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence.
The corporeal integrity of the individual shall not be violated except under medical necessity and in cases prescribed by law; and shall not be subjected to scientific or medical experiments without his/her consent. No one shall be subjected to torture or mal-treatment; no one shall be subjected to penalties or treatment incompatible with human dignity.
  Article 17 of the Turkish Constitution guarantees the right to life and protects the physical and mental wellbeing.  There is strong evidence that Article 2 of the ECHR and Article 17 of the Turkish Constitution have been violated by the following acts:
  • Killing of civilians and unarmed fighters.(22)
  • Preventing the access of health services.
  • Preventing access to food and drinking water.
  • Destruction of electricity supply and power cuts.

(a) Killing of civilians and of unarmed fighters
The delegation received information from the interviewees and human rights organizations that the special police forces and the military conducted a special offensive in the areas under curfew. The state forces use heavy weapons of war, killing and injuring people who were present in these zones.(23)  Since 11 December 2015, the form of the curfews and the size of the area they cover has changed. The government and state officials have issued more aggressive statements. An increasing number of military and special police forces are deployed and demonstrate the intenseness of the offensive.
According to witness statements(24), out of 310 civilians killed in the curfew areas between 11 December 2015 and 18 March 2016, at least 180 lost their lives while they were within the boundaries of their homes. Fifty-three were killed due to open fire or being hit by a missile and 18 lost their lives due to the stress of curfews on their health. Moreover, 137 were in Cizre District, and 35 of these occurred from firearms.  (b) Preventing the access of health services
According to the limited information that TIHV (Türkiye İnsan Hakları Vakfı) could obtain from the press and online videos, at least 76 civilians have lost their lives since 11 December 2015 through not being able to reach to ambulances and hospitals because the security forces prevented doctors and nurses entering the area. Within the last weeks, the European Court of Human Rights approved at least three decisions on interim measures for wounded Hüseyin Paksoy (16), Serhat Altun (23), Orhan Tunç in Cizre, Cihan Karaman and Helin Öncü. However, three of them lost their lives. The interim measures ordered by the ECtHR were not implemented by the Turkish state. Medical personnel protest in front of the town hall every day in Diyarbakir because they are not allowed to provide medical services in the curfew areas.  (c) Preventing access to food and drinking water
The delegation received information that people living in the curfew areas have no access to food and often not to drinking water. Shops are closed. Business is turned down. Blocking access to food and drinking water endangers people, makes them sick and vulnerable and puts their lives at risk.  (d) Destruction of electricity supplies and power cuts
The delegation took note that in the curfew zones electricity is limited and prevents people from heating their homes during the cold winter, which puts also their lives at risk.  Article 8 ECHR Right to Respect for Private and Family Life  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
On 30 September 2011, the ECtHR issued a judgment in the case of Girard vs France(25) and recognized a new right under Article 8 – the right to bury one’s relatives.
This judgment deals with: returning the body to relatives, organizing and attending a funeral, and treatment of samples taken from the body for investigation purposes.  The Turkish Constitution protects the privacy of private and family life.  Article 20 Turkish ConstitutionEveryone has the right to demand respect for his/her private and family life. Privacy of private or family life shall not be violated.  Article 20 of the Turkish Constitution is similar to Article 8 of the ECHR. It is suggested that this article also encompasses the right to bury family members and relatives.
There is strong evidence that the Turkish government violated Article 8 of the ECHR and Article 20 of the Turkish Constitution by changing the respective regulation26 and burying corpses without the attendance of the dead person’s relatives.  There have been many reports from Sur and other curfew areas that families were prevented from burying their children and other relatives, whose corpses lay on the street for many days. The delegation met families, mainly women, who went on hunger strike to obtain permission to bury their children.
A local lawyer reported that the corpse of 56 year-old Taybet Inan, who was shot by a sniper, lay in the street for seven days because her family could not collect the body.  Article 10 ECHR Freedom of Expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
  Article 26 of the Turkish Constitution Freedom of Expression and Dissemination of ThoughtEveryone has the right to express and disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty of receiving or imparting information or ideas without interference by official authorities. This provision shall not preclude subjecting transmission by radio, television, cinema, or similar means to a system of licensing.  Both the Turkish Constitution and the ECHR protect the right to and freedom of expression. In particular, Turkey has a long record of violations of the freedom of expression. There are several spectacular cases of violations of Article 10 ECHR and Article 26 of the Turkish Constitution, which concern the curfews and brutal violence used by the army and the police. Shortly before he was murdered, the President of the Diyarbakır Bar Association, Tahir Elçi, became a victim of this oppression of any opposition to the government. He was accused of praising PKK, because he said in an interview with CNN Türk “The PKK is not a terrorist organization. Rather, it is an armed political organization that has great local support.” For letting him say this, the TV station was fined TL 700,000 (approximately € 211,000).
Tahir Elçi was later arrested for these remarks but was released the next day, awaiting trial. However, he was placed under judicial supervision and banned from travelling overseas after being referred to court for his arrest on charges of spreading terrorist propaganda. The indictment, prepared by the Bakırköy Public Prosecutor's Office and sent to the Bakırköy Second High Criminal Court, sought a prison sentence of between one-and-a-half and seven-and-a-half years.  Another spectacular violation occurred after the statement signed by over 1,400 academics and researchers from Turkey and abroad titled “We will not be a party to this crime”. 1,128 academics from 89 universities in Turkey, later joined by hundreds of additional signatories, and over 355 academics and researchers from abroad including figures such as Noam Chomsky, Judith Butler, Etienne Balibar and David Harvey signed a text calling on state of Turkey to end state violence and prepare negotiation conditions.(27)
The Istanbul prosecutors launched an investigation, with Turkish academics facing accusations ranging from “terrorist propaganda” and “inciting people to hatred, violence and breaking the law” to “insulting Turkish institutions and the Turkish Republic,” the official Anatolia news agency(28) said. After having made a statement at a press conference on 10 March 2016, four academics were arrested under the accusation of "making the propaganda of terrorist organization". During the press conference, they talked about the recent situation of harassment against academics and insisted that they stand behind the petition. The prosecutor submitted the indictment to the court and the first trial will be held on 22 April 2016.
Turkish prosecutors in Istanbul have taken up the case, with all Turkish signatories of the petition under investigation. If convicted, they face between one and five years in prison. According to a report prepared by academics Kerem Altıparmak and Yaman Akdeniz, who are best known for filing a petition with the Constitutional Court in March 2014 against government bans on YouTube and Twitter, some academics are facing arbitrary investigations in their universities for their acts, which are not a crime according to Turkish laws.  In an earlier case in 2014, Yaman Akdeniz, a professor of law at ?stanbul Bilgi University, and Kerem Altıparmak, an assistant professor at Ankara University's faculty of political sciences, challenged a decision by the Ankara Criminal Court of First Instance in May 2008 that ordered a ban on YouTube for videos insulting the memory of Mustafa Kemal Atatürk, the founder of the Turkish Republic.
The ECtHR ruled on 1 December 2015 that the decision by the Turkish authorities to block access to YouTube was in violation of Article 10 of the European Convention on Human Rights (ECHR), which enshrines the right to freedom of expression.  Article 11 ECHR Freedom of Assembly and Association  1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
  Article 34 Turkish Constitution Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission.  The Turkish government also has a long record of violations of the freedom of assembly. The violent attacks on demonstrators on Taksim in 2013 are not forgotten.  There is strong evidence that the Turkish government violated Article 11 ECHR and Article 34 of the Turkish Constitution.  Since the curfews started in Diyarbakır and Sirnac, protests have been violently oppressed and sometimes become very dangerous for participants.(29) In general, demonstrators risk being teargassed.(30) In December 2015, the police killed two demonstrators in Diyarbakır. In February 2016, state forces killed a 16-year-old boy who was demonstrating against the curfew in Diyarbakır.(31)
The delegation received information that peaceful gatherings and protests against curfews were either prohibited or, if they took place, attacked by state forces. In addition, eight people (six close to Sur district, one in Nusaybin and one in Silvan) were killed by the arbitrary shooting of security forces during peaceful protests against the curfews in streets and squares close to curfew zones, yet where no operation was ongoing or any curfews were declared.(32)  Right to Free Movement  Article 2 of Protocol no. 4 added to the European Convention of Human Rights (which Turkey signed on 19 October 1992, but never ratified) states as follows: Freedom of movement
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of public order, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society. In addition, Article 23 of the Turkish Constitution provides as follows:
Article 23 Freedom of Residence and Movement
Everyone has the freedom of residence and movement. Freedom of residence may be restricted by law for the purpose of preventing crimes, promoting social and economic development, achieving sound and orderly urbanization, and protecting public property. Freedom of movement may be restricted by law for the purpose of investigation and prosecution of an offence, and prevention of crimes. (As amended on October 3, 2001; Act No. 4709, and as amended on September 12, 2010; Act No. 5982) A citizen’s freedom to leave the country may be restricted only by the decision of a judge based on a criminal investigation or prosecution. Citizens shall not be deported, or deprived of their right of entry into the homeland.  There is consistent evidence that these articles have been systematically violated. The human rights organizations with whom the delegation met reported that people residing in the areas under curfew have suffered heavy restrictions of their right to free movement since the beginning of the curfew: The delegation observed, most of the time, that people are unable to even leave their houses and circulate freely within the area under curfew. Movement can take place only in rare and specific moments when the curfew is lifted and, even then, people have no guarantee of being able to return to their houses. Curfew is often re-imposed without sufficient notice. When people miss the information and are still in the streets once the curfew is imposed again or they do not reach their houses or shelter on time, they are killed or at risk of being killed.
In general, violations of curfew and prohibition of free movement expose people to the risk of being shot and/or arrested.
Ability to freely exit and re-enter the curfew area is also heavily restricted: this only possible in the rare moments when the curfew is lifted and the military authorities have the power to decide whether a person demanding to leave receives permission. Re-entering might prove impossible once a resident has left the area. In general, the delegation notes that access to the areas under curfew is more heavily prevented than leaving them. This might be part of the governmental plan to “clean”, demolish and rebuild the areas.(33) It is estimated that around 22,000 people have been able to leave the Sur district in Diyarbakir, abandoning their families, houses, property and businesses, to seek refuge outside the areas under curfew.
Severe restrictions to the right of free movement are also imposed on the residents of the so-called buffer areas (districts neighbouring those under curfew, declared as security zones): exit from and entrance to those areas is subject to document control. The military may refuse entry, exit and transit, depending on the security situation.
The right to free movement of the population living outside the areas under curfew is also restricted. The military may close the curfew zones’ neighbouring areas with fences, armoured cars and tanks and make them inaccessible for the entire population.
The described restrictions on the right to free movement lack any sort of adequate justification under paragraph 2 and 4 of Article 2 of Protocol 4 to the ECHR or under article 23 of the Turkish Constitution of which the latter requires that any restriction on the freedom of movement is provided for by law.
A curfew is a measure that limits the freedom of movement of the population or of some groups at a certain time of the day and for a limited period.(34) In light of such definition, a curfew amounts to a restriction of the right to free movement, as those allowed by Article 2 of Protocol 4 to the ECHR and by Article 23 of the Turkish Constitution. The European Court of Human Rights has often ruled that the length and severity of the restriction are relevant factors in deciding whether a restriction on freedom of movement is legitimate (see, e.g., Austin and Others vs the United Kingdom, 15 March 2012, Applications nos. 39692/09, 40713/09 and 41008/09, case no 39692/09). The measures imposed by the Turkish government on the population residing in the areas under “curfew” are of such duration in time and constitute such a severe limitation of the right to free movement, which is actually made void. They are not restrictions to the right of free movement, but amount to a deprivation of that right. Such restrictions are not lawful under the European Convention of Human Rights and its added protocols nor under the Turkish Constitution.  Right to Housing Although not explicitly included in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of 1950, the right to housing is enshrined in numerous concrete legal norms, which are relevant in the fight against homelessness and housing exclusion:  Article 2: right to life
Article 3: prohibition of torture or inhuman or degrading…treatment
Article 8: right to respect for private and family life
Article 1 Protocol 1: protection of property
  Article 35 Turkish Constitution Right to Property
Everyone has the right to own and inherit property.  Article 57 Turkish Constitution Right to Housing
The State shall take measures to meet the need for housing within the framework of a plan that takes into account the characteristics of cities and environmental conditions, and also support community housing projects.  Many international treaties recognize the right to housing explicitly. The most important is certainly Article 25 of the Universal Declaration of Human Rights: it recognizes the right to housing as part of the right to an adequate standard of living.
It states that: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control”.
The right to housing is not explicitly mentioned in the European Convention for Human Rights, but it is framed by the case law of the ECtHR, from two different rights of the ECHR: Article 8 protecting the right to private and family life, and Article 1 Protocol 1, protecting the right to property.
At its most basic, Article 8 includes a right to have one’s home protected from attacks by the state and its agents. Thus, in the case of Akdivar and Others vs Turkey (1 April 1998, Case No 99/1995/605/693) about inhabitants of a village suspected to be a PKK base, the court found it established that the security forces were responsible for the burning of the applicants’ houses and the loss of their homes, which forced them to abandon the village and move elsewhere. As there was no doubt that the deliberate burning of their homes and contents constituted a serious interference with the right to respect for their family lives and homes under Article 8 and no justification for these interferences was offered by the government, the court concluded that there had been a violation of Article 8.
In the curfew areas, the residents are deprived of their right to housing. The delegation received many reports of destructions of houses. Photographs and descriptions from victims demonstrate that massive, widespread and systematic destructions of buildings took place and continue to take place through bombing and the use of bulldozers. The destroyed houses were the living places of civilians. The areas look like a battlefield of an intensive war.
As mentioned above(35), the demolishing of houses and the “cleaning” of the areas under curfew are part of the governmental plan to destroy the areas.
The delegation concludes that the deliberate and unjustified destruction of houses of civilians form a violation of Article 8 of the ECHR and Article 1 Protocol 1 to the ECHR and Article 35 and 57 of the Turkish Constitution. Right to EducationArticle 2 of the First Protocol of 20 March 1952 to the European Convention on Human Rights states as follows:
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”.
The wider meaning of education has been recognized in Article 1(a) of UNESCO's 1974 ‘Recommendation concerning Education’. The article states that education implies “the entire process of social life by means of which individuals and social groups learn to develop consciously within, and for the benefit of, the national and international communities, the whole of their personal capabilities, attitudes, aptitudes and knowledge.
The delegation notes that the European Court of Human Rights has defined education in its case law in a narrow sense as "teaching or instructions... in particular to the transmission of knowledge and to intellectual development" and in a wider sense as "the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young.”(36)  Article 42 Turkish Constitution Right and Duty of EducationNo one shall be deprived of the right of education. The scope of the right to education shall be defined and regulated by law. Education shall be conducted along the lines of the principles and reforms of Atatürk, based on contemporary scientific and educational principles, under the supervision and control of the State. Educational institutions contravening these principles shall not be established.
The freedom of education does not relieve the individual from loyalty to the Constitution.
Primary education is compulsory for all citizens of both sexes and is free of charge in state schools.
The principles governing the functioning of private primary and secondary schools shall be regulated by law in keeping with the standards set for the state schools. 
In the curfew areas, schools and any other institutions and bodies of transmission of intellectual and spiritual knowledge and development are closed and thus the population is prevented from attending. In addition, even if they were open, the population in the curfew areas is often not allowed to leave their houses during daytime.
Thus, the delegation concludes that the implementation of the curfew forms the violation of the right to education, Article 2 of the First Protocol to the European Convention of Human Rights and of Article 42 of the Turkish Constitution. 3. Crimes as a Result of Violent Acts Committed by the Police or/and the Army  The listed violations may amount to the following crimes:
- Article 77 of the Turkish Penal Code: Offences against humanity
(1) Execution of any one of the following acts systematically under a plan against a sector of a community for political, philosophical, racial or religious reasons creates the legal consequence of offenses against humanity.
           a) Voluntary manslaughter
           b) To act with the intension of giving injury to another person
           c) Torturing, infliction of severe suffering, or forcing a person to live as a slave
           d) To restrict freedom
           f) Sexual harassment, child molestation
           (…)  The violations caused by the curfews are directed against the civilian and mainly Kurdish population in the east and south-east of Turkey for political reasons.
The concept of ‘systematic’ may be defined as thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources. There is no requirement that this policy must be adopted formally as the policy of a state. There must, however, be some kind of preconceived plan or policy.(37) However, it has been clarified that the existence of a policy or plan may be evidentially relevant, in that it may be useful in establishing that the attack was directed against a civilian population and was widespread or systematic, but that the existence of such a plan is not a separate legal element of the crime.(38)  The delegation submits that there is strong evidence that the Turkish authorities who order(ed) and implement(ed) the curfews may have committed offences against humanity pursuant to Article 77 of the Turkish Penal Code.
Further, the committed crimes amount to a collective punishment(39) against all inhabitants of the areas under curfew and the security zones. Civilians are to be protected under all circumstances.  The delegation concludes that further investigations must be conducted to hold those accountable for the crimes committed. V. Demands 
  • Immediate ceasefire from both sides.
  • Immediate stop of the curfews and free access of the population in the curfew areas to water, electricity and food.
  • Immediate stop of the use of heavy weapons in curfew areas where civilians can be injured or even killed.
  • Immediate access to medical and psychological treatment.
  • Immediate access to education.
  • Independent (international) investigations of all HR violations, including the violations committed against HR Defenders.
  • Unlimited prosecution of those accountable for international crimes and human rights violations committed under the pretext of the curfew.
  • Interim shelter and basic fundamental support and assistance for those who became homeless.
  • Immediate repair of demolished houses.
  • Free return for those who were displaced.
  • Allow international organizations such as the International Federation of Red Cross and Red - Crescent Societies and UNHCR to fulfil their mandate.

(1) See ‘Turkish Kurds go home to war-ravaged city of Diyarbakır as curfew lifted’, by Norma Costello, 19 March 2016, at
(2) See the fact sheet of the Human Rights Foundation of Turkey (TIHV) at
(3) Quoted by Seyhmus Cakan in the article ‘Clashes in southeast Turkey kill seven, new curfews declared’, 14 December 2015, at
(4) Ibid.
(5) See Reuters articles: ‘25 killed; Erdoǧan vows to annihilate Kurd militants’, 18 December 2015, at and ‘Erdoǧan vows to eliminate Islamic State and PKK’, 19 December 2015, at
(6) Article by Serkan Demirtaş ‘Turkey to make defense at ECHR over curfews in southeast’, 9 January 2016, at
(7) See for example the case of 16 year-old Rozem Cukur (Sarya), who was killed in January 2016 when she entered the street without knowing the curfew had been re-imposed. The delegation met with the mother of Sarya who said she been told about the death by the media.
(8) See the article: ‘Police intervention in Protests against Curfews’, 21 December 2015, at
(9) It is unclear whether she was stripped naked before being killed or after.
(10) See the Report of the Bar Association Diyarbakir (fn 9) at pp. 36-40.
(11) ECHR 054 (2016), dated 5 February 2016 at
(12) See Orhan Kamil Cengiz, ‘Curfew questions’, in: Today’s Zaman, 7 January 2016 at
(13) For example: Öncü vs Turkey, Application no. 4817, 21 January 2016.
(14) See
(15) See Press Release of the Constitutional Court, dated 29 January 2016, at
(16) See at
(17) See: and the report of the Bar Association Diyarbakir at pp. 6, 12-13 in: ‘Curfew in Cizre- A Survey report’ at
(18) See the report of the Free Women’s Congress, Report on the Conflict Process, Political Situation, and women in Kurdistan, dated 18 January 2016.
(19) See for example the announcement of the Governor in Şırnak on 4 September 2015, in ‘Curfew in Cizre- A Survey report’ by the Bar Association Diyarbakir, at p. 30,
(20) Calculated until the end of the delegation, i.e., 24 January 2016.
(21) Makaratzis v. Greece, judgment of the Grand Chamber of 20 December2004, § 56.
(22) In the case of armed fighters, state forces have the obligation to apply the necessity principle and may use lethal force only if it is proportional.
(23)vAccording to the information of TIHV Documentation Centre, from the first curfew on 16 August 2015 until 18 March 2016, at least 310 civilians have been killed, 29 of whom had been over the age of 60, with 72 children and 62 women, at
The total number of people killed is unknown. The Turkish state claims that over 600 ‘terrorists’ have been killed.
(24) Ibid.
(25) Girard v. France, requête no 22590/04 (in French) at
(26) See in detail at p. 6 of this report.
(27) The full statement can be found at
(28) See article in The Guardian:
(29) See article at
(30) See article at
(31) See article dated 9 February 2016 at
(32) See fact sheet of the Turkish Human Rights Foundation (TIHV), dated 6 February 2016, at
(33) See the articles “The destruction of Sur: is this historic district a target for gentrification?” at and ”Erdogan’s plan for the Kurds: Destroy, Rebuild Pacify” at
(34) See legal definition at
(35) See footnote 33 at p.22 of this report.
(36) Beiter, Klaus Dieter (2005). The Protection of the Right to Education by International Law. The Hague: Martinus Nijhoff. p. 19.
(37) Akayesu, (Trial Chamber), 2 September 1998, para. 580.
(38) Semanza, (Trial Chamber), 15 May 2003, para. 329.
(39) See Press Release of Amnesty International, dated 21 January 2016, at  Bericht als PDF