CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 29 janvier 2019

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He was represented before the Court by Mr Ramazan Demir, a lawyer practising in Istanbul. Mehmet Tunç had lodged the application on behalf of his brother Orhan   Tunç. Following the death of Mehmet Tunç and his brother Orhan   Tunç in February 2016, their father, Mr Ahmet Tunç, and the wife of Mr   Mehmet Tunç, Ms Zeynep Tunç, expressed their intention to pursue application no. 4133/16 and submitted an application form. 2.     On 11 February 2016 twenty individuals, including Orhan Tunç, lodged a separate application with the Court ( Koç and Others v. Turkey , no.   8536/16). That application, in so far as it was lodged by Orhan   Tunç, mainly concerned the same events as those forming the subject matter of application no. 4133/16. Following Orhan Tunç’s death, his father Mr   Ahmet Tunç and partner Ms Güler Yerbasan expressed their intention to pursue application no. 8536/16 and submitted an application form. For practical reasons, the complaints brought in that application by Mr   Ahmet   Tunç and Ms Güler Yerbasan were subsequently registered as a separate application (no. 31542/16). 3.     Mr Ahmet Tunç, Ms Zeynep Tunç and Ms Güler Yerbasan, who will be referred to as “the applicants” in the present applications, are Turkish nationals who were born in 1943, 1980 and 1999 respectively and live in Cizre. They were represented before the Court by Mr Ramazan Demir (principal representative), a lawyer practising in Istanbul. 4.     The Turkish Government (“the Government”) were represented by their Agent. 5.     A hearing took place in public in the Human Rights Building, Strasbourg, on 13 November 2018 (Rule 59 § 3).   There appeared before the Court:   (a)     for the Government   Mr Erdoğan İşcan ,         Agent, Mr Hacı Ali Açikgül , Mr Stefan Talmon ,         Counsel, Mr Nuri Uzun , Mr Öner Aydin , Mr Gökhan Dursun , Mr Erkan Çapar , Mr Ahmet Adanur , Mr Can Öztaş,           Advisers.   (b)     for the applicants   Mr Ramazan Demİr , Ms Benan Molu ,           Counsel, Ms Helen Duffy , Ms Senem Gürol , Mr Hüseyin Tül , Ms Nevroz Uysal ,         Advisers.   6.     The Court heard addresses by Mr Talmon, Mr Demir and Ms Molu. A.     Background to the events giving rise to the applications 7.     Following a period of relative calm – owing to the peace process initiated in late 2012 to find a lasting, peaceful solution to the “Kurdish question” – the security situation in south-east Turkey deteriorated in the summer of 2015 on account of the intensification of hostilities by illegal armed groups affiliated with the PKK (the Workers’ Party of Kurdistan). In addition to carrying out armed attacks, those armed groups resorted to other means to disturb social life and public order in the region, such as digging trenches, some of which were planted with explosives, and blocking the roads with barricades in certain neighbourhoods. In response, starting from August   2015, the Turkish authorities declared curfews in urban centres, including in the town of Cizre, where the events giving rise to the present applications took place. The curfews were imposed on the basis of section   11 (c) of the Provincial Administration Act (Law no. 5442), and their stated aim was to clear the trenches dug up and the explosives planted by members of the armed organisations, as well as to protect the civilians from violence. As indicated by the Council of Europe Commissioner for Human Rights in his memorandum of 2 December 2016 [1] , while those curfews were initially declared for shorter periods in relatively restricted areas, their length, scope and intensity increased quickly and considerably. 8.     According to a resolution adopted by the Parliamentary Assembly of the Council of Europe, 1.6 million people were affected by the curfews and at least 355,000 people were displaced [2] . For a detailed account of the events which took place during the curfews, see the comments submitted to the Court by the Commissioner for Human Rights [3] in his capacity as an intervener under Article 36 § 3 of the Convention in these cases, as well as the aforementioned memorandum of 2 December 2016. 9.     There are a total of thirty-six cases currently pending before the Court concerning alleged violations of human rights arising from these curfews. B.     The circumstances of the case 10.     The facts of the present case, as submitted by the parties, may be summarised as follows. 1.     The incident and the requests for interim measures lodged with the European Court of Human Rights and the Constitutional Court 11.     On 14 December 2015 a curfew was imposed in the town of Cizre, prohibiting the residents of the town from leaving their homes at any time of the day. The twenty-four ‑ hour curfew in Cizre continued until it was modified on 2   March 2016, on which date people were allowed to leave their homes between the hours of 5 a.m. and 7.30 p.m. Another adjustment on 28 March 2016 to the conditions of the curfew allowed people to leave their homes between 4.30 a.m. and 9.30 p.m., and a final adjustment on 5   June 2016 limited the curfew hours to between 11 p.m. and 2.30 a.m. 12.     On 18 January 2016 Orhan Tunç ­ – who was 21 years old at the time   – was allegedly shot by fire opened from armoured vehicles as he was on his way to visit his brother Mehmet Tunç’s house in Cizre. Although calls were made by a number of people, including the local member of parliament (MP), Mr Faysal Sarıyıldız, to the emergency services for an ambulance and the police headquarters were informed of the incident, no ambulance was sent to pick up Orhan Tunç, allegedly because of security concerns. The emergency services informed the callers that if they took Orhan Tunç to Dörtyol, it would be possible to pick him up from there. The distance between the suggested meeting place and Orhan Tunç’s location is disputed between the parties: while the applicants claim that the location was some one and a half kilometres away, the Government maintain that the relevant distance was only 400 metres. 13.     When attempts to arrange for his transfer to a hospital failed, on 19   January 2016 Orhan Tunç’s brother Mehmet Tunç lodged an application with the Court and requested it to indicate to the Turkish Government, under Rule 39 of the Rules of Court, that they should ensure his brother Orhan Tunç’s immediate access to a hospital (application no. 4133/16). 14.     The same day the Court acceded to the request and indicated to the Turkish Government that they should take all measures within their power to protect Orhan Tunç’s life and physical integrity. On 20 January 2016, when they received information from the applicants that Orhan Tunç had still not been taken to hospital, the Court requested further information from the Government about the steps taken by the national authorities for the implementation of the interim measure indicated the previous day. 15.     On 3 February 2016 the applicants’ legal representative informed the Court that Orhan Tunç had still not been taken to hospital and had taken refuge in the basement of a house in Ömer Hayyam Street in Cizre. The representative alleged that the authorities were not taking any steps to help Orhan Tunç or any other injured persons who had also taken refuge in the same basement, other than sending ambulances to locations some 400-500 metres away from the building and inviting the injured persons to walk to those ambulances. 16.     On 9 and 10 February 2016 lawyers representing a total of thirty-one individuals, including Orhan Tunç, applied to the Constitutional Court of Turkey and claimed that those persons had been injured and were waiting for medical assistance in the basements of three buildings in Cizre and that the buildings in question were under attack by the security forces (application no. 2016/2602). They requested an interim measure from that court to ensure the thirty-one persons’ immediate access to medical facilities. The lawyers argued that the persons in question 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 the ambulances sent had been stopped by police officers. The lawyers argued that the denial of medical assistance to these persons amounted to a violation of their right to life. 17.     Upon receipt of the applications, the Constitutional Court requested information from the Şırnak governor’s office in respect of the applicants’ allegations. In its response dated 10 February 2016, the Şırnak governor’s office stated that it had thus far not been possible to reach the injured persons on account of their failure to give clear information as to their location and other contact details, and also because of the ongoing armed clashes between the security forces and the members of the terrorist organisation in the area. The governor’s office stated that efforts were nevertheless under way to reach the persons in question. It also stressed that many of these allegedly wounded people often changed addresses and that if they were able to move from one building to another, they could also reach the medical facilities nearby. 18.     In their responses dated 10 and 11 February 2016, the lawyers stated that the addresses of the wounded individuals had been clearly indicated in the application forms and submitted the relevant information once again. They also asserted that the individuals in question had been forced to change location to save their own lives as they were fleeing from the security forces’ attacks. 19.     On 11 February 2016 at 9.58 p.m. the Şırnak governor’s office informed the Constitutional Court that paramedics dispatched to the indicated addresses had not been able to find the wounded individuals despite numerous attempts. However, in some of the buildings, dead bodies of members of the terrorist organisation had been found and the investigating authorities had been informed accordingly. 20.     On 11 February 2016 twenty of the thirty-one individuals concerned, including Orhan Tunç – as explained in paragraph 2 above – lodged an application with the Court ( Koç and Others v. Turkey , no. 8536/16; the application lodged by Orhan Tunç was subsequently disjoined from that application and registered under application no. 31542/16) [4] . They submitted that they had all been injured and were trapped in the basement of a building in Cizre and argued that the Constitutional Court was not examining their application speedily. They requested the Court to indicate to the respondent Government, under Rule 39, that they should ensure their immediate access to a hospital. 21.     On 12 February 2016 the Court decided to adjourn the examination of the request under Rule 39 pending receipt of information from the respondent Government. Accordingly, it requested the Government, under Rule   54   §   2   (a), to submit information by 15 February 2016 on a number of issues including, in so far as relevant to the circumstances of the present applications, the following: “... Your Government are also reminded that the interim measure indicated on 19   January 2016 in relation to Mr Orhan Tunç ( Tunç v. Turkey , no. 4133/16), who is also one of the applicants in the present case, is still in force and you are therefore urged to comply with that measure by taking all steps within your powers to protect his life and physical integrity. ... Your Government are also requested to inform the Court, by the same date, about the steps which will be taken by your authorities after receipt of this letter in order to comply with the interim measure indicated in the case of Tunç v. Turkey , no. 4133/16 ...” 22.     Also on the same day, after the Court had requested the above ‑ mentioned information from the Government, the Constitutional   Court rejected the request for interim measures made by the thirty-one persons concerned, referring to the latest information received from the Şırnak governor’s office as noted in paragraph 19 above. The Constitutional Court nevertheless held that, regardless of the identities of the injured persons, the public authorities had to continue to take the necessary measures to determine their locations and to ensure their access to healthcare services as part of their obligation to protect the right to life. According to the latest information in the case file, an examination on the merits of this case is still pending before the Constitutional Court. 23.     On 15 February 2016 the Government informed the Court that “[i]n the course of a search carried out in the building [at 16 Akdeniz Street in Cizre] by the security forces, a body [with] a driving licence drawn up in the name of Orhan Tunç was found, along with the bodies of eight other persons. It was understood as a result of the examination of the body performed by the Cizre chief public prosecutor’s office that the body belonged to Orhan Tunç”. According to the information subsequently received from the Government, in the room where Orhan Tunç’s body was located, the incident-scene investigation team had found, amongst other things, two Kalashnikov AK-47 rifles, ten Kalashnikov magazines (two of them deformed), twelve spent cartridges discharged from Kalashnikov rifles, a 9 mm-calibre gun, eight bullet cases, a hand grenade and two assault vests. More weapons and ammunition were recovered in other parts of the building. Moreover, according to a sketch map prepared by the national authorities, the street in which the building was located had been blocked by ditches and barricades and planted with mined devices. 24.     Before the Court forwarded the above-mentioned information provided by the Government to the applicants’ legal representatives, one of the representatives, Mr Demir, informed the Court on 16 February 2016 that he was unable to establish contact with Orhan Tunç and his brother Mehmet   Tunç. He further informed the Court that the bodies of over 100   people had been found in the area where Orhan Tunç and his brother Mehmet Tunç had last been awaiting assistance. 25.     In a subsequent letter dated 22 February 2016 the applicants’ legal representative Mr Demir informed the Court that he and Orhan Tunç’s family had learned of the death of Orhan Tunç when the Court had forwarded to them the information provided by the Government on 15   February 2016, and alleged that the authorities had not informed the family directly. Mr Demir further informed the Court that more than 170   people who had been injured and who – like Orhan Tunç – had taken refuge in the basements of a number of buildings in Cizre had been killed when the security forces had shelled those buildings. Their families were in the process of trying to find and identify the bodies but it was proving difficult because the buildings in question had all been demolished and the rubble from the buildings, together with some of the bodies, had been dumped in a landfill. Some of the bodies had also been burned beyond recognition. The legal representative submitted photographs to the Court in which a number of body parts could be seen in the rubble dumped at a landfill site, and alleged that the authorities were demolishing the buildings in order to destroy evidence implicating the security forces in the killings. 26.     On 24 February 2016 the Court decided, in the light of the information provided by the parties regarding the death of Orhan Tunç, to lift the interim measure previously indicated in the case no. 4133/16 on 19   January 2016 under Rule 39. 27.     The authorities did not allow the body of Orhan Tunç to be buried in Cizre and he therefore had to be buried in Şırnak on 1 March 2016. 2.     The investigation into the death of Orhan Tunç and the ensuing legal proceedings (a)     Investigation 28.     On 11 February 2016 a post mortem examination was carried out on Orhan Tunç’s body at the Cizre State Hospital. The examination revealed a bullet in the pubic area of the body, but the exact cause of death could not be established. The body was therefore sent to the Silopi Forensic Medicine Institute for a full autopsy. The bullet recovered from Orhan Tunç’s body was sent for a ballistic examination, and his clothes were secured for further forensic examination as necessary. 29.     On the same day, swab samples were taken from the inside and outside of Orhan Tunç’s hands, as well as from his neck, in order to detect any gunshot residue. 30.     On 12 February 2016 an autopsy was conducted on Orhan Tunç’s body. During the autopsy, three deformed bullets, one bullet with a torn jacket and a more intact conical-shaped bullet were extracted from the body. A large number of wounds, caused by penetrating objects, were observed on the victim’s neck, back, gluteus, arms, legs, chest, abdomen, and the right shoulder and clavicular area. The cause of death was identified as fractures and internal bleeding due to gunshot wounds. For an unknown reason, the body was classified as “unidentified” in the autopsy report, and it was indicated that the body would be buried by the authorities if not identified within fifteen days. Following the autopsy, Orhan Tunç’s body was taken to the cold storage space at the Harbur border gate. It appears that Orhan   Tunç’s family eventually managed to locate his body in Harbur on 29   February 2016 through their own efforts, and on the same day the body was handed over to them for burial. 31.     In the meantime, on 21 February 2016 the Cizre public prosecutor’s office sent a letter to the Cizre District Security Directorate, indicating in detail the steps to be taken within the scope of the investigation into the death of Orhan Tunç, including the conduct of a crime-scene investigation, the examination of all records from cameras located in the vicinity of the crime scene, the questioning of the victim’s next-of-kin, and the identification and questioning of the perpetrators and any witnesses. 32.     On 20 March 2016 an examination was performed by the Criminal   Department of the Diyarbakır Security Directorate on the bullets extracted from Orhan Tunç’s body. The report noted that the bullets had been fired from a rifle, but did not provide any further specifics. 33.     On 23 March 2016 the Diyarbakır Criminal Police Laboratory issued a forensic report indicating that gunpowder residue had been found on the swab samples taken from Orhan Tunç’s hands and cheeks, which suggested that he had either fired a gun or had been in close proximity to a gun at the time it was fired, or that he had been in close contact with an object or surface that contained gunpowder residue. It was noted in the same report that gunshot residue had also been observed around the holes in his clothes, yet it had not been possible to determine the distance from which the shots had been fired. 34.     On 21 May 2016 the Cizre public prosecutor questioned an anonymous witness about the activities of the illegal armed groups in Cizre during the curfews, and asked him to take part in a photo identification procedure. As part of the procedure, photos of various individuals who were believed to be members of the armed groups were shown to him randomly. When Orhan   Tunç’s photo was shown, the anonymous witness recognised him as the brother of Mehmet Tunç. He stated that he had seen Orhan Tunç walking around the barricades in the Nur neighbourhood in Cizre, and claimed that he had participated in the building of ditches and barricades. 35.     On 1 June 2016 the Cizre public prosecutor took a statement from the applicant Ahmet Tunç, Orhan Tunç’s father. The applicant noted in his statement that following the imposition of the curfew on 14   December   2015, he and his family had continued to stay in their house in the Nur neighbourhood for the first eighteen days. However, following the intensification of the clashes, they had all left the house except for his wife Esmer Tunç, who had been ill, and his son Orhan Tunç, who did not want to leave before finding his brother Mehmet Tunç. Ahmet   Tunç stated that he had lost contact with his son after leaving the house. Upon being informed of the injury to Orhan Tunç, they had instructed their lawyers to lodge a request for an interim measure with the Court to ensure his access to treatment. Although their request had been granted by the Court, the State authorities had not taken any action to remove Orhan Tunç from the area. He added that he did not know how and where his son had died, but that he wanted the identification and punishment of all those responsible. 36.     On 27 June 2016 a search was carried out by the police in the vicinity of the building where Orhan Tunç’s body had been found, in order to identify any cameras from which video footage of events leading to his death could be obtained. It appears, however, that the search did not yield any results. (b)     The Şırnak public prosecutor’s decision not to prosecute 37.     On 17 February 2017 the Cizre public prosecutor issued a decision of lack of jurisdiction ( görevsizlik kararı ) and transmitted the investigation file to the Şırnak public prosecutor’s office. The Cizre public prosecutor nevertheless stated in the decision that the evidence in the investigation file, including the statements of the anonymous witness and the weapons and ammunition recovered from the building in which Orhan Tunç’s body had been found, showed that he had been a member of the PKK and had engaged in armed clashes with the security forces in Cizre during the curfew. He had accordingly been killed by the security forces, who had acted in self-defence after coming under attack from the applicant and other members of the terrorist organisation. The public prosecutor emphasised that many soldiers, police officers and civilians had fallen victim to the attacks by the terrorist organisation, and that the security forces had responded in accordance with the lawful commands they had received from the competent authorities. There was no evidence to suggest that the security forces had responded disproportionately or had otherwise gone beyond the bounds of legitimate self ‑ defence. The public prosecutor therefore concluded that the use of force against Orhan Tunç had complied with the law and that the perpetrators could not be prosecuted. 38.     On 8 March 2017 the Şırnak public prosecutor found it established, on the basis of the evidence and witness statements in the investigation file, that the deceased suspect Orhan Tunç had been a member of the PKK/KCK terrorist organisation, that he had been involved in armed clashes with the security forces in the context of his terrorist activities, and that he had committed the offence of destroying the unity of the State, with which he had been charged. However, having regard to the fact that Orhan Tunç had been found dead following the fight he had entered into with the security forces, the public prosecutor delivered a decision not to prosecute in respect of his death. The public prosecutor also ordered the destruction of his belongings that had been registered as evidence. 39.     On 7 April 2017 the applicants’ representative objected to that decision, arguing that it was in breach of the right to life safeguarded under Article 2 of the Convention. He mainly made the following arguments. (i)     Contrary to the case-law of the Court, which required States to take all feasible precautions in choosing the means and methods to be employed in a security operation in order to avoid or minimise the incidental loss of civilian life, no such precautions had been taken by the Turkish authorities in the areas under curfew, and at least 300 people had accordingly lost their lives. (ii)     Like many other civilians in Cizre, Orhan Tunç had been seriously injured on account of fire opened by the security forces; he had subsequently been denied medical assistance by the State authorities despite an interim measure indicated by the Court to that effect and had eventually been killed by those authorities in a basement, along with tens of other people. (iii)     Under the case-law of the Court, if the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual, a failure to take the necessary measures to avoid that risk would amount to a violation of the right to life. The emergency services had been contacted numerous times to dispatch medical assistance to Orhan Tunç and others in need, yet instead of providing the necessary assistance, the authorities had instead killed all those people. (iv)     The search and crime-scene investigation at the building where Orhan Tunç was found dead had been carried out by the security forces implicated in the events, and not by an independent and impartial public prosecutor, which tainted the effectiveness of the investigation from the outset. (v)     Not a single police officer or soldier who had taken part in the operation had been questioned by the public prosecutor. (vi)     Contrary to the conclusions drawn by the public prosecutor, the anonymous witness had not claimed that Orhan Tunç had been a member of the terrorist organisation or had engaged in armed clashes with the security forces. (vii)     No photographs had been taken of the bodies and weapons found at the incident scene; no fingerprint examination had been conducted on the weapons allegedly recovered from the building; and no forensic examination had been carried out to identify the weapons which had caused the extensive injuries observed on the victim’s body. (viii)     Footage taken by police and military vehicles and drones at the time of the operation, or by private cameras, had not been included in the investigation file. (ix)     The situation of Orhan Tunç had been under close scrutiny by the Court, by reason of the interim measure applied on 19 January 2016. Despite that fact, the public prosecutor had failed to conduct an effective investigation to establish the circumstances in which Orhan Tunç had lost his life and those responsible for his death. (x)     The radio transmission transcripts of the soldiers conducting the operation had not been included in the investigation file. (xi)     The decision of the public prosecutor had effectively amounted to impunity for those who had been involved in the security operations. 40.     On 17 July 2017 the Şırnak Magistrates’ Court dismissed the objection against the Şırnak public prosecutor’s decision. The magistrates’ court stressed at the outset that in the event of disturbance of public order through the escalation of acts of violence, the State authorities were under an obligation to take certain measures to restore public order. The court acknowledged that a strict test of lawfulness, legitimate aim and proportionality had to be performed when examining whether a particular act amounted to a violation of Article 2 of the Convention and Article 17 of the Turkish Constitution. In the magistrates’ court’s opinion, the acts of the security forces at issue had posed no problem in terms of lawfulness, in view of the legal provisions in Turkish law regulating the use of force and firearms by security forces, as well as the provisions concerning the right to self-defence. Moreover, having regard to the extent of the terrorist attacks in Şırnak and its districts at the material time, which had led to the death of many members of the security forces, it was clear that the use of force in the circumstances had pursued a legitimate aim. The magistrates’ court further observed that the body of Orhan Tunç had been found in a building used by members of the terrorist organisation along with the bodies of eight other persons who were considered to be terrorists and who were armed. According to the court, that fact, when viewed against the background of the other evidence available in the case file, showed that Orhan Tunç had died during the course of a security operation conducted against terrorists. These considerations were sufficient for the magistrates’ court to establish that the force used in the circumstances, which had resulted in Orhan Tunç’s death, had been proportionate. The magistrates’ court added that the investigating authorities had taken the necessary steps as soon as they had been informed of the death of Orhan Tunç, such as the collection of evidence and the conduct of an autopsy and other forensic examinations. They had therefore fulfilled their investigative obligations. 41.     On 9 May 2018 the applicants submitted a fresh application to the Şırnak Magistrates’ Court for the quashing of the Şırnak public prosecutor’s decision not to prosecute and the conduct of an effective investigation into the death of Orhan Tunç. That application was also dismissed by the Şırnak   Magistrates’ Court on 1   August   2018 for the same reasons as in its previous decision dated 17 July 2017. (c)     Individual application lodged with the Turkish Constitutional Court (application no. 2018/361) 42.     In the meantime, on 18 December 2017 the applicant Ahmet Tunç, along with his wife Esmer Tunç and his son Murat Tunç, lodged an individual application with the Constitutional Court, arguing that the decision not to prosecute delivered on 8 March 2017 in respect of Orhan   Tunç’s death had amounted to a violation of the right to life and the obligation to conduct an effective investigation, as well as a violation of the right to a reasoned judgment (application no. 2018/361). The applicants, who also requested priority treatment, mainly made the following arguments before the Constitutional Court, which largely coincided with the observations that they had already filed with the Strasbourg Court on 4   October   2017 (see paragraph 91 below). (i)     The information made available to them in relation to the operation plan did not give any indication as to the types and range of weapons used, when and how they had been used, and how the target buildings had been selected. This information had been of vital importance, given that every single person in the attacked buildings had been killed. (ii)     It was clear from the Court’s case-law that in a situation which involved a real and immediate risk to life, such as that caused by the military operation in question, one of the primary tasks of the competent authorities was to set up a clear distribution of lines of responsibility and communication. However, since the relevant information had not been shared with them, and no effective investigation had been conducted to shed light on such matters, it was unclear when and how any decisions that would serve to protect Orhan Tunç’s life had been taken and communicated to the relevant authorities, and who had taken those decisions. (iii)     Despite their obligation to take all necessary measures to minimise the risk to life during the open-ended curfews, including measures to keep wounded persons alive, the State authorities had failed to protect Orhan   Tunç’s right to life by providing him with the requisite medical assistance despite repeated requests, including by the Court. When requesting Orhan Tunç to walk to a “safe point” to access an ambulance, the authorities had not considered whether his condition allowed him to walk or whether he risked being shot at by the security forces or members of the armed organisation while doing so. The State authorities had thus obliged him to put his life at further risk without offering any protection. (iv)     There was no information as to whether there had been any negotiations to get Orhan Tunç out of the basement alive or to ensure his peaceful surrender. (v)     Under the Convention, it fell to the Government to prove that the lethal force used against Orhan Tunç had been absolutely necessary and strictly proportionate to the achievement of the aims set out in the various sub-paragraphs of Article 2 § 2. However, the failure of the investigating authorities to question the commander, or any other members, of the security forces who had conducted, or otherwise taken part in, the operation had removed any prospects of obtaining satisfactory information concerning the details of the operation and the nature of the force used. (vi)     The public prosecutor had concluded on the basis of incomplete and/or erroneous evidence, including an anonymous witness statement obtained under duress, that Orhan Tunç had been a terrorist who had taken part in the attacks against the security forces. However, although it was common knowledge that the operation had been recorded and followed from the air by drones and on the ground by armoured vehicles, there was no evidence in the investigation file to show that the security forces had come under fire from the alleged terrorists, including Orhan Tunç. The applicants argued that in the light of the foregoing, it had not been proven that the lethal force used against Orhan Tunç had been absolutely necessary. Even assuming that Orhan Tunç had entered into a clash with the security forces as alleged, the question remained whether the force used against him had been strictly proportionate in the circumstances. The applicants argued that bearing in mind the state of the bodies, and of the building from which they had been recovered, it was impossible to accept that the lethal force used had in any way been proportionate to the threat allegedly perceived from the victims. 43.     In addition to their aforementioned allegations regarding the planning and conduct of the security operation and the disproportionate nature of the force used by the security forces, none of which had been duly investigated by the public prosecutor, the applicants also noted a number of technical shortcomings in the investigation. Reiterating, once again, the arguments that they had brought before the Strasbourg Court on 4   October   2017, the applicants made the following assertions in particular. (i)     The public prosecutor had not gone to the location of the incident to secure the scene and collect evidence; therefore, the initial and critical phases of the investigation, which effectively determined the outcome of the investigation, had been carried out by the security forces, who had themselves been implicated in the events. (ii)     The failure to duly secure the incident scene had allowed third parties to access the scene, which had not only potentially led to the loss of important evidence, but had also created the risk of evidence being planted. (iii)     The photographic and video material allegedly obtained from the incident scene had not been included in the investigation file, nor had a sketch map been prepared to show the location of the bodies or of the weapons allegedly found in the building. (iv)     No fingerprint examination had been conducted on the weapons allegedly recovered from the building. (v)     The fact that gunpowder residue had allegedly been found on Orhan   Tunç’s clothes had been taken as evidence to show that he had engaged in an exchange of fire with the security forces, whereas there could have been another explanation for the presence of such residue, such as contamination. (vi)     No effort had been made to identify the weapons with which Orhan   Tunç had been killed. (vii)     Not a single police officer or soldier who had taken part in the operation had been questioned by the public prosecutor. (viii)     No permission had been given for lawyers or independent experts to be present during the autopsy. (ix)     The building from which Orhan Tunç’s body had allegedly been recovered had been demolished shortly after the incidents. (x)     The investigation into the death of Orhan Tunç had resulted in a decision not to prosecute him as a terrorist on account of his death, but no decision had been taken on the criminal responsibility of the security forces responsible for his death. (xi)     Orhan Tunç’s clothes and belongings had been destroyed prior to the finalisation of their objection to the public prosecutor’s decision not to prosecute. (xii)     The judicial authorities had exercised their discretion more in order to minimise the consequences of an extremely serious unlawful act than to show that such acts could in no way be tolerated. 44.     The applicants lastly alleged before the Constitutional Court that their right to a fair trial had been violated on account of the failure of the Şırnak public prosecutor and the Şırnak Magistrates’ Court to deliver duly reasoned decisions supported by proper evidence. 45.     According to information obtained from the parties, application no.   2018/361 is still pending before the Constitutional Court for an examination on the merits. 3.     Examination of the cases pending before the Constitutional Court in respect of the right to life of Orhan Tunç 46.     In their submissions dated 23 October 2018, the Government provided a detailed account of the actions taken by the Constitutional Court in respect of the two applications currently pending before it in relation to the right to life of Orhan Tunç (applications   nos.   2016/2602 and 2018/361). (a)     Application no. 2016/2602 47.     According to information provided by the Government, which was not contested by the applicants, the following steps were taken by the Constitutional Court after the rejection of the request for interim measures on 12   February 2016 (see paragraph 22 above). -   On 18 February 2016 the Constitutional Court decided to examine the admissibility and merits of applications nos. 2016/2602,   2016/2603 and 2016/2629 jointly under application no. 2016/2602, given their similar factual and legal background. -   On 19 February 2016 the Cizre public prosecutor’s office submitted information to the Constitutional Court in respect of the investigation concerning the death of Orhan Tunç. -   On 23 February 2016 the Constitutional Court requested the Ministry of Justice to submit observations on the application. -   On 23 February 2016 the decision to reject the request for interim measures was served on the lawyers. -   On 24 February and 13 March 2016 the Şırnak governor’s office submitted follow-up information in connection with the requests for interim measures. -   On 5 May 2016 the Ministry of Justice submitted its observations in respect of the application. The following day,   the Constitutional Court sent the observations of the Ministry of Justice to the applicants’ lawyers and requested them to submit their observations in reply. -   On 9 November 2017 the Constitutional Court sent a letter to the lawyers requesting them to complete the case file. It was noted in the letter that at the time of the lodging of the application in February 2016, the lawyers had not provided all the necessary information and documents, such as the applicants’ identity information, powers of attorney and court fees, in view of the physical difficulties encountered at the material time, and that they had undertaken to complete the case file in due course. Given the nature of the allegations, the Constitutional Court had proceeded with the examination of the request for interim measure at the time despite the incomplete state of the case file. The Constitutional Court noted, however, that the necessary information and documents had still not been submitted and granted the lawyers fifteen days, from the receipt of the letter, to complete the case file. -   On 23 and 27 November 2017 the lawyers requested additional time from the Constitutional Court for the submission of the requested information and documents, having regard to the difficulties encountered in obtaining powers of attorney from the next-of-kin of the applicants, who had all lost their lives, and to the need to compile updated information regarding the state of the respective criminal investigations. The Constitutional Court granted the lawyers an additional thirty days. -   On 26 and 29 December 2017 the lawyers submitted the necessary information and documents to complete the case file. -   On 12 February 2018 the Constitutional Court requested the Ministry   of   Justice to submit observations on the application. -   On 16 April 2018 the Ministry of Justice submitted its observations, which were added to the case file. -   On 15 May 2018 the lawyers submitted information to the Constitutional Court on recent developments. The case has since been under review before the Section Rapporteurs’ Office ( Bölümler   Raportörlüğü ) at the Constitutional Court. (b)     Application no. 2018/361 48.     According to information provided by the Government, which was not contested by the applicants, the following steps were taken by the Constitutional Court after the lodging of the individual application on 18   December 2017. -   On 22 January 2018 an acknowledgment of receipt of the application was sent to the applicants. -   The Commission Rapporteurs’ Office ( Komisyonlar Raportörlüğü ) reviewed the application and decided that it should be examined by the Section Rapporteurs’ Office. The application was thus referred to the latter office on 4   September 2018, where it is still pending examination. 4.     Application to the administrative courts 49.     According to information provided by the Government at the hearing, which was not contested by the applicants, on 28 February 2018 the applicant Ahmet Tunç instituted an action for a full remedy ( tam yargı davası ) before the Mardin Administrative Court, claiming compensation for the pecuniary and non-pecuniary damage resulting from, inter alia , the failure of the authorities to provide medical services to his son Orhan Tunç. It appears that the case is still pending before the Mardin Administrative Court. 5.     Arrest and detention of the applicants’ legal representative in application no. 4133/16 50.     In the early hours of 16 March 2016 the house of the applicants’ legal representative Mr   Ramazan Demir in Istanbul was raided by officers from the counter-terrorism department of the police and he was taken into custody. 51.     In the evening of 17 March 2016 a prosecutor wanted to question him at the police station. Mr Demir refused to answer the prosecutor’s questions, stating that in accordance with the procedure concerning the questioning of lawyers, he could only be questioned at a courthouse and not at a police station. 52.     During the questioning the prosecutor asked Mr Demir questions such as whether he had ever been imprisoned for a PKK-related offence; whether he had any relatives who had links to the PKK or who were in prison for PKK-related activities; whether he had visited any relatives or any of his clients in prison; whether he was a member of any association; whether he used social media; and details of all of his telephone lines. The public prosecutor also made the following notes: “... it is considered that [Mr Demir] will be meeting and conducting interviews with a person whom he named as ‘Delegasyon’ as part of his activities to weaken our country internally and in the international arena by making allegations of ... violations of human rights”. 53.     After his questioning Mr Demir continued to be detained at the police station until he was brought before a judge on 19 March 2016 and his release on bail was ordered by the judge. When questioned by the judge, Mr   Demir and the lawyers representing him referred to the above-mentioned accusations by t