AYM's Cizre basements decision: There were no violation, lethal force was necessary!

2022-11-04 18:20:42


	 

	NEWS CENTER - Rejecting the application for those who lost their lives during the curfew in Cizre, the Constitutional Court claimed that the right to life was not violated, the use of lethal force was necessary and it was impossible to identify the officers.

	The Constitutional Court (AYM) found the application made against some people who were killed in the basements of the houses in which they were trapped during the curfew declared on December 14, 2015 in the Cizre,  district of Şırnak, "inadmissible". 

	The reasoned decision was announced regarding the applications regarding the "violation of the right to personal liberty and security", "violation of the individual application rights" and "the prohibition of ill-treatment, the right to respect for private and family life, and the violation of the freedom of religion and conscience". In the reasoned decision of the Constitutional Court, it was claimed that there was "no violation" in procedure and principle.

	In the decision, Cizre People's Council Co-chairs Mehmet Tunç and Asya Yüksel and Yasemin Çıkmaz, Serdar Özbek, B.K. and M.B. were found dead on February 9, 2016, in the building No. 7 on Niran Street in the Cudi neighborhood, during the period of the ban. 

	The decision of non prosecution was reminded in the decision regarding the applicants. The application stating that the right to life was violated due to not to provide the necessary medical treatment to M.B., B.K., Yasemin Çıkmaz, Serdar Özbek, Asya Yüksel and Mehmet Tunç was found "inadmissible" in the "evaluation" part of the decision.

	REASON FOR 'LETHAL FORCE'

	In the decision, in which 6 people allegedly lost their lives in the clashes, it was pointed out that the police and soldiers acted to "eliminate the danger" and stated that "(...) the public authority cannot be withdrawn in an event where there is an armed uprising and an attempt to occupy a part of the state's territory; It cannot be accepted that there is an obligation to abstain from action. On the contrary, such a situation requires taking action with all available means and taking action to legally suppress the current armed uprising, since an opposite attitude may mean a violation of the state's positive obligation to protect the fundamental rights and freedoms of its citizens. It cannot be said that the use of lethal force is not an appropriate way to prevent the grave terrorist incidents that are the subject of the concrete application and to suppress the uprising.

	'IT WAS NECESSARY TO USE LETHAL FORCE'

	In the decision, which included the opinion of the Ministry, it was claimed that necessary measures were taken to comply with the principle of "proportionality". It was also pointed out that the persons subject to the application had engaged in an armed conflict, and it was claimed that there was no "civilian loss of life". In the decision, which stated that "care" was taken for the loss of life, it was noted that "Under the described conditions of the concrete incident, it was not possible for the security forces to achieve their legitimate aims of protecting their own and others' lives and suppressing an armed uprising with a milder limitation, and that it was absolutely necessary to use lethal force."

	CONSTITUTIONAL COURT OPINION: UTMOST ATTENTION WAS PAID

	It was stated that "the Constitutional Court has concluded that the collection of evidence regarding the remains was carried out with the utmost attention paid and diligence, given the extremely difficult and severe conditions surrounding the concrete incident."

	IT IS IMPOSSIBLE TO DETERMINE THE UNITS THAT USED FORCE!

	The decision also states whether the statements of the police and soldiers who participated in the clashes were taken and the statement said: "(...) The evidence gathered revealed the material truth in the circumstances of the incident and showed that the force used was absolutely necessary and proportional within the meaning of Article 17 of the Constitution. The dismissal of the officers was not considered as an obligatory and useful evidence-gathering process that must be fulfilled in terms of the effective investigation obligation and the aim to be achieved. Moreover, it is extremely important that the operational units that contribute to the continuous and unpredictable armed conflicts took place at different times due to the constant change in the course of the conflicts. It is also almost impossible to determine the possible deaths as a result of the force used by which unit officers." 

	In the decision, it was noted that "it should be decided that the right to life has not been violated in terms of procedural obligation" due to the aforementioned reasons.

	It was decided that the applications of Mehmet Tunç, Asya Yüksel, Serdar Özbek and Yasemin Çıkmaz were "lack of foundation", claiming that "there was no interference with the rights to liberty and security of person".

	"Prohibition of ill-treatment, violation of the right to respect for private and family life and freedom of religion and conscience" and "violation of the obligation to protect life due to not provide health care" were also found to be "unacceptable".