AYDIN v. TURKEYDISSENTING OPINION OF Mr. A.S. GÖZÜBÜYÜK

Doc ref: • ECHR ID:

Document date: March 7, 1996

Doc ref: • ECHR ID:

Document date: March 7, 1996

Cited paragraphs only

DISSENTING OPINION OF Mr. A.S. GÖZÜBÜYÜK

On 28 November 1994 the Commission unanimously declared the

present application admissible.

The Government subsequently reiterated their argument that

domestic remedies have not been exhausted in this case.

I feel it important to specify from the outset that two of the

complaints concern the lack of effective remedies and that the

applicant relies on Articles 6 and 13 of the Convention in this

respect.

I note on this point that a number of remedies under Turkish law

are available to applicants alleging that they have been tortured.

First, they can report the offence, thereby instituting criminal

proceedings against the alleged perpetrators. Secondly, they can sue

either the State before the administrative courts or the perpetrators

of the ill-treatment before the ordinary courts. As regards the

effectiveness of an action before the administrative courts, I refer,

inter alia, to my comments set out in my separate opinion in Case No.

21893/93, Akdivar and Others v. Turkey.

The applicant did not take any such steps, however. I stress

that the investigation commenced by the public prosecutor after the

applicant had reported the offence is still pending. Should this

result in a ruling of no case to answer, the applicant can challenge

that ruling before the President of the Assize Court. I should specify

here that irrespective of these proceedings which are currently

pending, the applicant can sue the State before the Administrative

Court.

If the applicant had applied to the administrative courts, they

could have ordered the authorities, on the basis of their objective

liability or on grounds of an administrative error, to compensate the

damage inflicted on the applicant while she was in policy custody.

For these reasons, I do not find that there has been a violation

of Articles 6 and 13 of the Convention.

As regards the complaint under Article 3 of the Convention, I am

of the opinion that in the light of the considerations which I have set

out above, the Commission cannot examine the merits of the application,

as domestic remedies have not been exhausted.

(Or. English)

Lexploria AI Legal Assistant