PARTLY DISSENTING OPINION OF MR. GÖZÜBÜYÜK

ON THE ISSUES UNDER ARTICLES 3, 6, 8 AND 13 OF THE CONVENTION

     On 9 January 1995 the Commission unanimously declared the present

application admissible.  As to whether domestic remedies had been

exhausted, the Commission considered in this case and on the basis of

information before it regarding the possibility of bringing an

administrative action, that the Government had failed to provide a

single example of compensation being awarded to villagers for damage

comparable to that allegedly suffered by the applicants.  As regards

the possibility of bringing criminal proceedings, the Commission found

that, given the circumstances of the case, a prosecution would have

been wholly ineffective.

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

complaints concern the alleged lack of effective remedies and that the

applicants rely on Articles 6 and 13 of the Convention to support their

submissions.

     Certain facts of the case have been elucidated by the

Commission's investigation.  In particular, the witness statements

obtained in the course of that investigation show that the difficulties

encountered by the judicial authorities in charge of this investigation

were largely due to the lack of evidence against the security forces.

     In view of these additional factors, which came to light when the

Commission investigated the case, I believe, for similar reasons to

those set out in my dissenting opinion (joined by Mr. Weitzel) in the

Akdivar and Others v. Turkey case (No. 21893/93, Commission Rep.

26.10.95) that there was an effective remedy which the applicants

failed to use, namely an administrative action and that, consequently,

the Government's application under Article 29 of the Convention should

have been granted.

     I feel it important to recall that the rule of exhaustion of

domestic remedies dispenses States from answering before an

international body for their acts before they have had an opportunity

to put matters right through their own legal system (Eur. Court H.R.,

De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12,

p. 29, para. 50) on condition, however, that such remedies are

effective and sufficient, i.e. capable of providing redress for the

applicants' complaints.

     As has been proved by the investigation of the case, the criminal

proceedings brought by the prosecution came to nothing owing to the

lack of probative evidence.  Having regard to the nature of the

complaints which centre mainly on the destruction of houses, allegedly

by the security forces, it is quite clear that in the absence of even

the slightest shred of evidence, the prosecution was bound to fail.

This is unsurprising, as the rules governing criminal responsibility

are inspired by the same principles in all the member States of the

Council of Europe.

     However, as shown by the ample documentation already submitted

by the Government on the examination of the Akdivar and Others v.

Turkey case (No. 21893/93, aforementioned), which will have to be

studied more attentively, and the numerous judgments of which I have

obtained copies, there was an effective remedy available to the

applicants which was sufficiently certain both in theory and in

practice.  This body of case-law shows that other Turkish citizens

faced with problems which were, ultimately, very similar to those faced

by the applicants (the destruction of houses and various items of

property) were able in a relatively short time to obtain satisfaction

in the form of financial compensation.

     The applicants did not take any such steps, however.

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     I should emphasise here that the situation would have been

entirely different if the applicants had chosen to bring an

administrative action.  The victim of an administrative act may in the

first instance complain of non-pecuniary or pecuniary damage by filing

a preliminary application with the authorities.  The authorities must

then reply within 60 days.  Should they fail to reply within that

period, the application is deemed to be dismissed.  The plaintiff can

then bring an administrative action by filing a simple application with

the Administrative Court.

     Applicants merely have to prove before the administrative courts

that they have suffered damage in order to obtain compensation; they

do not have to prove that the authorities have made an administrative

error.  Once the Administrative Court has established that the victim

has suffered loss, it determines the amount of compensation to be paid

to him or her.

     It should be recalled that the Council of State applies the

criterion of "objective liability of the authorities".  On the basis

of that criterion, which has been applied by the administrative courts

since 1965, the authorities are liable according to the principle that

the burden of difficulties facing a nation should be shared by all

citizens.  It is not necessary to prove fault on the part of the

Government's agents.  It is sufficient to prove that damage has

occurred as a result of the act complained of.  The fact that the act

in question has been committed by the authorities or by a third party

does not prevent compensation from being awarded.

     For example, where a vehicle was destroyed by shots fired by

fighter aircraft, the Council of State, in its "Mizgin Yilmaz

v/Ministry of Defence" judgment of 21.03.1995 (E. No. 1994/5656, K.

No. 1995/1262), found that "even if the authorities have not been

negligent, the plaintiff must be awarded compensation in accordance

with the principle that all citizens must share equally the burden of

any constraints arising from tasks assumed by the State in the public

interest and that such compensation is a necessary consequence of the

"social" nature of the State ... Semdinli District Court's finding of

damage and the expert report ordered by the Administrative Court show

that the amount of compensation sought by the applicant is reasonable".

     In a case in which the driver of a car was killed by police

officers when he refused to stop at a checkpoint, Diyarbakir

Administrative Court, in its "Sabriye Kara v/Ministry of the Interior"

judgment of 27 January 1994 (E. No. 1990/870 and K. No. 1994/31), held

that "the authorities had a duty to compensate the damage, whether or

not they were at fault or had acted negligently.  Moreover, there does

not have to be a causal link between the damage and the authorities'

acts.  Where the authorities cannot avoid the adverse consequences of

terrorist activities, they must pay the victims compensation in

accordance with the "social" responsibility assumed by the State, given

that such damage results from a *social risk`".

     The Administrative Court has delivered a plethora of decisions

to the effect that the authorities have "objective liability" (i.e. not

fault-based) and these show that there is established case-law in this

area.  I shall quote the following decisions as examples:

-    Decision of the Council of State of 6.6.1995 in the Osman Kaya

and Cemil Kaya v/Ministry of the Interior case: this concerned the

destruction of the plaintiffs' house, loft, stable and all moveable

property during fighting between the security forces and terrorists.

The Council of State upheld Diyarbakir Administrative Court's judgment

ordering the authorities to compensate the plaintiffs in accordance

with the theory of "social risk".  The Administrative Court held that

the concept of the authorities' liability should not be limited to an

administrative error or objective liability related to strict

conditions, but should also comprise the so-called "social risk"

principle.

-    Judgment of Diyarbakir Administrative Court of 10.12.1991 in the

Behiye Toprak v/Ministry of the Interior case; decision of the Council

of State of 13 October 1993 in the same case: the plaintiff's husband

was killed by terrorists while travelling in his minibus.  The

plaintiff complained of "loss of breadwinner" and claimed pecuniary and

non-pecuniary damages.  The Administrative Court found against the

State on the basis of the theory of social risk.  It held that the

authorities were obliged to compensate damage caused by third parties

which they were unable to prevent despite their duty to do so, even if

they were not responsible for that damage.  The Council of State upheld

that judgment.

-    Judgment of Diyarbakir Administrative Court of 28.04.1994 in the

Münire Temel v/Ministry of the Interior case: the plaintiff's son was

kidnapped and murdered by the PKK.  Diyarbakir Administrative Court

ordered the authorities to compensate the plaintiff for pecuniary and

non-pecuniary loss on grounds of their objective liability.  It held

that "all Turkish citizens have ... the right to a decent standard of

living ... and to material and spiritual prosperity...".  The Court

held that it would be contrary to the principle of equality if the

State were to compensate damage suffered as a result of public services

provided by its own bodies (agents), but remained indifferent to damage

suffered by its citizens. The Administrative Court delivered this

judgment after its preliminary ruling had been quashed by the Council

of State.  The preliminary ruling had granted the plaintiff

compensation for non-pecuniary damage but not for pecuniary damage.

-    Judgment of Diyarbakir Administrative Court of 8.3.1994 in the

Cüneyt Alphan v/Ministry of the Interior case: the plaintiff's house

was burnt down during fighting between terrorists and security forces.

The applicant claimed damages.  Diyarbakir Administrative Court held

that even where the authorities had not made an administrative error,

they had to pay the applicant compensation on grounds of their "strict

liability".

-    Judgment of Diyarbakir Administrative Court of 25 January 1994

in the Hüsna Kara and Others v/Ministry of the Interior case: the

plaintiff's husband was killed by unknown persons.  The applicant sued

the authorities for damages.  The Administrative Court ordered the

authorities to compensate the plaintiff on the basis of the theory of

social risk, holding that as the plaintiff had had no part in any

terrorist activity, her loss was not caused by her own negligence, but

by difficult circumstances facing society.

-    Judgment of Diyarbakir Administrative Court of 21 June 1994 in

the Guli Akkus v/Ministry of the Interior case: the plaintiff's

common-law husband was killed by security forces during an illegal

demonstration.  The Administrative Court ordered the authorities to

compensate the plaintiff's loss.  The Council of State quashed that

judgment on the ground that the applicant and her common-law husband

were not legally married.  The Administrative Court upheld its own

decision, however, and ordered the authorities to compensate the

plaintiff.  It held that the plaintiff and her common-law husband had

been living together as man and wife.  It held further that the

authorities should compensate damage caused by their agents, even if

that damage was caused by negligence.

                               *

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     The foregoing case-law shows that if the applicants had applied

to the administrative courts, they could have obtained an order against

the authorities for compensation of their pecuniary or non-pecuniary

loss on grounds of objective liability.  The administrative courts

would not have needed to establish that the soldiers had unlawfully and

negligently destroyed the houses in question.  They would merely have

had to establish the damage and to determine the amount of compensation

to be awarded.

     In this case, the Commission did not make any decision regarding

a possible violation of Article 1 of Protocol No. 1.  However, all the

allegations made by the applicants under Articles 3 and 8 of the

Convention could have been examined by the administrative courts if the

applicants had sued for non-pecuniary damage and, where applicable, for

pecuniary damage.  There is a long line of Turkish administrative case-

law to dispel any possible doubt on this point.

     I note here that the continuing activities of the security forces

did not in any way prevent the applicants from applying to the courts

for compensation.  Admittedly, the PKK  was very active in the area in

which the applicants' village was situated.  However, the applicants

went to Diyarbakir after the events in question.

     The applicants merely needed to consult a lawyer to learn of the

possibility of bringing an action for damages before the administrative

courts.

     I note also, in this respect, that it has not been established

before the Commission that the Administrative Court judges do not rule

impartially in cases in which actions of the security forces are

challenged.  Nor has it been proved that there is a general lack of

confidence in the remedies available under administrative law in the

region in question.

     The witness statements obtained by the Commission in the Akdviar

and Others case (No. 21893/93 aforementioned) also show that the

members of Diyarbakir Human Rights Association failed to inform the

applicants properly of the possibility of applying to the

administrative courts or misinformed them as to the appropriate

national authorities to which they should apply.  In any event, they

advised the applicants to lodge an application directly with the

Commission.  The real aim of the members of this association in lodging

several individual applications is to argue before the international

courts that domestic remedies are ineffective in an area which was

declared to be in a state of emergency and they do not advise the

applicants properly.

     Consequently, I believe I have shown that the applicants had an

effective remedy in Turkish law in that they could have submitted to

the administrative courts the complaints which they now raise before

the Commission.  Although the financial compensation which they stood

to gain flowed from the principle of the State's objective liability

for acts allegedly committed by the security forces, such compensation

cannot be paid until the administrative courts have established that

damage has been caused due to the State's failure to comply with its

duty to strike a fair balance between individual rights and the

legitimate rights of the general public.  Such a finding would have

been sufficient compensation for the non-pecuniary loss suffered by the

interested parties.

     For the reasons set out above, I do not find that there has been

a violation of Articles 6 and 13 of the Convention.

     As regards the complaints under Articles 3 and 8 of the

Convention, it is my opinion that in the light of the additional

evidence obtained during the investigation and on the basis of all the

considerations which I have set out here, the Commission cannot examine

the merits of the case, as domestic remedies have not been

exhausted.

                                                  (Or. French)