PARTLY DISSENTING OPINION OF MR. GÖZÜBÜYÜK

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

     On 19 October 1994 the Commission unanimously declared the

present application admissible.  As to whether domestic remedies have

been exhausted, the Commission considered that the applicant had told

the Mardin public prosecutor, on being brought before him in criminal

proceedings, that he had been ill-treated while in police custody.

     The respondent Government subsequently reiterated their argument

that domestic remedies had not been exhausted in this case and

requested the application of Article 29 of the Convention.

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

complaints concerns the lack of an effective remedy and that the

applicants rely on Articles 6 and 13 of the Convention in this respect.

     Certain facts of the case have been elucidated by the

Commission's investigation of the case.

     In particular, the crucial juncture in this application was when

the applicant made his statement to the public prosecutor.  This

statement, which the applicant signed unhesitatingly, contained no

allegation of ill-treatment.  Moreover, the very fact that a few days

after the applicant's release the public prosecutor made an order that

no proceedings be brought against him proves (a) that the applicant's

statement to the public prosecutor confirmed his statement to the

police and was not likely to constitute evidence to support a criminal

charge and (b) that the police were carrying out a routine

investigation against a background of terrorist violence.  Thus, given

the "anodyne" nature of the statement and the fact that there was

nothing unusual about the applicant's appearance and that he had,

moreover, signed the statement, the public prosecutor had no cause for

concern regarding the treatment which the applicant claims to have

suffered.

     I note on this point that an applicant alleging that he  has been

tortured has a number of remedies under Turkish law.  First, he can

report the offence, thereby instituting criminal proceedings against

the alleged perpetrators.  Secondly, he can sue the State or the

perpetrators of the ill-treatment for damages either before the

administrative courts or 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.  He can also bring a civil

action (application to join the criminal proceedings as a civil party)

against the alleged perpetrators (see, mutatis mutandis, Nos. 14116/89

and 14117/89, the aforementioned Sargin and Yagci v/Turkey case;

Nos. 15202-5/89, A. Gürdogan, K. Müstak, B. Müstak and A. Müstak

v/Turkey, Dec. 12.01.93, unpublished; No. 17128/90, Erdagöz v/Turkey,

Dec. 10.07.91, unpublished).  Finally, the applicant can complain of

the ill-treatment when he appears before the judicial authorities as

a defendant in criminal proceedings (see Nos. 16311/90, 16312/90 and

16313/90, N.H., G.H. and R.A. v/Turkey, Dec. 11.10.91, unpublished).

     The applicant did not take any such steps, however.

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

Commission investigated the case, I conclude that the Government's

application under Article 29 of the Convention should have been upheld.

     I should stress 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 appear effective and sufficient,

i.e. are capable of providing redress for the complaints submitted

before the international court.  In this case, as has been borne out

by the investigation of the merits, at least one of the above-mentioned

remedies would in all likelihood have succeeded.

     The evidence gathered by the Commission during its investigation

of the merits of the application shows that the members of Diyarbakir

Human Rights Association failed to inform the applicants of all the

remedies available under Turkish law.  In any event, they advised this

applicant to bring his case directly before the Commission.

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

of Articles 6 and 13, in conjunction with Article 3, of the Convention.

     As regards the complaints under Article 3 of the Convention, I

am of the opinion that in the light of the additional factors which

came to light when the case was investigated, the Commission cannot

examine the merits of the application, as domestic remedies have not

been exhausted.