PARTLY DISSENTING OPINION OF JUDGE RUSSO

( Translation )

For the reasons stated by Judge De Meyer in his partly dissenting opinion, I cannot agree with the conclusions of the majority that the Government’s preliminary objection concerning the exhaustion of domestic remedies should be dismissed and that there has been a violation of Article 13 of the Convention with respect to the first three applicants (points 1 and 6 of the operative provisions of the judgment). On the remainder of the points I have voted along with the majority.

PARTLY Dissenting opinion of JUDGE de meyer

( Translation )

As the Court notes in paragraphs 59 and 90 of its judgment, the applicants had not approached any domestic authority with their Convention grievances. They referred to the Diyarbakır Human Rights Association, which made an application on their behalf directly to the Commission on 20 December 1993 [6] .

That way of proceeding cannot be justified a posteriori by the summary and inadequate nature of the investigations conducted at the behest of the Ministry of Justice by the public prosecutors – Mr Köycü and Mr Karaca in April and May 1994 and Mr Sözen at the beginning of 1995 – when the case was already pending in Strasbourg [7] .

Nor can it be justified by the “insecurity and vulnerability of the applicants’ position” [8] , as the association referred to above, which had greater self-assurance and was less vulnerable than the applicants, had from the outset agreed to represent them.

It is true that the conflictual background to the case was not conducive to the exercise of domestic remedies [9] , but the applicants should at least have made some attempt to use them.

The present case provides yet a further illustration of the difficulty that can arise in establishing the truth “beyond all reasonable doubt” of allegations concerning situations such as the one that has led to the conflict between the Turkish State and the Kurdish insurgents.

The Turkish authorities carried out investigations in the instant case only after several months had elapsed since the alleged incidents. Those investigations were clearly unsatisfactory [10] . Moreover, the limited information

thereby obtained and the information obtained by the Diyarbakır Human Rights Association is not particularly reliable [11] .

The Commission attempted to find out exactly what happened. It is perfectly possible and even relatively likely that events took place more or less as described in its report. But does that suffice?

It seems to have been established that soldiers raided Sağgöz towards the end of June 1993. On that point the statements of Azize Menteş, Mahile Turhallı and Sulhiye Turhallı have been confirmed, not only by Azize Menteş’s sister-in-law, Aysel Gündoğan [12] , but also by two other witnesses who said that they were at the scene at that time, Selahattin Can and Omer Yarasir [13] .

But the three applicants’ affirmation that during the raid the soldiers burnt down several houses in the lower part of the village, including the applicants’, was confirmed only by the sister-in-law [14] . That affirmation was contradicted by Can and Yarasir, who say that the village or the houses were only burnt down in clashes that took place several months later, after the inhabitants had left [15] .

On this essential point, the only evidence on file is thus the accusations made against the security forces by four people who were closely related by blood or marriage, not only to each other, but also to persons suspected of or charged with being members of the PKK [16] ; there is no independent confirmation.

That is scant proof that the soldiers set the houses on fire, but is sufficient to enable a “reasonable doubt” to subsist.

As a result of this doubt, I do not believe that it is possible to find, in respect of the first three applicants, a violation by the Turkish State of the rights guaranteed by Article 8 of the Convention.

Furthermore, the conduct of the Diyarbakır Human Rights Association, which applied to the Commission six months after the alleged incidents occurred, without even having attempted to exercise any of the domestic remedies, prevents me from finding that there has been a violation of the applicants’ rights guaranteed by Articles 6 and 13 of the Convention.

It also follows from the above that the award of compensation under Article 50 does not appear justified in the instant case.

PARTLY Dissenting opinion of JUDGE mifsud bonnici

I. Alleged violation of Article 3 of the Convention

1. In the case of Akdivar and Others v. Turkey (judgment of 16 September 1996), the applicants had claimed that they had been “subjected to … inhuman or degrading treatment” in breach of Article 3 of the Convention in that their houses had been destroyed by the Turkish security forces.

The majority of the Court decided not to examine whether the alleged violation had in fact occurred. I did not agree with this procedure and I expressed my dissent in these terms.

“This dissent is limited to the procedural point which, to my mind, is raised by the decision arrived at with regard to the claim by the applicants of violations of Article 3 of the Convention through the burning of their houses. In point 4 of the operative part of its judgment, the Court reached the conclusion that ‘it will not examine further whether there has been a violation of Article 3 of the Convention’.

The reasons for this are set out in paragraph 91, namely (a) the absence of precise evidence concerning the specific circumstances in which nine houses, including those of the applicants, were destroyed (see paragraph 18); and (b) the finding of a violation of the applicants’ rights under Article 8 of the Convention and Article 1 of Protocol No. 1.

I am of the opinion that since the findings of violations of both the Articles mentioned stem from the salient fact that the applicants’ houses were destroyed, it is procedurally proper to examine the major claim first and abstain from examining a minor one later if the first is deemed to practically absorb the latter. A hierarchical approach is more appropriate to attain the aim of guiding Contracting States as to the scope of their obligations under the Convention and its Protocols.

I therefore conclude that the claim under Article 3 should have been examined further by the Court.”

2. In the instant case, the first three applicants likewise referred to the circumstances surrounding the destruction of their homes and their evacuation from their village (see paragraph 74 of the judgment in the present case) maintaining that they had therefore suffered a violation of their rights guaranteed by Article 3 of the Convention.

3. Once again the majority followed a similar process of reasoning as in the Akdivar and Others judgment:

“In view of the specific circumstances of the case and its finding of a violation of their rights under Article 8 of the Convention (paragraphs 34 and 72 above) the Court does not propose to examine further this allegation.”

4. In the present case, however, the Court could not repeat that it “does not propose to examine further this allegation” because it had accepted the following facts as established by the Commission :

“In the lower neighbourhood, the women, including the applicants, had been required by the soldiers to leave their houses and their houses had been set on fire, with all their belongings and property inside, including the clothing and footwear of children.” (see paragraph 34 of the judgment)

5. In view of those findings, I do not think that there is any justification for the procedural approach adopted by the majority to omit examining whether the facts concerned revealed that the applicants had been subjected to inhuman or degrading treatment.

I consider that the rights protected by Article 3 are as important, if not more so, than those protected by Article 8 and therefore the non liquet position adopted by the majority does not seem to me to be valid .

II. Costs and expenses

6. In point 9 of the operative provision of the judgment, the Court has ordered the respondent State “to pay directly to the … applicants’ United Kingdom-based representatives” the sums specified therein by way of costs and expenses.

In my opinion, those representatives were not parties to the case. Therefore there is no legal relationship between them and the respondent State justifying the State being ordered to pay monies direct to them. This is a dangerous precedent.

partly Dissenting opinion of JUDGE gotchev

To my regret, I am unable to agree with the majority’s view that the Government’s preliminary objection should be dismissed. A careful analysis of the relevant judgments of the Turkish administrative courts does in my opinion show that the remedies alluded to by the Government were adequate and sufficient in respect of the matters complained of by the applicants. Therefore, in line with the view I expressed in the case of Akdivar and Others v. Turkey, I consider in the instant case too that the applicants failed to fulfil the requirement of exhaustion of domestic remedies in Article 26 of the Convention and that the Court does not have jurisdiction to entertain their complaints.

The importance of the exhaustion rule for the operation of the Convention system of protection cannot be overemphasised, for two reasons.

In the first place, as is not disputed, Article 26 of the Convention constitutes a crucial element in the relationship between the national courts and the Strasbourg institutions. Whilst it is first and foremost for the competent authorities in the Contracting States to secure compliance with the Convention guarantees, the role of the Strasbourg institutions comes into play only after the national authorities have had an opportunity to address the alleged Convention grievance. It is only by following this approach consistently that the Strasbourg institutions may encourage the national authorities to take their primary responsibility in securing compliance with the Convention rules seriously.

The above considerations have gained particular importance in the light of the recent expansion of the Convention community and the resultant need to establish a relationship of cooperation between the Strasbourg Court and the courts in the Contracting States which have recently acceded to the Convention.

Secondly, it is important to bear in mind the tremendous practical difficulties with which the Court will be faced, especially the future single Court to be established next year under Protocol No. 11, if the requirements of Article 26 were to be systematically dispensed with in all cases arising in the particular security situation obtaining in south-east Turkey. Having regard to the gravity of the human rights problems in that area, it would be more helpful if the Court were to encourage the domestic courts in providing proper redress in cases of allegations of violations of the Convention.

PARTLY Dissenting opinion of JUDGE jambrek

1. In the present case I am not prepared to dismiss the preliminary objection of the respondent Government on exhaustion of domestic remedies. Nor, for this reason and after considering the merits of the applicants’ complaints as established by the Commission and evaluated by the Court, do I find that there has been a violation of Article 8 of the Convention with respect to the first three applicants. As to the remainder of the judgment I agree with the majority.

2. The system of human rights protection under the Convention is based on a division of roles between the domestic authorities and the Strasbourg institutions. The Contracting States have primary responsibility for securing to everyone within their jurisdiction the Convention rights and freedoms (Article 1). The machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. The Strasbourg review plays a role only as a system for dispute settlement that operates once all effective domestic remedies have been exhausted and the respondent State has been afforded a proper opportunity to put right the matter complained of under the Convention (Article 26) (see, amongst other authorities, the Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, p. 22, § 48; and the Van Oosterwijk v. Belgium judgment of 6 November 1980, Series A no. 40, p. 17, § 34). It follows that the exhaustion rule and the subsidiary nature of the Strasbourg review serve not only to protect the interests of the Contracting State but also those of individuals within its jurisdiction.

3. Like the majority in this case and in the case of Akdivar and Others v. Turkey, I too consider that there may have been obstacles to the proper functioning of the system of the administration of justice because of the situation in south-east Turkey at the time of the applicants’ complaints. In particular, there are difficulties in securing probative evidence and administrative inquiries, on which such remedies depend, may be prevented from taking place. However, in my view, such difficulties affect not only domestic administrative inquiries and legal proceedings but also, and maybe even more so, the international judge’s ability to establish and evaluate the facts of a case.

4. In the instant case a number of reasons militate in favour of exempting the applicants from the requirement of exhaustion of domestic remedies. However, granting exemption has the unfortunate consequence of putting an extra burden on the Strasbourg institutions, namely the task of acting as the

primary fact-finder in cases concerning Convention complaints, which they are neither designed nor equipped to perform. Under the Convention system that role is to be exercised primarily by the national authorities, notably the courts. An international tribunal is incapable of assuming that protective role alone but must be able to rely on the domestic system of human rights protection. It is therefore preferable to encourage the domestic system in becoming more effective and efficient, even if that system suffers from certain weaknesses in the specific circumstances.

5. In view of the above considerations, I consider that the applicants should have at least tried to approach the domestic system for the protection of their rights before lodging a complaint with the Strasbourg institutions; but they failed to do so.

6. By following such an approach, which implies a stricter application of the requirements of Article 26 of the Convention than the one adopted by the majority, the Court could pinpoint defects in the proper functioning of the domestic administration of justice, instead of confining its findings to the individual case. In other words, a hungry man would be better served by being trained to catch fish rather than merely being given fish.

7. As to the alleged violations of Article 8 of the Convention, it is difficult to ascertain the full truth about what really happened in the village of Sağgöz at the relevant time. It is understandable that a number of inconsistencies may be noted in the evidence, whether for the applicants or the Government. However, I cannot agree with the majority’s view that the facts as established by the Commission have been proved beyond reasonable doubt as far as the first three applicants’ allegations are concerned. The description of the decisive events in paragraph 175 of the Commission’s report appears to be a legal construction of a social reality which may or may not correspond to what really happened.

On the other hand, the deficiencies in the establishment and assessment of the facts in this case are not, in my view, to be attributed to any shortcomings on the part of the Strasbourg institutions, but to the inherent inability of those institutions to investigate facts in the manner of a domestic “first instance” tribunal.

8. Otherwise, with the exception of the issue raised under Article 13, I subscribe to most of the arguments put forward by Judges Matscher and De Meyer in their respective opinions.

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

1. The case is numbered 58/1996/677/867. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3] 2. Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[4] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997), but a copy of the Commission’s report is obtainable from the registry.

[5] 1. Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, and Aydın v. Turkey judgment of 25 September 1997, Reports 1997-VI.

[6] . Paragraph 5 of the Commission’s report.

[7] . Paragraphs 27 to 30 and 59 of the judgment; paragraphs 41–44 of the Commission’s report.

[8] . Paragraph 59 of the judgment.

[9] . Paragraph 58 of the judgment.

[10] . Paragraph 91 of the judgment.

[11] . Paragraph 145 of the Commission’s report.

[12] . ibid., paragraphs 89–94.

[13] . ibid., paragraphs 95–104.

[14] . ibid., paragraphs 90–91.

[15] . ibid., paragraphs 96, 97, 101 and 102.

[16] . ibid., paragraph 48.