INDIVIDUAL DISSENTING OPINION

OF JUDGE DE MEYER

( Translation )

For the reasons set out in the joint dissenting opinion on domestic remedies (Article 13 of the Convention) (see above), I consider that:

(1) the preliminary objection of failure to exhaust domestic remedies should have been allowed;

(2) if that objection was dismissed, the applicant’s complaint under Article 6 § 1 of the Convention should have been considered and declared unfounded; and

(3) no just satisfaction under Article 50 of the Convention should have been awarded.

[1] Notes by the Registrar

1. The case is numbered 57/1996/676/866.  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.

[2] 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.

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

[4] * Abbreviations used in the footnotes :

R: Commission’s report; AM: applicant’s memorial; VR 0795: verbatim record of the hearings before the delegates of the Commission in Ankara on 12, 13 and 14 July 1995; VR 1095: verbatim record of the hearings before the delegates of the Commission in Strasbourg on 18 and 19 October 1995.

1. It should perhaps be noted in passing that they do not appear to have alleged a violation of Article 5 of the Convention.

[5] 2. Applicant’s statements of 15 July 1993 to the Diyarbak ı r Human Rights Association (AM Appendix 1) and 19 October 1995 to the delegates of the Commission (VR 1095, p. 30). Statement of the applicant’s father when he appeared before the delegates of the Commission in July 1995 (VR 0795, p. 11).

[6] 3. VR 0795, p. 5.

[7] 1. See paragraph 24 of the judgment; AM Appendix 3; VR 0795, pp. 36–54; R §§ 50 and 84.

[8] 2. See paragraph 25 of the judgment; AM Appendix 3; VR 0795, pp. 55–69; R §§ 51 and 85.

[9] 3. See paragraph 26 of the judgment; AM Appendix 3.

[10] 4. AM, Appendix 3; VR 0795, pp. 39–69; R §§ 138–45.

[11] 5. AM, Appendix 2; R § 61. The applicant’s statements as to the number of times she was subjected to rape (“dirty things”) varies. She appears to mention only one occasion in her statement of 15 July 1993 to the Diyarbakır Human Rights Association (AM Appendix 1; R § 64). She told the Derik public prosecutor on 8 July 1993 that there had been three occasions (AM Appendix 2; R § 61) and the delegates of the Commission on 19 October 1995 that there had been two (VR 1095, p. 35).

[12] 1. AM Appendix 3; R § 84; see paragraph 24 of the judgment.

[13] 2. AM Appendix 3; R § 85; see paragraph 25 of the judgment.

[14] 3. The marriage took place, according to her statement in Strasbourg in October 1995, “four or five days” after her release (VR 1095, p. 46; R § 106). According to the statement taken by the Derik public prosecutor on 12 August 1993, the marriage had taken place “fifteen days” before the statement was made (AM Appendix 2; R § 62).

[15] 4. On 19 October 1995 the applicant said that she had two children, one aged 2 (who was therefore born in October 1993 at the latest) and the other aged three months (VR 1095, pp. 30 and 49). By the end of 1996 she already had three children, according to the documents sent in November 1996 by Osman Baydemir , a lawyer, to Human Rights Project (AM Appendix 4). The applicant’s father, when questioned on 12 July 1995, thought that the first child was then “in its second year” (VR 0795, p. 35), which appears to coincide with what the applicant herself said on 19 October 1995. If all this is true, she must have conceived the first child quite a while before the end of June 1993, in other words, well before the date on which the Derik gendarmes were alleged to have “destroyed her virginity”, according to her statement of  8 July 1993 to the Derik public prosecutor.

[16] 5. AM Appendix 1.

[17] 1. See paragraph 70 of the judgment.

[18] 2. See paragraph 14 of the judgment.

[19] 3. R § 180.

[20] * Abbreviations used in the footnotes :

R: Commission’s report; AM: applicant’s memorial: VR 0795: verbatim record of the hearings before the delegates of the Commission in Ankara on 12, 13 and 14 July 1995; VR 1095: verbatim record of the hearings before the delegates of the Commission in Strasbourg on 18 and 19 October 1995.

1. See paragraph 23 of the judgment; R §§ 50, 61, 67 and 74. The statements are reproduced in AM Appendix 2.

[21] 2. See paragraphs 24–28, 30, 32 and 33 of the judgment; R §§ 50–58, 61, 62, 67–71, 74 and 77; AM Appendices 1 and 2; VR 0795, pp. 88 and 118.

[22] 3. VR 0795, p. 116; R § 75 and paragraph 34 of the judgment.

[23] 4. R § 66. Statement by the applicant to the Diyarbakır Human Rights Association on 1 April 1994, reproduced as Appendix 1 to AM.

[24] 5. This place of residence is mentioned in the undated statement to the Diyarbakır Human Rights Association, which according to the applicant’s representatives was made on 15 July 1993 and is reproduced in AM Appendix 1; R § 63.

[25] 6. Statement of 18 May 1994 by the applicant’s father, reproduced as AM Appendix 2, R §§ 69 and 71.

[26] 7. R § 63.

[27] 1. VR 0795, p. 117.

[28] 2. In July 1995 the applicant’s father said that the Derik public prosecutor had questioned the Tasit mukhtar and two other villagers (VR 0795, p. 21). Mr Özenir denied that; it appears rather that after he left Derik (June 1994), one of his successors decided to obtain a statement from the Tasit mukhtar and from neighbours of the Aydın family and that this was done towards the beginning of 1995 (VR 0795, p. 116). Whatever the position, the result of that request – which was rather late if the circumstances in which the people concerned were arrested in 1993 were to be determined – does not appear in the case file.

[29] 3. The majority appear to criticise the public prosecutor in that “his primary concern” in ordering the medical examinations in July 1993 was to “establish whether the applicant had lost her virginity”, whereas the “very essence” of her complaint was that she was a rape victim (see paragraph 107 of the judgment). It is difficult to see how this distinction can be of particular relevance in the circumstances of the case. Furthermore, it has to be observed that the documents sent by the public prosecutor to the doctors were not produced to the Court and that the applicant complained in her statement of 8 July 1993 to the public prosecutor that she had been “raped” and indeed also that her “virginity” had been “destroyed” (AM Appendix 2).

[30] 1. See preceding joint dissenting opinion on Article 3 (section 3).

[31] 2. Ibid.

[32] 3. See above, section 1.

[33] 4. See preceding joint dissenting opinion on Article 3 (section 1).

[34] 5. R §§ 63 and 64; AM Appendix 1.

[35] 6. The same question may be put in respect of the Commission, to which the case was referred in December 1993.

[36] 1. See paragraphs 55–61 of the judgment.