PARTLY DISSENTING OPINION OF JUDGE DE MEYER

(Translation)

Although I agree with the rest of the judgment, I disagree with the line taken by the majority in respect of Articles 6 para . 1 and 13 (art. 6-1, art. 13).

In the present case the Court had to rule firstly on a preliminary objection that domestic remedies had not been exhausted.

It is clear from the reasoning on this in paragraphs 51 to 57 of the judgment that in the applicant ’ s case these remedies were purely theoretical. This suggests a violation of Article 13 (art. 13), as is later made explicit in different terms in paragraphs 95 to 100 of the judgment. The present case thus shows up very clearly the link between Article 13 and Article 26 (art. 13, art. 26) [4] .

The reasoning also, however, implies a fortiori that the applicant ’ s right of access to a court was not effectively secured [5] .

It follows that, in line with the decision we took on the preliminary objection, we should as a logical consequence have found that there had been a violation of both Article 6 para . 1 and Article 13 (art. 6-1, art. 13).

It would have sufficed if we had noted that it was clear from the considerations set out in paragraphs 51 to 57 of the judgment that in the circumstances of the case the applicant had no effective domestic remedies and was unable to exercise his right of access to a court .

DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

1.  With regard to the subsidiary nature of the protection system set up by the European Convention on Human Rights and its direct corollary, the exhaustion of domestic remedies, I refer to my dissenting opinion in the case of Akdivar and Others v. Turkey (see the judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV).

2.  I would point out that Article 17 of the Turkish Constitution is a literal translation of Article 3 (art. 3) of the European Convention on Human Rights and that torture and ill-treatment attract heavy penalties under the Turkish Criminal Code (Articles 243 and 245) (criminal remedy).

3.   As civil wrongs (unlawful acts), torture and ill-treatment open up the possibility of an action for compensation in respect of pecuniary or non ‑ pecuniary damage (civil action or administrative proceedings, depending on the perpetrator ’ s status).

4.   Criminal proceedings are instituted by the prosecuting authorities of their own motion or on the lodging of a complaint, and must be brought where there is sufficient evidence that an offence has been committed.

5.   In Turkish law, therefore, these three remedies are available equally, throughout the country, to every person who claims to be the victim of torture or ill-treatment.

6.   With regard to the effectiveness and appropriateness of the above ‑ mentioned remedies, there is not the shadow of a doubt in my mind. In this connection I refer to my dissenting opinion in the case of Akdivar and Others (ibid.). The respondent Government, both in that case and the present case, submitted to the Commission in the first place and later to the European Court - both in their memorial and at the public hearing - dozens of judgments of the courts of first instance or the supreme courts such as the Court of Cassation or the Supreme Administrative Court.

7.   Most of these judgments concerned cases in south-eastern Turkey where acts of terrorism are being committed and where the present case occurred. The following examples give a brief summary of some of these decisions.

- Second Division of the Supreme Administrative Court - judgment of 23 March 1994

The Supreme Administrative Court, carrying out its statutory review of the decision to discontinue proceedings made by the Malatya Provincial Administrative Council, ruled that criminal proceedings under Article 245 of the Criminal Code (ill-treatment, recourse to violence by a public official empowered to use force in accordance with the law) had to be brought against the accused, four police officers of the Malatya Security Police who had allegedly beaten a suspect while he was being questioned.

Another judgment of the Supreme Administrative Court to the same effect (judgment of 7.10.1993) concerned the Adiyaman province. These two regions ( Malatya and Adiyaman ) are in south-eastern Turkey .

- Eighth Criminal Division of the Court of Cassation - judgment of 16 December 1987

The accused were sentenced to four years, five months and ten days ’ imprisonment for causing death by acts of torture (Articles 452/1 and 243/1 ‑ 2 of the Criminal Code).

The Court of Cassation upheld these sentences imposed by the First Division of the Mardin Assize Court (in south-eastern Turkey ).

- Eighth Criminal Division of the Court of Cassation - judgment of 25 September 1991

The Eighth Division of the Ankara Assize Court sentenced the accused to four years and two months ’ imprisonment and banned them from holding public office for two months and fifteen days for inflicting ill-treatment with a view to extracting confessions.

The Court of Cassation held that, as the file stood, the expert reports formed a sufficient basis for the lower court ’ s judgment. However, it quashed it on account of a clerical error, as it stated that the court had applied the minimum sentence whereas it had based its calculations on the minimum sentence.

- Eighth Criminal Division of the Court of Cassation - judgment of 21 February 1990

The accused were sentenced to four years, five months and ten days ’ imprisonment for causing a prisoner ’ s death. This conviction pronounced by the Sixth Division of the Istanbul Assize Court was based on the charge of fatal wounding (Article 452/1 of the Criminal Code).

The Court of Cassation upheld the conviction but ruled that Article 243, concerning death subsequent to an act of torture, should be applied.

8.   Despite the existence of the three remedies I have mentioned above, the applicant did not make use of any of them but only complained to the Commission via London . He did not even lodge a complaint with the responsible authorities - the first step any individual has a duty to take when he claims to be a victim of anything at all.

9.   I simply cannot agree with the opinion the majority reached on the basis of the applicant ’ s bare allegations (that the Turkish courts in the region concerned afforded no protection when the acts complained of had been committed by members of the security forces) namely that the effectiveness of domestic remedies was open to doubt. I consider that "where there is doubt", and especially where there is doubt, domestic remedies must be exhausted as required by the Commission (decision of 14 March 1985, Garcia v. Switzerland, application no. 10148/82, Dec isions and Reports 42, p. 98). And the applicant did nothing of the sort.

10.   As Judge Gotchev rightly noted in his dissenting opinion in the above-mentioned Akdivar and Others case, in connection with the exhaustion-of-domestic-remedies rule, in order to reach such a conclusion after the respondent Government have demonstrated the existence of domestic remedies, the burden of proof should fall (once more) on the applicant, who should be required to prove that the authorities in that region of the country frustrated his attempts to set the appropriate proceedings in motion. The applicant has not adduced any evidence to that effect .

11.  Above all, in this case a number of facts were in dispute between the parties. The applicant alleged that he had reported to the prosecuting authorities when interviewed that he had been subjected to ill-treatment while in police custody, whereas the respondent Government denied this and submitted arguments in support of their contention. The Court, on the basis of this unclarified question of fact, namely the alleged failure of the prosecuting authorities to set criminal proceedings in motion, concluded that the criminal remedy was ineffective .

12.   Apart from the fact that there are procedures in Turkish law whereby the prosecuting authorities can be obliged to institute criminal proceedings, who else, if not the national authorities, could clarify this fact which is decisive for the outcome of the present case? For that reason alone, the applicant ’ s complaints should first be brought before the Turkish courts so that it can be established whether domestic remedies are effective or not .

13.  Since, therefore, the requirement in Article 26 of the Convention (art. 26) has not been satisfied, the Court should have upheld the respondent Government ’ s preliminary objections concerning the non-exhaustion of domestic remedies .

14.  The foregoing considerations dispense me from considering the merits of the case .

[1] The case is numbered 100/1995/606/694. 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] Rules A apply to all cases referred to the Court before the e ntry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9). They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-VI), but a copy of the Commission's report is obtainable from the registry.

[4] See paragraph 51 of the judgment.

[5] See paragraphs 54 and 56 of the judgment.