PARTLY DISSENTING OPINION OF JUDGES RYSSDAL AND FOIGHEL

With regret we are unable to agree with the Court's conclusion that there was a breach of Article 25 para . 1 of the Convention (art. 25-1) in this case which we find unsupported by the facts as determined by the Commission in its report.

It is true that the evidence before the Commission established that Hüseyin Akdivar and Ahmet Çiçek (born in 1967) had been questioned by the authorities about their applications and that a filmed interview had taken place during which they were asked about the case in Strasbourg (see paragraph 21 of the judgment).  However it was subsequently established by the Commission that these persons could not be regarded as applicants.  This finding was accepted by the Court in paragraphs 48-50 of the judgment.

We do not consider that there is any evidence of an interference with the right of individual petition in respect of the applicants.  In these circumstances we are of the view that the Court did not have sufficient information at its disposal to reach a conclusion that Turkey had failed to comply with her obligations under Article 25 para . 1 (art. 25-1) in fine. 

PARTLY DISSENTING OPINION OF JUDGE MIFSUD BONNICI

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 (art. 3) 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 (art. 3)".

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 a pplicants' rights under Article 8 of the Convention (art. 8) and Article 1 of Protocol No. 1 (P1-1).

I am of the opinion that since the findings of violations of both the Articles (art. 8, P1-1) 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 (art. 3) should have been examined further by the Court.

DISSENTING OPINION OF JUDGE GOTCHEV

My objections in this case mainly concern the question of admissibility.  I was unable to be convinced either by the decision of the Commission of 19 October 1994, or by the judgment of the Court that the present application was admissible.

I am convinced that in this case the applicants failed to exhaust their domestic remedies as required by Article 26 of the Convention (art. 26) and that they ought to have made an attempt to seek a remedy before the courts in Turkey before coming to Strasbourg .

It is true that in accordance with the case-law of the Court the requirement of exhaustion under Article 26 of the Convention (art. 26) depends on the existence of judicial remedies in respect of the alleged violation - as well as the possibility of obtaining redress or compensation - which are sufficiently certain in theory and in practice (as stated, inter alia, in the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 22, para . 45).

I agree with the conclusion of the majority that under Article 26 of the Convention (art. 26) there is no requirement to exhaust domestic remedies if they are inadequate or ineffective. Undoubtedly the burden of proof is distributed where there is a dispute as to whether there exists any remedy at all under national law or whether the remedy is effective.  In such a situation it is up to the Government to produce evidence before the Court that such effective remedies exist.  However in paragraph 71 of the judgment the Court points out that the Government have produced evidence showing that the administrative courts in Turkey are applying the domestic-law rules concerning State liability.  The decisions which they have provided show that in Turkey (and particularly in South-East Turkey, where most of the decisions come from) there is a "real possibility of obtaining compensation before [the] courts in respect of injuries or damage to property arising out of the disturbances or acts of terrorism".

The applicants suggested that the administrative court protection was not available when the damage was the result of criminal acts of members of the security forces.  In this respect it is true that, amongst the decisions produced by the Government, none concerned such a situation.  For this reason the Court concluded that there existed a doubt as to the effectiveness of the judicial remedy before the administrative courts.  

But how could the Government provide the Court with such a decision if this problem has not been raised before the administrative courts?  Why could one not come to the conclusion, in the light of the decisions presented by the Government, that there exist judicial remedies which are sufficiently effective in that they result in a positive outcome for the plaintiffs even though the harm was caused by anonymous authors?

Against such a background the conclusion of the Court should be that in the instant case there exist effective remedies which the applicants failed to use and that accordingly the application should not have been declared admissible.

Such a solution, in my view, corresponds to the very important principle enshrined in Article 26 of the Convention (art. 26) and would facilitate the efforts of Contracting Parties to meet the requirements of Article 13 of the Convention (art. 13).