DISSE NTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

To my great regret I cannot agree with the opinion of the majority of the Court on rejection of the Turkish Government's preliminary objection, for the following reasons:

I.   ABUSE OF PROCESS

1.  In paragraph 54 of its judgment the Court dismissed the Turkish Government's request for the application to be declared an abuse of the right of petition under Article 27 of the Convention (art. 27) on the ground that the Commission, in its findings of fact, had confirmed the applicants' allegations about the destruction of their property.

2. In my opinion, the fact that it is claimed the allegations are true does not make the application any less an abuse of the right of petition.  The respondent Government's preliminary objection on this point is closely linked to their second preliminary objection, namely the plea of non-exhaustion of domestic remedies, which I shall turn to below.  The applicants, without making any attempt to exhaust existing domestic remedies, brought their applications before the international institutions - via the "Kurdish Human Rights Project" in London - with the aim of spreading anti-Turkish propaganda and the firm intention of bringing the case into the international arena in order to distort it when it should have remained to be judged according to legal criteria under the procedure established by the European Convention on Human Rights.  It is that which constitutes "abuse of process".  Is there any need to point out that it is a universal principle of law that "manifest abuse of a right is not protected by the law"?

II.   SUBSIDIARY CHARACTER OF THE PROTECTION SYSTEM SET UP BY THE EUROPEAN CONVENTION ON HUMAN RIGHTS

3. It is obvious and universally recognised that the supervision system set up by the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") is subsidiary in character. Proof of this is be found in the provisions of Article s 1, 3, 26, 50, 57 and 60 (art. 1, art. 3, art. 26, art. 50, art. 57, art. 60). Article 26 (art. 26) is, par excellence, the provision in which this doctrine, to which I will return at greater length shortly, is formulated.  This arrangement has extremely important consequences for the process of applying the Convention.

4.  The European Court of Human Rights ("the Court") has expressed this doctrine in precise, clear language in dozens of judgments and on many occasions, particularly with regard to the application of Article 5 para . 3 (art. 5-3) (assessment of the reasonableness of pre-trial detention: see the Letellier v. France judgment of 26 June 1991, Series A no. 207, p. 18, para . 35; the Herczegfalvy v. Austria judgment of 24 September 1992, Series A no. 244, p. 23, para . 71; and the Mansur v. Turkey judgment of 8 June 1995, Series A no. 319-B, pp. 49-50, para . 52), Article 6 para . 3 (d) (art. 6-3-d) (examination of witnesses for the defence on an equal footing with witnesses for the prosecution: see the Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 20, para . 43) and its doctrine of the "margin of appreciation" (see the Mellacher and Others v. Austria judgment of 19 December 1989, Series A no. 169, pp. 25-26, para . 45, and the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no. 246-A, p. 29, para . 68).

5.   It must be emphasised that the principle of subsidiarity forms one of the corner-stones of the Court's case-law.  Among dozens of possible examples I cite the following to show how the Court has expressed this principle with regard to its jurisdiction.

In the Handyside v. the United Kingdom judgment of 7 December 1976 (Series A no. 24, p. 22, para . 48) we may read:

"The Court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights ...  The Convention leaves to each Contracting State, in the first place, the task of securing the rights and freedoms it enshrines.  The institutions created by it make their own contribution to this task but they become involved only through contentious proceedings and once all domestic remedies have been exhausted

..."

After analysing the concept of "necessity", to which it referred in that judgment with a view to defining its meaning for the purposes of the Convention, the Court went on to say: "Nevertheless, it is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of `necessity' in this context." (emphasis added)

6.  In his excellent study of the question, Mr H. Petzold , the Registrar of the Court, after reviewing the case-law of the Court and the work of the European Commission of Human Rights with the attention to detail which the subject merits, reaches the following conclusions:

" Subsidiarity is then a basic principle for the process of implementing the Convention.  It is implicit in the Convention, inherent in the system of protection established by the Convention, and it has been confirmed as such by the case-law of the Convention institutions.  It recognizes the primary competence and duty of the State to protect effectively within the domestic legal order the fundamental rights and freedoms enshrined in the Convention ..." (pp. 59-60)

"Clearly the Convention institutions contribute to securing the enjoyment of the rights and freedoms guaranteed, but their responsibilities are secondary - in time and in extent - to those of the competent national authorities.  Their mission is essentially to guide and to assist with a view to ensuring that the Convention States secure to individuals the necessary protection through their own institutions and procedures." (p. 61) ("The Convention and the Principle of Subsidiarity " in The European System for the Protection of Human Rights, R. St. J. Macdonald, F. Matscher and H. Petzold (eds.), Martinus Nijhoff Publishers, The Hague, 1993)

Here now is the opinion of the late Max Sørensen , the eminent jurist who made an enormous contribution to the work of the Court and the Commission:

"Whatever the formal status of the Convention in each of the Contracting States, what is certain is that respect for the rights and freedoms defined in its provisions must in the first place be sought before the national administrative or judicial authorities.  The guarantees provided in the form of the procedures before the Commission and the Court are only subsidiary in character."  (quoted by H. Petzold in the above-mentioned article, p. 41)

7.  Can such a fundamental and important principle, of which the exhaustion-of-domestic-remedies rule (Article 26) (art. 26) is the most obvious element, be disregarded by the Convention institutions, and if so under what conditions?

III.   MEANING AND REQUIREMENTS OF THE "EXHAUSTION" RULE

8.  I will first refer to the Court's case-law.  The Court has held: "... the rule on the exhaustion of domestic remedies delimits the area within which the Contracting States have agreed to answer for wrongs against them before the organs of the Convention" and that the rule in question "... 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" (see, among other authorities, the De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no. 12, pp. 29-30, para . 50).  And again: "[It] concerns the possibility in law of bringing into play a State's responsibility under the Convention" (see the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 10, para . 18).

The purpose of Article 26 (art. 26) is to give States "the opportunity of putting right the violations alleged against them" (see the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, pp. 26-27, para . 72, and the Van Oosterwijck v. Belgium judgment o f 6 November 1980, Series A no. 40, p. 17, para . 34).

The applicant has a duty to exhaust all remedies that are available and sufficient.  "The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied" (see the Vernillo v. France judgment of 20 February 1991, Series A no. 198, pp. 11-12, para . 27).

9.  In the Cardot judgment, where we find what is very nearly a complete summary of its case-law on the question, the Court upheld the objection of non-exhaustion of domestic remedies raised by the respondent Government on the ground that the applicant, by his conduct, "did not provide the French courts with the opportunity which is in principle intended to be afforded to Contracting States by Article 26 (art. 26), namely the opportunity of preventing or putting right the violations alleged against them".

In view of the importance of the relevant paragraphs, in that they show how meticulously and rigorously the Court ensures the impartial and strict observation of Article 26 (art. 26), I wish to quote them here at length:

"... Admittedly, Article 26 (art. 26) must be applied with some degree of flexibility and without excessive formalism ..., but it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given.  It normally requires also that  the complaints intended to be made subsequently at Strasbourg should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law ...; and, further, that any procedural means which might prevent a breach of the Convention should have been used ...

Practice in international arbitration would appear to reflect a similar approach.  An example is to be found in the award of 6 March 1956 in the Ambatielos case.  The British Government argued that legal remedies had not been exhausted, on the ground that the claimant ... had not called a witness during proceedings in an English court.  The Commission of Arbitration allowed the objection in the following terms: 

`The rule [of exhaustion] requires that "local remedies" shall have been exhausted before an international action can be brought.  These "local remedies" include not only reference to the courts and tribunals, but also the use of the procedural facilities which municipal law makes available to litigants before such courts and tribunals

...

...

It would be wrong to hold that a party who, by failing to exhaust his opportunities in the court of first instance, has caused an appeal to become futile should be allowed to rely on this fact in order to rid himself of the rule of exhaustion of local remedies.'  

In the court of first instance Mr Cardot did not express any wish that evidence should be heard from his former co-defendants, although they said that he had played a major part in organising the smuggling of hashish ...  Nor did he make any application to the Court of Appeal for such evidence to be heard ...

As to his appeal on points of law, only one of the three grounds put forward related to the proceedings in respect of the former co-defendants who had been heard in that capacity at the time ...  Above all, it did not rely on paragraph 3 (d) of Article 6 (art. 6-3-d) or even on the general principle in paragraph 1 (art. 6-1) and did not refer to the statements that [names omitted] had made to the investigating judge; so that it was too vague to draw the Court of Cassation's attention to the issue subsequently submitted to the Convention institutions, namely the failure to hear prosecution witnesses at any stage of the court proceedings against Mr Cardot ..." ( Cardot v. France judgment of 19 March 1991, Series A no. 200, pp. 18-19, paras . 34-36).

Again, in the Van Oosterwijck judgment cited above (p. 19, para . 39), the Court declined to accept the applicant's argument that by virtue of the principle " jura novit curia" the courts who had heard his case were obliged to consider it from the standpoint of the Convention of their own motion.  The Court held: "Whether the obligation laid down by Article 26 (art. 26) has been satisfied has to be determined by reference to the conduct of the victim of the alleged breach ..."

It should be added that the Van Oosterwijck and Cardot judgments give an idea of both the content and the scope of the concept "flexibility without excessive formalism" with which the exhaustion rule has to be applied.

Let me say at the outset that in the context of compliance with the rule in question this concept cannot be interpreted so as to permit "suppositions" to be taken for "facts" which prove the lack of effective and sufficient domestic remedies.

In order to be able to reach such a conclusion - that is, in order to ascertain whether or not the existence of the domestic remedies that the respondent Government asked it to consider was "sufficiently certain" (see the Ciulla v. Italy judgment of 22 February 1989, Series A no. 148, p. 15, para . 31) - the Court, instead of proceeding on the basis of an interpretation of certain misleading appearances, should at least have looked for prima facie evidence.  Not only did the applicants not apply to any court (or any other competent national authority), they took no steps whatever whose result could be regarded as a fact suggesting that effective and sufficient domestic remedies did not exist.  In short, the applicants' argument is based on assumptions about the attitude of the State authorities.  It is, however, astonishing that a Court which was so strict and meticulous in the way it applied the exhaustion rule in the Van Oosterwijck and Cardot cases should be so tolerant in the present case.  If the existence of domestic remedies is required, as the Court has held, to be "sufficiently certain", should not the same Court also require the lack of such remedies (or their insufficiency or ineffectiveness) to be established to an equal extent, that is to say, proved to be "sufficiently certain"?  The respondent Government pointed out, and pertinently so, that in the Finnish Ships Arbitration case it had been established that the exhaustion rule was applicable "unless there is an obvious futility or inefficacity which is manifest", and that in the Panavezys-Saldutiskis case concerning Lithuania "the argument was put forward that it was absolutely uncertain in Lithuanian law whether it was possible to take proceedings in the Lithuanian courts against the Government where the Government had carried out acts iuris imperii .  The court in The Hague replied: `This does not dispense you from taking proceedings.  You have to have recourse to the Lithuanian courts, which are the only courts that can confirm whether such a remedy is acceptable or not'" (verbatim record of the hearing on 25 April 1996, Cour /Misc (96) 243/III, p. 11). Similarly, the Commission has said: "If there is doubt as to the effectiveness of a domestic remedy, the point must be taken before the domestic courts" (see application no. 10148/82, Florentino Garcia v. Switzerland , decision of 14 March 1985, Decisions and Reports 42, p. 98).  The applicants talk incessantly about "compensation for the damage they have sustained", when there are hundreds of judgments of the administrative and civil courts awarding compensation to victims in almost identical cases.  Is it possible to say, in the light of these facts, that the non-existence of domestic remedies was certain? Neither in the Commission's report nor in the Court's judgment, which is based on the Commission's suppositions, is there any factual evidence or legal argument that dispels the "doubt" as to the existence of domestic remedies to such an extent as to make the lack of such remedies "certain".

IV.   THE INSTANT CASE

10. I agree with the majority of the Court about what is said in paragraphs 65 to 69 concerning the general principles governing application of the rule laid down by Article 26 (art. 26), but not about the way they were applied in this case.

11. Firstly, as regards the facts of the case (see paragraph 70), what is going on in South-East Turkey is no different from what has been happening for years in other Council of Europe countries (in Northern Ireland, the Basque country, Corsica, etc.) and there are not two kinds of terrorism.  The administrative authorities in the strict sense may well be adversely affected, but the situation does not in any way affect the administration of justice, especially as regards the independence and impartiality of the courts.

It is going too far to hold that the situation in South-East Turkey constitutes "special circumstances" such as to dispense the applicants from the obligation to have recourse to existing remedies.  In that connection, I also observe that if the fear of reprisals necessarily led them to avoid domestic remedies (see paragraph 74), the same fear also exists when they apply to the international institutions.

As regards the difficulty of securing probative evidence referred to by the Court in paragraph 70, if there is a difficulty, the same difficulty must exist when the case is brought before an international tribunal.

Besides, as we shall see presently, in compensation cases before the administrative courts the State's liability is "strict" - "fault" does not have to be proved.

12. Although the Court does not say so expressly in the judgment, it appears to be criticising the inactivity of the administrative authorities in such a situation and to deduce therefrom that the existing domestic remedies were of no assistance.  That is not quite true.  The witness evidence taken during the Commission's investigation (see the Commission's report of 26 October 1995, paragraphs 40 et seq.) shows that inquiries were made by the public prosecutor at the Diyarbakir National Security Court and that the applicants - and the other villagers - were not able at the time to identify any member of the security forces as being responsible for the acts complained of. In addition, the Court, referring explicitly to the allegations made by the Delegate of the Commission, notes the lack of any impartial investigation, any offer to cooperate with a view to obtaining evidence, or any ex gratia payments made by the authorities (see paragraph 71, third sub-paragraph in fine, of the judgment).  I wish to emphasise that the Turkish judiciary perform their duties with as much independence and impartiality as the judges of the other States party to the Convention throughout Turkish territory.  Cooperation is a two-way process!

Before concluding, in support of its assertion, that the authorities never offered or made any ex gratia payments to the applicants - in order to compensate them or relieve their suffering - the Court should have verified that they had asked for any such payments to be made.

It is clear that the applicants took every precaution to keep their distance from the authorities of the country in order not to have any contact with them so that they could claim in the final analysis that domestic remedies were inadequate and ineffective; that would give them the pretext they needed in order to be able to apply to the Strasbourg institutions.

The Turkish Government, from the outset, have continued to relieve the suffering of the population of that part of the country. Here is a summary submitted to the Court of what is being done.

"PUBLIC AID AND SOCIAL SOLIDARITY IN THE FIGHT AGAINST TERRORISM

Conscious of the extent of damage suffered in the fight against terrorism the Turkish authorities have set up an extra-judicial system of aid and social solidarity.

Section 22 of the Prevention of Terrorism Act provides for and expressly governs such aid and provides that priority aid for persons who are not public servants is to be provided from an Aid and Social Solidarity Fund.

The Government are providing herewith six files containing up-to-date information obtained from all the prefectures in the region covered by the state of emergency.

It appears from an examination of this extra-judicial network of aid and other grants that the types of aid actually provided are both multiple and inspired by a pragmatic approach: they consist of financial aid, provision of housing, building materials for housing, food supplies, clothing, fuels, rent grants.  In other words all the urgent needs of people who have suffered in any way from the fight against terrorism have been taken into account.

To cite but a few examples among the extensive aid provided to inhabitants of these regions as part of the fight against terrorism, we can refer to the county of Diyarbakir where the plaintiffs are residents.  Thus, in this county alone 500 dwellings have been allocated.  The list of beneficiaries appears in the files.

Again, in the same county, the construction of 72 dwellings scheduled for 1995 has been brought forward one year in response to the needs of families who have suffered from terrorism and ended in October 1994 with the allocation of housing.

Further, in 1994, 120 prefabricated housing units were transported from Erzincan to Tunceli and were allocated. 5,000 million Turkish pounds financed by the Emergency Aid Programme were spent on the infrastructure of this housing. Even now, electricity and water costs are met by the Tunceli Prefecture .

With respect to the county of Van , the presidency of the Aid and Social Solidarity Fund for Van provides details of aid supplied under different headings for victims of terrori s m in a letter of 21 November 1995.  It states that 152 dwellings were built and given to persons who had been obliged to leave their homes as a result of the fight against terrorism.  The total cost of these buildings came to 14,039,799,000 Turkish pounds.

The information obtained from the Sirnak Prefecture is also telling (Annex 6).  In 1994 more than 51,000 million Turkish pounds and in 1995 almost 100,000 million (97,099,750,000) Turkish pounds were distributed to families victims of terrorism.  Total aid over the last three years exceeds 150,000 million Turkish pounds.

In the Sub-Prefecture of Cizre alone, 212 dwellings were built, the current cost of which comes to more than 6,000 million Turkish pounds (letter of 6 December 1995 from the Sub-Prefecture to the Prefecture of Sirnak ).

The lists communicated by the Bingöl Prefecture state that 50 dwellings in the county town and 206 dwellings in the Sub-Prefecture were handed over to victims of terrorism in 1994. One hundred and ninety-three other dwellings bu ilt in 1995 will be distributed to the persons whose names appear on the lists in the file relating to this county.

Further, 500 million Turkish pounds were spent on repairing damaged houses.

It should also be noted that 12,720 million Turkish pounds have been paid to people who wish to return to their villages, which they had left as a result of terrorism.

In the Sub-Prefecture of Genç alone approximately 6,500 million Turkish pounds were paid in Emergency Aid to persons who were victims of terrorism.

In its letter of 24 November 1995, the Siirt Prefecture draws attention to aid of 1,275 million Turkish pounds spent to finance a return to villages which had been hastily abandoned. Further, more than 500 million Turkish pounds were paid to attend to the needs of 109 villagers having sustained loss as part of the fight against terrorism.

Further, the Siirt Prefecture draws attention to the priority treatment given to rural investment and to the fact that in this context the problems of eight villages relating to drinking water and roads have been solved.

Referring to a letter of 24 November 1995 received from the Sub-Prefecture of Tatvan , the Prefecture of the county of Bitlis refers to substantial aid paid to persons who have suffered physical injury or pecuniary loss and persons who have been forced to abandon their villages.

The size of these public contributions shows the extent to which the Turkish authorities are conscious of the effect of the fight against terrorism on all aspects of individual people's lives and of society.  It also demonstrates the determination of the Turkish authorities to find appropriate responses to all the problems and to the loss suffered, whether individually or collectively, by examining all needs, whether as individuals or as families, for housing, clothing, food, heating, immediate cash requirements (grants, rent, outgoings) and needs in respect of macro-economic investment, communications or for a return to the villages." (see case of Akdivar and Others v. Turkey, 99/1995/605/693, Annexes 2-7 to the Government's memorial, received at the registry on 15 March 1996, Cour (96) 113 ANN 2, Strasbourg, 18 March 1996, pp. 209-11).

As regards accessible and sufficient domestic remedies in Turkish law whose existence is sufficiently certain, I would first point out that the respondent Government have submitted to the Court roughly a hundred judgments of different courts (administrative courts, Council of State, civil courts and Court of Cassation) which cover a representative variety of situations (see Annexes 1 and 2-8, running to 316 pages, Cour (96) 111 ANN 1 and Cour (96) 113 ANN 2 respectively).  Although the applicants allege, without any facts to support that claim, that the Turkish legislation in force makes access to a court impossible in cases concerning counter-insurgency operations (which is not true), all the judgments submitted to the Court's consideration were given by courts having territorial jurisdiction in South-East Anatolia (Diyarbakir, Van, Erzurum, etc.).

13. The Court finds it significant that despite the extent of the problem of village destruction the respondent Government have not been able to point to examples of compensation being awarded to victims where property has been deliberately destroyed by the security forces or to prosecutions being brought against those responsible (see paragraph 71, third sub-paragraph, of the judgment).

I have already shown that the so-called inactivity of the authorities was a pure and fallacious invention by the applicants, who were themselves unable to identify those allegedly responsible during the inquiries that were conducted.

14.    If the judgments and other documents submitted by the Turkish Government - to the Commission in the first instance, and later to the Court - had been examined with the attention they merited, it would quickly have become apparent that all these judgments concerned cases of killings, intentional or unintentional homicides, destruction of houses or other property, disappeared persons or crimes committed either by members of the PKK or the security forces or by persons unknown.

15. Admittedly, there is no judgment concerning a case exactly like the instant case, because the people in a situation identical to the applicants' had aims other than obtaining compensation in mind, namely determination to bring their case to an international forum.  "There's no war without warriors."

16. As regards the certain, accessible, effective and sufficient nature of the remedies existing in Turkish law, I entirely agree with the dissenting opinion of the two eminent members of the Commission, Mr Gözübüyük and Mr Weitzel , mutatis mutandis, expressed in the following terms:

"Certain facts of the case have been elucidated by the Commission's investigation.  In particular, the witness statements obtained in the course of that investigation show that during the investigation conducted by the Chief Public Prosecutor at Diyarbakir State Security Court , the applicants, and moreover the other villagers, were unable to identify any member of the security forces as the perpetrator of the alleged offence.  The difficulties encountered by the judicial authorities in charge of this investigation were largely due to the lack of evidence against the security forces.

In view of these additional factors, which came to light when the Commission investigated the case, we believe that there was an effective remedy which the applicants failed to use, namely an administrative action and that, consequently, the Government's application under Article 29 of the Convention (art. 29) should have been granted.

...

As has been proved by the investigation of the case, the criminal proceedings brought by the prosecution at the applicants' instigation came to nothing owing to the lack of probative evidence.  Having regard to the nature of the complaints, which centre mainly on the destruction of houses, allegedly by the security forces, it is quite clear that in the absence of even the slightest shred of evidence, the prosecution was bound to fail.  This is unsurprising, as the rules governing criminal responsibility are inspired by the same principles in all the member States of the Council of Europe .

However, as shown by the ample documentation already submitted by the Government, which will have to be studied more attentively, and the numerous judgments of which we have obtained copies, there was an effective remedy available to the applicants which was sufficiently certain both in theory and in practice.  This body of case-law shows that other Turkish citizens faced with problems which were, ultimately, very similar to those faced by the applicants (the destruction of houses and various items of property) were able in a relatively short time to obtain satisfaction in the form of financial compensation.

The applicants did not take any such steps, however.  They merely wrote letters to certain authorities asking for compensation.  This point is worth emphasising, as it proves that the aim pursued by the applicants was indeed to obtain financial compensation.  As has been said, they could have brought an administrative action to obtain this, but omitted to take that step.  Instead of pursuing that course of action, they chose the most precarious option in the circumstances, i.e. to bring criminal proceedings.

We should emphasise here that the situation would have been entirely different if the applicants had chosen to bring an administrative action.  The victim of an administrative act may in the first instance complain of non-pecuniary or pecuniary damage by filing a preliminary application with the authorities.  The authorities must then reply within sixty days.  Should they fail to reply within that period, the application is deemed to be dismissed.  The plaintiff can then bring an administrative action by filing a simple application with the administrative court.

Applicants merely have to prove before the administrative courts that they have suffered damage in order to obtain compensation; they do not have to prove that the authorities have made an administrative error.  Once the administrative court has established that the victim has suffered loss, it determines the amount of compensation to be paid to him or her.

It should be recalled that the Supreme Administrative Court ( Danistay ) applies the criterion of `objective liability of the authorities'.  On the basis of that criterion, which has been applied by the administrative courts since 1965, the authorities are liable according to the principle that the burden of difficulties facing a nation should be shared by all citizens.  It is not necessary to prove fault on the part of the Government's agents.  It is sufficient to prove that damage has occurred as a result of the act complained of.  The fact that the act in question has been committed by the authorities or by a third party does not prevent compensation from being awarded.

For example, where a vehicle was destroyed by shots fired by fighter aircraft, the Supreme Administrative Court, in its Mizgin Yilmaz v. Ministry of Defence judgment of 21 March 1995 (E. no. 1994/5656, K. no. 1995/1262), found that `even if the authorities have not been negligent, the plaintiff must be awarded compensation in accordance with the principle that all citizens must share equally the burden of any constraints arising from tasks assumed by the State in the public interest and that such compensation is a necessary consequence of the 'social' nature of the State ... Semdinli District Court's finding of damage and the expert report ordered by the administrative court show that the amount of compensation sought by the applicant is reasonable'.

In a case in which the driver of a car was killed by police officers when he refused to stop at a checkpoint, Diyarbakir Administrative Court, in its Sabriye Kara v. Ministry of the Interior judgment of 27 January 1994 (E. no. 1990/870 and K. no. 1994/31), held that `the authorities had a duty to compensate the damage, whether or not they were at fault or had acted negligently.  Moreover, there does not have to be a causal link between the damage and the authorities' acts.

Where the authorities cannot avoid the adverse consequences of terrorist activities, they must pay the victims compensation in accordance with the 'social' responsibility assumed by the State, given that such damage results from a 'social risk'.'

The administrative courts have delivered a plethora of decisions to the effect that the authorities have `objective liability' (i.e. not fault-based).  These show that the case-law in this area is consistent.  We shall quote the following decisions as examples:

- Decision of the Supreme Administrative Court of 6 June 1995 in the case of Osman Kaya and Cemil Kaya v. Ministry of the Interior: this concerned the destruction of the plaintiffs' house, loft, stable and all moveable property during fighting between the security forces and terrorists. The Supreme Administrative Court upheld Diyarbakir Administrative Court 's judgment ordering the authorities to compensate the plaintiffs in accordance with the theory of `social risk'.  The administrative court held that the concept of the authorities' liability should not be limited to an administrative error or objective liability related to strict conditions, but should also comprise the so-called `social risk' principle.

- Judgment of Diyarbakir Administrative Court of 10 December 1991 in the case of Behiye Toprak v. Ministry of the Interior; decision of the Supreme Administrative Court of 13 October 1993 in the same case: the plaintiff's husband was killed by terrorists while travelling in his minibus.  The plaintiff complained of `loss of bread-winner' and claimed pecuniary and non-pecuniary damages.  The administrative court found against the State on the basis of the theory of social risk.  It held that the authorities were obliged to compensate damage caused by third parties which they were unable to prevent despite their duty to do so, even if they were not responsible for that damage.  The Supreme Administrative Court upheld that judgment.

- Judgment of Diyarbakir Administrative Court of 28 April 1994 in the case of Münire Temel v. Ministry of the Interior: the plaintiff's son was kidnapped and murdered by the PKK. Diyarbakir Administrative Court ordered the authorities to compensate the plaintiff for pecuniary and non-pecuniary loss on grounds of their objective liability.  It held that `all Turkish citizens have ... the right to a decent standard of living ... and to material and spiritual prosperity...'.  The court held that it would be contrary to the principle of equality if the State were to compensate damage suffered as a result of public services provided by its own bodies (agents), but remained indifferent to damage suffered by its citizens. The administrative court delivered this judgment after its preliminary ruling had been quashed by the Supreme Administrative Court .  The preliminary ruling had granted the plaintiff compensation for non-pecuniary damage but not for pecuniary damage.

- Judgment of Diyarbakir Administrative Court of 8 March 1994 in the case of Cüneyt Alphan v. Ministry of the Interior: the plaintiff's house was burnt down during fighting between terrorists and security forces.  The applicant claimed damages. Diyarbakir Administrative Court held that, even where the authorities had not made an administrative error, they had to pay the applicant compensation on grounds of their `strict liability'.

- Judgment of Diyarbakir Administrative Court of 25 January 1994 in the case of Hüsna Kara and Others v. Ministry of the Interior: the plaintiff's husband was killed by unknown persons.  The applicant sued the authorities for damages.  The administrative court ordered the authorities to compensate the plaintiff on the basis of the theory of social risk, holding that, as the plaintiff had had no part in any terrorist activity, her loss was not caused by her own negligence but by difficult circumstances facing society.

- Judgment of Diyarbakir Administrative Court of 21 June 1994 in the case of Guli Akkus v. Ministry of the Interior: the plaintiff's common-law husband was killed by security forces during an illegal demonstration.  The administrative court ordered the authorities to compensate the plaintiff's loss. The Supreme Administrative Court quashed that judgment on the ground that the applicant and her common-law husband were not legally married.  The administrative court upheld its own decision, however, and ordered the authorities to compensate the plaintiff.  It held that the plaintiff and her common-law husband had been living together as man and wife. It held further that the authorities should compensate damage caused by their agents, even if that damage had been caused by negligence.

The foregoing case-law shows that, if the applicants had applied to the administrative courts, they could have obtained an order against the authorities for compensation of their loss on grounds of objective liability.  The administrative courts would not have needed to establish that the soldiers had unlawfully and negligently destroyed the houses in question. They would merely have had to establish the damage and to determine the amount of compensation to be awarded.

One should not lose sight of the fact that the applicants, like all the other villagers whose houses were damaged, were seeking to obtain compensation (see paragraphs 54, 55, 56, 57, 61, 65, 66, 68, 69, 71, 73, 75 [of the Commission's report]).

We note here that the continuing activities of the security forces did not in any way prevent the applicants from applying to the courts for compensation.  Admittedly, the PKK was very active in the area in which the applicants' village was situated.  However, the applicants went to Diyarbakir after the events of November 1992.

Once the applicants and villagers arrived at Diyarbakir , they applied to certain public authorities, including Government authorities, i.e. the Regional Governor and the President of the Republic, for compensation (see, for example, paragraphs 83 and 99).

These applications cannot, however, be considered to be legal proceedings under Turkish law.  The applicants merely needed to consult a lawyer to learn of the possibility of bringing an action for damages before the administrative courts (see paragraph 122).

We note also, in this respect, that it has not been established before the Commission that the administrative court judges do not rule impartially in cases in which actions of the security forces are challenged.  Nor has it been proved that there is a general lack of confidence in the remedies available under administrative law in the region in question.

The evidence obtained by the Commission during its investigation into whether the complaints were founded shows that the members of Diyarbakir Human Rights Association failed to inform the applicants properly of the possibility of applying to the administrative courts (see paragraph 96) or misinformed them as to the appropriate national authorities to which they should apply (see paragraph 115).  In any event, they advised the applicants to lodge an application directly with the Commission (see paragraph 130).

It also transpires from the witness statements obtained by the Commission that the real aim of the members of Diyarbakir Human Rights Association in lodging several individual applications was to argue before the international courts that domestic remedies were ineffective in an area which had been declared to be in a state of emergency (see paragraphs 115 and 130) and that they gave the applicants bad advice.

Consequently, we believe we have shown that the applicants had an effective remedy in Turkish law in that they could have submitted to the administrative courts the complaints which they now raise before the Commission.  Although the financial compensation which they stood to gain flowed from the principle of the State's objective liability for acts allegedly committed by the security forces, such compensation cannot be paid until the administrative courts have established that damage has been caused due to the State's failure to comply with its duty to strike a fair balance between individual rights and the legitimate rights of the general public.  Such a finding would have been sufficient compensation for the non-pecuniary loss suffered by the interested parties, especially as, in this case, they confined their claims to compensation for the losses suffered."

17. I now turn to a judgment of the Court of Cassation in which it was held that the civil courts had jurisdiction in respect of damage sustained as a result of the actions of State officials.

"Brief summary of judgment CC2

4th Civil Division of the Court of Cassation - judgment of 17 November 1986

The Court of Cassation quashed the judgment of the court of first instance dismissing the plaintiff's action in damages against the Ministry of the Interior and two police officers who had allegedly tortured him during interrogation on suspicion of homicide.  According to the judgment, as the identity of the torturer could not be established, the authorities could not be held liable for the personal fault of their agents.

The Court of Cassation, however, held that:

(a) acts such as torture committed by public servants which could not under any circumstances be qualified as administrative acts became unlawful acts and therefore acts governed by the Code of Obligations;

(b) Article 129/5 of the Constitution which provided that actions in damages resulting from faults committed by public servants in the exercise of their powers must be brought against the authorities, was not an absolute rule and did not apply to unlawful acts which manifestly exceeded any exercise of power or authority.  On the contrary, public servants were not entitled to benefit from this constitutional safeguard in such circumstances;

(c) further, the fact that there had been an acquittal through lack of evidence was not binding upon the civil courts. On the contrary, it was necessary to take into account the plaintiff's statement to the effect that he had identified one of the policemen who had tortured him.

For these reasons, the Court of Cassation held that the civil courts had jurisdiction in respect of unlawful acts committed by a public servant who had exceeded his powers." (case of Akdivar and Others v. Turkey , Annexes 2-7, Cour (96) 113 ANN 2, p. 200; see also the other judgments of the same type on pages 202, 205 and 206)

18.  There were therefore three kinds of domestic remedy - in the administrative, civil and criminal courts.  I admit that the remedy with the least prospects of success was the criminal one, since under Turkish law it is not possible, as it is under French law, either to lay an information against a person or persons unknown before the judge having jurisdiction or to lodge a civil party application with the criminal court which sets criminal proceedings in motion.  In addition, it should not be forgotten that where the offenders in a criminal case are not identified the strict liability principle is inoperative. However, it is possible to speculate that if the applicants deigned to apply to the administrative or civil courts the resulting proceedings would provide an opportunity to identify those responsible.

19. Like the applicants, the Commission and the Court seem to criticise and turn to their own account the inactivity and insensitivity of the authorities in the face of these regrettable events in order to reach the conclusion that existing remedies were inaccessible and/or ineffective or insufficient (see paragraph 73, first sub-paragraph).  In the first place, as I have already said (see paragraph 8 above), that assertion is not correct.  Secondly, one can criticise the conduct of the administrative authorities if one wishes to do so.  Under a political regime where there is a separation rather than an amalgamation of powers and where the judiciary is independent and impartial vis-à-vis the other branches of State authority, I wonder how the conduct of the administrative authorities can influence the administration of justice.  If at the same time the immobility of the courts is criticised, how is it possible for a court to deal with a case of its own motion or for the prosecuting authorities to perform their duties if those directly concerned do not help them to do so in such situations?

20.  The second sub-paragraph of paragraph 73 contains suppositions which, taken to be real facts, were given as the reasons for not requiring compliance with such an imperative requirement for the application of the Convention as the exhaustion-of-domestic-remedies rule.  These assertions, which were pure suppositions at the time when the Court considered the case, would now be shown to be true or false if the applicants had applied in the first place to the Turkish courts before submitting their case to the international institutions.  If the latter had not then been satisfied with the result, they would have been able to rule on the merits of the case in full knowledge of the facts instead of proceeding by supposition and deduction.

Lastly, the Court took the view that the existing remedies were not adequate and sufficient because they were not appropriate to the complaints raised by the applicants (see paragraph 72 of the judgment).

The function of the Strasbourg institutions does not depend on the applicants' claims.  The Convention itself defines their powers, namely finding that there has or has not been a breach of one of its provisions (Articles 19, 31 para . 1, 45 and 50) (art. 19, art. 31-1, art. 45, art. 50), but not verifying whether there was a domestic remedy whereby "those responsible for the applicants' complaints could be identified", as they would have wished.

States are free to choose what means they should employ to achieve the aim of the Convention, namely "to ensure the observance of the engagements undertaken by the High Contracting Parties in the present Convention".

21. Even supposing that a potential applicant is free to choose one of a number of different domestic remedies, what must we say of a case like this one, where the applicants have not chosen any?

22.  Consequently, the applicants did not give the Turkish courts the opportunity, which Article 26 (art. 26) is intended to afford to Contracting States, of putting right the violations alleged against them.  The objection of non-exhaustion is accordingly well-founded. The Court cannot deal with the merits of the case, for failure to exhaust domestic remedies.

23.  The above considerations dispense me from stating my vi ews on the merits of the case.

[1] The case is numbered 99/1995/605/693.  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 entry 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-IV), but a copy of the Commission's report is obtainable from the registry.