PARTLY DISSENTING OPINION OF JUDGE HEDIGAN JOINED BY JUDGE KŪRIS

I am in agreement with the decision of the Court save only where it finds that the respondent State has not failed to comply with its obligations under former Article 25 § 1 of the Convention. In this regard I must regretfully dissent from the decision of the majority.

Article 25 (now replaced by Article 34) is central to the system of individual petition. Applicants must be able to bring their complaints before the Court without fear of reprisal and free from all intimidation aimed at raising a fear of such reprisal or indeed any form of prejudice in the future as a result of their application. There must be no pressure brought to bear with the hidden aim of such intimidation. Such pressure may take many forms and the questioning of applicants about their application to the Court without convincing explanation by the authorities as to the reasons therefor must always in my opinion give rise to a presumption that such questioning was in fact illicit pressure.

I agree that each case must be judged on its own facts as to whether illicit pressure was brought to bear. Nonetheless, as a general rule, in my opinion, where authorities bring before them an applicant to the European Court of Human Rights and question them about their application, a presumption arises that it is with the intention of discouraging them from proceeding.

In this case, the Court has found (see paragraph 130 above) that on 29 September 1994 the applicant was questioned about the subject matter of his application to the Commission by the gendarmes. He also had been summoned to an interview with the Silvan public prosecutor which took place the following day. No reasons have been advanced as to why the gendarmes needed to conduct such an interview prior to the applicant’s interview with the prosecutor the following day. Such actions call for a clear and convincing explanation from the respondent authorities. No such explanation has been forthcoming.

In the circumstances, in my opinion, the presumption I refer to above has not been rebutted and I therefore find that the Government have failed to comply with their undertaking not to hinder in any way the effective exercise of the right of petition under the Convention (see the Bilgin v. Turkey (Section 2) judgement of 16 November 2000, § 134, unreported).

I should add that even if I did not believe that a presumption arises as I note above, on the facts of this case I would still have found that the coincidence of the dates of interview without explanation provides the factual basis upon which to conclude that the authorities of the respondent State did in fact attempt to intimidate the applicant by questioning him about his application.