JOINT DISSENTING OPINION OF MR. GÖZÜBÜYÜK AND MR. WEITZEL

  ON THE ISSUES UNDER ARTICLES 3, 6 AND 13 OF THE CONVENTION

     On 19 October 1994 the Commission unanimously declared the

present application admissible.  As to whether domestic remedies have

been exhausted, the Commission considered in this case and on the basis

of information before it regarding the possibility of bringing an

administrative action, that the Government had failed to provide a

single example of compensation being awarded to villagers for damage

comparable to that suffered by the applicants.  As regards the

possibility of bringing criminal proceedings, the Commission found

that, given the circumstances of the case, a prosecution would have

been wholly ineffective.

     The respondent Government subsequently reiterated their argument

that domestic remedies had not been exhausted in this case and

requested the application of Article 29 of the Convention.

     We feel it important to specify from the outset that two of the

complaints concern the alleged lack of effective remedies and that the

applicants rely on Articles 6 and 13 of the Convention to support their

submissions.

     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 should have been

granted.

     We feel it important to recall that the rule of exhaustion of

domestic remedies 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 (Eur. Court H.R.,

De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12,

p. 29, para. 50) on condition, however, that such remedies are

effective and sufficient, i.e. capable of providing redress for the

applicants' complaints.

     As has been proved by the investigation of the case, the criminal

proceedings brought by the prosecution on 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 emphasizing, 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.

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     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 60 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 Council of State 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 Council of State, in its "Mizgin Yilmaz

v/Ministry of the Defence" judgment of 21.03.1995 (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 Court has 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 Council of State of 6.6.1995 in the Osman KAYA

and Cemil KAYA v/Ministry of the Interior case: this concerned the

destruction of the plaintiffs' house, loft, stable and all moveable

property during fighting between the security forces and terrorists.

The Council of State 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 10.12.1991 in the

Behiye TOPRAK v/Ministry of the Interior case; decision of the Council

of State 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 Council of State upheld

that judgment.

-    Judgment of Diyarbakir Administrative Court of 28.04.1994 in the

Münire TEMEL v/Ministry of the Interior case: 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 Council

of State.  The preliminary ruling had granted the plaintiff

compensation for non-pecuniary damage but not for pecuniary damage.

-    Judgment of Diyarbakir Administrative Court of 8.3.1994 in the

Cüneyt ALPHAN v/Ministry of the Interior case: 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 Hüsna KARA and Others v/Ministry of the Interior case: 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 21.6.1994 in the

Guli AKKUS v/Ministry of the Interior case: 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 Council of State 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.

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     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).

     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, paras. 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 Court (see para. 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 para. 96) or misinformed them as to the appropriate national

authorities to which they should apply (see para. 115).  In any event,

they advised the applicants to lodge an application directly with the

Commission (para. 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

paras. 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.

     For the reasons set out above, we do not find that there has been

a violation of Article 6 and 13 of the Convention.

     As regards the complaint under Article 3 of the Convention, it

is our opinion that in the light of the additional evidence obtained

during the investigation and on the basis of all the considerations

which we have set out here, the Commission cannot examine the merits

of the case, as domestic remedies have not been exhausted.