PARTLY DISSENTING OPINION OF MR. N. BRATZA

       JOINED ON THE WHOLE OPINION BY MR. H.G. SCHERMERS

     AND ON THE ISSUE UNDER ARTICLE 13 OF THE CONVENTION

                 JOINED BY MR. C. A. NØRGAARD

     I agree with the conclusion and reasoning of the majority of the

Commission in respect of the issues under Articles 3, 5, 8, 14, 18 and

25 of the Convention and under Article 1 of Protocol No. 1.  However,

on the question of remedies, I see the principal issue as one of the

effectiveness of the remedies available in the applicants' case

(thereby giving rise to problems under Article 13 of the Convention),

rather than of access to a court under Article 6.

     Article 6 of the Convention guarantees, inter alia, a right of

effective access to a court for the determination of civil rights and

obligations and further lays down certain procedural safeguards to

ensure the fair determination of disputes concerning such rights and

obligations.  The Article, as interpreted by the Court, protects

against unjustified restrictions of a substantive or procedural nature

on effective access to Court.  But it is not primarily designed to

guarantee the effectiveness of the remedies available in the domestic

legal system.  Further, it is well established that the right of access

to a court guaranteed by the Article cannot be interpreted as

conferring a right to bring criminal proceedings, or to have criminal

proceedings brought, against a third person.

     Article 13, on the other hand, is specifically designed to ensure

that persons with an arguable claim to be victims of a violation of the

rights guaranteed by the Convention are provided by a national

authority with a remedy which is an effective remedy.  Such remedies

include but are not limited to Court remedies.

     In the present case the Government have set out in detail the

various remedies which it is claimed were at all times open to the

applicants, including in particular an action in the Administrative

Court for compensation under Article 125 of the Turkish Constitution,

as reflected in additional Article 1 of the Law 2935 of

25 October 1983.  The applicants have not disputed the general scheme

of the remedies described by the Government or the theoretical

existence of a right of action under Article 125; nor do they dispute

that it was in principle open to them to bring such an action.  Their

complaint is rather that neither this nor any of the other suggested

remedies was an effective remedy in the special circumstances of the

destruction of villages and the expulsion of villagers by the security

forces in South-East Turkey.

     It was similarly the lack of effectiveness of the available

remedies which was at the heart of the Commission's admissibility

decision, rejecting the Government's submission that the applicants had

failed to exhaust their domestic remedies.  The Commission in its

decision placed special reliance on two factors which in its view cast

doubt on whether the remedies were effective remedies:  the fact that,

although the destruction of homes and property had been a frequent

occurrence in South-East Turkey, no example had been given of

compensation being awarded to villagers for damage in circumstances

directly similar to those in the present case; and the fact that no

significant examples had been given of the successful prosecution of

members of the security forces for the destruction of villages and the

expulsion of villagers.

     In paragraphs 235-238 of its Report, the Commission not only

confirms this opinion but notes that it has been reinforced by the

evidence taken in the present case which demonstrates that, despite the

various petitions made by the Kelecki villagers, no State authority

took up the plight of the villagers or referred them to a competent

authority.  This in the view of the Commission made it unrealistic to

expect the villagers to pursue theoretical Administrative Court or

other remedies, when the investigating mechanism in the emergency area

was deaf to allegations concerning the security forces.

     I entirely agree with this view.  But while the conclusion to be

drawn from this is in the view of the majority that the applicants did

not have effective access to a tribunal, I prefer to see it rather as

a case where the remedies which were in theory available under domestic

law, including court remedies, were in the circumstances of the case

illusory and ineffective.

     For these reasons I have voted in favour of a violation of

Article 13 and not Article 6 of the Convention in the present case.

                                                  (Or. English)