PARTLY DISSENTING OPINION OF MR. G. RESS

     I am not in agreement with the majority of the Commission on the

question of whether there has been a violation of Articles 3 and 6 of

the Convention. Moreover, my reasons for finding a violation of

Article 13 of the Convention differ from those of the majority.

     As regards Article 3 of the Convention, I share the views

expressed by Ms. Liddy and Mr. Cabral Barreto that the measures taken

in this case, did not so severely disregard the situation of the seven

applicants that they can be considered as inhuman or degrading

treatment. Certainly more careful measures could have been adopted in

the situation, but leaving the applicants without any help when their

houses were destroyed cannot be regarded as treatment coming within the

scope of Article 3.

     Concerning the application of Articles 6 or 13 of the Convention,

I share the views of MM Bratza, Schermers and Nørgaard. One point

should be added:

     The Government have tried to demonstrate that actions in the

administrative courts for compensation on the basis of the doctrine of

"social risk" were open to the applicants. However, they have not shown

any specific case realistically comparable to the situation of

destruction of villages perpetrated by armed forces of either the State

or unknown denomination. One would normally expect that, having in mind

the events which took place in South East Turkey in the last years

during the fight against terrorism, a multitude of actions in the

administrative courts for compensation should either be pending or

already decided. One would furthermore expect that the Government, who

do not deny that the destruction of the applicants' houses occurred,

would, on the basis of their own contentions, and on the basis of the

doctrine of "social risk", not contest the objective responsibility of

the State to grant compensation in these cases.

     Whether the PKK or the security forces destroyed the houses seems

to be irrelevant in the light of the doctrine of "social risk", since

there seems to be a general obligation for the State to prevent such

events by adequate measures wherever they arise. If they occur

nevertheless, be it with or without fault on the part of the State

authorities, then the State is responsible and liable for not having

taken adequate measures to prevent them. The Council of State

established this responsibility even in a case of damage caused by an

unidentified aircraft. Therefore it seems even the more surprising that

there is no substantial evidence of an administrative court practice

for such situations in South East Turkey.

     This can probably only be explained by the fact that people fear

to seize the courts, or that they are discouraged to do so by local

authorities. It might be a question of the whole climate which creates

a difficult situation for both the State and its citizens, where the

mere existence of these remedies is not sufficient for their

effectiveness. Furthermore, it strikes me in this context, that the

Government have not themselves proposed specific compensation in cases

like those of the applicants, where the responsibility of the State to

pay compensation according to the doctrine of "social risk" seems to

be evident even on the basis of the Government's contentions. This is

another element which makes it rather difficult to conclude that the

remedies provided by the administrative courts are effective even

conceding that there is a difference between possible court actions and

their outcome and the ex ante acceptance of potential claims by the

Government.