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  • Решения Европейского Суда по прецедентным делам

    in Russian

    In the case of Aksoy v. Turkey (1),

            The European Court of Human Rights, sitting, in accordance with
    Article 43 (art. 43) of the Convention for the Protection of
    Human Rights and Fundamental Freedoms ("the Convention") and the
    relevant provisions of Rules of Court A (2), as a Chamber composed of
    the following judges:

            Mr  R. Ryssdal, President,
            Mr  Thór Vilhjálmsson,
            Mr  F. Gölcüklü,
            Mr  L.-E. Pettiti,
            Mr  J. De Meyer,
            Mr  J.M. Morenilla,
            Mr  A.B. Baka,
            Mr  J. Makarczyk,
            Mr  U. Lohmus,

    and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
    Registrar,

            Having deliberated in private on 27 April, 24 October and
    26 November 1996,

            Delivers the following judgment, which was adopted on the
    last-mentioned date:
    _______________
    Notes by the Registrar

    1.  The case is numbered 100/1995/606/694.  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.
    _______________

    PROCEDURE

    1.      The case was referred to the Court on 4 December 1995 by the
    Government of Turkey ("the Government") and on 12 December 1995 by the
    European Commission of Human Rights ("the Commission"), within the
    three-month period laid down by Article 32 para. 1 and Article 47 of
    the Convention (art. 32-1, art. 47).  It originated in an application
    (no. 21987/93) against the Republic of Turkey lodged with the
    Commission under Article 25 (art. 25) on 20 May 1993 by Mr Zeki Aksoy,
    a Turkish citizen.

            The Government's application referred to Article 48 (art. 48);
    the Commission's request referred to Articles 44 and 48 (art. 44,
    art. 48) and to the declaration whereby Turkey recognised the
    compulsory jurisdiction of the Court (Article 46) (art. 46).  The
    object of the request and of the application was to obtain a decision
    as to whether the facts of the case disclosed a breach by the
    respondent State of its obligations under Articles 3, 5 para. 3,
    6 para. 1 and 13 of the Convention (art. 3, art. 5-3, art. 6-1,
    art. 13).

    2.      On 16 April 1994 the applicant was shot and killed.  On
    20 April 1994 his representatives informed the Commission that his
    father wished to continue with the case.

    3.      In response to the enquiry made in accordance with Rule 33
    para. 3 (d) of Rules of Court A, the applicant's father (who shall,
    henceforward, also be referred to as "the applicant") stated that he
    wished to take part in the proceedings and designated the lawyers who
    would represent him.

            On 26 March 1996 the President granted leave, pursuant to
    Rule 30 para. 1, to Ms Françoise Hampson, a Reader in Law at the
    University of Essex, to act as the applicant's representative.

    4.      The Chamber to be constituted included ex officio
    Mr F. Gölcüklü, the elected judge of Turkish nationality (Article 43
    of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
    Court (Rule 21 para. 3 (b)).  On 5 December 1995, in the presence of
    the Registrar, the President drew by lot the names of the other
    seven members, namely Mr L.-E. Pettiti, Mr J. De Meyer,
    Mr J.M. Morenilla, Mr F. Bigi, Mr A.B. Baka, Mr J. Makarczyk and
    Mr U. Lohmus (Article 43 in fine of the Convention and Rule 21
    para. 5) (art. 43).  Following the death of Mr Bigi,
    Mr Thór Vilhjálmsson, the first substitute, became a member of the
    Chamber.

    5.      As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
    acting through the Registrar, consulted the Agent of the Government,
    the applicant's lawyers and the Delegate of the Commission on the
    organisation of the proceedings (Rules 37 para. 1 and 38).  Pursuant
    to the order made in consequence, the Registrar received the
    applicant's memorial on 7 March 1996 and the Government's memorial on
    15 March 1996.

    6.      In accordance with the President's decision, the hearing took
    place in public in the Human Rights Building, Strasbourg, on
    26 April 1996.  The Court had held a preparatory meeting beforehand.

            There appeared before the Court:

    (a) for the Government

        Mr B. Çaglar, Ministry of Foreign Affairs,                 Agent,
        Ms D. Akçay,
        Mr T. Özkarol,
        Mr A. Kurudal,
        Mr F. Erdogan,
        Mr O. Sever,
        Ms M. Gülsen,                                            Counsel;

    (b) for the Commission

        Mr H. Danelius,                                         Delegate;

    (c) for the applicant

        Ms F. Hampson, University of Essex,
        Mr K. Boyle, Barrister-at-Law,                           Counsel,
        Mr K. Yildiz,
        Mr T. Fisher,
        Ms A. Reidy,                                            Advisers.

            The Court heard addresses by Mr Danelius, Ms Hampson, Mr Çaglar
    and Ms Akçay.

    AS TO THE FACTS

    I.      Circumstances of the case

            A.  The applicant

    7.      The applicant, Mr Zeki Aksoy, was a Turkish citizen who, at the
    time of the events in question, lived in Mardin, Kiziltepe, in
    South-East Turkey, where he was a metal worker.  He was born in 1963
    and was shot and killed on 16 April 1994.  Since then, his father has
    indicated that he wishes to pursue the case (see paragraph 3 above).

            B.  The situation in the South-East of Turkey

    8.      Since approximately 1985, serious disturbances have raged in
    the South-East of Turkey between the security forces and the members
    of the PKK (Workers' Party of Kurdistan).  This confrontation has so
    far, according to the Government, claimed the lives of 4,036 civilians
    and 3,884 members of the security forces.

    9.      At the time of the Court's consideration of the case, ten of
    the eleven provinces of south-eastern Turkey had since 1987 been
    subjected to emergency rule.

            C.  The detention of the applicant

    10.     The facts in the case are in dispute.

    11.     According to the applicant, he was taken into custody on
    24 November 1992, between 11 p.m. and midnight.  Approximately
    twenty policemen had come to his home, accompanied by a detainee called
    Metin who, allegedly, had identified the applicant as a member of the
    PKK, although Mr Aksoy told the police that he did not know Metin.

    12.     The Government submitted that the applicant was arrested and
    taken into custody on 26 November 1992 at around 8.30 a.m., together
    with thirteen others, on suspicion of aiding and abetting
    PKK terrorists, being a member of the Kiziltepe branch of the PKK and
    distributing PKK tracts.

    13.     The applicant stated that he was taken to
    Kiziltepe Security Headquarters.  After one night, he was transferred
    to Mardin Antiterrorist Headquarters.

            He was allegedly detained, with two others, in a cell measuring
    approximately 1.5 x 3 metres, with one bed and a blanket, but no
    pillow.  He was provided with two meals a day.

    14.     He was interrogated about whether he knew Metin (the man who
    had identified him).  He claimed to have been told: "If you don't know
    him now, you will know him under torture."

            According to the applicant, on the second day of his detention
    he was stripped naked, his hands were tied behind his back and he was
    strung up by his arms in the form of torture known as
    "Palestinian hanging".  While he was hanging, the police connected
    electrodes to his genitals and threw water over him while they
    electrocuted him.  He was kept blindfolded during this torture, which
    continued for approximately thirty-five minutes.

            During the next two days, he was allegedly beaten repeatedly
    at intervals of two hours or half an hour, without being suspended.
    The torture continued for four days, the first two being very
    intensive.

    15.     He claimed that, as a result of the torture, he lost the
    movement of his arms and hands.  His interrogators ordered him to make
    movements to restore the control of his hands.  He asked to see a
    doctor, but was refused permission.

    16.     On 8 December 1992 the applicant was seen by a doctor in the
    medical service of the sub-prefecture.  A medical report was prepared,
    stating in a single sentence that the applicant bore no traces of blows
    or violence.  According to Mr Aksoy, the doctor asked how his arms had
    been injured and was told by a police officer that he had had an
    accident.  The doctor then commented, mockingly, that everyone who came
    there seemed to have an accident.

    17.     The Government submitted that there were fundamental doubts as
    to whether the applicant had been ill-treated while in police custody.

    18.     On 10 December 1992, immediately before his release, Mr Aksoy
    was brought before the Mardin public prosecutor.

            According to the Government, he was able to sign a statement
    denying any involvement with the PKK and made no complaint about having
    been tortured.

            The applicant, however, submitted that he was shown a statement
    for signature, but said that its contents were untrue.  The prosecutor
    insisted he sign it but Mr Aksoy told him that he could not because he
    could not move his hands.

            D.  Events on the applicant's release

    19.     Mr Aksoy was released on 10 December 1992.  He was admitted to
    Dicle University Medical Faculty Hospital on 15 December 1992, where
    he was diagnosed as suffering from bilateral radial paralysis (that is,
    paralysis of both arms caused by nerve damage in the upper arms).  He
    told the doctor who treated him that he had been in custody and strung
    up with his arms tied behind his back.

            He remained at the hospital until 31 December 1992 when,
    according to the Government, he left without having been properly
    discharged, taking his medical file with him.

    20.     On 21 December 1992, the public prosecutor decided that there
    were no grounds to institute criminal proceedings against the
    applicant, although eleven of the others detained with him were
    charged.

    21.     No criminal or civil proceedings have been brought in the
    Turkish courts in relation to the alleged ill-treatment of the
    applicant.

            E.  The death of the applicant

    22.     Mr Aksoy was shot dead on 16 April 1994.

            According to his representatives, he had been threatened with
    death in order to make him withdraw his application to the Commission,
    the last threat being made by telephone on 14 April 1994, and his
    murder was a direct result of his persisting with the application.

            The Government, however, submitted that his killing was a
    settling of scores between quarrelling PKK factions.

            A suspect, allegedly a member of the PKK, has been charged with
    the murder.

            6.  The Commission's findings of fact

    23.     Delegates of the Commission heard evidence from witnesses in
    the case in Diyarbakir between 13 and 14 March 1995 and in Ankara
    between 12 and 14 April 1995, in the presence of representatives from
    both sides who were able to cross-examine the witnesses.  In addition,
    the Commission heard oral submissions on admissibility and the merits
    at hearings in Strasbourg on 18 October 1994 and 3 July 1995.

            After evaluating the oral and documentary evidence, the
    Commission came to the following conclusions with regard to the facts:

            (a) It was not possible to make a definite finding as to the
    date on which Mr Aksoy was arrested, although this clearly took place
    no later than 26 November 1992.  He was released on 10 December 1992,
    therefore he was detained for at least fourteen days.

            (b) On 15 December 1992 he was admitted to hospital and was
    diagnosed with bilateral radial paralysis.  He left hospital on
    31 December 1992 on his own initiative, without having been properly
    discharged.

            (c) There was no evidence that he had suffered any disability
    prior to his arrest, nor any evidence of any untoward incident during
    the five days between his release from police custody and his admission
    to hospital.

            (d) The Commission noted that the medical evidence indicated
    that the applicant's injuries could have had various causes, but one
    of these could have been the trauma suffered by a person who had been
    strung up by his arms.  Moreover, radial paralysis affecting both arms
    was apparently not a common condition, although it was consistent with
    the form of ill-treatment known as "Palestinian hanging".

            (e) The delegates heard evidence from one of the policemen who
    had interrogated Mr Aksoy and from the public prosecutor who saw him
    prior to his release; both claimed that it was inconceivable that he
    could have been ill-treated in any way.  The Commission found this
    evidence unconvincing, since it gave the impression that the
    two public officers were not prepared even to consider the possibility
    of ill-treatment occurring at the hands of the police.

            (f) The Government offered no alternative explanation for
    Mr Aksoy's injuries.

            (g) There was insufficient evidence to enable any conclusions
    to be drawn with regard to the applicant's other allegations of
    ill-treatment by electric shocks and beatings.  However, it did seem
    clear that he had been detained in a small cell with two other people,
    all of whom had had to share a single bed and blanket, and that he had
    been kept blindfolded during interrogation.

    II.     Relevant domestic law and practice

            A.  Criminal-law provisions against torture

    24.     The Turkish Criminal Code makes it an offence for a
    government employee to subject someone to torture or ill-treatment
    (Article 243 in respect of torture, and Article 245 in respect of
    ill-treatment).

    25.     Article 8 of Decree no. 430 of 16 December 1990 provides as
    follows:

            "No criminal, financial or legal responsibility may be claimed
            against the State of Emergency Regional Governor or a
            Provincial Governor within a state of emergency region in
            respect of their decisions or acts connected with the exercise
            of the powers entrusted to them by this decree, and no
            application shall be made to any judicial authority to this
            end.  This is without prejudice to the rights of an individual
            to claim indemnity from the State for damage suffered by them
            without justification."

    26.     Prosecutors are under a duty to investigate allegations of
    serious offences which come to their attention, even if no complaint
    is made.  However, in the state of emergency region, the investigation
    of criminal offences by members of the administration is taken up by
    local administrative councils, composed of civil servants.  These
    councils are also empowered to decide whether or not to bring a
    prosecution, subject to an automatic judicial review before the
    Supreme Administrative Court in cases where they decide not to
    prosecute (Legislative Decree no. 285).

            B.  Administrative law remedies

    27.     Article 125 of the Turkish Constitution provides as follows:

            "All acts or decisions of the administration are subject to
            judicial review ...

            The administration shall be liable to indemnify any damage
            caused by its own acts and measures."

            By virtue of this provision, the State is liable to indemnify
    any person who can prove that he has suffered damage in circumstances
    where the State has failed in its duty to safeguard individual life and
    property.

            C.  Civil proceedings

    28.     Any illegal act which causes damage committed by a
    civil servant (except the regional or district prefects in the
    state of emergency region) may be the subject of a claim for
    compensation before the ordinary civil courts.

            D.  The law relating to detention in police custody

    29.     Pursuant to Article 128 of the Code of Criminal Procedure, a
    person arrested and detained shall be brought before a justice of the
    peace within twenty-four hours.  This period may be extended to
    four days when the individual is detained in connection with a
    collective offence.

            The permissible periods of detention without judicial control
    are longer in relation to proceedings before the State security courts.
    In such a case, it is possible to detain a suspect for a period of
    forty-eight hours in connection with an individual offence, and
    fifteen days in connection with a collective offence (section 30 of
    Law no. 3842 of 1 December 1992, re-enacting Article 11 of Decree
    having the force of law no. 285 of 10 July 1987).

            In the region under emergency rule, however, a person arrested
    in connection with proceedings before the State security courts may be
    detained for four days in the case of individual offences and
    thirty days in the case of collective offences before being brought
    before a magistrate (ibid., re-enacting section 26 of Law no. 2935 of
    25 October 1983).

    30.     Article 19 of the Turkish Constitution gives to a detained
    person the right to have the lawfulness of his detention reviewed, on
    application to the court with jurisdiction over his case.

            E.  The Turkish derogation from Article 5 of the Convention
                (art. 5)

    31.     In a letter dated 6 August 1990, the Permanent Representative
    of Turkey to the Council of Europe informed the Secretary General of
    the Council of Europe that:

            "The Republic of Turkey is exposed to threats to its
            national security in South East Anatolia which have steadily
            grown in scope and intensity over the last months so as to
            amount to a threat to the life of the nation in the meaning of
            Article 15 of the Convention (art. 15).

            During 1989, 136 civilians and 153 members of the
            security forces have been killed by acts of terrorists, acting
            partly out of foreign bases.  Since the beginning of 1990
            only, the numbers are 125 civilians and 96 members of the
            security forces.

            The threat to national security is predominantly occurring in
            provinces [i.e. Elazig, Bingöl, Tunceli, Van, Diyarbakir,
            Mardin, Siirt, Hakkâri, Batman and Sirnak] of
            South East Anatolia and partly also in adjacent provinces.

            Because of the intensity and variety of terrorist actions and
            in order to cope with such actions, the Government has not
            only to use its security forces but also take steps
            appropriate to cope with a campaign of harmful disinformation
            of the public, partly emerging from other parts of the
            Republic of Turkey or even from abroad and with abuses of
            trade-union rights.

            To this end, the Government of Turkey, acting in conformity
            with Article 121 of the Turkish Constitution, has promulgated
            on May 10, 1990 the decrees with force of law nos. 424 and
            425.  These decrees may in part result in derogating from
            rights enshrined in the following provisions of the
            European Convention for Human Rights and Fundamental Freedoms:
            Articles 5, 6, 8, 10, 11 and 13 (art. 5, art. 6, art. 8,
            art. 10, art. 11, art. 13).  A descriptive summary of the new
            measures is attached hereto.  The issue of their compatibility
            with the Turkish Constitution is currently pending before the
            Constitutional Court of Turkey.

            The Government of Turkey will inform the Secretary General of
            the Council of Europe when the measures referred to above have
            ceased to operate.

            This notification is given pursuant to Article 15 (art. 15) of
            the European Convention of Human Rights."

            Attached to this letter was a "descriptive summary of the
    content of the Decrees which have the force of law nos. 424 and 425".
    The only measure therein described relating to Article 5 of the
    Convention (art. 5) was as follows:

            "The Governor of the state of emergency region can order
            persons who continuously violate the general security and
            public order, to settle at a place to be specified by the
            Minister of the Interior outside the state of emergency region
            for a period which shall not exceed the duration of the
            state of emergency ..."

    32.     By a letter of 3 January 1991 the Permanent Representative of
    Turkey informed the Secretary General that Decree no. 430 had been
    enacted, which limited the powers previously afforded to the Governor
    of the state of emergency region under Decrees nos. 424 and 425.

    33.     On 5 May 1992 the Permanent Representative wrote to the
    Secretary General that:

            "As most of the measures described in the decrees which have
            the force of Law nos. 425 and 430 that might result in
            derogating from rights guaranteed by Articles 5, 6, 8, 10, 11
            and 13 of the Convention (art. 5, art. 6, art. 8, art. 10,
            art. 11, art. 13) are no longer being implemented, I hereby
            inform you that the Republic of Turkey limits henceforward the
            scope of its Notice of Derogation with respect to Article 5 of
            the Convention (art. 5) only.  The Derogation with respect to
            Articles 6, 8, 10, 11 and 13 of the Convention (art. 6,
            art. 8, art. 10, art. 11, art. 13) is no longer in effect;
            consequently, the corresponding reference to these Articles
            (art. 6, art. 8, art. 10, art. 11, art. 13) is hereby deleted
            from the said Notice of Derogation."

    PROCEEDINGS BEFORE THE COMMISSION

    34.     In his application of 20 May 1993 (no. 21987/93) to the
    Commission, Mr Aksoy complained that he had been subjected to treatment
    contrary to Article 3 of the Convention (art. 3) during his detention
    in police custody in November/December 1992; that, during the course
    of his detention, he was not brought before a judge or other authorised
    officer in violation of Article 5 para. 3 (art. 5-3); and that he was
    not provided with the opportunity to bring proceedings against those
    responsible for his ill-treatment, in violation of Articles 6 para. 1
    and 13 (art. 6-1, art. 13).

            Following Mr Aksoy's death on 16 April 1994, his
    representatives alleged that the killing was a direct result of his
    application to the Commission and was an interference with his right
    of individual petition under Article 25 of the Convention (art. 25).

    35.     The Commission declared the application admissible on
    19 October 1994.  In its report of 23 October 1995 (Article 31)
    (art. 31), it expressed the opinion, by fifteen votes to one, that
    there had been a violation of Article 3 (art. 3) and that there had
    been a violation of Article 5 para. 3 (art. 5-3); by thirteen votes to
    three, that there had been a violation of Article 6 para. 1 (art. 6-1)
    and that no separate issue arose under Article 13 (art. 13); and,
    unanimously, that no further action need be taken in respect of the
    alleged interference with the effective exercise of the right of
    individual petition under Article 25 (art. 25).

            The full text of the Commission's opinion and of the
    two separate opinions contained in the report is reproduced as an annex
    to this judgment (1).
    _______________
    Note by the Registrar

    1.  For practical reasons this annex will appear only with the printed
    version of the judgment (in Reports of Judgments and
    Decisions 1996-VI), but a copy of the Commission's report is obtainable
    from the registry.
    _______________

    FINAL SUBMISSIONS TO THE COURT

    36.     At the hearing, the Government invited the Court to reject the
    application on the ground that the available domestic remedies had not
    been exhausted or, in the alternative, to find that there had been no
    violation of the Convention.

    37.     On the same occasion, the applicant asked the Court to find
    violations of Articles 3, 5, 6, 13 and 25 of the Convention (art. 3,
    art. 5, art. 6, art. 13, art. 25), and to rule that these breaches had
    been aggravated because the measures complained of formed part of an
    administrative practice.  He also requested just satisfaction pursuant
    to Article 50 of the Convention (art. 50).

    AS TO THE LAW

    I.      THE COURT'S ASSESSMENT OF THE FACTS

    38.     The Court recalls its constant case-law that under the
    Convention system the establishment and verification of the facts is
    primarily a matter for the Commission (Articles 28 para. 1 and 31)
    (art. 28-1, art. 31).  While the Court is not bound by the Commission's
    findings of fact and remains free to make its own appreciation in the
    light of all the material before it, it is only in exceptional
    circumstances that it will exercise its powers in this area (see the
    Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of
    Judgments and Decisions 1996-IV, p. 1214, para. 78).

    39.     In the instant case, it must be recalled that the Commission
    reached its findings of fact after a delegation had heard evidence in
    Turkey on two separate occasions, in addition to hearings in Strasbourg
    (see paragraph 23 above).  In these circumstances, the Court considers
    that it should accept the facts as established by the Commission
    (see, mutatis mutandis, the above-mentioned
    Akdivar and Others judgment, p. 1214, para. 81).

    40.     It is thus against the background of the facts as found by the
    Commission (see paragraph 23 above) that the Court must examine the
    Government's preliminary objection and the applicant's complaints under
    the Convention.

    II.     THE GOVERNMENT'S PRELIMINARY OBJECTION

            A.  The arguments of those appearing before the Court

    41.     The Government asked the Court to reject the applicant's
    complaint under Article 3 of the Convention (art. 3) on the ground
    that, contrary to Article 26 of the Convention (art. 26), he had failed
    to exhaust the domestic remedies available to him.  Article 26
    (art. 26) provides:

            "The Commission may only deal with the matter after all
            domestic remedies have been exhausted, according to the
            generally recognised rules of international law, and within a
            period of six months from the date on which the final decision
            was taken."

            The applicant (see paragraph 3 above), with whom the Commission
    agreed, argued that he had done all that could be expected of him to
    exhaust domestic remedies.

    42.     The Government contended that the rule relating to the
    exhaustion of domestic remedies was clearly established in
    international law and in the case-law of the Convention organs, and
    required the applicant to avail himself of all national remedies unless
    these clearly offered him no chance of success.  In fact, Mr Aksoy
    could have had recourse to three different types of domestic remedy:
    a criminal prosecution, a civil action and/or administrative
    proceedings (see paragraphs 24-28 above).

    43.     With regard to the first of these options, they submitted that
    he could have complained about the alleged ill-treatment to the
    public prosecutor who saw him on 10 December 1992 (see paragraph 18
    above).  However, according to the Government, Mr Aksoy gave no
    indication on that occasion or at any time subsequently that he had
    been ill-treated during his time in police custody.

            Articles 243 and 245 of the Criminal Code, which were in force
    throughout Turkey, penalised the use of torture and ill-treatment for
    the extraction of confessions (see paragraph 24 above).
    Legislative Decree no. 285 on the state of emergency region transferred
    the power to carry out investigations into criminal acts allegedly
    committed by civil servants from the public prosecutors to the
    administrative councils (see paragraph 26 above).  However, decisions
    by the administrative councils not to prosecute were always reviewed
    by the Supreme Administrative Court.  In this connection, the
    Government submitted a number of judgments reversing orders made by
    administrative councils in the state of emergency region and ordering
    criminal proceedings to be brought against members of the gendarmerie
    and security police in respect of allegations of ill-treatment of
    detainees, and other rulings on sentencing for similar forms of
    misconduct.

    44.     Nonetheless, the Government reasoned that criminal proceedings
    were perhaps not the most appropriate remedy in this type of case,
    because of the emphasis placed on the rights of the accused as opposed
    to those of the complainant.  They therefore drew the Court's attention
    to the existence of an administrative remedy under Article 125 of the
    Turkish Constitution (see paragraph 27 above).  In order to receive
    compensation under this provision, an individual needed only to show
    that there was a causal link between the acts committed by the
    administration and the wrong suffered; there was no requirement to
    prove serious misconduct on the part of a government agent.  In this
    connection, the Government submitted examples of administrative
    decisions in which compensation had been awarded in respect of death
    caused by torture in police custody.

    45.     In addition, the Government argued that Mr Aksoy could have
    brought a civil action for damages.  Again, they referred to a number
    of decisions of the domestic courts, including a judgment of the
    Court of Cassation in a case concerning a claim for damages for
    torture, where it was held that offences committed by members of the
    security forces were governed by the Code of Obligations and that,
    under Article 53 of that Code, an acquittal for lack of evidence in
    criminal proceedings was not binding on the civil courts.

    46.     While the applicant did not deny that the remedies identified
    by the Government were formally part of the Turkish legal system, he
    claimed that, in the region under emergency rule, they were illusory,
    inadequate and ineffective because both torture and the denial of
    effective remedies were carried out as a matter of administrative
    practice.

            In particular, he argued that reports by a number of
    international bodies showing that the torture of detainees continued
    to be systematic and widespread in Turkey raised questions about the
    commitment of the State to bringing an end to this practice.  In this
    respect he referred to the European Committee for the
    Prevention of Torture's Public Statement on Turkey (15 December 1992);
    the United Nations Committee against Torture's Summary Account of the
    Results of the Proceedings Concerning the Inquiry on Turkey
    (9 November 1993); and the United Nations Special Rapporteur on
    Torture's Report of 1995 (E/CN.4/1995/34).

    47.     He stated that there was a policy on the part of the
    State authorities of denying that torture ever took place, which made
    it extremely difficult for victims to succeed in receiving compensation
    and in having those responsible brought to justice.  For example, it
    was now impossible for individuals alleging torture to obtain medical
    reports proving the extent of their injuries, because the forensic
    medical service had been reorganised and doctors who issued such
    reports were either threatened or moved to a different area.
    Prosecutors in the state of emergency region routinely failed to open
    investigations into alleged abuses of human rights and frequently
    refused even to acknowledge complaints.  Such investigations as were
    carried out were biased and inadequate.  Furthermore, lawyers and
    others who acted for the victims of human rights violations were
    subjected to threats, intimidation and abusive prosecutions and
    individuals were afraid to pursue domestic remedies because reprisals
    against complainants were so common.

            In these circumstances, the applicant claimed that he should
    not be required to pursue domestic remedies before making a complaint
    to Strasbourg.

    48.     In any case, he maintained that he had informed the
    public prosecutor on 10 December 1992 that he had been tortured
    (see paragraph 18 above) and asserted that, even if he had not, the
    prosecutor could plainly have observed that he did not have the proper
    use of his hands.

            The failure of the prosecutor to start a criminal investigation
    made it extremely difficult for the applicant to avail himself of any
    domestic remedy.  It was not possible for him to take steps to ensure
    that a criminal prosecution was brought, for example by challenging a
    decision not to bring a prosecution in the administrative courts
    (see paragraph 26 above), because the lack of investigation meant that
    no formal decision not to prosecute was ever made.  In addition, this
    failure prejudiced his chances of victory in civil or administrative
    proceedings, because in order to succeed with either type of claim it
    would have been necessary to prove that he had suffered torture, and
    in practice a ruling to that effect by a judge in criminal proceedings
    would have been required.

    49.     Finally, he reminded the Court that no remedy was available
    even in theory in relation to his complaint regarding the length of
    time he was detained without judicial control, since this was perfectly
    lawful under the domestic legislation (see paragraph 29 above).

    50.     The Commission was of the opinion that the applicant had been
    injured during his time in police custody (see paragraph 23 above).
    It followed that, although it was not possible to establish exactly
    what happened during his meeting with the public prosecutor on
    10 December 1992, there must undoubtedly have been elements which
    should have prompted the latter to open an investigation or, at the
    very least, try to obtain further information about the applicant's
    state of health and the treatment to which he had been subjected.  The
    applicant had done all that could be expected of him in the
    circumstances, particularly in view of the facts that he must have felt
    vulnerable as a result of his detention and ill-treatment and that he
    suffered health problems requiring hospitalisation following his
    release.  The threats which he claimed to have received after
    making his application to the Commission and his death in circumstances
    which had not been fully clarified, were further elements which
    supported the view that the pursuance of remedies might have been
    attended by risks.

            In view of its finding that the applicant had done all that
    could be required of him to exhaust domestic remedies, the Commission
    decided that it was not necessary to determine whether there was an
    administrative practice on the part of the Turkish authorities of
    tolerating human rights abuses.

            B.  The Court's assessment

    51.     The Court recalls that the rule of exhaustion of domestic
    remedies referred to in Article 26 of the Convention (art. 26) obliges
    those seeking to bring their case against the State before an
    international judicial or arbitral organ to use first the remedies
    provided by the national legal system.  Consequently, States are
    dispensed from answering before an international body for their acts
    before they have had an opportunity to put matters right through their
    own legal systems.  The rule is based on the assumption, reflected in
    Article 13 of the Convention (art. 13) - with which it has close
    affinity -, that there is an effective remedy available in respect of
    the alleged breach in the domestic system whether or not the provisions
    of the Convention are incorporated in national law.  In this way, it
    is an important aspect of the principle that the machinery of
    protection established by the Convention is subsidiary to the
    national systems safeguarding human rights (see the
    Akdivar and Others judgment cited at paragraph 38 above, p. 1210,
    para. 65).

    52.     Under Article 26 (art. 26), normal recourse should be had by
    an applicant to remedies which are available and sufficient to afford
    redress in respect of the breaches alleged.  The existence of the
    remedies in question must be sufficiently certain not only in theory
    but in practice, failing which they will lack the requisite
    accessibility and effectiveness.

            However, there is no obligation to have recourse to remedies
    which are inadequate or ineffective.  In addition, according to the
    "generally recognised rules of international law" to which Article 26
    (art. 26) makes reference, there may be special circumstances which
    absolve the applicant from the obligation to exhaust the
    domestic remedies at his disposal.  The rule is also inapplicable where
    an administrative practice consisting of a repetition of acts
    incompatible with the Convention and official tolerance by the
    State authorities has been shown to exist, and is of such a nature as
    to make proceedings futile or ineffective (see the above-mentioned
    Akdivar and Others judgment, p. 1210, paras. 66 and 67).

    53.     The Court emphasises that its approach to the application of
    the rule must make due allowance for the fact that it is being applied
    in the context of machinery for the protection of human rights that the
    Contracting Parties have agreed to set up.  Accordingly, it has
    recognised that Article 26 (art. 26) must be applied with some degree
    of flexibility and without excessive formalism.  It has further
    recognised that the rule of exhaustion is neither absolute nor capable
    of being applied automatically; in reviewing whether it has been
    observed it is essential to have regard to the particular circumstances
    of each individual case.  This means amongst other things that it must
    take realistic account not only of the existence of formal remedies in
    the legal system of the Contracting Party concerned but also of the
    general legal and political context in which they operate, as well as
    the personal circumstances of the applicant (see the above-mentioned
    Akdivar and Others judgment, p. 1211, para. 69).

    54.     The Court notes the provision under Turkish law of criminal,
    civil and administrative remedies against the ill-treatment of
    detainees by the agents of the State and it has studied with interest
    the summaries of judgments dealing with similar matters provided by the
    Government (see paragraphs 43-45 above).  However, as previously
    mentioned (paragraph 53), it is not here solely concerned with
    the question whether the domestic remedies were in general effective
    or adequate; it must also examine whether, in all the circumstances of
    the case, the applicant did everything that could reasonably be
    expected of him to exhaust the national channels of redress.

    55.     For the purposes of this examination, the Court reiterates that
    it has decided to accept the Commission's findings of fact in the
    present case (see paragraphs 39-40 above).  The Commission, as has been
    seen (in paragraph 50 above), was of the view that the applicant was
    suffering from bilateral radial paralysis at the time of his interview
    with the public prosecutor.

    56.     The Court considers that, even if it were accepted that the
    applicant made no complaint to the public prosecutor of ill-treatment
    in police custody, the injuries he had sustained must have been clearly
    visible during their meeting.  However, the prosecutor chose to make
    no enquiry as to the nature, extent and cause of these injuries,
    despite the fact that in Turkish law he was under a duty to investigate
    (see paragraph 26 above).

            It must be recalled that this omission on the part of the
    prosecutor took place after Mr Aksoy had been detained in
    police custody for at least fourteen days without access to legal or
    medical assistance or support. During this time he had sustained severe
    injuries requiring hospital treatment (see paragraph 23 above).  These
    circumstances alone would have given him cause to feel vulnerable,
    powerless and apprehensive of the representatives of the State.  Having
    seen that the public prosecutor was aware of his injuries but had taken
    no action, it is understandable if the applicant formed the belief that
    he could not hope to secure concern and satisfaction through national
    legal channels.

    57.     The Court therefore concludes that there existed special
    circumstances which absolved the applicant from his obligation to
    exhaust domestic remedies.  Having reached this conclusion it does not
    consider it necessary to examine the applicant's claim that there
    exists an administrative practice of withholding remedies in breach of
    the Convention.

    III.    THE MERITS

        A.  Alleged violation of Article 3 of the Convention (art. 3)

    58.     The applicant alleged that he was subjected to treatment
    contrary to Article 3 of the Convention (art. 3), which states:

            "No one shall be subjected to torture or to inhuman or
            degrading treatment or punishment."

            The Government considered the allegations of ill-treatment to
    be unfounded.  The Commission, however, found that the applicant had
    been tortured.

    59.     The Government raised various objections to the way in which
    the Commission had evaluated the evidence.  They pointed to a number
    of factors which, in their view, should have given rise to serious
    doubt as to whether Mr Aksoy had been ill-treated as he claimed.

            For example, they questioned why the applicant had made no
    complaint to the public prosecutor about having been tortured
    (see paragraph 18 above) and found it difficult to understand why, if
    he had indeed been subjected to torture, he had not made any
    inculpatory confession.  They also found it suspicious that he had
    waited for five days between being released from police custody and
    contacting the hospital (see paragraph 19 above) and observed that it
    could not be assumed that nothing untoward had occurred in the
    meantime.  Finally, they raised a number of points relating to the
    medical evidence, including the facts that the applicant took his
    medical records with him when he left hospital and that there was no
    medical evidence of burns or other marks left by the application of
    electric shocks.

    60.     The applicant complained of having been ill-treated in
    different ways.  He claimed to have been kept blindfolded during
    interrogation, which caused disorientation; to have been suspended from
    his arms, which were tied together behind his back
    ("Palestinian hanging"); to have been given electric shocks, which were
    exacerbated by throwing water over him; and to have been subjected to
    beatings, slapping and verbal abuse.  He referred to medical evidence
    from Dicle University Medical Faculty which showed that he was
    suffering from a bilateral brachial plexus injury at the time of his
    admission to hospital (see paragraph 19 above).  This injury was
    consistent with Palestinian hanging.

            He submitted that the treatment complained of was sufficiently
    severe as to amount to torture; it was inflicted with the purpose of
    inducing him to admit that he knew the man who had identified him.

            In addition, he contended that the conditions in which he was
    detained (see paragraph 13 above) and the constant fear of torture
    which he suffered while in custody amounted to inhuman treatment.

    61.     The Court, having decided to accept the Commission's findings
    of fact (see paragraphs 39-40 above), considers that where an
    individual is taken into police custody in good health but is found to
    be injured at the time of release, it is incumbent on the State to
    provide a plausible explanation as to the causing of the injury,
    failing which a clear issue arises under Article 3 of the Convention
    (art. 3) (see the Tomasi v. France judgment of 27 August 1992, Series A
    no. 241-A, pp. 40-41, paras. 108-111 and the Ribitsch v. Austria
    judgment of 4 December 1995, Series A no. 336, p. 26, para. 34).

    62.     Article 3 (art. 3), as the Court has observed on many
    occasions, enshrines one of the fundamental values of democratic
    society.  Even in the most difficult of circumstances, such as the
    fight against organised terrorism and crime, the Convention prohibits
    in absolute terms torture or inhuman or degrading treatment or
    punishment.  Unlike most of the substantive clauses of the Convention
    and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no
    provision for exceptions and no derogation from it is permissible under
    Article 15 (art. 15) even in the event of a public emergency
    threatening the life of the nation (see the Ireland
    v. the United Kingdom judgment of 18 January 1978, Series A no. 25,
    p. 65, para. 163, the Soering v. the United Kingdom judgment of
    7 July 1989, Series A no. 161, p. 34, para. 88, and the Chahal
    v. the United Kingdom judgment of 15 November 1996, Reports 1996-V,
    p. 1855, para. 79).

    63.     In order to determine whether any particular form of
    ill-treatment should be qualified as torture, the Court must have
    regard to the distinction drawn in Article 3 (art. 3) between this
    notion and that of inhuman or degrading treatment.  As it has remarked
    before, this distinction would appear to have been embodied in the
    Convention to allow the special stigma of "torture" to attach only to
    deliberate inhuman treatment causing very serious and cruel suffering
    (see the Ireland v. the United Kingdom judgment previously cited,
    p. 66, para. 167).

    64.     The Court recalls that the Commission found, inter alia, that
    the applicant was subjected to "Palestinian hanging", in other words,
    that he was stripped naked, with his arms tied together behind his
    back, and suspended by his arms (see paragraph 23 above).

            In the view of the Court this treatment could only have been
    deliberately inflicted; indeed, a certain amount of preparation and
    exertion would have been required to carry it out.  It would appear to
    have been administered with the aim of obtaining admissions or
    information from the applicant.  In addition to the severe pain which
    it must have caused at the time, the medical evidence shows that it led
    to a paralysis of both arms which lasted for some time
    (see paragraph 23 above).  The Court considers that this treatment was
    of such a serious and cruel nature that it can only be described as
    torture.

            In view of the gravity of this conclusion, it is not necessary
    for the Court to examine the applicant's complaints of other forms of
    ill-treatment.

            In conclusion, there has been a violation of Article 3 of the
    Convention (art. 3).

        B.  Alleged violation of Article 5 para. 3 of the Convention
            (art. 5-3)

    65.     The applicant, with whom the Commission agreed, claimed that
    his detention violated Article 5 para. 3 of the Convention (art. 5-3).
    The relevant parts of Article 5 (art. 5) state:

            "1. Everyone has the right to liberty and security of person.
            No one shall be deprived of his liberty save in the following
            cases and in accordance with a procedure prescribed by law:

            ...

                (c) the lawful arrest or detention of a person effected
            for the purpose of bringing him before the competent legal
            authority on reasonable suspicion of having committed an
            offence ...

            ...

            3.  Everyone arrested or detained in accordance with the
            provisions of paragraph 1 (c) of this Article (art. 5-1-c)
            shall be brought promptly before a judge or other officer
            authorised by law to exercise judicial power ..."

    66.     The Court recalls its decision in the case of Brogan and Others
    v. the United Kingdom (judgment of 29 November 1988, Series A
    no. 145-B, p. 33, para. 62), that a period of detention without
    judicial control of four days and six hours fell outside the strict
    constraints as to time permitted by Article 5 para. 3 (art. 5-3).  It
    clearly follows that the period of fourteen or more days during which
    Mr Aksoy was detained without being brought before a judge or other
    judicial officer did not satisfy the requirement of "promptness".

    67.     However, the Government submitted that, despite these
    considerations, there had been no violation of Article 5 para. 3
    (art. 5-3), in view of Turkey's derogation under Article 15 of the
    Convention (art. 15), which states:

            "1. In time of war or other public emergency threatening the
            life of the nation any High Contracting Party may take
            measures derogating from its obligations under [the]
            Convention to the extent strictly required by the exigencies
            of the situation, provided that such measures are not
            inconsistent with its other obligations under
            international law.

            2.  No derogation from Article 2 (art. 2), except in respect
            of deaths resulting from lawful acts of war, or from
            Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7)
            shall be made under this provision (art. 15-1).

            3.  Any High Contracting Party availing itself of this right
            of derogation shall keep the Secretary General of the
            Council of Europe fully informed of the measures which it has
            taken and the reasons therefor.  It shall also inform the
            Secretary General of the Council of Europe when such measures
            have ceased to operate and the provisions of the Convention
            are again being fully executed."

            The Government reminded the Court that Turkey had derogated
    from its obligations under Article 5 of the Convention (art. 5) on
    5 May 1992 (see paragraph 33 above).

            1.  The Court's approach

    68.     The Court recalls that it falls to each Contracting State, with
    its responsibility for "the life of [its] nation", to determine whether
    that life is threatened by a "public emergency" and, if so, how far it
    is necessary to go in attempting to overcome the emergency.  By reason
    of their direct and continuous contact with the pressing needs of the
    moment, the national authorities are in principle better placed than
    the international judge to decide both on the presence of such an
    emergency and on the nature and scope of the derogations necessary to
    avert it.  Accordingly, in this matter a wide margin of appreciation
    should be left to the national authorities.

            Nonetheless, Contracting Parties do not enjoy an unlimited
    discretion.  It is for the Court to rule whether, inter alia, the
    States have gone beyond the "extent strictly required by the
    exigencies" of the crisis.  The domestic margin of appreciation is thus
    accompanied by a European supervision.  In exercising this supervision,
    the Court must give appropriate  weight to such relevant factors as the
    nature of the rights affected by the derogation and the circumstances
    leading to, and the duration of, the emergency situation (see the
    Brannigan and McBride v. the United Kingdom judgment of 26 May 1993,
    Series A no. 258-B, pp. 49-50, para. 43).

            2.  Existence of a public emergency threatening the life of
                the nation

    69.     The Government, with whom the Commission agreed on this point,
    maintained that there was a public emergency "threatening the life of
    the nation" in South-East Turkey.  The applicant did not contest the
    issue, although he submitted that, essentially, it was a matter for the
    Convention organs to decide.

    70.     The Court considers, in the light of all the material before
    it, that the particular extent and impact of PKK terrorist activity in
    South-East Turkey has undoubtedly created, in the region concerned, a
    "public emergency threatening the life of the nation"
    (see, mutatis mutandis, the Lawless v. Ireland judgment of 1 July 1961,
    Series A no. 3, p. 56, para. 28, the above-mentioned Ireland v. the
    United Kingdom judgment, p. 78, para. 205, and the above-mentioned
    Brannigan and McBride judgment, p. 50, para. 47).

            3.  Whether the measures were strictly required by the
                exigencies of the situation

                (a) The length of the unsupervised detention

    71.     The Government asserted that the applicant had been arrested
    on 26 November 1992 along with thirteen others on suspicion of aiding
    and abetting PKK terrorists, being a member of the Kiziltepe branch of
    the PKK and distributing PKK tracts (see paragraph 12 above).  He was
    held in custody for fourteen days, in accordance with Turkish law,
    which allows a person detained in connection with a collective offence
    to be held for up to thirty days in the state of emergency region
    (see paragraph 29 above).

    72.     They explained that the place in which the applicant was
    arrested and detained fell within the area covered by the
    Turkish derogation (see paragraphs 31-33 above).  This derogation was
    necessary and justified, in view of the extent and gravity of PKK
    terrorism in Turkey, particularly in the South East.  The investigation
    of terrorist offences presented the authorities with special problems,
    as the Court had recognised in the past, because the members of
    terrorist organisations were expert in withstanding interrogation, had
    secret support networks and access to substantial resources.  A great
    deal of time and effort was required to secure and verify evidence in
    a large region confronted with a terrorist organisation that had
    strategic and technical support from neighbouring countries.  These
    difficulties meant that it was impossible to provide judicial
    supervision during a suspect's detention in police custody.

    73.     The applicant submitted that he was detained on
    24 November 1992 and released on 10 December 1992.  He alleged that the
    post-dating of arrests was a common practice in the state of emergency
    region.

    74.     While he did not present detailed arguments against the
    validity of the Turkish derogation as a whole, he questioned whether
    the situation in South-East Turkey necessitated the holding of suspects
    for fourteen days or more without judicial supervision.  He submitted
    that judges in South-East Turkey would not be put at risk if they were
    permitted and required to review the legality of detention at shorter
    intervals.

    75.     The Commission could not establish with any certainty whether
    the applicant was first detained on 24 November 1992, as he claimed,
    or on 26 November 1992, as alleged by the Government, and it therefore
    proceeded on the basis that he was held for at least fourteen days
    without being brought before a judge or other officer authorised by law
    to exercise judicial power.

    76.     The Court would stress the importance of Article 5 (art. 5) in
    the Convention system: it enshrines a fundamental human right, namely
    the protection of the individual against arbitrary interference by the
    State with his or her right to liberty.  Judicial control of
    interferences by the executive with the individual's right to liberty
    is an essential feature of the guarantee embodied in Article 5 para. 3
    (art. 5-3), which is intended to minimise the risk of arbitrariness and
    to ensure the rule of law (see the above-mentioned
    Brogan and Others judgment, p. 32, para. 58).  Furthermore, prompt
    judicial intervention may lead to the detection and prevention of
    serious ill-treatment, which, as stated above (paragraph 62), is
    prohibited by the Convention in absolute and non-derogable terms.

    77.     In the Brannigan and McBride judgment (cited at paragraph 68
    above), the Court held that the United Kingdom Government had not
    exceeded their margin of appreciation by derogating from their
    obligations under Article 5 of the Convention (art. 5) to the extent
    that individuals suspected of terrorist offences were allowed to be
    held for up to seven days without judicial control.

            In the instant case, the applicant was detained for at least
    fourteen days without being brought before a judge or other officer.
    The Government have sought to justify this measure by reference to the
    particular demands of police investigations in a geographically vast
    area faced with a terrorist organisation receiving outside support
    (see paragraph 72 above).

    78.     Although the Court is of the view - which it has expressed on
    several occasions in the past (see, for example, the above-mentioned
    Brogan and Others judgment) - that the investigation of terrorist
    offences undoubtedly presents the authorities with special problems,
    it cannot accept that it is necessary to hold a suspect for
    fourteen days without judicial intervention.  This period is
    exceptionally long, and left the applicant vulnerable not only to
    arbitrary interference with his right to liberty but also to torture
    (see paragraph 64 above).  Moreover, the Government have not adduced
    any detailed reasons before the Court as to why the fight against
    terrorism in South-East Turkey rendered judicial intervention
    impracticable.

                (b) Safeguards

    79.     The Government emphasised that both the derogation and the
    national legal system provided sufficient safeguards to protect
    human rights.  Thus, the derogation itself was limited to the strict
    minimum required for the fight against terrorism; the permissible
    length of detention was prescribed by law and the consent of a
    public prosecutor was necessary if the police wished to remand a
    suspect in custody beyond these periods.  Torture was prohibited by
    Article 243 of the Criminal Code (see paragraph 24 above) and
    Article 135 (a) stipulated that any statement made in consequence of
    the administration of torture or any other form of ill-treatment would
    have no evidential weight.

    80.     The applicant pointed out that long periods of unsupervised
    detention, together with the lack of safeguards provided for the
    protection of prisoners, facilitated the practice of torture.  Thus,
    he was tortured with particular intensity on his third and fourth days
    in detention, and was held thereafter to allow his injuries to heal;
    throughout this time he was denied access to either a lawyer or a
    doctor.  Moreover, he was kept blindfolded during interrogation, which
    meant that he could not identify those who mistreated him.  The reports
    of Amnesty International ("Turkey: a Policy of Denial", February 1995),
    the European Committee for the Prevention of Torture and the
    United Nations Committee against Torture (cited at paragraph 46 above)
    showed that the safeguards contained in the Turkish Criminal Code,
    which were in any case inadequate, were routinely ignored in the
    state of emergency region.

    81.     The Commission considered that the Turkish system offered
    insufficient safeguards to detainees, for example there appeared to be
    no speedy remedy of habeas corpus and no legally enforceable rights of
    access to a lawyer, doctor, friend or relative.  In these
    circumstances, despite the serious terrorist threat in
    South-East Turkey, the measure which allowed the applicant to be
    detained for at least fourteen days without being brought before a
    judge or other officer exercising judicial functions exceeded the
    Government's margin of appreciation and could not be said to be
    strictly required by the exigencies of the situation.

    82.     In its above-mentioned Brannigan and McBride judgment (cited
    at paragraph 68), the Court was satisfied that there were effective
    safeguards in operation in Northern Ireland which provided an important
    measure of protection against arbitrary behaviour and incommunicado
    detention.  For example, the remedy of habeas corpus was available to
    test the lawfulness of the original arrest and detention, there was an
    absolute and legally enforceable right to consult a solicitor
    forty-eight hours after the time of arrest and detainees were entitled
    to inform a relative or friend about their detention and to have access
    to a doctor (op. cit., pp. 55-56, paras. 62-63).

    83.     In contrast, however, the Court considers that in this case
    insufficient safeguards were available to the applicant, who was
    detained over a long period of time.  In particular, the denial of
    access to a lawyer, doctor, relative or friend and the absence of any
    realistic possibility of being brought before a court to test the
    legality of the detention meant that he was left completely at the
    mercy of those holding him.

    84.     The Court has taken account of the unquestionably serious
    problem of terrorism in South-East Turkey and the difficulties faced
    by the State in taking effective measures against it.  However, it is
    not persuaded that the exigencies of the situation necessitated the
    holding of the applicant on suspicion of involvement in terrorist
    offences for fourteen days or more in incommunicado detention without
    access to a judge or other judicial officer.

            4.  Whether the Turkish derogation met the formal requirements
                of Article 15 para. 3 (art. 15-3)

    85.     None of those appearing before the Court contested that the
    Turkish Republic's notice of derogation (see paragraph 33 above)
    complied with the formal requirements of Article 15 para. 3
    (art. 15-3), namely to keep the Secretary General of the
    Council of Europe fully informed of the measures which were taken in
    derogation from the Convention and the reasons therefor.

    86.     The Court is competent to examine this issue of its own motion
    (see the above-mentioned Lawless judgment, p. 55, para. 22, and the
    above-mentioned Ireland v. the United Kingdom judgment, p. 84,
    para. 223), and in particular whether the Turkish notice of derogation
    contained sufficient information about the measure in question, which
    allowed the applicant to be detained for at least fourteen days without
    judicial control, to satisfy the requirements of Article 15 para. 3
    (art. 15-3).  However, in view of its finding that the impugned measure
    was not strictly required by the exigencies of the situation
    (see paragraph 84 above), the Court finds it unnecessary to rule on
    this matter.

            5.  Conclusion

    87.     In conclusion, the Court finds that there has been a violation
    of Article 5 para. 3 of the Convention (art. 5-3).

        C.  Alleged lack of remedy

    88.     The applicant complained that he was denied access to a court,
    in violation of Article 6 para. 1 of the Convention (art. 6-1), which
    provides, so far as is relevant:

            "In the determination of his civil rights ..., everyone is
            entitled to a fair and public hearing within a reasonable time
            by an independent and impartial tribunal established by law
            ..."

            In addition, he claimed that there was no effective domestic
    remedy available to him, contrary to Article 13 of the Convention
    (art. 13), which states:

            "Everyone whose rights and freedoms as set forth in [the]
            Convention are violated shall have an effective remedy before
            a national authority notwithstanding that the violation has
            been committed by persons acting in an official capacity."

    89.     The Government contended that, since the applicant had never
    even attempted to bring proceedings, it was not open to him to complain
    that he had been denied access to a court.  They further argued, as
    they had in connection with their preliminary objection
    (see paragraphs 41-45 above) that there were a number of effective
    remedies available.

    90.     For the applicant, the prosecutor's decision not to open an
    investigation had effectively rendered it impossible for him to enforce
    his civil right to compensation (see paragraph 48 above).  He submitted
    that, under Turkish law, civil proceedings could not be contemplated
    until the facts concerning the events had been established and the
    perpetrators identified by a criminal prosecution.  Without this,
    civil proceedings had no prospect of success.  In addition, he stated
    that the ability to seek compensation for torture would represent only
    one part of the measures necessary to provide redress; it would be
    unacceptable for a State to claim that it fulfilled its obligation
    simply by providing compensation, since this would in effect be to
    allow States to pay for the right to torture.  He claimed that the
    remedies necessary to meet his Convention claims either did not exist,
    even in theory, or did not operate effectively in practice
    (see paragraphs 46-47 above).

    91.     The Commission found a violation of Article 6 para. 1
    (art. 6-1), for the same reasons that it found in the applicant's
    favour under Article 26 of the Convention (art. 26) (see paragraph 50
    above).  In view of this finding, it did not consider it necessary to
    examine the complaint under Article 13 (art. 13).

            1.  Article 6 para. 1 of the Convention (art. 6-1)

    92.     The Court recalls that Article 6 para. 1 (art. 6-1) embodies
    the "right to a court", of which the right of access, that is, the
    right to institute proceedings before a court in civil matters,
    constitutes one aspect (see, for example, the Holy Monasteries
    v. Greece judgment of 9 December 1994, Series A no. 301-A, pp. 36-37,
    para. 80).  There can be no doubt that Article 6 para. 1 (art. 6-1)
    applies to a civil claim for compensation in respect of ill-treatment
    allegedly committed by agents of the State (see, for example, the
    Tomasi judgment cited at paragraph 61 above, p. 43, paras. 121-22).

    93.     The Court notes that it was not disputed by the applicant that
    he could in theory have brought civil proceedings for damages in
    respect of his ill-treatment.  He did claim that the failure of the
    prosecutor to mount a criminal investigation in practice meant that he
    would have had no chance of success in civil proceedings
    (see paragraph 90 above).  The Court recalls, however, that because of
    the special circumstances which existed in his case (see paragraph 57
    above), Mr Aksoy did not even attempt to make an application before the
    civil courts.  Given these facts, it is not possible for the Court to
    determine whether or not the Turkish civil courts would have been able
    to deal with Mr Aksoy's claim, had he brought it before them.

            In any event, the Court observes that the crux of the
    applicant's complaint concerned the prosecutor's failure to mount a
    criminal investigation (see paragraph 90 above).  It further notes the
    applicant's argument that the possibility of seeking compensation for
    torture would represent only one part of the measures necessary to
    provide redress (also in paragraph 90 above).

    94.     In the Court's view, against this background, it is more
    appropriate to consider this complaint in relation to the more general
    obligation on States under Article 13 (art. 13) to provide an effective
    remedy in respect of violations of the Convention.

            2.  Article 13 of the Convention (art. 13)

    95.     The Court observes that Article 13 (art. 13) guarantees the
    availability at national level of a remedy to enforce the substance of
    the Convention rights and freedoms in whatever form they might happen
    to be secured in the domestic legal order.  The effect of this Article
    (art. 13) is thus to require the provision of a domestic remedy
    allowing the competent national authority both to deal with the
    substance of the relevant Convention complaint and to grant appropriate
    relief, although Contracting States are afforded some discretion as to
    the manner in which they conform to their obligations under this
    provision (art. 13) (see the Chahal judgment cited at paragraph 62
    above, pp. 1869-70, para. 145).  The scope of the obligation under
    Article 13 (art. 13) varies depending on the nature of the applicant's
    complaint under the Convention (see the above-mentioned
    Chahal judgment, pp. 1870-71, paras. 150-51).  Nevertheless, the remedy
    required by Article 13 (art. 13) must be "effective" in practice as
    well as in law, in particular in the sense that its exercise must not
    be unjustifiably hindered by the acts or omissions of the authorities
    of the respondent State.

    96.     The Court would first make it clear that its finding (in
    paragraph 57 above) that there existed special circumstances which
    absolved the applicant from his obligation to exhaust domestic remedies
    should not be taken as meaning that remedies are ineffective in
    South-East Turkey (see, mutatis mutandis, the
    Akdivar and Others judgment cited at paragraph 38 above, pp. 1213-14,
    para. 77).

    97.     Secondly, the Court, like the Commission, would take judicial
    notice of the fact that allegations of torture in police custody
    are extremely difficult for the victim to substantiate if he has been
    isolated from the outside world, without access to doctors, lawyers,
    family or friends who could provide support and assemble the necessary
    evidence.  Furthermore, having been ill-treated in this way, an
    individual will often have had his capacity or will to pursue a
    complaint impaired.

    98.     The nature of the right safeguarded under Article 3 of the
    Convention (art. 3) has implications for Article 13 (art. 13).  Given
    the fundamental importance of the prohibition of torture
    (see paragraph 62 above) and the especially vulnerable position of
    torture victims, Article 13 (art. 13) imposes, without prejudice to any
    other remedy available under the domestic system, an obligation on
    States to carry out a thorough and effective investigation of incidents
    of torture.

            Accordingly, as regards Article 13 (art. 13), where an
    individual has an arguable claim that he has been tortured by agents
    of the State, the notion of an "effective remedy" entails, in addition
    to the payment of compensation where appropriate, a thorough and
    effective investigation capable of leading to the identification and
    punishment of those responsible and including effective access for the
    complainant to the investigatory procedure.  It is true that no express
    provision exists in the Convention such as can be found in Article 12
    of the 1984 United Nations Convention against Torture and Other Cruel,
    Inhuman or Degrading Treatment or Punishment, which imposes a duty to
    proceed to a "prompt and impartial" investigation whenever there is a
    reasonable ground to believe that an act of torture has been committed.
    However, in the Court's view, such a requirement is implicit in the
    notion of an "effective remedy" under Article 13 (art. 13)
    (see, mutatis mutandis, the Soering judgment cited at paragraph 62
    above, pp. 34-35, para. 88).

    99.     Indeed, under Turkish law the prosecutor was under a duty to
    carry out an investigation.  However, and whether or not Mr Aksoy made
    an explicit complaint to him, he ignored the visible evidence before
    him that the latter had been tortured (see paragraph 56 above) and no
    investigation took place.  No evidence has been adduced before the
    Court to show that any other action was taken, despite the prosecutor's
    awareness of the applicant's injuries.

            Moreover, in the Court's view, in the circumstances of
    Mr Aksoy's case, such an attitude from a State official under a duty
    to investigate criminal offences was tantamount to undermining the
    effectiveness of any other remedies that may have existed.

    100.    Accordingly, in view in particular of the lack of any
    investigation, the Court finds that the applicant was denied an
    effective remedy in respect of his allegation of torture.

            In conclusion, there has been a violation of Article 13 of the
    Convention (art. 13).

        D.  Alleged violation of Article 25 para. 1 of the Convention
            (art. 25-1)

    101.    The applicant alleged that there had been an interference with
    his right of individual petition, in breach of Article 25 para. 1 of
    the Convention (art. 25-1), which states:

            "The Commission may receive petitions addressed to the
            Secretary General of the Council of Europe from any person,
            non-governmental organisation or group of individuals claiming
            to be the victim of a violation by one of the High Contracting
            Parties of the rights set forth in this Convention, provided
            that the High Contracting Party against which the complaint
            has been lodged has declared that it recognises the competence
            of the Commission to receive such petitions.  Those of the
            High Contracting Parties who have made such a declaration
            undertake not to hinder in any way the effective exercise of
            this right."

    102.    It is to be recalled that Mr Aksoy was killed on 16 April 1994;
    according to his representatives, this was a direct result of his
    persisting with his application to the Commission.  It was alleged that
    he had been threatened with death in order to make him withdraw his
    application to the Commission, the last threat being made by telephone
    on 14 April 1994 (see paragraph 22 above).

    103.    The Government, however, denied that there had been any
    interference with the right of individual petition.  They submitted
    that Mr Aksoy had been killed in a settling of scores between
    quarrelling PKK factions and told the Court that a suspect had been
    charged with his murder (see paragraph 22 above).

    104.    The Commission was deeply concerned by Mr Aksoy's death and the
    allegation that it was connected to his application to Strasbourg.
    Nonetheless, it did not have any evidence on which to form a conclusion
    as to the truth of this claim or the responsibility for the killing.

    105.    The Court reiterates that it is of the utmost importance for
    the effective operation of the system of individual petition instituted
    by Article 25 of the Convention (art. 25) that applicants or potential
    applicants are able to communicate freely with the Commission without
    being subjected to any form of pressure from the authorities to
    withdraw or modify their complaints (see the
    Akdivar and Others judgment cited at paragraph 38 above, p. 1219,
    para. 105).

    106.    That being so, in the present case the Commission was unable
    to find any evidence to show that Mr Aksoy's death was connected with
    his application, or that the State authorities had been responsible for
    any interference, in the form of threats or intimidation, with his
    rights under Article 25 para. 1 (art. 25-1), and no new evidence in
    this connection was presented to the Court.

            The Court cannot therefore find that there has been a violation
    of Article 25 para. 1 of the Convention (art. 25-1).

        E.  Alleged administrative practice of violating the Convention

    107.    The applicant additionally asked the Court to rule that
    Articles 3, 5 para. 3, 6 para. 1, 13 and 25 para. 1 (art. 3, art. 5-3,
    art. 6-1, art. 13, art. 25-1) were violated as a matter of practice in
    South-East Turkey, with high-level official tolerance.  This entailed
    that the Court should find aggravated violations of the Convention.

    108.    With reference to the reports of the international bodies cited
    above (paragraph 46), he argued that torture at the hands of the police
    was widespread in Turkey and that this had been the case for many
    years.  The State authorities were aware of the problem but had chosen
    not to implement recommended safeguards.

            Furthermore, the victims of torture and of other human rights
    abuses were routinely denied access to judicial remedies in breach of
    Articles 6 para. 1 and 13 of the Convention (art. 6-1, art. 13) and
    were harassed, threatened and subjected to violence if they attempted
    to bring their complaints before the Strasbourg organs, contrary to
    Article 25 para. 1 (art. 25-1).

            Finally, since the domestic law permitted suspects to be
    detained for long periods in violation of Article 5 para. 3 (art. 5-3),
    this was evidence of an administrative practice of breaching that
    provision (art. 5-3).

    109.    The Court is of the view that the evidence established by the
    Commission is insufficient to allow it to reach a conclusion concerning
    the existence of any administrative practice of the violation of the
    above Articles of the Convention (art. 3, art. 5-3, art. 6-1, art. 13,
    art. 25-1).

    IV.     Application of Article 50 of the Convention (art. 50)

    110.    Under Article 50 of the Convention (art. 50),

            "If the Court finds that a decision or a measure taken by a
            legal authority or any other authority of a High Contracting
            Party is completely or partially in conflict with the
            obligations arising from the ... Convention, and if the
            internal law of the said Party allows only partial reparation
            to be made for the consequences of this decision or measure,
            the decision of the Court shall, if necessary, afford just
            satisfaction to the injured party."

    111.    In his memorial the applicant claimed compensation for
    pecuniary damage caused by his detention and torture, consisting of
    medical expenses of 16,635,000 Turkish liras and loss of earnings
    amounting to £40 (sterling).

            In addition he sought non-pecuniary damages of £25,000, which,
    he submitted, should be increased by a further £25,000 in the event
    that the Court found an aggravated violation of the Convention on the
    grounds of administrative practice.

            He also requested payment of his legal fees and expenses which
    totalled £20,710.

    112.    The Government offered no comment either in its memorial or
    during the hearing before the Court as regards these claims.

            A.  Damage

    113.    In view of the extremely serious violations of the Convention
    suffered by Mr Zeki Aksoy and the anxiety and distress that these
    undoubtedly caused to his father, who has continued with the
    application after his son's death (see paragraph 3 above), the Court
    has decided to award the full amounts of compensation sought as regards
    pecuniary and non-pecuniary damage.  In total this amounts to
    4,283,450,000 (four thousand two hundred and eighty-three million,
    four hundred and fifty thousand) Turkish liras (based on the rate of
    exchange applicable on the date of adoption of the present judgment).

            B.  Costs and expenses

    114.    The Court considers that the applicant's claim for costs and
    expenses is reasonable and awards it in full, less the amounts received
    by way of legal aid from the Council of Europe which have not already
    been taken into account in the claim.

            C.  Default interest

    115.    With regard to the sum awarded in Turkish liras, default
    interest is to be payable at the rate of 30% per annum, which,
    according to the information available to the Court, is the statutory
    rate of interest applicable in Turkey at the date of adoption of the
    present judgment.

            As the award in respect of costs and expenses is to be made in
    pounds sterling, the Court considers it appropriate that interest
    should be payable on this sum at the rate of 8% per annum, which,
    according to the information available to it, is the statutory rate
    applicable in England and Wales at the date of adoption of the present
    judgment.

    FOR THESE REASONS, THE COURT

    1.      Dismisses by eight votes to one the preliminary objection
            concerning the exhaustion of domestic remedies;

    2.      Holds by eight votes to one that there has been a violation of
            Article 3 of the Convention (art. 3);

    3.      Holds by eight votes to one that there has been a violation of
            Article 5 para. 3 of the Convention (art. 5-3);

    4.      Holds by eight votes to one that it is not necessary to
            consider the applicant's complaint under Article 6 para. 1 of
            the Convention (art. 6-1);

    5.      Holds by eight votes to one that there has been a violation of
            Article 13 of the Convention (art. 13);

    6.      Holds unanimously that no violation of Article 25 para. 1 of
            the Convention (art. 25-1) has been established;

    7.      Holds by eight votes to one

            (a) that the respondent State is to pay the applicant, within
            three months, in respect of compensation for pecuniary and
            non-pecuniary damage, 4,283,450,000 (four thousand two hundred
            and eighty-three million, four hundred and fifty thousand)
            Turkish liras;

            (b) that the respondent State is to pay the applicant, within
            three months, in respect of costs and expenses, £20,710
            (twenty thousand seven hundred and ten pounds sterling) less
            12,515 (twelve thousand, five hundred and fifteen)
            French francs to be converted into pounds sterling at the rate
            applicable on the date of delivery of the present judgment;

            (c) that simple interest at the following annual rates shall
            be payable from the expiry of the above-mentioned three months
            until settlement:

                (i) 30% in relation to the sum awarded in Turkish liras;

                (ii) 8% in relation to the sum awarded in pounds sterling.

            Done in English and in French, and delivered at a public
    hearing in the Human Rights Building, Strasbourg, on 18 December 1996.

    Signed: Rolv RYSSDAL
            President

    Signed: Herbert Petzold
            Registrar

            In accordance with Article 51 para. 2 of the Convention
    (art. 51-2) and Rule 53 para. 2 of Rules of Court A, the following
    separate opinions are annexed to this judgment:

            (a) partly dissenting opinion of Judge de Meyer;

            (b) dissenting opinion of Judge Gölcüklü.

    Initialled: R.R.

    Initialled: H.P.

                  PARTLY DISSENTING OPINION OF JUDGE DE MEYER

                                 (Translation)

            Although I agree with the rest of the judgment, I disagree with
    the line taken by the majority in respect of Articles 6 para. 1 and 13
    (art. 6-1, art. 13).

            In the present case the Court had to rule firstly on a
    preliminary objection that domestic remedies had not been exhausted.

            It is clear from the reasoning on this in paragraphs 51 to 57
    of the judgment that in the applicant's case these remedies were purely
    theoretical.  This suggests a violation of Article 13 (art. 13), as is
    later made explicit in different terms in paragraphs 95 to 100 of the
    judgment.  The present case thus shows up very clearly the link between
    Article 13 and Article 26 (art. 13, art. 26) (1).
    _______________
    1.  See paragraph 51 of the judgment.
    _______________

            The reasoning also, however, implies a fortiori that the
    applicant's right of access to a court was not effectively secured (2).
    _______________
    2.  See paragraphs 54 and 56 of the judgment.
    _______________

            It follows that, in line with the decision we took on the
    preliminary objection, we should as a logical consequence have found
    that there had been a violation of both Article 6 para. 1 and
    Article 13 (art. 6-1, art. 13).

            It would have sufficed if we had noted that it was clear from
    the considerations set out in paragraphs 51 to 57 of the judgment that
    in the circumstances of the case the applicant had no effective
    domestic remedies and was unable to exercise his right of access to a
    court.

                     DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

                                 (Translation)

    1.      With regard to the subsidiary nature of the protection system
    set up by the European Convention on Human Rights and its
    direct corollary, the exhaustion of domestic remedies, I refer to my
    dissenting opinion in the case of Akdivar and Others v. Turkey (see the
    judgment of 16 September 1996, Reports of Judgments and
    Decisions 1996-IV).

    2.      I would point out that Article 17 of the Turkish Constitution
    is a literal translation of Article 3 (art. 3) of the
    European Convention on Human Rights and that torture and ill-treatment
    attract heavy penalties under the Turkish Criminal Code (Articles 243
    and 245) (criminal remedy).

    3.      As civil wrongs (unlawful acts), torture and ill-treatment open
    up the possibility of an action for compensation in respect of
    pecuniary or non-pecuniary damage (civil action or administrative
    proceedings, depending on the perpetrator's status).

    4.      Criminal proceedings are instituted by the prosecuting
    authorities of their own motion or on the lodging of a complaint, and
    must be brought where there is sufficient evidence that an offence has
    been committed.

    5.      In Turkish law, therefore, these three remedies are available
    equally, throughout the country, to every person who claims to be the
    victim of torture or ill-treatment.

    6.      With regard to the effectiveness and appropriateness of the
    above-mentioned remedies, there is not the shadow of a doubt in my
    mind.  In this connection I refer to my dissenting opinion in the case
    of Akdivar and Others (ibid.).  The respondent Government, both in that
    case and the present case, submitted to the Commission in the
    first place and later to the European Court - both in their memorial
    and at the public hearing - dozens of judgments of the
    courts of first instance or the supreme courts such as the
    Court of Cassation or the Supreme Administrative Court.

    7.      Most of these judgments concerned cases in south-eastern Turkey
    where acts of terrorism are being committed and where the present case
    occurred.  The following examples give a brief summary of some of these
    decisions.

            - Second Division of the Supreme Administrative Court -
            judgment of 23 March 1994

            The Supreme Administrative Court, carrying out its statutory
    review of the decision to discontinue proceedings made by the
    Malatya Provincial Administrative Council, ruled that
    criminal proceedings under Article 245 of the Criminal Code
    (ill-treatment, recourse to violence by a public official empowered to
    use force in accordance with the law) had to be brought against the
    accused, four police officers of the Malatya Security Police who had
    allegedly beaten a suspect while he was being questioned.

            Another judgment of the Supreme Administrative Court to the
    same effect (judgment of 7.10.1993) concerned the Adiyaman province.
    These two regions (Malatya and Adiyaman) are in south-eastern Turkey.

            - Eighth Criminal Division of the Court of Cassation -
            judgment of 16 December 1987

            The accused were sentenced to four years, five months and
    ten days' imprisonment for causing death by acts of torture
    (Articles 452/1 and 243/1-2 of the Criminal Code).

            The Court of Cassation upheld these sentences imposed by the
    First Division of the Mardin Assize Court (in south-eastern Turkey).

            - Eighth Criminal Division of the Court of Cassation -
            judgment of 25 September 1991

            The Eighth Division of the Ankara Assize Court sentenced the
    accused to four years and two months' imprisonment and banned them from
    holding public office for two months and fifteen days for inflicting
    ill-treatment with a view to extracting confessions.

            The Court of Cassation held that, as the file stood, the expert
    reports formed a sufficient basis for the lower court's judgment.
    However, it quashed it on account of a clerical error, as it stated
    that the court had applied the minimum sentence whereas it had based
    its calculations on the minimum sentence.

            - Eighth Criminal Division of the Court of Cassation -
            judgment of 21 February 1990

            The accused were sentenced to four years, five months and
    ten days' imprisonment for causing a prisoner's death.  This conviction
    pronounced by the Sixth Division of the Istanbul Assize Court was based
    on the charge of fatal wounding (Article 452/1 of the Criminal Code).

            The Court of Cassation upheld the conviction but ruled that
    Article 243, concerning death subsequent to an act of torture, should
    be applied.

    8.      Despite the existence of the three remedies I have mentioned
    above, the applicant did not make use of any of them but only
    complained to the Commission via London.  He did not even lodge a
    complaint with the responsible authorities - the first step any
    individual has a duty to take when he claims to be a victim of anything
    at all.

    9.      I simply cannot agree with the opinion the majority reached on
    the basis of the applicant's bare allegations (that the Turkish courts
    in the region concerned afforded no protection when the acts complained
    of had been committed by members of the security forces) namely that
    the effectiveness of domestic remedies was open to doubt.  I consider
    that "where there is doubt", and especially where there is doubt,
    domestic remedies must be exhausted as required by the Commission
    (decision of 14 March 1985, Garcia v. Switzerland, application
    no. 10148/82, Decisions and Reports 42, p. 98).  And the applicant did
    nothing of the sort.

    10.     As Judge Gotchev rightly noted in his dissenting opinion in the
    above-mentioned Akdivar and Others case, in connection with the
    exhaustion-of-domestic-remedies rule, in order to reach such a
    conclusion after the respondent Government have demonstrated the
    existence of domestic remedies, the burden of proof should fall (once
    more) on the applicant, who should be required to prove that the
    authorities in that region of the country frustrated his attempts to
    set the appropriate proceedings in motion.  The applicant has not
    adduced any evidence to that effect.

    11.     Above all, in this case a number of facts were in dispute
    between the parties.  The applicant alleged that he had reported to the
    prosecuting authorities when interviewed that he had been subjected to
    ill-treatment while in police custody, whereas the respondent
    Government denied this and submitted arguments in support of their
    contention.  The Court, on the basis of this unclarified question of
    fact, namely the alleged failure of the prosecuting authorities to set
    criminal proceedings in motion, concluded that the criminal remedy was
    ineffective.

    12.     Apart from the fact that there are procedures in Turkish law
    whereby the prosecuting authorities can be obliged to institute
    criminal proceedings, who else, if not the national authorities, could
    clarify this fact which is decisive for the outcome of the present
    case?  For that reason alone, the applicant's complaints should first
    be brought before the Turkish courts so that it can be established
    whether domestic remedies are effective or not.

    13.     Since, therefore, the requirement in Article 26 of the
    Convention (art. 26) has not been satisfied, the Court should have
    upheld the respondent Government's preliminary objections concerning
    the non-exhaustion of domestic remedies.

    14.     The foregoing considerations dispense me from considering the
    merits of the case.

     

    Новинки

    А. Л. Бурков «Конвенция о защите прав человека в судах России». Москва: Волтерс Клувер, 2010

    А. Л. Бурков "Влияние Европейской конвенции по правам человека на Российское право" (Stuttgart: ibidem-Verlag, 2007)

    Шестое издание "Применение Европейской конвенции по правам человека в судах России"

    Пятое издание "Исполнение постановлений Европейского суда по правам человека"

    Четвертое издание "Право на жизнь, запрет пыток и бесчеловечного или унижающего достоинство обращения или наказания: европейские стандарты, российское законодательство и правоприменительная практика"

    Третье издание "Право на свободу и личную неприкосновенность: европейские стандарты и российская практика"

    Второе издание "Европейские стандарты права на справедливое судебное разбирательство и российская практика"

    Первое издание "Европейский Суд по правам человека: правила обращения и судопроизводства"

    Сайт ОО Сутяжник: Главная / Новости / Библиотека / Судебные дела / Европейский Суд / Изучаем Европейскую Конвенцию / Оспаривание нормативных актов / Заочная школа правозащитника / Поиск