In the case of Akdivar and Others v. Turkey (1),

        The European Court of Human Rights, sitting, pursuant to
Rule 51 of Rules of Court A (2), as a Grand Chamber composed of the
following judges:

        Mr  R. Ryssdal, President,
        Mr  R. Bernhardt,
        Mr  Thór Vilhjálmsson,
        Mr  F. Gölcüklü,
        Mr  R. Macdonald,
        Mr  A. Spielmann,
        Mr  N. Valticos,
        Mr  S.K. Martens,
        Mrs E. Palm,
        Mr  I. Foighel,
        Mr  A.N. Loizou,
        Mr  M.A. Lopes Rocha,
        Mr  L. Wildhaber,
        Mr  G. Mifsud Bonnici,
        Mr  J. Makarczyk,
        Mr  D. Gotchev,
        Mr  B. Repik,
        Mr  K. Jungwiert,
        Mr  P. Kuris,
        Mr  U. Lohmus,
        Mr  E. Levits,

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

        Having deliberated in private on 27 April, 21 May and
30 August 1996,

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

1.  The case is numbered 99/1995/605/693.  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 by the Government of Turkey
("the Government") on 4 December 1995 and by the European Commission
of Human Rights ("the Commission") on 11 December 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention").  It
originated in an application (no. 21893/93) against the
Turkish Republic lodged with the Commission under Article 25 (art. 25)
on 3 May 1993 by eight Turkish nationals, Mr Abdurrahman Akdivar,
Mr Ahmet Akdivar, Mr Ali Akdivar, Mr Zülfükar Çiçek, Mr Ahmet Çiçek,
Mr Abdurrahman Aktas, Mr Mehmet Karabulut and Mr Hüseyin Akdivar.  The
Commission later held that the latter was not an applicant
(see paragraphs 48-50 below).

        The Government's application referred to Article 48 (art. 48)
and the Commission's request, which concerned the eight persons
mentioned above, 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
application and of the request 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, 6 para. 1, 8, 13, 14, 18 and
25 para. 1 of the Convention (art. 3, art. 5, art. 6-1, art. 8,
art. 13, art. 14, art. 25-1) and Article 1 of Protocol No. 1 (P1-1).

2.      In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicants stated that
they wished to take part in the proceedings and designated the lawyers
who would represent them (Rule 30).

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

3.      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. Bernhardt, the Vice-President
of the Court (Rule 21 para. 4 (b)).  On 5 December 1995, in the
presence of the Registrar, the President of the Court, Mr R. Ryssdal,
drew by lot the names of the other seven members, namely
Mr R. Macdonald, Mr N. Valticos, Mr S.K. Martens, Mr M.A. Lopes Rocha,
Mr D. Gotchev, Mr B. Repik and Mr E. Levits (Article 43 in fine of the
Convention and Rule 21 para. 5) (art. 43).

4.      As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the Government,
the applicants' 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
applicants' memorial on 12 March 1996 and the Government's memorial on
15 March.  The Secretary to the Commission subsequently informed the
Registrar that the Delegate would submit his observations at the
hearing.

5.      On 31 January 1996 the Government requested, pursuant to
Rule 48 para. 2, that the Court hold a separate hearing on preliminary
objections.  On 14 and 19 February the applicants and the Delegate
submitted their respective comments on the request and on 21 February
the Chamber decided to decline the request.

6.      On 20 March 1996 the Commission produced various documents, as
requested by the Registrar on the President's instructions.

7.      On 28 March 1996 the President of the Chamber granted leave,
pursuant to Rule 37 para. 2, to Amnesty International to submit written
comments on specified aspects of the case.  These were received on
4 April 1996.

8.      On 28 March 1996 the Chamber decided unanimously to relinquish
jurisdiction forthwith in favour of a Grand Chamber (Rule 51).

9.      The Grand Chamber to be constituted included ex officio
Mr Ryssdal, President of the Court, Mr Bernhardt, Vice-President of the
Court, and the other members and substitute judges (namely,
Mr I. Foighel, Mr P. Kuris, Mr C. Russo and Mr B. Walsh) of the Chamber
which had relinquished jurisdiction (Rule 51 para. 2 (a) and (b)).  On
30 March 1996, in the presence of the Registrar, the President drew by
lot the names of the seven additional judges called on to complete the
Grand Chamber, namely Mr A. Spielmann, Mrs E. Palm, Mr F. Bigi,
Mr L. Wildhaber, Mr G. Mifsud Bonnici, Mr K. Jungwiert and
Mr U. Lohmus.

        Prior to the hearing, Mr Bigi, who had died, and Mr Walsh and
Mr Russo, who were unable to participate in the case, were replaced by
Mr J. Makarczyk, Mr A.N. Loizou and Mr Thór Vilhjálmsson respectively
(Rule 24 para. 1 in conjunction with Rule 51 para. 6).

10.     On 4 April 1996 the President of the Court, Mr Ryssdal, refused
the applicants' request, pursuant to Rule 27 para. 3, for use of
interpretation facilities during the oral hearing on the grounds of its
late submission.

11.     In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
25 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,
    Mr H. Golsong,
    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 applicants

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

        The Court heard addresses by Mr Danelius, Mr Boyle, Mr Çaglar,
Mr Özkarol, Ms Akçay and Mr Golsong and also replies to its questions.

AS TO THE FACTS

12.     The facts are based on the Commission's findings of fact as set
out and developed in its report of 26 October 1995.

I.      Particular circumstances of the case

    A.  The situation in the South-East of Turkey

13.     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.  It appears from information
submitted by the applicants and by the amicus curiae that a large
number of villages, estimated at more than 1,000, have been destroyed
and evacuated during this conflict (see paragraph 7 above).

14.     Since 1987, ten of the eleven provinces of south-eastern Turkey
have been subjected to emergency rule which was in force at the time
of the facts complained of.

    B.  Destruction of the applicants' houses

15.     The applicants (see paragraph 1 above), Turkish nationals, were
residents in the village of Kelekçi in the Dicle district of the
province of Diyarbakir.  The village of Kelekçi and the surrounding
areas have been the centre of intense PKK terrorist activity.  It is
undisputed that the PKK launched serious attacks on Kelekçi on
17 or 18 July 1992, and the neighbouring village of Bogazköy on
1 November 1992.  As a result of the first attack,
three Kelekçi villagers were killed and three others wounded.  The
second attack on 1 November 1992 was directed at the Bogazköy gendarme
station, which was destroyed, with one gendarme being killed and
eight others injured.  Thereafter security forces were reinforced in
the area and extensive searches were carried out for terrorists.  The
applicants alleged that on 10 November 1992 State security forces
launched an attack on the village of Kelekçi, burnt nine houses,
including their homes, and forced the immediate evacuation of the
entire village.

16.     The Government categorically denied these allegations,
contending that the houses had been set on fire by the PKK.  Initially
they stated that the village had merely been searched and that no
damage had been caused.  Subsequently, it was maintained that no
soldiers had entered Kelekçi on 10 November 1992, and, if they had been
in the vicinity, they had stopped on the outskirts of the village to
take a rest.

17.     On 6 April 1993 houses in Kelekçi were set on fire and the
village was almost completely destroyed.  It is disputed, however,
whether this destruction was caused by terrorists or by security
forces.

18.     The Commission established that nine houses, including those
of the applicants, were destroyed or seriously damaged by fire not long
after the attack on the Bogazköy gendarme station on 1 November 1992.
Although noting that there was some uncertainty as to the exact date
when the nine houses were burnt, it accepted the applicants' claims
that this occurred on 10 November 1992.

    C.  Commission's findings concerning investigations at the domestic
        level

19.     The Commission found that no proper investigation was carried
out at the domestic level regarding the destruction of the nine houses
at Kelekçi on 10 November 1992 either immediately after the event or
thereafter.  Apparently, a gendarmerie report of 29 November 1993 dealt
with events at Kelekçi.  However, the Commission concluded that this
report and other "incident reports" which had been submitted to the
Chief Public Prosecutor at the Diyarbakir State Security Court, in so
far as they concerned the destruction of the nine houses, did not
result in any investigation of the facts and involved no attempt to
establish responsibility for the destruction.

20.     It was also established by the Commission that, although the
applicants had lost their homes, no one gave proper advice to them or,
apparently, to the other displaced Kelekçi villagers, on how to obtain
compensation for the loss of their homes or other forms of assistance.
Petitions were made by the mayor of the village and statements were
given to several State officials.  However, no authority took up the
applicants' problems or referred them to the competent body.

21.     There was also evidence before the Commission that, after the
case had been brought to it, certain of the applicants, or persons who
were believed to be applicants such as Hüseyin Akdivar and Ahmet Çiçek
(see paragraphs 48-50 below), had been questioned by the
State authorities about their applications to the Commission.  The
Commission had been provided with a filmed interview with these
two persons, during which they were asked about the case in Strasbourg.

22.     As regards the events on 10 November 1992 (see paragraph 15
above), the Commission noted that the investigation reports and the
recorded statements by villagers which had been submitted to it by the
respondent Government were dated September 1994, i.e. almost two years
after the destruction of the nine houses.  In these statements they
placed the blame on the PKK for setting fire to the houses.  At that
time, a number of villagers had been heard by the authorities about
events at Kelekçi.  It was observed that this inquiry had taken place
at a time when the village had been further damaged on 6 April 1993,
and after the Commission had communicated the applicants' complaints
to the Government for observations and decided to hold an oral hearing
in the case.

        It was further noted that the investigation reports of
September 1994 were based on an exploratory mission undertaken by
helicopter on 21 September 1994.  During this mission, the
investigating team did not land at Kelekçi but only observed the
village during low-level flights.  The report stated that all the
houses at Kelekçi had collapsed and that there were no inhabitants in
the village.

23.     As to the events of 6 April 1993, the Commission found that a
team of gendarmes had heard various villagers in April 1993.  However,
in their recorded statements no reference was made by the villagers to
the incident of 10 November 1992.  The statements were examined by the
Commission in order to determine whether they should affect the
Commission's findings on questions of fact in respect of the incident
complained of.  In its report of 26 October 1995 it concluded as
follows:

        "197.      In this respect, it is striking that the various
        statements by the villagers are drafted in a stereotyped form
        and have on the whole the same contents (see paragraphs 54, 56,
        57, 59, 61, 65, 66, 68, 71, 73 and 75).  Most of them describe
        the events of 6 April 1993 in an almost identical manner.  In
        the recorded statements the villagers refer to the fact that
        the terrorists had made a previous attack on the village during
        which three persons had been killed and three others injured,
        this general formula being used even in the statements of the
        applicants Ahmet Çiçek and Abdurrahman Aktas whose close
        relatives, including the latter's father, had been killed on
        that occasion.  The statements also contain a declaration about
        the villagers' respect for the State and their willingness to
        help the State.  All in all, the recorded statements give the
        impression of having been drafted in a uniform manner by the
        gendarmes rather than reflecting spontaneous declarations by
        the villagers.  This may also explain why some of these
        statements are in complete contradiction to what the same
        persons have stated on other occasions (see Ahmet Çiçek's
        statements referred to in paragraphs 61 and 89-90 above,
        Abdurrahman Aktas's statements referred to in paragraphs 54 and
        98 above, and Abdullah Karabulut's statements referred to in
        paragraphs 66, 67 and 111 above).  Thus it seems highly
        doubtful whether the recorded statements to the gendarmes can
        be said to reflect the information that the villagers intended
        to convey in regard to the events at issue."

24.     The Commission concluded that it attached no particular weight
to the statements of the villagers in April 1993.  It further noted the
inadequacy of any real investigations at the domestic level which could
be of assistance in elucidating the events on 10 November 1992.  It
concluded that the absence of any such investigations was in itself a
disturbing element in regard to a serious matter such as the
destruction of the homes of a considerable number of persons.

    D.  Commission's evaluation of the evidence

25.     In the absence of any relevant investigations at the domestic
level, the Commission based its finding on the evidence which had been
given orally by various persons or submitted in writing in the course
of the proceedings before it.

26.     The Commission concluded that there was no evidence of any
conspiracy between the villagers to accuse the State of the burning of
the houses in order to obtain compensation or for any other purpose.

        It also noted that, while there was evidence that the security
forces were in the village, none of the witnesses stated that any
stranger had been seen at Kelekçi on 10 November 1992.  It was unlikely
that terrorists would have set fire to nine houses in the village
without anyone having noted their presence.  Nor was there any other
evidence showing that terrorists had been at Kelekçi on that day.

27.     Following an assessment of the evidence, the Commission found
it convincingly shown that security forces - presumably under the
strain of intense terrorist activity in the area - were responsible for
the burning of the nine Kelekçi houses on 10 November 1992.  However,
it had not been shown that the applicants were forcibly expelled from
Kelekçi, but the loss of their homes caused them to abandon the village
and move elsewhere.

II.     Relevant domestic law and practice

28.     The Government have submitted that the following domestic law
is relevant to the case.

        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."

29.     The above provision is not subject to any restrictions even in
a state of emergency or war.  The latter requirement of the provision
does not necessarily require proof of the existence of any fault on the
part of the administration, whose responsibility is of an absolute,
objective nature, based on a concept of collective liability and
referred to as the theory of "social risk".  Thus the administration
may indemnify people who have suffered damage from acts committed by
unknown or terrorist authors when the State may be said to have failed
in its duty to maintain public order and safety, or in its duty to
safeguard individual life and property.

30.     The principle of administrative liability is reflected in the
additional Article 1 of Law no. 2935 of 25 October 1983 on the
State of Emergency, which provides:

        "... actions for compensation in relation to the exercise of
        the powers conferred by this Law are to be brought against the
        administration before the administrative courts."

31.     The Turkish Criminal Code makes it a criminal offence

        - to deprive someone unlawfully of his or her liberty
        (Article 179 generally, Article 181 in respect of civil
        servants),

        - to oblige someone through force or threats to commit or not
        to commit an act (Article 188),

        - to issue threats (Article 191),

        - to make an unlawful search of someone's home (Articles 193
        and 194),

        - to commit arson (Articles 369, 370, 371, 372), or aggravated
        arson if human life is endangered (Article 382),

        - to commit arson unintentionally by carelessness, negligence
        or inexperience (Article 383), or

        - to damage another's property intentionally (Articles 526
        et seq.).

32.     For all these offences complaints may be lodged, pursuant to
Articles 151 and 153 of the Code of Criminal Procedure, with the public
prosecutor or the local administrative authorities.  The public
prosecutor and the police have a duty to investigate crimes reported
to them, the former deciding whether a prosecution should be initiated,
pursuant to Article 148 of the Code of Criminal Procedure.  A
complainant may appeal against the decision of the public prosecutor
not to institute criminal proceedings.

33.     If the suspected authors of the contested acts are military
personnel, they may also be prosecuted for causing extensive damage,
endangering human lives or damaging property, if they have not followed
orders in conformity with Articles 86 and 87 of the Military Code.
Proceedings in these circumstances may be initiated by the persons
concerned (non-military) before the competent authority under the
Code of Criminal Procedure, or before the suspected persons'
hierarchical superior (sections 93 and 95 of Law no. 353 on the
Constitution and the Procedure of Military Courts).

34.     If the alleged author of a crime is an agent of the State,
permission to prosecute must be obtained from local administrative
councils (the Executive Committee of the Provincial Assembly).  The
local council decisions may be appealed to the
Supreme Administrative Court (Danistay); a refusal to prosecute is
subject to an automatic appeal of this kind.

35.     Any illegal act by civil servants, be it a crime or a tort,
which causes material or moral damage may be the subject of a claim for
compensation before the ordinary civil courts.

36.     Proceedings against the administration may be brought before
the administrative courts, whose proceedings are in writing.

37.     Damage caused by terrorist violence may be compensated out of
the Aid and Social Solidarity Fund.

38.     Articles 13 to 15 of the Constitution provide for fundamental
limitations on constitutional safeguards.

39.     Provisional Article 15 of the Constitution provides that there
can be no allegation of unconstitutionality in respect of measures
taken under laws or decrees having the force of law and enacted between
12 September 1980 and 25 October 1983.  That includes Law no. 2935 on
the State of Emergency of 25 October 1983, under which decrees have
been issued which are immune from judicial challenge.

40.     Extensive powers have been granted to the Regional Governor of
the State of Emergency by such decrees, especially Decree no. 285, as
amended by Decrees nos. 424 and 425, and Decree no. 430.

41.     Decree no. 285 modifies the application of Law no. 3713, the
Anti-Terror Law (1981), in those areas which are subject to the state
of emergency, with the effect that the decision to prosecute members
of the security forces is removed from the public prosecutor and
conferred on local administrative councils.  According to the
Commission, these councils are made up of civil servants and have been
criticised for their lack of legal knowledge, as well as for being
easily influenced by the Regional Governor or Provincial Governors, who
also head the security forces.

42.     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 individuals
        to claim indemnity from the State for damage suffered by them
        without justification."

43.     According to the submissions of the applicants, this Article
grants impunity to the Governors and reinforces the powers of the
Regional Governor to order the permanent or temporary evacuation of
villages, to impose residence restrictions and to enforce the transfer
of people to other areas.  Damage caused in the context of the fight
against terrorism would be "with justification" and therefore immune
from suit.

PROCEEDINGS BEFORE THE COMMISSION

44.     The applicants lodged their application (no. 21893/93) with the
Commission on 3 May 1993.  They relied on Articles 3, 5, 6, 8, 13, 14
and 18 of the Convention (art. 3, art. 5, art. 6, art. 8, art. 13,
art. 14, art. 18) and Article 1 of Protocol No. 1 (P1-1), alleging that
their homes were burnt on 10 November 1992 and that they were forcibly
and summarily expelled from their village by State security forces.

45.     The Commission declared the application admissible on
19 October 1994.  In its report of 26 October 1995 (Article 31)
(art. 31), it expressed the opinion that there had been violations of
Article 8 and Article 1 of Protocol No. 1 (art. 8, P1-1)
(eighteen votes to one), that there had been a violation of Article 3
(art. 3) (fourteen votes to five), that there had been no violation of
Article 5 para. 1 (art. 5-1) (unanimously), that there had been
violations of Articles 6 para. 1 and 13 (art. 6-1, art. 13)
(twelve votes to seven), that there had been no violation of
Articles 14 and 18 (art. 14, art. 18) (unanimously) and that Turkey had
failed to comply with its obligations under Article 25 para. 1
(art. 25-1) (twelve votes to seven).

        The full text of the Commission's opinion and of the
eight dissenting 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-IV), but a copy of the Commission's report is obtainable
from the registry.
_______________

FINAL SUBMISSIONS TO THE COURT

46.     The Government requested the Court to accept the preliminary
objection concerning the exhaustion of domestic remedies.  In the
alternative they submitted that there was no violation of the
Convention.

47.     The applicants maintained that the Court should reject the
Government's preliminary objections and address the merits of their
complaints.  In their submission the Court should hold that there were
violations of Articles 3, 6, 8, 13, 14, 18, and 25 para. 1 of the
Convention (art. 3, art. 6, art. 8, art. 13, art. 14, art. 18,
art. 25-1) and Article 1 of Protocol No. 1 (P1-1).

AS TO THE LAW

I.      STATUS OF HÜSEYIN AKDIVAR AND AHMET ÇIÇEK

48.     In their memorial to the Court the Government sought a
declaration that the so-called applicants Hüseyin Akdivar and
Ahmet Çiçek (born in 1967) do not have the status of victims within the
meaning of Article 25 para. 1 of the Convention (art. 25-1).

49.     The Court recalls that the Commission in its report of
26 October 1995 found that Hüseyin Akdivar and Ahmet Çiçek could not
be considered to be applicants.  The former had denied having signed
the power of attorney submitted to the Commission and the latter had
been confused with a cousin of the same name, born in 1968, who was
regarded by the Commission as the authentic applicant.  These findings
concerning their applicant status have not been disputed in the
proceedings before the Court.

50.     Having regard to the above, the Court also finds that they
cannot be considered as applicants.

II.     THE GOVERNMENT'S PRELIMINARY OBJECTIONS

    A.  Alleged Abuse of process

51.     Prior to the filing of their memorial, the Government requested
that a separate hearing be held concerning the preliminary objection
under Article 26 (art. 26) (see paragraph 5 above), and again in their
oral pleadings before the Court, they submitted that the present
application amounted to an abuse of the right of petition.  They
claimed that the failure of the applicants to avail themselves of
remedies available in South-East Turkey (see paragraphs 55-59 below)
was part of the general policy of the PKK to denigrate Turkey and its
judicial institutions and to promote the idea of the legitimacy of
their terrorist activities.  As part of this strategy it was necessary
to prove that the Turkish judicial system was ineffective in general
and unable to cope with such complaints and to distance the population
in South-East Turkey from the institutions of the Republic and, in
particular, the courts.  The applicants' failure to exhaust remedies
in this case had thus a political objective.

52.     The applicants denied that the application had been made for
the purposes of political propaganda against the Government of Turkey.
They had brought their case to obtain redress for the violations of the
Convention which they had suffered and with a concern to secure the
return of the rule of law to that part of Turkey.

53.     The Commission in its admissibility decision of 19 October 1994
considered that the Government's argument could only be accepted if it
were clear that the application was based on untrue facts which, at
that stage of the proceedings, was not the case.

54.     The Court shares the Commission's opinion.  It recalls that the
Commission in its findings of fact has substantially upheld the
applicants' allegations concerning the destruction of their property
(see paragraphs 78-82 below).  Under these circumstances, and a
fortiori, the Government's plea must be rejected.

    B.  Exhaustion of domestic remedies

55.     Article 26 of the Convention (art. 26) provides as follows:

        "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."

        1.    The arguments of those appearing before the Court

              (a)  The Government

56.     The Government submitted that the application should be
rejected for failure to exhaust domestic remedies as required by
Article 26 (art. 26).  They stressed in this context that not only did
the applicants fail to exhaust relevant domestic remedies but they did
not even make the slightest attempt to do so.  No allegation or claim
for compensation was ever submitted to the Turkish courts.  The
judicial authorities were thus deprived of the opportunity of
implementing the procedural and substantive provisions regarding
compensation which are available under Turkish law.

57.     The Government further contended that the applicants could have
addressed themselves to the administrative courts and sought
compensation for the alleged damage pursuant to Article 125 of the
Turkish Constitution (see paragraphs 28-30 above) which, they pointed
out, places no limits on the right to challenge acts or decisions of
the administration, even in a state of emergency, a state of siege or
war.  With reference to numerous decided cases, they demonstrated that
the administrative courts had granted compensation in many cases
involving death, injuries or damage to property arising out of the
emergency situation on the basis of the theory of social risk and that
in these proceedings it was unnecessary to prove fault
(see paragraph 29 above).  Moreover, the burden of proof had been
simplified by the courts to the point where it was enough to show the
existence of a causal link between what was done and the harm
sustained.  Furthermore the courts, which had acquired profound
experience of the struggle against terrorism, were prepared to award
compensation not only in respect of acts of the administration but also
in respect of the acts of the PKK.

        They also emphasised, again with reference to decided cases,
that the applicants could have sought damages under the ordinary civil
law.  The Code of Obligations provided for a right to damages in cases
where servants of the administration committed unlawful acts.  In
particular the case-law established that the civil courts are not bound
by acquittals of administrative officials obtained before the criminal
courts.

58.     Referring to a number of leading judgments of international
tribunals in this area, the Government maintained that the exhaustion
requirement applied unless the applicant could show that the remedy
provided was manifestly ineffective or that there was no remedy at all
(see, inter alia, the Interhandel case, International Court of
Justice Reports (1959), the Finnish Ships Arbitration (1934),
Reports of International Arbitral Awards, United Nations, vol. 3; the
Ambatielos Claim, ibid., vol. 12).  The applicants had failed to
provide any evidence that there were insurmountable obstacles to taking
proceedings before the Turkish courts.  Although the numerous judgments
submitted by the Government did not cover the precise complaints made
by the applicants, they demonstrated beyond doubt the reality and
effectiveness of proceedings before the Turkish courts.  The lack of
such a judgment could be explained by the fact that the administration,
through the Aid and Social Solidarity Fund, provided considerable
financial assistance, material aid and housing to persons who had lost
their possessions or homes owing to terrorist activity or to fighting
by the security forces.

59.     Finally the Government asserted that the applicants had not
substantiated in any way their allegations concerning a fear of
reprisals for having recourse to the Turkish courts.  They and a large
number of applicants in other cases pending before the Commission had
been able to bring their cases to Strasbourg without harassment.  If
they had been able to consult the lawyers of the
Human Rights Association with a view to bringing proceedings in
Strasbourg, it must also have been open to them to enforce their rights
before the administrative courts.

              (b)  The applicants

60.     The applicants maintained with reference to reports from human
rights organisations that the destruction of their homes was part of
a State-inspired policy which had affected over two million people and
almost three thousand settlements.  Villages were sometimes burnt and
evacuated because they were seen as giving shelter to the PKK.  That
policy, in their submission, was tolerated, condoned and possibly
ordered by the highest authorities in the State and aimed at massive
population displacement in the emergency region of South-East Turkey.
There was thus an administrative practice which rendered any remedies
illusory, inadequate and ineffective.  Since there were no signs that
the Government were willing to take steps to put an end to the
practice, victims could have no effective remedy.

        In the alternative, the applicants contended that the remedy
before the administrative courts in respect of their allegations was
ineffective.  In the first place the Government had not been able to
produce a single case in which the administrative courts had considered
a claim such as the applicants', namely that the gendarmes had burned
down their homes.  In the second place, as a matter of Turkish law, the
administrative court is not competent to deal with cases such as that
of the applicants which concerns acts of arson and intimidation.  Such
serious criminal offences fell clearly outside the duties of public
officials and were thus beyond the competence of the administrative
courts.  The question of accountability and compensation in respect of
such matters fell within the province of the civil and criminal courts.

61.     They further submitted that in practice there was no civil-law
remedy open to them.  Under Article 8 of Decree no. 430 the
Regional Governor was immune from suit in so far as it is claimed that
he personally ordered the evacuation of the applicants' village.
Furthermore, there was no prospect of success in a civil suit for
damages against the State unless there had been a finding by a
criminal court that an offence had occurred even if there had been no
conviction in respect of it.  Such a criminal verdict presupposes that
there had been an investigation followed by a prosecution.  However,
no investigation had taken place in their case.

              (c)  The Commission

62.     The Commission found that the applicants did not have at their
disposal adequate remedies to deal effectively with their complaints.
The Delegate of the Commission pointed out that, if the remedies were
effective, it should have been possible to show examples of court
judgments from which it appeared that compensation had been granted or
responsible officers had been punished, or at least prosecuted, for
deliberate destruction of houses in villages.  However, the respondent
Government had not been able to furnish such a judgment.  Moreover, it
was at least doubtful whether an administrative court judgment which
would grant compensation but leave open and undecided the question of
the responsibility for the destruction could be considered to provide
adequate and sufficient redress and whether such a remedy was effective
in relation to the specific complaint.

63.     The Delegate submitted that it might, in practice, be
impossible for villagers such as the applicants to institute and pursue
such proceedings.  In the first place, there would be considerable
practical difficulties.  For example, it was unlikely that a villager
whose property had been destroyed would be able to pay for the services
of a lawyer himself.  Secondly, the success of proceedings based on
accusations of this kind depended on an impartial investigation being
made by the authorities.  In the prevailing circumstances it was highly
doubtful whether such an investigation would be made.  Moreover, in
South-East Turkey, where the security forces had to carry out their
difficult tasks under much strain and insecurity, the delegation of the
Commission had detected a desire amongst the representatives of the
State whom they had questioned to protect the military and a clear
reluctance to accept that accusations be levelled against the security
forces.

              (d)  Amnesty International

64.     Amnesty International (see paragraph 7 above) stated that
although there had been widespread deliberate destruction of villages
by members of the security forces in South-East Turkey it was not aware
of any cases in which villagers have received compensation for this
damage.  Moreover, in some cases those who have attempted to obtain
such compensation have been victims of extrajudicial execution,
"disappearance" or torture.  Those responsible for such intimidation
are rarely brought to justice, and usually receive light sentences if
they are.

        2.    The Court's assessment

              (a)  General principles

65.     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 system.  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 Handyside
v. the United Kingdom judgment of 7 December 1976, Series A no. 24,
p. 22, para. 48).

66.     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 (see, inter alia, the Vernillo
v. France judgment of 20 February 1991, Series A no. 198, pp. 11-12,
para. 27, and the Johnston and Others v. Ireland judgment of
18 December 1986, Series A no. 112, p. 22, para. 45).

        Article 26 (art. 26) also requires that the complaints intended
to be made subsequently at Strasbourg should have been made to the
appropriate domestic body, at least in substance and in compliance with
the formal requirements and time-limits laid down in domestic law and,
further, that any procedural means that might prevent a breach of the
Convention should have been used (see the Cardot v. France judgment of
19 March 1991, Series A no. 200, p. 18, para. 34).

67.     However, there is, as indicated above, no obligation to have
recourse to remedies which are inadequate or ineffective.  In addition,
according to the "generally recognised rules of international law"
there may be special circumstances which absolve the applicant from the
obligation to exhaust the domestic remedies at his disposal
(see the Van Oosterwijck v. Belgium judgment of 6 November 1980,
Series A no. 40, pp. 18-19, paras. 36-40).  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
Ireland v. the United Kingdom judgment of 18 January 1978, Series A
no. 25, p. 64, para. 159, and the report of the Commission in the same
case, Series B no. 23-I, pp. 394-97).

68.     In the area of the exhaustion of domestic remedies there is a
distribution of the burden of proof.  It is incumbent on the Government
claiming non-exhaustion to satisfy the Court that the remedy was an
effective one available in theory and in practice at the relevant time,
that is to say, that it was accessible, was one which was capable of
providing redress in respect of the applicant's complaints and offered
reasonable prospects of success.  However, once this burden of proof
has been satisfied it falls to the applicant to establish that the
remedy advanced by the Government was in fact exhausted or was for some
reason inadequate and ineffective in the particular circumstances of
the case or that there existed special circumstances absolving him or
her from the requirement (see, inter alia, the Commission's decision
on the admissibility of application no. 788/60, Austria v. Italy,
11 January 1961, Yearbook, vol. 4, pp. 166-168;
application no. 5577-5583/72, Donnelly and Others v. the United Kingdom
(first decision), 5 April 1973, Yearbook, vol. 16, p. 264; also the
judgment of 26 June 1987 of the Inter-American Court of Human Rights
in the Velásquez Rodríguez case, Preliminary Objections, Series C
no. 1, para. 88, and that Court's Advisory Opinion of 10 August 1990
on "Exceptions to the Exhaustion of Domestic Remedies" (Article 46 (1),
46 (2) (a) and 46 (2) (b) of the American Convention on Human Rights),
Series A no. 11, p. 32, para. 41).  One such reason may be constituted
by the national authorities remaining totally passive in the face of
serious allegations of misconduct or infliction of harm by
State agents, for example where they have failed to undertake
investigations or offer assistance.  In such circumstances it can be
said that the burden of proof shifts once again, so that it becomes
incumbent on the respondent Government to show what they have done in
response to the scale and seriousness of the matters complained of.

69.     The Court would emphasise that 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 (see the above-mentioned
Cardot judgment, p. 18, para. 34).  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 (see the above-mentioned Van Oosterwijck judgment,
p. 18, para. 35).  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 applicants.

              (b)  Application of Article 26 (art. 26) to the facts of
                   the case

70.     As regards the application of Article 26 (art. 26) to the facts
of the present case, the Court notes at the outset that the situation
existing in South-East Turkey at the time of the applicants' complaints
was - and continues to be - characterised by significant civil strife
due to the campaign of terrorist violence waged by the PKK and the
counter-insurgency measures taken by the Government in response to it.
In such a situation it must be recognised that there may be obstacles
to the proper functioning of the system of the administration of
justice.  In particular, the difficulties in securing probative
evidence for the purposes of domestic legal proceedings, inherent in
such a troubled situation, may make the pursuit of judicial remedies
futile and the administrative inquiries on which such remedies depend
may be prevented from taking place.

                   i.   Remedy before the administrative courts

71.     The Court observes that the large number of court decisions
submitted by the Government demonstrate the existence of an innovative
remedy in damages before the administrative courts which is not
dependent on proof of fault (see paragraphs 28-30 above).  Undoubtedly
these decisions illustrate the real possibility of obtaining
compensation before these courts in respect of injuries or damage to
property arising out of the disturbances or acts of terrorism.

        The applicants, on the other hand, have suggested that this
remedy is not available in respect of the criminal acts of members of
the security forces.  However, they have not tested this assumption by
introducing proceedings before the administrative courts.

        In the Court's view, the existence of mere doubts as to the
prospects of success of a particular remedy which is not obviously
futile is not a valid reason for failing to exhaust domestic remedies
(see the Van Oosterwijck judgment cited above in paragraph 67, p. 18,
para. 37).  Nevertheless, like the Commission, the Court considers it
significant that the Government, despite the extent of the problem of
village destruction (see paragraph 13 above), have not been able to
point to examples of compensation being awarded in respect of
allegations that property has been purposely destroyed by members of
the security forces or to prosecutions having been brought against them
in respect of such allegations.  In this connection the Court notes the
evidence referred to by the Delegate of the Commission as regards the
general reluctance of the authorities to admit that this type of
illicit behaviour by members of the security forces had occurred
(see paragraph 63 above).  It further notes the lack of any impartial
investigation, any offer to cooperate with a view to obtaining evidence
or any ex gratia payments made by the authorities to the applicants.

72.     Moreover, the Court does not consider that a remedy before the
administrative courts can be regarded as adequate and sufficient in
respect of the applicants' complaints, since it is not satisfied that
a determination can be made in the course of such proceedings
concerning the claim that their property was destroyed by members of
the gendarmerie.

                   ii.  Remedy before the civil courts

73.     As regards the civil remedy invoked by the respondent
Government, the Court attaches particular significance to the absence
of any meaningful investigation by the authorities into the applicants'
allegations and of any official expression of concern or assistance
notwithstanding the fact that statements by the applicants had been
given to various State officials (see paragraphs 19-20 above).  It
appears to have taken two years before statements were taken from the
applicants by the authorities about the events complained of, probably
in response to the communication of the complaint by the Commission to
the Government (see paragraph 22 above).

        In assessing this remedy the Court must take account of the
fact that the events complained of took place in an area of Turkey
subject to martial law and characterised by severe civil strife.  It
must also bear in mind the insecurity and vulnerability of the
applicants' position following the destruction of their homes and the
fact that they must have become dependent on the authorities in respect
of their basic needs.  Against such a background the prospects of
success of civil proceedings based on allegations against the security
forces must be considered to be negligible in the absence of any
official inquiry into their allegations, even assuming that they would
have been able to secure the services of lawyers willing to press their
claims before the courts.  In this context, the Court finds
particularly striking the Commission's observation that the statements
made by villagers following the events of 6 April 1993 gave the
impression of having been prepared by the gendarmes (see paragraph 23
above).

74.     Nor can the Court exclude from its considerations the risk of
reprisals against the applicants or their lawyers if they had sought
to introduce legal proceedings alleging that the security forces were
responsible for burning down their houses as part of a deliberate
State policy of village clearance.

75.     Accordingly, as regards the possibility of pursuing civil
remedies, the Court considers that, in the absence of convincing
explanations from the Government in rebuttal, the applicants have
demonstrated the existence of special circumstances which dispensed
them at the time of the events complained of from the obligation to
exhaust this remedy.

                   iii. Conclusion

76.     The Court therefore concludes, in light of the above, that the
application cannot be rejected for failure to exhaust domestic
remedies.

77.     The Court would emphasise that its ruling is confined to the
particular circumstances of the present case.  It is not to be
interpreted as a general statement that remedies are ineffective in
this area of Turkey or that applicants are absolved from the obligation
under Article 26 (art. 26) to have normal recourse to the system of
remedies which are available and functioning.  It can only be in
exceptional circumstances such as those which have been shown to exist
in the present case that it could accept that applicants address
themselves to the Strasbourg institutions for a remedy in respect of
their grievances without having made any attempt to seek redress before
the local courts.

III.    THE MERITS OF THE APPLICANTS' COMPLAINTS

    A.  The Court's assessment of the facts

78.     The Court recalls its constant case-law that under the scheme
of the Convention 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).  It is only in exceptional circumstances that the
Court will use its powers in this area.  It is not, however, 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
(see, inter alia, the Cruz Varas and Others v. Sweden judgment of
20 March 1991, Series A no. 201, p. 29, para. 74, and the
McCann and Others v. the United Kingdom judgment of 27 September 1995,
Series A no. 324, p. 50, para. 168).

79.     The applicants pointed out that during the hearing on the
merits of the case before the Commission the Government had failed to
challenge the applicants' testimony given in the course of earlier
witness hearings before the Commission.  They ought thus to be estopped
from doing so.

80.     The Court notes from the Commission's report that the facts of
the case were disputed by both sides and that the Government did not
accept the applicants' version of events (see report of
26 October 1995, p. 26, paras. 37-39).  Against this background the
submission that the Government is estopped must fail.

81.     On the other hand, the Court considers that it should accept
the facts as established by the Commission.  It recalls that these
findings were made pursuant to the hearing of witnesses in Turkey on
two separate occasions by a delegation of the Commission in the
presence of the representatives from both sides who were able to
cross-examine the witnesses and to a hearing on the merits in
Strasbourg before the Commission.

        It thus finds it established that security forces were
responsible for the burning of the applicants' houses on
10 November 1992 and that the loss of their homes caused them to
abandon the village and move elsewhere.  However, it has not been
established that the applicants were forcibly expelled from Kelekçi by
the security forces.

82.     It is against this background that the Court must examine the
applicants' complaints under the Convention.

    B.  Alleged violation of Article 8 of the Convention (art. 8) and
        Article 1 of Protocol No. 1 (P1-1)

83.     Article 8 of the Convention (art. 8) provides as follows:

        "1.   Everyone has the right to respect for his private and
        family life, his home and his correspondence.

        2.    There shall be no interference by a public authority with
        the exercise of this right except such as is in accordance with
        the law and is necessary in a democratic society in the
        interests of national security, public safety or the economic
        well-being of the country, for the prevention of disorder or
        crime, for the protection of health or morals, or for the
        protection of the rights and freedoms of others."

84.     Article 1 of Protocol No. 1 (P1-1) provides:

        "Every natural or legal person is entitled to the peaceful
        enjoyment of his possessions.  No one shall be deprived of his
        possessions except in the public interest and subject to the
        conditions provided for by law and by the general principles
        of international law.

        The preceding provisions shall not, however, in any way impair
        the right of a State to enforce such laws as it deems necessary
        to control the use of property in accordance with the general
        interest or to secure the payment of taxes or other
        contributions or penalties."

85.     The applicants submitted that in the light of all the evidence
they had adduced, they have convincingly established that they were
victims of a governmental policy of forced eviction which constitutes
a practice in violation of Article 8 (art. 8).  In addition, they
maintained that the burning of their houses amounted to a very serious
violation of their rights under Article 1 of Protocol No. 1 (P1-1).

86.     The Government submitted that it had not been shown that there
had been any interference by the Turkish authorities with the
applicants' rights under these provisions (art. 8, P1-1).  Moreover,
the Commission had found that it had not been proved that the
applicants had been deliberately removed from the village.

87.     The Commission maintained that there had been a breach of both
of these provisions (art. 8, P1-1).

88.     The Court is of the opinion that there can be no doubt that the
deliberate burning of the applicants' homes and their contents
constitutes at the same time a serious interference with the right to
respect for their family lives and homes and with the peaceful
enjoyment of their possessions.  No justification for these
interferences having been proffered by the respondent Government -
which have confined their response to denying involvement of the
security forces in the incident -, the Court must conclude that there
has been a violation of both Article 8 of the Convention (art. 8) and
Article 1 of Protocol No. 1 (P1-1).

        It does not consider that the evidence established by the
Commission enables it to reach any conclusion concerning the allegation
of the existence of an administrative practice in breach of these
provisions (art. 8, P1-1).

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

89.     The applicants requested the Court to endorse the Commission's
opinion that the burning of their homes by the security forces also
amounted to inhuman and degrading treatment in breach of Article 3 of
the Convention (art. 3) which reads:

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

90.     The Government maintained, inter alia, that the allegation of
a violation of this provision (art. 3) was entirely unjustified and
unsupported on the facts.  They pointed out that some of the applicants
who gave evidence were not even present when the alleged events took
place and that in the Commission's finding neither the time, nor the
circumstances, nor the means employed was specified.

91.     In view of the absence of precise evidence concerning the
specific circumstances in which the destruction of the houses took
place and its finding of a violation of the applicants' rights under
Article 8 of the Convention (art. 8) and Article 1 of Protocol No. 1
(P1-1) (see paragraph 88 above), the Court does not propose to examine
further this allegation.

    D.  Alleged violation of Article 5 of the Convention (art. 5)

92.     Before the Commission the applicants alleged that they were
compelled to abandon their homes in breach of the right to liberty and
the enjoyment of security of person under Article 5 para. 1 of the
Convention (art. 5-1).  However, they did not maintain this complaint
in the present proceedings and the Court sees no reason to examine it
of its own motion.

    E.  Alleged violations of Articles 6 para. 1 and 13 of the
        Convention (art. 6-1, art. 13)

93.     The applicants, with whom the Commission agreed, claimed that
there was a violation of both Articles 6 para. 1 and 13 of the
Convention (art. 6-1, art. 13).  They further claimed that there was
an administrative practice in breach of these provisions (art. 6-1,
art. 13).

94.     Article 6 para. 1 (art. 6-1) provides, where relevant, that,

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

95.     Article 13 (art. 13) states:

        "Everyone whose rights and freedoms as set forth in this
        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."

96.     The Court recalls its finding that, while the
Turkish Government had shown the existence of a scheme of remedies
under Turkish law to deal with complaints arising out of the struggle
against terrorism, the action for compensation before the
administrative courts could not be considered an effective remedy in
respect of the applicants' complaints (see paragraphs 71-72 above).
In addition, there existed special circumstances which dispensed the
applicants from availing themselves of the civil remedy for damages
(see paragraph 75 above).

97.     Since the complaints under this head reflect the same or
similar elements as those issues already dealt with in the context of
the objection concerning the exhaustion of domestic remedies, the Court
considers that it is not necessary to examine these further complaints.

    F.  Alleged violations of Articles 14 and 18 of the Convention
        (art. 14, art. 18)

98.     The applicants further submitted that the acts of destruction
of their property and eviction from their village were part of a
deliberate and unjustified policy directed against them because they
are Kurds, in violation of Articles 14 and 18 of the Convention
(art. 14, art. 18) which state as follows:

                         Article 14 (art. 14)

        "The enjoyment of the rights and freedoms set forth in this
        Convention shall be secured without discrimination on any
        ground such as sex, race, colour, language, religion, political
        or other opinion, national or social origin, association with
        a national minority, property, birth or other status."

                         Article 18 (art. 18)

        "The restrictions permitted under this Convention to the said
        rights and freedoms shall not be applied for any purpose other
        than those for which they have been prescribed."

99.     The Court recalls that these allegations were examined by the
Commission which found that, in the light of the evidence submitted to
it, they were unsubstantiated.  Bearing in mind the Commission's role
in the determination and verification of the facts (see paragraph 78
above), the Court accepts the Commission's findings on this point.
Accordingly, no violation of these provisions (art. 14, art. 18) has
been established.

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

100.    Article 25 para. 1 of the Convention (art. 25-1) states as
follows:

        "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."

101.    The Commission, whose opinion was endorsed by the applicants,
noted with concern that the applicants, and persons who were thought
to be applicants, had been directly asked by the authorities about
their petitions to Strasbourg (see paragraph 21 above).  It considered
it inappropriate for the authorities to approach applicants in this way
in the absence of their legal representatives, particularly where such
initiatives could be interpreted as an attempt to discourage them from
pursuing their complaints, and concluded that the Turkish authorities
had hindered the effective exercise of the right of individual petition
under Article 25 para. 1 (art. 25-1).

        The Delegate stated that, in general, in cases from
South-East Turkey applicants had been contacted by the authorities who
had inquired about their applications before the Commission.  These
interviews had sometimes resulted in a declaration by the applicant
that he or she had never lodged any application or that he or she did
not wish to pursue the application.  In some cases, statements to this
effect were recorded in minutes drawn up before a public prosecutor or
a notary, apparently at the initiative of the authorities.

102.    The Government, while not denying the facts found by the
Commission, emphasised that the authorities did not intimidate or
harass the applicants merely by ascertaining whether an application had
been brought or by conducting an investigation into the allegations to
determine whether criminal offences had been committed.  In fact these
inquiries had led to the discovery that Hüseyin Akdivar and
Ahmet Çiçek, as found by the Commission, were not applicants
(see paragraphs 48-50 above).

        In addition, the Government pointed out that they had actively
cooperated with the Commission at all stages of the proceedings and
that during the witness hearings each of the witnesses was free to
express his or her views.  The investigations, in their submission, had
had no effect whatsoever on the exercise of the right of individual
petition or on the ensuing proceedings.  It was only if an applicant
were actually prevented from exercising the right - irrespective of the
presence or absence of a legal representative during such inquiries -
that there could be an obstruction to the right of individual petition.

103.    The Court recalls that the obligation in Article 25 para. 1
(art. 25-1) in fine not to interfere with the right of the individual
effectively to present and pursue his complaint with the Commission
confers upon an applicant a right of a procedural nature - which can
be asserted in Convention proceedings - distinguishable from the
substantive rights set out under section I of the Convention or its
Protocols (see the Cruz Varas and Others judgment cited above in
paragraph 78, p. 36, para. 99).

104.    It notes the Commission's finding that applicants, or persons
thought to be applicants like Hüseyin Akdivar and Ahmet Çiçek
(see paragraphs 48-50 above), had been directly asked about their
applications to the Commission and had been presented with statements
to sign declaring that no such applications had been brought.  In the
case of Hüseyin Akdivar and Ahmet Çiçek a filmed interview of this
procedure had taken place (see paragraph 21 above).

105.    The Court, like the Commission, considers 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, mutatis mutandis, the Campbell v. the United Kingdom
judgment of 25 March 1992, Series A no. 233, p. 22, paras. 61-64).

        Given the vulnerable position of the applicant villagers and
the reality that in South-East Turkey complaints against the
authorities might well give rise to a legitimate fear of reprisals, the
matters complained of amount to a form of illicit and unacceptable
pressure on the applicants to withdraw their application.  Moreover,
it cannot be excluded that the filming of the two persons who were
subsequently declared not to be applicants could have contributed to
this pressure (see paragraph 21 above).  The fact that the applicants
actually pursued their application to the Commission does not prevent
such behaviour on the part of the authorities from amounting to a
hindrance in respect of the applicants in breach of this provision
(art. 25-1).

106.    There has thus been a violation of Article 25 para. 1
(art. 25-1) in this respect.

IV.     APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

107.    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."

108.    In their memorial the applicants, who had received legal aid,
claimed compensation for pecuniary damage in the form of restitutio in
integrum and for moral damage.  They also sought costs and expenses
amounting to 20,810 pounds sterling.

109.    The Government offered no comment during the hearing before the
Court as regards these claims.

110.    The Delegate of the Commission considered that a substantial
amount of compensation should be awarded.

    A.  Costs and expenses

111.    The Court considers that the applicants' 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.

    B.  Damage

112.    On the other hand, as regards the claim for pecuniary and
non-pecuniary damage, the Court is of the opinion that the matter is
not ready for decision.  The question must therefore be reserved and
the future procedure fixed with due regard to the possibility of
agreement being reached between the Government and the applicants.

    C.  Default interest

113.    Not having sufficient information about the statutory rate of
interest applicable in Turkey to the currency in which the sums awarded
are made out, the Court considers it appropriate to base itself on the
statutory rate applicable in the United Kingdom on the date of adoption
of the present judgment, namely 8% per annum.

FOR THESE REASONS, THE COURT

1.      Dismisses by twenty votes to one the preliminary objection
        concerning an alleged abuse of process;

2.      Dismisses by nineteen votes to two the preliminary objection
        concerning the exhaustion of domestic remedies;

3.      Holds by nineteen votes to two that there has been a violation
        of Article 8 of the Convention (art. 8) and Article 1 of
        Protocol No. 1 (P1-1);

4.      Holds by twenty votes to one that it will not examine further
        whether there has been a violation of Article 3 of the
        Convention (art. 3);

5.      Holds unanimously that it is not necessary to decide whether
        there has been a violation of Article 5 of the Convention
        (art. 5);

6.      Holds unanimously that it is not necessary to decide whether
        there has been a violation of Articles 6 para. 1 and 13 of the
        Convention (art. 6-1, art. 13);

7.      Holds unanimously that there has not been a violation of
        Articles 14 and 18 of the Convention (art. 14, art. 18);

8.      Holds by seventeen votes to four that Turkey has failed to
        fulfil its obligation under Article 25 para. 1 of the
        Convention (art. 25-1) not to hinder the effective exercise of
        the right of individual petition;

9.      Holds by nineteen votes to two

        (a)   that the respondent State is to pay the applicants,
        within three months, in respect of costs and expenses,
        £20,810 (twenty thousand eight hundred and ten pounds sterling)
        less 14,095 (fourteen thousand and ninety-five) French francs
        to be converted into pounds sterling at the rate of exchange
        applicable on the date of delivery of the present judgment;

        (b)   that simple interest at an annual rate of 8% shall be
        payable from the expiry of the above-mentioned three months
        until settlement;

10.     Holds by twenty votes to one that the question of the
        application of Article 50 of the Convention (art. 50) as
        regards the claim for pecuniary and non-pecuniary damage is not
        ready for decision; and consequently,

        (a)   reserves the said question;

        (b)   invites the Government and the applicants to submit,
        within the forthcoming three months, their written observations
        on the matter and, in particular, to notify the Court of any
        agreement they may reach;

        (c)   reserves the further procedure and delegates to the
        President of the Grand Chamber the power to fix the same if
        need be.

        Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 16 September 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
dissenting opinions are annexed to this judgment:

        (a)   partly dissenting opinion of Mr Ryssdal and Mr Foighel;
        (b)   partly dissenting opinion of Mr Mifsud Bonnici;
        (c)   dissenting opinion of Mr Gotchev;
        (d)   dissenting opinion of Mr Gölcüklü.

Initialled: R. R.

Initialled: H. P.

        PARTLY DISSENTING OPINION OF JUDGES RYSSDAL AND FOIGHEL

        With regret we are unable to agree with the Court's conclusion
that there was a breach of Article 25 para. 1 of the Convention
(art. 25-1) in this case which we find unsupported by the facts as
determined by the Commission in its report.

        It is true that the evidence before the Commission established
that Hüseyin Akdivar and Ahmet Çiçek (born in 1967) had been questioned
by the authorities about their applications and that a filmed interview
had taken place during which they were asked about the case in
Strasbourg (see paragraph 21 of the judgment).  However it was
subsequently established by the Commission that these persons could not
be regarded as applicants.  This finding was accepted by the Court in
paragraphs 48-50 of the judgment.

        We do not consider that there is any evidence of an
interference with the right of individual petition in respect of the
applicants.  In these circumstances we are of the view that the Court
did not have sufficient information at its disposal to reach a
conclusion that Turkey had failed to comply with her obligations under
Article 25 para. 1 (art. 25-1) in fine.

           PARTLY DISSENTING OPINION OF JUDGE MIFSUD BONNICI

        This dissent is limited to the procedural point which, to my
mind, is raised by the decision arrived at with regard to the claim by
the applicants of violations of Article 3 of the Convention (art. 3)
through the burning of their houses.  In point 4 of the operative part
of its judgment, the Court reached the conclusion that "it will not
examine further whether there has been a violation of Article 3 of the
Convention (art. 3)".

        The reasons for this are set out in paragraph 91, namely
(a) the absence of precise evidence concerning the specific
circumstances in which nine houses, including those of the applicants,
were destroyed (see paragraph 18); and (b) the finding of a violation
of the applicants' rights under Article 8 of the Convention (art. 8)
and Article 1 of Protocol No. 1 (P1-1).

        I am of the opinion that since the findings of violations of
both the Articles (art. 8, P1-1) mentioned stem from the salient fact
that the applicants' houses were destroyed, it is procedurally proper
to examine the major claim first and abstain from examining a minor one
later if the first is deemed to practically absorb the latter.  A
hierarchical approach is more appropriate to attain the aim of guiding
Contracting States as to the scope of their obligations under the
Convention and its Protocols.

        I therefore conclude that the claim under Article 3 (art. 3)
should have been examined further by the Court.

                  DISSENTING OPINION OF JUDGE GOTCHEV

        My objections in this case mainly concern the question of
admissibility.  I was unable to be convinced either by the decision of
the Commission of 19 October 1994, or by the judgment of the Court that
the present application was admissible.

        I am convinced that in this case the applicants failed to
exhaust their domestic remedies as required by Article 26 of the
Convention (art. 26) and that they ought to have made an attempt to
seek a remedy before the courts in Turkey before coming to Strasbourg.

        It is true that in accordance with the case-law of the Court
the requirement of exhaustion under Article 26 of the Convention
(art. 26) depends on the existence of judicial remedies in respect of
the alleged violation - as well as the possibility of obtaining redress
or compensation - which are sufficiently certain in theory and in
practice (as stated, inter alia, in the Johnston and Others v. Ireland
judgment of 18 December 1986, Series A no. 112, p. 22, para. 45).

        I agree with the conclusion of the majority that under
Article 26 of the Convention (art. 26) there is no requirement to
exhaust domestic remedies if they are inadequate or ineffective.
Undoubtedly the burden of proof is distributed where there is a dispute
as to whether there exists any remedy at all under national law or
whether the remedy is effective.  In such a situation it is up to the
Government to produce evidence before the Court that such effective
remedies exist.  However in paragraph 71 of the judgment the Court
points out that the Government have produced evidence showing that the
administrative courts in Turkey are applying the domestic-law rules
concerning State liability.  The decisions which they have provided
show that in Turkey (and particularly in South-East Turkey, where most
of the decisions come from) there is a "real possibility of obtaining
compensation before [the] courts in respect of injuries or damage to
property arising out of the disturbances or acts of terrorism".

        The applicants suggested that the administrative court
protection was not available when the damage was the result of criminal
acts of members of the security forces.  In this respect it is true
that, amongst the decisions produced by the Government, none concerned
such a situation.  For this reason the Court concluded that there
existed a doubt as to the effectiveness of the judicial remedy before
the administrative courts.

        But how could the Government provide the Court with such a
decision if this problem has not been raised before the administrative
courts?  Why could one not come to the conclusion, in the light of the
decisions presented by the Government, that there exist judicial
remedies which are sufficiently effective in that they result in a
positive outcome for the plaintiffs even though the harm was caused by
anonymous authors?

        Against such a background the conclusion of the Court should
be that in the instant case there exist effective remedies which the
applicants failed to use and that accordingly the application should
not have been declared admissible.

        Such a solution, in my view, corresponds to the very important
principle enshrined in Article 26 of the Convention (art. 26) and would
facilitate the efforts of Contracting Parties to meet the requirements
of Article 13 of the Convention (art. 13).

                 DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

                             (Translation)

        To my great regret I cannot agree with the opinion of the
majority of the Court on rejection of the Turkish Government's
preliminary objection, for the following reasons:

I.      Abuse of process

1.      In paragraph 54 of its judgment the Court dismissed the
Turkish Government's request for the application to be declared an
abuse of the right of petition under Article 27 of the Convention
(art. 27) on the ground that the Commission, in its findings of fact,
had confirmed the applicants' allegations about the destruction of
their property.

2.      In my opinion, the fact that it is claimed the allegations are
true does not make the application any less an abuse of the right of
petition.  The respondent Government's preliminary objection on this
point is closely linked to their second preliminary objection, namely
the plea of non-exhaustion of domestic remedies, which I shall turn to
below.  The applicants, without making any attempt to exhaust existing
domestic remedies, brought their applications before the international
institutions - via the "Kurdish Human Rights Project" in London - with
the aim of spreading anti-Turkish propaganda and the firm intention of
bringing the case into the international arena in order to distort it
when it should have remained to be judged according to legal criteria
under the procedure established by the European Convention on
Human Rights.  It is that which constitutes "abuse of process".  Is
there any need to point out that it is a universal principle of law
that "manifest abuse of a right is not protected by the law"?

II.     Subsidiary character of the protection system set up by the
        European Convention on Human Rights

3.      It is obvious and universally recognised that the supervision
system set up by the Convention for the Protection of Human Rights and
Fundamental Freedoms ("the Convention") is subsidiary in character.
Proof of this is be found in the provisions of Articles 1, 3, 26, 50,
57 and 60 (art. 1, art. 3, art. 26, art. 50, art. 57, art. 60).
Article 26 (art. 26) is, par excellence, the provision in which this
doctrine, to which I will return at greater length shortly, is
formulated.  This arrangement has extremely important consequences for
the process of applying the Convention.

4.      The European Court of Human Rights ("the Court") has expressed
this doctrine in precise, clear language in dozens of judgments and on
many occasions, particularly with regard to the application of
Article 5 para. 3 (art. 5-3) (assessment of the reasonableness of
pre-trial detention: see the Letellier v. France judgment of
26 June 1991, Series A no. 207, p. 18, para. 35; the Herczegfalvy
v. Austria judgment of 24 September 1992, Series A no. 244, p. 23,
para. 71; and the Mansur v. Turkey judgment of 8 June 1995, Series A
no. 319-B, pp. 49-50, para. 52), Article 6 para. 3 (d) (art. 6-3-d)
(examination of witnesses for the defence on an equal footing with
witnesses for the prosecution: see the Lüdi v. Switzerland judgment of
15 June 1992, Series A no. 238, p. 20, para. 43) and its doctrine of
the "margin of appreciation" (see the Mellacher and Others v. Austria
judgment of 19 December 1989, Series A no. 169, pp. 25-26, para. 45,
and the Open Door and Dublin Well Woman v. Ireland judgment of
29 October 1992, Series A no. 246-A, p. 29, para. 68).

5.      It must be emphasised that the principle of subsidiarity forms
one of the corner-stones of the Court's case-law.  Among dozens of
possible examples I cite the following to show how the Court has
expressed this principle with regard to its jurisdiction.

        In the Handyside v. the United Kingdom judgment of
7 December 1976 (Series A no. 24, p. 22, para. 48) we may read:

        "The Court points out that the machinery of protection
        established by the Convention is subsidiary to the national
        systems safeguarding human rights ...  The Convention leaves
        to each Contracting State, in the first place, the task of
        securing the rights and freedoms it enshrines.  The
        institutions created by it make their own contribution to this
        task but they become involved only through contentious
        proceedings and once all domestic remedies have been exhausted
        ..."

        After analysing the concept of "necessity", to which it
referred in that judgment with a view to defining its meaning for the
purposes of the Convention, the Court went on to say: "Nevertheless,
it is for the national authorities to make the initial assessment of
the reality of the pressing social need implied by the notion of
`necessity' in this context." (emphasis added)

6.      In his excellent study of the question, Mr H. Petzold, the
Registrar of the Court, after reviewing the case-law of the Court and
the work of the European Commission of Human Rights with the attention
to detail which the subject merits, reaches the following conclusions:

        "Subsidiarity is then a basic principle for the process of
        implementing the Convention.  It is implicit in the Convention,
        inherent in the system of protection established by the
        Convention, and it has been confirmed as such by the case-law
        of the Convention institutions.  It recognizes the primary
        competence and duty of the State to protect effectively within
        the domestic legal order the fundamental rights and freedoms
        enshrined in the Convention ..." (pp. 59-60)

        "Clearly the Convention institutions contribute to securing the
        enjoyment of the rights and freedoms guaranteed, but their
        responsibilities are secondary - in time and in extent - to
        those of the competent national authorities.  Their mission is
        essentially to guide and to assist with a view to ensuring that
        the Convention States secure to individuals the necessary
        protection through their own institutions and procedures."
        (p. 61) ("The Convention and the Principle of Subsidiarity" in
        The European System for the Protection of Human Rights,
        R. St. J. Macdonald, F. Matscher and H. Petzold (eds.),
        Martinus Nijhoff Publishers, The Hague, 1993)

        Here now is the opinion of the late Max Sørensen, the eminent
jurist who made an enormous contribution to the work of the Court and
the Commission:

        "Whatever the formal status of the Convention in each of the
        Contracting States, what is certain is that respect for the
        rights and freedoms defined in its provisions must in the

        first place be sought before the national administrative or
        judicial authorities.  The guarantees provided in the form of
        the procedures before the Commission and the Court are only
        subsidiary in character."  (quoted by H. Petzold in the
        above-mentioned article, p. 41)

7.      Can such a fundamental and important principle, of which the
exhaustion-of-domestic-remedies rule (Article 26) (art. 26) is the most
obvious element, be disregarded by the Convention institutions, and if
so under what conditions?

III.    Meaning and requirements of the "exhaustion" rule

8.      I will first refer to the Court's case-law.  The Court has
held: "... the rule on the exhaustion of domestic remedies delimits the
area within which the Contracting States have agreed to answer for
wrongs against them before the organs of the Convention" and that the
rule in question "... dispenses States from answering before an
international body for their acts before they have had an opportunity
to put matters right through their own legal system" (see, among other
authorities, the De Wilde, Ooms and Versyp v. Belgium judgment of
18 June 1971, Series A no. 12, pp. 29-30, para. 50).  And again:
"[It] concerns the possibility in law of bringing into play a State's
responsibility under the Convention" (see the Airey v. Ireland judgment
of 9 October 1979, Series A no. 32, p. 10, para. 18).

        The purpose of Article 26 (art. 26) is to give States "the
opportunity of putting right the violations alleged against them"
(see the Guzzardi v. Italy judgment of 6 November 1980, Series A
no. 39, pp. 26-27, para. 72, and the Van Oosterwijck v. Belgium
judgment of 6 November 1980, Series A no. 40, p. 17, para. 34).

        The applicant has a duty to exhaust all remedies that are
available and sufficient.  "The existence of such remedies must be
sufficiently certain not only in theory but also in practice, failing
which they will lack the requisite accessibility and effectiveness; it
falls to the respondent State to establish that these various
conditions are satisfied" (see the Vernillo v. France judgment of
20 February 1991, Series A no. 198, pp. 11-12, para. 27).

9.      In the Cardot judgment, where we find what is very nearly a
complete summary of its case-law on the question, the Court upheld the
objection of non-exhaustion of domestic remedies raised by the
respondent Government on the ground that the applicant, by his conduct,
"did not provide the French courts with the opportunity which is in
principle intended to be afforded to Contracting States by Article 26
(art. 26), namely the opportunity of preventing or putting right the
violations alleged against them".

        In view of the importance of the relevant paragraphs, in that
they show how meticulously and rigorously the Court ensures the
impartial and strict observation of Article 26 (art. 26), I wish to
quote them here at length:

        "... Admittedly, Article 26 (art. 26) must be applied with some
        degree of flexibility and without excessive formalism ..., but
        it does not require merely that applications should be made to
        the appropriate domestic courts and that use should be made of
        remedies designed to challenge decisions already given.  It
        normally requires also that  the complaints intended to be made
        subsequently at Strasbourg should have been made to those same
        courts, at least in substance and in compliance with the formal
        requirements and time-limits laid down in domestic law ...;
        and, further, that any procedural means which might prevent a
        breach of the Convention should have been used ...

        Practice in international arbitration would appear to reflect
        a similar approach.  An example is to be found in the award of
        6 March 1956 in the Ambatielos case.  The British Government
        argued that legal remedies had not been exhausted, on the
        ground that the claimant ... had not called a witness during
        proceedings in an English court.  The Commission of Arbitration
        allowed the objection in the following terms:

              `The rule [of exhaustion] requires that "local remedies"
              shall have been exhausted before an international action
              can be brought.  These "local remedies" include not only
              reference to the courts and tribunals, but also the use
              of the procedural facilities which municipal law makes
              available to litigants before such courts and tribunals
              ...

              ...

              It would be wrong to hold that a party who, by failing to
              exhaust his opportunities in the court of first instance,
              has caused an appeal to become futile should be allowed
              to rely on this fact in order to rid himself of the rule
              of exhaustion of local remedies.'

        In the court of first instance Mr Cardot did not express any
        wish that evidence should be heard from his former
        co-defendants, although they said that he had played a major
        part in organising the smuggling of hashish ...  Nor did he
        make any application to the Court of Appeal for such evidence
        to be heard ...

        As to his appeal on points of law, only one of the three
        grounds put forward related to the proceedings in respect of
        the former co-defendants who had been heard in that capacity
        at the time ...  Above all, it did not rely on paragraph 3 (d)
        of Article 6 (art. 6-3-d) or even on the general principle in
        paragraph 1 (art. 6-1) and did not refer to the statements that
        [names omitted] had made to the investigating judge; so that
        it was too vague to draw the Court of Cassation's attention to
        the issue subsequently submitted to the
        Convention institutions, namely the failure to hear prosecution
        witnesses at any stage of the court proceedings against
        Mr Cardot ..." (Cardot v. France judgment of 19 March 1991,
        Series A no. 200, pp. 18-19, paras. 34-36).

        Again, in the Van Oosterwijck judgment cited above (p. 19,
para. 39), the Court declined to accept the applicant's argument that
by virtue of the principle "jura novit curia" the courts who had heard
his case were obliged to consider it from the standpoint of the
Convention of their own motion.  The Court held: "Whether the
obligation laid down by Article 26 (art. 26) has been satisfied has to
be determined by reference to the conduct of the victim of the alleged
breach ..."

        It should be added that the Van Oosterwijck and
Cardot judgments give an idea of both the content and the scope of the
concept "flexibility without excessive formalism" with which the
exhaustion rule has to be applied.

        Let me say at the outset that in the context of compliance with
the rule in question this concept cannot be interpreted so as to permit
"suppositions" to be taken for "facts" which prove the lack of
effective and sufficient domestic remedies.

        In order to be able to reach such a conclusion - that is, in
order to ascertain whether or not the existence of the domestic
remedies that the respondent Government asked it to consider was
"sufficiently certain" (see the Ciulla v. Italy judgment of
22 February 1989, Series A no. 148, p. 15, para. 31) - the Court,
instead of proceeding on the basis of an interpretation of certain
misleading appearances, should at least have looked for prima facie
evidence.  Not only did the applicants not apply to any court (or any
other competent national authority), they took no steps whatever whose
result could be regarded as a fact suggesting that effective and
sufficient domestic remedies did not exist.  In short, the applicants'
argument is based on assumptions about the attitude of the State
authorities.  It is, however, astonishing that a Court which was so
strict and meticulous in the way it applied the exhaustion rule in the
Van Oosterwijck and Cardot cases should be so tolerant in the present
case.  If the existence of domestic remedies is required, as the Court
has held, to be "sufficiently certain", should not the same Court also
require the lack of such remedies (or their insufficiency or
ineffectiveness) to be established to an equal extent, that is to say,
proved to be "sufficiently certain"?  The respondent Government pointed
out, and pertinently so, that in the Finnish Ships Arbitration case it
had been established that the exhaustion rule was applicable "unless
there is an obvious futility or inefficacity which is manifest", and
that in the Panavezys-Saldutiskis case concerning Lithuania "the
argument was put forward that it was absolutely uncertain in
Lithuanian law whether it was possible to take proceedings in the
Lithuanian courts against the Government where the Government had
carried out acts iuris imperii.  The court in The Hague replied: `This
does not dispense you from taking proceedings.  You have to have
recourse to the Lithuanian courts, which are the only courts that can
confirm whether such a remedy is acceptable or not'" (verbatim record
of the hearing on 25 April 1996, Cour/Misc (96) 243/III, p. 11).
Similarly, the Commission has said: "If there is doubt as to the
effectiveness of a domestic remedy, the point must be taken before the
domestic courts" (see application no. 10148/82, Florentino Garcia
v. Switzerland, decision of 14 March 1985, Decisions and Reports 42,
p. 98).  The applicants talk incessantly about "compensation for the
damage they have sustained", when there are hundreds of judgments of
the administrative and civil courts awarding compensation to victims
in almost identical cases.  Is it possible to say, in the light of
these facts, that the non-existence of domestic remedies was certain?
Neither in the Commission's report nor in the Court's judgment, which
is based on the Commission's suppositions, is there any factual
evidence or legal argument that dispels the "doubt" as to the existence
of domestic remedies to such an extent as to make the lack of such
remedies "certain".

IV.     The instant case

10.     I agree with the majority of the Court about what is said in
paragraphs 65 to 69 concerning the general principles governing
application of the rule laid down by Article 26 (art. 26), but not
about the way they were applied in this case.

11.     Firstly, as regards the facts of the case (see paragraph 70),
what is going on in South-East Turkey is no different from what has
been happening for years in other Council of Europe countries (in
Northern Ireland, the Basque country, Corsica, etc.) and there are not
two kinds of terrorism.  The administrative authorities in the strict
sense may well be adversely affected, but the situation does not in any
way affect the administration of justice, especially as regards the
independence and impartiality of the courts.

        It is going too far to hold that the situation in
South-East Turkey constitutes "special circumstances" such as to
dispense the applicants from the obligation to have recourse to
existing remedies.  In that connection, I also observe that if the fear
of reprisals necessarily led them to avoid domestic remedies
(see paragraph 74), the same fear also exists when they apply to the
international institutions.

        As regards the difficulty of securing probative evidence
referred to by the Court in paragraph 70, if there is a difficulty, the
same difficulty must exist when the case is brought before an
international tribunal.

        Besides, as we shall see presently, in compensation cases
before the administrative courts the State's liability is "strict" -
"fault" does not have to be proved.

12.     Although the Court does not say so expressly in the judgment,
it appears to be criticising the inactivity of the administrative
authorities in such a situation and to deduce therefrom that the
existing domestic remedies were of no assistance.  That is not quite
true.  The witness evidence taken during the Commission's investigation
(see the Commission's report of 26 October 1995, paragraphs 40 et seq.)
shows that inquiries were made by the public prosecutor at the
Diyarbakir National Security Court and that the applicants - and the
other villagers - were not able at the time to identify any member of
the security forces as being responsible for the acts complained of.
In addition, the Court, referring explicitly to the allegations made
by the Delegate of the Commission, notes the lack of any impartial
investigation, any offer to cooperate with a view to obtaining
evidence, or any ex gratia payments made by the authorities
(see paragraph 71, third sub-paragraph in fine, of the judgment).  I
wish to emphasise that the Turkish judiciary perform their duties with
as much independence and impartiality as the judges of the other States
party to the Convention throughout Turkish territory.  Cooperation is
a two-way process!

        Before concluding, in support of its assertion, that the
authorities never offered or made any ex gratia payments to the
applicants - in order to compensate them or relieve their suffering -
the Court should have verified that they had asked for any such
payments to be made.

        It is clear that the applicants took every precaution to keep
their distance from the authorities of the country in order not to have
any contact with them so that they could claim in the final analysis
that domestic remedies were inadequate and ineffective; that would give
them the pretext they needed in order to be able to apply to the
Strasbourg institutions.

        The Turkish Government, from the outset, have continued to
relieve the suffering of the population of that part of the country.
Here is a summary submitted to the Court of what is being done.

                   "PUBLIC AID AND SOCIAL SOLIDARITY
                    IN THE FIGHT AGAINST TERRORISM

        Conscious of the extent of damage suffered in the fight against
        terrorism the Turkish authorities have set up an extra-judicial
        system of aid and social solidarity.

        Section 22 of the Prevention of Terrorism Act provides for and
        expressly governs such aid and provides that priority aid for
        persons who are not public servants is to be provided from an
        Aid and Social Solidarity Fund.

        The Government are providing herewith six files containing
        up-to-date information obtained from all the prefectures in the
        region covered by the state of emergency.

        It appears from an examination of this extra-judicial network
        of aid and other grants that the types of aid actually provided
        are both multiple and inspired by a pragmatic approach: they
        consist of financial aid, provision of housing, building
        materials for housing, food supplies, clothing, fuels, rent
        grants.  In other words all the urgent needs of people who have
        suffered in any way from the fight against terrorism have been
        taken into account.

        To cite but a few examples among the extensive aid provided to
        inhabitants of these regions as part of the fight against
        terrorism, we can refer to the county of Diyarbakir where the
        plaintiffs are residents.  Thus, in this county alone
        500 dwellings have been allocated.  The list of beneficiaries
        appears in the files.

        Again, in the same county, the construction of 72 dwellings
        scheduled for 1995 has been brought forward one year in
        response to the needs of families who have suffered from
        terrorism and ended in October 1994 with the allocation of
        housing.

        Further, in 1994, 120 prefabricated housing units were
        transported from Erzincan to Tunceli and were allocated.
        5,000 million Turkish pounds financed by the Emergency Aid
        Programme were spent on the infrastructure of this housing.
        Even now, electricity and water costs are met by the
        Tunceli Prefecture.

        With respect to the county of Van, the presidency of the
        Aid and Social Solidarity Fund for Van provides details of aid
        supplied under different headings for victims of terrorism in
        a letter of 21 November 1995.  It states that 152 dwellings
        were built and given to persons who had been obliged to leave
        their homes as a result of the fight against terrorism.  The
        total cost of these buildings came to
        14,039,799,000 Turkish pounds.

        The information obtained from the Sirnak Prefecture is also
        telling (Annex 6).  In 1994 more than
        51,000 million Turkish pounds and in 1995 almost
        100,000 million (97,099,750,000) Turkish pounds were
        distributed to families victims of terrorism.  Total aid over
        the last three years exceeds 150,000 million Turkish pounds.

        In the Sub-Prefecture of Cizre alone, 212 dwellings were built,
        the current cost of which comes to more than
        6,000 million Turkish pounds (letter of 6 December 1995 from
        the Sub-Prefecture to the Prefecture of Sirnak).

        The lists communicated by the Bingöl Prefecture state that
        50 dwellings in the county town and 206 dwellings in the
        Sub-Prefecture were handed over to victims of terrorism in
        1994.  One hundred and ninety-three other dwellings built in
        1995 will be distributed to the persons whose names appear on
        the lists in the file relating to this county.

        Further, 500 million Turkish pounds were spent on repairing
        damaged houses.

        It should also be noted that 12,720 million Turkish pounds have
        been paid to people who wish to return to their villages, which
        they had left as a result of terrorism.

        In the Sub-Prefecture of Genç alone approximately
        6,500 million Turkish pounds were paid in Emergency Aid to
        persons who were victims of terrorism.

        In its letter of 24 November 1995, the Siirt Prefecture draws
        attention to aid of 1,275 million Turkish pounds spent to
        finance a return to villages which had been hastily abandoned.
        Further, more than 500 million Turkish pounds were paid to
        attend to the needs of 109 villagers having sustained loss as
        part of the fight against terrorism.

        Further, the Siirt Prefecture draws attention to the priority
        treatment given to rural investment and to the fact that in
        this context the problems of eight villages relating to
        drinking water and roads have been solved.

        Referring to a letter of 24 November 1995 received from the
        Sub-Prefecture of Tatvan, the Prefecture of the county of
        Bitlis refers to substantial aid paid to persons who have
        suffered physical injury or pecuniary loss and persons who have
        been forced to abandon their villages.

        The size of these public contributions shows the extent to
        which the Turkish authorities are conscious of the effect of
        the fight against terrorism on all aspects of individual
        people's lives and of society.  It also demonstrates the
        determination of the Turkish authorities to find appropriate
        responses to all the problems and to the loss suffered, whether
        individually or collectively, by examining all needs, whether
        as individuals or as families, for housing, clothing, food,
        heating, immediate cash requirements (grants, rent, outgoings)
        and needs in respect of macro-economic investment,
        communications or for a return to the villages." (see case of
        Akdivar and Others v. Turkey, 99/1995/605/693, Annexes 2-7 to
        the Government's memorial, received at the registry on
        15 March 1996, Cour (96) 113 ANN 2, Strasbourg, 18 March 1996,
        pp. 209-11).

        As regards accessible and sufficient domestic remedies in
Turkish law whose existence is sufficiently certain, I would first
point out that the respondent Government have submitted to the Court
roughly a hundred judgments of different courts (administrative courts,
Council of State, civil courts and Court of Cassation) which cover a
representative variety of situations (see Annexes 1 and 2-8, running
to 316 pages, Cour (96) 111 ANN 1 and Cour (96) 113 ANN 2
respectively).  Although the applicants allege, without any facts to
support that claim, that the Turkish legislation in force makes access
to a court impossible in cases concerning counter-insurgency operations
(which is not true), all the judgments submitted to the Court's
consideration were given by courts having territorial jurisdiction in
South-East Anatolia (Diyarbakir, Van, Erzurum, etc.).

13.     The Court finds it significant that despite the extent of the
problem of village destruction the respondent Government have not been
able to point to examples of compensation being awarded to victims
where property has been deliberately destroyed by the security forces
or to prosecutions being brought against those responsible
(see paragraph 71, third sub-paragraph, of the judgment).

        I have already shown that the so-called inactivity of the
authorities was a pure and fallacious invention by the applicants, who
were themselves unable to identify those allegedly responsible during
the inquiries that were conducted.

14.     If the judgments and other documents submitted by the
Turkish Government - to the Commission in the first instance, and later
to the Court - had been examined with the attention they merited, it
would quickly have become apparent that all these judgments concerned
cases of killings, intentional or unintentional homicides, destruction
of houses or other property, disappeared persons or crimes committed
either by members of the PKK or the security forces or by persons
unknown.

15.     Admittedly, there is no judgment concerning a case exactly like
the instant case, because the people in a situation identical to the
applicants' had aims other than obtaining compensation in mind, namely
determination to bring their case to an international forum.  "There's
no war without warriors."

16.     As regards the certain, accessible, effective and sufficient
nature of the remedies existing in Turkish law, I entirely agree with
the dissenting opinion of the two eminent members of the Commission,
Mr Gözübüyük and Mr Weitzel, mutatis mutandis, expressed in the
following terms:

        "Certain facts of the case have been elucidated by the
        Commission's investigation.  In particular, the witness
        statements obtained in the course of that investigation show
        that during the investigation conducted by the
        Chief Public Prosecutor at Diyarbakir State Security Court, the
        applicants, and moreover the other villagers, were unable to
        identify any member of the security forces as the perpetrator
        of the alleged offence.  The difficulties encountered by the
        judicial authorities in charge of this investigation were
        largely due to the lack of evidence against the security
        forces.

        In view of these additional factors, which came to light when
        the Commission investigated the case, we believe that there was
        an effective remedy which the applicants failed to use, namely
        an administrative action and that, consequently, the
        Government's application under Article 29 of the Convention
        (art. 29) should have been granted.

        ...

        As has been proved by the investigation of the case, the
        criminal proceedings brought by the prosecution at the
        applicants' instigation came to nothing owing to the lack of
        probative evidence.  Having regard to the nature of the
        complaints, which centre mainly on the destruction of houses,
        allegedly by the security forces, it is quite clear that in the
        absence of even the slightest shred of evidence, the
        prosecution was bound to fail.  This is unsurprising, as the
        rules governing criminal responsibility are inspired by the
        same principles in all the member States of the Council of
        Europe.

        However, as shown by the ample documentation already submitted
        by the Government, which will have to be studied more
        attentively, and the numerous judgments of which we have
        obtained copies, there was an effective remedy available to the
        applicants which was sufficiently certain both in theory and
        in practice.  This body of case-law shows that other Turkish
        citizens faced with problems which were, ultimately, very
        similar to those faced by the applicants (the destruction of
        houses and various items of property) were able in a relatively
        short time to obtain satisfaction in the form of financial
        compensation.

        The applicants did not take any such steps, however.  They
        merely wrote letters to certain authorities asking for
        compensation.  This point is worth emphasising, as it proves
        that the aim pursued by the applicants was indeed to obtain
        financial compensation.  As has been said, they could have
        brought an administrative action to obtain this, but omitted
        to take that step.  Instead of pursuing that course of action,
        they chose the most precarious option in the circumstances,
        i.e. to bring criminal proceedings.

        We should emphasise here that the situation would have been
        entirely different if the applicants had chosen to bring an
        administrative action.  The victim of an administrative act may
        in the first instance complain of non-pecuniary or pecuniary
        damage by filing a preliminary application with the
        authorities.  The authorities must then reply within
        sixty days.  Should they fail to reply within that period, the
        application is deemed to be dismissed.  The plaintiff can then
        bring an administrative action by filing a simple application
        with the administrative court.

        Applicants merely have to prove before the administrative
        courts that they have suffered damage in order to obtain
        compensation; they do not have to prove that the authorities
        have made an administrative error.  Once the administrative
        court has established that the victim has suffered loss, it
        determines the amount of compensation to be paid to him or her.

        It should be recalled that the Supreme Administrative Court
        (Danistay) applies the criterion of `objective liability of the
        authorities'.  On the basis of that criterion, which has been
        applied by the administrative courts since 1965, the
        authorities are liable according to the principle that the
        burden of difficulties facing a nation should be shared by all
        citizens.  It is not necessary to prove fault on the part of
        the Government's agents.  It is sufficient to prove that damage
        has occurred as a result of the act complained of.  The fact
        that the act in question has been committed by the authorities
        or by a third party does not prevent compensation from being
        awarded.

        For example, where a vehicle was destroyed by shots fired by
        fighter aircraft, the Supreme Administrative Court, in its
        Mizgin Yilmaz v. Ministry of Defence judgment of 21 March 1995
        (E. no. 1994/5656, K. no. 1995/1262), found that `even if the
        authorities have not been negligent, the plaintiff must be
        awarded compensation in accordance with the principle that all
        citizens must share equally the burden of any constraints
        arising from tasks assumed by the State in the public interest
        and that such compensation is a necessary consequence of the
        'social' nature of the State ... Semdinli District Court's
        finding of damage and the expert report ordered by the
        administrative court show that the amount of compensation
        sought by the applicant is reasonable'.

        In a case in which the driver of a car was killed by police
        officers when he refused to stop at a checkpoint,
        Diyarbakir Administrative Court, in its Sabriye Kara
        v. Ministry of the Interior judgment of 27 January 1994
        (E. no. 1990/870 and K. no. 1994/31), held that `the
        authorities had a duty to compensate the damage, whether or not
        they were at fault or had acted negligently.  Moreover, there
        does not have to be a causal link between the damage and the
        authorities' acts.

        Where the authorities cannot avoid the adverse consequences of
        terrorist activities, they must pay the victims compensation
        in accordance with the 'social' responsibility assumed by the
        State, given that such damage results from a 'social risk'.'

        The administrative courts have delivered a plethora of
        decisions to the effect that the authorities have `objective
        liability' (i.e. not fault-based).  These show that the
        case-law in this area is consistent.  We shall quote the
        following decisions as examples:

        - Decision of the Supreme Administrative Court of 6 June 1995
        in the case of Osman Kaya and Cemil Kaya
        v. Ministry of the Interior: this concerned the destruction of
        the plaintiffs' house, loft, stable and all moveable property
        during fighting between the security forces and terrorists.
        The Supreme Administrative Court upheld
        Diyarbakir Administrative Court's judgment ordering the
        authorities to compensate the plaintiffs in accordance with the
        theory of `social risk'.  The administrative court held that
        the concept of the authorities' liability should not be limited
        to an administrative error or objective liability related to
        strict conditions, but should also comprise the so-called
        `social risk' principle.

        - Judgment of Diyarbakir Administrative Court of
        10 December 1991 in the case of Behiye Toprak
        v. Ministry of the Interior; decision of the
        Supreme Administrative Court of 13 October 1993 in the same
        case: the plaintiff's husband was killed by terrorists while
        travelling in his minibus.  The plaintiff complained of `loss
        of bread-winner' and claimed pecuniary and non-pecuniary
        damages.  The administrative court found against the State on
        the basis of the theory of social risk.  It held that the
        authorities were obliged to compensate damage caused by
        third parties which they were unable to prevent despite their
        duty to do so, even if they were not responsible for that
        damage.  The Supreme Administrative Court upheld that judgment.

        - Judgment of Diyarbakir Administrative Court of 28 April 1994
        in the case of Münire Temel v. Ministry of the Interior: the
        plaintiff's son was kidnapped and murdered by the PKK.
        Diyarbakir Administrative Court ordered the authorities to
        compensate the plaintiff for pecuniary and non-pecuniary loss
        on grounds of their objective liability.  It held that `all
        Turkish citizens have ... the right to a decent standard of
        living ... and to material and spiritual prosperity...'.  The
        court held that it would be contrary to the principle of
        equality if the State were to compensate damage suffered as a
        result of public services provided by its own bodies (agents),
        but remained indifferent to damage suffered by its citizens.
        The administrative court delivered this judgment after its
        preliminary ruling had been quashed by the
        Supreme Administrative Court.  The preliminary ruling had
        granted the plaintiff compensation for non-pecuniary damage but
        not for pecuniary damage.

        - Judgment of Diyarbakir Administrative Court of 8 March 1994
        in the case of Cüneyt Alphan v. Ministry of the Interior: the
        plaintiff's house was burnt down during fighting between
        terrorists and security forces.  The applicant claimed damages.
        Diyarbakir Administrative Court held that, even where the
        authorities had not made an administrative error, they had to
        pay the applicant compensation on grounds of their `strict
        liability'.

        - Judgment of Diyarbakir Administrative Court of
        25 January 1994 in the case of Hüsna Kara and Others
        v. Ministry of the Interior: the plaintiff's husband was killed
        by unknown persons.  The applicant sued the authorities for
        damages.  The administrative court ordered the authorities to
        compensate the plaintiff on the basis of the theory of social
        risk, holding that, as the plaintiff had had no part in any
        terrorist activity, her loss was not caused by her own
        negligence but by difficult circumstances facing society.

        - Judgment of Diyarbakir Administrative Court of 21 June 1994
        in the case of Guli Akkus v. Ministry of the Interior: the
        plaintiff's common-law husband was killed by security forces
        during an illegal demonstration.  The administrative court
        ordered the authorities to compensate the plaintiff's loss.
        The Supreme Administrative Court quashed that judgment on the
        ground that the applicant and her common-law husband were not
        legally married.  The administrative court upheld its own
        decision, however, and ordered the authorities to compensate
        the plaintiff.  It held that the plaintiff and her
        common-law husband had been living together as man and wife.
        It held further that the authorities should compensate damage
        caused by their agents, even if that damage had been caused by
        negligence.

        The foregoing case-law shows that, if the applicants had
        applied to the administrative courts, they could have obtained
        an order against the authorities for compensation of their loss
        on grounds of objective liability.  The administrative courts
        would not have needed to establish that the soldiers had
        unlawfully and negligently destroyed the houses in question.
        They would merely have had to establish the damage and to
        determine the amount of compensation to be awarded.

        One should not lose sight of the fact that the applicants, like
        all the other villagers whose houses were damaged, were seeking
        to obtain compensation (see paragraphs 54, 55, 56, 57, 61, 65,
        66, 68, 69, 71, 73, 75 [of the Commission's report]).

        We note here that the continuing activities of the security
        forces did not in any way prevent the applicants from applying
        to the courts for compensation.  Admittedly, the PKK was very
        active in the area in which the applicants' village was
        situated.  However, the applicants went to Diyarbakir after the
        events of November 1992.

        Once the applicants and villagers arrived at Diyarbakir, they
        applied to certain public authorities, including
        Government authorities, i.e. the Regional Governor and the
        President of the Republic, for compensation (see, for example,
        paragraphs 83 and 99).

        These applications cannot, however, be considered to be legal
        proceedings under Turkish law.  The applicants merely needed
        to consult a lawyer to learn of the possibility of bringing an
        action for damages before the administrative courts
        (see paragraph 122).

        We note also, in this respect, that it has not been established
        before the Commission that the administrative court judges do
        not rule impartially in cases in which actions of the security
        forces are challenged.  Nor has it been proved that there is
        a general lack of confidence in the remedies available under
        administrative law in the region in question.

        The evidence obtained by the Commission during its
        investigation into whether the complaints were founded shows
        that the members of Diyarbakir Human Rights Association failed
        to inform the applicants properly of the possibility of
        applying to the administrative courts (see paragraph 96) or
        misinformed them as to the appropriate national authorities to
        which they should apply (see paragraph 115).  In any event,
        they advised the applicants to lodge an application directly
        with the Commission (see paragraph 130).

        It also transpires from the witness statements obtained by the
        Commission that the real aim of the members of
        Diyarbakir Human Rights Association in lodging several
        individual applications was to argue before the international
        courts that domestic remedies were ineffective in an area which
        had been declared to be in a state of emergency
        (see paragraphs 115 and 130) and that they gave the applicants
        bad advice.

        Consequently, we believe we have shown that the applicants had
        an effective remedy in Turkish law in that they could have
        submitted to the administrative courts the complaints which
        they now raise before the Commission.  Although the financial
        compensation which they stood to gain flowed from the principle
        of the State's objective liability for acts allegedly committed
        by the security forces, such compensation cannot be paid until
        the administrative courts have established that damage has been
        caused due to the State's failure to comply with its duty to
        strike a fair balance between individual rights and the
        legitimate rights of the general public.  Such a finding would
        have been sufficient compensation for the non-pecuniary loss
        suffered by the interested parties, especially as, in this
        case, they confined their claims to compensation for the losses
        suffered."

17.     I now turn to a judgment of the Court of Cassation in which it
was held that the civil courts had jurisdiction in respect of damage
sustained as a result of the actions of State officials.

        "Brief summary of judgment CC2

        4th Civil Division of the Court of Cassation - judgment of
        17 November 1986

        The Court of Cassation quashed the judgment of the court of
        first instance dismissing the plaintiff's action in damages
        against the Ministry of the Interior and two police officers
        who had allegedly tortured him during interrogation on
        suspicion of homicide.  According to the judgment, as the
        identity of the torturer could not be established, the
        authorities could not be held liable for the personal fault of
        their agents.

        The Court of Cassation, however, held that:

        (a)   acts such as torture committed by public servants which
        could not under any circumstances be qualified as
        administrative acts became unlawful acts and therefore acts
        governed by the Code of Obligations;

        (b)   Article 129/5 of the Constitution which provided that
        actions in damages resulting from faults committed by
        public servants in the exercise of their powers must be brought
        against the authorities, was not an absolute rule and did not
        apply to unlawful acts which manifestly exceeded any exercise
        of power or authority.  On the contrary, public servants were
        not entitled to benefit from this constitutional safeguard in
        such circumstances;

        (c)   further, the fact that there had been an acquittal
        through lack of evidence was not binding upon the civil courts.
        On the contrary, it was necessary to take into account the
        plaintiff's statement to the effect that he had identified one
        of the policemen who had tortured him.

        For these reasons, the Court of Cassation held that the
        civil courts had jurisdiction in respect of unlawful acts
        committed by a public servant who had exceeded his powers."
        (case of Akdivar and Others v. Turkey, Annexes 2-7, Cour (96)
        113 ANN 2, p. 200; see also the other judgments of the same
        type on pages 202, 205 and 206)

18.     There were therefore three kinds of domestic remedy - in the
administrative, civil and criminal courts.  I admit that the remedy
with the least prospects of success was the criminal one, since under
Turkish law it is not possible, as it is under French law, either to
lay an information against a person or persons unknown before the judge
having jurisdiction or to lodge a civil party application with the
criminal court which sets criminal proceedings in motion.  In addition,
it should not be forgotten that where the offenders in a criminal case
are not identified the strict liability principle is inoperative.
However, it is possible to speculate that if the applicants deigned to
apply to the administrative or civil courts the resulting proceedings
would provide an opportunity to identify those responsible.

19.     Like the applicants, the Commission and the Court seem to
criticise and turn to their own account the inactivity and
insensitivity of the authorities in the face of these regrettable
events in order to reach the conclusion that existing remedies were
inaccessible and/or ineffective or insufficient (see paragraph 73,
first sub-paragraph).  In the first place, as I have already said
(see paragraph 8 above), that assertion is not correct.  Secondly, one
can criticise the conduct of the administrative authorities if one
wishes to do so.  Under a political regime where there is a separation
rather than an amalgamation of powers and where the judiciary is
independent and impartial vis-à-vis the other branches of
State authority, I wonder how the conduct of the administrative
authorities can influence the administration of justice.  If at the
same time the immobility of the courts is criticised, how is it
possible for a court to deal with a case of its own motion or for the
prosecuting authorities to perform their duties if those directly
concerned do not help them to do so in such situations?

20.     The second sub-paragraph of paragraph 73 contains suppositions
which, taken to be real facts, were given as the reasons for not
requiring compliance with such an imperative requirement for the
application of the Convention as the exhaustion-of-domestic-remedies
rule.  These assertions, which were pure suppositions at the time when
the Court considered the case, would now be shown to be true or false
if the applicants had applied in the first place to the Turkish courts
before submitting their case to the international institutions.  If the
latter had not then been satisfied with the result, they would have
been able to rule on the merits of the case in full knowledge of the
facts instead of proceeding by supposition and deduction.

        Lastly, the Court took the view that the existing remedies were
not adequate and sufficient because they were not appropriate to the
complaints raised by the applicants (see paragraph 72 of the judgment).

        The function of the Strasbourg institutions does not depend on
the applicants' claims.  The Convention itself defines their powers,
namely finding that there has or has not been a breach of one of its
provisions (Articles 19, 31 para. 1, 45 and 50) (art. 19, art. 31-1,
art. 45, art. 50), but not verifying whether there was a domestic
remedy whereby "those responsible for the applicants' complaints could
be identified", as they would have wished.

        States are free to choose what means they should employ to
achieve the aim of the Convention, namely "to ensure the observance of
the engagements undertaken by the High Contracting Parties in the
present Convention".

21.     Even supposing that a potential applicant is free to choose one
of a number of different domestic remedies, what must we say of a case
like this one, where the applicants have not chosen any?

22.     Consequently, the applicants did not give the Turkish courts
the opportunity, which Article 26 (art. 26) is intended to afford to
Contracting States, of putting right the violations alleged against
them.  The objection of non-exhaustion is accordingly well-founded.
The Court cannot deal with the merits of the case, for failure to
exhaust domestic remedies.

23.     The above considerations dispense me from stating my views on
the merits of the case.