KURT JUDGMENT OF 25 MAY 1998
22
proceedings, invoking the principle of strict liability in respect of the acts of
public authorities (see paragraphs 56–58 above). Furthermore, the criminal
law was there to assist her if she believed that her son had been unlawfully
deprived of his liberty or had been killed or ill-treated at the hands of the
authorities as alleged (see paragraph 59 above). Since the applicant had
never resorted to any of these remedies she must on that account be
considered to have failed to comply with Article 26 of the Convention.
81. The Court notes that the Government’s objection was not raised in
their memorial but only at the hearing and therefore outside the time-limit
prescribed in Rule 48 § 1 of Rules of Court A, which stipulates:
“A Party wishing to raise a preliminary objection must file a statement setting out
the objection and the grounds therefor not later than the time when that Party informs
the President of its intention not to submit a memorial or, alternatively, not later than
the expiry of the time-limit laid down in Rule 37 § 1 for the filing of its first
memorial.”
82. The objection must therefore be dismissed (see the Olsson v.
Sweden (no. 1) judgment of 24 March 1988, Series A no. 130, p. 28, § 56).
83. Moreover, the Court notes in this respect that Mrs Kurt did
everything that could be expected of her to seek redress for the complaint.
She contacted the public prosecutor in Bismil on two occasions; firstly, on
30 November 1993 and, secondly, on 15 December 1993. She also
petitioned the National Security Court at Diyarbakır on 14 December 1993
(see paragraphs 39–43 above). At no stage did the authorities take a
statement from her although she insisted that her son had been taken into
custody following the clash between the soldiers and the PKK in her village.
Her petition of 15 December was even more forceful since she stated that
she was concerned for his life. Both the district gendarmerie command and
Captain Cural of the provincial command, on the very day that the applicant
lodged her first petition, reported back that it was supposed that Üzeyir Kurt
had been kidnapped by the PKK. However, no reasons were given to
support this hastily reached hypothesis and the public prosecutor did not
inquire further into its merits. The applicant’s reluctance to accept the
official explanation is confirmed by the fact that she persisted with her
request for information on her son’s whereabouts by contacting the
authorities on two further occasions, maintaining all along that he had been
taken into custody. However, no serious consideration was ever given to
this assertion, the authorities preferring instead to pursue an unsubstantiated
line of inquiry that he had been kidnapped by the PKK. In the absence of
any effective investigation by the authorities into her complaint there was
no basis for any meaningful recourse by the applicant to the range of
remedies described by the Government in their submissions before the
Court.