ÇAKICI v. TURKEY JUDGMENT
29
himself and on behalf of his brother, and alleged a breach of Article 13,
which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.”
109. The applicant submitted that he was denied an effective remedy due
to the dilatory and superficial investigation conducted into the
disappearance of his brother. He referred, inter alia, to the failure of the
public prosecutors to inspect directly the original custody records and the
reliance of the public prosecutor in his decision of non-jurisdiction on the
unsubstantiated report that Ahmet Çakıcı’s body had been found after a
clash with terrorists.
110. The Government maintained that the system of criminal, civil and
administrative justice offered effective redress, when utilised properly by
applicants acting in good faith, referring in particular to the Aytekin case
(Aytekin judgment cited above). The applicant in the present case did not
seriously attempt to seek a remedy from the domestic authorities, who,
contrary to his assertions, took the necessary and appropriate steps in
relation to his allegations once they had been brought to their attention.
111. The Commission concluded that there had been a violation of
Article 13 since the public prosecutors had not investigated promptly or
effectively the disappearance of the applicant’s brother, ignoring or
discounting the evidence which supported the applicant’s claims. At the
hearing, the Delegate of the Commission sought to place this case in the
context of the previous fifteen judgments rendered by the Court in which
allegations of failure to protect life, disappearance, ill-treatment and
destruction of homes in south-east Turkey were associated with failures to
provide an effective remedy, in particular a reluctance to pursue
investigations into allegations of wrongdoing by the security forces and a
readiness to accept the unsubstantiated assertions of the security forces at
face value. Findings had been made concerning inadequate investigative
procedures in all of those cases, save the Aytekin case, which differed in
that there was an identified perpetrator of the lethal shooting of the
applicant’s husband from the outset of the incident.
112. The Court recalls that Article 13 of the Convention guarantees the
availability at the national level of a remedy to enforce the substance of the
Convention rights and freedoms in whatever form they might happen to be
secured in the domestic legal order. Article 13 thus requires the provision of
a domestic remedy to deal with the substance of an “arguable complaint”
under the Convention and to grant appropriate relief, although the
Contracting States are afforded some discretion as to the manner in which
they conform to their Convention obligations under this provision. The
scope of the obligation under Article 13 also varies depending on the nature
of the applicant’s complaint under the Convention. Nevertheless, the