SELÇUK AND ASKER JUDGMENT OF 24 APRIL 1998
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As with the above-mentioned Akdivar judgment, this ruling is confined
to the particular circumstances of the present case and 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 to have normal recourse to the system of remedies which are
available and functioning.
III. MERITS
A.
Alleged violation of Article 3 of the Convention
72. The applicants, referring to the circumstances of the destruction of
their homes and their eviction from their village, maintained that there had
been a breach of Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
73. The Government denied that there had been any security operation
in the village on the dates in question and submitted that the houses had
been burned by PKK terrorists (see paragraphs 18 and 19 above). There had
therefore been no violation of Article 3 imputable to the State.
74. The Commission found the burning of the applicants’ homes in their
presence to be acts of violence and deliberate destruction in utter disregard
for their safety and welfare, depriving them of most of their personal
belongings and leaving them without shelter and assistance. It noted in
particular Mr Asker’s age and infirmity and the traumatic circumstances
surrounding the burning of his house, which put him and his wife in danger
from smoke and flames as they tried to save their belongings, and the fact
that Mrs Selçuk had been induced to plead with CO Cömert who had
insulted and pushed her. It accordingly found that the applicants had been
subjected to inhuman and degrading treatment.
75. Article 3, as the Court has observed on many occasions, enshrines
one of the fundamental values of democratic society. Even in the most
difficult of circumstances, such as the fight against organised terrorism and
crime, the Convention prohibits in absolute terms torture or inhuman or
degrading treatment or punishment. Unlike most of the substantive clauses
of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no
provision for exceptions and no derogation from it is permissible under
Article 15 even in the event of a public emergency threatening the life of the
nation (see, inter alia, the above-mentioned Aksoy judgment, p. 2278,
§ 62).