KURT JUDGMENT OF 25 MAY 1998
21
two occasions gone of her own volition to a notary in Bismil to repudiate
the allegations made in the application (see paragraph 34 above) which had
been lodged with the Commission at the instigation of the association.
77. The Commission found that the applicant’s oral statements before
the delegates confirmed her intention to pursue her case against the
authorities and that there was no reason to suppose that her application to
the Commission, irrespective of the involvement of the Diyarbakır Human
Rights Association in its preparation (see paragraphs 17 and 50 above), did
not reflect her belief that the State was accountable for her son’s
disappearance.
78. The Court observes that the applicant confirmed her intention to take
part in the proceedings before it and designated her legal representatives for
this purpose (see paragraph 2 above). Moreover, she was present at the
hearing before the Court in her case. Having regard also to her clear
affirmation before the delegates (see paragraph 77 above), it must be
concluded that when she first contacted the Diyarbakır Human Rights
Association on 23 December 1993 she was seeking redress in respect of the
authorities’ refusal to admit that her son had been taken into custody and
that he had not been seen since. That was the essence of her complaint
against the authorities and she has steadfastly maintained that complaint in
all her contacts with the domestic authorities (see paragraph 37 above) and
throughout the proceedings before the Convention institutions. Her
application must therefore be considered valid and freely lodged by her in
the exercise of her right of individual petition.
The Government’s objection is therefore dismissed.
II. THE GOVERNMENT’S SECOND PRELIMINARY OBJECTION
79. Although the Government did not allude to this matter in their
memorial they asserted at the hearing, as they had done at the admissibility
stage of the proceedings before the Commission, that the applicant had not
exhausted available and effective remedies under domestic law. Her case
must on that account be declared inadmissible having regard to the
requirements of Article 26 of the Convention.
80. The Government pleaded that the applicant had never instituted legal
proceedings to challenge the authorities’ findings, firstly, that her son had
not been detained in the village and, secondly, that he was not in detention.
The applicant had herself conceded that at no stage had pressure ever been
brought to bear on her to dissuade her from invoking the jurisdiction of the
domestic courts. Turkish law guaranteed her a range of remedies if she
believed that the State was linked to her son’s disappearance. They stressed
in this respect that she could have sued the authorities in administrative-law