KURT JUDGMENT OF 25 MAY 1998
36
investigation were further compounded by the fact that the task of taking
witness statements from villagers was entrusted to the gendarmes against
whom the complaint had been made (see paragraph 38 above). For these
reasons the Commission found that the authorities were in breach of Article
13.
139. The Court recalls that Article 13 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. The effect of Article 13 is thus to require the provision
of a domestic remedy to deal with the substance of the relevant Convention
complaint and to grant appropriate relief, although 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 varies depending on the
nature of the applicant’s complaint under the Convention. Nevertheless, the
remedy required by Article 13 must be “effective” in practice as well as in
law, in particular in the sense that its exercise must not be unjustifiably
hindered by the acts or the omissions of the authorities of the respondent
State (see the above-mentioned Aksoy judgment, p. 2286, § 95; the abovementioned Aydın judgment, pp. 1895-96, § 103; and the above-mentioned
Kaya judgment, pp. 325–26, § 89).
140. In the instant case the applicant is complaining that she has been
denied an “effective” remedy which would have shed light on the
whereabouts of her son. She asserted in her petitions to the public
prosecutor that he had been taken into custody and that she was concerned
for his life since he had not been seen since 25 November 1993. In the view
of the Court, where the relatives of a person have an arguable claim that the
latter has disappeared at the hands of the authorities, the notion of an
effective remedy for the purposes of Article 13 entails, in addition to the
payment of compensation where appropriate, a thorough and effective
investigation capable of leading to the identification and punishment of
those responsible and including effective access for the relatives to the
investigatory procedure (see, mutatis mutandis, the above-mentioned
Aksoy, Aydın and Kaya judgments at p. 2287, § 98, pp. 1895–96, § 103 and
pp. 329–31, §§ 106 and 107, respectively). Seen in these terms, the
requirements of Article 13 are broader than a Contracting State’s obligation
under Article 5 to conduct an effective investigation into the disappearance
of a person who has been shown to be under their control and for whose
welfare they are accordingly responsible.
141. For the reasons given earlier (see paragraphs 124 and 126 above),
Mrs Kurt can be considered to have had an arguable complaint that her son
had been taken into custody. That complaint was never the subject of any
serious investigation, being discounted in favour of an unsubstantiated and
hastily reached explanation that he had been kidnapped by the PKK. The