ELCI AND OTHERS v. TURKEY JUDGMENT
95
Article 35 § 4) in the present case, and decide that the applications were
manifestly ill-founded or that no violation of the Convention be found.
603. The applicants relied on the text of the Commission's decision on
admissibility of 2 December 1996 to reject the Government's plea of nonexhaustion of domestic remedies. The applicants had complained to the
Public Prosecutor, the Investigating Judge and the State Security Court, but
their complaints were not taken up or investigated. The evidence from
Government witnesses to the Delegates confirmed the practice of the
authorities to dismiss all allegations of misconduct on the part of the
security forces. No effective remedy was identified by the Government in
relation to the applicants' complaints. The applicants also refuted the
Government's plea that their claims were groundless.
604. The Court reiterates that the rule of exhaustion of domestic
remedies referred to in Article 35 § 1 of the Convention obliges applicants
to use first the remedies that are normally available and sufficient in the
domestic legal system to enable them to obtain redress for the breaches
alleged. The existence of the remedies must be sufficiently certain, in
practice as well as in theory, failing which they will lack the requisite
accessibility and effectiveness. Article 35 § 1 also requires that the
complaints intended to be brought subsequently before the Court should
have been made to the appropriate domestic body, at least in substance and
in compliance with the formal requirements laid down in domestic law, but
not that recourse should be had to remedies which are inadequate or
ineffective (see the Aksoy v. Turkey judgment of 18 December 1996,
Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51-52; the
Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports
1996-IV, p. 1210, §§ 65-67; Şarli v. Turkey, judgment of 22 May 2001,
no. 24490/94, § 59).
605. The Court emphasises that the application of the rule of exhaustion
of domestic remedies must make due allowance for the fact that it is being
applied in the context of machinery for the protection of human rights that
the Contracting States have agreed to establish. Accordingly, it has
recognised that Article 35 § 1 must be applied with some degree of
flexibility and without excessive formalism. It has further recognised that
the rule of exhaustion is neither absolute nor capable of being applied
automatically; for the purposes of reviewing whether it has been observed, it
is essential to have regard to the circumstances of the individual cases. This
means, in particular, that the Court must take realistic account not only of
the existence of formal remedies in the legal system of the Contracting State
concerned but also of the general context in which they operate, as well as
the personal circumstances of the applicants. It must then examine whether,
in all the circumstances of the case, the applicants did everything that could
reasonably be expected of them to exhaust domestic remedies (cf. the above