prevent terrorist attacks and suppress the criminal activities of illegal armed
groups and in view of the impossibility of using ground troops in the area of the
village, military officials in command of counter-terrorist activities took a
decision to launch a pinpoint missile strike by air forces on the location of illegal
armed groups near the village in question.
64. Interestingly in canvassing their claim for mental torture under Article 3, the
Applicants referred to the decision of the Court in Selçuk and Asker above urging
the Court to note the similarities and rule accordingly. However the Court held
“…..in this connection, it notes firstly that, as far as the destruction of the
applicants’ possessions including their housing was concerned, the present case
is distinguishable from the Turkish cases referred to by the applicants in
particular, in the case of Selçuk and Asker”
In conclusion it held that
“….the Court has no evidence to be able to reach the same conclusion. It is true
that, as has been found above, the attack of 12 September 1999 was not
adequately planned and controlled (see paragraph 149 above) but this attack can
hardly be said to have had as its purpose subjecting the applicants to inhuman
treatment, and in particular, causing them moral suffering. The Court accepts
that the applicants may have suffered considerable distress as a result of the
destruction of their homes and property in the attack of 12 September 1999.
However, in the light of the foregoing, and also bearing in mind that it has
already found a violation of Article 8 of the Convention and Article 1 of Protocol
No. 1 on that account, the Court is unable to find a violation of Article 3 of the
Convention in the circumstances of the present case, in so far as the applicants’
complaint about the destruction of their homes and possessions is concerned.”
See ESMUKHAMETOV & ors v RUSSIA. 24 April 1998- reports 1998-11.
65. The salient points evinced by these two cases are that, firstly the necessity of
the intention component of torture as evidence by the dismissal of one and the
admittance of another based on the presence of an intention or otherwise.
Secondly, while the majority of the decided cases above referred are allegation
of torture that occurred in correctional places, police stations, and other places of
detention, these two cases are indicative that they need not be.
66. The sum total of the analysis above shows that the following if combined
constitute torture:
20