Frank McBreaty senior from Rahphoe in County Donegal is taking the Irish Government to the European Court of Human Rights.
An application was lodged with the court in Strasbourg yesterday under Article 3 of the European Convention which deals with inhuman or degrading treatment.
The case being taken by the McBreartys does not relate to the family's treatment at the hands of certain gardaí but to the Governments role in allowing that treatment to continue long after it was made aware of it.
The family say the terms of reference of the Morris tribunal set up to enquire into the so-called McBreaty affairs excludes the role of the government and the Minister for Justice.
Legal sources close to the family say they will now be calling on the State not to begin the tribunal until after the European Court has heard their case.
