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ILHAN v. TURKEYPARTL Y DISSENTING OPINION OF MR S. TRECHSEL

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Document date: April 23, 1999

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ILHAN v. TURKEYPARTL Y DISSENTING OPINION OF MR S. TRECHSEL

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Document date: April 23, 1999

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PARTL Y DISSENTING OPINION OF MR S. TRECHSEL

JOINED BY MM A.  . GÖZÜBÜYÜK AND A. WEITZEL

I fully agree with the majority’s finding according to which there has been a violation of Article 3 in the present case, inter alia , in view of the inadequate efforts to establish the facts and to prosecute the person who used grossly disproportionate violence on the applicant. However, I disagree on the two issues raised under Articles 2 and 13.

As far as Article 2 is concerned, I cannot find that there has been a viola tion. I do agree with two points made by the majority: I accept that Article 2 can be violated even in the absence of any death having been caused on the one hand, and in the absence of intent on the other hand. However, in my view a combination of both is not possible.

I shall not hide the fact that my thinking is influenced by teachings of penal law. There, we usually find (various forms of) intentional killing, attempted killing and causing death by negligence. An attempt would, however, always require the intent to achieve the aim, i. e. to cause death.

This distinction is in no way arbitrary. The fact that attempted murder is punished at all, finds various justifications in criminal doctrine - on the one hand, it is justified by reference to the evi l intent of the author, on the other hand by the danger incurred by the (almost-)victim. However, that danger again has its roots essentially in the evil intent of the author. Negligent behaviour which does not cause death need not necessarily remain unpun ished, but will often constitute an offence of endangering the life of others, e.g. by driving under the influence of alcohol, exceeding the speed-limits, undertaking construction work without the necessary safeguards etc.

In the present case, the Commis sion has found that one or several persons, engaging by their acts the responsibility of the respondent Government, have inflicted severe wounds upon the applicant. However, there is no hint of any intention to take his life. In fact, he has survived the i ncident, albeit not without remaining impaired in his movement.

I cannot find that, in these circumstances, that there has been a violation of his right to life under Article 2 of the Convention and have not been convinced by the arguments put forward i n the Report. It is true that Article 2 speaks of  force which is no more than absolutely necessary  , but the initial words of para. 2 are:  Deprivation of life shall not be regarded as inflicted in contravention of this article ...  In the present case there has been no deprivation of life. Article 2 can not, in my view, be interpreted in such a broad way that any disproportionate use of force in one of the three eventualities set out in sub-paras. a. to c. of Article 2 constitutes a violation of the right to life, irrespective of the results of such use o f force.

With regard to Article 13, I have voted against the finding of a violation, although I fully agree with the considerations set out in paras. 240-245 of the Report. In my view, no further issue arises, because the finding on Article 3 already tak es into account that there has been no serious investigation nor any adaequate proceedings after the incident.

(Or. English)

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