PARTLY DISSENTING OPINION OF MM K. HERNDL

AND E.A. ALKEMA

As we do not share the majority’s conclusion in para. 226 of the r eport that in the present case there has been a violation of Article 2 of the Convention in respect of the injury inflicted on Abdüllah Ilhan, the delay in sending him to hospital and the lack of effective investigation, we wish to state that our reasons f or not agreeing with the majority on this point are identical with those so convincingly set out by Mr Trechsel in his opinion.  We fully agree with Mr Trechsel’s argument as to the interpretation which has to be given to Article 2 in the present context.

On the other hand, as far as Article 13 is concerned, we are of the opinion that the failure of the Turkish authorities, notorious as it is, to investigate such cases and, if necessary, to proceed to prosecute any perpetrator, merits a separate finding u nder Article 14 (see para. 249 of the report) which also in our view has been breached.

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.

[2]   Sometimes referred to as Veysi Aksu .

[3]   See eg. Eur. Court HR, Ergi v. Turkey judgment of 28 July 1998, Comm. Rep. 20.5.97, paras. 128 and 153.

[4] Of these, the following have been subject to judgments by the Court, which has largely upheld the Commission’s findings in substance: Eur. Court HR , Akdivar and others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1192; Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, p. 2260; Aydın v. Turkey judgment of 25 September 1997, Reports 1997-VI, p. 1866; Mentes and others v. Tu rkey judgment of 28 November 1997, Reports 1997-VIII, p. 2689; Kaya v. Turkey judgment of  19 February 1998, Reports 1998-I, p. 297; Selçuk and Asker v. Turkey judgment of 24 April 1998, Reports 1998-II, p. 891; Gündem v. Turkey judgment of 25 May 1998, Re ports 1998-III;  Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 1152; Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, p. 1504; Guleç v. Turkey judgment of 27 July 1998, Reports 1998-IV; Ergi v. Turkey judgment of 28 July 1998, to be published in Reports 1998-IV. Additionally, there have been judgments in the cases of Ya  a v. Turkey (judgment of 2 September 1998, to be published in Reports 1998) and Aytekin v. Turkey (judgment of 23 September 1998, to be published in Reports 1998). In the latter case however, the Court rejected the case for non-exhaustion, where there had been a prosecution and conviction of a gendarme, with pending appeal proceedings, in relation to the shooting of the applicant’s husband at a road checkpoint.

[5]   Eur. Court HR, Kaya v. Turkey, op. cit.; Güleç v. Turkey, op. cit.; Ergı v. Turkey, op. cit.; Ya  a v. Turkey, op. cit.; see also the cases pending before the Court : OÄŸur v. Turkey, No. 21594/93, Comm. Rep. 30.10.97, Tanrikulu v. Turkey, No. 23657/94, Comm. Rep. 15.4.98,  akıcı v. Turkey, No. 23657/94, Co mm. Rep. 12.3.98, Ertak v. Turkey, No. 20764/92, Comm. Rep. 4.12.98, Mahmut Kaya v. Turkey, No. 22535/93, Comm. Rep. 23.10.98, Kiliç v. Turkey, No. 22492/93, Comm. Rep. 23.10.98, Salman v. Turkey, No. 21986/93, Comm. Rep. 1.3.99 and Akkoç v. Turkey Nos. 2 2947-8/93, Comm. Rep. 23.4.99.

[6] Eur. Court HR, Aksoy v. Turkey, op. cit.; Aydın v. Turkey, op. cit.; Tekin v. Turkey, op. cit.; see also cases pending before the Court :  akıcı v. Turkey, No. 23657/93, Comm. Rep. 12.3.98, No. 21986/93, Salman v. Turkey, Comm. Rep., op. cit.

[7] See also in this context the findings and concerns of the European Committee for the Prevention of Torture (CPT) relating to the failure by the medical profession properly to document injuries, and the pressure placed on them by the police and security forces (Firs t Public Statement adopted on 15 December 1992, Second Public  Statement adopted on 6 December 1996 and the CPT report on its visit to Turkey from 5 to 17 October 1997.. See regarding non-governmental organisations eg. Amnesty International reports, South- East Turkey: The Health professions in the Emergency Zone (Eur. 44/146/94); Turkey:Human Rights and the Health Professions (Eur. 44/159/96) referred to in the Tanrikulu v. Turkey case, op. cit , Comm. Rep., para. 50 and the applicant’s memorial to the Court , Appendix 3.