DISSENTING OPINION OF Mr L. LOUCAIDES

JOINED BY MM. S. TRECHSEL AND M.A. NOWICKI

I am unable to agree with the majority that in this case no separate issue arises under Article 10 of the Convention.  I believe the facts are such as to justify a separate finding of a breach of the right to freedom of expression.

According to the evidence before the Commission it is clear that the killing of Kemal Kĸlĸç was due to the expression of his views as a journalist working for Özgür Gündem, a pro-kurdish newspaper considered by the authorities to support the PKK.

The Commission has found it established that Kemal Kĸlĸç fell into a category of people who were at risk for unlawful violence from targeting by state officials or those acting on their behalf or with their connivance or acquiescence, because he was a journalist for Özgür Gündem.  The authorities were aware that Kemal Kĸlĸç and those working for Özgür Gündem considered that they were at risk and required protection but took no steps to investigate the extent of the alleged risks.

The Commission found that through their failure to take investigative measures or otherwise respond to the concerns of Kemal Kĸlĸç about the apparent pattern of attacks on persons connected with Özgür Gündem and through the defects in the investigative and judicial procedures carried out after his death, the state authorities did not comply with their positive obligation to protect Kemal Kĸlĸç's right to life.

I believe that the obligation of the state to take the investigative measures and other steps mentioned above did not stem solely from their positive obligation to protect the right to life of Kemal Kĸlĸç but also, from their distinct obligation to secure the right to freedom of expression of the same person who was at risk from unlawful violence because of the expression of his views as a journalist.  In other words, the positive obligation of the state to safeguard the life of Kemal Kĸlĸç had, in the light of the particular facts of this case, two dimensions.  The first related to the right to life of the person in question under Article 2 of the Convention and the second to the right of freedom of expression under Article 10 of the Convention.

Therefore the failure of the state to take the investigative measures and other steps mentioned above amounted not only to a violation of Article 2 of the Convention but also to a violation of Article 10 of the Convention.