PARTLY CONCURRING OPINION OF JUDGE MYJER

I agree with the final conclusion that there has been a procedural violation of Article 2 of the Convention.

I also agree with the underlying reasoning in paragraphs 84-85 (inadequacy of the autopsy) and 86-93 of the judgment (conduct of the trial of Officer Akg ü n). In that connection I would like to explicitly draw attention to the important reasoning in paragraph 90 on the obligation to give – if necessary ­ – extra protection to persons who are witnesses against State agents.

I have, however, some hesitation as far as the role of the Çermik district governor is concerned (see paragraphs 79-83 of the judgment). From the facts of the case it seems clear that after the district governor had received the complaint by the applicant ' s father, he tried to mediate between the father and the officer. According to the district governor, the officer offered his apologies to the father, after which the father accepted the apologies and the original complaint was torn up by the district governor (paragraph 11). Even if the complaint which was later found on the body of the by then deceased father had the same contents as the one which was torn up (something which was denied by the district governor – see paragraph 32), and notwithstanding the legal obligations laid down in Article 235 of the Criminal Code (see paragraph 46), I still do not see that the way the district governor acted at that time was contributory to the procedural violation, unless it should have been clear to the district governor at that time that the applicant ' s father had been so badly beaten up that an immediate medical investigation was also necessary. There are, however, no indications that this was the case. The only thing I am prepared to accept is that the district governor should have assumed his responsibility and should have ordered an immediate, independent, effective and adequate investigation once he had learnt that the applicant ' s father had all of a sudden died.

PARTLY DISSENTING OPINION OF JUDGE TÃœRMEN

I agree with the majority that there has been no substantive violation of Article 2. However, I regret that I am unable to agree with the majority in finding a violation of Article 2 in its procedural aspect.

The majority concluded that it was not established beyond reasonable doubt that there was a causal link between the death of Mr Emin Yıldırım and the alleged beating he received from Captain Sezai Akgün. This was also the conclusion of the Diyarbakır Assize Court . Nevertheless, the domestic court, considering that Mr Emin Yıldırım had been subjected to ill-treatment by Officer Akgün, either because the alleged beating had occurred or because, as the officer himself admitted, he had shouted at the deceased, sentenced him to imprisonment for three months and fifteen days and he was temporarily prohibited from public service for two months and fifteen days. The fact that the sentence was decreased to imprisonment for two months and fifteen days and then commuted to a fine does not change the main element of the case, that Officer Akg ü n was put on trial and, after a fair trial, which has not been disputed, was sentenced. Moreover, a heavy penalty of a fine, regardless of the amount, has serious consequences for a convicted person. The majority ' s finding of a procedural violation could have been justified if Officer Akg ü n had not been brought to trial or had not been punished. This was not the case. Furthermore, it should be taken into account that Mr Yıldırım did not lodge a complaint against Officer Akg ü n , as the officer had apologised to him.

Moreover, the majority ' s criticism in paragraph 94 against the Turkish penal system for not being rigorous is not well-founded. According to the majority ' s opinion, three months and fifteen days ' imprisonment is not an adequate punishment for ill-treatment. The question which arises is whether it falls within the competence of the Court to decide what punishment for what offences should be included in the criminal c odes of the Contracting States. The obvious answer to such a question is that the principle of subsidiarity should prevail.

Other reasons given by the majority in finding a procedural violation of Article 2 do not seem to be very convincing. One reason is the inadequacy of the autopsy. This conclusion does not have a sound basis.

There was a full autopsy. During the proceedings, the Assize Court obtained all the medical documents concerning the deceased from Diyarbakır General Hospital and sent them to the Forensic Medicine Institute for a final report on the cause of death of Mr Yıldırım. The shortcomings in the case file indicated by the Forensic Medicine Institute were remedied and the file was completed. After a thorough examination of the file, the Forensic Medicine Institute submitted a report to the domestic court. However, the applicant ' s representative did not accept the findings of this report. Upon this objection, the domestic court decided to request a report from the General Assembly of the Forensic Medicine Institute. The judgment of 14 June 1999 is based upon the report of the General Assembly of the Forensic Medicine Institute which was signed by twenty-four physicians, all experts in their fields. Some of them are specialists in forensic medicine, some in traumatology, some in radiology, etc.

The purported lack of a detailed description of the subdural haematoma, as mentioned in paragraph 85 of the judgment, is not correct. A full, detailed description of the findings is provided in paragraph 6 of the autopsy report. It is noteworthy that the report of the Forensic Medicine Institute stated that upon examination of three computerised tomography (CT) scans – a very sensitive method of diagnosis – no traces of subdural haematoma or any other trauma were found. Therefore, it is likely that the subdural haematoma was formed during the operation, that is, after the CT scans. Even if it is assumed that a subdural haematoma existed before the operation, there was no evidence to suggest that this was the result of the incident that took place one month earlier. In fact, there is every reason to believe that there was no causal link between the alleged beating and the death of Mr Yıldırım, since a subdural haematoma is an acute process that occurs immediately after a head trauma. In the present case, the deceased became unconscious one month after the incident. It should be added that during this period of one month he did not seek any medical help.

Reference to the judgment in Salman v. Turkey ([GC], no. 21986/93, ECHR 2000 ‑ VII ) is misplaced. Mr Salman was taken into custody and no plausible explanation was provided for injuries to his left ankle, bruising and swelling of the left foot, a bruise to the chest and a broken sternum. This was not the case with Mr Yıldırım.

The second reason given by the majority is that the Government had failed in their positive obligation to protect the three eyewitnesses. However, there is no indication in the judgment that either the witnesses or the applicant asked for such protection. In other words, domestic remedies were not exhausted.

During the proceedings, the witnesses changed their statements at different stages of the investigation. The domestic court took the view that it was impossible to know which of these contradictory statements reflected the truth.

The general principle is that assessment of evidence is primarily a matter for the domestic judge. In the present case, the domestic judge assessed the evidence before him and gave a verdict . The finding of a violation of Article 2 in its procedural aspect in the present case seems to me not to be in line with the case-law of the Court. I am therefore of the opinion that there has been no violation of Article 2.

[1] 1. The Workers ’ Party of Kurdistan, an illegal organisation.