PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES

I do not share the approach of the majority as regards the complaint of the second applicant for violation of Article 3 of the Convention in her case. I agree with the partly dissenting opinion of Judge Spielmann as regards this aspect of the case. I would like to emphasise that the murder of the second applicant ' s mother was effected in such circumstances that it was rendered particularly atrocious. I would go further and say that I believe that the murder, of someone ' s mother, as in the present case, should by itself be considered sufficient to bring a case within the ambit of Article 3 of the Convention. Murderers know full well that when they commit a murder, their action will cause great pain, suffering and a sense of insecurity- in any case to the immediate relatives of the victim- of such a severity as to reach the threshold of treatment contrary to Article 3 of the Convention. And an objective consideration of such situation would lead to the acceptance of this effect.

Like Judge Spielmann, I would add that I find “it somewhat artificial that a finding of a violation of Article 3 of the Convention should be limited to cases of ' disappeared persons ' ”. I believe that what really matters is the actual effect of an act, be that the causing of a disappearance of a person or a murder, to be decided objectively on the facts of each particular case, and not the formal classification or denomination of the situation complained of ( eg “disappeared persons”)

I do therefore find that there has been a violation of Article 3 of the Convention in respect of the second applicant.

PARTLY DISSENTING OPINION OF JUDGE SPIELMANN

( Translation )

1. I am unable to share the opinion of the majority as regards points 5 and 9 of the operative provisions.

2. In point 5 of the operative provisions, the majority have decided that no separate issues arise under Article 3 of the Convention in respect of the investigation into the first applicant ' s allegations that she was ill-treated ( I ).

3. In point 9 of the operative provisions, the majority have decided that there has been no violation of Article 3 of the Convention in respect of the second applicant ( II ).

I.

4. As to the issue whether any separate issues arose under Article 3 of the Convention in respect of the investigation into the first applicant ' s allegations of ill-treatment, I wish to point out that the parties ' views differed as to the need for such an investigation. The first applicant claimed that the authorities had been well aware of the poor conditions and widespread ill-treatment and that they should have taken proactive steps to conduct an investigation. The Government, however, emphasised the fact that the first applicant had not complained about ill-treatment upon her release and that the prosecutor ' s inquiry in 2005 had not obtained any further information necessitating a criminal investigation (see paragraph 10 8 of the judgment).

5. This question concerning the lack of an investigation should, in my opinion, have been examined separately in the light of the Court ' s now settled case-law on the fundamental importance of the procedural obligations stemming from the protection of non- derogable rights.

6. In finding that an examination of this question was not necessary, the Court based its reasoning on the fact that it had already found a substantive violation of Article 3 of the Convention (see paragraph 10 9 of the judgment). However, I am of the opinion that the substantive violation observed cannot exhaust the question of the authorities ' responsibility having regard to the absolute prohibition of any treatment contrary to Article 3 of the Convention . The question of the lack of an investigation accordingly warranted a separate examination.

II.

7. The second applicant alleged that the feelings of fear, anguish and distress she had suffered as a result of the killing of four close members of her family had amounted to treatment contrary to Article 3 of the Convention .

8. It transpires from the Court ' s case-law that this question has been examined most of all in the context of “enforced disappearance” cases and that the question whether a family member is such a victim will depend on the existence of special factors which give the suffering of the applicant a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation (see, among many other authorities, Çakıcı v. Turkey [GC], no. 23657/94, § 98 , ECHR 1999 ‑ IV and Gezici v. Turkey , no. 34594/97, § 73 , 17 March 2005 ).

9. In analysing the question of the applicant ' s suffering, the Court pointed out (in paragraph 15 2 of the judgment) a certain number of factors that were pertinent in the context of cases of “disappeared persons”, but nonetheless refused to extend the application of those factors, and therefore that of Article 3, to relatives of persons who had been killed by the authorities, as opposed to the relatives of victims of enforced disappearances ( Yasin Ateş v. Turkey , no. 30949/96, § 135 , 31 May 2005 ).

10. Admittedly, this is not a case of “disappeared persons”. However, the case is nevertheless a serious one and in my view the threshold of seriousness required for purposes of Article 3 has been reached.

11. Accordingly, in the light of the particular seriousness of the case, I am not persuaded that there are no special factors in this case which give the suffering of the second applicant a dimension and character distinct from the emotional distress which is inevitably caused to relatives of a victim of a serious human rights violation. I find it somewhat artificial that a finding of a violation of Article 3 of the Convention should be limited to cases of “disappeared persons”. Moreover, I note that some of the factors mentioned in paragraph 15 2 of the judgment, if they had been applied to the facts of the present case, would have carried particular weight. Thus, among the relevant factors, I would refer to the fact that the second applicant is the daughter of the first applicant and that her status as victim was recognised on 15 and 28 December 2005 by the investigating authority (see paragraph 77 of the judgment).

12. In conclusion, I consider that there has been a violation of Article 3 of the Convention in respect of the second applicant.

[1] Repealed in February 2004.