PARTLY DISSENTING OPINION OF JUDGE TÃœRMEN

1. To my regret, I am unable to agree with the majority of the Court that the applicant was arrested on 11 June 1998 by officers from the Şırnak gendarmerie command and kept in custody until 15 June 1998 without his detention being officially recorded and that he was subjected to inhuman treatment during this period, in violation of Article 3 of the Convention.

2. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt” (see, for example, Orhan v. Turkey , no. 25656/94, § 264, 18 June 2002). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, for example, Ülkü Ekinci v. Turkey , no. 27602/95, § 142, 16 July 2002).

3. It appears from the facts of the case that on the day of the applicant ’ s abduction, his son filed a petition with the national authorities, maintaining that the applicant had been kidnapped by six or seven persons and that a neighbour, Ö.K., had witnessed the abduction. Furthermore, on 13 June 1998 Ö.K. testified before the police that he had seen the applicant being taken away by seven men who were carrying rifles. He also stated that the applicant ’ s hands had been tied and that he had been beaten by these men. It also appears that according to the medical report dated 15 June 1998, the applicant bore signs of ill-treatment on his body after his release from his kidnappers.

4. However, unlike the majority, I am unable to conclude that the applicant has laid the basis of a prima facie case that the armed persons who kidnapped him on 11 June 1998 were State officials or that State officials were implicated in the abduction. I therefore consider that the actual circumstances remain a matter for speculation and assumption. I am of the opinion that there is insufficient evidence on which to conclude that the applicant was, beyond reasonable doubt, taken into the custody of the gendarmerie and that the injuries noted in the medical report of 15 June 1998 were the result of inhuman treatment for which the Government bore responsibility.

5. In the light of the above, I conclude that there has not been a violation of Article 3 of the Convention.

6. Having regard to my conclusion in point 5 and to the Court ’ s finding of a violation of the applicant ’ s right to a fair hearing by an independent and impartial tribunal, I am also of the opinion that it was not necessary to examine the applicant ’ s complaint under Article 6 §§ 1 and 3 (c) of the Convention (see, for example, İncal v. Turkey , judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, § 74).

7. Finally, as I consider that there has not been a violation of Article 3 of the Convention, I find the sum awarded to the applicant for non-pecuniary damage excessive.

[1] Rectified on 7 September 2007: The applicant’s first name read “Hacı” in the former version of the judgment .

[2] Rectified on 7 September 2007: The applicant’s first name read “Hacı” in the former version of the judgment .

[3] Rectified on 7 September 2007: The applicant’s first name read “Hacı” in the former version of the judgment .