PARTLY DISSENTING OPINION OF JUDGE CASADEVALL, JOINED BY JUDGES TÃœRMEN AND MARUSTE

(Translation)

1. As the State breached its obligation to take the necessary and adequate measures to protect the lives of Mr Öneryıldız's next of kin, I voted – unhesitatingly – in favour of finding that there had been a violation of Article 2 of the Convention. However, my view differs from that of the majority regarding a violation of Article 1 of Protocol No. 1 because I consider this provision to be inapplicable in the circumstances of this case.

2. Article 1 of Protocol No. 1 guarantees in substance the right of property and, according to the established case-law of the Convention institutions, aims to protect only existing possessions and does not guarantee a right to become the owner of property 1 . Accordingly, the determination and identification of a right of property are governed by the national legal system and it is for the applicant to show the precise nature of the right on which he or she relies under domestic law and his or her prerogative to enjoy such a right.

3. As noted by the Court 2 , the land on which the applicant built his dwelling belongs to the Treasury. The applicant has not proved that he had any right to the land or that he took any proceedings whatsoever to claim a right to ownership by adverse possession or that he could legitimately have claimed transfer of title to property under section 21 of Law no. 775 of 20 July 1966 3 . The applicant's slum dwelling was illegal because he had not obtained a building permit and the dwelling did not conform to the technical and health regulations or to the town-planning and building laws.

4. Admittedly, the notion of “possessions” in Article 1 of Protocol No. 1 has an autonomous meaning and certain interests constituting assets can also be regarded as “possessions” for the purposes of this provision. It is also true that the failure to give legal recognition to an interest determined as a “right of ownership” does not necessarily exclude the applicability of Article 1 of Protocol No. 1. However, I must first express my hesitation as to whether, in the particular circumstances of the present case, the references made, mutatis mutandis , to the Tre Traktörer AB v. Sweden and Van Merle and Others v. the Netherlands cases (judgments of 7 July 1989 and 26 June 1986 respectively) suffice to lead to the conclusion reached in paragraph 142 of the judgment and, prior to that, to justify the grounds referred to in paragraph 141 for departing from the conclusions in the Chapman judgment, which, in my view, did not constitute a precedent that had to be surmounted. Indeed, even supposing that in the present case the applicant had acquired an economic interest on account of having set up his dwelling on the land surrounding the rubbish tip, I am still not convinced that such an interest attracts the protection of Article 1 of Protocol No. 1, considering that it was acquired completely unlawfully 4 .

5. It is also a fact that the applicant and his family lived in the slum dwelling for five years, until the accident of 28 April 1993 , undisturbed and benefiting from the implicit tolerance of the authorities. In that connection I note the point expressed by the Court in its preliminary observations (see paragraph 138 of the judgment) on the “more general questions raised by the present case” which are “of general interest”: in the majority's view, the Court is not required to consider those issues. The Court could have taken the same view with regard to this “implicit tolerance” that stems from the intricate social and economic problems with which Turkey is faced 5 . That said, I consider that neither this implicit tolerance nor other humanitarian considerations suffice to legitimise the applicant's action under Article 1 of Protocol No. 1. Nor, in my view, should they be used by the Court to justify a conclusion which is tantamount to removing the applicant from the ambit of the domestic town-planning and building laws 6 and, to an extent, indirectly condoning the spread of these illegal dwellings despite its own findings of fact in the judgment with regard to the disastrous consequences of this for human life, consequences which have given rise to a violation of Article 2 of the Convention.

6. My view on the inapplicability of Article 1 of Protocol No. 1 does not in any way mitigate the State's responsibility for its negligence and failure to comply with its positive obligations to protect the Ümraniye slum inhabitants' lives. It merely underscores, in my view, the point that the primacy of the obligations on States under Article 2 of the Convention bears no comparison to that accorded by the majority to the right enshrined in Article 1 of Protocol No. 1 which it describes as being of “key importance” before ultimately deciding, somewhat hastily, that the Contracting States will henceforth have to satisfy positive obligations in this regard (see paragraphs 144 and 145 of the judgment).

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1 . Marckx v. Belgium , judgment of 13 June 1979 , Series A no. 31, §§ 50 and 63, and Van der Mussele v. Belgium , judgment of 23 November 1983 , Series A no. 70, § 48.

2 . Paragraph 140 of the present judgment.

3 . A judgment of 4 May 1976 of the Turkish Court of Cassation establishes the legal position with regard to slum dwellings built illegally in the so-called “slum rehabilitation and clearance zone” which can, under certain conditions, be regularised under section 21 of Law no. 775.

4 . See, mutatis mutandis , Chapman v. the United Kingdom , no. 27238/95, § 102, ECHR 2001-I.

5 . This tolerance issue leads to a broader socio-economic analysis in the context of the migration to the major cities which has occurred in Turkey and the consequent severe housing shortage.

6 . See, mutatis mutandis , Chapman , cited above, § 115.