PARTLY DISSENTING OPINION OF JUDGES TÃœRMEN AND MARUSTE

We regret we are unable to agree with the majority's opinion concerning Article 2 of the Convention.

We agree with the majority that the first sentence of Article 2 creates an obligation for the State not only to refrain from the intentional taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. This principle also applies to the environment field. Therefore, Article 2 is applicable.

The expert report of 7 May 1991 underscored the existence of a real and immediate danger due to the methane gas that was emitted from the rubbish tip. In view of this fact, we can also agree with the majority that both the mayor of Ãœmraniye and the mayor of Ä°stanbul knew or ought to have known at the time that there was a real and immediate risk to the lives of those living in the vicinity of the tip. Due to negligence, they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (Keenan v. United Kingdom , 3 April 2001 , paragraphe 89).

On the other hand, the fact that the applicant also contributed to the loss of lives by constructing a house illegally close to the tip, a location strictly prohibited by law, cannot be disregarded. In the Chapman v. United Kingdom case, it was stated by the Court that “where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interests between the right of the individual ... and the right of others in the community. The Court will be slow to grant protection of those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site” (judgment of 18 January 2001 , paragraph 102). Although the Chapman judgment was related to Article 8 of the Convention and was about building a dwelling on an environmentally protected site, the general principle quoted above also applies mutatis mutandis to our case.

It is not possible to say that the authorities remained passive after the accident. Three separate investigations were conducted by the police, by the crisis committee established by the Governor of Istanbul and by the Ministry of Interior.

As a result of the investigations, criminal proceedings were brought against the two mayors by the Public Prosecutor of Üsküdar . The Fifth Chamber of the Istanbul Criminal Court found them guilty of negligence in the course of their duty and sentenced them to three-months' imprisonment and a fine. The prison sentences were commuted to fines in accordance with Law no. 647. The Court of Cassation confirmed the judgment of the court of first instance. The applicant was not an intervening party in the criminal

proceedings and therefore had no right to oppose the judgment of the Court of first instance before the Court of Cassation.

The applicant applied to the Administrative Court for compensation. This court decided to award the applicant an amount of 100,000,000 Turkish liras (TRL) for non-pecuniary damage and 10,000,000 TRL for pecuniary damage.

In addition, the Government sold a house to the applicant on very favourable terms and he is still living there.

Several conclusions flow from the above-mentioned facts:

The national system affords a remedy in the criminal courts as well as in the civil courts (which the applicant did not make use of) and the administrative courts. Criminal proceedings was brought against the two mayors and they were convicted. Their conviction was upheld by the Court of Cassation. It is an established principle of the Court's case-law that the assessment of the facts is a matter for the national courts. This is a consequence of the subsidiary role of the Strasbourg Court . The national court in this case examined the facts and decided to apply Article 230 of the Turkish Criminal Code and not Article 455. There is nothing in the judgment to suggest that the Turkish courts acted arbitrarily. Under the circumstances, to find a violation of Article 2 due to the fact that the national court did not apply Article 455 of the Criminal Code is in our opinion, a clear example of the Court acting as a court of fourth instance.

In view of the above, we cannot share the conclusion reached by the majority that the local remedies considered as a whole were inadequate or ineffective and did not satisfy the procedural obligation in Article 2 of the Convention to carry out an effective investigation.

Moreover, even if we accept that the criminal-law remedy in this specific case was not adequate, in view of the Calvelli and Ciglio judgment where the Grand Chamber stated that “if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case” (Calvelli and Ciglio v. Italy, no. 32967/96, 17 January 2002, § 51), the compensation awarded by the Administrative Court should have been a sufficient basis on which to find that there has been no violation of Article 2. In Calvelli and Ciglio, the Court reached the conclusion that there was no violation of Article 2 in spite of the fact that the doctor was not prosecuted under the criminal law.

We are not persuaded by the reasons adduced by the majority in paragraph 94 to distinguish this case from the Calvelli and Ciglio judgment.

On the contrary, both cases fall under a special category of Article 2 cases, in which loss of life is not due to the use of force by the authorities, but to the negligence of the public authorities.

We conclude therefore that there has been no violation of Article 2 of the Convention.