DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

To my regret, I am unable to join the majority in rejecting the Government ’ s request to strike the present application out of the list. The majority have also decided to pursue the examination of the merits of the case and have accordingly reserved the further procedure, a conclusion which I am likewise unable to support.

My reasons are the following.

1. By Article 37 § 1 of the Convention, the Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions set out in sub-paragraphs (a), (b) or (c) of that provision. In particular, sub-paragraph (c) empowers the Court to strike out a case if “for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

2. Thus, the Court (Second Section), after examining carefully the terms of the Government ’ s unilateral declaration ( T.A. v. Turkey (striking out), no. 26307/95, § 60 , 9 April 2002), considered – having regard to the nature of the admissions contained in the declaration and the scope and extent of the various undertakings referred to therein, together with the amount of compensation proposed – that it was no longer justified to continue the examination of the application (Article 37 § 1 (c)) and that the application should accordingly be struc k out of the list (ibid., §§ 64 and 66 ). I agree entirely with that conclusion.

3. Subsequently, at the hearing of 29 January 2003 before the Grand Chamber, the Government agreed to amend their unilateral declaration in accordance with the proposal submitted to them by inserting the words “such as in the present case” in the fourth paragraph, thereby changing the relevant sentence to: “It is accepted that unrecorded deprivations of liberty and insufficient investigations into allegations of disappearance, such as in the present case , constitute violations of Articles 2, 5 and 13 of the Convention” (emphasis added) ( see paragraph 69 of the judgment).

4. Moreover, in the fifth paragraph of their declaration the Government stated: “... the supervision by the Committee of Ministers of the execution of Court judgments concerning Turkey in this and similar cases is an appropriate mechanism for ensuring that improvements will be made in this context. To this end, necessary coo peration in this process will continue to take place. ...” The Government thus fully acknowledged and assumed the respondent State ’ s liability under the Convention. Accordingly, the alleged differences which the majority perceived between Akman v. Turkey and the present case in reaching the opposite conclusion are wholly irrelevant because, as I have just indicated, in making the addition to the fourth paragraph the Government clearly admitted liabili ty (see paragraphs 80 to 83 of the present judgment, and also the following judgments: Akman v. Turkey (striking out), no. 37453/97, ECHR 2001-VI ; Haran v. Turkey (striking out) , no. 25754/94, 26 March 2002; and Toğcu v. Turkey (striking out), no. 27601/95, 9 April 2002.

5. However, the majority of the Court, disregarding the fact that only the official written declaration submitted to the Court is authoritative and drawing unjustified inferences, expressed the opposite view and rejected the Government ’ s request to strike the application out of the list under Article 37 § 1 (c) of the Convention. That is a conclusion which I am unable to share.

6. In the present case , it seems to me that the referral to the Grand Chamber is more akin to an appeal on points of law than to an ordinary appeal. For that reason, I do not regard the present judgment as an interlocutory decision. Accordingly, after rejecting the Government ’ s request (in other words, after quashing the Second Section ’ s judgment), the Grand Chamber should have remitted the case – for a fresh examination of the merits – to the section whose judgment it had just set aside instead of reserving the further procedure with a view to pursuing the examination of the merits of the case.

[1] 1. In the documents submitted by the parties, Mehmet Salim Acar is also referred to as Mehmet Salih Acar or as Mehmet Selim Acar.