PARTLY DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

I disagree with the majority on the application of Article 41 of the Convention.

Allow me to explain:

1. In the vast majority of cases in which pecuniary damage has been sought for an alleged violation of the Convention, the Court has refused to make an award on the ground that the claim was speculative or fictitious, especially when it has entailed “actuarial calculations”. Does it need repeating that the Court does not have the resources to engage in this type of activity as if it were an “insurance company”. In the rare cases in which it has awarded a fixed amount, it has been able to calculate the loss with precision on the basis of documentary evidence, for instance in cases where movable or immovable property has been destroyed or medical costs have been incurred. Such calculations have always been restricted to what is reasonable, thereby avoiding any speculation or unjust enrichment.

2. However, in the instant case, not only has the Court proceeded to perform “speculative calculations”, it has also decided that it is just and reasonable to award a sum that is more than exorbitant (226,065 euros – EUR) and at a level never previously attained. Like considerations apply to the non-pecuniary damage, for which it awarded EUR 58,000.

To justify what I have just said, I should like to refer (by way of example) to judgments that have been delivered by the Court in similar cases. These are the relevant paragraphs (emphasis added to certain phrases and figures):

KURT JUDGMENT OF 25 MAY 1998 (disappearance - violation)

[Claim]

”171.  The applicant maintained that both she and her son had been victims of specific violations of the Convention as well as a practice of such violations. She requested the Court to award a total amount of 70,000 pounds sterling (GBP) which she justified as follows: GBP 30,000 for her son in respect of his disappearance and the absence of safeguards and effective investigative mechanisms in that regard; GBP 10,000 for herself to compensate for the suffering to which she had been subjected on account of her son's disappearance and the denial of an effective remedy with respect to his disappearance; and GBP 30,000 to compensate both of them on account of the fact that they were victims of a practice of “disappearances” in south-east Turkey. “

[Decision of the Court]

“174.  The Court recalls that it has found the respondent State in breach of Article 5 in respect of the applicant's son. It considers that an award of compensation should be made in his favour having regard to the gravity of the breach in question. It awards the sum of GBP 15,000, which amount is to be paid to the applicant and held by her for her son and his heirs.”

TEKIN JUDGMENT OF 9 JUNE 1998 (violation of Article 3)

[Claim and Decision of the Court]

“75.  The applicant claimed compensation in respect of non-pecuniary damage of 25,000 pounds sterling (GBP) and aggravated damages of GBP 25,000.”

“77.  The Court considers that an award should be made in respect of non-pecuniary damage bearing in mind its findings of violations of Articles 3 and 13 of the Convention. Having regard to the high rate of inflation in Turkey, it expresses the award in pounds sterling, to be converted into Turkish liras at the rate applicable on the date of settlement (see the above-mentioned Selçuk and Asker judgment, p. 917, § 115). It awards the applicant GBP 10,000.

78.  The Court rejects the claim for “aggravated damages” (see the above-mentioned Selçuk and Asker judgment, p. 918, § 119).”

ERGI JUDGMENT OF 28 JULY 1998 (violation of Articles 3 and 13)

[Claim]

“107. The applicant submitted that he, his deceased sister and the latter's daughter had been the victims both of individual violations and of a practice of such violations. He claimed 30,000 pounds sterling (GBP) in compensation for non-pecuniary damage. In addition, he sought GBP 10,000 for aggravated damages resulting from the existence of a practice of violation of Article 2 and of a denial of effective remedies in south-east Turkey in aggravated violation of Article 13.”

[Decision of the Court]

“110.  The Court observes from the outset that the initial application to the Commission was brought by the applicant not only on his own and his sister's behalf but also on behalf of his niece, Havva Ergi's daughter. The Court considers that they must have suffered non-pecuniary damage which cannot be compensated solely by the findings of violations. Having regard to the gravity of the violations (see paragraphs 86 and 98 above) and to equitable considerations, it awards the applicant GBP 1,000 and Havva Ergi's daughter GBP 5,000, which amount is to be paid to the applicant's niece or her guardian to be held on her behalf.

111.  On the other hand, it dismisses the claim for aggravated damages.”

OÄžUR JUDGMENT OF 20 MAY 1999 (violation of Article 2)

[Claim]

“95.  In respect of the damage she had sustained, the applicant claimed 500,000 French francs (FRF), of which FRF 400,000 was for pecuniary damage and FRF 100,000 for non-pecuniary damage. She pointed out that she had had no means of support since the death of her son, who had maintained the family by working as a night-watchman.”

[Decision of the Court]

“98. ...

Having regard to its conclusions as to compliance with Article 2 and to the fact that the events complained of took place more than eight years ago, the Court considers that it is required to rule on the applicant's claim for just satisfaction.

As regards pecuniary damage, the file contains no information on the applicant's son's income from his work as a night-watchman, the amount of financial assistance he gave the applicant, the composition of her family or any other relevant circumstances. That being so, the Court cannot allow the compensation claim submitted under this head (Rule 60 § 2).

As to non-pecuniary damage, the Court considers that the applicant undoubtedly suffered considerably from the consequences of the double violation of Article 2. On an equitable basis, the Court assesses that non-pecuniary damage at FRF 100,000.”

CAKICI JUDGMENT OF 8 JULY 1999 (Grand Chamber) (violation of Articles 2, 3, 5 and 13)

[A. Pecuniary damage]

[Claim]

“123.  The applicant requested that pecuniary damages be paid for the benefit of his brother's surviving spouse and children. He claimed a sum of 282.47 pounds sterling (GBP) representing 4,700,000 Turkish liras (TRL), which it is alleged was taken from Ahmet Cakıcı on his apprehension by a first lieutenant, and GBP 11,534.29 for loss of earnings, this capital sum being calculated with reference to Ahmet Cakıcı's estimated monthly earnings of TRL 30,000,000.”

[Decision of the Court]

“125.  The Court observes that the applicant introduced this application on his own behalf and on behalf of his brother. In these circumstances, the Court may, if it considers it appropriate, make awards to the applicant to be held by him for his brother's heirs (see the Kurt judgment cited above, p. 1195, § 174).

...

127.  As regards the applicant's claims for loss of earnings, the Court's case-law establishes that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention and that this may, in the appropriate case, include compensation in respect of loss of earnings (see, amongst other authorities, the Barberà, Messegué and Jabardo v. Spain judgment of 13 June 1994 ( Article 50 ), Series A no. 285-C, pp. 57-58, §§ 16-20). The Court has found (paragraph 85 above) that it may be taken as established that Ahmet Cakıcı died following his apprehension by the security forces and that the State's responsibility is engaged under Article 2 of the Convention. In these circumstances, there is a direct causal link between the violation of Article 2 and the loss by his widow and children of the financial support which he provided for them. The Court notes that the Government have not queried the amount claimed by the applicant. Having regard therefore to the detailed submissions by the applicant concerning the actuarial basis of calculation of the appropriate capital sum to reflect the loss of income due to Ahmet Cakıcı's death, the Court awards the sum of GBP 11,534.29 to be held by the applicant on behalf of his brother's surviving spouse and children.”

[B. Non-pecuniary damage]

[Claim]

“128.  The applicant claimed GBP 40,000 for non-pecuniary damage in relation to the violations of the Convention suffered by his brother.”

[Decision of the Court]

“130.  The Court recalls that in the Kurt judgment (cited above, p. 1195, §§ 174-75) the sum of GBP 15,000 was awarded for violations of the Convention under Articles 5 and 13 in respect of the disappearance of the applicant's son while in custody, which sum was to be held by the applicant for her son and his heirs, while the applicant received an award of GBP 10,000 in her own favour, due to the circumstances of the case which had led the Court to find a breach of Articles 3 and 13. In the present case, the Court has held, in addition to breaches of Articles 5 and 13, that there has been a violation of the right to respect for life guaranteed under Article 2 and torture contrary to Article 3. Noting the awards made in previous cases from south-east Turkey concerning these provisions (see, concerning Article 3, the Aksoy judgment cited above, pp. 2289-90, § 113, the Aydin judgment cited above, p. 1903, § 131, the Tekin judgment cited above, pp. 1521-22, § 77; and, concerning Article 2, the Kaya judgment cited above, p. 333, § 122, the Güleç v. Turkey judgment of 27 July 1998, Reports 1998-IV, p. 1734, § 88, the Ergi v. Turkey judgment of 28 July 1998, Reports 1998-IV, p. 1785, § 110, the Yasa judgment cited above, pp. 2444-45, § 124, and Oğur v. Turkey [GC], no. 21594/93, § 98, ECHR 1999-III) and having regard to the circumstances of this case, the Court has decided to award the sum of GBP 25,000 in total in respect of non-pecuniary damage to be held by the applicant for his brother's heirs.”

MAHMUT KAYA JUDGMENT OF 28 MARCH 2000 (violation of Articles 2, 3 and 13)

[A. Pecuniary damage]

[Claim]

“133.  The applicant claimed 42,000 pounds sterling (GBP) in respect of the pecuniary damage suffered by his brother who is now dead. He submitted that his brother, aged 27 at the time of his death and working as a doctor with a salary equivalent to GBP 1,102 per month, can be said to have sustained a capitalised loss of earnings of GBP 253,900.80. However, in order to avoid any unjust enrichment, the applicant claimed the lower sum of GBP 42,000.”

[Decision of the Court]

“135.  The Court notes that the applicant's brother was unmarried and had no children. It is not claimed that the applicant was in any way dependent on him. This does not exclude an award in respect of pecuniary damage being made to an applicant who has established that a close member of the family has suffered a violation of the Convention. In the present case, however, the claims for pecuniary damage relate to alleged losses accruing subsequent to the death of the applicant's brother. They do not represent losses actually incurred either by the applicant's brother before his death or by the applicant after his brother's death. The Court does not find it appropriate in the circumstances of this case to make any award to the applicant under this head.”

[B. Non-pecuniary damage]

[Claim]

“136.  The applicant claimed, having regard to the severity and number of violations, GBP 50,000 in respect of his brother and GBP 2,500 in respect of himself.”

[Decision of the Court]

“138. As regards the claim made by the applicant in respect of non-pecuniary damage on behalf of his deceased brother, the Court notes that awards have previously been made to surviving spouses and children and, where appropriate, to applicants who were surviving parents or siblings. ... The Court notes that there have been findings of violations of Articles 2, 3 and 13 in respect of the failure to protect the life of Hasan Kaya ... It finds it appropriate in the circumstances of the present case to award GBP 15,000, which amount is to be paid to the applicant and held by him for his brother's heirs.

139.  The Court accepts that the applicant has himself suffered non-pecuniary damage which cannot be compensated solely by the findings of violations. Making its assessment on an equitable basis, the Court awards the applicant the sum of GBP 2,500, to be converted into Turkish liras at the rate applicable at the date of payment.”

KILIÇ JUDGMENT OF 28 MARCH 2000 (violation of Article 2)

[A. Pecuniary damage]

[Claim]

“100.  The applicant claimed 30,000 pounds sterling (GBP) in respect of the pecuniary damage suffered by his brother who is now dead. He submitted that his brother, aged 30 at the time of his death and working as a journalist with a salary equivalent to GBP 1,000 per month, could be said to have sustained a capitalised loss of earnings of GBP 182,000. However, in order to avoid any unjust enrichment, the applicant claimed the lower sum of GBP 30,000.”

[Decision of the Court]

“102.  The Court notes that the applicant's brother was unmarried and had no children. It is not claimed that the applicant was in any way dependent on him. This does not exclude an award in respect of pecuniary damage being made to an applicant who has established that a close member of the family has suffered a violation of the Convention (see the Aksoy judgment cited above, pp. 2289-90, § 113, where the pecuniary claims made by the applicant prior to his death for loss of earnings and medical expenses arising out of detention and torture were taken into account by the Court in making an award to the applicant's father who had continued the application). In the present case, however, the claims for pecuniary damage relate to alleged losses accruing subsequent to the death of the applicant's brother. They do not represent losses actually incurred either by the applicant's brother before his death or by the applicant after his brother's death. The Court does not find it appropriate in the circumstances of this case to make any award to the applicant under this head.”

[B. Non-pecuniary damage]

[Claim]

“103.  The applicant claimed, having regard to the severity and number of violations, GBP 40,000 in respect of his brother and GBP 2,500 in respect of himself.”

[Decision of the Court]

“105.  As regards the claim made by the applicant in respect of non-pecuniary damage on behalf of his deceased brother, the Court notes that awards have previously been made to surviving spouses and children and, where appropriate, to applicants who were surviving parents or siblings. ... The Court notes that there have been findings of violations of Article 2 and 13 in respect of failure to protect the life of Kemal Kiliç, who died instantaneously, after a brief scuffle with unknown gunmen. It finds it appropriate in the circumstances of the present case to award GBP 15,000, which amount is to be paid to the applicant and held by him for his brother's heirs.”

ERTAK JUDGMENT OF 9 MAY 2000 (violation of Article 2)

[Claim]

“146.  The applicant claimed pecuniary damage amounting to 60,630.44 pounds sterling (GBP) for loss of earnings, that sum being calculated with reference to Mehmet Ertak's estimated monthly earnings of 180,000,000 Turkish liras (TRL) at current values, to be held by the applicant on behalf of his son's widow and four children.

147.  The applicant claimed a sum of GBP 40,000 for the non-pecuniary damage arising from the violations of the Convention suffered by his son and from the alleged practice of such violations, to be held by him on behalf of his son's widow and four children, as well as a sum of GBP 2,500 for himself on account of the lack of an effective remedy. He referred to the Court's previous decisions regarding unlawful detention, torture and the lack of an effective investigation.”

[Decision of the Court]

“150.  As regards the applicant's claims for loss of earnings, ... The Court has found (see paragraph 131 above) that it may be taken as established that Mehmet Ertak died following his arrest by the security forces and that the State's responsibility is engaged under Article 2 of the Convention. In those circumstances, there is indeed a direct causal link between the violation of Article 2 and the loss by his widow and children of the financial support which he provided for them (see Cakıcı cited above, § 127). The Court awards the applicant the sum of GBP 15,000, to be held by him on behalf of his son's widow and children.

151.  As regards non-pecuniary damage, ... the Court has held that there has been a substantive and a procedural violation of Article 2. Noting the awards made in previous cases involving the application of the same provision in south-eastern Turkey (see the Kaya judgment cited above, p. 333, § 122; the Güleç judgment cited above, p. 1734, § 88; the Ergi v. Turkey judgment of 28 July 1998, Reports 1998-IV, p. 1785, § 110; the Yasa judgment cited above, pp. 2444-45, § 124; and Oğur v. Turkey [GC], no. 21594/93, § 98, ECHR 1999-III) and having regard to the circumstances of this case, the Court awards the sum of GBP 20,000 in respect of non-pecuniary damage, to be held by the applicant on behalf of his son's widow and four children.”