M.O.B. M.P. PARTLY DISSENTING OPINION OF JUDGE CASADEVALL

( translation )

1. I agree with the majority that there is insufficient evidence in the case file to show that the applicant's husband was killed by the security forces or with their complicity and that no violation can be found on that ground. However, I am of the contrary view when it comes to the nature of the investigations that were conducted by the relevant authorities and whether they were of the standard required by the Court's settled case-law on that subject. The principles governing the conduct of such investigations are set out inter alia in the Hugh Jordan v. the United Kingdom judgment of 4 May 2001, in which the Court consolidated a number of the applicable rules (see §§ 107 to 109). It will be noted that the obligation is not to achieve results but to exercise skill and care.

2. Contrary to what is stated in paragraph 99 of the judgment , I am not persuaded that the steps taken by the authorities in charge of the preliminary investigation and by the public prosecutor's office were wholly satisfactory. While it is true that a lengthy and complex investigation procedure was set in motion immediately after the fatal shots were fired, I have doubts about the relevance, adequacy and effectiveness of the inquiries in view of the direction the investigations took, and the omissions and numerous difficulties subsequently encountered by the Public Prosecutor at the Konya National Security Court.

3. The proceedings which began in September 1994 and which, so far as I am aware, are still pending, can be divided into three distinct periods:

(a) On the day the shooting occurred, 28 September 1994, there were approximately fourteen people in the tea rooms and four in the front of the van when the victim was killed [1] . Thirteen of the workmen had got into the back of the vehicle [2] . The applicant was approximately 250 metres from the scene at the material time [3] . In addition to the workmen who had just got into the van about ten or so people were present in the tearoom or in the vicinity [4] . A police officer arrived to make the initial inquiries [5] . However,

the police questioned only four people [6] .

The Principal Public Prosecutor immediately started a preliminary investigation. However, it does not appear from the case file that an autopsy or a toxicological analysis was carried out, despite the recommendation made in the medical report [7] . The victim's body was returned to the family unclothed [8] . The police officer who made the initial inquiries at the scene of the crime was not called to give evidence [9] . The record of interview of Mesut Sen , the van driver, was not communicated to the Court (assuming it was compiled). On 13 October 1994, two weeks after the incident, the Head of the Anti-Terrorist Branch forwarded a report to the Public Prosecutor. It does not appear from the case file that other information concerning the search for and identification of witnesses was obtained before July 1995.

(b) Following the deaths of several members of the HADEP and of PKK supporters, an operation was launched against Hizbullah in July 1995 and fourteen people arrested. From that point on, Hizbullah became the prime suspect and the investigation into the applicant's husband's death concentrated on the fourteen suspects (see paragraphs 20 to 42 of the judgment ). However, despite the Konya Public Prosecutor's efforts to make progress [10] , the investigation did not to yield any results. It should be noted, however, that only two of the fourteen suspects, Z.T. and H.T., were questioned. The Head of the Anti-Terrorist Branch informed the Public Prosecutor in various letters, the last of which was dated 22 September 1998, that no further evidence had been found in the investigation [11] .

(c) Three years and seven months after the applicant's husband was killed and a month after the European Commission of Human Rights declared the application admissible [12] , that is to say on 14 April 1998, the investigating authorities heard evidence for the first time from the applicant, Sultan Sabuktekin , her brother-in-law Abdulvahap and the police officer who had made the initial inquiries at the scene [13] . Similarly, it was not until 9 November 1998 that the first record of interview of the van driver, Mesut Sen , was compiled, and not until 19 November 1998 that the records of interview of Latif and Ekrem Turan , who were employed by the victim, were compiled. On the other hand, while the victim's brother, Halil Sabuktekin , was questioned on four occasions between April and November 1998, it was on each occasion with regard to the scene of the murder. Quite clearly, it was by then far too late.

4. In view of these circumstances, I consider that, though admittedly long and complex, the investigation into the applicant's husband's death was too incomplete, superficial and late to afford any prospect of the murder being cleared up. Like the Commission, I have reached the conclusion that the investigation was inadequate and ineffective and, consequently, did not comply with the procedural requirements arising under Article 2 of the Convention. Likewise and for the reasons set out in the Commission's report, I also consider that there has been a violation of Article 13.

[1] 1. See Halil Sabuktekin’s statement (referred to in paragraphs 47 and 53 of the judgment).

[2] 2. See the statement dated 9 November 1998 of Mesut Sen (the driver – paragraph 54 of the judgment).

[3] 3. Statements of 15 April and 18 November (paragraphs 45 and 57 of the judgment).

[4] 4. Statement of Müslum Olcay dated 28 September 1994 (paragraph 17 of the judgment).

[5] 5. Paragraph 44 of the judgment.

[6] 6. Paragraphs 17 and 100 of the judgment refer to five people, but in fact only four statements were taken, from Halil Sabuktekin, Abdullah Ertekin, Müslum Olcay and Suphi Özbudak. The Commission’s report also refers to four people (see paragraph 26 of its report). At all events, the alleged record made of Mesut Sen’s interview by the police at the hospital is not in the file. Nor does Mesut Sen’s name appear in the letter 24 April 1998, which is cited in paragraph 48 of the judgment, in the list of people who were allegedly informed by the police on the day of the shooting that they were required to attend the police station for questioning.

[7] 7. Medical report appended to the report of 13 October 1994 (see paragraph 18 of the judgment).

[8] 8. Statements of the victim’s brothers (see paragraphs 47 and 49 of the judgment), which were not contested by the Government.

[9] 9. He did not receive the summons at the material time and the summons was not served in 1998 on the ground that he was performing his military service and it was not known to which barracks he was attached (!).

[10] 10. See the requests dated 16 August and 12 December 1995, 14 March, 25 September and 18 October 1996 of the Konya Public Prosecutor for a confrontation between the four witnesses and the detained suspects. See also his request of 5 November 1996 for forensic analysis of the victim’s clothes, which were never located.

[11] 11. See paragraph 42 of the judgment.

[12] 12. Admissibility decision of 12 March 1998. See the Commission’s report of 21 October 1999.

[13] 13 . See note 9 above.