CONCURRING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

I voted with the majority of the Court, finding that the crux of the matter in this case related to Articles 6 (violation) and 10 of the Convention. However, I consider it my duty as a judge to draw attention to an important point relating to the application of Article 41.

In a number of identical cases to the current one, in which Articles 6 § 1 (independence and impartiality of the court) and 10 of the Convention were at issue, the Court found as follows with regard to former Article 50 (now Article 41):

Incal v. Turkey judgment of 9 June 1998

“82. On the question of pecuniary damage, the Court considers in the first place that it cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 would have been. It further notes that there is insufficient proof of a causal connection between the breach of Article 10 it has found and the loss of professional and commercial income alleged by the applicant. Moreover, the applicant’s claims in respect of pecuniary damage are not supported by any evidence whatsoever. The Court can therefore not allow them.

With regard to non-pecuniary damage, the Court considers that the applicant suffered a certain amount of distress on account of the facts of the case. Making an assessment on an equitable basis, as required by Article 50, the Court awards him compensation in the sum of FRF 30,000 under this head [in other words, the equivalent of USD 4,000].

83. With regard to costs and expenses, the Court awards Mr Incal, on an equitable basis and according to the criteria laid down by its case-law (see, among other authorities, the Demicoli v. Malta judgment of 27 August 1991, Series A no. 210, p. 20, § 49), the overall sum of FRF 15,000.”

Çıraklar v. Turkey judgment of 28 October 1998

“47. The applicant sought 262,000 French francs (FRF) for pecuniary damage and FRF 500,000 for non-pecuniary damage.

48. The Government invited the Court to dismiss that claim.

49. As Mr Çıraklar did not specify the nature of the pecuniary damage of which he complained, the Court cannot but dismiss the relevant claim. As to the alleged non-pecuniary damage, it is sufficiently compensated by the finding of a violation of Article 6 § 1.”

Mehdi Zana v. Turkey judgment of 6 March 2001

“25. When submitting his application, the applicant claimed in general that non-pecuniary damage, costs and expenses be awarded to him. However, he did not give any particulars of these claims, as required by Rule 60 of the Rules of Court, although he was requested to do so (see, among other authorities, Motière v. France , judgment of 5 December 2000, unreported).

26. The Court considers that the finding of a violation constitutes in itself sufficient compensation for any non-pecuniary damage suffered by the applicant (see Incal , cited above, p. 1575, § 82, and Çıraklar , cited above, p. 3074, § 45).

27. As to the legal costs and expenses, in the absence of any quantified claim, the Court makes no award.”