DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

In this – very simple – case I share neither the approach nor the conclusion of the majority.

Let me explain myself.

1. First of all, an outline of the facts: on 22 April 1994 six men (five village guards and a confessor, who is an ex-PKK terrorist) arrive at the business premises of Mehmet Şerif Avşar, the brother of the applicant, Behçet Avşar. They want to take him to the central gendarmerie, apparently for questioning. Mehmet Şerif Avşar says he will not go without someone from the security forces being present. One of the six men referred to above calls a seventh man, apparently a police guard, by walkie-talkie. The seven men and Mehmet Şerif Avşar leave in several cars for the gendarmerie and are seen entering the building. The five village guards and the PKK confessor, having been identified on 5 May, are arrested on 6 May (see paragraph 17 of the judgment). They deny that a seventh man was present. On 7 May Ömer Güngör, one of the village guards, takes the gendarme investigators to a place 19 km from Diyarbakır where they find Mehmet Şerif Avşar’s body. He has been shot twice in the head. Ömer Güngör admits having committed the murder.

The trial of the six accused opens on 5 July 1994. It has still not been possible to identify the seventh man because of untrue statements and collusion by the six others. By the time he is identified, he has already taken refuge in Bulgaria . Accordingly, it has not been possible to bring him before Diyarbakır criminal court and try him alongside the others; the proceedings against him have been disjoined pending his extradition.

On 21 March 2000 the trial ends. Ömer Güngör is sentenced to twenty years’ imprisonment for murder and the five other men to six years and eight months’ imprisonment for aiding and abetting murder and abduction. On the same day an arrest warrant is issued by the same court against the seventh man, Gültekin Şütçü, who is still on the run.

2. This case calls for a number of points of clarification.

The six (convicted) men and the seventh one (who is on the run) wear the “same hats”: they are all “State officials”, depositories of public authority. In the instant case their rank does not count; none of them is more important than the other.

Secondly, the proceedings against the seventh officer, who has so far succeeded in escaping justice, are still pending; the limitation period for the crime of which he is accused is twenty-five years.

The six convicted men are now serving their sentence.

3. With regard to the merits of the case, I consider that, in convicting the perpetrators of the deed which has allegedly constituted a violation of Article 2 of the Convention, the respondent Government have fulfilled their obligations under that provision. As the Commission rightly held in its inadmissibility decision in a similar case (“Death and serious injury of children in a public hospital caused by a nurse suffering from mental illness”), “[t]he procedural requirements of Article 2 are satisfied where there have been criminal proceedings against the nurse (which led to her conviction and imprisonment) and an inquiry conducted which was independent of the parties” (The Taylor, Crampton, Gibson and King families v. the United Kingdom, application no. 23412/94, 30 August 1994, DR 79, p. 127).

I am firmly convinced that the fact that one of the suspected perpetrators of the crime has so far succeeded in escaping prosecution and punishment by taking refuge in Bulgaria - even supposing that that was made possible by the collusion of the co-accused - is not such as to vitiate the end result (punishment of the offenders) and invalidate the entire proceedings. The seventh man, regardless of his official title, is not the first defendant to have succeeded – temporarily – in escaping justice, and will not be the last.

4. In paragraphs 394 et seq. the Court goes to extreme lengths – even if it means stating the obvious – to explain that the investigation carried out in the instant case and the trial which followed are worthless as long as the seventh man has not been prosecuted alongside the others. What is more, in doing so it refers to factors that none of the parties has raised (for example, the length of the proceedings, which is not excessive in itself, especially when compared with the length at issue in the four British judgments to which I shall refer in due course in connection with Article 13), makes generalisations on the basis of irrelevant points of fact (the general situation in Turkey and the Court’s point of view concerning the village guards etc.) and presents the case from an inaccurate angle. It asserts that even at the end of the trial the facts have still not been elucidated (paragraph 408)! In my view, they have been elucidated as they should have been. Proof of this can be seen from the fact that the proceedings culminated in heavy criminal penalties. Is it being suggested that those penalties are unjustified?

Paragraph 408 in fine contains an untruth. In cases to which the Turkish Government have been a party they have submitted many times (on the subject of exhaustion of domestic remedies) that in the country’s legal system civil, administrative and criminal remedies must be exhausted and that each of those remedies is independent of the others. The Court has rightly stressed on each occasion that the main thing is the criminal remedy. On this occasion the criminal remedy worked, but the Court does not find it satisfactory or adequate. What more could be done? One might well wonder.

In the final analysis, the Court sets itself up as a national court of first instance. The majority question why the suspects were not arrested immediately (paragraph 397). The truth of the matter is that they were arrested as soon as they were identified. Moreover, it is not for this international Court to judge the appropriateness of a decision to detain on remand, an exceptional – and not always recommended – measure. The Court held in Kemmache v. France (no. 3) of 24 November 1994 (paragraph 44):

“In principle, and without prejudice to its power to examine the compatibility of national decisions with the Convention, it is not the Court’s role to assess itself the facts which have led a national court to adopt one decision rather than another. If it were otherwise, the Court would be acting as a court of third or fourth instance, which would be to disregard the limits imposed on its action” (see, in the same sense, Winterwerp v. the Netherlands of 14 October 1979, § 46, and Bozano v. France of 18 December 1986, § 58).

A reading in good faith of paragraphs 396 et seq. of the present judgment should suffice to see that all my foregoing points are valid.

5. With regard to the finding of a violation of Article 13, I shall confine myself to the observation that this provision is not in any way at issue in the present case.

Firstly, after an offence had been committed there was an investigation, a prosecution and a trial, which resulted in the conviction of the guilty parties. Having regard to those facts, how can it be claimed that Article 13 was not complied with?

Secondly, no separate issue arises under Article 13 where there is a finding, as by the majority here, of a violation of Article 2 under its procedural head. On that point I need merely refer to my detailed dissenting opinion in the cases of Ergi v. Turkey of 28 July 1998 ( Reports of Judgments and Decisions 1998-IV), Akkoç v. Turkey of 10 October 2000 and Taş v. Turkey of 14 October 2000, and to four recent judgments against the United Kingdom ( Hugh Jordan v. the United Kingdom , no. 24746/94, 4 May 2001, §§ 164-65; Kelly and Others v. the United Kingdom , no. 28883/95, 4 May 2001, §§ 158-59; McKerr v. the United Kingdom , no. 30054/96, 4 May 2001, §§ 175-76; and Shanaghan v. the United Kingdom , no. 37715/97, 4 May 2001, §§ 139-40). Need I add that, with regard to the proceedings in issue in the four British cases, the Turkish system hardly differs from that of the United Kingdom, contrary to what is erroneously asserted in the above-mentioned judgments ( McKerr , §§ 171 et seq.; Hugh Jordan , §§ 160 et seq.; Shanaghan , §§ 136 et seq.; and Kelly , §§ 155 et seq.)?

6. I am therefore forced to conclude that there has not been any violation in the instant case and that, accordingly, it was not necessary to award the applicant either compensation or legal costs.

[1] 1. Susurluk was the scene of a road accident in November 1996 involving a car in which a member of parliament, a former deputy director of the Istanbul security services, a notorious far-right extremist, a drug trafficker wanted by Interpol and his girlfriend had been travelling. The latter three were killed. The fact that they had all been travelling in the same car had so shocked public opinion that it had been necessary to start more than sixteen judicial investigations at different levels and a parliamentary inquiry.

[2] 1. An infamous drug trafficker strongly suspected of supporting the PKK and one of the principal sources of finance for Özgür Gündem .

[3] 2. Mr Anter, a pro-Kurdish political figure, was one of the founding members of the People’s Labour Party (“the HEP”), director of the Kurdish Institute in Istanbul, a writer and leader writer for, inter alia , the weekly review Yeni Ülke and the daily newspaper Özgür Gündem . He was killed at Diyarbakır on 30 September 1992. Responsibility for the murder was claimed by an unknown clandestine group named “ Boz-Ok ”.

[4] 3. The appendix is missing from the report.

[5] 1. For example, harbouring a member of an armed organisation.