PARTLY DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

Much to my regret, I cannot subscribe to the majority’s conclusions in respect of points 2, 6 and 8a of the operative provisions, for the following reasons:

1. In the instant case there is only one material fact which must be examined and judged in the light of the Convention, as the Court rightly found in paragraph 147 of the present judgment. The Court states that “... the Government have not accounted for the death of Mahmut Tanlı during his detention at the Uluyol police station”, and deduces from this that “their responsibility for his death is engaged”; it concludes that there has been a violation of Article 2 in its substantive aspect (point 2 of the operative provisions).

2. The reasoning which culminated in that conclusion can be summarised as follows: the Government’s submission that Mahmut Tanlı died of a heart attack failed to convince the Court, for want of an adequate and effective investigation into the cause of his death.

3. In my opinion, the conclusions drawn by the Court from that single “ material fact ”, namely the findings of a violation of Article 2 in its substantive aspect (paragraph 147) and of Article 13 (procedural aspect) (paragraph 174) are merely different facets of one and the same “object”, corresponding in criminal law to the concept of “ concours idéal d’infractions ” (a single act fulfilling the conditions required to constitute various offences).

4. From that negative fact (the lack of thorough investigations), the Court draws a positive conclusion, as though the lack of an effective investigation had killed the individual in question, which defies all logic. There is no causal link between the “cause” and the “effect”.

5. What is more, the Court did not find a violation of Article 3 (point 4 of the operative provisions), for want of convincing evidence! Its observations on the subject are as follows:

“The Court observes that the Government have not provided a plausible explanation for the death of Mahmut Tanlı in custody after he had entered custody in apparent good health (see paragraph 146 above). Unlike the case of Salman v. Turkey (cited above, at paragraph 115) however, there are no records of marks or injuries on the body which are consistent with the application of torture techniques. While the applicant and other witnesses referred to seeing bruising on the body, there is no medical substantiation that this was attributable to traumatic injury rather than post-mortem changes in the body. The forensic expert instructed by the applicant stated himself that he could draw no conclusions from the photographs of the body taken prior to the burial. There is therefore no evidence, apart from the unexplained cause of death, to support a finding that acts of torture were carried out.” (paragraph 158)

It adds:

“In these circumstances, ..., the Court does not find it appropriate to draw the inferences proposed by the applicant as to whether torture or ill-treatment occurred. To the extent that it is alleged that the failings in the post mortem examination prevented any concrete evidence of ill-treatment coming to light and thereby the identification and punishment of those responsible, the Court considers that the complaint falls to be considered in this case under Article 13 of the Convention (see İlhan v. Turkey , [GC], no. 22277/93, ECHR 2000-VII, §§ 89-93). As regards the applicant’s submissions as to the effect which events had on himself, the Court has no doubt of the profound suffering caused by the death of his son. It finds no basis however for finding a violation of Article 3 in this context, the Court’s case-law relied on by the applicant referring to the specific phenomenon of disappearances.” (paragraph 159)

Is it not contradictory to find, on the one hand, that it has not been established that Mahmut Tanlı was ill-treated and died as a result of ill-treatment and to assert, on the other hand, that the Government are responsible for the death and that there has thus been a violation of Article 2 in its substantive aspect? Moreover, the majority acknowledge implicitly, in paragraph 159 of the present judgment (ibid.), that the only issue raised by this case under the Convention relates to the procedural aspect of Article 2 and explains that the issue falls to be considered under Article 13.

6. Consequently, no separate issue arises in this case under the substantive aspect of Article 2.

I therefore consider that the lack of an effective investigation did not amount to a violation of Article 2 in its substantive aspect – even if there has been a violation of the procedural aspect of that provision.

7. With regard to a violation of Article 13, I consider that where the Court finds a violation of Article 2 in its procedural aspect, as the majority did in the instant case, no separate issue arises under Article 13, since the finding of a violation of Article 2 takes account of the fact that there has been neither an effective inquiry nor a satisfactory procedure after the incident.

For more details on that subject, I refer to my dissenting opinion in the Ergi v. Turkey judgment of 28 July 1998 ( Reports of Judgments and Decisions 1998-IV), the Akkoç v. Turkey judgment of 10 October 2000, and the Taş v. Turkey judgment of 14 October 2000.

8. As regards an award of compensation to the applicant for pecuniary damage, there is no evidence to enable the Court to assess the type of damage sustained, and the Court’s calculation on the basis of actuarial tables is purely speculative.

Since, moreover, I consider that only the procedural aspect of Article 2 has been infringed, I can only state that I am opposed to paying the heirs of the applicant’s son compensation for pecuniary damage.

[1] 1. dates of service 27 January 1992 to 27 June 1993

[2] Rectified on 28 August 2001. The former text reads:

“187.  The applicant claimed the sum of GBP 9,760 for legal fees and expenses, such sum to be paid into his representatives’ bank account in the United Kingdom. This sum included GBP 1,560 for translation expenses and GBP 375 for administrative costs and professional fees for 42 hours’ work at a rate of GBP 100.”

[3]

Rectified on 28 August 2001. The former text reads:

“189.  The Court notes that the applicant’s representative before the Court is Mr P. Leach, a solicitor working for the KHRP.  Neither the rates and hours claimed nor the administrative and translation costs appear unreasonable and the sums claimed may be regarded as actually and necessarily incurred. Having regard to the details of the claims submitted by the applicant, it awards the applicant the sum of GBP 9,760 plus any value-added tax that may be chargeable, such sum to be paid into the sterling bank account in the United Kingdom as set out in the applicant’s just satisfaction claim.”

[4] Rectified on 28 August 2001.  The former text reads:

“9. Holds unanimously that the respondent State is to pay the applicant for legal fees and expenses, within the above-mentioned three months and into the bank account identified by him in the United Kingdom, 9,760 (nine thousand seven hundred and sixty) pounds sterling plus any value-added tax that may be chargeable. ”