partly DISSENTING OPINION OF JUDGE Gölcüklü

(Translation)

1. To my great regret, I am unable to share the opinion of the majority of the Court, in particular, as to a violation of Article 2 on the ground that “... the Court is satisfied that Abdulvahap Timurtaş must be presumed dead [emphasis added] following an unacknowledged detention by the security forces” (see paragraph 86 of the judgment ). Thus, according to the judgment , the basis for the finding of a “violation” is a mere – unfounded – “presumption”. Nor do I agree with that statement by the Court, which, in order to justify applying Article 2, refers to other Turkish cases. The Court cannot assert that unproven allegations are true by referring to a precedent which, as a mere guide to interpretation when applying the Convention, is incapable of “creating” non-existent events or a presumption that they occurred.

2. That conclusion is quite irreconcilable with the principles previously laid down unanimously by the Commission and the Court in the identical case of Kurt v. Turkey ( judgment of 25 May 1998, Reports of Judgments and Decisions 1998-III). In my opinion, there has been a major departure from precedent.

3. In order to differentiate the Kurt case cited above, the majority – wrongly in my view – refers to certain features distinguishing the present case from the Kurt case and justifying a different conclusion being reached in this one. Allow me to explain.

4. “In the first place,” says the Court in the present judgment , “six and a half years have now elapsed since Abdulvahap Timurtaş was apprehended and detained – a period markedly longer than the four and a half years between the taking into detention of the applicant's son and the Court's judgment in the Kurt case. Furthermore,” confirms the Court, “whereas Üzeyir Kurt was last seen surrounded by soldiers in his village, it has been established in the present case that Abdulvahap Timurtaş was taken to a place of detention ... by authorities for whom the State is responsible. Finally,” says the majority, “there were few elements in the Kurt case identifying Üzeyir Kurt as a person under suspicion by the authorities, whereas the facts of the present case leave no doubt that Abdulvahap Timurtaş was wanted by the authorities for his alleged PKK activities ...” (see paragraph 85).

Those are artificial and superficial arguments, assertions unsupported by fact, a sort of trompe-l'Å“il . In cases of forced disappearance, what difference does it make whether the period has been six and a half years or four and a half years?

In the Kurt case, the Court, like the Commission, also made a finding of fact regarding “... the detention of the applicant's son by soldiers and village guards on 25 November 1993” ( judgment cited above, p. 1159, § 15, and pp. 1181-82, §106). Must I add that in the Kurt case, both the Commission and the Court held that the only Article applicable in the case was Article 5 of the Convention (which was not the same thing as saying that Üzeyir Kurt had in fact been arrested and detained by the security forces).

Lastly, the Commission's investigation clearly showed that Üzeyir Kurt and Abdulvahap Timurtaş had been accused of collaborating with PKK terrorists and were wanted in that connection. When the security forces arrived in the village and did not find Üzeyir Kurt among the villagers assembled in the square, they immediately asked where he was and arrested him in a house where he had been hiding (see the Kurt judgment , p. 1159, § 15, and p. 1162, § 28).

5. I reiterate that the present case is indistinguishable from the Kurt case (in which, as in this case, it was not established beyond all reasonable doubt that the applicant's son, Üzeyir Kurt, died in detention) and has nothing in common with Çakıcı (in which both the Commission and the Court found that the applicant's brother, Ahmet Çakıcı , had died in detention). Here is the conclusion of the Commission in the present case: “The Commission considers, therefore, that the application falls to be distinguished from [ Çakıcı ]. In the circumstances of the present case it finds it more appropriate to follow the approach adopted by the Commission and the Court in the case of Kurt v. Turkey” (see paragraphs 278 et seq. of the report of the Commission; see also Çakıcı v. Turkey [GC] no. 23657/94, ECHR 1999-IV, to the same effect).

6. Thus the backdrop to the present judgment is the Commission's report and the Court's judgment in the Kurt case, and the Commission's report in the present case. Both of those institutions unanimously concluded in these two cases that it was not Article 2 of the Convention that was applicable, but Article 5.

7. In view of their importance for a proper understanding of my dissenting opinion, I have decided to reproduce in extenso the relevant paragraphs of the Kurt judgment cited above and of the opinion expressed by the Commission in this case, which merely repeats my opinion and the Court's judgment in the Kurt case.

8. In its Kurt judgment , the Court said:

“105. The Commission found that in the absence of any evidence as to the fate of Üzeyir Kurt subsequent to his detention in the village, it would be inappropriate to draw the conclusion that he had been a victim of a violation of Article 2. It disagreed with the applicant's argument that it could be inferred that her son had been killed either from the life-threatening context she described or from an alleged administrative practice of disappearances in the respondent State. In the Commission's opinion, the applicant's allegation as to the apparent forced disappearance of her son and the alleged failure of the authorities to take reasonable steps to safeguard him

against the risks to his life attendant on his disappearance fell to be considered under Article 5 of the Convention.

106. The Court recalls at the outset that it has accepted the Commission's findings of fact in respect of the detention of the applicant's son by soldiers and village guards on 25 November 1993. Almost four and a half years have passed without information as to his subsequent whereabouts or fate. In such circumstances the applicant's fears that her son may have died in unacknowledged custody at the hands of his captors cannot be said to be without foundation. She has contended that there are compelling grounds for drawing the conclusion that he has in fact been killed.

107. However, like the Commission, the Court must carefully scrutinise whether there does in fact exist concrete evidence which would lead it to conclude that her son was, beyond reasonable doubt, killed by the authorities either while in detention in the village or at some subsequent stage. It also notes in this respect that in those cases where it has found that a Contracting State had a positive obligation under Article 2 to conduct an effective investigation into the circumstances surrounding an alleged unlawful killing by the agents of that State, there existed concrete evidence of a fatal shooting which could bring that obligation into play (see the above-mentioned McCann and Others judgment ; and the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I).

108. It is to be observed in this regard that the applicant's case rests entirely on presumptions deduced from the circumstances of her son's initial detention bolstered by more general analyses of an alleged officially tolerated practice of disappearances and associated ill-treatment and extra-judicial killing of detainees in the respondent State. The Court for its part considers that these arguments are not in themselves sufficient to compensate for the absence of more persuasive indications that her son did in fact meet his death in custody. As to the applicant's argument that there exists a practice of violation of, inter alia , Article 2, the Court considers that the evidence which she has adduced does not substantiate that claim.

109. Having regard to the above considerations, the Court is of the opinion that the applicant's assertions that the respondent State failed in its obligation to protect her son's life in the circumstances described fall to be assessed from the standpoint of Article 5 of the Convention.

9. Here is the opinion of the Commission in the present case:

The Commission questioned

“... whether that strong probability [that Abdulvahap died whilst in unacknowledged detention] is sufficient to trigger the applicability of Article 2 in the absence of concrete evidence that Abdulvahap has in fact lost his life or suffered known injury or illness.”

It went on:

“In the case of Çakıcı v. Turkey, the Commission did reach the conclusion that Article 2 applied, finding that the 'very strong probability' that the applicant's brother Ahmet Çakıcı was dead arose in the context of an unacknowledged detention and findings of ill-treatment (op. cit., § 253).

279. However, even though the Commission did not find that Ahmet Çakıcı had been killed as alleged by the Government, he was regarded officially as dead (op. cit., §§ 239 and 253). In the present case, there is no official claim that Abdulvahap Timurtaş is presumed to be no longer alive. In addition, the Commission accepted evidence from a co-detainee of Ahmet Çakıcı's to the effect that he had seen Ahmet Çakıcı in the Diyarbakır provincial gendarmerie headquarters with injuries, that Ahmet Çakıcı had told him that he had been tortured and that he himself had also been subjected to torture (op. cit., § 252). The Commission recalls that in the present case it was unable to reach a finding that Abdulvahap Timurtaş was tortured or ill-treated (§ 251).

280. The Commission considers, therefore, that the application falls to be distinguished from the Çakıcı case. In the circumstances of the present case it finds it more appropriate to follow the approach adopted by the Commission and the Court in the case of Kurt v. Turkey (op. cit.).

281. The Court held in that case [Kurt] that it was not necessary to decide on the applicant's complaint under Article 2 since there was no concrete evidence capable of proving beyond reasonable doubt that her son had been killed by the authorities either while in detention or at some subsequent stage. The Court further held that

'... in those cases where it has found that a Contracting State had a positive obligation under Article 2 to conduct an effective investigation into the circumstances surrounding an alleged unlawful killing by the agents of that State, there existed concrete evidence of a fatal shooting which could bring that obligation into play' (op. cit., § 107).

282. The Commission notes that the present case [ Timurtaş ] similarly  discloses no such concrete evidence of the killing of Abdulvahap Timurtaş . It observes in addition that the applicant has submitted the same 'more general analyses of an alleged officially tolerated practice of disappearances and associated ill-treatment and extra-judicial killing of detainees in the respondent State' as those on which Koçeri Kurt relied and which were deemed by the Court to be not 'sufficient to compensate for the absence of more persuasive indications that her son did in fact meet his death in custody' (op. cit., § 108).

283. Consequently, the Commission considers that the applicant's allegations of the State's failure to safeguard his son from disappearance fall to be examined in the context of Article 5 of the Convention.”

10. Must I add, lastly, that in Ertak v. Turkey the same Chamber of the Court as sat in this case acknowledged that the Kurt case was distinguishable from Ertak in that the latter concerned a violation of Article 2 as a result of the death of the applicant's son caused by State agents (see Ertak v. Turkey , no. 20764/92, § 131, ECHR 2000-V). That amounted to saying that the Kurt case and the present one were similar and could thus be distinguished from Ertak .

11. In conclusion, as it has not been established beyond all reasonable doubt that Abdulvahap TimurtaÅŸ died in detention, Article 2 of the Convention is not applicable in the instant case.

12. In the light of the aforementioned considerations it is unnecessary for me to respond to the issues concerning the merits of the case.

13. As regards the applicant's position, unlike the majority of the Court, I find it difficult to accept that he genuinely suffered distress when, as a father, he showed no concern for his son's welfare after he left home and therefore disappeared from the scene two years before his alleged forced disappearance to join, or so it would seem, the PKK in Syria (see paragraphs 23 and 25 of the judgment ).

14. As regards the violation of Article 13 of the Convention , I refer to my dissenting opinion in the case of Ergi v. Turkey ( judgment of 28 July 1998, Reports 1998-IV, p. 1788):

“The Court having reached the conclusion that there has been a breach of Article 2 of the Convention on the ground that no effective inquiry was conducted into the death complained of, I consider, like the Commission, that no separate issue arises under Article 13, because the fact that there was no satisfactory and effective inquiry into the death forms the basis of the applicant's complaints under both Article 2 and Article 13. in that connection, I refer to my dissenting opinion in the Kaya v. Turkey case and the opinion expressed by a large majority of the Commission on the question (see Aytekin v. Turkey, application no. 22880/93, 18 September 1997; Ergi v. Turkey, application no. 23818/94, 20 May 1997; Yaşa v. Turkey, application no. 22495/93, 8 April 1997).”

15. As regards the application of Article 41 , I cannot accept that the legal costs should be paid into the applicant's “bank account in the United Kingdom”.

This is one of the points arising under the general issue of reimbursement of “costs and expenses”. So that my views on this subject may be properly understood, I must refer to previous events and developments on this subject. The use of former Article 50 (now Article 41) for legal costs (including counsel's fees) was the subject of a full debate by the former Court because certain lawyers (always the same ones) acting for the applicants repeatedly insisted on direct payment of the legal costs into a foreign bank account and in foreign currency. The Court consistently rejected such requests other than in one or two cases in which it allowed payment in a foreign currency, provided it was made in the respondent State. Following the deliberations, the Court decided that legal costs should be paid:

– to the applicant,

– in the respondent State, and

– in the currency of the respondent State (if, owing to the high level of inflation in the country, the amount is expressed in a foreign currency it is converted into local currency on the date of payment).

In line with that decision, all other requests were categorically rejected. Thereupon, lawyers acting for applicants began to request that legal costs be paid into the applicants' overseas bank accounts in foreign currency, despite the fact that the applicants were nationals of the respondent State and lived there. Those requests have also been consistently rejected by the Court. Despite many similar requests (once again by the same lawyers), to date not a single decision has been given in their favour.

16. Is it not astonishing to find that virtually all the applicants living in small villages or isolated hamlets in remote parts of south-east Anatolia – people of modest means – have bank accounts in a town of another European State?

17. The fact that certain lawyers have problems with their clients is no concern of the respondent State. Contracts between lawyers and their clients are private-law agreements and concern only them; the respondent State should not be affected by any dispute between them.

18. I must add that, under the system established by the Convention, the Court has no jurisdiction to give Contracting States orders about how its judgments should be executed.

I am of the opinion that all payments under Article 41 should be made, as in the past, to the applicant in the local currency and in that country.

[1] . Note by the Registry . The report is obtainable from the Registry.

[2] . Persons who cooperate with the authorities after confessing to having been involved with the PKK.

[3] . Velásquez Rodríguez case, judgment of 29 July 1988, Series C no. 4, § 157; Godínez Cruz case, judgment of 20 January 1989, Series C no. 5, § 165; Blake case, judgment of 24 January 1998, § 66; Fairén Garbi and Solís Corrales case, judgment of 15 March 1989, Series C no. 6, § 150.