PARTLY DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

To my great regret, I am unable to agree with the majority on points 1, 3, 4 and 6 of the operative provisions of the Mahmut Kaya judgment for the following reasons.

1. The Court reached the conclusion that the respondent State had violated Article 2 by failing to take the necessary measures to protect the life of Hasan Kaya .

There is not a shadow of doubt in anyone's mind that south-east Turkey is a high-risk area for all its inhabitants. PKK and Hizbullah terrorists and members of the far left, encouraged and supported by foreign powers, seize every opportunity to perpetrate their crimes. Moreover, gangsters and rogues take advantage of the presence of these terrorist groups in the region. The authorities have taken – and continue to take – all necessary measures within their power to combat these threats to life (see paragraph 86 of the judgment ). The Court itself recognises that the positive obligation imposed on the State by the Convention is not absolute but merely one to use best endeavours.

Thus, surely, it is for people living in the region who feel threatened to exercise greater care than others and to take their own safety precautions, rather than wait for the authorities to protect them against those dangers.

Surely it was unwise and foolhardy of the deceased to leave with strangers for an unknown destination when, as the Commission found, he was aware of the risk he was running.

Unfortunately, no government is able to make security agents available to accompany persons who feel threatened or to provide them with personal protection in a high-risk area where perhaps hundreds or even thousands of people are in a like situation. Indeed, Hasan Kaya at no stage requested protection. The regional authorities and the deceased's family concealed the true circumstances of his disappearance from the investigating authorities, and may even have lied to them. In other words, they did not give any assistance whatsoever to the security agents (see paragraph 14 of the judgment ).

Consequently, I do not share the opinion that the respondent State failed, in breach of Article 2 of the Convention, in any duty it had to protect Hasan Kaya's life.

2. As regards the finding of a 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 of Judgments and Decisions 1998-IV). Thus, I agree with the Commission that once the conclusion has been reached that there has been a violation of Article 2 of the Convention on the grounds that there was no effective investigation into the death that has given rise to the complaint, no separate question arises under Article 13. The fact that there was no satisfactory and adequate investigation into the death which resulted in the applicant's complaints, both under Article 2 and Article 13, automatically means that there was no effective remedy before a national court. On that subject, I refer to my dissenting opinion in the case of Kaya v. Turkey ( judgment of 19 February 1998, Reports 1998-I) and the opinion expressed by the Commission with a large majority (see the opinions of the Commission annexed to the following judgments : Aytekin v. Turkey, 23 September 1998, Reports 1998-VII; Ergi cited above; and YaÅŸa v. Turkey, 2 September 1998, Reports 1998-VI).

3. The Court awarded the applicant 15,000 pounds sterling (GBP) “in respect of his brother ... by way of compensation in respect of non-pecuniary damage ... which sum is to be held by the applicant for his brother's heirs”.

The actio popularis is excluded under the Convention system, with all the consequences that logically follow. It is for that reason that the Court has up till now awarded compensation for non-pecuniary damage for individual violations only to very close relatives such as the surviving spouse or children of the deceased person or, exceptionally, when it has appeared equitable, the father or mother if an express claim has been made (see paragraph 138 of the judgment in the instant case and Tanrıkulu v. Turkey [GC], no. 23763/94, § 138, ECHR 1999-IV).

It is completely alien and contrary to the Convention system and devoid of any legal justification for an abstract, anonymous and undefined group (perhaps very distant heirs) that has suffered no non-pecuniary damage as a result of the violations found to be awarded compensation.

Hasan Kaya was single. He had no companion or children and therefore no heirs deserving compensation for non-pecuniary damage. Yet, even more surprisingly, the Court awarded the applicant's brother the sum of GBP 2,500 for non-pecuniary damage (see paragraph 139 of the judgment ). As one of the deceased's heirs, that brother will also receive part of the award of GBP 15,000. He will thus receive two lots of compensation for the same loss, a fact that goes to highlight the inequitable nature of the Court's decision in this case.

4. Before closing, I feel bound to express my views on what I consider to be an important point. In cases where the presumed offender is a State agent, he may only be prosecuted if the administrative body (the “administrative council”) has given prior authorisation. However, that body is, by law, made up of public servants and is neither independent nor impartial. The Court, whose view I agree with entirely, has consistently criticised the Turkish government for that state of affairs.

However, the Court's inadmissibility decision of 5 October 1999 in Grams v. Germany ((dec.), no. 33677/96, ECHR 1999-VII) is instructive on the point. The case concerned the death of a presumed member of the Red Army Faction. The Court noted that the Schwerin public prosecutor's office had decided to drop the prosecution on the ground that the police officers had fired in lawful self ‑ defence and Grams had committed suicide by shooting himself in the head. In arriving at that conclusion, the public prosecutor's office had relied on a 210-page report ( Abschlußvermerk ) in which the special unit responsible for the investigation of the case had set out its findings. What is interesting in this example – and it will be noted in passing that the application was not even communicated to the Government – is that the investigation was conducted not by a judicial body but by a special unit, that is to say a purely administrative body.

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

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

[3] 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.

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

[5] 2. Mr Anter, a pro-Kurdish political figure, was one of the founding members of the People’s Labour Party (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 in Diyarbakır on 30 September 1992. Responsibility for the murder was claimed by an unknown clandestine group named “ Boz-Ok ”.

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

[7] . The page following this last sentence is also missing from the report.