PARTLY DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

To my great regret, I am unable to share the conclusion reached by the majority regarding the application of Article 41 in this case. Allow me to explain.

1. The applicant company alleged that it had sustained substantial pecuniary damage as a result of being subjected to prosecution, the seizure of its possessions and other measures. In support of its claims, it has alleged only hypothetical, illusory and imaginary facts, without providing any evidence. In short, it was speculating and, furthermore, certain matters relied on bore no relation whatsoever to the truth. I shall refer to only one of the allegations, so that it can be seen in the light of a finding of the European Commission of Human Rights based on its own investigation in a previous case. Thus, according to the applicant company, prior to the actions of the authorities, the newspaper Özgür Gündem was selling 45,000 copies per day. That figure fell to 30,000 and the newspaper disappeared permanently as a result of those actions (see paragraph 77 of the judgment ). That account is shown to be untrue by the Commission. The Commission stated in its report of 23 October 1998 in the case of Kılıç v. Turkey (application no. 22492/93, § 176): “ Özgür Gündem was a daily newspaper ... with a national circulation of some thousand copies ... In or about April 1994, Özgür Gündem ceased publication and was succeeded by another newspaper, Özgür Ülke ...” The difference between the alleged figure and the Commission's figure is striking. In addition, Özgür Gündem disappeared only in theory, since it was replaced by Özgür Ülke . That clearly shows the fanciful and speculative nature of the claim for pecuniary damage in the instant case.

2. Under its settled case-law, the European Court of Human Rights will award compensation for pecuniary damage only if the claims have been duly established and there is an immediate and direct causal link between the facts and the alleged damage. That rule is illustrated in the following examples taken from judgments in cases against Turkey also concerning Article 10 of the Convention.

“81. With regard to pecuniary damage, the Delegate of the Commission suggested that the Court should consider the question of the application of Article 50 in the light of the hypothetical character of the amount claimed. He left the question of non-pecuniary damage to the Court's discretion. Lastly, with regard to the sum claimed for costs and expenses, he mentioned the problem raised by the lack of supporting documents.

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.” ( Incal v. Turkey judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1575)

“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.” ( Çıraklar v. Turkey judgment of 28 October 1998, Reports 1998-VII, p. 3074)

“66. The Delegate of the Commission submitted that the applicants' presentation – which was very general and hypothetical – was insufficient to allow their claims under Article 50 to be upheld.

67. The Court notes that the applicants have not furnished any evidence in support of their claims for substantial sums in respect of pecuniary damage and costs and expenses. Consequently, it cannot uphold those claims (see, mutatis mutandis , the Pressos Compania Naviera S.A. and Others v. Belgium judgment of 3 July 1997 ( Article 50 ), Reports 1997-IV, p. 1299, § 24). It notes, however, that the applicants received FRF 57,187 in legal aid paid by the Council of Europe.” (Socialist Party and Others v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 1261)

“57. The Government replied that there was no causal connection between the alleged violation of the Convention and the pecuniary damage complained of. In any event, Mr Arslan had not furnished evidence of the income he had referred to.

58. The Court finds that there is not sufficient evidence of a causal connection between the violation of Article 10 it has found and the loss of earnings alleged by the applicant. Moreover, no documentary evidence has been submitted in support of the applicant's claims in respect of pecuniary damage. The Court cannot therefore allow them.” ( Arslan v. Turkey [GC], no. 23462/94, 8 July 1999, unreported)

“66. The Government contended that Mr Karataş had not proved his loss of earnings.

67. The Delegate of the Commission expressed no view on this point.

68. The Court finds that there is insufficient proof of a causal link between the violation and the applicant's alleged loss of earnings. In particular, it has no reliable information on Mr Karataş's salary. Consequently, it cannot make an award under this head (see Rule 60 § 2 of the Rules of Court).” ( Karataş v. Turkey [GC], no. 23168/94, ECHR 1999-IV)

“53. The Delegate of the Commission considered that there was no reason for the Court to reach a different conclusion from that reached in the cases of the United Communist Party and the Socialist Party cited above.

54. The Court notes that the applicant party has not furnished any evidence in support of its claim. Consequently, it is unable to accept it (Rule 60 § 2 of the Rules of Court; see, mutatis mutandis , the Socialist Party and Others v. Turkey judgment cited above, p. 1261, § 67).” ( Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, ECHR 1999-VIII)

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

[2] 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.

[3] 2. One of the pseudonyms of a former member of the PKK turned informant who was known by the code name “Green” and had supplied information to several State authorities since 1973.

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

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

[9] 1-2. The phrase in italics was deleted by a judgment of the Constitutional Court on 31 March 1992 and ceased to be in force on 27 July 1993.

[10]

[11] 1. This provision concerns substitute penalties and measures which may be ordered in connection with offences attracting a prison sentence.

[12] 2. This provision concerns reprieves.

[13] 1. This word conveys a range of meanings, including “prostitute”, “tricky”, “deceitful”.

[14] . “ Dev -Sol ” (Revolutionary Left) is the name commonly used to refer to the extreme left-wing armed movement “ Türkiye Halk Kurtuluş Partisi / Cephesi-Devrimci Sol ”.