PARTLY DISSENTING OPINION OF JUDGE BONELLO

In this case the Court has found a multiple violation of the fundamental right to life, in that the Turkish authorities are to be held responsible both for the measures that led to the death of the applicant’s son and for failing to conduct any serious investigation into that killing by the security forces.

The Court awarded the dead man’s mother some compensation for non ‑ pecuniary damage, but refused to consider the claim for pecuniary damage in the following terms: “As regards pecuniary damage, the file contains no information on the applicant’s son’s income from his work as a night-watchman, the amount of financial assistance he gave the applicant, the composition of her family or any other relevant circumstances. That being so, the Court cannot allow the compensation claim submitted under this head (Rule 60 § 2).”

I am profoundly distressed by such reasoning. This was a particularly appalling case of State homicide. At best, a callous lesson in reckless killing, followed by an impertinent cover-up that masqueraded as an investigation. The majority reacted to this outrage by finding refuge in the arms of what, to me, appear as infelicitous legalisms. Often there is nothing like the by-products of law to pervert the course of justice.

The applicant’s son was 30 years old when he was killed, and worked regularly as a night-watchman at a mine. According to a statement which the Government did not contest, “his family lived on the income he earned... No indemnity was paid to the applicant (his mother) out of the Social Security Fund (after his death) ...” [5] . The mother of the dead victim claimed 500,000 French francs for pecuniary damage in the present proceedings. She received zero French francs.

It is unchallenged that the applicant failed to provide “itemised particulars of all claims made, together with the relevant supporting documents or vouchers” as required by Rule 60 § 2 of the Rules of Court. But I do not believe that this should, in the circumstances, have led to a total rejection of the applicant’s claim.

Firstly, the rule in question lays down that, in default of proper documentation in support of the claim, the Court “may reject the claim in whole or in part”. This makes it clear that the Court enjoys an absolute discretion whether to allow the claim or not. In this particularly shocking case the Court of Human Rights did exercise that discretion. It exercised it in favour of the violator of human rights, and against the victim of that violation.

Secondly, the same rule empowers the Court, at any stage of the proceedings, to “invite any party to submit comments on the claim for just satisfaction” [6] . I believe that, having noticed a deficiency in the evidence relating to pecuniary damage, the Court could, and ought to, have invited the applicant to submit details of her claim.

It would certainly not have been the first time that the Court left the determination of “just satisfaction” to a later stage, after judgment on the merits. Many, many times in its history, when the Court considered that the file contained insufficient data on the damage suffered by the victim, it either made a finding that “the question of the application of Article 50 [now Article 41] is not ready for decision” or proceeded to assess the damages “on an equitable basis”. The Court could have followed these numerous precedents, but failed to do so.

In fact, I believe that the majority were clearly in a position to assess, on an equitable basis, the compensation due to the applicant in respect of pecuniary damage. Courts make findings derived from two inputs: evidence and presumptions. In this case, in the absence of evidence, the Court could, and ought to, have presumed that the dead man was earning at least the legal minimum wage current in south-east Turkey.

That was a safe and reasonable presumption which stared the majority in the face, one that shifted onto the Government the burden of proving otherwise. Contrary to what the judgment says, the record shows that the dead man’s family “lived on the income he earned”. The practice of assessing damages “on an equitable basis”, so often resorted to by the Court, would surely have suffered no lethal harm had the Court relied on the legal minimum wage the applicant’s son must necessarily have been earning before his tragic death as the basis for its calculations.

As recently as last year, in a case in which the applicants had failed to produce evidence on the pecuniary damage alleged, the Court dealt with the matter in a manner diametrically opposed to the way it employed in the present case: it assessed the amount to be awarded for pecuniary damage of its own motion “on principles of equity”. The Court said:

“… [S]ince the applicants have not substantiated their claim as to the quantity and value of their lost property with any documentary or other evidence ... the Court’s assessment of the amounts to be awarded must, by necessity, be speculative and based on principles of equity.” [7]

The Court awarded the applicants approximately 40,000 pounds sterling.

I fail to see why the Court should now suddenly turn its case-law inside out, or why the “principles of equity” should be enlisted when they favour some and be scrapped when they favour others.

After all, the Court has repeatedly, in the absence of data to substantiate an applicant’s claim for pecuniary damage, resorted to its own quantification of pecuniary damage on an equitable basis. In a recent case, an architect lamented that the length of administrative proceedings had damaged his professional reputation, and that this had resulted in a loss of clients. Like Mrs Oğur, he too claimed for unevidenced pecuniary damage. Like Mrs Oğur, he too failed to substantiate his claim. But unlike Mrs Oğur, he was awarded compensation for pecuniary damage on “an equitable basis” [8] . I will try hard not to conclude that, in the eyes of the majority, loss of life is less worthy of empathy than loss of clients.

In this case, a State which had solemnly undertaken to cherish the right to life, has wantonly plucked and tossed away the being of a young man, paying the price of a small car – almost an entertainment tax on homicide. In the Strasbourg market it seems that life comes cheap, and killing is a tremendous bargain.

Partly dissenting opinion of JUDGE GÖLCÜKLÜ

( Translation )

I agree with and confine myself to the findings and reasoning of the majority of the Court as to the inadequacy of the investigations carried out at national level into the death of the applicant’s son.

To my great regret, however, I cannot share the opinion of the majority as to the particular circumstances of the death of the applicant’s son, Musa Oğur, or agree with the conclusions they reach on the basis of the facts as established and assessed by the Commission. I consider that it was open to the Court, even if it adopted the Commission’s findings as to the facts, to interpret these differently and in that way to reach a different conclusion from that of the Commission. I must point out at the outset that the Commission itself accepted that “… having regard to the above findings (see in particular paragraphs 117 and 134), … the circumstances surrounding the death of the applicant’s son are far from clear” (Commission’s report, paragraph 146). Given such a statement, how is it possible to reach the conclusion that “the use of force against Musa Oğur was neither proportionate nor, accordingly, absolutely necessary in defence of any person from unlawful violence or to arrest the victim” (paragraph 84 of the judgment)? In my opinion, there was no “use of force” against Musa Oğur; it was quite legitimate and absolutely necessary for the security forces to organise an operation against the PKK terrorists in a region where the PKK’s growing, reckless terrorism has cost the lives of tens of thousands of innocent human beings. The facts and circumstances surrounding Musa Oğur’s death must therefore be assessed against the general background of events and the particular situation in south-east Turkey.

In its judgment in the case of McCann and Others v. the United Kingdom, the Court held:

“… the use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention may be justified under this provision where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others.

It follows that, having regard to the dilemma confronting the authorities in the circumstances of the case, the actions of the soldiers do not, in themselves, give rise to a violation of this provision.” (judgment of 27 September 1995, Series A no. 324, pp. 58-59, § 200)

Mutatis mutandis , those considerations are as valid and as relevant in the instant case. Even if the facts disputed by the parties are left out of account, it is certain that the bad atmospheric and geographical conditions – hilly,

sloping ground, darkness at daybreak, thick fog, snowstorm, etc. – further complicated the operation, which was already a high-risk operation. Allowance must also be made for the fact that the Cudi mountains are one of the areas most commonly frequented by members of the PKK (see paragraphs 33, 35, 75, 80, 82 and 85 of the judgment). In sum, the Court did not take sufficient account of the particular circumstances in which the alleged events occurred or of the findings made in the national investigation, which were in no way contradicted by the Commission’s investigation.

In any event, the Commission’s investigation could not yield the expected results, since none of the eyewitnesses summoned by the applicant party appeared before the Commission or, therefore, was examined. The applicant was wholly absent throughout the proceedings both before the Commission and before the national authorities (Commission’s report, paragraph 87).

A final point which is also of importance in the case: the total absence of any initiative by the applicant, who, although represented from the outset by a lawyer, did not avail herself of any domestic remedies, preferring to remain inactive and to wait. On this point I should like to recall to mind the Aytekin v. Turkey judgment of 23 September 1998, in which the Court penalised a party who had failed to exhaust all the existing domestic remedies, despite taking part in the proceedings. If, in the Aytekin case, the Court was able to find that domestic remedies had not been exhausted it should a fortiori in the OÄŸur case have been much more demanding and categorical, since it was not found that the applicant party had made any attempt to exhaust those remedies.

I therefore consider that, in the light of these facts, it is not possible to maintain that the use of force within the meaning of Article 2 of the Convention was not absolutely necessary and proportionate to the aim pursued and that there was therefore a violation.

As to the application of Article 41 of the Convention, the Court assessed non-pecuniary damage at FRF 100,000. That seems to me to be difficult to justify because when, in similar cases, the (old) Court found a violation of a violation of Article 2 of the Convention, the compensation awarded under the head of non-pecuniary damage amounted to about FRF 50,000 to 60,000, which was an equitable sum in view of the cost of living in the country and the purchasing power of the Turkish lira. The Court, for instance, awarded GBP 6,000 in the Yaşa v. Turkey case (judgment of 2 September 1998), FRF 50,000 in the Güleç v. Turkey case (judgment of 27 July 1998) and GBP 6,000 in the Ergi v. Turkey case (judgment of 28 July 1998).

[1] Notes by the Registry

-2.  Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[3] 3. Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis.

[2] . Note by the Registry . Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States not bound by that Protocol.

[3] 1.  The names of the infantry squads in question are given in full in the report.

[4] . Note by the Registry . For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry.

[5] 1.  Applicant’s memorial of 23 March 1998.

[6] .  Rule 60 § 3.

[7] .  Selçuk and Asker v. Turkey judgment of 24 April 1998, Reports of Judgments and Decisions 1998-II, p. 915, § 106.

[8] .  Doustaly v. France judgment of 23 April 1998, Reports 1998-II . There are various other recent cases on record in which the Court, in the absence of a quantified claim, awarded pecuniary damages “on an equitable basis”: see Allenet de Ribemont v. France, 10 February 1995; Hentrich v. France ( Article 50 ), 3 July 1995; Gaygusuz v. Austria, 16 September 1996; Canea Catholic Church v. Greece, 16 December 1997; Estima Jorge v. Portugal, 21 April 1998; and Vasilescu v. Romania , 22 May 1998.