CONCURRING OPINION OF JUDGE BO Å NJAK

1. In the present case, I agree with the judgment as regards all the points of its operative part. Furthermore, I can align my views with most of its reasoning. Nevertheless, I submit this concurring opinion in order to highlight two facts: (a) in my view, the Court should have adopted a different approach in its examination of the interference with the applicant ’ s right under Article 8 of the Convention; and (b) I disagree with the reasons for which the applicant ’ s claim for pecuniary damages under Article 41 of the Convention was dismissed.

A. Examination of the interference with the applicant ’ s right to respect for private life (Article 8 of the Convention)

2. I agree with the conclusion that Article 8 of the Convention is applicable in the circumstances of the present case and that there has been an interference with the applicant ’ s right to respect for private life. Equally, I can subscribe to the reasons put forward in the judgment which lead to those conclusions. However, I believe that this interference should not have been considered from the angle of the State ’ s negative obligations. Consequently, instead of seeking to ascertain whether the interference in question fulfilled the requirements of Article 8 § 2 of the Convention, that is to say, whether it was “in accordance with the law”, pursued a legitimate aim under that provision and was “necessary in a democratic society”, the Chamber should rather have considered whether the State ’ s positive obligations had been met in the present case.

3. In its examination of the applicant ’ s complaint under Article 6 § 1 of the Convention, the present judgment takes the view that the relationship between the applicant and his employer was an employment relationship subject to the rules of labour law governing relations between private individuals, and giving rise to civil rights and obligations for both parties (see paragraphs 94 and 95). This position remains unaffected by the fact that the applicant ’ s employer was a public-law entity.

4. As a matter of coherence, I believe that the relationship between the applicant and his employer may not be considered differently when it comes to examining the applicant ’ s complaint under Article 8 of the Convention. There too, the applicant ’ s dismissal should be considered as a termination of a relationship between private individuals and not as State interference. This approach should not be altered by the fact that the applicant ’ s dismissal was mainly triggered by the provisions of section 4 (1) (g) of the Legislative Decree No. 667, an act adopted by the State. The applicant was not dismissed ex lege , as the provisions of that section had no self-executing effect. Instead, it was for the employer to assess whether a particular employee could be considered as belonging, affiliated or linked to terrorist organisations or structures, formations or groups, etc. prejudicial to the national security of the State. In this context, it is significant that the applicant himself does not contest the compatibility of the above-mentioned provisions of Legislative Decree No. 667 with the Convention. Rather, he complains that whereas his dismissal had been based on the alleged existence of links between himself and a terrorist organisation, he had never been notified of the facts and evidence underpinning the dismissal and had at no stage had an opportunity to challenge that omission (see paragraph 65 and 109 of the judgment).

5. Since the impugned interference came from the applicant ’ s employer in the context of a labour relationship characterised as being private, it should accordingly have been analysed from the angle of the State ’ s positive obligations. In this regard, the Court should have primarily examined the way in which the domestic courts had balanced the applicant ’ s interests against those of his employer. In doing so, the Court could have taken into account the circumstances outlined in paragraphs 214 – 224 of the judgment, and verified whether, and if so to what extent, those circumstances had been addressed by the domestic courts in their adjudication. As transpires from the examination of the applicant ’ s complaint under Article 6 § 1 of the Convention, the domestic courts apparently failed in their positive obligation to properly balance the interests of both parties involved. That is why, regardless of the methodology used, I consider that the conclusion on the applicant ’ s complaint under Article 8 of the Convention is correct and that, consequently, there has been a violation of this provision in the present case.

B. Dismissal of the applicant ’ s claim in respect of pecuniary damage (Article 41 of the Convention)

6. Under the head of pecuniary damage, the applicant claimed approximately 50,914 euros in Turkish lire, which in his view corresponded to his gross monthly salary multiplied by thirty-nine months, the period during which he said that he had been unemployed. The Chamber dismissed this claim because it discerned no causal link between the violation found and the pecuniary damage alleged. I would argue that the decision to dismiss the claim for the pecuniary damage was correct, but that the arguments for so doing were wrong.

7. According to Article 41 of the Convention, “the Court shall, if necessary, afford just satisfaction to the injured party” when, inter alia , “the internal law of the High Contracting Party concerned allows only partial reparation to be made.” The Court has held on numerous occasions (including in the present case) that the reopening of the proceedings should be considered as an appropriate (and in some cases as the most appropriate) form of redress (see, among many other authorities, Navalnyy and Ofitserov v. Russia , nos. 46632/13 and 28671/14, 23 February 2016). In the present case, the applicant has the possibility of requesting a reopening of proceedings before the competent domestic authorities on the basis of this judgment. Consequently, the decision to dismiss the applicant ’ s claim for pecuniary damage was correct.

8. However, had this opportunity not existed, the Court would have had to award an amount in just satisfaction under this head. While it is true that the Court cannot speculate as to what the outcome of the proceedings complained of would have been had the violations of Article 6 paragraph 1 and Article 8 of the Convention not occurred, this should not lead it to conclude that no pecuniary damages should be awarded. I explained in my separate opinion in the case of Ali Riza and Others v. Turkey (nos. 30226/10 and 4 others) how the doctrine of the loss of real opportunities had been reflected in a number of judgments rendered by the Court, notably in Produkcija Plus storitveno podjetje d.o.o. v. Slovenia , no. 47072/15, paragraphs 66 and 67, 23. October 2018, Pelisser and Sassi v. France (GC) , no. 25444/94, paragraph 80, ECHR 1999-II, Destrehem v. France, no. 56651/00 , paragraph 52, 18 May 2004, and Miessen v. Belgium , no. 31517/12, paragraph 78, 18 October 2016. In all these cases the Court held that it could not speculate on the outcome of the proceedings, yet it did not find it unreasonable to regard the applicants as having suffered a loss of real opportunities and awarded them a sum in respect of pecuniary damage.

9. In contrast, in their dismissal of the applicant ’ s claim under the head of pecuniary damage, the majority refer to the lack of a causal link. However, it is very possible that the applicant ’ s dismissal by his employer was unjustified, which in turn caused a loss of earnings for the applicant. Therefore, I consider that the majority ’ s position is simply wrong and not in conformity with the well-established legal doctrine that is increasingly reflected in the Court ’ s case-law. May I add that the majority ’ s reference to the Court ’ s judgment in the case of Barbulescu v. Romania (GC) , no. 61496/08, paragraph 145, 5 September 2017, is not relevant in the present case. While the Barbulescu case solely concerned a violation of Article 8 of the Convention, in the present case the Court has, rightly, also found a violation of Article 6 § 1 of the Convention. It is precisely the latter violation that should trigger the application of the doctrine of the loss of real opportunities. I hope that these considerations will be duly reflected in any future case, in particular where the domestic law of the respondent State will not allow for a reopening of proceedings on the basis of a judgment of this Court.