SEPARATE OPINION OF JUDGE ZUPANČIČ

1. Below are the relevant provisions of the Turkish law that apply where the European Court of Human Rights has found that there has been a violation.

Code of Civil Procedure (Law no. 1086, dated 18.6.1927, amended by Law no . 4793, dated 23. 1.2003 ):

Article 445

“As regards the final decisions, retrial may be requested under the following circumstances:

T he determination by a final decision of the European Court of Human Rights that the judgment was in violation of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Article 447

[ ... ]

The time period for retrial, for the reason written in sub-paragraph 11 of the first paragraph of Article 445, is one year from the date of the finalisation of the decision of the European Court of Human Rights.”

2. Similar provisions are now the rule in most of the Contracting States.

3. The critical d i fference between the applicable formulas in other Contracting States and the above quoted provision is that the First Presidency of the Court of Appeals is not required to order a trial de novo .

4. Article 41 of the European Convention on Human Rights provides “ If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made , the Court shall, if necessary, afford just sati sfaction to the injured party.” [Emphasis added.] It follows logically that in cases where the internal law of the State concerned does provide for full reparation – in the case at hand this would be the re-opening of the procedure – just satisfaction will consist in the Court ' s requiring recourse to the already existing and applicable internal law.

5. By the logic of Scozzari and Giunta v. Italy ( [GC] , nos. 39221/98 and 41963/98, ECHR 2000 ‑ VIII ) and the subsequent case-law, which further developed that doctrine, and especially where domestic law does provide for the non-mandatory possibility of a re-trial, it would be logical and in the interests of justice to make the requirement of the domestic re-opening of the procedure mandatory in the operative part of the judgment of the European Court of Human Rights. Failing that, at least the so called Gençel

formula ought to have been added to the reasoning of the Court ( Gençel v. Turkey , no. 53431/99, 23 October 2003 ).

6. Instead, we say in paragraph 42 of the judgment: “ the Court accepts that the applicant has suffered damage of a non-pecuniary nature as a result of the State ' s failure to comply with its positive obligations relating to the right to respect for his private life. The Court considers that the non-pecuniary damage sustained by the applicant is not compensated for by the finding of a violation of the Convention. Making an assessment on an equitable basis, it awards the applicant EUR 5,000, plus any tax that may be chargeable on that amount.” While the absurdity of offering monetary compensation for reversible procedural errors as a remedy that is completely extraneous to the just resolution of the case, is not specific to this case, see for example my separate opinion in Lucà v. Italy ( [GC], no. 33354/96, ECHR 2001 ‑ II), we have now evolved our case-law to the point at which the language of Article 41 of the Convention should be interpreted as above.

7. Another point that should be made in this case is as follows. The constructive interpretation of the outdated provision of the Code of Civil Procedure (Law N o. 1086, dated 18.6. 1927)

Article 445

“As regards the final decisions, retrial may be requested under the following circumstances: 1. After the judgment is rendered, a certificate or a document is found, which could not have been acquir ed during the trial because of force majeur e or because of the acts of the party in favour of which the decision was given .

is clearly the business of the Constitutional Court . In countries where there exists the possibility of an individual application to the Constitutional Court the matter is resolved in internal law. It never arrives in Strasbourg . On the one hand, if Turkey were to introduce the possibility of an individual application to the Constitutional Court in its internal law, this would then be our requirement in terms of exhaustion of domestic remedies. On the other hand, I am certain that a re-trial would have been ordered and the subject matter would then have been resolved internally. Such an approach would have the additional benefit of permitting the Constitutional Court to address the abstract origin of the problem, i.e. the outdated Article 445 of the 1927 Code of Civil Procedure.

[1] 1. The former paragraph 41 reading “The Government expressed no opinion.” has been erased.