PARTLY DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

There are three points on which I am unable to share the opinion expressed by the majority of my colleagues.

114 . Firstly, I consider that in undertaking any evaluation of the way in which the operation in issue was organised and controlled, the Court should have studiously resisted the temptations offered by the benefit of hindsight.

At the relevant time the authorities had to plan the operations and make decisions on the basis of incomplete information. Only the suspects knew at all precisely what they intended, and it had no doubt been part of their training to ensure that as little as possible of their intentions was revealed. It would be wrong to conclude in retrospect that a particular course of action would, as things later transpired, have been better than the one adopted at the time under the pressures of an ongoing anti-terrorist operation and that the latter course must therefore be regarded as culpably mistaken.

115 . Secondly, the facts which led the majority of the Court to find a violation of Article 2 in its substantive aspect have not been established beyond all reasonable doubt. Certain omissions that have been noted in the conduct of the operations in question are inherent in the nature of such cases and thus inevitable.

I therefore consider that there has not been a violation of Article 2 of the Convention in its substantive aspect.

116 . Thirdly, the present case is, if not identical, at least similar, to the case of McCann and Others v. the United Kingdom (judgment of 27 September 1995, Series A no. 324), in which the Court did not make an award in respect of any kind of damage, seeing that “the three terrorist suspects who were killed had been intending to plant a bomb in Gibraltar”.

In the present case the suspects who were killed were acknowledged, dedicated and hardened terrorists and were firmly set on continuing their criminal acts. As is clear from their criminal records and the weapons found in the flats where the operations in question were carried out, they were neither “angels” nor “saints”. In those circumstances, I consider that no award should have been made under this head.

In any event, the sums awarded are more than exorbitant.