PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES

I am unable to agree with the majority ' s finding that there has been no violation of Article 14 of the Convention in this case. Having gone through the facts of the case I cannot find any reason or explanation for the total destruction of the applicant ' s property and the eviction of his family from their village as described in the judgment other than the fact that the applicant was of Kurdish origin. The nature and extent of the military operation which resulted in the situation complained of by the applicant and amounted to breaches of Articles 3, 8 and 13 of the Convention and Article 1 of Protocol No. 1 were intrinsically connected with the policy of the respondent Government in respect of the activities of the PKK, a Kurdish organisation. The Government submitted copies of military reports showing that an armed attack was carried out on Konaklı gendarme station at 1 a.m. on 2 April 1992 by members of the PKK. The Court found it established that, subsequent to the armed attack at the Konaklı gendarme station, gendarmes went to the applicant ' s hamlet on or about 21 April 1992 , and burned down the applicant ' s family home and its contents and subsequently the fruit orchards and oak trees.

The Government alleged that one member of the applicant ' s family living in Kaynak , the hamlet where the destruction of the applicant ' s property took place, had a hideout in the village in which weapons were found. According to the Government these weapons had been used in a number of killings, and the discovery of the hideout revealed the cooperation between the family and the terrorist organisation (the PKK). However the Government ' s allegation that this revelation made it difficult for the family to stay in the hamlet probably through fear of reprisals from the PKK for having surrendered the weapons was not accepted by the Court and in any case could not by any imagination explain why the applicant ' s property was destroyed by the security forces, as the Court found had been established.

In the circumstances, it is only reasonable to conclude that the reason for the destruction in question was that the applicant was a Kurd and that the destruction of his home was part of the general objective of the military operation in the village that resulted in the violations of the Convention for which the respondent Government has been found responsible. In this respect I must stress that I consider it highly relevant that this is not the first case against Turkey in which the Court has found similar violations against persons of Kurdish origin as a result of military operations by members of the security forces using the same modus operandi with objectives, reasons, methods and results that are strikingly similar to those in the present case

(destruction or burning of houses belonging to Kurds) [1] (c.f. Nachova and Others v. Bulgaria , nos. 43577/98 and 43579/98, § 173, ECHR 2004 ‑ ... ).

I have also taken into account the fact that no serious and meaningful investigation was carried out into the applicant ' s allegations of grave misconduct on the part of the security forces and that the Government failed to rebut the applicant ' s version of events. Neither the judicial nor the administrative authorities took any significant action to investigate the very serious allegations made by the applicant in his petition of 7 July 1992 .

As was rightly observed in the judgment of Nachova and Others v. Bulgaria (op. cit. § 169)

“ ... the Court considers that in cases where the authorities have not pursued lines of inquiry that were clearly warranted in their investigation into acts of violence by State agents and have disregarded evidence of possible discrimination, it may, when examining complaints under Article 14 of the Convention, draw negative inferences or shift the burden of proof to the respondent Government, as it has previously done in situations involving evidential difficulties (see Salman v. Turkey [GC], no. 21986/93, § 97, ECHR 2000 ‑ VII, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V and ÄŒonka v. Belgium, no. 51564/99, § 61, ECHR 2002 ‑ I).”

In the same judgment it was also stated:

“Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State ' s obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute (see, mutatis mutandis, Shanaghan v. the United Kingdom , no. 37715/97, § 90, ECHR 2001 ‑ III, setting out the same standard with regard to the general obligation to investigate). The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of a racially induced violence ... ( paragraph 159)”

With regard to the required standard of proof it was stated:

“The Court has held on many occasions that the standard of proof it applies is that of ' proof beyond reasonable doubt ' , but it has made it clear that that standard should not be interpreted as requiring such a high degree of probability as in criminal trials. It has ruled that proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. It has been the Court ' s practice to allow flexibility, taking into consideration the nature of the substantive right at stake and any evidentiary difficulties involved. It has resisted suggestions to establish rigid evidentiary rules and has adhered to the principle of free assessment of all evidence. The Court has also acknowledged that its task is to rule on State responsibility under international law and not on guilt under criminal law. In its approach to questions of evidence and proof, it will have regard to its task under Article 19 of the Convention to “ensure the observance of the engagements undertaken by the High Contracting Parties”, but without losing sight of the fact that it is a serious matter for a Contracting State to be found to be in breach of a fundamental right (see, among others, the following judgments: Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 64 ‑ 65, § 161; Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, p. 24, § 32; Tanlı v. Turkey, no. 26129/95, §§ 109 ‑ 11, ECHR 2001 ‑ III; AktaÅŸ v. Turkey, no. 24351/94, § 272, ECHR 2003 ‑ V (extracts)).( paragraph 166)”.

I take this opportunity to reiterate my own approach regarding the standard of proof required in respect of judicial proceedings for alleged violations of human rights such as those in the present case [2] . I believe that it is important to bear in mind that the standard of proof “beyond reasonable doubt” has its origin in the context of common law criminal procedure. There the objective is to punish an individual for a criminal offence, by using an adversarial procedure in which the liberty of the accused must be protected by applying rigid standards of proof. Taking into account their object and procedure as well as the position of the parties, i.e. the “accused” being always the State, proceedings to determine human rights violations differ substantially from criminal proceedings. The Inter-American Court of Human Rights has pointed out that:

“The international protection of human rights should not be confused with criminal justice. States do not appear before the Court as defendants in a criminal action. The objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of States responsible.” [3]

In view of the different objectives of the proceedings, it is submitted that when applying the “reasonable doubt” formula in the context of proceedings alleging violations of human rights against a State, care should be taken to disassociate such formula from the rigid concepts and considerations of criminal justice and procedure from which the formula originates. In the common law that formula of proof “beyond reasonable doubt” is also intertwined with the principle that the burden of proof is upon the prosecution and that the accused does not have to prove anything in support of his innocence: he may even remain silent and such silence cannot be interpreted as an acknowledgment of the allegations against him. In contrast, in proceeding to determine human rights violations, especially under the Convention, facts can be established on the basis of the evidence presented by both parties or obtained as a result of a proprio motu request by the competent judicial organs. These organs do not have the power to compel witnesses to appear before them, nor to compel the state against which the relevant allegations are directed to produce any evidence. Their task is to investigate the allegations and to establish the facts, admitting any evidence they consider helpful in order to ascertain the truth, free from any rules of evidence or procedure.

Consequently, there is a substantial difference between the proof of allegations beyond “reasonable doubt” against an individual accused in a criminal case and the establishment of facts beyond “reasonable doubt” in human rights proceedings. The methods, the kind of proof and the practical application of the formula “beyond reasonable doubt” differ. More specifically, that formula cannot relate only to the evidence produced by the applicant against the respondent State, but to the facts of the case as a whole, including “the conduct of the parties”.

It is interesting to note that in the common law, especially in England , the phrase “reasonable doubt” has given rise to confusion as a result of the many attempts of the courts to define or explain its meaning. Furthermore, other expressions have been employed as an alternative to that form of direction, for instance the jury should be “satisfied” of guilt, or “satisfied so that they can feel sure” or even “reasonably satisfied”. One leading criminal jurist has suggested that the phrase is virtually indefinable [4] . It has even been recommended that it is better that the phrase “reasonable doubt” should be avoided [5] .

In the light of the above, I find it established that there has been a violation of Article 14 of the Convention, in conjunction with Articles 3, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1.