PARTLY DISSENTING OPINION OF JUDGE MULARONI

I concur with my colleagues on all but one of the votes. I do not subscribe to their conclusion that there has been no violation of Article 14 of the Convention.

The applicant maintained that he was subjected to discrimination in breach of Article 14 because of his Kurdish origin. He argued that the destruction of his family home and possessions was the result of an official policy, which constituted discrimination because of his status as a member of a national minority. The majority considered that, in the light of the evidence submitted to it, there was an insufficient basis in fact for grounding this allegation and concluded that there had been no violation of Article 14.

For many years, the Court has been confronted with a great number of similar applications against Turkey in which the applicants mainly complain of violations of Articles 2, 3, 8, 14 and 1 of Protocol No. 1 and allege, in addition, that they have been discriminated against because they are members of a national minority.

All such applications were, with no exception, introduced by Turkish citizens of Kurdish origin. In most of these applications the Court found violations of Articles 2, 3, 8 and 1 of Protocol No. 1. However, it has never found a violation of Article 14 for the reason that the evidence submitted by the applicants was insufficient to support their claim that Article 14 was breached.

In brief, I could say that I share the considerations expressed by Judge Bonello in his partly dissenting opinion in the Anguelova v. Bulgaria case (no. 38361/97, ECHR 2002 – IV).

As has often been stated by the Court, the Convention is intended to guarantee not rights that are theoretical or illusory, but rights that are practical and effective (see, among many other authorities, Artico v. Italy, judgment of 13 May 1980, Series A, no. 37, § 33).

I consider that as long as the Court persists in requiring in the context of Article 14 complaints of discrimination on grounds of racial or national origin a “beyond reasonable doubt” standard of proof, this will result in the removal in practice of the human rights protection guaranteed by Article 14 in areas where the highest level of protection, rather than the highest level of proof, should be the priority. There could be no more effective a tool for ensuring that the protection against discrimination on grounds of racial or national origin will become illusory and inoperative than to expect victims to submit themselves to such a high standard of proof. In reality, the application of such a high standard is tantamount to rendering it impossible for applicants to prove that there was a violation of Article 14. I would add that this high standard is not required by other leading human rights tribunals.

In the instant case – which, as I said before, is just one of many similar cases – the most effective way to achieve a new and more equitable balance between the claims of applicants and those of the State would probably be to shift the burden of proof. The Court has already adopted such an approach in other contexts. For instance, it has taken the view that death or injury during police custody raises a presumption of State responsibility with the result that the burden of providing a satisfactory explanation for what happened to the victim shifts to the State (see, among other authorities, Selmouni v. France , [GC], ECHR-V).

The Court has also introduced and developed the concept of a “procedural violation” of Articles 2 and 3 (se e, for instance, Tahsin Acar v. Turkey , [GC], n o. 26307/95, ECHR- ... (mer its), and Assenov and others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions, 1998-VIII) and of “positive obligations” as far as Articles 2 and 8 are concerned (see, among many authorities, L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions, 1998-III, and Guerra and others v. Italy, judgment of 10 February 1998, Reports of Judgments and Decisions, 1998-I), which demonstrates the Court ' s “creativity” in the noble goal of attaining the highest level of protection of certain rights guaranteed by the Convention. I do not see any major objections to trying to find a more satisfactory way to deal with Article 14 complaints when racial or national origin discrimination is at stake.

As I am unable to follow the approach adopted by the majority, I conclude that there has been a violation of Article 14 of the Convention in conjunction with Articles 3, 8, 13 and 1 of Protocol No. 1.

[1] Akdıvar v. Turkey ( no. 21893/93, judgment of 16 September 1996 , Reports of Judgments and Decisions 1996-IV ), MenteÅŸ v. Turkey ( no. 23186/94, judgment of 28 November 1997 , Reports 1997-VIII ), Selçuk and Asker v. Turkey ( n os. 23184/94 and 23185/94 , judgment of 24 September 1998 , Reports 1998 ‑ II ), Bilgin v. Turkey ( no. 23819/94, 16 November 2000), DulaÅŸ v. Turkey ( n o. 25801/94 , 30 January 2001), Orhan v. Turkey ( no. 25656/94, 1 8 June 2002), Yöyler v. Turkey ( n o. 26973/95 , 24 July 2003), Ayder and Others v. Turkey ( no. 23656/94, 8 January 2004), Özkan and Others v. Turkey ( no. 21689/93, 6 April 2004), Altun v. Turkey ( n o. 24561/94 , 1 June 2004) .

[2] For a  full exposition of  my  views on the topic of  “Standards of Proof in Proceedings under the European Convention on Human Rights” see Loucaides, Essays on the Developing Law of Human Rights, 1995, Martinus Nijhoff Publishers, Dordrecht /Boston/London, p. 57 et seq.

[3] Velasquez Rodriguez case, judgment of 29.7 1988, para . 134 et seq., Human  Rights Law Journal, vol. 9, No. 2, p. 233. The position expressed in this judgment was adopted by the Commission in the Ribitsch v. Austria (application no. 18896/91).

[4] Glanville Williams. Textbook of Criminal Law, 2 nd   ed., p. 43

[5] Halsbury’s Laws of England, 4 th ed., Vol. 11, para . 208