PARTLY DISSENTING OPINION OF JUDGE BONELLO

1. Judge T ulkens and I have voted to find a “ substantive ” violat ion of Article 2, rather than merely a “ procedural ” breach.

2. Unanimously, the Court established that the domestic authorities failed to conduct “a prompt and adequate investigation into the circumstances surrounding the killing of Sariya Yilmaz” and that “the authorities concerned disregarded their essential responsibilities in this respect” (see paragraph 85).

3. In plain language, the Court agreed that the respondent State, on a kinder construction, did next to nothing to ensure that evidence be discovered and preserved (or that the real facts on which the truth about the killing could be established were brought to light). On a less kind reading, that the respondent State did a lot to ensure that all evidence be submerged.

4. The majority found that the applicant had failed to produce proof beyond reasonable doubt that the State was responsible for the murder of his wife and consequently ruled that the State had not violated in substance the victim ' s fundamental right to life.

5. I disagree. The State had an obligation, acknowledged by the Court and extensive case-law, to collect and provide proof and evidence of all the circumstances surrounding the murder in question by means of effective investigations. This obligation the State failed to comply with. The Court then, in effect, told the applicant that he could not succeed in his Strasbourg action because he had failed to produce the evidence which the State had wrongly failed to produce.

6. I discern an acute legal and logical, not to mention ethical, deficit in this line of reasoning: visiting the failings of the State, not on their author, but on the victim of those failings: the applicant. I believe that once the State ' s preponderant responsibility for the dearth of evidence is established, then a consequent inference of culpability on the merits, takes over a nd shifts the burden of proof. Henceforth it is not for the applicant to prove, but for the Government to disprove, its responsibility in the death in question.

7. I expressed these concepts in greater detail in my separate opinion in the case of Tahsin Acar v . Turkey ([ GC], no. 26307/95, ECHR 2004 ) and, to avoid repetition, I refer to it.

8. I am not at all convinced that had the Court adopted a form of reasoning on these lines, it would have brought about “a result inconsistent with a judgment previously delivered by the Court”. Neither the Chamber nor the Grand Chamber has, so far, ever determined the issue here raised. But even assuming that one could, by indirect inference, have reached the conclusion that this reasoning would have constituted a departure from previous case-law, then the proper course of action would have been for the Chamber to relinquish jurisdiction in favour of the Grand Chamber under Article 30.

PARTLY DISSENTING OPINION OF JUDGE TULKENS

(Translation)

1. In this case, the only points with which I disagree are points 2 and 5 of the operative provisions, in which the Court found that there had been no violation of Article 2 of the Convention as regards the applicant ' s allegation that his wife was killed in circumstances engaging the responsibility of agents of the respondent State , and no violation of Article 3 of the Convention.

2. The Court ' s analysis of the substantive allegations under Article 2 led it to find: “[I]n the absence of a ballistic examination and an autopsy, it is not possible to establish beyond reasonable doubt who was responsible for killing th e applicant ' s wife. Furthermore... , there is not sufficient evidence to conclude that the killing occurred during an alleged gendarme campaign designed t o force the villagers to leave ... Accordingly, the Court considers that there is an insufficient factual and evidentiary basis on which to conclude that the applicant ' s wife was, beyond reasonable doubt, intentionally or recklessly killed by the security forc es as alleged by the applicant ... it follows that there had been no violation o f Article 2 of the Convention ... ” (see paragraphs 74 and 76 of the judgment) .

3. However, on examin ing the procedural aspects of the case, it f ou nd: “ ... there were striking omissions in the conduct of the investigation” ( ibid., paragraph 80). More specifically , it said that the information provided by the applicant “did not lead the authorities to broaden the scope of their investigation so as to investigate the possible involvement of members of the security forces in the killing” and “[n]o investigation was opened into the allegations of wrongdoing on the part of the security forces” ( ibid., paragraph 81 ). It also note d : “ ... neither a post-mortem nor a ballistics examination was carried out by the public prosecutor”, while at the same time recognising that, “ ... had a proper post-mortem examination (which is also required by Article 79 of the Turkish Code on Criminal Procedure) been carried out it could have provided valuable information ... ” and that the same applied to a ballistics examination ( ibid., paragraph 83). In these circumstances, finding that “the domestic authorities did not conduct a prompt and adequate investigation ” and “ disregarded their essential responsibilities in this respect ” (ibid., paragraph 85), the Court held that there had been a violation of Article 2 of the Convention owing to the inadequacy of the investigation.

4 . In the present case, this two-stage reasoning produces a paradoxical result: the Court argues that there was insufficient proof to find a substantive violation, but it goes on to ascribe this lack of evidence to serious failings on the part of the investigating authorities, in particular as regards procedures (such as an autopsy and a ballistic examination) which it acknowledges could have helped to establish the truth.

5 . While the procedural obligations defined in the Court ' s case-law undoubtedly help to make the rights guaranteed by the Convention more effective, the risk which the present case highlights is that its scrutiny of the procedural safeguards may serve as a pretext for not examining the substantive issues. Procedural review must continue to complement substantive review, and not become a substitute for it . Otherwise, there is a danger that, in order to avoid being found to be in breach of a substantive obligation, domestic authorities will simply neglect to hold an investigation, preferring the less serious – in their view – finding of a procedural violation.

6 . In situations such as this in which the Court is confronted with conflicting accounts of the alleged events and conduct, it is necessary to apply the general evidential principles. Where a State has, as here, failed to comply with its obligation to carry out an adequate and effective investigation and so deprived the applicant of vital evidence, I agree with Judge Bonello that the applicant ' s right should not thereby be irretrievably lost.

7 . The Court ' s dilemma with regard to the s ubstantive violation of Article 2 of the Convention reappears when it examines the allegation of a violation of Article 13. Having found that it has not been established that members of the security forces were implicated in the murder of the applicant ' s wife, it is obliged to resort to the – to my mind, relatively artificial – notion that there was an “ arguable claim ” of a violation of Article 2 in order to find that there has been a violation of Article 13 (see paragraph 93 of the judgment).

8 . Lastly, these comments apply also to Article 3 of the Convention, as the Court relies on the same reasoning (ibid., paragraph 99).

[1] 1. Rectified on 1 February 2005 . The name of Şirin Yılmaz read Mehmet Şirin Yılmaz in the former version of the judgment.

[2] 1. Rectified on 1 February 2005 . The name of Şirin Yılmaz read Mehmet Şirin Yılmaz in the former version of the judgment.