PARTLY DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

To my great regret, I cannot share the opinion of the majority of the Court in the present case in respect of the application of Articles 3 and 41 of the Convention.

Let me explain:

1. The majority found a violation of Article 3 of the Convention in both its substantive and procedural aspects, which conclusion I cannot accept. There is no evidence in the case file to substantiate the applicants' complaints of torture or other ill-treatment, apart from their declarations, which are only those that anyone taken into custody puts forward either at the time or in preparation of his / her defence once released. In similar cases which have already been tried, one finds the same descriptions of acts “characterised” as torture or ill-treatment; it is not surprising, therefore, that the applicants in the present case repeat such allegations one after the other in the form of this well known cliché. However, the majority find such allegations “credible and consistent” and that the claims were “credible as a whole” (paragraphs 639-641 above) – vague terminology when there is not the slightest element of material proof to substantiate it; as if the mere repetition by 10 to 15 people of an agreed text could be deemed “credible and consistent”! A number of untruths repeated and embellished one after the other do not constitute a real truth. In sum, the reasoning of the majority, on which their finding of a violation is based, is nothing more, in my opinion, than supposition, speculation and misplaced deduction. This is why, I think, they had to look for support in “international materials” (paragraph 596 above), which are irrelevant when one examines an allegation of torture, complaint or material fact, where one must prove with certainty that the events did actually occur. The fact that ill-treatment of detainees in Turkey had been found by certain institutions is not a convincing argument on which to rely in the present case.

2. The respondent Government are criticised for failing to provide proof in rebuttal of the applicants' allegations. However, it is difficult to understand how one can disprove a negative fact, or a fact which never occurred.

3. The respondent Government are also criticised for the inactivity of the domestic judicial authorities regarding the applicants' allegations, but from the outset I have endeavoured to explain that the applicants presented no prima facie evidence in support of their complaints. How can one initiate an inquiry or a prosecution when no such evidence is disclosed by the complainants in order to set in motion the judicial apparatus?

4. Moreover, I would emphasise that in the Convention system the finding of a violation, or no violation, has no pejorative implications for the High Contracting Party. The Convention organs cannot adopt the cause of one or the other party to the case. Judicial decisions must be devoid of value judgments, which are always subjective and “emotional”, particularly such tendentious characterisations as “severe pain and suffering ... particularly serious and cruel” (paragraph 646 above). This is especially so when no evidence whatsoever is provided in support of the allegations in question.

5. Finally, I do not agree with the majority in their application of Article 41 of the Convention. First, the award of material damages in the majority of cases is hazardous and speculative. Unless based on verifiable facts and figures, claims for loss of salary or other losses sustained are mere suppositions. This is why the old Court rejected claims under this head unless they could be accurately assessed, as in the case of the destruction of property. Secondly, the sums awarded under this head, together with those awarded as moral damages are clearly excessive. As I disagree with the majority's conclusions under Article 3 of the Convention, it would be appropriate to considerably reduce the assessment of the losses allegedly sustained.

[1] 20 November 1993 according to the applicant and custody records (cf. paragraph 495 below)

[2] the National Liberation Front of Kurdistan - the political wing of the PKK

[3] The Government stated that this was the date of detention/remand after appearing before a judge.

[4] The Government stated that this was date of the decision of detention / remand in absentia

[5] 20 November 1993 according to the applicant and the custody records (cf. paragraph 495 above)

[6] See also Akkoç v. Turkey , judgment of 10 October 2000, nos. 22947/93 and 22948/93, §§ 37-40, ECHR 2000-X.

[7] For Mr Elçi see paragraphs 16, 31, 35, 47-48, 60, 93, 95, 97, 101, 129, 141, 153, 166, 177, 196-197, 228, 254, 261, 505-506, 510, 521 and 538 above; for Mr Çem see paragraphs 16, 31, 35, 47-48, 60, 97, 129, 141, 153, 165, 177, 196-197, 228, 254, 261, 505-506, 510, 521 and 538 above;  for Mrs BeÅŸtaÅŸ see paragraphs 31, 35, 47, 53-54, 60, 129, 141, 153, 166, 191, 194, 228, 254, 261, 505-506, 510, 514, 521 and 539 above; for Ms Ölmez see paragraphs 31, 47, 60, 69, 96, 141, 153, 166, 197, 228, 254, 505-506, 521, 530 and 539 above.

[8] For the conditions of detention, including blindfolding , see paragraphs 17, 21-22, 30, 35, 38-40, 46, 50, 51, 53, 55, 57-59, 61, 65, 67-69, 88, 96, 99, 109, 119, 126, 130, 139-140, 142, 148-150, 154, 164, 170-171, 176, 179, 190-191, 195, 198, 206, 209-210, 212, 223-226-228, 239, 244, 252, 254, 258, 313, 333, 507 and 538; for Mr Tur see paragraphs 35, 139-140, 505 and 538 above; for Mr Acar see paragraphs 39, 148-149, 505, 521-522 and 538-539 above;  for Mr KurbanoÄŸlu see paragraphs 51, 176, 181, 520, 538-540 above; for Mr BeÅŸtaÅŸ see paragraphs 58, 208, and 538-539 above;  and for Mr Erten see paragraphs 60, 223, 225, 227-230, 234, 506, 519, 538-539 and 541 above.

[9] These parts of the Susurluk report were not submitted to the Court