PARTLY DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

To my great regret I am unable to agree with certain of the majority's conclusions for the following reasons:

(1) The Court found in paragraph 143 of its judgment:

“On the basis of the material in its possession, the Court is of the opinion that the actual circumstances in which the applicant's husband died remain a matter of speculation and assumption and that, accordingly, there is an insufficient evidentiary basis on which to conclude that the applicant's husband was, beyond reasonable doubt, killed by or with the connivance of State agents in the circumstances alleged by the applicant.”

(2) However, when it examined whether the State had complied with its “positive obligation” under Article 2 of the Convention, the majority held that there had been a violation of that limb of the Article as the national authorities had failed to carry out an adequate and effective investigation into the death of the applicant's husband, in other words it found that no proper investigation was conducted in the instant case.

It is that fundamental conclusion which I contest.

(3) Let us examine the reasoning of the majority.

In paragraph 145 of the judgment in the instant case the majority substituted its view for that of the national authorities on a point that depended entirely on the strictly personal observations and factual findings of the officers investigating the case. Assuming the mantle of a skilled detective, it declared:

“As regards the question whether the criminal investigation carried out in the present case can be regarded as adequate and effective, the Court has already noted that there was a striking omission in the investigation from the very outset, namely the failure to make the connection between Yusuf Ekinci and Behçet Cantürk who was killed one month earlier in similar circumstances. Even when, subsequently, various official reports on the Susurluk incident had been made or became public and reinforced the relevance of the connection between the two men, no investigation was carried out into the possibility that there might be a link between the killing of Behçet Cantürk and that of the applicant's husband and that State agents might possibly have been involved in the latter's death . As pointed out by the applicant, the criminal investigation into her husband's killing was mainly focused on his family and friends and on his professional contacts and activities.

In these circumstances, the Court cannot but conclude that the investigation by the Turkish authorities into the circumstances surrounding the killing of the applicant's husband was neither adequate nor effective.” ( emphasis added )

In a word, the only omission in the investigation which the majority was able to come up with was the failure to make a connection between the two murders.

However, firstly, there is no basis for the majority's affirmation. How does the Court know that the officers in charge of the investigation neglected that line of investigation. There is nothing in the case file to support such an unwarranted “finding!”. On the contrary, in their depositions all the witnesses emphasised the links and friendship – in short the connection – between Y. Ekinci, the applicant's deceased husband, and Cantürk , a drug-trafficking suspect who had also been killed a month earlier (see, in particular, paragraphs 28, 31, 40, 44 of the judgment). In these circumstances, how can the majority or anyone else imagine that the investigators would have omitted to investigate “... from the very outset...” the connection between the two men, that being the most obvious lead (see in particular the article published in the daily newspaper Raz'kal , and paragraphs 61, 102 and 138 of the judgment), especially as in this type of “scenario”, the “settling of scores” is an everyday occurrence. Anyone with the least knowledge of how criminal investigators work will be aware that following up a “good lead” always requires intelligent, individual reflection that never appears on paper in the form of a report.

That being so, I repeat the crucial question: How does the majority know (or guess) that the police failed to follow up that lead “... from the very outset of its investigation...”?

In my opinion, the investigation conducted by the national authorities into the murder of Y. Ekinci was perfect and flawless. A careful reading of paragraphs 17 to 60 and 62 to 83 of the judgment will provide sufficient proof of that.

Secondly, supposing for a moment, as the majority was content to do, that the police did omit to investigate the “Ekinci et Cantürk ” connection. Surely, one would have to ask how taking one unsolved crime as the starting point will help to solve another, namely the murder of Y. Ekinci?

In criminology the notion of “unsolved crime” is well known: the present case is not the first and will not be the last in which it proves impossible to identify the killer or killers, despite an investigation. I hope that the murderer will be identified before the limitation period expires.

It will be recalled that the positive obligation on the State in the Convention system is an obligation to use best endeavours with the means available ; it is not an absolute obligation. It would be erroneous to consider that an investigation is inadequate and ineffective until such time as those responsible have been identified and brought to justice.

(4) Lastly, I also disagree with the majority as regards the summary of the facts . What are the majority's conclusions? Firstly, that it has not been proved that Y. Ekinci was killed by State agents(!) and, secondly, that there has been a violation of the procedural guarantee provided by Article 2. In that case, and particularly in the light of the first conclusion, what is the relevance and purpose of all the “rumour-mongering” in the “the facts” section of the judgment and of all these scenarios of dubious taste (see paragraphs 61, and 91 to 110). It seems very akin to “idle gossip” or “something for nothing” and has no place in the judgment of an international court. A judgment of a court of law is not a “a receptacle for anything and everything”.

(5) With regard to a violation of Article 13, I consider that when the Court finds a violation of Article 2 in its procedural aspect, as the majority did in the instant case, no separate issue arises under Article 13, since the finding of a violation of Article 2 takes account of the fact that there has been neither an effective inquiry nor a satisfactory procedure after the incident. For more details on that subject, I refer to my dissenting opinions in the Ergi v. Turkey judgment of 28 July 1998 ( Reports , 1998-IV) and Akkoç v. Turkey of 10 October 2000.

(6) Personally, as I find no violation in the present case, I consider that Article 41 is inapplicable.

[1] An infamous drug trafficker strongly suspected of supporting the PKK and one of the principal sources of finance for the Özgür Gündem daily newspaper (see Özgür Gündem v. Turkey, no. 23144/93, ECHR 2000-III). Behçet Cantürk and his driver disappeared on 14 January 1994. Their bodies were found on 15 January 1994. They were both shot and killed by unknown perpetrators.

[2] An apparent reference to “ Gladio ”; an anti-communist resistance network, that included a Turkish branch, set up by NATO in Western Europe after the second World War.

[3] Turkish nationalist extreme right-wing movement.

[4] State agents having lost their lives.

[5] One of the pseudonyms of a former member of the PKK turned informant who was known by the name “ Green Code ” and who had supplied information to several State agencies since 1973.

[6] “Unfulfilled Promise of Reform”, September 1995.

[7] 1994 Report.