DISSENTING OPINION OF JUDGE G ÖLCÜKLÜ

(Translation)

To my great regret I cannot agree with certain of the majority's conclusions which directly concern the essential substance of the case.

I. Establishment of the facts and procedural steps

1. In paragraphs 266 et seq. of the judgment the majority criticise – in terms not usually employed by the Court, I regret to say – the attitude and conduct of the respondent Government at the time when the Convention institutions were taking evidence, and go on to draw legal inferences on that basis concerning the merits of the case. According to the majority, the respondent Government did not reply as they should have done – that is to say in due form and in accordance with the wishes of the Convention institutions – to the repeated requests of those institutions for documents, information, the summoning of witnesses, etc. The Government had, for example, failed to produce a complete, detailed file on the military operations in issue for the purposes of the adversarial examination of the case. In the majority's view, such an attitude was tantamount to an “admission of guilt” and constituted at the same time the foundations of the applicant's allegations.

2. Firstly, this case concerned the need to counter a sharp and widespread upsurge of terrorism (as the majority noted themselves), and in most cases of this type very few things are prepared in advance. Almost everything is improvised at the last minute according to the requirements of the situation at the time and military imperatives, usually involving “security matters” or “military secrets”. So this case is not an ordinary, banal one. There was no “pitched battle” conducted according to a plan fixed in advance “with documentary evidence for everything”.

At the public hearing in the case the Agent clearly stated that his Government had submitted in good faith for the examination of the Convention institutions all the evidence in their possession and that if anything was missing this was in all probability the result of the difficulties inherent in this type of case and the long period of time that had elapsed since the events in issue.

That being so, are the majority sure that the respondent Government concealed certain facts detrimental to their case and thus obstructed the elucidation of the truth?

Consequently, I cannot agree with the majority's opinion concerning the establishment of the facts, their interpretation and the conclusions they drew therefrom.

II. Application of Article 2

3. In paragraph 310 of the judgment the majority reached the following conclusion on the fate of the Orhans after they were seen in Gümüşsuyu: “In the Court's opinion, it is not possible to establish to the requisite standard of proof where the Orhans were detained after they were seen in Gümüşsuyu in the hands of the security forces.” That is speculation and unfounded supposition on the majority's part. If the preceding paragraphs on the facts of the case are studied with the attention they deserve, nothing can be found there to support that assertion. When the majority say: “[I]t is not possible to establish ... where the Orhans were detained after they were seen in Gümüşsuyu in the hands of the security forces” (my emphasis), they gratuitously presuppose that they continued to be detained thereafter . The real question to be answered is not where they were detained , but whether they continued to be detained after they were seen in the charge of the security forces in Gümüşsuyu.

4. The contradiction between “the Court's assessment of the parties' submissions and of the evidence” and the conclusion reached in the above-mentioned paragraph 310 is manifest. What is true is that “it is not possible to establish to the requisite standard of proof what happened to the Orhans after they were seen in Gümüşsuyu” . Indeed that is evidenced by the majority's own admission in paragraph 316 of the judgment that “the fact remains that the only evidence that the Orhans were in fact detained in Kulp or Lice gendarme stations or at Lice Boarding School is hearsay. No further information about [Eşref] was provided to the Court. ... This indirect evidence is, despite the strong suspicions to which the evidence gives rise, insufficient to enable the Court to conclude beyond all reasonable doubt that the Orhans were detained in the above-noted gendarme or military establishments...” (my emphasis).

5. If it has not been established that the Orhans were detained by gendarmes after they were seen for the last time with soldiers, how can one claim – as the majority did – that it must be presumed that they died as the result of unacknowledged detention by the security forces, and thus conclude that there has been a violation of Article 2. Reasoning of that kind defies all elementary logic, in my opinion, and is therefore unacceptable to me.

6. In short, this case concerns nothing more than an unacknowledged disappearance, to which the only applicable provision is Article 5 of the Convention according to the Kurt judgment of 25 May 1998, but not Article 2, as the majority considered. In the TimurtaÅŸ v. Turkey judgment of 13 June 2000 the Court mistakenly applied Article 2 on the basis of a series of alleged differences between that case and the Kurt case (so as not to be accused of reversing the precedent firmly established by the Kurt judgment)

and by introducing a purported “presumption of death”. The Orhan case is identical to the Kurt case just as the Timurtaş and Akdeniz cases were. Although the people and places have changed, the substance of the case has not. For the purposes of applying Article 2, a presumption which amounts to no more than speculation is not sufficient. For as long as the death of the person in question has not been proved beyond a reasonable doubt, as in the present case, Article 5 takes precedence. In that connection, I refer to my detailed dissenting opinion in the above-mentioned Timurtaş case and would confine myself here to citing once more paragraphs 108 and 109 of the Kurt judgment:

“It is to be observed in this regard that the applicant's case rests entirely on presumptions deduced from the circumstances of her son's initial detention bolstered by more general analyses of an alleged officially tolerated practice of disappearances and associated ill-treatment and extra-judicial killing of detainees in the respondent State. The Court for its part considers that these arguments are not in themselves sufficient to compensate for the absence of more persuasive indications that her son did in fact meet his death in custody...

Having regard to the above considerations, the Court is of the opinion that the applicant's assertions that the respondent State failed in its obligation to protect her son's life in the circumstances described fall to be assessed from the standpoint of Article 5 of the Convention.”

III. Alleged violation of Article 3 of the Convention in respect of the applicant

7. In the Kurt case the Court held that in cases of unacknowledged disappearances the indifference to an applicant's complaints shown by the national authorities charged with conducting an effective inquiry might, in specific circumstances (see also the Çakıcı judgment of 7 July 1999), constitute a breach of Article 3 in respect of the applicant – but without laying down a general principle on the question. However, in the more recent case of Akdeniz v. Turkey, which is almost identical to the Orhan case (see the judgment of 31 May 2001, § 102), the Court, having found no specific circumstances, held that there had been no violation of Article 3 in respect of the applicants. Similarly, in the present case, the national authorities responsible for investigating the case were not so complacent about the applicant's complaints that it is possible to find a violation of Article 3 in his respect.

IV. With regard to a violation of Article 13

8. I consider that where 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 opinion in the Ergi v. Turkey, Akkoç v. Turkey and Taş v. Turkey judgments. The same reasoning should apply as to alleged violation of Article 13 in conjunction with Articles 3, 5 and 8 of the Convention and Article 1 of Protocol No. 1, besides the question of exhaustion of domestic remedies.

V. Application of Article 41

9. The above considerations dispense me from examining the application of Article 41 under its different aspects. However, I should point out that this part of the judgment is far from being clear and convincing and is in contradiction with legal logic. Some people, and the applicant is one, are awarded sums under a number of different heads for the same facts in respect of their unmarried sons “presumed dead”.

10. I further contest any payment to the Kurdish Human Rights Project, an association based in London, in respect of costs and expenses for their assistance in this case.

Apart from translation fees, the Court has to date always refused these constantly repeated claims (see the following judgments: Kurt v. Turkey, 25 May 1998, § 180; Salman v. Turkey, 27 June 2000, § 143; İlhan v. Turkey, 27 June 2000, § 116; Çiçek v. Turkey, 27 February 2001, § 209; Berktay v. Turkey, 1 March 2001, § 219; Şarlı v. Turkey, 21 May 2001, § 93; Taş v. Turkey, 14 November 2000, § 106; Akkoç v. Turkey, 10 October 2000, § 109; Avşar v. Turkey, 10 July 2001, § 448). In stating its reasons for refusing, the Court confined itself to saying either that it had been provided with no details of “the precise extent of that organisation's involvement in the preparation of the case” (see the above-mentioned Kurt judgment) or that it was not persuaded that “the fees claimed in respect of the KHRP [had been] necessarily incurred” (see the above-mentioned Salman case). The scraps of explanation given on the matter were indeed very evasive. The Court was all the more demanding on the point because it was aware that an association working to protect human rights should have provided its assistance free of charge. Except for the translation fees, the costs incurred in respect of that organisation should not have been added to the general legal costs, thus presenting the KHRP as a party to the proceedings. The Court must therefore openly and unequivocally reject any claim for the reimbursement of fees in respect of the KHRP.