PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Provisional translation)

1. In the present case, the facts giving rise to the applicant's complaints under the Convention are undisputed: two masked and unidentified persons killed three members of the same family. According to the applicant:

“15. In the evening of 16 March 1993 [her] older brother, Orhan Önen, and her parents, Ibrahim and Mome Önen, were killed and [she] suffered a wound to her foot as a result of a planned action by members of the Balpınar village guards to kill Orhan Önen. Before he was shot and killed, [her] father was able to pull the scarf from the head of one of the intruders and shouted that he recognised the gunmen as Ali Ertaş, head of the Balpınar village guards, and his nephew Orhan Ertaş, a former Balpınar village guard. [Her] mother, who was seriously injured by a bullet, died on her way to hospital.”

According to the Government:

“...in the evening of 16 March 1993 the killing of three Karataş villagers was reported to the public prosecutor...He conducted an investigation, including attendance at the post mortem examination of the bodies of the victims carried out by a medical doctor.” (See paragraph 21 of the judgment)

“On 28 December 1994 the Diyarbakır State Security Court acquitted Ali and Orhan Ertaş for lack of evidence. After this decision the investigation nevertheless continued but the perpetrators of the killing of the applicant's parents and brother have not been found .”[Emphasis added]

2. After examining the facts of the case the Commission concluded:

“...there is an insufficient evidentiary basis on which to conclude that the applicant's brother and parents were, beyond reasonable doubt, killed by agents of the State in the circumstances alleged by the applicant.”(See paragraph 86 of the judgment and point 3 of the operative provisions)

3. However, in the light of what is stated in paragraphs 87 et seq. (and in paragraphs 47 and 48), the Court is of the view that “the authorities failed to carry out an adequate and effective investigation into the circumstances surrounding the death of the applicant's brother and parents. Accordingly, there has been a violation of [Article 2]...” in its procedural aspect (see paragraph 91 of the judgment and point 4 of the operative provisions). That is to say, owing to the lack of an adequate and effective investigation, it has not been possible to identify and convict the culprits, in accordance with the State's positive obligations under Article 2.

4. Thus, in a case of this kind, simple logic dictates that the essential task is to establish the “procedural shortcomings” which have resulted in the investigation being unsuccessful – in other words inadequate and ineffective – in terms of identifying the culprits, and which thereby prevented the domestic criminal law being applied which, as noted above, is vital to the protection of the right to life under Article 2.

Contrary to this legal logic, what the Court has done is to list, randomly, a series of circumstances which it qualifies as “shortcomings” without any regard for their pertinence or purpose, still less for the conclusions of the national authorities responsible for the investigation reached in the light of the specific requirements of the factual situation at the relevant time and the precise purpose of the investigation. This the Court has done after the event, using reasoning that is entirely abstract.

In short, the right approach would, in my view, have been to separate the grain from the chaff. On this point the Sabuktekin v. Turkey judgment of 9 March 2002 (application no. 27243/95) could have served as a model: decisions should be based on concrete facts not abstract reasoning.

In this regard, I see no causal, and even less any pertinent, connection between inter alia the following “shortcomings” found by the Court and the conclusion that there has been a violation of Article 2 in its procedural aspects (the identification of the killers), which is the crucial aspect of this case: “the empty cartridges” found were not “numbered”; their “exact location” was not “recorded”; “no photographs of the scene of the killing were taken” (see paragraph 47 of the judgment); “the sketch map did not indicate a large blood stain on the spot where the body of Orhan Önen had been found”; “although [the gendarme and public prosecutor] were aware that the body of the applicant's mother had been moved, this fact had not been recorded on the sketch map”; “the scope of the sketch map was confined to the inside of the house and did not contain any information about the immediate surroundings” (see paragraphs 48 and 49 of the judgment). None of these matters have even the remotest connection to the heart of the case.

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 judgment of 10 October 2000.