PARTLY DISSENTING OPINION OF JUDGE FISCHBACH

(Translation)

I voted in favour of finding a violation of Article 3 in respect of the applicants, since I consider that the special conditions held in the Çakıcı v. Turkey judgment of 8 July 1999 to be decisive for the issue of violation of Article 3 were satisfied in the present case.

Although it is true that only one of the applicants was the direct witness of the events in question, it should be noted that a number of applicants were themselves caught up in the military operation, while three of them were detained by the troops. Three other applicants, who were not present in the Alaca district at the material time, immediately took the necessary steps to find out what had happened and what had become of the persons who had disappeared after the end of the operation.

It is also true that in only three cases did the applicant share a parent-child relationship with one of the victims, and that the other applicants were either the brothers of the men who had disappeared or in one case an uncle, but they were nevertheless all in the same situation of expectancy, anxiety and distress, while their repeated enquiries were constantly frustrated by the indifference and insensitivity of the authorities.

That being so, I consider that it would be unreasonable to try to draw distinctions between the applicants in accordance with the closeness of their relationships to the men who disappeared, and to find on that basis a violation in respect of some of the applicants and no violation in respect of the others.

PARTLY DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

1. In this case I consider that Article 2 is inapplicable and that if the case is to be examined at all it should be under Article 5, in accordance with the case-law of the Court and the Commission in the Kurt v. Turkey case and the Commission’s case-law in the Timurtaş v. Turkey case, because the death of the persons considered to have disappeared has not been proved beyond a reasonable doubt, but is merely supposed or presumed. In my opinion, it is wrong to refer to the Çakıcı and Ertak judgments because in those two cases the victims’ deaths had been established, whereas in the present case it is known only that the applicants’ relatives were arrested and the eleven persons concerned are still listed as missing.

For further details, I refer to my dissenting opinion on this point in the TimurtaÅŸ v. Turkey case, mutatis mutandis .

2. In the judgment the Court found a violation of Article 3 on the ground that the victims had been ill-treated while detained. In the file I could find no documentary evidence of this other than the applicants’ allegations. The Court said: “The evidence showed that they suffered not only from the cold but from fear and anguish as to what might happen to them” (paragraph 98). Are not fear and anguish of that kind the common lot of every prisoner? And can this be considered treatment falling within the scope of Article 3?

As regards the discomfort and inconvenience the victims may have suffered, it should be pointed out that members of the security forces have to live in conditions which are almost as harsh in that part of the country.

3. Under Article 13 no separate issue arises because the Court found a violation of Article 2 in its procedural aspect, so that the same facts are at issue. The Court has held in four recent judgments ( Hugh Jordan v. the United Kingdom , no. 24746/94 (Sect. 3), 4 May 2001, §§ 164 and 165; Kelly and Others v. the United Kingdom , no. 28883/95 (Sect. 3), 4 May 2001, §§ 158 and 159; McKerr v. the United Kingdom , no. 30054/96 (Sect. 3), 4.5.2001, §§ 175 and 176; and Shanagan v. the United Kingdom , no. 37715/97 (Sect. 3), 4 May 2001, §§ 139 and 140):

“As regards the applicant’s complaints concerning the investigation into the death carried out by the authorities, these have been examined above under the procedural aspect of Article 2... The Court finds that no separate issue arises in the present case.

The Court concludes that there has been no violation of Article 13 of the Convention.”

4. I consider that there has been no violation of Article 3 as regards the applicants, in accordance with the Court’s case-law.

5. As to application of Article 41, there is no evidence in the file capable of justifying the Court’s award of a sum for pecuniary damage, other than suppositions and speculation, especially about “loss of income”. I consider that the Court is not equipped to carry out this type of actuarial calculation. Moreover, where compensation for pecuniary damage is concerned, there is no cause to make an award on the basis of “equitable considerations”, this being appropriate only for non-pecuniary damage. If the Court considers that a sum should be awarded for damage, and for alleged loss of income at that, it would have been preferable to order an expert report, as the former Court did on a number of occasions. In my opinion, moreover, it is not for the Government, as the Court considers, to comment on the speculations put forward without any acceptable basis by the applicants. Failing a proper expert report on the question, any discussion or supposition is baseless and therefore unacceptable.

Besides, the sums awarded are more than excessive.

6. In the Convention system there is either “violation” or “no violation”. There is no “ most grave violation ” (paragraph 106), “ particularly grave violation ” (paragraph 108), “ serious violations ” (paragraph 131) or “ gravity of violation ”. Qualifying adjectives of this kind must be avoided in the text of judicial decisions, which must always remain neutral by employing dispassionate language.