PARTLY DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

( Translation )

To my great regret, I cannot concur with the majority on points 1, 5, 6, 8, 9 and 10 of the judgment’s operative provisions, for the following reasons.

1. The parties disagree about the facts of the case. Muhsin Taş was arrested as a member of a PKK terrorist group during an operation conducted by the security forces in the Cizre region. After being shot in the knee and placed in police custody he was taken to various hospitals to be given the treatment he needed. The applicant, who is the victim’s father, claims that his son died in custody, and therefore at a time when he was in the charge of the police. The Government assert that Muhsin Taş escaped while he was assisting the security forces during an operation in the Gabar mountains aimed at locating PKK hiding-places.

I consider that in order to refute the Government’s argument it would first have been necessary to establish that Muhsin Taş was physically incapable of escaping on account of the injury to his knee, but that has not been proved at all. Despite the fact that the orthopaedic surgeon, Dr Can, had reached the opposite conclusion in his report, the Commission “... was unable to reach any firm conclusions as to what state of fitness Muhsin Taş would have been in on 9 November 1993 (the date of his escape). It found it highly unlikely however that he was fully fit or able to walk or run normally at this date” (see paragraph 25 of the judgment). I wonder what evidence the Commission based that conclusion on. It did not say. I deduce that it was a supposition, the result of speculation! In this case, in the final analysis, there is nothing other than suppositions and speculations in the Commission’s findings of fact (see paragraphs 13 et seq. and above all paragraphs 24 et seq. of the judgment). But the Court has endorsed the Commission’s speculative findings (see paragraphs 52 et seq. of the judgment).

In this case it has not been proved beyond a reasonable doubt that Mr Taş died while in police custody. On the basis of a presumption that the Government were culpable, the majority reached a presumption that he had died in police custody (see paragraph 63 of the judgment). I am astonished that, in the same paragraph, they referred, in support of their presumption, to the Çakıcı v. Turkey judgment of 8 July 1999 and the Ertak v. Turkey judgment of 9 May 2000. Those two cases have nothing in common with the present case; in each of them the death of the victims had been established, so they did not concern disappearances as the case of Muhsin Taş does. I think that there was no point in referring, in order to justify the presumption of death in police custody, to an obiter dictum taken from the cases of Çakıcı (paragraph 85) and Ertak (paragraph 131), which have nothing to do with the present case.

In my opinion, when death has not been proved beyond a reasonable doubt, the Court should confine itself to use of the term “forced disappearance”, as it held in the Kurt judgment of 25 May 1998 and as the Commission did in its report of 29 October 1998 in the Timurtaş case (application no. 23531/94).

In its TimurtaÅŸ judgment of 13 June 2000 the Court departed from and reversed the line of case-law it had laid down in the Kurt judgment, a development of which I disapprove.

I remain convinced that as Muhsin TaÅŸ is to be considered a disappeared person Article 2 should not have been held to be applicable in the case. At a stretch, the Court could have approached the case from the standpoint of Article 5, as it did in the Kurt case. For a detailed explanation of my reasoning, I refer to my joint dissenting opinion in the previously cited TimurtaÅŸ v. Turkey case.

2. With regard to violation of Article 13, 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 opinions in the Ergi v. Turkey judgment of 28 July 1998 ( Reports of Judgments and Decisions 1998-IV) and the Akkoç v. Turkey judgment of 10 October 2000.

3. With regard to the application of Article 41, I find the sums awarded for damage to both the applicant and his disappeared son’s heirs exorbitant in comparison with those awarded in similar cases against Turkey. On that point also, I refer, mutatis mutandis , to my dissenting opinion in the previously cited Akkoç judgment and the examples given in my dissenting opinion in the Salman v. Turkey judgment of 27 June 2000.

Nor do I share the majority’s opinion that the sum awarded for costs should be paid into the applicant’s London bank account, given that he is a Turkish national living in a small village in a remote corner of south-eastern Turkey. On that point too I refer to my dissenting opinion in the previously cited Salman judgment.

[1] Notes by the Registry

1. Protocol No. 11 came into force on 1 November 1998.