JOINT PARTLY DISSENTING OPINION OF JUDGES VUČINIĆ AND LEMMENS

1. To our regret, we are unable to join the majority in finding that there has been no violation of Article 2.

2. According to the applicants, between August and December 1993, the buildings of the Democracy Party (DEP) were bombed, and ten of its members and administrators were killed (paragraph 8 of the judgment). The majority refer to a number of judgments in which the Court has noted the high number of victims at the time of the conflict in the south-eastern region of Turkey and the existence of rumours alleging that “contra-guerrilla” elements had been involved in targeting persons suspected of supporting the PKK. In those judgments the Court considered it to be undisputed that a significant number of such killings – the “unknown perpetrator killing” phenomenon – included those of prominent Kurdish figures as well as other persons suspected of opposing the authorities ’ policies in south-eastern Turkey (paragraph 61 of the judgment, referring to Mahmut Kaya v. Turkey , no. 22535/93, § 89, ECHR 2000-III; Kılıç v. Turkey , no. 22492/93, § 68, ECHR 2000 ‑ III; and Akkoç v. Turkey , nos. 22947/93 and 22948/93, § 81, ECHR 2000 ‑ X). The majority refer in particular to the case of Ferhat Tepe, son of a colleague of Mr Åževket Epözdemir, who was abducted and killed some months before Mr Epözdemir was killed (paragraph 62 of the judgment, referring to Tepe v. Turkey , no. 27244/95, 9 May 2003).

The majority conclude that Mr Epözdemir, as a prominent Kurdish politician and chairman of the local branch of a pro-Kurdish political party, belonged to a category of persons who were at the time of the events “at particular risk of falling victim to an unlawful attack” (paragraph 64 of the judgment). We fully agree with this assessment of the facts.

3. The question then arises whether the State authorities were, in these specific circumstances, under an obligation to take measures to protect Mr Epözdemir. According to the majority, there was no such obligation, because the authorities had not been aware – nor should they have been aware – of the risk to the life of Mr Epözdemir “to [an] extent sufficient to trigger their positive obligation to take pre-emptive steps to protect his life” (paragraph 73 of the judgment).

It is on this point that we respectfully disagree.

We do not see why the authorities should have waited until Mr Epözdemir (or one of his relatives) came to them and explained to them what must have been obvious at that time, namely that he was “at particular risk”. We consider that it was the authorities ’ duty to assess the general situation, characterised by a climate of terror against Kurdish leaders, and to draw the appropriate conclusions with respect to the persons belonging to the targeted group. In a situation like the one prevailing at the time, the authorities could not hide behind the simple excuse that they had not been approached and specifically informed about the risk to the life of a man like Mr Epözdemir (see paragraph 69 of the judgment). In our opinion there was enough information available to the authorities, and they could have been expected to take protective measures of their own motion.

We would also like to observe that the majority adopt a rather abstract view as to the duty to inform the public authorities, without having regard to the concrete situation. Mr Epözdemir was at risk of being killed by sympathisers of the Turkish regime. To require him to ask for protection from the Turkish authorities amounts to requiring him to enter a hostile environment to beg for help.

4. The majority seem to expect Mr Epözdemir or his relatives to have informed the authorities specifically about the threats made by General K.T. (paragraph 70 of the judgment).

We do not think that the mere fact that the authorities might have been unaware of the precise words used by the General is decisive. It was not the specific threat by the General that made it clear that there was a real risk to Mr Epözdemir ’ s life (compare, with respect to the relevance of the threats made by the General to the children of local Kurdish party leaders, in Tepe , cited above, § 12). The real risk resulted rather from the general climate of targeted killings of Kurdish party leaders. Even if there had been no threat at all from this one General, there had been good reason for the authorities to act.

5. The majority refer to some cases in which, after the abduction of a person, the relatives contacted the authorities and asked them to take measures to protect the life of the kidnapped person (paragraph 71 of the judgment, referring to Koku v. Turkey , no. 27305/95, § 132, 31 May 2005, and Osmanoğlu v. Turkey , no. 48804/99, § 75, 24 January 2008).

We consider these precedents to concern totally different situations. In Koku and OsmanoÄŸlu witnesses had seen how the victims were abducted. For some time there was no information about their whereabouts. The request to the authorities for protective measures concerned the period when the kidnapped persons were supposedly in the hands of their kidnappers.

The present case, by contrast, concerns a plain murder, with the body being found and identified already the next day. The complaint raises the issue of the protective measures that should have been taken before the killing took place.

6. We would like to make two additional comments.

First, we consider that in a situation such as that which prevailed at the time in south-eastern Turkey, an unreserved and visible protection of the targeted persons would have sent the message to the “unknown perpetrators” that their criminal acts could not be tolerated. We are afraid that the absence of protective measures could by contrast have been understood as a message to the perpetrators that they could continue their activities with virtual impunity.

Second, we are aware of the fact that the obligation to take preventive operational measures to protect an individual whose life is at risk “must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities” (see, among others, Osman v. the United Kingdom , 28 October 1998, § 116, Reports of Judgments and Decisions 1998 ‑ VIII). In the present case, however, where the Government have not indicated that any measures were taken or that any such measures were even considered by the authorities, the question of the burden on the latter does not arise.

7. To conclude, we consider that in the circumstances existing in south ‑ eastern Turkey at the time, the authorities were under an obligation to take reasonable steps to protect people like Mr Epözdemir. Since the Government do not mention any such measures adopted by the authorities, aimed at the protection either of local Kurdish leaders in general or of Mr Epözdemir in particular, we consider that the authorities failed in their duty to protect the life of Mr Epözdemir.

We therefore conclude that there has been a violation of Article 2.

[1] 1. T he term “unknown-perpetrator killings” is used to define the execution-style killings of thousands of persons in Turkey in the 1990s by persons who have remained unidentified and who have thus gone unpunished.

[2] 2 . Confessors are p ersons who cooperate with the authorities after confessing to ha ving been involved with the PKK.