CONCURRING OPINION OF JUDGE S KARAKA Ş , SAJ Ó AND K Ū RIS

We agree with the outcome in the present case. We do, however, wish to draw attention to certain decisions and judgments by the Court concerning the issue of compensation as an appropriate remedy in Article 2 and 3 cases, which conflict with the Court ’ s established case-law and which were not considered unacceptable, as a matter of principle, in the present case.

In paragraph 74 of the judgment, it is stated that “[ E]ven assuming that a compensation claim in civil proceedings may be regarded as an effective domestic remedy for complaints under the substantive aspect of Article 3 of the Convention, the Court notes that the applicants in the present case have exhausted that remedy proposed by the Government, whose objection in that regard must therefore be dismissed.”

In paragraph 75 of the judgment, it is further stated that “ In any event, and quite apart from the issue as to whether the domestic courts ’ findings were sufficient in terms of acknowledgement of a violation, the Court is of the opinion that the compensation of EUR 1,500 awarded to each applicant in respect of non-pecuniary damage, in the present case, cannot be considered an appropriate redress for the violation complained of...”

We find this troubling, as we cannot accept that civil compensation may be regarded as an effective remedy for complaints under the substantive aspect of Article 3 of the Convention.

The Court has held in a number of its judgments that “[I]f the authorities could confine their reaction to incidents of willful police ill-treatment to the mere payment of compensation, while not doing enough in the prosecution and punishment of those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity and the general legal prohibitions of killing and torture and inhuman and degrading treatment, despite their fundamental importance, would be ineffective in practice” (see, inter alia , Nikolova and Velichkova v. Bulgaria , no. 7888/03, § 55, 20 December 2007 and the cases cited therein).

This approach has been confirmed in numerous judgments in which the Court refused to entertain respondent Governments ’ arguments that civil and administrative remedies could be regarded as sufficient for compliance by a Contracting State with its obligations under Article 3 of the Convention, on the ground that such remedies are aimed at awarding damages rather than identifying and punishing those responsible (see, inter alia , Atalay v. Turkey , no. 1249/03, § 29, 18 September 2008, and Saçılık and Others v. Turkey , nos. 43044/05 and 45001/05 , § 68, 5 July 2011; see also Aslakhanova and Others v. Russia , nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10 , § 89, 18 December 2012 [1] ).

Significantly, the same principle was also relied upon by the Grand Chamber when overturning a Chamber ’ s judgment which had held that acknowledging an Article 3 breach and ordering the payment of compensation to the victims of that breach constituted sufficient redress (see Gäfgen v. Germany [GC], no. 22978/05, §§ 109, 119 and 129, ECHR 2010).

In some decisions, however, perhaps for reasons related to the specific circumstances of those cases, payment of compensation constitutes an adequate remedy for a Contracting Party ’ s substantive obligations under Articles 2 and 3 cases. This consideration finds its roots in the decision of inadmissibility in the case of Caraher v. the United Kingdom ( (dec.), no. 24520/94, ECHR 2000 ‑ I) and was further developed in cases predominantly against the United Kingdom (see, inter alia , Hay v. the United Kingdom (dec.), 41894/98, 17 October 2000; McKerr v. the United Kingdom , no. 28883/95, §§ 116-121, ECHR 2001 ‑ III; Hugh Jordan v. the United Kingdom , no. 24746/94, § § 110-115 , 4 May 2001; Shanaghan v. the United Kingdom , no. 37715/97, §§ 93-99 , 4 May 2001; Kelly and Others v. the United Kingdom , no. 30054/96, §§ 99-110 , 4 May 2001; McShane v. the United Kingdom , no. 43290/98, §§ 99-105, 28 May 2002; Bailey v. the United Kingdom , (dec.) no. 39953/07, 19 January 2010; and McCaughey and Others v. the United Kingdom , no. 43098/09, § 121, ECHR 2013).

In the circumstances of those cases, where the breach of Article 2 or 3 of the Convention has been acknowledged by the national authorities and compensation paid to the victim, or where civil proceedings are pending, the State would be absolved from its substantive obligations and the Court should confine itself to an examination of the procedural aspect of Article 2 or 3 of the Convention only.

The McKerr judgment ( cited above, § 156) states that although “civil proceedings would provide a judicial fact-finding forum, with the attendant safeguards and the ability to reach findings of unlawfulness, with the possibility of damages. It is, however, a procedure undertaken on the initiative of the applicant, not the authorities, and it does not involve the identification or punishment of any alleged perpetrator . As such, it cannot be taken into account in the assessment of the State ’ s compliance with its procedural obligations under Article 2 of the Convention . ” We agree that, given the nature of the civil procedure, it “does not involve the identification or punishment of any alleged perpetrator.” However, it does not follow from the fact that a civil procedure can, in certain aspects, be equated to a criminal procedure (or perform some function thereof) that the State ’ s substantive obligations State are extinguished on the ground of the applicant ’ s alleged lack of victim status.

The Court ’ s case-law must avoid creating an impression that even where the perpetrator of an ill-treatment-related offence or an unlawful killing is identified at the end of an effective investigation and sufficient evidence has been collected for that perpetrator to be prosecuted, the authorities are not required to put the perpetrator on trial unless the circumstances of the case compel the contrary, and may allow him or her to go free with impunity and instead pay money to the victim or to the victim ’ s family. Such reasoning would disregard the fact that conducting an effective investigation capable of leading to the identification and prosecution of the perpetrator is required precisely because the perpetrator can then be punished. Moreover, it would invite the States to tolerate impunity without the risk of being found in violation of their substantive obligations under Article 2 or 3 of the Convention.

Our case-law has unequivocally recognised that Contracting State ’ s obligations under the substantive aspects of Article 2 and 3 do not come to an end by acknowledging the breach and paying compensation to the victim. The above-mentioned uncertainties in the above-cited decisions cannot undermine the principle that imposition of a deterrent punishment is an important and sometimes sine qua non requirement in cases concerning ill-treatment and unlawful killings, especially when they involve State agents. That case-law does not tolerate situations in which criminal proceedings are conducted, the perpetrator is identified and it is established that the perpetrator carried out the act which breached the victim ’ s rights under Article 2 or 3 of the Convention, but he or she is then allowed to escape punishment for various reasons. Thus, in cases where the execution of the perpetrators ’ prison sentences was suspended (see Okkalı v. Turkey , no. 52067/99, § 39, ECHR 2006 ‑ XII (extracts); Fadime and Turan Karabulut v. Turkey , no. 23872/04 , § 30, 27 May 2010; Nikolova and Velichkova , cited above, § 24, and Külah and Koyuncu v. Turkey , no. 24827/05 , § 18, 23 April 2013 ); where the criminal trial became time-barred on account of the expiry of the statute of limitations after it had been established that the defendants had carried out the acts ( UÄŸur v. Turkey, no. 37308/05 , § 70, 13 January 2015); or where pronouncement of the judgment was suspended ( Eski v. Turkey , no. 8354/04 , § 18, 5 June 2012 and Kasap and Others v. Turkey , no. 8656/10 , § 37, 14 January 2014), the Court has found substantive violations of Articles 2 and 3 of the Convention on account of the impunity granted to those perpetrators.

The underlying rationale behind this approach is that, although there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow ill-treatment or life-endangering offences by State agents to go unpunished (emphasis added) by using their powers of discretion to lessen the consequences of serious criminal acts rather than to show that such acts can in no way be tolerated. This is essential for maintaining public confidence, ensuring adherence to the rule of law and for preventing any appearance of tolerance or of collusion in unlawful acts (see, inter alia , Okkalı , cited above, § 65, and Türkmen v. Turkey , no. 43124/98, § 51, 19 December 2006 ). Although the Court should largely defer to the national courts ’ choice of appropriate sanctions for ill-treatment and homicide by State agents, it must exercise a certain power of review and intervene in cases of manifest disproportion between the gravity of the act and the punishment imposed (see Nikolova and Velichkova , cited above, § 62).

In line with the foregoing principles, in a number of cases in which applicants were awarded substantial sums of compensation by the national authorities but in which the perpetrators of the violations were not punished, the Court has held that the applicants could still claim to be victims within the meaning of Article 34 of the Convention and gone on to find substantive breaches of Articles 2 and 3 of the Convention (see Saçılık and Others , cited above, § 69 and 112, where one of the applicants had been awarded EUR 140,000 for the injury sustained during a security operation in a prison; Leonidis v. Greece , no. 43326/05, §§ 41 and 46-48, 8 January 2009, where the applicant had been awarded EUR 80,000 for the killing of his son by a police officer).

We do not exclude the possibility that situations might exist where a punishment of a criminal nature is not absolutely necessary and the respondent State ’ s obligations may be satisfactorily fulfilled by identifying and acknowledging the negligent act or the omission which breaches an individual ’ s rights under Article 2 or 3, and then by adequately compensating for it. Such situations arise, for example, in the area of positive obligations under Articles 2 and 3 of the Convention. It is indeed for that reason that the Court expressly specifies in such cases that “if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case” (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I) .

The line of case-law which has its roots in the Caraher decision currently consists of only a handful of cases. Unfortunately, the present judgment gives undue prominence to one aspect of the Caraher logic, which might well have been applicable in that particular case at that stage of development of the Court ’ s case-law, but which is not universally applicable.

In our opinion, the time has come for the Grand Chamber of the Court to settle this issue and to reinforce the case-law against unintended erosions. In the light of what we set out above, it is apparent that the established case-law does not allow the dilution of State liability under the pretext of available civil remedies. This risk cannot be mitigated by the addition of sentences such as “even assuming that a compensation claim in civil proceedings may be regarded as an effective domestic remedy for complaints under the substantive aspect of Article 3 of the Convention” (see § 74 of the present judgment). One wonders, for example, what the Court would have decided in this case had each of the applicants been awarded, not EUR 1,500, but EUR 20,000? Would it then have held that that sum was sufficient to amount to adequate redress? In any event, as it is, the present judgment seems to create a third line of case-law, by relying on the insufficiency of the sum awarded in civil proceedings. That clearly conflicts with what was stated in the Caraher decision, namely that “[ T]he Court is not persuaded that an applicant can still claim to be a victim on the basis that the amount of compensation is inadequate”. We are convinced that these applicants can still claim to be victims of a substantive violation of Article 2, not because of the adequacy or inadequacy of the compensation, but in view of the fact that without consistent State responsibility for providing an adequate mechanism for criminal liability there can be no proper protection of the values enshrined in Article 2 or 3 of the Convention.

[1] “ As regards a civil action to obtain redress for damage sustained as a result of the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia , nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005, and Estamirov and Others , cited above, § 77). Accordingly, the Court confirms that the applicants were not obliged to pursue civil remedies. ”