PARTLY DISSENTING OPINION OF JUDGE KELLER

1. The case concerns the disappearance of five close relatives of the applicants during a military operation in south-east Turkey in 1996. The application forms part of a group of disappearance cases and hence of a category of the most serious human rights violations. The Court unanimously found a violation of Article 2 of the Convention in its procedural aspect as the State had failed to conduct an effective investigation into the circumstances of the disappearance of the applicants ’ relatives.

2. Additionally, the Court unanimously found a violation of Article 13. The applicants specifically complained that they had not had an effective remedy enabling them to obtain an investigation into the disappearance and subsequent deaths of their relatives and to seek compensation (§ 73). Up to this point, I am in full agreement with my fellow judges.

3. My disagreement concerns only the amount granted under Article 41 of the Convention in respect of non-pecuniary damage. The Court awarded EUR 20,000 to each family that made a claim (for details, see § 83 et seq). This amount appears to be low in view of the Court ’ s findings of two violations of the Convention, i.e. breaches of Article 2 and Article 13.

4. The Court has frequently been criticised for its non-transparent practice in granting awards in respect of pecuniary and non-pecuniary damage. [2] This dissenting opinion is not the place to respond to such criticism. However, it seems to me to be a logical imperative that, where violations of several substantive provisions of the Convention have been found, these should be taken into consideration under Article 41. Obviously, the Court does so under normal circumstances (see, for example, the case of Güvec v. Turkey, no. 70337/01 , ECHR 2009 (extracts), in which the Court, in calculating non-pecuniary damages for the purposes of Article 41, explicitly had regard to the “multiple violations” of the Convention it had previously found (§ 140)). However, all attempts at a systematic comparison of the amounts granted under Article 41 have failed for various reasons: differences in living costs and currencies, inflation, time and – last but not least – the ex aequo et bono nature of the compensation awarded under Article 41.

5. Be that as it may, it appears that the Court does not follow the above-mentioned practice regarding “multiple violations” where Article 13 is concerned, on the ground that a violation of Article 2 (or Article 3) in its procedural limb and a violation of Article 13 are very similar. Here I disagree.

6. It is true that Article 13 contains an ancillary guarantee, that is to say, it can be invoked only together with another Convention right (see Diallo v. the Czech Republic, no. 20493/07, 23 June 2011, § 55; and Bubbins v. the United Kingdom , no. 50196/99, 17 March 2005, ECHR 2005-II (extracts), § 170 ). This does not mean, however, that another substantive Convention right has to be violated as a pre-condition for an issue to arise under Article 13. Neither does it mean that Article 13 is a kind of second-class human right. On the contrary, Article 13 is a fully fledged human rights guarantee under the Convention.

7. The Court has slowly developed the independent nature of Article 13. A milestone in this regard was the Grand Chamber judgment in Kudła v. Poland (no. 30210/96, 26 October 2000, ECHR 2000-XI ), in which the Court emancipated Article 13 from Article 6 § 1 of the Convention by finding that “ the requirements of Article 13 are to be seen as reinforcing those of Article 6 § 1, rather than being absorbed by the general obligation imposed by that Article ” (§ 152). Although the right to an effective remedy and the right to a speedy procedure seem to be similar at first glance, the holding in Kudła is very much justified. Indeed, it is necessary to separate two matters: one is the right to a speedy procedure as such, and the second is the possibility to effectively challenge the State ’ s failure to guarantee that right.

8. The same holds true for the relationship between the procedural obligations under Articles 2 and 3, on the one hand, and the right to an effective remedy on the other. In fact, the Court has rightly stressed the vital role of Article 13 in disappearance cases in its past case-law, including in the new leading case of El-Masri v. the Former Yugoslav Republic of Macedonia (no. 39630/09, [GC], 13 December 2012, §§ 256 and 257 ). Precisely because of the pre-eminent importance of the possibility for the disappeared person ’ s relatives to be able to effectively challenge the State ’ s responsibility, the Court has frequently found an additional violation of Article 13 in such cases (see, for example, Er and Others v. Turkey, no. 23016/04, 31 July 2012, §§ 110–113; Ipek v. Turkey, no. 25760/94, 17 February 2004, ECHR 2 004-II (extracts), § 198; Togcu v. Turkey, no. 27601/95, 31 May 2005, §§ 137–140; and Alikhadzhiyeva v. Russia , no. 68007/01, 5 July 2007, §§ 93 and 94). The Court ’ s case-law, however, is not consistent in this regard (see, for example, Varnava and Others v. Turkey , nos. 16064/90, 16065/90, 16066/90..., [GC], 18 September 2009, § 211). Where no State responsibility has been established, the Court usually does not find it necessary to examine the merits of a complaint under Article 13 separately, and therefore does not find a breach of that provision (see Movsayevy v. Russia, no. 20303/07, 14 June 2011, § 107).

9. Once we accept the full-fledged nature of Article 13, it is clear that a violation of the right to an effective remedy should be considered as an additional violation of the Convention for the purposes of Article 41.

10. The case at hand illustrates the importance of this legal consequence. Under Article 13, the applicants complained that they had not had an effective remedy by which they could obtain an investigation into the disappearances and seek compensation (§ 73). The independent nature of the Article 13 claim and the subsequent finding of a violation of that Article should be taken into consideration for the purposes of Article 41 because the applicants should have been compensated for their loss under national law as well.

11. Support for this conclusion can be found in the case of Kalinkin and Others v. Russia (nos. 1 6967/10, 12850/10, 13683/10... , 17 April 2012) , in which, in awarding non-pecuniary damages under Article 41, the Court specifically took into account the fact that there had been both a violation of Article 6 § of the Convention and a continuing violation of Article 13 (§ 60). Though these cases did not concern disappearances, the similarity of the Kalinkin judgment with the Court ’ s reasoning in Kud ł a v. Poland (cited above) is apparent. The Kalinkin judgment might indicate an emerging practice of the Court regarding the consideration of violations of Article 13 for the purpose of determining non-pecuniary damages.

12. The current practice of the Court concerning the independent nature of an Article 13 violation in conjunction with violations of Articles 2 and 3 as applied in the case at hand demonstrates that the right to an effective remedy is still not conceived as a fully fledged human right. The time has come for a change, particularly also under Article 41.

[1] The Kurdistan Workers’ Party, an illegal organisation.

[2] See, for example, Harris David / O’Boyle Michael / Warbrick Colin (Eds.), Law of the European Convention on Human Rights, 2 nd Edition, Oxford University Press: Oxford 2009, p. 856, and Karpenstein Ulrich / Mayer Franz C., EMRK: Konvention zum Schutz der Menschenrechte und Grundfreiheiten – Kommentar , C. H. Beck: München 2012, p. 581, N. 21 .