PARTLY CONCURRING AND PARTLY DISSENTING OPINION

BY MR. L. LOUCAIDES

     I agree with the findings of the majority of the Commission

regarding the violation of Article 2 of the Convention in this case.

However, I believe that I must place on record my position that an

objective test of state responsibility as explained in my dissenting

opinion in the McCann, Farrell and Savage Case is the correct test in

examining responsibility under the Convention.

     It seems that in the above mentioned case the Court did not

address its mind to the specific legal question of whether state

responsibility under the Convention should be objective or subjective.

     In deciding such question regard must be had to the provisions

and objectives of the Convention as well as to the relevant principles

of international law. The terms of the Convention do not appear to

allow room for the application of the subjective responsibility

concept: they do not condition the obligation of the High Contracting

Parties to secure the human rights defined in the Convention so as to

depend on the good or bad faith of the parties; mistakes or errors do

not seem to have a place as a justification or defence for failing to

secure the rights in question.

     Article 1 of the Convention provides:

          The High Contracting Parties shall secure to everyone

     within their jurisdiction the rights and freedoms defined in

     Section 1 of this Convention."

     Article 2 of the Convention as far as it relates to the present

case provides:

     "1.  Everyone's right to life shall be protected by law

          ....

     2.   Deprivation of live shall not be regarded as inflicted in

     contravention of this Article when it results from the use of

     force which is no more than absolutely necessary:

          a.   in defence of any person from unlawful violence;

          b.   in order to effect a lawful arrest or to prevent the

               escape of a person lawfully detained;

               ......".

     The formulation of the above rules support the view that the test

of whether there is a breach of the obligations set out therein is

objective. A violation should be considered as sufficiently established

if it is proved that the State concerned has actually caused the

interference with the right or failed to secure it, in circumstances

that do not satisfy strictly the conditions of any permissible

justification prescribed in the Convention. It is useful to add here

that the Court in the McCann, Farrell and Savage Case confirmed the

interpretation of the Commission that the text of Article 2, read as

a whole, demonstrates that paragraph 2 does not primarily define

instances where it is permitted intentionally to kill an individual,

but describes the situations where it is permitted to "use force" which

may result, as an unintended outcome, in the deprivation of life.

     Objective responsibility rests on the doctrine of the voluntary

act: provided that agency and causal connection are established there

is a breach of duty by result alone. To be contrasted with this

approach is the subjective responsibility concept (the "fault"

principle) which rests upon proof of guilty intention ("dolus") or

negligence on the part of the State agents concerned as a prerequisite

for State responsibility. In the case of objective responsibility

defences such as good faith, lack of negligence or bona fide reasonable

mistakes do not exoranate the State and consequently they are

irrelevant. In international law nowadays doctrine and practice support

the objective theory and this is right taking into account the

practical need for an effective application of international law.

     The special nature of the Convention, i.e. that the obligations

provided therein "are essentially of an objective character, being

designed rather to protect the fundamental rights of individual human

beings from infringement by any of the High Contracting Parties than

to create subjective and reciprocal rights for the High Contracting

Parties themselves", is not a sufficient basis to distinguish the

Convention for the purposes of the question in issue from other norms

of international law which govern rights and obligations between

States; the obligations under the Convention remain obligations of

international law in the nature of "a collective guarantee by the High

Contracting Parties of the rights and freedoms set forth in the

Convention [for the maintenance of] the public order of Europe".

     The fact that a mistake can exculpate the agents of the State

labouring under it from personal criminal responsibility under the

domestic law cannot be sufficient to exculpate also the State from

responsibility under the Convention. As rightly observed by the

Commission in the Ribitsch case  "... criminal law responsibility

under the national legal systems should not be confused with the

international law responsibility under the Convention. The Commission

is only concerned with the latter".

     In the Ireland v. United Kingdom the Commission applied the rule

imputing unauthorised acts of its agents to the State by express

reference to what prevails "in connection with responsibility under

international law generally".

     In the light of the above, I hold the opinion that State

responsibility under the Convention should be governed by the same

principles which apply for the determination of State responsibility

under international law and that the objective test is the one that

should be applicable in this case.

     Accordingly it is not necessary to examine whether the various

state organs involved in this case acted negligently or under a bona

fide reasonable mistake or not. These are matters pertaining to a

subjective test of responsibility; they may be relevant in examining

criminal or civil responsibility under the municipal law but they are

not relevant as regards responsibility under the Convention.

     Having applied the objective test of responsibility on the facts

of the present case I have arrived at the same conclusions as the

majority of the Commission and I find that in the present case there

has been a violation of Article 2 of the Convention through the use of

lethal force which was not objectively justified as absolutely

necessary for any of the purposes set out in para. 2 (a) and (b) of

that Article.

     However, I must state that even on the basis of the subjective

test of responsibility I would still come to the conclusion that

Article 2 was violated in this case for the reasons set out in the

Report.

     As regards Article 6 para. 1 of the Convention I find myself in

disagreement with the majority.

     The majority bases its conclusion that there has been no

violation of Article 6 para. 1 on the fact that the applicants had for

more than a month the possibility to institute civil proceedings for

the deaths of their relatives by accepting an offer on behalf of the

respondent Government to cover any costs of their advocates in respect

of such proceedings. This offer was withdrawn on 20 July 1995.

     However, it is an undisputed fact that the offer in question was

not based on any scheme of legal aid under the laws of Cyprus as these

laws do not provide for legal aid for the institution of civil

proceedings. In effect the offer in question amounted to an offer for

an ex gratia payment which depended on the goodwill of the respondent

Government, i.e. the opponent of the applicants in the eventual

relevant civil proceedings. Such goodwill cannot be questioned.

Nevertheless, an ex gratia offer for legal aid, especially when it

originates from the other party of the relevant judicial proceedings,

by its very nature lacks the essential objective safeguards for an

effective legal aid, i.e. the grant by a body independent of the

parties to the proceedings of sums to meet the reasonable costs of the

proceedings in accordance with scales fixed by law and with the

possibility of judicial review in the event of a dispute. In other

words an effective legal aid presupposes that it is regulated by law

and that if the relevant conditions are satisfied it can be claimed as

of right and not ex gratia.

     For the above reasons, I find that in the absence of a legal

right of the applicants to an effective legal aid, the applicants have

no effective right of access to the courts for the determination of

their civil rights and obligations and, therefore, in the present case

there has been a violation of Article 6 para. 1 of the Convention.

                                                 (Or. English)