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In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment: (a) partly dissenting opinion of Mr Türmen; (b) partly dissenting opinion of Mrs Mularoni. L.W. P.J.M.

PARTLY DISSENTING OPINION OF JUDGE TÜRMEN I agree with the majority that there has been a violation of Article 2 in its substantive aspect as the authorities failed to take appropriate steps to safeguard the lives of those within their jurisdiction. However, I regret that I am unable to agree with the majority that there have also been violations of Article 2 in its procedural aspect, Article 1 of Protocol No. 1 and Article 13. 1. Article 2 (procedural aspect) The judgment did not find any problem with the investigation (paragraph 113), which identified those responsible for the incident and brought them to justice. The two mayors were convicted under Article 230 of the Turkish Criminal Code. However, the majority found a violation of the procedural aspect of Article 2 on the ground that the trial courts did not secure the full accountability of State officials and did not implement effectively the provisions of domestic law – that is, because the national courts applied Article 230 of the Criminal Code (negligence in the performance of public duties) and not Article 455 (death through carelessness or negligence). I do not agree with this conclusion for the following reasons. First of all, the majority are of the opinion that there has been a violation of the procedural aspect of Article 2, not because of the lack of an effective investigation, but because of the judicial proceedings or, more precisely, the application of domestic legislation. This is a wholly new approach, which does not have any precedent in the Court’s case-law. If the majority hold the view that the remedy that exists under domestic law is not an effective one, then this raises a problem under Article 13, not under Article 2. Secondly, it seems contradictory to state, on the one hand, that the investigation is an effective one and, on the other, that the decision of the domestic court violates the Convention. Such an approach ignores the fact that the decision of the domestic court is based on the facts that are determined by the investigation. How is it then possible for the Court to criticise the decision of the domestic court while accepting the effectiveness of the investigation? In circumstances where the investigation is effective, to conclude that the procedural aspect of Article 2 has been violated would require an examination of the facts, which would make the Court a fourth-instance court. It is well-established case-law that the establishment of the facts and the interpretation and application of domestic law are a matter for the national authorities (see, inter alia, Kemmache v. France (no. 3), judgment of 24 November 1994, Series A no. 296 C, pp. 86-87, § 37, and Kaymaz v. Turkey (dec.), no. 37053/97, 16 March 2000).

Thirdly, the majority do not attach any weight to the fact that the applicant by his own behaviour contributed to the creation of a risk to life and caused the death of nine members of his own family. It is not contested that the applicant (a) built an illegal dwelling on land that did not belong to him, and (b) did so at a very close distance to the rubbish tip. The negligence of the authorities and that of the applicant constitute essential elements of causality. They are both conditions sine qua non of the harm caused. Neither of them alone would have been sufficient to cause the harm. The death of nine people was due to the negligence of both the authorities and the applicant. Apart from this, an independent offence was committed by the mayors, namely negligence in the performance of their duties. The Fifth Division of the Istanbul Criminal Court, in its judgment of 4 April 1996, took all these elements into account and decided to apply Article 230 of the Criminal Code (negligence in the performance of public duties) and not Article 455 (homicide by negligence). In fact, both mayors were convicted under Article 230. The Court of Cassation upheld the judgment. The judgment speaks of the responsibility of both mayors and of the applicant for the death of nine people. The judges of the Istanbul Criminal Court also took into consideration the experts’ report, which apportioned liability for the accident as follows: 2/8 to Istanbul City Council, 2/8 to Ümraniye District Council and 2/8 to the slum inhabitants “for putting the members of their families in danger by settling near a mountain of waste” (see paragraph 23 of the judgment). It is therefore not true that, as is stated in paragraph 116 of the judgment, the domestic court in its judgment did not acknowledge “any responsibility for failing to protect the right to life”. The domestic court weighed up the responsibilities of the applicant and the mayors and reached a conclusion within its margin of appreciation. This is also admitted by the majority, when it is stated in paragraph 116 that “it is not for the Court to address such issues of domestic law concerning individual criminal responsibility, that being a matter for assessment by the national courts, or to deliver guilty or not-guilty verdicts in that regard”. However, such an express confirmation of the boundaries between the national courts and the Strasbourg Court, which is in line with the Court’s case-law, makes it more difficult to understand the reason for finding a violation of the procedural aspect of Article 2. In the opinion of the majority, issues of domestic law concerning individual criminal responsibility are a matter for assessment by the national courts, but if the national court decides for good reasons to apply one Article of the Criminal Code rather than another, this may constitute a lack of protection by law safeguarding the right to life. Fourthly, it is not clear from the judgment why the majority decided to change the principles established in the Court’s case-law regarding the absence of a criminal-law remedy in cases of unintentional loss of life. In Calvelli and Ciglio v. Italy ([GC], no. 32967/96, ECHR 2002-I), Mastromatteo v. Italy ([GC], no. 37703/97, ECHR 2002-VIII), and Vo v. France ([GC], no. 53924/00, ECHR 2004-VIII), the Court expressed the view 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”. In this particular case, the majority have departed from that case-law. In paragraph 93 of the judgment, the majority express the view that “in areas such as that in issue [it may be presumed that what is meant is environmental damage], the applicable principles are rather to be found ... in relation notably to the use of lethal force”. Both in Calvelli and Ciglio and in the present case, what is in issue from the perspective of criminal law is death caused by negligence. As far as the degree of negligence is concerned, it is difficult to make a distinction between the negligence of a gynaecologist who knew that the birth of the child carried a high risk since the mother was a level-A diabetic and the foetus was too large for a natural birth, and yet not only failed to take precautionary measures but was also absent during the birth (Calvelli and Ciglio), and that of two mayors who ought to have known from the experts’ report that the rubbish tip carried a high risk and yet failed to take any measures to prevent such an accident. 2. Article 1 of Protocol No. 1 In respect of Article 1 of Protocol No. 1, I fully subscribe to the views expressed by Judge Mularoni in paragraph 2 of her partly dissenting opinion. It is noteworthy that the Court, immediately after Kopecký v. Slovakia ([GC], no. 44912/98, ECHR 2004-IX), where it consolidated its case-law regarding the meaning of “possession” under the Convention, has now introduced a new criterion for the determination of a possession – the tolerance of the national authorities. Such a new concept, I fear, may lead to undesirable consequences, such as extending the Convention’s protection to illegally constructed buildings, and may encourage illegal situations. 3. Article 13 The judgment, having examined the effectiveness of the criminal-law remedy under Article 2, limits the scope of its examination of the Article 13 complaint to the effectiveness of the administrative-law remedy. In a judgment of 30 November 1995, the Istanbul Administrative Court ordered the national authorities to pay the applicant and his children 100,000,000 Turkish liras (TRL) for non-pecuniary damage and TRL 10,000,000 for pecuniary damage. The decision was served on the applicant. As is clearly stated in the Chamber’s judgment, “... the applicant has never requested payment of the compensation awarded him, a fact that he did not dispute moreover” (paragraph 117 of the Chamber judgment; this fact has been omitted in the Grand Chamber’s judgment). The applicant did not complain about the non-payment of the compensation because he did not wish to receive it. Had he contacted the mayor’s office and given his bank account number, he would have received the compensation awarded. How is it possible for the authorities to make the payment without any knowledge of the applicant’s address or bank account? It is therefore not correct to hold the Government responsible for the non-payment of the compensation. As to the length of the administrative court proceedings, the majority express the view that the proceedings lasted four years, eleven months and ten days, which renders the administrative court remedy ineffective. I do not agree with this view. The proceedings lasted four years and eleven months before four levels of jurisdiction. The facts of the case reveal that there were not any significant periods of inactivity attributable to the national courts. The majority hold the view that there was “a lack of diligence on the part of the domestic court”. However, no reason is given for this conclusion. It is reached without examining the court proceedings and without applying the Court’s well-established criteria regarding the length of proceedings, namely the complexity of the case, the conduct of the applicant and the conduct of the judicial authorities. In conclusion, there has been no violation of Article 13. 4. Article 41 I agree with the amount of just satisfaction to be paid to the applicant. However, I disagree with the reasoning in calculating the award. It seems that, in calculating the amount, all nine members of the applicant’s household have been given equal weight and are described as “close relatives” of the applicant (paragraph 167 of the judgment). However, reading paragraph 3 of the judgment, it becomes clear that one of these “close relatives”, Sıdıka Zorlu, was the “concubine” of the applicant. This is perhaps the first time that the Court, in deciding the amount to be paid by way of just satisfaction, has taken into account an applicant’s concubine and given her the same weight as his wife and children. Such an approach may have undesirable implications for the Court’s case law in the future.

PARTLY DISSENTING OPINION OF JUDGE MULARONI (Translation) 1. I fully agree with the reasoning and conclusions of the majority regarding Article 2 of the Convention in both its substantive and its procedural aspects. 2. However, I consider that Article 1 of Protocol No. 1 is not applicable in the present case. This provision guarantees the right of property. In its case-law, the Court has clarified the concept of possessions, which may cover both “existing possessions” and assets, including claims, in respect of which the applicant can argue that he has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a possession within the meaning of Article 1 of Protocol No. 1 (see, among other authorities, Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, p. 23, § 50; Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 83, ECHR 2001-VIII; and Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX). It was not disputed before the Court that the applicant’s dwelling had been erected in breach of Turkish town-planning regulations and had not conformed to the relevant technical standards, or that the land it had occupied belonged to the Treasury (see paragraph 125 of the judgment). The applicant was unable to prove that he had a property right over the land in question or that he could legitimately have applied to have the property transferred to him under section 21 of Law no. 775 of 20 July 1966 or the successive amendments to that law. The majority acknowledge that “the Court cannot conclude that the applicant’s hope of having the land in issue transferred to him one day constituted a claim of a kind that was sufficiently established to be enforceable in the courts, and hence a distinct ‘possession’ within the meaning of the Court’s case-law” (see paragraph 126 of the judgment in fine). However, instead of drawing the appropriate conclusions from this reasoning and finding that Article 1 of Protocol No. 1 was not applicable, they adopted a new admissibility criterion for this Article: the relevant authorities’ tolerance of the applicant’s actions for almost five years, leading to the conclusion that those authorities acknowledged de facto that the applicant and his close relatives had a proprietary interest in their dwelling and movable goods (see paragraph 127), which was of a sufficient nature and sufficiently recognised to constitute a substantive interest and hence a “possession” within the meaning of the rule laid down in the first sentence of Article 1 of Protocol No. 1 (see paragraph 129). I am unable to agree with this reasoning.

In my opinion, neither implicit tolerance nor other humanitarian considerations can suffice to legitimise the applicant’s action under Article 1 of Protocol No. 1. Nor should these factors be used by the Court to justify a conclusion which is tantamount to removing applicants (Mr Öneryıldız in this case, but also any future applicants who have erected buildings illegally) from the ambit of national town-planning and building laws and, to an extent, indirectly condoning the spread of these illegal dwellings. I consider that the majority’s conclusion that Article 1 of Protocol No. 1 is applicable might have paradoxical effects. I am thinking, for example, of the splendid villas and hotels built illegally on the coast or elsewhere which, under national legislation, cannot be acquired by adverse possession; will the mere fact that the relevant authorities have tolerated such buildings for five years now be sufficient to maintain that those who built them in flagrant breach of the law have an arguable claim under Article 1 of Protocol No. 1? Such a conclusion would make it much more difficult for the authorities (at either national or local level) to take any action to ensure compliance with town-planning laws and regulations where, for instance, they have inherited an illegal situation as a result of a period of administration by less scrupulous authorities. Lastly, I find it hard to accept that where buildings have been erected in breach of town-planning regulations, States henceforth have a positive obligation to protect a right of property that has never been recognised in domestic law and should not be, since in many cases it could be exercised to the detriment of the rights of others and the general interest. I have therefore concluded that Article 1 of Protocol No. 1 is not applicable and, consequently, has not been breached. I should add that even if I had concluded that Article 1 of Protocol No. 1 was applicable – which, I repeat, I did not – I would have considered, unlike the majority (see paragraph 137 of the judgment), that the applicant could no longer claim to be a victim. In my view, the allocation of subsidised housing on very favourable terms may be regarded as an acknowledgment in substance of a violation of Article 1 of Protocol No. 1, such a measure being probably the best form of redress conceivable in the present case. 3. Having regard to the circumstances of the case and to the reasoning which led the Court to find a violation of Article 2 of the Convention in its procedural aspect, I consider that it was not necessary to examine the case under Article 13 as regards the complaint under the substantive head of Article 2. 4. In view of my conclusions under Article 1 of Protocol No. 1, I consider that there was no violation of Article 13 as regards the complaint under Article 1 of Protocol No. 1.