ELCI AND OTHERS v. TURKEY JUDGMENT 129 PARTLY DISSENTING OPINION OF JUDGE GÖLCÜKLÜ (Translation) To my great regret, I cannot share the opinion of the majority of the Court in the present case in respect of the application of Articles 3 and 41 of the Convention. Let me explain: 1. The majority found a violation of Article 3 of the Convention in both its substantive and procedural aspects, which conclusion I cannot accept. There is no evidence in the case file to substantiate the applicants' complaints of torture or other ill-treatment, apart from their declarations, which are only those that anyone taken into custody puts forward either at the time or in preparation of his / her defence once released. In similar cases which have already been tried, one finds the same descriptions of acts “characterised” as torture or ill-treatment; it is not surprising, therefore, that the applicants in the present case repeat such allegations one after the other in the form of this well known cliché. However, the majority find such allegations “credible and consistent” and that the claims were “credible as a whole” (paragraphs 639-641 above) – vague terminology when there is not the slightest element of material proof to substantiate it; as if the mere repetition by 10 to 15 people of an agreed text could be deemed “credible and consistent”! A number of untruths repeated and embellished one after the other do not constitute a real truth. In sum, the reasoning of the majority, on which their finding of a violation is based, is nothing more, in my opinion, than supposition, speculation and misplaced deduction. This is why, I think, they had to look for support in “international materials” (paragraph 596 above), which are irrelevant when one examines an allegation of torture, complaint or material fact, where one must prove with certainty that the events did actually occur. The fact that ill-treatment of detainees in Turkey had been found by certain institutions is not a convincing argument on which to rely in the present case. 2. The respondent Government are criticised for failing to provide proof in rebuttal of the applicants' allegations. However, it is difficult to understand how one can disprove a negative fact, or a fact which never occurred. 3. The respondent Government are also criticised for the inactivity of the domestic judicial authorities regarding the applicants' allegations, but from the outset I have endeavoured to explain that the applicants presented no prima facie evidence in support of their complaints. How can one initiate an inquiry or a prosecution when no such evidence is disclosed by the complainants in order to set in motion the judicial apparatus?