CONCURRING OPINION OF SIR NICOLAS BRATZA

I agree with the conclusions and reasoning of the Commission on each of the Articles invoked and only add some supplementary remarks since we are departing from the judgment of the Court i n the Kurt case (Eur. Court H.R. Kurt v. Turkey judgment of 25 May 1998 Reports of Judgments and Decisions 1998-III , p. 1152) in concluding that the failure of the authorities to protect the lives of the applicants’ eleven missing relatives, and the furthe r failure of the authorities to investigate their disappearances effectively, gave rise not merely to an aggravated violation of Article 5 of the Convention, but to a violation of Article 2.

In the Kurt case, the Commission found that, in the absence of any evidence as to the fate of Üzeyir Kurt subsequent to his detention in the village, it was inappropriate to draw the conclusion that he had been the victim of a violation of Article 2.  The Commission accepted that, where there had been a disappearance in State custody, the strong inference might be that this had been fatal to the individual concerned and in this regard noted that, in a series of cases dealing with disappearances, where a person had been missing for a long period, the Inter-American Cour t of Human Rights had found violations of the right to life where the length of time elapsed and the context in which the victim disappeared created a reasonable presumption that he had been killed.  However, the Commission also observed that in one of the se cases the Inter-American Court had found a systematic practice of disappearances associated with ill-treatment and extra-judicial executions, whereas in two other cases there was some evidence of an execution having been carried out.  It was the view of the Commission that there was no material before it which would entitle it to find the existence of such a practice in Turkey and no evidential indication as to the ultimate fate of the applicant’s son which would allow it to draw the inference that he ha d been killed.

The Court agreed, observing that it was required to scrutinise carefully

“...whether there does in fact exist concrete evidence which could lead it to conclude that her son was, beyond reasonable doubt, killed by the authorities either w hile in detention in the village or at some subsequent stage.” (loc. cit at p.1182, para. 107)

The Court further noted that in those cases where it had found that a Contracting State had a positive obligation under Article 2 to conduct an effective inves tigation into the circumstances surrounding an alleged unlawful killing by agents of that State,

“...there existed concrete evidence of a fatal shooting which could bring that obligation into play (see the ...McCann and Others judgment; and the Kaya jud gment of 19 February 1998, Reports 1998-1).” (ibid.)

The Court observed that the applicant’s case rested entirely on presumptions deduced from the circumstances of her son’s initial detention, bolstered by more general analyses of an alleged officially t olerated practice of disappearances and associated ill-treatment and extra-judicial killing of detainees in the respondent State.  These arguments were not considered by the Court to be in themselves sufficient to compensate for the absence of more persuas ive indications that the applicant’s son died in custody, while the evidence adduced by the applicant did not, in the view of the Court, substantiate her claim of a practice of violation of Article 2.

Since its judgment in the Kurt case, the Court has ag ain examined the issue of a disappearance in south-east Turkey in the case of Cakıcı.  The Court’s recent judgment in that case reveals in my view a development in the Court’s approach to the issue.

The Commission in the Cakıcı case found, in addition to a violation of Article 5 of the Convention, a violation of Article 2.  In arriving at this finding, the Commission placed reliance on the fact that Ahmet Cakıcı had been seen by a witness in detention in a bad state, with injuries to his head and ribs; th at the unacknowledged detention of Ahmet Cakıcı had occurred more than four years before; and that in official terms Ahmet Cakıcı was regarded as dead, the Government claiming that he had been killed in a clash in February 1995 and that his identity card h ad been found on his body.  In these circumstances, the Commission concluded that there was a very strong possibility that Ahmet Cakıcı was no longer alive and that the situation disclosed a failure to comply with the obligation under Article 2 of the Conv ention that everyone’s right to life should be protected by law (Comm. Rep. paras 252-3).

The Court in its judgment accepted that Ahmet Cakıcı had been the victim of unacknowledged detention and serious ill-treatment and noted that very strong inferences could be drawn from the authorities’ claim that his identity card had been found on the body of a dead terrorist.  The Court went on to find on this basis

“.. that there is sufficient circumstantial evidence based on concrete elements, on which it may b e concluded beyond reasonable doubt that Ahmet Cakıcı died following his apprehension and detention by the security forces.” (Judgment of 8 July 1999, para. 85)

In this regard, the Court distinguished the Kurt case in which it had found that “no other el ements of evidence existed as regarded [Üzeyir Kurt’s] treatment or fate” subsequent to his detention (ibid.).  The Court concluded that “ as Ahmet Cakıcı must be presumed dead following an unacknowledged detention by the security forces”, the responsibili ty of the respondent State for his death was engaged.  It further found that “having regard to the lack of effective procedural safeguards disclosed by the inadequate investigation carried out into the disappearance and the alleged finding of Ahmet Cakıcı’ s body”, the respondent State had failed in its obligation to protect his right to life and that there had been a violation of Article 2 on this account also (ibid., para. 87).

In the present case, as in Kurt, there is no “concrete evidence” that the app licants’ relatives are dead or that they were killed in custody.  However, I note that the same may be said in the case of Cakıcı, there being no solid evidence to show that the body alleged to have been found after a clash in fact belonged to Ahmet Cakıcı .  It is true that he was officially recognised as dead but this official acknowledgement seems to have depended entirely on the fact that his identity card was allegedly found on one of the bodies.  There was no identification of the body by any member of Ahmet Cakıcı’s family, who were not even informed of his alleged death until May 1996, some 15 months after the body was allegedly found.  Moreover, since no documents were provided by the Government relating to any identification of the body or release o f the body for burial, the Commission was not able to find it established that Ahmet Cakıcı had been killed as alleged or that his body was amongst those found following the clash.

By their very nature, cases involving disappearances following unacknowle dged detention in custody are unlikely to throw up any concrete evidence as to the fate of the person involved.  As the Inter-American Court observed in its judgment in the Velasquez-Rodriguez case:

“Circumstantial or presumptive evidence is especially i mportant in allegations of disappearances, because this type of repression is characterised by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim.” (Judgment of 29 July 1988, para. 131)

The central quest ion in each case of a disappearance of a person taken into custody is whether, having regard to all the elements of the case, there exists sufficiently strong circumstantial evidence to give rise to a presumption that the detainee has died.  These elements will include such matters as the circumstances of the taking into custody including the treatment of the detainee, the period which has elapsed since the person was last seen, whether the detention was recorded or acknowledged by the authorities concerned and whether any plausible explanation has been offered by the authorities as to the lack of trace of the detainee.

While there may be no concrete evidence of the death of the relatives of the present applicants, there is in my view, as in Cakıcı, “suffi cient circumstantial evidence, based on concrete elements” on which to conclude that the eleven men have died following their detention by the security forces.

In the first place, there is strong and consistent eye-witness evidence that the applicants’ r elatives were taken into custody and detained for a period at Kepir under guard, that they were kept apart by the security forces and not released with the other detained villagers, that they were ill-treated and that they were last seen being loaded onto helicopters.

Nearly six years have now elapsed since the eleven men were seen being taken away, since when the applicants have received no news of their fate.  As in several previous cases from south-east Turkey examined by the Commission (in addition to the Kurt and Cakıcı, see the Commission’s Reports in the cases of Timurtaş and Ertak), the detention of the men is not only unacknowledged but has been consistently and systematically denied by the authorities.  Moreover, as in the previous cases, the off icial inquiries which have been opened into the disappearances have revealed no trace of any of the men and provided no plausible explanation as to their whereabouts or as to their fate subsequent to their detention.

These factors, taken together, are in my view sufficient to give rise to a presumption that the eleven men died following their detention by the security forces in circumstances engaging the responsibility of the respondent State.  Moreover, as in Cakıcı, the lack of effective procedural safe guards disclosed by the inadequate investigation carried out into the disappearance of the applicants’ relatives amounted to a failure on the part of the State to protect their right to life and there was accordingly a violation of Article 2 of the Convent ion on this ground also.

(Or. English)