PARTLY CONCURRING PARTLY DISSENTING OPINION OF MR L. LOUCAIDES JOINED BY MR E. BUSUTTIL

I agree with the majority on all points except as regards the finding that the eleven missing men died during their deten tion by the security forces in circumstances that the respondent Government must be regarded as liable for their deaths under Article 2 of the Convention.

There is no doubt that the eleven missing men were detained by the security forces and that nothing was heard about them for a period of five and a half years. The authorities have consistently denied the fact of their detention and no official trace of their detention exists. Under these circumstances and taking account of the evidence regarding the tr eatment of these persons by the security forces it is reasonable to assume that most probably these eleven persons have died. But a finding to the effect that these persons have died in detention, for purposes of Article 2 of the Convention, cannot rest on probabilities but must be a conclusion beyond reasonable doubt i.e. a finding which is inconsistent with any other reasonable possibility.

It is true that the respondent Government did not come with any explanation as to the fate of these persons. This means that the Government remain accountable for their fate. Thus the respondent Government ARE responsible for a continuing violation of Article 5 of the Convention. The same approach was followed by the Commission in the recent inter-state case of Cypru s v. Turkey regarding the missing Greek Cypriots who were last seen in Turkish custody (see para. 213 of Application no. 25781/94). In the latter case and in the Kurt case (Eur. Court HR, Kurt v. Turkey judgment of 25 May 1998, Reports of Judgments and Dec isions 1998-III, p. 1152),  there was no concrete evidence proving the killing or death of the missing persons. In the Kurt case both the Commission and the Court found that the evidence was not sufficient to substantiate the claim that the missing persons were, beyond reasonable doubt, dead and proceeded to a finding of a violation of Article 5 of the Convention by virtue of a lack of effective investigation of the authorities of the respondent State as to the fate of the missing persons.

I support a si milar approach in the present case in the absence of concrete evidence as to the killing of the eleven missing persons. In fact I find it difficult to distinguish the present case from the cases referred to above. Furthermore, I find it unsafe to rely on w hat the majority has described as “its increased experience of the conditions pertaining in south-east Turkey at the relevant time”. Such conditions may somehow support an inference that the persons in question were killed but at the same time one cannot, in the light of such conditions, exclude the possibility of a continuing illegal detention of these persons or the possibility of them hiding after an escape. In both cases it is understandable that the respondent Government may refuse to account for the f ate of these persons. Still, as I stated above, the respondent Government remain continually accountable for the fate of the missing persons in question under Article 5 of the Convention.

[1] The term “former” refers to the text of the Convention before t he entry into force of Protocol No. 11 on 1 November 1998.

[2] This area is referred to variously as Åženyayla, the Åžen plateau or the Åžen pastures.

[3]   This appears to be a misspelling of Gurnik.

[4]   A number of early investigation documents list in addition t o the eleven missing men a twelfth individual Behçet Taç, which appears to be a confusion of the names of Behçet Tutu  and Ümit Ta  .

[5]   See n.4.

[6]   See n.4.

[7]   The applicant’s grandfather and Celil’s grandfather were brothers.

[8]   He showed some confusion a s to where he was before and during the operation. At another point, he seemed to explain that before coming to Kulp, he had been at Mu  .

[9] See para. 77 - Abdo Yamuk was referred to as Abducelil or Celil by a number of witnesses.

[10] While he referred to arr iving during the month of September, it was explained by himself and the Kurdish interpreter that he referred to the Kurdish or regional calendar, where months began on the 22 nd of the month and ended on the 21 st . The Government Agent disputed that a Kurdi sh calendar existed, stating that there was only an Islamic calendar which did not include the month of September in any case.

[11] The applicant used a word that refers to sister-in-law, aunt-in-law, or elderly bridesmaid.

[12]   The name of this witness is cit ed in some documents as Abdurrahman Yerlikaya.

[13]   At another point, he seemed to say that he was in Kulp when the operation was on.

[14] The general volunteered this information in a general explanation before any question had been put to him about the allege d transporting of civilian prisoners.

[15] While the witness appeared to contradict herself stating at first that the men were placed on the helicopter while tied up and then stating that they were untied, in answer to the Government Agent she specified that their hands remained bound but their feet were untied before they got onto the helicopter.

[16] She indicated visually a distance across the library in which the hearing was taking place.

[17] Mehmet Emin Akdeniz stated that it was 5 to 6 kilometres from Kepir.

[18]   see eg. the petitions of 12 November 1993 (para. 125), 14 December 1993 (para. 134)

[19] The applicant, Mehmet Emin Akdeniz’s petitions to various authorities also specified that it was at  en that his elder brother had disappeared - see paras. 123, 128. See also the statement of Sabri Tutu  to the Diyarbakır public prosecutor referring to the operation being carried out on  enyayla pastures: para. 177.

[20] Accounts vary slightly. Ali Yerlikaya in his statement of 25 December 1993 states that nine persons we re kept, Abdurrahim Yerlikaya named eight persons (he omitted Bahri  im  ek, who was however included in his statement of 25 December 1993 that referred to nine persons). Kele   im  ek also confirmed that his brother was taken in this group.

[21] See also Ali Yerlikaya’s statement of 25 December 1993

[22]   In his statement of 31 December 1993, he referred to being released on the third day with other detainees.

[23]   While the applicants submit that Kemal Ta  was also present at this visit, the principal reference in the evidence is the oral evidence of Süleyman Yamuk who referred to Kemal being present. Kemal Ta  did not mention this himself to the Delegates, though mentioned talking to the Kulp public prosecutor and the Kulp gendarme commandos. See however his state ment of 25 December 1993 (para. 98) which states that he saw the District Governor.

[24]   It may be noted that the application was however only communicated to the respondent Government on 27 June 1994.