DISSENTING OPINION OF Mr F. MARTINEZ , Mrs J. LIDDY

AND Mr J.-C. GEUS

The Commission has not been able to establish whether Ramazan and Cemile Sarli were taken by the security forces or the PKK. Accordingly, their disappearance is not attributable to the authorities. Nonetheless, Article 5 requires the authorities to conduct a prompt and effective investigation into an arguable claim that a person has “disappeared” during detention (Kurt v. Turkey judgment, op. cit., p. 1185, para. 124). The Commission has found that an allegation was made by the family within a few days of the disappearance to the Tatvan public prosecutor that the security forces had detained the two missing people - an allegation which was repeated to the Bitlis public prosecutor on 31 January 1994. It appears however that the only investigative step taken by the public prosecutor in response was to contact the district gendarmerie command. Captain Ertugrul in replying that they were not in custody relied solely on his own knowledge. Accordingly, this only established that the two missing people were not entered in the district gendarme custody record.

The initial investigation by the Tatvan public prosecutor lasted only 18 days before he transferred the file to the Diyarbakir SSC. He considered that the material supplied by the gendarmes established the offences clearly without the need to seek additional evidence. However, the file did not include at that stage statements from two important eye-witnesses - Ahmet Sarli and Abdullah Milyas.  It is true that the evidence supporting the allegations that the disappearance involved the PKK was significant. However, a complaint of security force involvement had been made and no steps were taken to clarify the basis of that complaint eg. by seeking further evidence from the family, many members of whom had been present during the incident. The complaint received only cursory attention and was almost immediately discounted. The further evidence gathered in the proceedings before the Commission indicates that the accounts given by the security forces were contradictory, with an apparent effort to conceal the fact that an operation took place at the village on the night in question. The standard form operation report, a copy of which was addressed to the Tatvan public prosecutor, also placed the accounts of the shooting at the school in an ambiguous light. None of these elements received any scrutiny by the public prosecutors involved in the case.

We note that a statement was later obtained from Ahmet Sarli on 11 January 1995. This step, taken more than a year after the disappearance, is not sufficient to remedy the lack of expedition and depth in the authorities’ response to the complaints. In the circumstances we consider that there has been neither a prompt nor an effective inquiry into the circumstances of the disappearance of Ramazan and Cemile Sarli.  We conclude that in this respect the applicant’s children have been deprived of the guarantees of Article 5 in respect of their unaccounted disappearance.  Accordingly, we have voted for a violation of that Article.