CONCURRING OPINION OF SIR NI COLAS BRATZA

As in the case of Akdeniz v. Turkey, I have voted with the majority of the Commission on each of the Articles of the Convention raised by the present applicant.  As in that case, my remarks are confined to the issues under Article 2.  I refe r to my Concurring Opinion in the Adkeniz case in which I concluded that there was sufficient circumstantial evidence to give rise to the presumption that the applicants’ relatives had died while in the custody of the authorities.  I consider that there is likewise sufficient circumstantial evidence to give rise to a presumption in the present case.

As is pointed out in the Report, a period of nearly six years has elapsed since the applicant’s son, Muhsin Taş, was taken into custody.  Since that date there has been no further contact between Muhsin Taş and his family and no written record as to where he was detained after 14 October 1993, when his name appeared in the Şirnak Military Hospital entry record.

It is true that, in contrast to the position in the Akdeniz case, the authorities have acknowledged that the present applicant’s son was detained .  It is also true that the authorities have afforded an explanation for his disappearance, claiming that he escaped pending a clash on a hillside while assisting the security forces to identify the location of a PKK headquarters, and have supported this a ccount by an incident report dated 9 November 1993.  However, for the reasons given in the Commission’s Report, this incident report is itself of doubtful reliability, no witness having been produced who was responsible for its preparation or who was able to give first-hand evidence of the alleged escape.  Further, the account contained in the report is itself implausible.  It is inherently unlikely that in mid-November the security forces would take a suspected PKK terrorist to a hillside in poor weather c onditions and in fading daylight in a search for a PKK headquarters.  It is still more improbable that a person, who had three weeks earlier been shot in the knee and whose leg had been placed in a splint, would be able to effect a complete escape from the security forces who were alleged to be accompanying him in the search.  Further, for the reasons given in paragraph 186 of the Commission’s Report, the evidence of Nedim Kaya that he saw Muhsin Taş after his escape and that Muhsin had rejoined the PKK is so full of contradictions and inconsistencies as to be lacking in any credibility.

Accordingly, there is in my view sufficient circumstantial evidence to justify the conclusion that Muhsin Taş has died.  Since his death occurred after his detention by th e security forces and in the absence of any plausible explanation for his loss of life, the responsibility of the respondent State under Article 2 is engaged.  As in the Akdeniz case, I further consider that the failure of the authorities to conduct an ade quate and effective investigation into the circumstances of the disappearance of Muhsin Taş discloses a breach of the State’s obligation to protect the right to life and that consistently with the Court’s judgment in the Cakıcı case, there has also been a violation of Article 2 of the Convention on this further ground.

(Or. English)

I have voted against finding a violation of Article 2 since I believe that the matter should be considered under Article 5 of the Convention.

The Commission has found that there is no reliable evidence as to what happened to Muhsin Taş after he was treated by Dr Can at Şirnak Military Hospital on 14 October 1993.  No information has been forthcoming as to his whereabouts or fate for a period of over five years and ten months and he may therefore be regarded as a victim of a disappearance.

In these circumstances, I consider that the applicant’s complaints that the respondent Government have failed in their obligations to protect the life of his so n should be assessed from the standpoint of Article 5.  While in the Çakıcı case the Commission found that there had been a violation of Article 2 in respect of the applicant’s brother who had disappeared during detention, the authorities concerned were al leging in that case that the brother’s body had been found.

In the present case, the period that Muhsin Taş was held in detention is unknown and his disappearance is totally unaccounted for.  Such unaccounted disappearance of a detained person must, in m y view, be regarded as a continuing and particularly serious breach of Article 5 of the Convention taken as a whole.

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

[2]   This refe rs to a type of mechanical construction equipment.

[3]   The rogatory request repeated the questions set out in para. 86 above.

[4] A term for the removal of necrotic, infected or foreign material from a wound.

[5]   At a later point, he thought that he handed th e first petition in on a date in October.