JOINT PARTLY DISSENTING OPINION OF JUDGES TÜRMEN, VAJIĆ AND STEINER

We agreed with the majority that there had been a violation of Article 2 in its procedural aspect. However, we are unable to share the majority ' s finding of a violation of Article 2 in its substantive aspect for the following reasons.

In cases of disappearance in custody where there has been a lack of information for a considerably long period of time, the person is presumed to have died in custody and, in the absence of a plausible explanation, the respondent Government ' s responsibility for the death is engaged.

In order to reach such a conclusion the Court seeks to establish: (1) that the person was deprived of liberty in life-threatening circumstances; (2) that this deprivation was effected by Government agents; (3) that there has been a lack of information or a refusal to acknowledge the deprivation of liberty (see, for example, TimurtaÅŸ v. Turkey , no. 23531/94, § 85, ECHR 2000 ‑ VI; Ertak v. Turkey , no. 20764/92, ECHR 2000 ‑ V; TaniÅŸ and Others v. Turkey , no. 65899/01, ECHR 2005 ‑ VIII ; and Akdeniz and Others v. Turkey , no. 23954/94, 31 May 2001 ).

It is interesting to note that in TimurtaÅŸ , which is the leading case, the Court carefully distinguished it on two grounds from Kurt v. Turkey (judgment of 25 May 1998, Reports of Judgments and Decisions 1998 ‑ III), where the Court had not found a violation of Article 2: (a) in Kurt “there were insufficient persuasive indications that the applicant ' s son had met his death in custody”, whereas in TimurtaÅŸ “it [was] established ... that Abdulvahap TimurtaÅŸ [had been] taken to a place of detention”; and (b) “there were few elements in the Kurt case file identifying Ãœzeyir Kurt as a person under suspicion by the authorities, whereas the facts of the [ TimurtaÅŸ ] case [left] no doubt that Abdulvahap TimurtaÅŸ [had been] wanted by the authorities for his alleged PKK activities” (see TimurtaÅŸ , cited above, § 85 ).

In the present case, it is unanimously accepted that the involvement of the security forces in the disappearance of the applicant ' s son, Atilla Osmano ÄŸ lu , has not been established (see paragraphs 53 and 56 of the judgment).

Furthermore, it is also stated that Atilla Osmano ÄŸ lu had no connections with the PKK (see paragraph 58).

In view of these elements and in accordance with the Court ' s case-law, we cannot conclude in the present circumstances that the responsibility of the respondent State is engaged.

We are unable to agree with the majority ' s view that “a finding of State involvement in the disappearance of a person is not a condition sine qua non for the purposes of establishing whether that person can be presumed dead;

in certain circumstances the disappearance of a person may in itself be considered as life-threatening” (see paragraph 57).

It is true that under certain circumstances the disappearance of a person may be life-threatening. However, the question in the present case is whether the respondent State can be held responsible for such a life-threatening situation if it is established that the disappearance did not occur when the victim was under the control of the authorities and when the State is not involved in the disappearance. The answer given by the Court ' s case-law to this question is clearly in the negative. The Akdeniz judgment referred to by the majority confirms this view. In that judgment the Court held as follows: “the eleven men must be presumed dead following their detention [emphasis added] by the security forces. Consequently, the responsibility of the respondent State for their death is engaged” (see Akdeniz , cited above, paragraph 89 ).

In this connection, we consider that the alleged similarities between the abduction of the applicant ' s son and the abduction of persons referred to by the majority in paragraph 58 of the judgment are not sufficient to reach the conclusion that the disappearance of Atilla OsmanoÄŸlu was life-threatening. Such parallels would only carry weight if the Court were to accept the existence of an administrative practice of abductions and killings. However, both the Court and the former Commission have always refused to reach such a conclusion.

It is not clear from the present judgment what action a respondent State is expected to take in cases where it is not found responsible for the disappearance of the person. The majority seem to indicate that “the respondent State is under the obligation to carry out effective investigations into allegations of disappearances” (paragraph 57).

We fully share this view. However, this is a question to be examined under the procedural aspect of Article 2 and not under its substantive aspect. Yet, in the present judgment, the lack of an effective investigation constitutes the basis of a finding of a substantive violation of Article 2 (see paragraph 92). Furthermore, the same lack of effective investigation is also the reason for finding a violation of Article 2 in its procedural aspect. Finding two violations for the same reason with the same facts is rather unusual in the Court ' s case-law.

The positive obligation of the State to protect the lives of persons under its jurisdiction and the obligation of the State to carry out an effective investigation in cases of disappearance are two different notions and should be treated as such.

The positive obligation of the State to take measures to protect an individual from criminal acts of other individuals is preventive in nature. It relates to a phase before such an incident occurs.

The Court has always interpreted this duty of the State rather narrowly. There will have been a breach of Article 2 only if the authorities knew, or ought to have known, of the existence of a real and immediate risk to the life of an individual. Such an obligation “must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materializing” (see Osman v. the United Kingdom , judgment of 28 October 1998, Reports 1998 ‑ VIII, § 116). That positive obligation, however, does not impose a requirement that a State must necessarily succeed in locating and prosecuting perpetrators of fatal attacks (see TekdaÄŸ v. Turkey , no. 27699/95, § 79, 15 January 2004).

In the present case, the authorities were not informed before the abduction of a risk to the life of the applicant ' s son, neither did he ask for protection; it is also not contested that the authorities were not involved in the disappearance of Mr OsmanoÄŸlu and that he was not under the control of the security forces. Mr OsmanoÄŸlu ' s whereabouts were not known by the authorities. It was not even clear whether he was dead or not. Thus the only action that the authorities could reasonably have been expected to take was to conduct an investigation into the circumstances of his disappearance and establish whether or not he was dead, and if he were not, to find out where he was.

In fact, the “preventive operational measures” required by the majority to prevent a real and immediate risk to the life of the applicant ' s son after his disappearance (see paragraph 81 of the judgment), such as making enquiries, taking statements, securing eyewitnesses, etc., all relate purely to the investigation which is examined under the procedural limb of Article 2.

Lastly, the present case should be distinguished from that of Koku v. Turkey (no. 27305/95, 31 May 2005), which is referred to by the majority and in which the Court found a violation in so far as the respondent State had failed to protect the life of the applicant ' s brother in violation of Article 2 of the Convention, on the following grounds: Hüseyin Koku was a well-known politician. He was a member of HADEP and was allegedly involved in PKK activities. Before his abduction he was receiving threats from the police, the Governor and the Mayor. By contrast, in the present case Mr Osmanoğlu was not a political figure; he was not involved in any PKK-related activity. He was not under threat and he accompanied the two men who came to the shop of his own accord.

The second difference is that Mr Koku ' s body was found six months after his disappearance, whereas in the present case Mr OsmanoÄŸlu ' s body was never found.

Thirdly, in Koku the respondent State failed to submit to the Court a number of documents from the investigation file. That failure led the Court to find that the Government had fallen short of their obligations under Article 38 § 1 (a) of the Convention and, as a result, the Court drew inferences from the Government ' s failure. In the present case, however, the Government did cooperate with the Court in the establishment of the facts (see paragraph 44).

It is with the above considerations in mind that we reach the conclusion that there has been no violation of Article 2 in its substantive aspect.

Finally, in the light of our foregoing considerations and the differences outlined above between the Koku judgment and the present judgment, we believe that the finding of a substantive violation of Article 2 on account of the respondent State ' s failure to take “preventive operational measures” represents a fundamental change in the Court ' s jurisprudence. We are of the opinion that such a change, with its potential implications for future cases, should have been a matter for the Grand Chamber to decide.