PARTLY DISSENTING OPINION OF MR E.A. ALKEMA ,

JOINED BY MM. S. TRECHSEL and G. RESS

The reason for my voting against a violation of Article 3 in respect of the applicant (para. 276) is a mainly technical and legal one. Although the emotional consequences for the applicant of his brother ’ s disappearance should not be underestimated, they do not in my opinion raise ‘ a separate issue ’ .

The applicant has submitted his application principally on behalf of his disappeared brother with regard to whom the Commission already found that Articles 2 and 3 of the Convention have been violated. Finding, as the majority has done, an additional violation with respect to the applicant himself does not contribute demonstrably to the Convention ’ s effective protection but only gives rise to difficult and thorny questions.

One such question relates to possible consequences for the notion of ‘ indirect victim ’ , namely the person(s) so closely connected to a victim of alleged human rights violations as to be entitled under Article 25 to submit an application on the latter ’ s behalf. Has not any such ‘ indirect victim ’ through the close connection with the direct victim inevitably undergone himself or herself some repercussions from such violations? Usually there are other relatives as well, as in the instant case - ought they have joined the application formally in order to be eligible for any indemnification under Article 50?

With regard to the wide circle of indirect victims and relatives a difficult exercise of sorting out the level of distress and anguish inflicted - conditional for Article 3 being applicable - is unavoidable. Indeed this has been attempted in para. 279 but the manner in which a violation is reasoned by the majority seems rather perfunctory and lacks substance. It shows that extending the circle of victims in this way is likely to water down the criteria for finding a violation of the Convention right.

Generally, the Commission ’ s policy has been cautious and prudent in acknowledging further complaints when it had already found the substance of the claim being a violation under another heading. A similar policy, of course with an exception for clearly dependent third persons, seems advisable with respect to widening the circle of persons who may claim to be victims of violations.

[1] .This name, which appears in statements also as Serhabun, Serhabin and Serhabon, is used in respect of the PKK leader of the group.

[2] . A term often used to describe persons who assist the PKK.

[3] . The witness describes _ndar as a two hour walk from Hazro; a one to one and a half hour walk from Çitlibahçe.

[4] . See eg. Eur. Court HR Aydin v. Turkey judgment of 25 September 1997 to be cited in Reports 1997,Comm. Rep. paras. 103, 108 and 127 where the applicant and her father stated that village guards accompanied the officer who took them into custody and the possibility of such a use of guards was accepted by a gendarme officer; see also Kurt v. Turkey 24276/94 Comm. Rep. 5.12.96 paras. 179 and 210 where village guards were found to have been involved in the taking into custody of the applicant's son during an operation in a village.

[5] . See eg. Dula_ v. Turkey No. 25801/94 dec. 23.5.96, where the applicant alleges that her house was burned in Çitlibahçe on 8 November 1993 by the security forces.

[6] . See eg. testimony before Delegates in published reports Aydin v. Turkey No. 23186/93 Comm. Rep. 7.3.96 para. 124; Tekin v. Turkey No. 22496/93 Comm. Rep. 17.4.97 para. 144 pending before the Court.