CONCURRING OPINION OF JUDGE SPIELMANN JOINED BY JUDGES ZIEMELE AND KALAYDJIEVA

1. The Court has decided that there has been a continuing violation of Article 2 of the Convention on account of the failure of the authorities of the respondent State to conduct an effective investigation into the fate of the nine men who disappeared in life-threatening circumstances . I regret that in the judgment and the operative part the Court declined to indicate explicitly that the respondent State should conduct an effective investigation.

2. It is in my view regrettable that the Court decided that it falls to the Committee of Ministers to indicate what may be required in practical terms by way of compliance.

3. In consistency with the principle of restitutio in integrum , spelled out eloquently in the submissions by Redress (paragraph 220 of the judgment), and by emphasising the obligation, for the State found in breach of the Convention, to re-establish the situation which existed before the wrongful act was committed , the Court should have indicated, in the reasoning and the operative part of the judgment, that an effective investigation into the matter should be held. Accountability for the fate of the missing men includes carrying out an investigation into the events and those responsible and offering the possibility of claiming redress to the victims and the relatives.

4. In paragraph 191 of the judgment, the Court emphasises that the Court ’ s case-law on the ambit of the procedural obligation is unambiguous and that the essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This general principle, drawn from the Court ’ s case-law, should have been reflected in paragraph 222 and in the operative part of the judgment.

5. By virtue of Article 46 § 2 of the Convention, supervision of the execution of the Court ’ s judgments is the responsibility of the Committee of Ministers. That does not mean, however, that the Court should not play any part in the matter and should not take measures designed to facilitate the Committee of Ministers ’ task in discharging these functions.

6. Indeed, the Court has held in the past that a violation of Article 2 cannot be remedied exclusively through an award of damages to the relatives of the victim ( see Kaya v. Turkey , 19 February 1998, § 105 , Reports of Judgments and Decisions 1998 ‑ I ). As Redress eloquently emphasised in its observations, given the fundamental importance of the right to protection of life, in addition to any compensatory award, there is an obligation on S tates to carry out a thorough and effective investigation likely to lead to those responsible being identified and punished, and in which the complainant has effective access to the investigation proceedings ( see Çakıcı v. Turkey [GC], no. 23657/94, § § 112-13 , ECHR 1999 ‑ IV ). An effective remedy entails the duty to conduct an effective official investigation into the incident(s), which must be, inter alia , “thorough, impartial and careful” ( see Velikova v. Bulgaria , no. 41488/98, § 80 , ECHR 2000 ‑ VI ).

7. To that end, it is essential that in its judgments the Court should not merely give as precise a description as possible of the nature of the Convention violation found but should also indicate to the State concerned in the reasoning under Article 46 of the Convention and in the operative provisions, if the circumstances of the case so require, the measures it considers most appropriate in order to secure redress for the violation.

JOINT CONCURRING OPINION OF JUDGE S SPIELMANN AND POWER

1. We share the opinion of the majority that there has been a continuing violation of Article 2 of the Convention on account of the failure of the authorities of the respondent State to conduct an effective investigation into the fate of the nine men who disappeared in life-threatening circumstances . However, we would like to express our disagreement as to the reasoning concerning the question of the six - month rule. We agree in this respect with the analysis presented by Judge Ziemele and, in particular, the reference to the general principles of international law as set out in Article 14 § 2 of the International Law Commission ’ s Draft Articles on Responsibility of States for International Wrongful Acts .

2. Admittedly, it is quite understandable that the Court wants to uphold some legal certainty when it comes to the time frames within which complaints can be lodged. Even though we agree as a matter of principle that “where disappearances are concerned, applicants cannot wait indefinitely before coming to Strasbourg” and that they “must make proof of a certain amount of diligence and initiative and introduce their complaints without delay” (paragraph 161 of the judgment ), we should still not forget that we are dealing with a continuing violation of an international obligation and that the respondent State has never accounted for the fate of the missing men, carried out an investigation into the events and those responsible and offered the possibility of claiming redress to the victims and the relatives. As the Court rightly points out in paragraph 148 :

“ ... the procedural obligation will, potentially, persist as long as the fate of the person is unaccounted for; the ongoing failure to provide the requisite investigation will be regarded as a continuing violation (see Cyprus v . Turkey , cited above , § 136) . ”

3. To justify the reasoning as to the six - month rule, the majority relies heavily on the fact that the United Nations Committee on Missing Persons ( “ the CMP”) was not effective. We are unable to accept the consequences of that ineffectiveness as regards the application of the six - month rule. In this respect we agree with Judge Ziemele ’ s observations concerning the limited mandate of the CMP and we share her view that the fact that the CMP was not effective is only one of a number of criteria (and far from the most relevant one) in deciding on the application or not of the six - month rule in the proceedings before the Court.

4. We would like to add the following. As the Grand Chamber is not bound by the precedents of Baybora and Others v. Cyprus and Karabardak and Others v. Cyprus ( (decs . ), nos. 77116/01 and 76575/01 , 22 October 2002), we fail to see why the majority felt obliged to distinguish the present case from the ones decided in 2002 by saying that the applicants in those two cases “had unduly delayed in introducing their complaints before the Court” . We believe that it was unnecessary to elaborate a specific reasoning emphasising distinguishing features of the Baybora and Others and Karabardak and Others cases, which concerned applications introduced by the families of Turkish Cypriots who had gone missing during inter-communal strife in the 1960s. In paragraph 171 , the majority concedes that “[t]he Chamber decisions in the above- mentioned cases are very concise; and in the absence of arguments from the parties, there is no explanatory reasoning” . In such circumstances, we are unable to subscribe to the finding that in Baybora and Others and Karabardak and Others the applicants “had unduly delayed in introducing their complaints before the Court” .

5. In the absence of detailed arguments submitted by the parties, we regret that the Baybora and Others and Karabardak and Others applications were rejected under Article 35 for being introduced out of time and that the Court held in those two cases that “even assuming that the applicants had no effective remedies as alleged, they must be considered to have been aware of this long before 30 October 2001, the date on which they introduced their application” . We cannot agree to the justification of those two inadmissibility decisions set out in paragraph 171 by taking as the critical moment “the end of 1990” . In this respect, we are convinced – even if we come to a different conclusion – by the reasoning of Judge Erönen that “[ l ] egally there is no difference between the delays of the Karabardak and Others applicants and the present applicants in their applications to the Court and the Commission respectively” .

6. A continuing violation such as occurs when a State fails to investigate or account for enforced disappearances does not cease by the passage of time to be a continuing violation. In our view, Judge Ziemele is correct in observing that the non-application of the six - month rule to breaches of international obligations that have a continuing character, such as in the context of enforced disappearance, serves the important purpose of preventing the perpetrators from enjoying impunity for such acts.