CONCURRING OPINION OF JUDGE ZIEMELE

1. I agree with all the Court ’ s findings in this case. However, there are a few questions that the Court leaves open in its reasoning or where I take a different line of reasoning. The first concerns the standing of the missing men in the proceedings before the Court ( paragraphs 111 to 1 13 of the judgment ). The second concerns the presumption of death ( paragraphs 142 to 1 46 of the judgment ). The third and last is the question of the application of the six - month rule to continuing violations, especially where enforced disappearances are concerned. It should be stated at the beginning that all these questions are interlinked. I shall now accordingly address the three issues.

The status of the missing m en

2. With reference to the existing case-law the Court points out that normally the relatives of the disappeared person are named as applicants in cases before the Court ( see paragraph 111 of the judgment ). In the instant case the applications are lodged in the name of the disappeared persons and their relatives and there is an explicit refusal of the relatives to accept that a presumption of death may apply to the disappeared persons. Furthermore, the applicants do not allege a violation of the substantive aspect of Article 2 of the Convention (see, a contrario , the case-law regarding disappearances in Chechnya (Russia)).

3. In its judgment, the Court establishes that the obligation to account for the fate of the missing men and bring to justice the person or persons responsible is of a continuing character (see, for example, paragraph 148 of the judgment ). In my view, from that it follows that for as long as the fate of the missing men is not known it would be contrary to the very nature of a particular continuing obligation if the Court were to accept that they could be presumed dead, in which case the relevant legal consequences would include their lack of standing before the Court.

4. Moreover, enforced disappearances are a particular phenomenon which can only be fully addressed if it is recogni s ed that it violates at the same time several human rights (for definition of the phenomenon, see, for example , the U nited Nations Declaration on the Protection of all Persons from Enforced Disappearance , paragraph 89 of the judgment ). These rights are perhaps not all specifically spelled out in the Convention but they may be implied in other concepts contained therein. Among the rights violated in situations of enforced disappearances is the right to be recognised as a person before the law. By not accepting the applicant status of the missing men, the Court itself may appear to refuse to recognise these individuals as persons before the law and to limit their right of access to justice. It is clear to me that the Court should not only have left the question of the standing of missing men open but it should have clearly recognised them as applicants in the case.

Presumption of death

5. It is also important to note that international recognition of the acts of enforced disappearance as a continuing offence for as long as the perpetrators continue to conceal the fate and whereabouts of the missing persons is aimed at deterring States from engaging in such practices. Within this broader aim it has been recognised at the U nited N ations level that the presumption of death cannot be applied over the objections of the family ( paragraph 90 of the judgment ). History shows that missing persons are being found decades after international conflicts and that the families have continued to hope and search for their loved ones.

6. It has to be noted that in the instant case, unlike the position in many cases arising from the conflict in Chechnya (Russia) and that the Court uses as the main source for the principles to be applied in the instant case, the relatives have not asked either domestic authorities or the Court to rule one way or another on whether the missing men are dead (for comparison, see Askharova v. Russia , no. 13566/02, § 59 , 4 December 2008 , and Magomadova v. Russia , no. 2393/05, 18 June 2009 ). It is the respondent Government, again unlike the position in the Russian cases, who invoke the presumption of death so as to argue that the events fall outside the scope of the Court ’ s temporal jurisdiction. The Russian cases very clearly differ from the instant case in that even the date of the presumed death falls within the temporal jurisdiction of the Court and the question of a substantive violation of Article 2 arises. Typically in these cases there is relatively much more, and more recent, evidence as to the actual event of abduction.

7. I therefore do not share the Court ’ s reasoning in the instant case that the lapse of over thirty-four years may provide strong circumstantial evidence that the missing men have died in the meantime ( paragraph 146 of the judgment ). Certainly the Russian case-law does not constitute authority for such a statement of principle. In our case, the applicants refuse to accept any presumption of death while the respondent Government invokes this argument. At the same time, the applicants do not raise the claim under the substantive aspect of Article 2 in the context of which, in my view, this disagreement is more logically situated. The language of paragraph 146 may give a wrong idea of the Court ’ s approach regarding long-term enforced disappearances typically associated with complex international conflicts. The Court arrived at the conclusion that, even though the missing men may be presumed dead, a continuing obligation to investigate their fate and account for their whereabouts persists. I find it difficult to see how one can meaningfully separate the obligation from those in whom the right is vested, i.e. the missing men. Therefore, given what enforced disappearances represent on the day of lodging the application with the Court, the missing men could not be presumed dead since there were no national decisions or relatives ’ requests to that effect. The missing men are the applicants and there are rights under the Convention owed to them by the respondent State.

Six - month rule

8. Lastly, I should address the question of the six - month rule. 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. Cut-off dates serve their legitimate purpose in judicial proceedings. However, the question in our case is whether the same approach applies where a continuing violation of an international obligation is concerned. For the purposes of this question, it is important to remind ourselves of the very character of a continuing violation of an inter national obligation. Article 14 § 2 of the International Law Commission ’ s Draft Articles on Responsibility of States for Internationally Wrongful Acts defines the phenomenon as follows:

“The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation . ”

9. In our case, the respondent State has not to date accounted for the fate of the missing men, conducted an investigation into the events and those responsible and offered the possibility of claiming redress to the victims and the relatives. The fact that the United Nations Committee on Missing Persons ( “the CMP ” ) was not effective is only one, and far from the most relevant, criterion for the decision whether or not to apply the six - month rule in the current proceedings before the Court. The CMP ’ s mandate is limited to ascertaining whether the disappeared persons are dead or alive. It cannot attribute responsibility or state the cause of death ( paragraph 85 of the judgment ). In other words, it is not the CMP which will discharge the full scope of Turkish obligations with respect to the missing persons. This was a known fact when the CMP was set up. It was confirmed in the fourth inter - State case ( paragraph 187 of the judgment ).

10. The Court took a false route in its reasoning on the six - month rule when it stated that from the moment when it became clear that the CMP would not offer hope for progress ( paragraph 170 of the judgment ) the sixth - month count should have begun for the individuals concerned for the purposes of lodging a complaint with the Court. As the judgment shows (see the submissions of the parties under Article 2), and in view of the findings of the Court with respect to a continuing breach of a procedural obligation by Turkey under Article 2 (paragraphs 191 to 1 94 of the judgment ), we are still in the presence of an ongoing breach of a Convention obligation. The Court should therefore have followed its own case-law on non-application of the six - month rule to continuing situations ( paragraph 159 of the judgment ). Non-application of the six - month rule to breaches of international obligations having a continuing character, especially when we deal with such crimes as enforced disappearance, serves the important purpose of preventing the perpetrators from enjoying impunity for such acts.

11. However, the non-applicability presumption is a rebuttable one. The Court will in any case examine each situation, as indeed the Court states in paragraph 165. As noted by the International Court of Justice in the Certain Phosphate Lands in Nauru Case , “ [i] t is therefore for the Court to determine in the light of the circumstances of each case whether the passage of time renders an application inadmissible” ( Phosphate Lands in Nauru Case , ICJ Reports 1992 , § 32). The test for the application of the six - month rule to continuing situations is therefore different from what is set out in the reasoning in paragraphs 166 to 1 71. It should be asked instead whether there was any event or act which could be seen as triggering the running of time for the submission of the complaint, because for as long as there are no meaningful actions taken to address the problem of disappearances the problem persists, and the right to complain about it accordingly also persists. In other words, the issue is not whether there is an event suspending the running of time (see, a contrario , paragraph 171 of the judgment ); it is whether there is an event which triggers the start of the six - month period . If the CMP was intended to be a proper remedy in the disappearance cases, it indeed could be properly examined in the light of the six - month rule. But this is clearly not the case.