CONCURRING OPINION OF JUDGE VILLIGER

I voted with the majority in finding violations of Articles 2, 3 and 5 of the Convention.

Nevertheless, I disagree with the majority ’ s conclusion in which the respondent Government ’ s preliminary objection as to the application of the six - month rule under Article 35 § 1 of the Convention is rejected ( paragraph 172 of the judgment ).

There can be no doubt that the disappearances amounted to a continuing situation. However, the relatives of the missing persons claiming to suffer from the continuing violation cannot wait indefinitely until they undertake a particular form of action. At some stage, the continuing situation will come to an end, and the six - month rule has to be applied. The question arises as to when this moment will be.

In the present case, this moment arose when the relatives of the missing persons had remedies at their disposal and employed them, or failed to employ them as they realised that the remedies were ineffective. The institution providing for the remedy, if I may call it this, would have been the United Nations Committee on Missing Persons ( “the CMP ” ). It raised high hopes in 1981 when it was set up. But after a certain time, it could be seen by everyone that it was not effective, and the relatives could no longer have been expected to apply to it.

Thus, by 1984 delays had become apparent, in particular as it was only then, i.e. three years after the CMP was set up, that the rules of procedure were prepared. In the years that followed, the relatives should have realised, if necessary assisted by competent legal advice, that the CMP was not at all a body which could afford relief and which they could be expected to sei s e.

For me the cut-off date of the continuing period falls in the year 1987. This view, therefore, coincides with the respondent Government ’ s objection that the six - month rule started running in the year when Turkey accepted the right of individual application before the former European Human Rights Commission.

As the relatives failed to raise their complaints then, they have not, in my view, complied with the six - month rule according to Article 35 § 1 of the Convention.

DISSENTING OPINION OF JUDGE ERÖNEN

1 . Following the decision of the Grand Chamber in Å ilih v. Slovenia ([GC], no. 71463/01, 9 April 2009 ) , the majority in the present case set out to establish a consistency of jurisprudence in matters relating to ratione temporis and the six - month rule in relation to disappearance cases, granting jurisdiction over the matter to the Court in order to end the anomalies present in the variety of rulings on the matter to date.

I have been unable to agree with the majority decision that the Court has jurisdiction to decide in the present case for the reasons I will expound on below and because I found no reason to change my views on the matter which I gave in the Chamber ’ s judgment. On the whole I have found that, rather than clarifying the situation and the case-law on the subject as I believe was intended, the case-law precedents on the issue have become even more untenable and confusing as a result of the majority decision in this case, so that there is now a jurisprudence which is relatively prejudicial to the efficacy and consistency expected of the European Court of Human Rights.

This I found to be so in both the majority ’ s assessment of ratione temporis in disappearance cases and to the application of the six - month rule, both of which I feel have been eroded and dispensed with as a result of this decision. I will devote my opinion to these two aspects of the decision and to related issues. Since I do not agree that the Court has jurisdiction in this case I do not consider it ethical or correct to voice any opinion on any of the substantive issues involved in the alleged violations of the Convention.

2 . I voted against the finding of the majority rejecting the respondent Government ’ s two preliminary objections that the Court did not have jurisdiction ratione temporis to entertain the case and that the application had been filed out of time under the six - month rule. It is my view that the Court does not have competence to adjudicate on the merits of the present case. I shall expand further on this opinion below. I also voted against the majority judgment to the effect that a legal interest remains in pursuing the examination of these applications for the very reason that the majority in this judgment (para graphs 185, 186, 201, 202 and 208) have concluded that the first - named applicants in each application were among those who went missing in 1974. I do not feel it necessary to go into further detail on the lack of legal interest issue in consideration of the fact that I do not find that the Court has jurisdiction to entertain the case in view of the other two preliminary objections.

3 . In conformity with my opinion that the Court does not have temporal jurisdiction, I voted against the finding that there has been a continuing violation of Article 2 on account of the failure of the authorities of the respondent State to conduct effective investigations into the fate of the nine missing men, who disappeared in life-threatening circumstances. As a result, I again do not feel it correct or ethical to express any comments on the merits of these allegations or on the majority view stated in the judgment.

4 . It follows therefore that for the very same reason I did not consider it in accordance with my opinion on the lack of competence ratione temporis and the six - month rule to commit myself to voicing any views on or making findings of a continuing violation under Article 3 in respect of the applicants, and of a continuing violation of Article 5, by virtue of the failure of the authorities of the respondent State to conduct an effective investigation into the fate of Eleftherios Thoma and Savvas Hadjipanteli.

5 . I voted with my colleagues with regard to the alleged violation of Article 5, to the effect that there has been no continuing violation by virtue of the failure of the authorities of the respondent State to conduct an effective investigation into the fate of the seven missing men, for the sake of consistency. I do not deem this to contradict in any way my opinion on the preliminary objections.

6 . Similarly, the reason I voted with my colleagues (despite my opinion that the Court does not have temporal jurisdiction to deal with the merits of this application) in finding that it was not necessary to examine the complaints relating to alleged violations under Articles 4, 6, 8, 10, 12, 13 and 14 of the Convention, was simply because the Court found no reason to adjudicate on the complaints and not because I concur with the majority findings of violations under Articles 2, 3 and 5 (para graph 211 of the judgment ).

7 . For the same reason, in view of my opinion that the Court does not have temporal jurisdiction and since I do not find that there is a continuing obligation, I voted against any conclusion relating to the question whether an award should be made in respect of non-pecuniary damage.

8 . I voted with my colleagues with regard to the remainder of the applicants ’ claim for just satisfaction, with the same motive and belief as stated in point 5 above.

At this stage, I would reiterate the observations I made in the case before the Chamber. Any view I may express in this opinion is made with a view to expanding on and confirming the observations I made at that stage of the proceedings. The Grand Chamber decision in Å ilih has not altered my views. I will also express my humble views on why I could not agree with the majority views in this particular case.

The majority accepts that under general principles applied to this case it does not have competence to examine factual events in 1974, considering them outside the Court ’ s temporal jurisdiction.

However , the majority view notes (a) that the duty to provide an effective investigation is itself an independent violation operating separately from the substantive limb of Article 2; (b) that even if a presumption of death could be found, this would not remove the procedural obligation to investigate; and (c) that disappearances are an “instantaneous act” which nevertheless gives rise to a continuing obligation to investigate, and that the Court therefore has jurisdiction to try the case ratione temporis .

While deciding on the ratione temporis principle I found some confusion in the assessment of the two recent cases on ratione temporis , Blečić ( v. Croatia [GC] , no. 59532/00, ECHR 2006 ‑ III) and Å ilih .

As noted by the majority, the principles in Blečić state, inter alia :

“ 77. ... the Court ’ s temporal jurisdiction is to be determined in relation to the facts constitutive of the alleged interference . The subsequent failure of remedies aimed at redressing that interference cannot bring it within the Court ’ s temporal jurisdiction.” (emphasis added)

The Court, further clarifying the principle in the Blečić judgment , emphasised as follows:

“81. In conclusion, while it is true that from the ratification date onwards all of the State ’ s acts and omissions must conform to the Convention (see YaÄŸcı and Sargın v. Turkey , 8 June 1995, § 40 , Series A no. 319 ‑ A) , the Convention imposes no specific obligation on the Contracting States to provide redress for wrongs or damage caused prior to that date ( see Kopecký v. Slovakia [GC], no. 44912/98, § 38, ECHR 2004 ‑ IX ). Any other approach would undermine both the principle of non-retroactivity in the law of treaties and the fundamental distinction between violation and reparation that underlies the law of State responsibility.

82. In order to establish the Court ’ s temporal jurisdiction it is therefore essential to identify, in each specific case, the exact time of the alleged interference . In doing so the Court must take into account both the facts of which the applicant complains and the scope of the Convention right alleged to have been violated.” (emphasis added)

In Šilih , the approach on whether a procedural obligation under Article 2 exists involved the question of the detachability of the procedural obligation. F or there to be a procedural duty existing under Article 2 , Šilih states as follows ( §§ 162-63) :

“... where death occurred before the critical date, only procedural acts and/or omissions occu rring after that date can fall within the Court ’ s temporal jurisdiction.

... t here must exist a genuine connection between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by Article 2 to come into effect.

Thus a significant proportion of the procedural steps required by this provision – which include not only an effective investigation into the death of the person concerned but also the institution of appropriate proceedings for the purpose of determining the cause of the death and holding those responsible to account (see [ Vo v. France ], § 89) – will have been or ought to have been carried out after the critical date.

However, the Court would not exclude that in certain circumstances the connection could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner . ”

While it is true that Turkey ratified the Convention in May 1954, it only recognised the right of individual petition regarding events occurring after 22 January 1987 and the Court ’ s jurisdiction only in 1990. In order for Šilih to apply, it is also not established in the majority ’ s decision what the “genuine connection between the death and entry into force of the Convention” is for Turkey.

In my respectful opinion, while Turkey could be bound by the Convention from 1954, the Court does not have the competence to examine any facts that occurred prior to 1987 even where the procedural obligation under Article 2 is “detachable”, since according to Šilih ( cited above) such jurisdiction to examine did not arise from any kind of procedural acts and/or omissions occurring after the “critical date” of 1987 , which the majority has already accepted as being the operative date. Article 6 of Protocol No. 11 confirms this view. In other words the Court only has jurisdiction to examine a continuing procedural obligation occurring after 1987, since the continuing obligation would move forward s after the critical date, not backwards . Article 6 of Protocol No. 11 did not change Turkey ’ s restrictions regarding acceptance of the Court ’ s compulsory jurisdiction over any of its acts or omissions before 1987.

Protocol No. 11 entered into force on 1 November 1998. Article 6 of Protocol No. 11 provides:

“Where a High Contracting Party has made a declaration recognising the competence of the Commission or the jurisdiction of the Court under former Article 25 or 46 of the Convention with respect to matters arising after or based on facts occurring subsequent to any such declaration, this limitation shall remain valid for the jurisdiction of the Court under this Protocol.”

Article 6 of Protocol No. 11 in effect clearly states that the present-day Court is only competent to examine “matters arising after or based on facts occurring subsequent to” any declaration recognising the competence of the Court. Hence, in line with my views on the ratione temporis question, Article 6 of Protocol No. 11 clearly prohibits the Court from entertaining any case which relates to any facts occurring prior to the “critical date” of 1987.

In this respect I found the majority judgment confusing in that despite Article 6 of Protocol No. 11 binding Turkey in respect of violations occurring after 1987, the majority prefers to take 1954 as the operative date for its temporal competence to examine the alleged violations when in fact Turkey did not agree to be compulsorily bound by them or be accountable for them until the critical date of 1987. In effect, the majority accepts that while the Court does not have jurisdiction to examine complaints raised in so far as the alleged violations are based on facts having occurred before that “critical date” (para graphs 133 to 1 34 of the judgment ), that is before 1987, it nonetheless proceeds from its finding that Turkey was bound by the provisions of the Convention from its date of ratification of the Convention, 18 May 1954. As a result, I find that it mistakenly brings the events of 1974 and the disappearances and subsequent deaths during that time within its jurisdiction.

This is hard to reconcile with the Xenides - Arestis v. Turkey case ( (just sa tisfaction), no. 46347/99, 7 December 2006 ) , as regards ratione temporis , where the Court, in assessing compensation in its judgment on just satisfaction, took the operative date as the date when Turkey recognised the compulsory jurisdiction of the Court in 1990 , ruling as follows ( § 38):

“The Court will therefore proceed to determine the compensation the applicant is entitled to in respect of losses emanating from the denial of access and loss of control, use, and enjoy ment of her property between 22 January 1990, the date of Turkey ’ s acceptance of the compulsory jurisdiction of the Court, and the present time ( Loizidou (Article 5 0), judgment of 29 July 1998, cited above, p. 1817, § 31).”

In my view, the majority judgment adds even more confusion to already complex ratione temporis issues as my comments below will further elaborate.

Presumption of death

My views in relation to this aspect remain the same as in the Chamber judgment ( Varnava and Others v . Tur key , n os. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, 10 January 2008 ) , in that:

“ ... I perceive no justifiable reason why a presumption of death (in the light of the most recent development in the Court ’ s case-law), unless for reasons of sensitivity on the issue, could not have been adjudicated and acted upon accordingly. The Blečić principle as applied to the present case, relieves, to a certain extent, the findings on the presumption of being alive and continuing violation as expressed in the Cyprus v. Turkey decision on missing persons, thereby excluding the presence of an obligation of a continuing nature. I find that the disappearances and the presumption of the applicants ’ being dead existed as a fact before Turkey recognised the right of individual application to the Commission. That is to say, the facts constitutive of the alleged interference, and as proven, had taken place before ratification and therefore this Court is not competent ratione temporis to examine the effective investigation issue or any other issues pertinent to the actual merits of this case.

In short, I feel that there is no violation of a ‘ continuing nature ’ , and hence no obligation of a continuing nature. The findings of the Cyprus v. Turkey judgment with regard to a ‘ continuing violation of Article 2 on account of the failure of the authorities of the respondent State to conduct an effective investigation ’ need to be interpreted in line with recent case-law, which necessitates that such a ‘ continuing obligation ’ and all consequent requirements of such an obligation, if an obligation does exist, only exist if the case falls within the competence of this Court ratione temporis – and, in my view, the present case does not.

Given that the facts constitutive of the alleged interference (disappearance and subsequent presumed deaths) occurred before 28 January 1987, I do not feel that the Court can examine the complaints concerning the ineffectiveness of the investigation into the disappearance of the Greek Cypriots, for lack of jurisdiction ratione temporis. ”

It is not clear whether the majority decision in the present case is presuming the death of the missing persons or not, though it does appear to make obscure assumptions on this issue. Further , while the presumption of death is “not automatic” the majority notes that there is a possibility that the missing are dead and it also does this through examples of case-law where such presumptions of death were actually made (paragraph 143 of the judgment ),

“ [ e ] ven if there was an evidential basis which might justify finding that the nine missing men died in or closely after the events in 1974 ... ” (para graph 144).

In para graph 146 of the majority decision the Court therefore concludes :

“ ... that even though a lapse of over thirty -four years without any news of the missing persons may provide strong circumstantial evidence that they have died meanwhile, this does not remove the procedural obligation to investigate.”

There appears to be a contradiction when, having made a finding based on “strong circumstantial evidence” that the men may in fact be dead, the Court states in para graph 148:

“A disappearance is a distinct phenomenon, characterised by an ongoing situation of uncertainty and unaccountability in which there is a lack of information or even a deliberate concealment and obfuscation of what has occurred ... ”

I agree with the majority findings in the present case in para graph 146 and with para graph 147 to the following effect :

“ ... as found in Šilih concerning the procedural obligation under Article 2 to investigate unlawful or suspicious deaths, the procedural obligation under Article 2 arising from disappearances operates independently of the substantive obligation . ”

Yet, while it is sought to distinguish the approach of Šilih – to the effect that the requirement of proximity of the death and investigative steps to the date of entry into force of the Convention – “ applies only in the context of killings or suspicious deaths, where the anchoring factual element, the loss of life of the victim, is known for a certainty, even if the exact cause or ultimate responsibility is not ” from the continuing nature of the procedural obligation as found in the phenomenon of disappearance cases (para graphs 148 to 1 49 of the judgment ), the majority have nonetheless implicitly accepted that the men are more than likely dead . I consider that the majority in presenting their views should have arrived at and expounded a more concrete and explicit finding on the fate of the “missing” rather than simply implicitly doing so.

Bearing the principles set out in Šilih in mind, even if the distinct procedural obligation, “operating independently from the substantive limb”, is of a continuing nature, it is related to the facts occurring prior to the critical date and such an obligation cannot be “detached” from the events which occurred prior to it. Conversely, even if detachable, the obligation is a part of events occurring before the critical date, and is therefore not within the Court ’ s temporal jurisdiction.

Therefore, I feel that the observations found in para graphs 147 to 1 49 in effect eliminate the reliance placed by the majority on Šilih and Blečić when arriving at its conclusions.

In line with my views that a presumption of death should be made, I also agree therefore with the majority that there is “strong circumstantial evidence that they have died” and that this itself does not prevent a procedural obligation from arising. However, where I differ is that this duty ’ s existence depends on whether the Court does have temporal jurisdiction regarding the procedural obligation in the first place, which in line with the principles set down in the recent Grand Chamber judgment of Šilih , it does not.

I also concur wholeheartedly with the reasoning of Judges Bratza and Türmen in the Šilih case, looking beyond the “detachable” obligations of Article 2 ’ s procedural aspect:

“Divorcing the procedural obligation from the death which gave rise to it in this manner would, in our view, be tantamount to giving retroactive effect to the Convention and rendering nugatory the State ’ s declaration recognising the Court ’ s competence to receive individual applications.”

Even if noted (in para graph 134) that “the applicants specified that their claims related only to the situation pertaining after January 1987, namely the continuing failure to account for the fate and whereabouts of the missing men by providing an effective investigation”, in the present case the obligation to carry out investigative measure s was not triggered by “relevant new evidence or information” before this Court, since the majority position on this issue is, as I see it, still based on the four th inter-State case findings.

Again, to reiterate, I hold the belief that, following the reasoning in Šilih , if a duty existed it also existed before January 1987. This being so, and since the duty to investigate existed long before the date of recognition of the jurisdiction of both the Commission and the Court (at least thirteen years), then according to Article 6 of Protocol No. 11 the obligation to investigate said to exist cannot be detached from the events prior to 1987. Even where such an obligation is accepted as “detachable”, it is still outside this Court ’ s temporal jurisdiction.

If the duty to investigate existed, it existed from 1974 and continued until and after the critical date. The Šilih conditions are therefore not satisfied. It is equally true that such facts are not separate or “detachable” from the events that occurred prior to 1987. Hence, in both respects, the Court has no jurisdiction to try this case.

This is what the principle of legal certainty requires. Difficulties and anomalies existing behind the judicial reasoning (para graphs 132 to 1 50 of the judgment ) found in the present applications, result in what I consider to be an effort to bring the procedural obligation of an investigation within the jurisdiction of this Court.

I could not help but ask myself the question whether one is to assume therefore that disappearance cases like the case before us, where a presumption of death is a natural consequence of the facts before the Court, do not have a place within or are excluded from the fundamental principle of the Convention found in the ratione temporis rule. Another question: does the finding of the majority in paragraphs 147 to 1 49 mean that the ratione temporis principle is no longer applicable to disappearance cases?

The ratione temporis principle is, as is t he procedural aspect of Article 2, enshrined in the Convention. It is not one that can be overridden and the findings of the majority again leave the Court open to inconsistency in jurisprudence . This judgment raises serious issues of legal certainty and creates further uncertainties, if the Court ’ s temporal jurisdiction concerning compliance with the procedural obligation of Article 2 in respect of deaths that occurred before the critical date were to be regarded as open-ended. As such, these inconsistencies will not be easily remedied if, in an effort to resolve the differences between various Court decisions on this issue as concerns the Court ’ s jurisdiction ratione temporis over procedural complaints under Article 2, one does not remain true to the principles and aspects of “detachability” enunciated in Šilih ( §§ 153-63, and especially §§ 161-65).

That means, in conclusion, that the majority approach in the present case is, in my opinion “ tantamount to giving retroactive effect to the Convention and rendering nugatory the State ’ s declaration recognising the Court ’ s competence to receive individual applications ” (see the separate opinion of Judges Bratza and Türmen in Šilih ) .

In view of the above and Article 6 of Protocol No. 11, I find that the alleged interference referred to in this case , whether procedural or substantive, does not fall within the Court ’ s temporal jurisdiction and that it is therefore not competent to examine these applications.

The six - month rule

As regards whether there was a “procedural obligation to investigate the fate and whereabouts of the missing men at the time of the introduction of these applications” the majority concurs with the Chamber judgment that there was no “unreasonable delay by these applicants in introducing their complaints”.

In my view, here too in reality the six - month rule becomes eroded by bringing to the rule a different interpretation from the one which is already clear cut. While I accept the majority ’ s interpretation of “reasonable expedition” this is entirely a relative issue pertaining to the present case and has no bearing on the Baybora and Others ( v . C yprus (d e c.), n o. 77116/01, 22 October 2002 ) applications. While accepting that there were difficulties for the applicants in realising the ineffectiveness of the United Nations Committee on Missing Persons (“the CMP ” ) , the Court appears to disregard the possibly even more serious difficulties and “special circumstances” occurring during the intervening years for the Turkish Cypriot applicants on account of “the uncertainty and confusion which frequently mark the aftermath of a disappearance” (para graphs 162 to 1 66 of the judgment ). No allowances appear to have been made for Turkish Cypriot “ disappearance cases , where there is a state of ignorance and uncertainty and, by definition , a failure to account for what has happened, if not an appearance of deliberate concealment and obstruction on the part of some authorities, [and where] the situation is less clear cut . ”

Whereas a date is given – “the end of 1990” – when the applicants were bound to know that the CMP was ineffective, the majority fail, with all due respect to my colleagues, to give the same understanding to Turkish Cypriot applicants, who in fact waited for an official confirmation through the Court judgment, that is the judgment of 10 May 2001 in the four th inter-State case. Here I find it necessary to reiterate my opinion in the Chamber judgment on this issue:

“(a) The intervening Government of Cyprus recognised the right to individual petition to the Commission on 1 January 1989. The Turkish Cypriot applicants could not have applied earlier for redress in respect of their claims. Similarly Greek Cypriot applicants could not have applied, until Turkey ’ s ratification in 1987, to the Commission and, in January 1990, to the Court.

(b) The applicants in the present case, as well as those in the Karabardak and Others case, could not have known of the decisions taken in the inter-State cases. The first, second or third inter-State cases did not really deal with the issues of continuing violation. It was in 2001, in the fourth inter-State case, that the notion of continuing violation in disappearance cases was first expounded. In any event, no applicant could have applied until 1989 or 1990, respectively. The present applicants lodged their application in 1990. The Karabardak applicants made their application in 2001, probably after obtaining legal advice on the issue. The legal positions, in both cases, are the same.

(c) As pointed out in the Akdivar case ( Akdivar and Others v. Turke y , judgment of 16 September 1996, Reports 1996-IV, p. 1210) prevailing ‘ special circumstances ’ need to be taken into account when considering whether remedies are actually available. Considering the climate in Cyprus in both 1963-4 and 1974, one cannot say with certainty that such redress was readily available to trace the disappearances (see also Cyprus v. Turkey , § 99).

(d) The CMP did not start functioning until 1981. The CMP was concerned with collecting files on both Greek and Turkish missing persons ’ families, so reliance was probably placed on the outcome of the CMP investigations and no other redress claimed. Understandably, such families of missing persons were not aware of the mandate of the CMP as it stood at the time and perhaps only became aware of its functions and views on its work following the fourth inter-State judgment in May 2001. It follows then that the fact that the applicants in the present case applied to the Commission three days after Turkey recognised the Court ’ s jurisdiction is, with all due respect to my colleagues, immaterial. Legally there is no difference between the delays of the Karabardak applicants and the present applicants in their applications to the Court and the Commission respectively. If the Karabardak and Baybora applications were rejected for being introduced out of time under Article 35, so too should the present applications have been. The fact that the events they complained of took place during the inter-communal strife of the 1960s and not in 1974 makes no difference to the legal situation.”

While the majority claim to have given “careful consideration” to the families of the Turkish Cypriots missing in inter - communal strife in the 1960s, stating, in para graph 171:

“[The Court] is particularly sensitive to any appearance that differing, and inconsistent, approaches have been taken in these cases. Nonetheless, it is not persuaded that this is so. The Chamber decisions in the above-mentioned cases are very concise; and in the absence of arguments from the parties, there is no explanatory reasoning. Their conclusion, however, that the applications were introduced out of time is in line with the principles and case-law outlined above . ”

I do not have the impression that this is so. I consider that there is a clear contradiction in adding that the conclusion “is in line with the principles and case-law”. Either there is no “explanatory reasoning” or the “conclusion is in line with the principles and case-law”. It cannot be both since the Baybora and Others decisions are described as “concise”. In effect, therefore, the majority ’ s assessment here of the Baybora and Others case (para graph 171 of the judgment ) sadly closes the door on Turkish Cypriot applications.

For the sake of clarity and conformity of case-law, the date of the fourth inter-State judgment of this Court, when the CMP ’ s ineffectiveness was actually discussed and addressed, would have been the more appropriate date, not “the end of 1990”.

The six - month rule is a principle of law, a legal fact , and to be abided by whether three years or thirteen years have passed. It makes no difference. If there is “undue delay” in three years, then there is also “undue delay” in thirteen years. The reasoning given by the majority to justify both the present application and the Baybora and Others rulings is in my opinion not in conformity with Šilih , since as was found in Baybora and Others , so too the present applications should have been lodged within the six - month period. Or, taken vice versa, a decision should have been given in Baybora and Others in conformity with the present views.

As stated above, the Šilih judgment ( cited above, § 165) attaches importance (a) to the fact that the events giving rise to the procedural obligation had occurred a short time before the c ritical date of ratification and (b) to the fact that the investigations had begun after ratification. In this respect, in Šilih the Court notes that the death of the applicants ’ son had occurred “on ly a little more than a year before the entry into force of the Convention in respect of Slovenia ” and also to the fact that all investigations had begun within a short time after the critical date. Therefore, since the procedural duty to investigate occurred shortly after ratification by Slovenia, the Court there found it had jurisdiction. It should be noted that unlike the respondent Government in the present case, Slovenia had recognised the compulsory jurisdiction of the European Human Rights Commission and the European Court of Human Rights from the date when it deposited the instrument of ratification of the Convention, that is on 28 June 1994.

For the reasons I have stated, the present applications were not filed in conformity with the six - month rule. Regrettably therefore, I cannot agree with the majority view, and conclude that the judgment on this issue also creates a serious contradiction in European Convention law and precedents by stating:

“Accordingly, by applying to the Court in January 1990, these applicants acted, in the special circumstances of their cases, with reasonable expedition for the purposes of Article 35 § 1 of the Convention . ” (para graph 170)

Without committing myself to comments on the merits of this case and without prejudice to my above views, I find it important to make some reference to the views expressed with regard to the CMP and the burden of proof.

The United Nations Committee on Missing Persons

In my view, r elevant information regarding the functions of the United Nations Committee on Missing Persons (“the CMP ”) which was not available to the Grand Chamber in the inter-State case has been presented in these applications. Yet a simple reference (para graph 85 of the judgment ), perfectly understandable for establishing exactly what the CMP is and noting its functions, is merely taken from the inter-State case judgment delivered in 2001 and is insufficient to note the important developments sin ce that date (para graphs 86 to 87 of the judgment ) . It does an injustice to the large quantity of information provided by the respondent Government since that judgment was delivered.

Even if the CMP is still considered ineffective to meet the purposes of Article 2, I find it is inconceivable that there is nothing more to say about it in the light of all the material provided since the 2001 decision. The majority judgment itself makes no new finding on any aspect of its work. I do not find that the development of the CMP ’ s functions and its relevance as part of an “effective investigation”, even after the receipt of new information and evidence, have been sufficiently reassessed. This is made more evident by the fact that while the Court has made extensive use of facts, information and case-law, etc . relating to ratione temporis jurisdiction in disappearance cases before other international bodies especially (para graphs 88 to 102 of the judgment ), it has not done the same with regard to the CMP information provided.

My views are supported by the recent importan t developments which have shown the role and activities of the CMP as an imperative and indispensable factor towards the implementation of effective investigations as required by Article 2. This fact was emphasised in a decision taken at the 1051st human rights meeting of the Committee of Ministers on 19 March 2009 (see paragraph 88 above).

The Committee of Ministers, supervising the execution of the judgment in the fourth inter-State case, noted that the “sequence of measures within the framework o f the effective investigations” nece ssitated that any other form of effective investigation should not jeopardise the CMP ’ s mission and considered it crucial that the current work of the CMP be carried out under the best possible conditions and without further delay. In doing so it especially underlined the importance of preserving all information obtained during the Programme of Exhumation and Identification. It noted, in effect, that the CMP ’ s mission is part of and not separate from any other required investigation and must take precedence over any other “effective investigation”. In my understanding, the Committee of Ministers ’ decision emphasises that the CMP ’ s work on the missing would need to be completed before any other kind of additional investigation can be initiated.

The burden of proof

I would like to comment briefly too on the references to the burden of proof in the present applications:

The majority have found that “the Court would concur that the standard of proof generally applicable in individual applications is that of beyond reasonable doubt – though this also applies equally i n inter-State cases” (para graph 182 of the judgment ).

However, I consider that this view fails to give a reasoning as to why this is so, resulting in a situation where any differences between the two degrees of proof are not dealt with, and therefore fails to comment on whether the burden of proof has been discharged in these particular individual cases.

In inter-State cases, States do not have to prove grievance or injury. In individual cases however, such issues have to be proved. Equating individual applications with inter-State applications on the same level is, I feel, an error in law which has in effect eliminated the standard of proof necessary to establish a violation in individual applications.

As to the shifting of the burden of proof (para graph 184 of the judgment ), in individual applications the burden of proof only shifts to the respondent Government if the applicants have, in the first place, discharged their burden and initially proven the facts relied upon to establish their claim for redress. This, in my opinion, is not the case in the present applications. In effect the inter-State case findings have been taken as part and parcel of the proof of these applications and have been applied without separately examining and making separate findings of fact in these individual applications.

While stating that “ [t] here is no basis on which it can be assumed that the missing men in the present case were included in the Court ’ s [ inter-State case ] findings” (para graph 181), the judgment then goes on to say:

“In the light of the findings in the fourth inter-State case, which have not been controverted, these disappearances occurred in life-threatening circumstances where the conduct of military operations was accompanied by widespread arrests and killings. Article 2 therefore imposes a continuing obligation on the respondent Government to account for the whereabouts and fate of the missing men in the present case ... ” (para graph 186)

This is a discrepancy clearly showing that the burden of proof incumbent on the applicants in the present case has not been assessed, the Court having merely adopted the inter-State case judgment on this issue. In this part of the majority judgment (para graphs 181-86), and especially in para graph 185, there is an indirect finding of fact as regards what occurred in 1974, which the majority have already accepted as being outside its temporal jurisdiction. With respect, this I sense is due to the fact that while it is sought to establish a “detachable” obligation under the procedural aspect of Article 2, the judgment nonetheless relies on facts outside of the Court ’ s temporal jurisdiction, considering them already established as existing, when this is not so.

Damages and costs

On a final note, I have found the respondent Government justified in their preliminary objections and that this Court lacks jurisdiction, ratione temporis , to entertain this case. Therefore, I do not see any purpose in giving my opinion as to whether an “impact of the violation . .. regarded as being of a nature and degree as to have impinged so significantly on the moral well-being” of the second applicants can be attributable to acts or omissions of the respondent Government in violation of the Convention.

Since I do not concur with the findings that the facts of the applications can be a subject for assessment by the Court, I cannot possibly agree with the majority ’ s assessment under Article 41 on the issue of just satisfaction claims, whether in whole or in part.

In consideration of all of the above, I find also that there should be no award as to costs since this Court lacks jurisdiction and the applications are time-barred by the six-month rule.

[1] . See paragraph 11 below .

[2] . See paragraph 10 below .

[3] . See paragraph 9 below .

[4] . See paragraph 10 below.

[5] . The document provided by the applicants listed twenty names , including that of Savvas Kalli which was the name under which this applicant had been recorded (see paragraph 80 below ).

[6] . The first group of remains identified consisted of thirteen Turkish Cypriots at Aleminyo; subsequent identifications were made of twenty-two Greek Cypriots at Kazaphani, Livadhia and Sandallaris, and six Turkish Cypriots in the Famagusta district. Their names have since been removed from the list of missing persons.

[7] . This Convention was opened for signature in February 2007. It will enter into force “on the thirtieth day after the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession ” . Only five States have ratified the Convention (Albania, Argentina, France, Honduras and Mexico ).

[8] . The last two obligations are not only derived from the Inter-American Convention, but also from the Inter-American Convention on Forced Disappearance of Persons ( 199 4) and the Inter-American Convention to Prevent and Punish Torture (1985) , which may be invoked before the Court pursuant to Article 29 (d) of the Inter-American Convention.

[9] . See Sarma v. Sri Lanka , 16 Ju ly 2003, § 9.5 . See also Edriss El Hassy v. the Libyan Arab Jamahiriya , 24 Octob er 2007, § 6.8.

[10] . General Comment No. 6 (1982), § 4.

[11] . See Bleier v. Uruguay , 29 March 1982, § 14.

[12] . See Edriss El Hassy v. the Libyan Arab Jamahiriya , § 7.

[13] . See Mr. Farag Mohammed El Alwani v. Libya , 11 July 2006. The HRC f ound a violation of Article 2 § 3 in conjunction with Articles 6, 7 and 9 with regard to the disappeared person and of Article 2 § 3 in conjunction with Article 7 with regard to the relative.

[14] . See § 6.2 .

[15] . See § 11 .

[16] . See § 12.2 .

[17] . See the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (first adopted in 1864, last revis ed in 1949 ); the Second Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (first adopted in 1949); the Third Geneva Convention relative to the Treatment of Prisoners of War (first adopted in 1929, last revised in 1949); and the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (first adopted in 1949), together with three additional amendment protocols, Protocol I (1977), Protocol II (1977) and Protocol III (2005).