CONCURRING OPINION OF JUDGE BONELLO

1. I voted, if only with marked reluctance, for not finding a “substantive” violation of Article 2 as regards the disappearance of the applicant ' s brother in 1994. I felt compelled to follow the Court as, in truth, the applicant stopped short of proving “beyond reasonable doubt” the State ' s respon sibility in that disappearance, or that his brother ' s disinclination to rejoin his family in the ten years that followed can conclusively be attributed to the State. In the present state of the Court ' s case-law [6] , it would have been rash to vote otherwise .

2. But, surely, the applicant ' s failure to demonstrate that the disappearance engages the State ' s responsibility should neither mark the beginning nor be the end of the issue. In my view the Court could have approached the concerns underlying the problem from a wholly different perspective. This separate opinion attempts to make relevant what, to me, are vital and indispensable tenets in judicial policy-making.

3. In this case the Court unanimously attributed to the respondent State two distinct an d far-reaching responsibilities. F irstly , it found a “procedural” violation of Article 2, in so far as the State neglected to conduct any adequate and effective investigation into the disappearance of the applicant ' s brother. Secondly, the Court also found that the respondent State had failed to comply with Article 38, which binds States to cooperate fully with the Court in any investigation aimed at establishing the facts, and to furnish all necessary facilities for the effective conduct of that investigation. The respondent State underperformed seriously on both counts.

4. The Court found the second non-compliance to consist in the Government ' s failure to act with due diligence in observing the requests made by the Commission and the Court to “make available evidence considered necessary for the examination of the application, such as the case file of the Diyarbakır Provincial Administrati ve Council and the video recording of the NTV broadcast” – in which the applicant and other witnesses allege the desparacido could be seen, and quite alive, in police custody, well after he disappeared in a car without licence plates , with the assistance of two armed men [7] .

5. The Court has justly acknowledged that, in some cases, the State is the sole depositary of sensitive and fundamental evidence: “in certain instances, it is only the respondent S tate that ha s access to information capable of corroborating or refuting th e se allegations [of breaches of Convention rights]. ” The Court then added: “A failure on a Government ' s part to submit such information which is in their hands without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicant ' s allegations , but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 § 1 (a) of the Convention. [8] ”

6. In the present case, the Court was faced with a situation, acknowledged and stigmati s ed, in which the State failed not only in its obligation to investigate properly the facts surrounding the disappearance, but also compounded and aggravated that deficiency by being particularly economical in cooperating with the Court when it came to making evidence relevant to that disappearance accessible. In other words, it is the State that made nugatory or impossible the availability of potentially relevant evidence.

7. I ask who ought to be penalised for this dearth of evidence and for the two ascerta ined failings by the Government. Is it the applicant, who was short ‑ changed of any effective means to substantiate his assertions, as all the evidence was safely entombed in the State ' s coffers? Or the State , which was bound by the Convention to conduct a proper investigation but did not, and which was obliged to provide the Court with what evidence it had, but equally did not – at least not with the required diligence?

8. I t is for me incontestable that the applicant did not succeed in establishing “beyond reasonable doubt” the State ' s responsibility in the disappearance. And it is for me equally incontestable that the Court has visited the miscarriages of the Government not on the perpetrator of those failings, but on the victim of those failings.

9. T his, on a rational plane, flies in the face of equity. I consider it incongruous that, as a consequence of violating two Convention duties, the culprit State should reap rewards. Unacceptable that the applicant is told by a court of justice that he cannot win against the State, as he failed to produce evidence which the State had wrongly failed to produce.

10. I find t he sequence of reasoning behind the judgment profoundly disturbing. In my book, the wrongdoer indemnifies, the polluter pays, the transgressor compensates. The trend of the case-law so far, in my opinion , stands these ha llowed principles on their heads. This could come dangerously near the thresholds of iniquity. I feel I must distance myself from moral deficit such as this.

11. I believe the Court should have hounded to its rational conclusion the enlightened principle it enunciated, but then sadly failed to follow through: if the State is at fault in gathering evidence or in suppressing or withholding what information it has, then the Court would be justified, using its own words, in “the drawing of inferences as to the well-foundedness of the applicant ' s allegations”. The drawing of these compelling inferences, so far, remains a forlorn hope.

12. It appears to me axiomatic that, in a scenario in which the Government is at fault where evidence-building is concerned, then a legal inference of culpability on the merits of the complaint should have been drawn. States , in detestable circumstances such as the disappearance in question, cannot be let off with benign raps on the knuckles. In my view the Court ought to have declared, boldly and defiantly, that, when a State defaults in its duties to investigate and to hand over what evidence it has under its control, the burden of proof shifts. It is then for the Government to disprove the applicant ' s allegations. Failure to draw these inferences will only embolden rog u e States in their efforts to rig sham investigations, and encourage the suppression of incriminating evidence.

13. Some trail-blazing judg ments by the Court have demonstrated how effective in the defence of human rights its recent forays into resourceful judicial engineering have been : reliance on rebutt able inferences, shifting of the burden of proof, and a possible lowering of the “b eyond reasonable doubt” quantum [9] . The way forward, in my view, can only lie in the practical and effective use of inferences of culpability, and a consequent shift of the burden of proof, in cases in which a State is found to have disregarded its obligations to investigate or to make availabl e to the Court whatever information it is the depositary of.

14. The failure by the Court to find a “ substantive ” violation of Article 2 had dismal consequences for the applicant: no compensation for pecuniary damage could be, or w as , awarded [10] . The Government , which, in the course of the proceedings, had spont aneously offered the applicant 70,000 pounds sterling in compensation, can now get away with giving a hand-out of 10,000 euros, the fair market price, it seems, for the life of a man who never was.

[1] . In the documents submitted by the parties, Mehmet Salim Acar is also referred to as Mehmet Salih Acar or Mehmet Selim Acar.

[2] . In summarising the documents submitted by the parties, the Court has used the names of persons as cited in these documents. These do not necessarily reflect the correct spelling of the names of these persons.

[3] . The Turkish word “ i tirafçı ” indicates a defected member of an illegal organisation who provides the authorities with information about that organisation.

[4] . Village headman.

[5] . “ S ülüman şapkaları ”; Borsalino-style hats.

[6] . See , for example , Tekdağ v. Turkey , no. 27699/95, § 57, 15 January 2004 .

[7] . See paragraph 255 of the judgment .

[8] . See paragraph 254 of the judgment ( emphasis added ) . This has also been said in Tepe v. Turkey , no. 27244/95, § 128, 9 May 2003 , and Tekdağ , cited above, § 57.

[9] . See Assenov and Others v. Bulgaria , judgment of 28 October 1998 , Reports of Judgments and Decisions 1998-VIII; Timurta ş v. Turkey , no. 23531/94, ECHR 2000-VI; Č onka v. Belgium , no. 51564/99, ECHR 2002-I; and Nachova and Others v. Bulgaria , nos. 43577/98 and 43579/98, 26 February 2004.

[10] . See paragraph 260 of the judgment : “ … there is no causal link between the matter held to constitute a violation of the Convention – the absence of an effective investigation – and the pecuniary damage alleged by the applicant .”