CONCURRING OPINION OF JUDGE RESS

1. I fully agree with the judgment in this case but would like to add some further explanations of my vote, relating to future development of the interpretation of Article 37 § 1 (c) and Article 37 § 1 in fine .

Among the relevant fa ctors the Court referred to in paragraph 76 of the judgment, it mentioned the question whether the Government have made any admission in relation to the alleged violation of the Convention in their unilateral declaration and the manner in which they intend to provide redress to the applicant. In connection with elimination of the effects of an alleged violation, the Court quoted, as an example, property cases. But an undertaking to eliminate the effects of an alleged violation is even more likely and urgent in other typical situations, as for instance failure to meet the requirement of a fair procedure under Article 6 § 1, where redress might take the form of reopening the domestic proceedings before a national tribunal. There are quite a number of other examples where a unilateral declaration to the effect that a respondent Government admit the alleged violation of the Convention and undertake to afford redress in a manner which eliminates the effects of the violation may be acceptable under Article 37 § 1 in fine .

2. As the Court has underlined in paragraph 84 of the judgment, a full admission of liability in respect of an applicant ’ s allegation under the Convention cannot be regarded as a condition sine qua non for the Court ’ s being prepared to strike an application out on the basis of a unilateral declaration by a respondent Government. Otherwise, few G overnments would be prepared to make such unilateral declarations under Article 37 § 1 in fine .

The Court ’ s statement, in my view, should not be interpreted in the sense that even though a full admission of liability need not be included in a unilateral declaration, such a declaration must include at least some admission of fault. In cases of highly disputed facts, it seems to be inappropriate to expect that the parties agree as to the facts and furthermore that the Government make an admission of liability. In this situation the Court, if the circumstances so indicate, can come to the conclusion that there was a violation of the procedural requirements of Article 2 and/or Article 3 because of the lack of an effective investigation. If this cannot be established, then the Court could take evidence on its own, if there are sufficient prospects of success in such a mission. If this is not the case, then in a situation of disputed facts the case has to be decided on the basis of the burden of proof . In situations where persons have been abducted and possibly killed by unknown people it is for the applicant to establish beyond reasonable doubt that these people were State agents and that their action was therefore imputable to the State. If this can be established, then the

burden of proof would shift to the State which has to provide information about the whereabouts and fate of the disappeared person (see Tanrıkulu v Turkey [GC], no. 23763 /94, §§ 94-99, ECHR 1999-IV , and Şarlı v. Turkey , no. 24490/94, 22 May 2001 ).

3. A State may, for different reasons, be prepared to make a unilateral proposal to resolve a case even if the facts are highly disputed and the burden of proof falls on the applicant or where this is at least controversial ( see the argument as to the evidence and the specific circumstances of the case in paragraphs 97 and 98 of Tanrıkulu , cited above ). The State might nevertheless be prepared to propose ex gratia redress under these circumstances without any admission of responsibility just to get the case resolved. Such a resolution is in the interests of human rights, in particular if the question of the burden of proof can be considered as being controversial. I would therefore not hesitate to say that in such a case respect for human rights within the meaning of Article 37 § 1 in fine does not necessarily require further examination of the application.

4. It is true that in the present case there were prima facie indications supporting the allegation that the domestic investigation fell short of what is necessary under the procedural obligations arising from the Convention. Therefore a statement to the effect that more should have been done in this investigation and an indication of the precise means to be envisaged in the future have rightly been required by the Court. But there are and will be other situations where even such prima facie indications do not exist and where, in my opinion, a unilateral declaration without an admission of liability might nevertheless be acceptable under Article 37 § 1 (c) and Article 37 § 1 in fine .

JOINT CONCURRING OPINION OF JUDGES Sir Nicolas BRATZA, TULKENS AND VAJIĆ

(Translation)

While we are fully in agreement with the Court ’ s decision to reject the Government ’ s request to strike the application out of the list, we should nevertheless like to express a more general reservation about the novel procedure of striking out (Article 37 § 1 (c)) on the basis of a unilateral declaration by the respondent Government even though the applicant wishes the examination of the merits of his case to be continued.

In our opinion, such a procedure must remain an exceptional one and, in any event, cannot be used to circumvent the applicant ’ s opposition to a friendly settlement.

A careful and thorough examination is therefore necessary in each individual case. That being so, we do not consider it wise in paragraph 76 of the judgment, where the Court indicates in general terms the kind of factors that may be taken into account, to give the example of certain cases where the redress proposed by the Government would be more likely to be regarded as appropriate for the purposes of striking out the application.