PARTLY DISSENTING OPINION OF JUDGE THOMASSEN JOINED BY JUDGES JUNGWIERT AND FISCHBACH

The majority found no violation of Article 3 of the Convention in relation to the applicant himself. I am unable to share this view and voted for a violation.

The Government were responsible for the disappearance, torture and death of the applicant’s brother. The applicant was convinced, as may be regarded as reasonable in the circumstances, that his brother was tortured while he was in the custody of the security forces. Afterwards his brother disappeared. The Government did not respond to the applicant’s requests for information and even denied that his brother was ever in custody. When the applicant’s brother was allegedly found dead, the Government claimed after some time that he was killed in a clash. Nevertheless, they made no contact at all with the family as regards identification or arrangements for burial. All the efforts of the applicant to find out what happened to his brother were callously disregarded by the authorities, thus leaving him in uncertainty and pain for over five and a half years. In such a case, I do not doubt that the applicant felt that he was being subjected by the Turkish Government to inhuman treatment.

The majority indicate that for a violation of Article 3 of the Convention it is not enough that a member of the family of a person who has disappeared should experience emotional distress, since this may be regarded as an inevitable consequence for the relatives of a victim of a serious human-rights violation. Whether a family member is a victim will, in the majority’s view, depend on the existence of special factors which give the applicant’s suffering a dimension and character distinct from that emotional distress (see paragraph 98 of the judgment). Without going into the merits of this criterion, I am not convinced that these special factors are not present in this case.

In the judgment, the majority draws a distinction between the instant case and the Kurt case (see the Kurt judgment of 25 May 1998, Reports of Judgments and Decisions 1998-III), in which the Court found a violation of Article 3 in relation to the mother of a person who had disappeared. It is obvious that the pain of a mother who sees her son arrested and then has to live in uncertainty about his fate because of the acts and negligence of the authorities must be unbearable. However, a brother can also suffer deeply in face of the uncertainty of the fate of a sibling. In this context, I also do not find convincing the reference made in the judgment to the fact that the applicant was not present when the security forces took his brother, as he lived with his own family in his own town. Nor do I find it persuasive that reliance is placed on the circumstance that, while the applicant was involved in making various petitions and enquiries to the authorities,

he did not bear the brunt of this task, his father taking the initiative in presenting the petition of 22 December 1993 to the Diyarbakır National Security Court. As far as the latter is concerned, I am more impressed by the fact that from the moment of the disappearance of his brother the applicant was actively involved in submitting various petitions and enquiries to the authorities and that he made the application to our Court.

The Turkish Government have been found responsible for one of the gravest possible violations of human rights, a failure to respect the right to life. Moreover, they left the applicant in uncertainty, doubt and apprehension about his brother for more than five and a half years. In doing so, they demonstrated a cruel disregard for his feelings and his efforts to find out about his brother’s fate. Apart from failing in their obligation to respect his brother’s right to life, the Government must also be held responsible for the severe mental distress and anguish the applicant has suffered for a prolonged and continuing period of time as a consequence of their acts and negligence. I find that these are factors which do amount to a violation of Article 3 in relation to the applicant himself.

partly dissenting opinion of JUDGE gölcüklÜ

( Translation )

To my great regret, I cannot agree on certain points with the opinion of the majority, for the following reasons.

As I explained in my partly dissenting opinion in the case of Ergi v. Turkey (judgment of 28 July 1998, Reports of Judgments and Decisions 1998-IV), when the Court finds a violation of Article 2 of the Convention on the ground that no effective inquiry has been conducted into the death complained of I consider that no separate issue arises under Article 13, because the fact that there was no satisfactory and appropriate inquiry into the death forms the basis of the applicant’s complaints under both Article 2 and Article 13. In that connection, I refer to my dissenting opinion in the Kaya v. Turkey case (judgment of 19 February 1998, Reports 1998-I) and the opinion expressed by a large majority of the Commission on the question (see Aytekin v. Turkey, application no. 22880/93, 18 September 1997; Ergi v. Turkey, application no. 23818/94, 20 May 1997; Yaşa v. Turkey, application no. 22495/93, 8 April 1997).

[1] Notes by the Registry

-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[3] 3. Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis.

[2] . Note by the Registry . Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States not bound by that Protocol.

[3] . Note by the Registry. For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry.