PARTLY CONCURRING OPINION OF JUDGE COSTA

I am in agreement with the conclusions of the judgment. On one point, however, I found it difficult to agree with my colleagues, since the case-law is, in my opinion, harsh and open to change. I refer to the applicant ’ s allegation that his brother ’ s abduction and death, and the indifference displayed by the authorities, had caused him grief and torment amounting to inhuman treatment. The Court dismissed this complaint.

The case-law is indeed full of nuances, and only rarely accepts that a family member of a victim is himself or herself the victim of a violation of Article 3 of the Convention. It accepted such a complaint, for instance, in the case of Kurt v. Turkey (judgment of 25 May 1998, Reports of Judgments and Decisions 1998-III), where the mother of an arrested person, who was present at the moment of arrest and was left without news of him (the prosecutor having not even examined her complaint), was considered to be the victim of a violation of Article 3 in her own right, on account of the prolonged anxiety that she had suffered.

In contrast, in the case of Çakici v. Turkey (no. 23657/94, ECHR 1999 ‑ IV), the Court did not accept that the applicant had been the victim of a violation of Article 3, since he had not been present when the security forces had taken his brother, had not personally borne the brunt of making petitions and enquiries to the authorities, and there had not been any aggravating features arising from the response of the authorities (see Çakici, § 99). I note that the Commission, by a very large majority, had expressed the opposite view.

In this case, the applicant, the victim ’ s brother, was not present during the latter ’ s abduction by the police, which was witnessed by several others. However, he himself took numerous steps, particularly in contacting the prosecutor and the court. A week after the abduction, alerted by the police, he saw his brother ’ s corpse, which showed particularly horrible signs of torture. In addition, the present judgment finds that the Government were responsible for the death and that their authorities failed to carry out an effective investigation into the circumstances of the murder ( a two-fold violation of Article 2).

In those circumstances, one could have argued that the applicant ’ s sufferings in the present case amounted to inhuman treatment.

I have not gone that far, for two reasons. Firstly, the distress arising from a lengthy disappearance, which, incidentally, prevents a family from going through what is known as the grieving process, is probably more inhuman than rapid discovery of a murder, although grief itself may give rise to very great suffering. Secondly, the case-law takes account of the proximity of the family tie and attaches greater weight to the parent-child bond than to the sibling bond (see Çakici , § 98). Nonetheless, I remain very hesitant in the present case.

[1] The Kurdistan Workers’ Party