|ECHR Grand Chamber judgment raises concern over future 'disappearance' cases|
A judge of the European Court of Human Rights has distanced himself from a troubling Grand Chamber judgment concerning the 'disappearance' of a Kurdish farmer in Southeast Turkey in 1994.  The case has raised issues closely allied to the upcoming ECHR reform in May 2004.
Mehmet Selim Acar had been working in a field when two armed men, claiming to be police officers, abducted him. He has since 'disappeared'. KHRP took a case to the European Court on behalf of the victim's brother, Tahsin Acar. 
On 8 April 2004, the European Court held that the Turkish Government had neglected to conduct any adequate and effective investigation into the disappearance in 'procedural' violation of the right to life (Article 2 ECHR). The European Court also found that the respondent State had failed to comply with Article 38 ECHR, which binds States to cooperate fully with the Court in any investigation aimed at establishing the facts.
However, the statements of two eyewitnesses that contested the applicant's account led the Court to conclude that it had not been established 'beyond reasonable doubt' that the Turkish Government's responsibility had been engaged in the abduction and disappearance, in 'substantive' violation of the right to life (Article 2 ECHR).
Earlier ECHR decisions have emphasised that the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities. 
Judge Bonello, who voted 'with marked reluctance' for not finding a substantive violation of Article 2, criticised the judgment for failing to confront the concerns underlying the problem from a 'wholly different perspective':
"... The Court was faced with a situation, acknowledged and stigmatized, in which the State [...] made nugatory or impossible the availability of potentially relevant evidence. [...] It is for me [...] 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... I feel I must distance myself from moral deficit such as this.
"... 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 rogue states in their efforts to rig sham investigations, and encourage the suppression of incriminating evidence."
The European Court did not hold a fact-finding hearing in the case, in which the applicant and government witnesses could have been cross-examined in order to establish the facts.
The decision is made all the more inequitable by the Court's earlier decision to 'strike out' the case; a decision that was reversed by a landmark Grand Chamber ruling on 6 May 2003.
Determined to resolve its backlog of cases and spiralling costs, the European Court decided on 9 April 2002 to 'strike out' the case considering that continued examination was 'no longer justified'.  This followed the applicant's refusal of an offer of friendly settlement from the Turkish Government, which he considered was not sufficient to resolve his case. The strike out decision occurred in the context of discussions to reform the ECHR to limit the number of cases requiring judicial examination; raising concerns among leading human rights organisations that the reforms would curtail the rights of individuals to receive binding judgments on whether their rights under the ECHR have been violated. The Council of Europe's Committee of Ministers is scheduled to debate and adopt the reforms on 12-13 May 2004.  KHRP and other leading NGOs have prepared a joint response to the upcoming reforms including their concerns and recommendations. 
On 8 July 2002, KHRP requested that the case be referred to the Grand Chamber, which is mandated to consider cases where they raise a serious question affecting the interpretation or application of the ECHR, or a serious issue of general importance. At a Grand Chamber hearing in January 2003, KHRP's legal team argued that it is not appropriate to strike out or dispose of an application on the basis of a declaration from the respondent government that does not admit the breach of the fundamental human rights alleged in the application.
In its unprecedented ruling on 6 May 2003, the Grand Chamber confirmed that it should be very slow to strike out cases where an allegation of disappearance is made and that an examination of the case on the merits should now take place.
While that examination of 8 April 2004 did find the Turkish Government in violation of the ECHR, its limited scope has disappointed the applicant, his legal team and the Italian judge of the European Court, who commented,
" ... The failure by the Court to find a 'substantive' violation of Article 2 had dismal consequences for the applicant: no material damages could be, or were, awarded... The Government which, in the course of the proceedings, had spontaneously offered the applicant £70,000 in compensation, can now get away with a hand-out of 10,000 euros, the fair market price, it seems, for the life of a man who never was."
Kerim Yildiz, Executive Director of KHRP, comments, "We overall welcome the Grand Chamber judgment which holds the Turkish Government responsible for violating Mehmet Selim Acar's right to life and vindicates concerns that the 'strike out' procedure had been used inappropriately to dispose of an application that was manifestly well-founded. Nevertheless, the failure to find a substantive violation of Article 2, and upcoming reforms to the ECHR admissibility criteria, both threaten to undermine one of the cornerstones of the ECHR system, namely the right of individuals to obtain redress for violations of their human rights. It is crucial to the future effectiveness of the European Court system that the concerns of KHRP and other human rights organisations are addressed during the adoption of reforms and in the consideration of future 'disappearance' cases."
NOTES FOR EDITORS:
 The Grand Chamber judgment of Tahsin Acar v. Turkey (26307/95), 8 April 2004, is available from the European Court of Human Rights: http://www.echr.coe.int/
 The applicant complained of the unlawfulness and excessive length of his brother's detention, of the ill-treatment and torture to which his brother had been subjected in detention, and of the failure to provide his brother with the necessary medical care in detention. The applicant invoked Articles 2, 3, 5, 6, 8, 13, 14, 18, 34 and 38 of the ECHR.
[3-] See KHRP case of Ipek v. Turkey (25760/94):
164. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the authorities are under a duty to protect them. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see, amongst other authorities, Avsar, cited above, § 391). The obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see Orhan, cited above, § 326).
165. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; Çakici, cited above, § 85; Ertak v. Turkey, no. 20764/92, § 32, ECHR 2000-V, and Timurtas v. Turkey, no. 23531/94, § 82, ECHR 2000-VI, and Orhan, cited above, § 327).
 In a strong dissenting opinion, Judge Loucaides argued that there was no acceptance by the Government for the ECHR violations complained of and that he feared that, "the solution adopted may encourage a practice by States - especially those facing serious or numerous applications - of "buying off" complaints for violations of human rights through the payment of ex gratia compensation, without admitting any responsibility and without adverse publicity."
 'Updated Joint Response to Proposals to Ensure the Future Effectiveness of the European Court of Human Rights' is available at www.khrp.org