ÇAKICI v. TURKEY JUDGMENT 37 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 humanrights 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,