KURT JUDGMENT 49 DISSENTING OPINION OF JUDGE PETTITI (Translation) I voted with the minority on the operative provisions relating to Articles 5 and 13 and with the majority on the operative provisions relating to Articles 2, 3, 14 and 18. As regards Mrs Kurt personally, I voted with the minority on the operative provisions relating to Articles 3 and 25. I did not find a breach in the instant case (Article 5), mainly because I did not agree with the majority’s reasoning. The majority looked at the case as though it were an international criminal court trying a person suspected of a serious crime (crime) while using the personal conviction (intime conviction) standard applied in French and Belgian criminal courts. But that type of textbook example concerns the trial of an individual, whose evidence is weighed against that of all the witnesses. The Kurt case concerns a presumed disappearance. Under the ordinary criminal law, disappearances may involve cases of running away, false imprisonment or abduction. Under public international law, a policy of systematic political disappearances may exist, as occurred in Brazil, Chile, Argentina, etc. In such cases, especially where they have been verified by the European Committee for the Prevention of Torture, it is for one or more member States of the Council of Europe to lodge an application against the State concerned. It would be cowardly to avoid the problem by leaving the Court to decide on the basis of an application by an individual. An application by a State would occasion an international regional inquiry enabling the situation to be assessed objectively and thoroughly. I could have found that there had been a violation if the case had concerned instructions given by the army, gendarmerie or the police, both with regard to the security operations and to the verification of their implementation and follow up. That would have come within the line of authorities established in the Ireland v. the United Kingdom (judgment of 18 January 1978, Series A no. 25) and McCann and Others v. the United Kingdom (judgment of 27 September 1995, Series A no. 324) cases (inadequate command and supervision, negligence and lack of subsequent review). In the system of the European Convention on Human Rights, the fact that States are liable for the failings of the authorities of which they are composed means that the Court must identify the authorities and police or army units responsible. The Kurt case was in any event deficient in that there was no investigation of the type performed in cases before the Hague International Criminal Court and one of the main witnesses and the commanding officers of the gendarmerie units did not give evidence at the trial. The Commission itself acknowledged that it had doubts. The majority of the Court speculates on the basis of a hypothesis of continued detention