KURT JUDGMENT
47
PARTLY DISSENTING OPINION OF JUDGE MATSCHER
(Translation)
While I am conscious of the difficulties which the Commission faces in
cases of this type, I consider that in the present case the manner in which it
established the facts, which were accepted by the Court, was so superficial
and insufficient and the analysis of those facts so clearly unsatisfactory that,
in my view, neither provides a sufficiently sound basis for a finding of a
violation. Furthermore, a careful study of the summary of the Commission’s
findings (see paragraphs 45–53 of the judgment) confirms that view,
without it being necessary for me to go into detail.
None of the many witnesses heard by the local authorities or by the
delegates of the Commission were able to say that the applicant’s son had
been taken away by the soldiers; the mere fact that the applicant “genuinely
and honestly believed” (see paragraph 53) that such was the case does not
amount to proof, especially as most of the witnesses said the opposite or
declared that they had no personal direct knowledge of what, in this
connection, is the crucial issue in the case.
Ultimately, here, as in the Menteş and Others v. Turkey case (judgment
of 28 November 1997, Reports of Judgments and Decisions 1997-VIII), the
applicant failed by a large margin to prove the truth of her allegations
beyond all reasonable doubt.
On a separate issue, I voted in favour of finding a violation of Article 13
because, in a case as serious as this one, the authorities of the respondent
State failed to carry out a genuine and thorough investigation.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents