The prohibition of torture - European Court of Human Rights

treatment which a disappeared person may have
suffered whilst “disappeared” can only be a matter
of speculation. The Court’s position is that the
acute concern which must arise in relation to the
treatment of persons apparently held without official
record and excluded from the requisite judicial
guarantees is an added and aggravated aspect of
the issues arising under Article 5 (deprivation of
liberty) rather than Article 3.
Nevertheless, the Court has recognised that
there is a duty to examine the impact of a disappearance
on the relative of the disappeared
person. In Kurt v. Turkey, where the applicant complained
about the disappearance of her son at the
hands of the Turkish army and local “village
guards”, the applicant had approached the public
prosecutor in the days following her son’s disappearance
in the definite belief that he had been
taken into custody. She had witnessed his detention
in the village with her own eyes and his nonappearance
since that last sighting made her fear
for his safety. However, the public prosecutor gave
no serious consideration to her complaint. As a
result, she was left with the anguish of knowing that
her son had been detained and that there was a
complete absence of official information as to his
subsequent fate. This anguish had endured over a
prolonged period of time.
In these circumstances, as well as finding that
the complainant was the mother of the victim and
herself the victim of the authorities’ complacency
in the face of her anguish and distress, the Court
found a breach of Article 3 in respect of the applicant.
The Court, however, explicitly stated that the
Kurt case does not establish any general principle
that a family member of a “disappeared person” is
thereby a victim of treatment contrary to Article 3.
Whether a family member is such a victim will
depend on the existence of special factors which
give the suffering of the applicant a dimension and
character distinct from the emotional distress
which may be regarded as inevitably caused to relatives
of a victim of a serious human rights violation.
Relevant elements will include the proximity of the
family tie – in that context, a certain weight will attach
to the parent-child bond – the particular circumstances
of the relationship, the extent to
which the family member witnessed the events in
question, the involvement of the family member in
the attempts to obtain information about the disappeared
person and the way in which the authorities
responded to those enquiries.
In the case of Ta , the Court found
that having regard to the indifference and callousness
of the authorities to the applicant’s concerns
and the acute anguish and uncertainty which he
suffered as a result, the applicant was a victim of
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