2.3.5 Incommunicado detention and enforced disappearances Article 5(3) of the Convention provides: “Everyone arrested or detained… shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” The European Regional System 2 The Court considers that “the unacknowledged detention of an individual is a complete negation of these guarantees and a most grave violation of Article 5. Having assumed control over that individual, it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been detained and has not been seen since.”395 The duty to investigate has been central in many cases relating to disappearances.396 In Aksoy v Turkey the government claimed that it had been necessary to hold the applicant incommunicado for fourteen days as part of its fight against terrorism. The Court found that “insufficient safeguards were available to the applicant, who was detained over a long period of time. In particular, the denial of access to a lawyer, doctor, relative or friend and the absence of any realistic possibility of being brought before a court to test the legality of the detention meant that he was left completely at the mercy of those holding him.”397 Therefore, the Court found a violation of Article 5(3); the exigencies of the situation could not justify incommunicado detention.398 Furthermore, incommunicado detention can amount to a breach of Article 8 of the Convention, which guarantees the right to respect for private and family life. In Sarı and Çolak v Turkey, the Court stressed that “it may be extremely important for a person who has been arrested to be able to communicate with his Orhan v Turkey, no. 25656/94, judgement of 18 June 2002, §369. See also Timurtaş v Turkey, no. 23531/94, ECHR 2000-VI, judgement of 13 June 2000, §103; Çiçek v Turkey, no. 25704/94, judgement of 27 February 2001, §164. 396 See for example, Kurt v Turkey, no. 24276/94, Rep. 1998-III, judgement of 25 May 1998; Çakıcı v Turkey, no. 23657/94, ECHR 1999-IV, judgement of 8 July 1999; Akdeniz and Others v Turkey, no. 23954/94, judgement of 31 May 2001. This duty is discussed in greater detail in section 2.2.2. 397 Aksoy v Turkey (1996), op. cit., §83. In reaching its decision, the Court referred to findings of reports of the CPT, CAT and Amnesty International (§80). See also Demir and Others v Turkey, Rep. 1998-VI, judgement of 23 September 1998, §§55, 57. 398 Aksoy v Turkey (1996), op. cit., §84. 395 82