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ISAAK v. TURKEY - 44587/98 [2008] ECHR 553 (24 June 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/553.html
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[2008] ECHR 553
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FOURTH
SECTION
CASE OF
ISAAK v. TURKEY
(Application
no. 44587/98)
JUDGMENT
STRASBOURG
24 June
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Isaak v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Işıl
Karakaş,
judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 28 September 2006 and on 3 June 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 44587/98) against the Republic
of Turkey lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by five Cypriot nationals, Mrs Maria A. Isaak,
Mr Isaak A. Isaak, Mrs Anastasia I. Isaak,
Ms Kyriaki I. Isaak and Ms Andriani I. Isaak (“the
applicants”), on 31 January 1997.
The
applicants were represented by Mr C. Candounas, Mr P. Angelides
and Mr A. Papacharalambous, lawyers practising in Nicosia. The
Turkish Government (“the Government”) were represented by
their Agent, Mr Z.M. Necatigil.
The
applicants alleged that the killing of one of their relatives,
Mr Anastasios Isaak, amounted to a breach of Articles 2, 8 and
14 of the Convention.
The
application was transmitted to the Court on 1 November 1998, when
Protocol No. 11 to the Convention came into force (Article 5 § 2
of Protocol No. 11).
By
a decision of 28 September 2006 the Court declared the application
admissible.
The
applicants and the Government each filed further written observations
(Rule 59 § 1). In addition, third-party comments were received
from the Government of Cyprus, who had exercised their right to
intervene (Article 36 § 1 of the Convention and Rule 44 § 1
(b)). The parties replied to those comments (Rule 44 § 5).
THE FACTS
The
applicants were born in 1977, 1944, 1951, 1974 and 1979 respectively.
The first applicant lives in Ayia Napa and the remaining applicants
live in Paralimni. The first applicant is the widow, the second and
third applicants are the parents and the fourth and fifth applicants
are the sisters of Mr Anastasios (Tassos) Isaak, a Greek Cypriot, who
died on 11 August 1996.
The
deceased, Anastasios Isaak, participated in a demonstration organised
by the Cyprus Motorcycle Federation (CMF) that took place on
11 August 1996 at several points of the United Nations (UN)
buffer zone east of Nicosia, including the area of Dherynia. The
demonstration, details of which are in dispute between the parties,
was the subject of a report by the UN Forces in Cyprus (UNFICYP)
(report of 15 August 1996) and by the UN Secretary
General (report S/1196/1016 of 10 December 1996).
A. The applicants' version of the
facts
1. Background
to the demonstration
9. The
demonstration was organised by the CMF and was aimed at protesting
against the Turkish occupation of the northern part of Cyprus. On
2 August 1996 a group of over one hundred Cypriot and other
European motorcyclists set off from Berlin and made their way through
Europe to Cyprus. Tensions arose when the authorities of the “Turkish
Republic of Northern Cyprus” (“TRNC”) announced
that in the event the demonstration took place, they would be
organising “counter-rallies” with the participation of
the Turkish extremist “Grey Wolves” group and that they
would fire at Greek-Cypriot demonstrators. Throughout the relevant
period the Government of Cyprus and the competent authorities
monitored developments and were in constant consultation with the UN.
On 11 August 1996, in the morning, following an urgent appeal by
the UN Secretary General, a meeting was held under the Chairmanship
of the President of the Republic and it was decided to cancel the
final part of the rally. Consequently, the President of the Republic
made a special plea to the motorcyclists to disperse peacefully.
10. Notwithstanding
that plea, on 11 August 1996, a group of motorcyclists and other
civilians acting spontaneously proceeded to various points along the
UN buffer zone. In the meantime, the Cypriot police had taken tight
security measures in order to prevent the motorcyclists from entering
the buffer zone.
2. The
demonstration
11. Anastasios
Isaak was part of the above-mentioned group. He had joined the rally
with a friend on his motorbike.
12. At
about 2.30 p.m. the motorcyclists, including Anastasios Isaak,
arrived at the Dherynia roadblock, where they left their motorcycles
and proceeded to cross the National Guard ceasefire line on foot,
after breaking through the police and UN cordon. The demonstrators,
who were unarmed, entered the buffer zone.
13. Behind
the ceasefire line of the Turkish forces, a mob gathered, comprised
of Turkish-Cypriot and Turkish civilians, many of them carrying
hunting rifles and air guns, iron bars, wooden sticks, batons, stones
and catapults. There were also many Turkish soldiers and “TRNC”
policemen armed with automatic and other military weapons. According
to the report by UNFICYP, the Turkish forces allowed about 1,000
persons in buses to pass through their 3 km military zone and
assemble there. Some of them belonged to the “Grey Wolves”
organisation.
14. Between
approximately 3 p.m. and 3.30 p.m. many stones were thrown on both
sides. Shots were fired against the Greek-Cypriot demonstrators, some
of whom suffered injuries as a result.
15. Between
3.30 and 4 p.m. the mob in the occupied area entered the buffer zone.
They were armed with long sticks, batons and iron bars. At
approximately 4.30 p.m. a group of the Turkish mob, together with
uniformed policemen, managed to isolate several Greek-Cypriot
demonstrators whom they started beating. A group of about 15-20
persons, including five uniformed policemen, surrounded Anastasios
Isaak, who had been isolated in the buffer zone and was unarmed.
Anastasios Isaak was thrown to the ground after having being chased.
During a period of approximately five minutes he was kicked and
beaten continuously on every part of his body and his head with metal
and wooden batons. There were in total eight “TRNC”
police officers in the vicinity.
16. When
the UNFICYP police officer Frank Flood tried to intervene and started
pushing some of the attackers away, Anastasios Isaak was already
unconscious with blood coming out of his mouth and nose. Officer
Flood was also attacked from behind. According to Officer Flood's
statement (see paragraph 29 below), there had been approximately
twelve people surrounding Anastasios Isaak at that moment, including
a number of uniformed policemen. When the attackers eventually moved
away, Officer Flood tried to trace signs of life. As the officer
stood up, one of the attackers threw a large stone at Anastasios
Isaak's head. This struck Anastasios Isaak on the right hand side of
his head, causing him to jerk. The attacker then ran away.
17. UNFICYP
officer Sergeant Lorraine Stack, who had been helping out another
Greek-Cypriot demonstrator a few metres away, went to Officer Flood's
assistance. The two UNFICYP officers then dragged Anastasios Isaak's
body to the area controlled by the Cypriot Government. Greek-Cypriot
demonstrators then took the body and put it in a car. The car was
driven towards the guard room of the National Guard and
Anastasios Isaak was transferred to Paralimni Hospital. On the
way to hospital Anastasios Isaak had no pulse and was not breathing,
despite the efforts of the medical staff in the ambulance. At the
hospital the doctors' efforts to revive him continued but to no
avail. Anastasios Isaak was pronounced dead at the hospital. His body
was then transferred on the same day to Larnaca General Hospital.
3. The
investigation into the killing
18. On
12 August 1996, members of the police, escorted by members of UNFICYP
and State pathologists Mr P. Stavrianos and Mr S. Sophocleous,
visited the scene of the incident and carried out an examination.
During this examination several exhibits were photographed and
recorded on video by the police. UNFICYP Sergeant Dale Roberts
examined the scene of the incident and detected drops of blood stains
on the ground and on a stone. Various objects were found such as
glass marbles, metal bars, shotgun cartridges, wooden sticks, blood
stains on a rusty metal can and plate fragments, which were all taken
as exhibits. Soil stained with blood was also recovered for further
examination.
19. On
13 August 1996 Professor Peter Vanezis, from the Department of
Forensic Medicine and Science of Glasgow University, arrived in
Cyprus to perform the post-mortem examination. On the same day and
before the post mortem, Professor Vanezis visited the scene
accompanied by State pathologists Mr P. Stavrianos and Mr S.
Sophocleous and members of the police. The team was escorted by
members of UNFICYP. During the examination further exhibits were
found, such as blood stains, a blood stained piece of wood and a
piece of piping. All the exhibits were photographed and recorded on
video by the Cyprus police.
20. On
the same date a post-mortem examination was performed by Professor
Vanezis,
assisted by two State pathologists. Members of the police and UNFICYP
were also present. The entire process of the examination was
photographed and recorded on video. During the examination various
exhibits were taken by Professor Vanezis, which were later delivered
by the police to him in Glasgow for further laboratory analysis.
21. According
to the post-mortem examination, the cause of death was multiple blunt
trauma to the head. The same conclusion appeared in the preliminary
post-mortem report issued by Dr M. Enk of UNIFCYP and also in
Professor Vanezis's final report issued on 17 September 1996.
Furthermore, according to the report issued on 9 September 1996 by
Dr John S. Oliver, Senior Lecturer in Forensic Medicine
(Toxicology) in the Department of Forensic Medicine and Science of
the University of Glasgow, the results of the analysis of the blood
and urine samples of Anastasios Isaak for alcohol and drugs were
negative.
22. The
forensic examination carried out by UNFICYP found that the blood on
the rusty can, on the stone, in the soil and on the shirt worn by
Officer Frank Flood during the incidents belonged to the same blood
group as that of Anastasios Isaak.
B. The Government's version of the
facts
1. Background
to the demonstration
The
demonstration was organised by Greek Cypriots as an alleged
motorcycle rally and began on 1 August 1996 in Berlin. This
rally was actively supported by the Greek-Cypriot authorities and had
extensive media coverage. The aim of the rally was to forcibly enter
the buffer zone, cross the ceasefire line and enter “TRNC”
territory illegally in order to meet at the most northerly town of
Kyrenia at all costs. As a result of the aggressive conduct of the
organisers, tensions arose on both sides of the border. The
Greek-Cypriot administration did nothing to prevent the rally in
spite of appeals by the Turkish-Cypriot side and the UN
Secretary-General. In view of this, the Turkish-Cypriot side
announced that it would stop such provocative, hostile and aggressive
action at its borders in order to prevent danger to the lives and
properties of its citizens.
Upon
representations from UNFICYP as to the possibility of such
demonstrations having serious consequences, the President of the
Republic of Cyprus issued a statement on 11 August 2006 declaring
that the demonstrations had been prohibited and appealed to the
demonstrators to disperse. Acting upon this, the Turkish-Cypriot
demonstrators started to disperse peacefully.
2. The
demonstration
Nonetheless,
on 11 August 1996, Greek-Cypriot demonstrators were involved in
violent incidents at various places along the ceasefire lines within
the UN buffer zone. Over a thousand Greek-Cypriot motorcyclists and
demonstrators arrived at Dherynia escorted by the Greek-Cypriot
police. The latter allowed the demonstrators to advance and to enter
the UN buffer zone up to the border with the “TRNC”. The
UN personnel were unable to prevent the demonstrators' unauthorised
entry into the buffer zone and to keep them under control. The
situation then got out of control as Greek-Cypriot demonstrators
threw stones and missiles and fired towards the
counter-demonstrators. Skirmishes took place between the
Greek-Cypriot mob and a group of Turkish-Cypriot
counter-demonstrators, when the former crossed into the buffer zone
and consequently into the Turkish-Cypriot-controlled area.
As
a result of the clashes both Turkish-Cypriot and Greek-Cypriot
demonstrators were injured. Anastasios Isaak was the leader of the
group of Greek Cypriots who had entered the UN buffer zone and
approached the barbed-wire fence at the Turkish Cypriot ceasefire
line at Dherynia shouting abuse and throwing stones from close range
at a line of Turkish-Cypriot policemen on the other side of the
fence. One of the stones hit a policeman who was wounded on the
temple and fell to the ground, bleeding profusely. It had not been
possible for the Turkish-Cypriot police to prevent Turkish-Cypriot
groups of civilians from entering the buffer zone to pursue the Greek
Cypriots. The Turkish-Cypriot policemen also entered the buffer zone
to bring back the Turkish Cypriots who had already gone into that
area. However, Anastasios Isaak, who was a strong and well-built man,
continued his aggressive attitude against the Turkish-Cypriot group,
including the police, throwing stones and hitting them with a stick.
Skirmishes continued between the Greek-Cypriot and the
Turkish-Cypriot demonstrators, resulting in the unfortunate death of
Anastasios Isaak, who had become entangled and trapped in spiral
barbed-wire barriers that had been put up temporarily by the UN force
and had prevented his escape from that area.
C. Documents
and materials submitted by the parties
1. Documents and materials submitted by the applicants
(a) Report by UNFICYP concerning the
demonstration
In
its report of 15 August 1996 UNFICYP set out the facts concerning the
demonstrations held on 11 August 1996. The relevant extracts read as
follows:
“8. The most serious incident took place in
Dherynia. On Sunday morning, a peaceful demonstration by some 250
Greek Cypriots took place. They entered the United Nations buffer
zone and requested to deliver a petition to the Turkish-Cypriot
checkpoint. When the latter refused to receive the petition, the
demonstrators left the United Nations buffer zone, but remained in
the area. At 14.30 hours, some 300 motorcyclists together with
some 700 persons in vehicles escorted by Cypol [Cyprus police]
arrived at the NG [National Guard] ceasefire line checkpoint in
Dherynia. Cypol deployed along the NG ceasefire line but left the
checkpoint unattended, thus enabling the demonstrators to enter the
United Nations buffer zone unimpeded.
9. In the meantime, the Turkish forces had allowed some
1,000 persons in buses to pass through their 3 km deep military zone
and to assemble along the TF [Turkish Forces] ceasefire line,
including persons carrying the flag of the Grey Wolves who had come
from Turkey.
10. The situation soon became violent, after
Greek-Cypriot demonstrators entered the buffer zone and approached
the TF ceasefire line to provoke the TF, the TCPE [Turkish-Cypriot
Police Element] and demonstrators assembled there with verbal abuse
and throwing stones. Cypol was not effective in controlling the
Greek-Cypriot demonstrators.
11. At about 16.00 hours, the Turkish Forces allowed the
Turkish-Cypriot demonstrators to enter the United Nations buffer zone
armed with bats and iron bars. The Turkish-Cypriot demonstrators,
joined by the Turkish-Cypriot Police, proceeded to pursue the Greek
Cypriots and mercilessly beat all those who they were able to catch.
At the same time, there was shooting, including by Turkish-Cypriot
police, from behind the Turkish Forces ceasefire line towards the
Greek-Cypriot demonstrators.
12. During this period, a Greek-Cypriot demonstrator,
Anastasios Isaak, was beaten to death by a number of Turkish-Cypriot
demonstrators, including three Turkish-Cypriot policemen. By 18.00
hours the situation began to calm down. In addition to the one dead,
it was reported that some 54 Greek Cypriots and 17 Turkish Cypriots
were injured. 12 UNFICYP personnel suffered injuries.
13. The UNFICYP investigation revealed conclusively that
the killing of Anastasios Isaak had occurred some 50 metres from
the scene shown on television in which three Greek Cypriots were
being severely beaten by Turkish-Cypriot demonstrators while
helplessly entangled in barbed wire. Two UNFICYP Irish Civilian
Police had done their best in trying to rescue Anastasios Isaak at
considerable personal risk.
14. The two United Nations Civilian Police had observed
two Greek-Cypriot demonstrators being set upon by two groups of
Turkish-Cypriot demonstrators who proceeded to beat them with brutal
force. The two United Nations Police went to the assistance of one of
the Greek Cypriots and managed to facilitate his escape. When they
turned to the second Greek Cypriot (Isaak), and were finally able to
push aside the Turkish Cypriots, including three Turkish-Cypriot
policemen, who were still beating him, it was too late. The location
of the killing inside the buffer zone was about 95 metres from the
National Guard ceasefire line and about 32 metres from the Turkish
Forces ceasefire line.
15. A video broadcast on 'Euronews' inter alia
clearly shows the killing of Anastasios Isaak and the intervention of
the two United Nations police. The autopsy, attended by UNFICYP,
which was performed later in the afternoon of 13 August, revealed
that Anastasios Isaak died of 'multiple blunt trauma to the head'.
UNFICYP has completed the collection of the evidence at the scene of
the crime and is in the process of completing its investigation in
cooperation with Cypol...”
(b) Statements taken by UNFICYP
Following
the events, UNFICYP took statements from its officers who were on
duty at the Dherynia checkpoint.
(i) Statement by Garda (Police Officer)
Frank Flood
The
witness was on duty at Dherynia checkpoint on 11 August 1996 between
3 p.m. and 8 p.m. In his statement of 13 August 1996 he reported,
inter alia, the following:
“... At approximately 4.30 p.m. I observed
approximately 100 Turkish-Cypriot protesters enter the buffer zone.
They ran towards the Greek-Cypriot side of the buffer zone. They were
accompanied by a number of TCPE policemen and Turkish Military
personnel in camouflage uniform. I observed a number of Greek-Cypriot
men running from the Turkish-Cypriot crowd in the direction of UN
OP143. The Turkish Cypriots were armed with sticks and large batons.
I observed one man being caught and beaten to the ground by the
Turkish-Cypriot crowd. This man was immediately surrounded and
attacked while he was on the ground. I would describe this man as
having long black hair tied into a pony tail. He was wearing a black
sleeveless jacket and dark trousers. I rushed forward to attempt to
assist him. As I went forward I was accompanied by Sergeant Carney
and Sergeant Stack. I heard Sergeant Carney shout at a TCPE policeman
to leave the buffer zone. This policeman was armed with a metre-long
baton and a riot shield. He appeared to hesitate for a moment but
then he moved towards the group of people who were attacking the man
on the ground. I moved into this group, Sergeant Stack was beside me.
We pushed a number of people away from the man on the ground. I was
struck by the baton of a TCPE policeman on my right shoulder. I am
unable to describe this policeman except that he was wearing uniform.
Eventually we managed to clear a small space around the man on the
ground and Sergeant Stack managed to get this man on his feet while I
pushed the crowd back. I then observed another man being knocked to
the ground approximately 10 metres away. I observed that he was
being kicked, punched and struck by a number of people including TCPE
policemen. Sergeant Stack was pushing the first man towards the
Greek-Cypriot side of the buffer zone. I ran over to assist the
second man. I would describe this man as wearing a white T-shirt and
faded blue jeans. As I approached this man I observed that he
appeared to be unconscious and there was blood coming from his nose
and mouth. I pushed one man away from the man on the ground and
shouted at the crowd 'Stop. You'll kill him.' I was attacked from
behind. There were approximately 10 or 12 people around the man on
the ground at this stage including a number of TCPE policemen. I
pushed some of these people away and eventually the attackers moved
away. I briefly checked the man on the ground for signs of life. I
observed no sign of life. I stood up and as I did so I observed a man
who was wearing a grey sleeveless T-shirt, he had black hair and was
approximately 5'5” in height, I would not be able to identify
this man if I saw him again. This man had a large stone, held in both
his hands, raised above his head. This man threw the stone at the man
on the ground. The stone stuck the man on the ground on the right
hand side of his head causing him to jerk. The man who threw the
stone immediately turned and ran away. I observed that the crowd of
attackers appeared to be returning. I lifted the man on the ground
into a sitting position and dragged him a short distance. Sergeant
Stack came to my assistance and assisted me in dragging the man
towards the Greek side of the buffer zone. We had covered a distance
of about 30 metres when I was attacked by a group of 5 or 6 Greek
Cypriots. I was knocked to the ground and the man we were dragging
was taken away from us. I moved back a short distance and I observed
the injured man [being] taken towards the Greek-Cypriot side of the
buffer zone...”
(ii) Statement by Garda Sergeant Lorraine
Stack
The
witness was on duty at Dherynia checkpoint on 11 August 1996 from 8
a.m. In her statement of 13 August 1996 she
reported, inter alia,
the following:
“...At approx. 03.30 hrs the people on the Turkish
side of the CFL [Ceasefire Line] began to enter the BZ [Buffer Zone]
in groups of 50 approx. I saw them charge at civilians who, after
running towards the Turkish CFL, were running towards the NGCFL
[National Guard ceasefire line] heaving stones and missiles. The
people from the Turkish side had long sticks and batons and began
savagely beating any civilian they could catch. I saw TCPE members
enter the BZ with uniform and beat the civilians already in the BZ
who were from the NG side. There was no difference between the
behaviour of the Turkish civilians in the BZ and the TCPE there in
uniform. They acted like a mob beating severely any person they could
catch from the other side who was in the BZ. Again I ran to numerous
incidents, however, these were spread over a large area of ground in
the buffer zone. It was approx. 60 metres in depth and 200 metres in
length. The attacks were sporadic again, the groups from the Turkish
side would return to their CFL and regroup. These attacks were very
violent. I was standing approx. 40 metres from the Turkish ceasefire
line during these times changing position as the missiles were being
aimed at the civilians close to me. Throughout these incidents I
could hear shots being fired from the Turkish CFL, again not
continuous but sporadic. This scene continued until approx. 17.00
hrs. At approx. 16.30 hrs I was standing approx. 40 metres from the
Turkish ceasefire line in the Buffer Zone and approx. 40 metres from
the road that links the Turkish Forces checkpoint with the National
Guard check point at Dherynia. In front of me I saw a group of about
15 people chase a person (civilian) and begin to beat him with sticks
and batons. I ran to his assistance. The group of approx. 15 were
dressed in TCPE uniform and civilians from the Turkish side. The man
beaten was from the NG side and he was attempting to get away. I saw
him being beaten to the ground, he was kicked continuously and beaten
savagely on the head and body. I got to him and saw Police Officer
Flood to my left. I went over to him and pushed the attackers back. I
was also assaulted by the attackers during this, however, the blows
from the sticks that hit me on my arms and back, were not intended
for UN personnel. I saw at least two TCPE in uniform there and when
they desisted on seeing us the rest of the group began to move back.
... I pushed him towards the NGCFL and he then began running, ...
As I turned to stop any more attackers I saw Police Officer Flood
attempting to lift a person off the ground. It was a short distance
forward towards the TCFL [Turkish-Cypriot Ceasefire Line] I went to
his assistance. I looked at the man's face and it was my opinion at
the time that he was dead. I shouted (noise level) at PO Flood: 'Give
me half of him, we'll drag him.' At this time there were some people
with batons in front of us. We dragged him back approx. 30 metres
towards the NGCFL ensuring he was not beaten again. Approx. 30 metres
back we were met by some civilians from the NG side. They verbally
abused us and pushed us taking the body from us. Going to NGCFL we
moved away slowly from them after letting go of the body. I would
describe this man as follows: - 25 yrs of age approx., heavy built
approx. five foot 10 inches. He had a stubbly face, he had long black
hair and he was wearing jeans and a white t-shirt. He was very pale
at the time and there was blood coming from his head, nose and mouth.
There were no life signs during this removal. I went back to the
scene of more incidents. ...
The times I have written into this statement are
approximations. At 7.10. pm I went to Paralimni Hospital and viewed a
body there. I can identify this body as being the second man whose
assistance I went to and carried back 30 metres in the direction of
the NGCFL. I spoke with Supt. Anastassiou of CYPOL who gave me the
deceased name as being Tassos Isaak from Costa Palma, Paralimni. I
also identified this body to my Deputy Commander Superintendent
Cosgrave as being the man I dragged out of the Buffer Zone, who was
in my opinion dead. ...”
(iii) Statement by Sergeant John Carney
The
witness was on duty at Dherynia checkpoint on 11 August 1996 from 8
a.m. In his statement he reported, inter alia, the following:
“...At approximately 4.25 p.m. I observed a TCPE
member who was armed with a baton assault a man who was dressed in
blue jeans and a white t-shirt. I now know this man to be Anastasios
Isaak. PO Frank Flood was near me at this moment. I ran towards the
TCPE member and called out to him 'You are a policeman, stop'. I
shouted this at him several times. He then stopped. I was approx. 10
metres from this policeman, Anastasios Isaak ran to my right towards
the road between OP 143 at the TKCYP [Turkish-Cypriot] checkpoint. He
was being pursued by a number of TKCYP civilians armed with long
sticks and other weapons including metal poles. I ran towards where
Anastasios Isaak was when a person whom I presume was a TKCYP
attempted to assault me with a metal pole. I swerved to avoid him. He
ran off. I then observed the same TCPE member run towards where
Anastasios Isaak was being pursued by other TKCYP civilians. He was
being continually hit from behind on the head and on the back by
these people with wooden and metal poles. I observed the TCPE member
also strike Anastasios Isaak with his baton. I was running towards
this mob when I was struck by several missiles on my left hand side.
I was then hit from behind with a plastic bottle of water. Two GKCYP
youths then came from my side and knocked me to the ground. They
kicked me several times while I was on the ground. I managed to get
to my feet. These youths were shouting at me 'Why don't you save this
man, you mother-fucking UN bastard?' They repeatedly kicked me and
shouted abuse. Then a youth on a four wheel yellow motorcycle drove
straight at me and struck me on my left-hand side. I was knocked to
the ground. He turned his motorcycle and drove at me again. I got to
my feet and he drove past me and went towards the GKCYP CFL. I looked
towards where Anastasios Isaak was, he was surrounded by TKCYP
civilians and the TCPE member who I had confronted a short while
previously. There were other TCPE members and TF in military uniform.
Anastasios Isaak was being repeatedly hit with batons and sticks by
civilians and TCPE and TF. They also kicked him savagely on the
ground. I saw PO Frank Flood go towards this mob. They began to
disperse. I then was again confronted with several GKCYP youths who
kicked and pushed me. They screamed abuse at me shouting 'why do the
UN not help the GKCyps?'. I then observed Sgt Stack and PO Flood drag
Anastasios Isaak to safety. A mob then took him from Sgt Stack and PO
Flood. All this time the noise level was intense, missiles were being
continually thrown from both sides...”
(iv) Statement by Superintendent M.
Cosgrave
The
witness, the deputy commander of the Irish Civilian Police
(IRCIVPOL), was on duty at Dherynia checkpoint on 11 August 1996 from
8 a.m. In his statement he reported, inter alia, the
following:
“...At about 4.20 p.m. I saw a man running along
horizontally with the patrol track leading from UM OP 142. As he ran
he was hit several times on the head by a group of four to five
people who were running after him. He eventually fell to the ground
and was kicked and beaten to the ground by the group who included at
least one uniformed Turkish policeman. I was about 20 metres from
this incident as it enfolded. There was continuous shouting and
severe noise as both groups chased each other in the BZ. I moved
towards the man on the ground in an effort to save his life. I also
saw that Sgt Lorraine Stack was with this group and moved towards the
injured man. As this stage Sgt Lorraine Stack and Garda Flood removed
the injured man and he was taken away by his friends. I now know this
man to be Anastasios Isaak, DOB [date of birth] 10/2/71 of Costa
Palama 13, Paralimni. The Turkish police moved into the buffer zone
and with the assistance of UN personnel the Turkish demonstrators
were pushed out of the BZ and on to behind the CFL. At that stage the
Greek demonstrators were moving back towards the Greek CFL with the
assistance of UN personnel.
...
I then identified the area where the injured person was
attacked and sometime later I was informed that he had died. At 7.10
p.m. accompanied by Sgt Lorraine Stack and Sgt George Kulmer AUSCON
[Austrian Contingent], photographer, I went to Paralimni Hospital
where the body of Anastasios Isaak was lying. I met the State
Pathologist, Dr Panicos Stavrianos and D/Supt. Th. Anastasiou CID
Police Headquarters Nicosia. I directed the photographer George
Kulmer to take photographs of the body, which he did. ...”
Furthermore,
in his statement, Superintendent M. Cosgrave noted that the following
day he had visited the scene of the incident at Dherynia checkpoint
with State pathologists Dr Panicos Stavrianos and Dr
Sophoclis Sophocleous and members of the Cyprus police squad. He
pointed out that at that stage the scene had been preserved and had
not been examined or interfered with. He also noted that he had
measured the area where the body had been lying – it had been
32 metres from the Turkish ceasefire line, 41 metres from the track
in front of UN OP 143 and 95 metres from the wire on the Greek
ceasefire line. He stated that on 12 August 1996 Dale Roberts, a
UN photographer, had examined the scene and had taken samples from
the area and that on 13 August 1996 he had accompanied Dr P. Vanezis,
the State pathologist and members of the police squad to the scene of
the incident. He had then attended the post-mortem examination.
(c) Statements taken by the Cyprus Police
34. Between
11 and 29 August 1996 statements were taken by the Cyprus police at
the Dherynia police station from ten persons who had been present at
the Dherynia checkpoint during the incidents of 11 August 1996. These
witnesses were Stelios Archimandritis, Antigonos Kaoulla,
Panicos Christodoulou Tylliros, Georghios Aresti, Zenon Tavrou,
Michalis Andrea Neocleous, Stephanos Stephanou,
Floros Adamou Constanti, Zacharias Georghiou Sachariou, and
Constantinos Kyriakides.
Furthermore,
statements were taken from two Greek-Cypriot police officers
concerning the investigation into the killing of Anastasios Isaak.
(i) Statement by Constantinos Kyriakides
The
witness is a photographer who was present at the Dherynia checkpoint
on 11 August and had taken photographs of the incident. In his
statement of 29 August 1996 he claimed, inter alia, the
following:
“...I then withdrew heading southwards towards our
side and then saw the Turks from a distance of 40 metres chasing a
Greek Cypriot wearing jean trousers and a white sweater. I approached
within 20 metres and started to take photos of the incident. I
approached within a distance of 20 metres because the lens I had on
my camera at the moment could not take photographs from a long
distance. I started taking photographs from the moment they chased
him until the moment they stopped beating him and UN men took him
away.
I took 16 photographs and another 4 while he was being
taken by the UN man to the place the Greek Cypriots were.
From what I noticed, and this is shown also in the
photographs I took, about 15 persons, most of whom wore civilian
clothes and many wore the uniform of the pseudo-State, took part in
the beating up and murder of the youth, who as I told you in my
previous statement, was Tassos Isaak. They were armed with clubs,
iron bars and water pipes and stones.
At first they chased him and while they were chasing him
in a big stride he lost his balance and fell down. In his effort to
defend himself he caught a Turk by the leg. The Turk sat on the
ground and seized Tassos by the hair, while they were on the ground
several hit him with offensive objects they held. Among them there
were some 'policemen' with their batons.
At some moment I noticed that one of the Turks in
civilian clothes held a stone in his right hand the size of an orange
and was on the point of throwing it on the head of Tassos. I did not
notice whether the Turk completed his effort. I was not able to
photograph that scene. When Tassos was finally moved by the UN men
and handed to the Greek Cypriots to be transported to the hospital, I
left. ...”
(ii) Statement by Police Inspector Andreas
Spatalos
The
witness is a police inspector serving in the Central Information
Service as second in command of Division A. On 9 December 1996 he
gave a statement concerning the investigation into the killing of
Anastasios Isaak as follows:
“As part of my duties I received information from
reliable sources according to which the following Turkish settlers
and Turkish Cypriots are among the perpetrators of the murder of
Tassos Isaak which was committed on 11.8.1996, at Dherynia:
1. Fikret Veli Koreli, Turkish Cypriot, Identity Card
No. 421344
2. Hasim Yilmaz, Turkish settler
3. Neyfel Mustafa Ergun, Turkish settler
4. Polan Fikret Koreli, Turkish Cypriot
5. Mehmet Mustafa Arslan, Turkish settler
6. Erhan Arikli, Turkish settler.
The above persons have been identified also from a
comparison with photographs, an album of which I handed on
20.11.1996, together with a relevant explanatory memorandum, to the
Police Division C Commander.”
An
explanatory memorandum was attached to the statement containing
additional information and documents about the persons identified.
(iii) Statement by Acting Chief
Superintendent N. Papageorghiou
The
witness is a police superintendent and commander of Police Division C
at the Police Headquarters. On 11 August 1996 at about 6.45 p.m.
he visited the scene of the killing of Anastasios Isaak with a team
of men from CID Headquarters and the Forensic Service. In his
statement he noted that he had given instructions on the spot to the
Acting Superintendent in charge of CID (E) Headquarters concerning
the investigation of the killing, asking that the scene be
photographed and video-recorded. He had also attended the post-mortem
examination of the corpse of Anastasios Isaak at Larnaca Hospital.
In
his statement the witness further noted, inter alia, that he
had received copies of two VHS videotapes; one on 3 September 1996
from Worldwide Television News (WTN) of London and one on 25 November
1996 from Reuters of London. These contained scenes from the
demonstration and the killing of Anastasios Isaak.
(d) Post-mortem examination report
Professor
Peter Vanezis, from the Department of Forensic Medicine and Science
at Glasgow University, carried out a post-mortem examination at
Larnaca General Hospital on 13 August 1996 on the body of
Anastasios Isaak. In his report dated 17 September 1996, in
which he summarised his findings, Dr Vanezis concluded the following:
“1. The body was that of a well-nourished man with
no natural disease that could have contributed to or caused death at
the time.
2. He had suffered multiple blunt impacts to the body,
predominantly the head and the trunk.
3. From the characteristic nature of the injuries, the
instruments causing them were most likely cylindrical shaped sticks
and/or metal piping.
4. There were also injuries which had characteristics
indicative of them being caused by square metal objects as found at
the scene.
5. The marks on the arms indicated that he had tried to
defend himself.
6. The severity and multiplicity of the injuries to the
head indicate that he would have lost consciousness at or within a
very short time of the infliction and died soon afterwards.
7. The injury to the genital area is consistent with a
kick or a blow from an object as described above, to that region.
Cause of death
1a: Multiple Blunt
Head Trauma.”
(e) Sketch maps and photographs
The
applicants provided the Court with a sketch plan of the scene of the
killing of Anastasios Isaak drawn up by the UN and a print of an
aerial view of the location of the killing.
They
also submitted a total of 37 photographs that had been taken by
Mr Constantinos Kyriakides, a photographer, on 11 August 1996
during the events in Dherynia (see paragraph 36 above). Photographs
numbered 18 to 37 depict the incident concerning Anastasios Isaak in
chronological order.
In
photograph 19 Anastasios Isaak is seen falling to the ground while
civilian demonstrators are approaching him with batons and/or sticks.
Photographs
20 to 33 show Anastasios Isaak on the ground being beaten with
batons, kicked on the head and other parts of his body, his hair
being pulled and his head being banged on the ground. The photographs
show “TRNC” policemen and members of the Turkish and/or
Turkish Cypriot police/military in camouflage uniform standing
behind the Turkish ceasefire line.
In
photograph 20 two UN officers can be seen helping a demonstrator
lying on the ground, just a few metres from where Anastasios Isaak
is being beaten. The photograph shows that four uniformed “TRNC”
policemen and a Turkish or Turkish-Cypriot police/military officer in
camouflage uniform were present in the vicinity.
In
photograph 23 the above-mentioned police/military officer in
camouflage uniform can be seen joining the civilian demonstrators
that are beating Anastasios Isaak and appears to be passing his metal
baton over to one of them.
In
photograph 24 this civilian is holding the baton high up over
Anastasios Isaak while the officer in camouflage uniform is standing
next to him. The photograph shows five uniformed police officers in
the vicinity, one of whom, with a baton, is making his way through
the civilians surrounding Anastasios Isaak.
In
photograph 25 the officer in camouflage uniform appears to have taken
his baton back, whereas the police officer is beating Anastasios
Isaak with his baton.
Photograph
26 shows the above-mentioned police officer beating Anastasios Isaak
with his baton and the officer in camouflage uniform holding his
baton over Anastasios Isaak. In photograph 27 the officer in
camouflage uniform, the above-mentioned police-officer and a second
police officer are beating Anastasios Isaak with their batons. In
photograph 28 they are joined by a third police officer. In both
photographs 27 and 28 these four officers are seen beating
Anastasios Isaak with their batons together with the civilian
demonstrators. Another four officers can be seen in the vicinity.
In
photograph 29 the officer in camouflage uniform can be seen leaning
over Anastasios Isaak with his baton.
In
photographs 30 to 32 a civilian demonstrator in front of the officers
is seen kicking Anastasios Isaak on the head.
In
photographs 32 and 33 a UN officer can be seen intervening. This
officer can also be seen in photographs 26 to 31 in which he is
trying to make his way to Anastasios Isaak. Photograph 33 shows the
UN officer taking hold of the arm of the officer in camouflage
uniform holding the baton.
Photographs
34 and 35 show two UN officers dragging the body of Anastasios Isaak.
Photographs
36 and 37 show Greek-Cypriot demonstrators taking the body away.
(f) Video recording by Reuters
The
applicants submitted a videotape received from Reuters covering the
incident. This video recording contains, inter alia, scenes
from the incidents at Dherynia and part of the beating of Anastasios
Isaak by civilian demonstrators, the “TRNC” police and
the Turkish or Turkish-Cypriot police/military officer in camouflage
uniform. Furthermore, the recording shows a UN officer intervening
with the aid of two policemen, one of whom is holding a riot shield,
pushing back the crowd around Anastasios Isaak. The crowd then
disperses. While the UN officer is standing over Anastasios Isaak,
two civilians approach. One is seen throwing a stone towards
Anastasios Isaak's head and one of them a stone/rock at his mid to
lower body.
2. Documents submitted by the Government
(a) UN Secretary-General's Report S/11900
of 8 December 1975
The
Government provided a copy of the above report pertaining to the UN
Operation in Cyprus. This included a map showing the deployment of
UNFICYP in December 1975 and the Forward Defence lines of the Turkish
Forces and the Cypriot National Guard.
(b) UN Secretary-General's Report
S/1996/1016 of 10 December 1996
In
his report on the UN Operations in Cyprus for the period from 11 June
to 10 December 1996, the UN Secretary-General stated, inter alia,
the following:
“1. ... Tension arose in early August 1996 in
anticipation of a demonstration organised by the Cyprus Motorcycle
Federation. First announced in January 1996, it was to take the form
of a symbolic motorcycle ride, undertaken by Greek Cypriots and
persons from other countries, originating in Berlin and ending in
Kyrenia on 11 August. This meant that the demonstrators intended
to cross the United Nations buffer zone as well as the Turkish forces
ceasefire line, a course of action which was bound to cause the
utmost provocation. During the period leading up to the
demonstration, the media on both sides publicised a large number of
increasingly acerbic statements by the demonstration's organisers and
by Greek-Cypriot political leaders, as well as counter statements by
the Turkish-Cypriot side.
2. During this period, the United Nations was in
frequent contact with the government authorities, including the
Cyprus Police, urging them to prevent any violation of the ceasefire
lines or of the United Nations buffer zone. On the eve of the
demonstration, I appealed publicly to the Government of Cyprus to
take effective measures in exercise of its responsibilities to
prevent any unauthorised entry into the United Nations buffer zone.
3. On the morning of 11 August, however, the
demonstrators proceeded from the stadium in Nicosia, where they had
assembled, to points east of Nicosia. Cyprus police were on hand, but
remained largely passive. In the meantime, a major
counter demonstration had begun in north Nicosia, including a
significant number of members of the 'Grey Wolves', an
ultranationalist Turkish organisation, who had arrived from Turkey.
4. The Greek-Cypriot demonstrators entered into the
United Nations buffer zone at several points, approached the
ceasefire line of the Turkish forces, and clashed with Turkish troops
and Turkish-Cypriot police as well as with Turkish-Cypriot
counter demonstrators. The most serious clash occurred near
Dherynia, where a large group of Greek Cypriots were allowed to cross
the National Guard ceasefire line. In the meantime, the Turkish
forces allowed counter-demonstrators and Turkish-Cypriot police to
cross a restricted military area and to enter the United Nations
buffer zone. They proceeded to beat the Greek Cypriots with batons
and iron bars, killing one civilian. ...”
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
A. The Government's objection
The
Government maintained that the applicants had failed to exhaust
domestic remedies as required by Article 35 of the Convention,
as they had not had recourse to the local remedies within the
judicial and administrative system of the “TRNC”. Those
remedies were effective, accessible and capable of providing redress
for their complaints.
The
“TRNC Constitution” clearly demonstrated that an
effective and independent judicial system existed in the TRNC and
that the Turkish Cypriot courts were the guardians of the rights
of individuals. The Constitution incorporated provisions safeguarding
human rights drawn from the Cypriot Constitution of 1960 and the
Convention, which formed part of the laws of the TRNC. Articles 136
to 155 of the Constitution provided for access to independent courts
and for judicial review of administrative action on the grounds of
illegality or error of law and excess and/or abuse of power
(Article 152), and also for judicial review of legislation by
way of reference to the Supreme Constitutional Court (Article 148)
and the institution of proceedings for annulment of legislation and
subsidiary legislation (Article 147). Article 152 of the
Constitution provided that the High Administrative Court had
exclusive jurisdiction to adjudicate in the final instance on a
complaint that a decision, act or omission of any body, authority or
person exercising any executive or administrative authority was
contrary to any of the provisions of the Constitution, or of any law
or subsidiary legislation there under, or exceeded or abused the
powers vested in such a body, authority or person.
Moreover,
under the Constitution the Attorney-General, who was an independent
officer, could, at his discretion and in the public interest,
institute, conduct, take over and continue or discontinue any
proceedings for an offence against any person in the State (Article
158).
The
Government noted that the TRNC judicial system was based on English
common law and also drew principles from the continental systems of
administrative law.
The
Government challenged the third-party intervener's argument that the
rule on exhaustion of domestic remedies did not apply to human rights
violations by Turkey which took place in the territory of the
Republic of Cyprus. Accepting such an argument would be tantamount to
holding that Turkey would be responsible under the Convention for any
violation imputable to the “TRNC” authorities without
being able to redress these violations. The characterisation of the
“TRNC” as a “subordinate local administration”
of Turkey was merely a legal device to attribute responsibility for
“TRNC” domestic remedies to Turkey, as a Contracting
Party to the Convention. The Court had addressed all legal arguments
concerning the domestic remedies in the “TRNC” in the
case of Cyprus v. Turkey ([GC], no. 25781/94,
§§ 89-102, ECHR 2001 IV). It had concluded that,
for the purposes of Article 35 § 1 of the Convention, remedies
available in the “TRNC” should be regarded as “domestic
remedies” of the respondent State. The Grand Chamber's
conclusions on this point were res judicata.
The
Government pointed out that the remedies to be exhausted under the
Convention included not only judicial ones, but also administrative
ones. The Court had taken into account police inquiries in the “TRNC”
in cases similar to the present one and had examined whether such
investigations were effective and sufficient. It would be illogical
to argue, as the third-party intervener had, that, in violation of
the procedural aspect of Article 2 of the Convention, no inquiry had
been carried out in the “TRNC” into the death of
Anastasios Isaak and that the “TRNC” could not carry out
such an inquiry because it was not a legal State. In any event, an
inquiry had indeed been carried out. However, it had not been
possible to complete it since the Greek-Cypriot authorities had
refused to cooperate, claiming that such cooperation would amount to
recognition. For instance, no autopsy report had been forwarded to
the Turkish-Cypriot authorities. In this connection, the Government
pointed out that in a criminal prosecution the State should prove its
case beyond reasonable doubt and that everyone should be presumed
innocent until proved guilty.
B. The applicants' arguments
The
applicants disputed the respondent Government's submissions and
claimed that there had been no failure on their part to comply with
the requirements of Article 35 of the Convention.
They
stressed that the “TRNC” courts had not been properly
established under the law applicable in the Republic of Cyprus but
had been set up by the “TRNC” in the part of Cyprus which
was under illegal Turkish occupation. Moreover, the claim of the
“TRNC” to statehood had been rejected not only by the UN
Security Council but by every State in the world with the exception
of Turkey. That being so, the institution of proceedings in the
“TRNC” courts would inevitably have involved a degree of
recognition by the applicants of the legitimacy of those courts and
thus of the “TRNC” itself, which would amount to a denial
of the sovereignty of the Republic of Cyprus over northern Cyprus.
Any such action would also have been contrary to international law
and in direct conflict with the applicants' status and duties as
citizens of the Republic of Cyprus. The applicants asked the Court to
reconsider its conclusions in the case of Cyprus v. Turkey
(cited above). They underlined that “TRNC” tribunals
could not be regarded as “Turkish courts” and that they
were not inhabitants of the “TRNC” and did not reside in
its territory.
The
applicants further asserted that even if there was in principle a
duty to make use of any remedies which might exist in the “TRNC”,
the courts there did not offer a remedy which was effective and
available to them. Nor had the Government indicated in their
observations what remedy might exist before the “TRNC”
courts in respect of military activity in an area controlled by the
armed forces of Turkey, which were not subject to the jurisdiction of
those courts. Moreover, at the relevant time, Greek Cypriots were not
allowed to go to the occupied areas of Cyprus. It was therefore not
open to the applicants to go to the northern part of the island in
order to use local remedies. The total lack of any investigation into
the killing showed, in itself, that there were no effective remedies
available to the applicants in the “TRNC”.
The
applicants submitted that the killing of Anastasios Isaak was not an
isolated incident but stemmed, like the other killings that had
occurred in the summer and early autumn of 1996, from the practices
adopted by the institutions of the “TRNC” and by the
Turkish forces in patrolling the ceasefire line. There was also a
general reluctance to deal with allegations of involvement of State
agents in unlawful conduct.
It
was also doubtful whether the “TRNC” courts would have
been independent and/or impartial. The very raison d'être of
these courts was to support the position taken by Turkey that the
“TRNC” was not a part of the Republic of Cyprus. Any
action on the part of the applicants was bound to fail. In the eyes
of the “TRNC”, its police and military personnel did not
belong to Turkey. Its courts would therefore have refused any claim
based on a different point of view. If Turkey had been named as a
defendant in an action before the “TRNC” courts, the
latter would have treated Turkey as a sovereign independent State,
entitled to sovereign immunity.
Finally,
the respondent Government should not be permitted to allege a failure
to exhaust domestic remedies in application of the principle injuria
non oritur jus.
C. The third-party intervener's arguments
The
Government of Cyprus first submitted that the rule on exhaustion of
domestic remedies could not apply to human-rights violations which
took place in the territory of the Republic of Cyprus. This rule
should permit a sovereign State to redress by its own legal system
any alleged wrong only when such a State had a relevant connection to
the victim. In the present case, Turkey had violated the applicants'
rights outside its lawful borders and in the territory of the
Republic of Cyprus.
In
the case of Cyprus v. Turkey (cited above) the Grand Chamber
had erred in considering that the remedies available in the occupied
area were in principle domestic remedies within the meaning of
Article 35 § 1 of the Convention. This statement was based on a
misunderstanding of the so-called Namibia principle.
In
any event, even if the principles expressed in Cyprus v. Turkey
were correct, the applicants would fall outside their scope
because they were not “inhabitants of the occupied territory of
the 'TRNC'”.
Moreover,
Turkey had failed to identify the remedies which either existed or
were capable of proving redress to the applicants for the murder of
Anastasios Isaak.
Lastly,
the potential remedies had not been effective in the present case.
Applicants could not be required to exhaust remedies provided by a
subordinate local administration whose existence was dependent upon
the control of an occupying military power and which could not be
objectively trusted to administer independent and impartial justice
against the power to which it was subordinate. The respondent State
had remained totally passive vis-à-vis clear evidence
of complicity of its agents in the murder of Anastasios Isaak and had
totally denied responsibility for his death. Moreover, until 2003 it
had not been possible for the applicants to enter the occupied area
in order to avail themselves of any alleged domestic remedy.
D. The Court's assessment
In
its decision on the admissibility of the application the Court
observed:
“for the purposes of Article 35 § 1, remedies
available in the 'TRNC' may be regarded as 'domestic remedies' of the
respondent State and ... the question of their effectiveness is to be
considered in the specific circumstances where it arises (see Cyprus
v. Turkey, cited above, § 102). However, this
conclusion is not to be seen as in any way putting in doubt the view
of the international community regarding the establishment of the
'TRNC' or the fact that the Government of the Republic of Cyprus
remains the sole legitimate government of Cyprus (ibid., §§
14, 16 and 90).”
The
Court does not see any reason to depart from its previous finding on
this point, which was based on its well-established case-law.
The
Court further observed that in their objection the Government had
raised issues that were closely linked to those raised by the
applicants' complaint under Article 2 of the Convention.
Consequently, it decided to join the objection concerning the
exhaustion of domestic remedies to the merits of the applicants'
complaint under Article 2. It will now proceed to examine the
arguments of the parties in the light of the provisions of the
Convention and its relevant practice (for a summary, see Estamirov
and Others v. Russia, no. 60272/00, § 73-74, 12 October
2006).
The
Court first notes that the Government failed to precisely indicate
the remedies which were available to the applicants, confining
themselves to mentioning the existence of judicial and administrative
remedies, including police inquiries. In principle, legal systems
provide two avenues of recourse for the victims of illegal and
criminal acts attributable to the State or its agents, namely civil
and criminal remedies.
As
regards criminal-law remedies, the Court observes that the Government
alleged that an investigation into the killing of Anastasios Isaak
had been carried out by the “TRNC” authorities, but it
had not been possible to complete it because of the Greek-Cypriot
authorities' refusal to cooperate. However, no documents from this
alleged inquiry have been produced before the Court. Moreover, it has
been pending since August 1996 without achieving any substantial
result notwithstanding the existence of photographic evidence of the
actual beating and killing, which could have enabled the local
authorities to identify the persons involved in it.
The
Court considers that these circumstances cast doubt on the
effectiveness of the above-mentioned inquiry and that the applicants
are not obliged to await its conclusion before having the merits of
their case examined by the Court. The preliminary objection in this
regard is thus dismissed.
As
regards a civil action to obtain redress for damage sustained through
the alleged illegal acts or unlawful conduct of State agents, it has
not been shown that, without the benefit of the conclusions of an
effective criminal inquiry, the civil courts in the “TRNC”
would have been able to pursue any independent investigation and
would have been capable of making any meaningful findings regarding
the identity of the perpetrators of assaults, even less to establish
their responsibility (see Khashiyev and Akayeva v. Russia,
nos. 57942/00 and 57945/00, §§ 119-121, 24
February 2005; Estamirov and Others, cited above, § 77;
and Musayev and Others v. Russia, nos. 57941/00,
58699/00 and 60403/00, § 135, 26 July 2007). In the light
of the above, the Court considers that the applicant was not obliged
to pursue civil remedies.
It
follows that the Government's preliminary objection should be
dismissed.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
The
applicants alleged that the killing of Anastasios Isaak constituted a
violation of Article 2 of the Convention.
This
provision reads as follows:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
The
Government disputed this claim.
A. Arguments of the parties
1. The Government
The
Government maintained that although the death of Anastasios Isaak
had been a tragic event, it had not been just a matter of an
individual demonstrator being killed whilst making an innocent
protest. He had died as a result of the irresponsible action of the
Greek-Cypriot demonstrators with the active support of the
Greek-Cypriot authorities. He had actively participated in an
unlawful assembly and riot during which the Turkish-Cypriot police
had taken all necessary measures to try to disperse the
demonstrators. In fact, Anastasios Isaak had died after he had become
entangled and trapped in a spiral barbed-wire barrier that had been
put up by the UN force. This had prevented his escape. Neither the
Turkish-Cypriot police nor any other Turkish-Cypriot authorities had
been involved in any act that had caused his death. Furthermore, they
could not have prevented it.
The
Government alleged that the Greek-Cypriot authorities and the
Greek-Cypriot Orthodox Church had sponsored and encouraged in an
irresponsible manner the violent demonstrations of the Greek-Cypriot
motorcyclists, aimed at violating the ceasefire lines and borders of
the “TRNC”. This was confirmed by the fact that the then
Greek-Cypriot President, Mr Clerides, had been photographed on a
motorcycle, flanked by the then Archbishop of Cyprus, and by the wide
media coverage of the demonstration of 11 August 1996. They
emphasised that the existence of the UN-controlled buffer zone
separating the parts of Cyprus had been internationally recognised.
UNFICYP had asked the Greek-Cypriot authorities to take effective
action to prevent any demonstrators from entering the buffer zone
area. Notwithstanding this, the Greek-Cypriot police had escorted
hundreds of motorcyclists to the ceasefire line and had then
deliberately left the checkpoint unmanned in order to allow
demonstrators to enter the buffer zone, knowing that there were an
insufficient number of UN personnel to keep the crowd under control.
Had they acted differently, or had the call from the Greek-Cypriot
President to disperse the demonstrators been made earlier, the
violence in the area could have been avoided.
The
sole intention of the “TRNC” authorities had been to
prevent demonstrators from making incursions into their territory,
thus exercising a right secured to them in international law. They
had sought to deter violent acts and they had never shown
“complicity” in the demonstration.
The
Government also alleged that the Greek Cypriots had taken their
revenge by shooting in cold blood two Turkish-Cypriot soldiers on
sentry duty on 8 September 1996 and that since 2003 Greek Cypriots
had had free access to the “TRNC” territory upon
presentation of an ID document. A plan for settling the island's
problems, proposed by the former UN Secretary-General, had been
rejected by the Greek-Cypriot community in a referendum held on 24
April 2004.
The
Government lastly observed that the “TRNC” authorities
had immediately carried out a substantive inquiry into the
circumstances of the incident. However, it had not been possible to
complete the investigation because of a lack of cooperation by the
Greek-Cypriot side.
2. The applicants
The
applicants alleged that there was irrefutable evidence (the
photographs, the video footage and the statements of eyewitnesses,
including members of UNFICYP) proving the direct involvement of
“TRNC” policemen in the killing of Anastasios Isaak. From
the photographs, eight Turkish police officers in uniform could be
distinguished in the immediate vicinity of Anastasios Isaak, five of
whom had participated in the killing. Furthermore, the civilians
involved in the attack had been encouraged by the police officers
present in the area. In fact, neither the police nor the military had
made any effort to prevent the Turkish and Turkish-Cypriot
demonstrators from attacking Anastasios Isaak and from beating him
whilst he was lying helpless on the ground, unarmed. Only UN Officer
Frank Flood had come to his aid and restrained a Turkish officer from
hitting him.
Although
it was not possible to draw up an exhaustive list of who had struck
the victim, how many times or in what way, the applicants noted that
they had managed to ascertain the identities of one of the “TRNC”
police officers and of five of the civilians involved in the attack.
In
the applicants' submission, the death of Anastasios Isaak was not the
unfortunate result of skirmishes between the groups as alleged by the
Government. In that connection, they challenged the allegation that
he had been caught in barbed wire. Before he had fallen, Anastasios
Isaak and his attackers had been able to move freely.
In
the applicants' view, a State should also be held responsible under
Article 2 of the Convention when its officials stood back and allowed
murder to be committed in front of them and, further, when such
officials actively encouraged it as in the present case.
In
any event, the acts which had caused the death of Anastasios Isaak
could not be justified on the basis of the exceptions under Article
2. It was clear that the use of force could not be considered
reasonable and proportionate. In particular, it had not been
justified in the defence of any person from unlawful violence. At the
time of the attack, the vast majority of Greek Cypriots had left the
buffer zone. When he was caught by the mob, Anastasios Isaak had been
trying to escape. When the soldiers and the policemen had arrived, he
was already on the ground. Nor could it be said that the “TRNC”
police had been effecting a lawful arrest or preventing the escape of
a lawfully detained person, as the “TRNC” police or the
Turkish military forces could not be regarded as “lawful”
authorities. In any case, they had not been making any attempt to
arrest Mr Isaak. Under the Convention, no illegal occupying force
could be justified in murdering innocent civilians simply because
they were demonstrating against the occupation. Finally, there had
been no insurrection or riot going on. In any event, the violence
used against the victim had manifestly not been “absolutely
necessary” within the meaning of the Court's case-law. In his
report for the relevant period, the UN Secretary-General had
concluded that the violence which had occurred along the ceasefire
lines in the second half of 1996 had “included the unnecessary
and disproportionate use of lethal force by the
Turkish/Turkish-Cypriot side”. Furthermore, the respondent
State had never produced any document showing the instructions
concerning the use of force in respect of the demonstrations.
Furthermore,
despite the fact that the killing of Anastasios Isaak had taken place
in front of the “TRNC” police and the identity of those
involved was known or could easily have been discovered, the
Government had not carried out any investigations and no one had ever
been tried. The Government's allegation that an inquiry had indeed
been carried out was contradictory. In the first place, it had not
been explained why the existence of this inquiry had been mentioned
only in the observations on the merits. Moreover, since August 2000
the applicants had provided Turkey with photographs of Mr Anastasios
Isaak's killing, material evidence which would have enabled the
“TRNC” authorities to identify a number of individuals
involved in the murder.
The
applicants stressed that the counter-demonstration of Turkish
nationalists, including a group of “Grey Wolves”, had not
been intended to be peaceful. The Turkish Government had facilitated
and paid for the passage of the “Grey Wolves” to Cyprus.
In principle, anyone who was a member of the Turkish military and
tried to enter the military zone adjacent to the ceasefire line would
be arrested. However, on 11 August 1996 the Turkish army had allowed
buses containing around a thousand armed counter-demonstrators to
cross this zone in order to reach the ceasefire line. The
counter-demonstrators had been armed with weapons including wooden
sticks, metal bars, air-rifles and hunting guns. Members of the
Turkish military and the “TRNC” police had also taken
part in the counter-demonstration. The “TRNC” forces had
been under the command of a Turkish brigadier-general, who was
himself under the command of a Turkish lieutenant-general.
Moreover,
the killing of Anastasios Isaak had been just one of a number of
incidents in 1996 in which Turkish or “TRNC” forces had
killed or seriously injured Greek Cypriots and others around the
ceasefire lines. This showed the total lack, on the part of the
Turkish or “TRNC” forces, of any effective policy of
restraint towards the use of lethal force. Furthermore, to the
applicants' knowledge, in none of these cases had the respondent
State conducted an investigation or prosecution satisfying the
requirements of Article 2 of the Convention. The members of the
Turkish Government or military had, at the time, openly advocated a
policy of using excessive force. The applicants referred to the
statements of Mrs Tansu Çiller, the then Foreign Minister and
acting Prime Minister of Turkey (who had stated that Turkey would
“undertake whatever was required to protect [its] borders”
and would “break [the] hands” of anyone who laid a finger
on the Turkish flag), and of Lieutenant-General Kundakci (who had
stated that Turkey was “firm in not allowing anybody to enter
its territory”, that “those who force their way in get
this punishment” and that “no one can cross our borders
by motorcycle. Those who try pay the price. What is necessary shall
be done”). These statements demonstrated that there was no
prospect whatsoever of any investigation being launched by Turkey
into the killings and that no punishment would be imposed on the
perpetrators as their behaviour was considered to be somehow
justified.
B. The third-party intervener
The
Government of Cyprus fully endorsed the applicants' version of facts
and alleged that the strong evidence produced before the Court showed
that the present case concerned the brutal murder of an unarmed
Cypriot national by agents of the respondent Government. They
emphasised that the UN buffer zone could not be considered a neutral
area, as stated in the Court's decision on admissibility, but part of
the territory of Cyprus, in which both sides had merely agreed not to
exercise military jurisdiction. Cyprus had never agreed to the
control of this area by UNFICYP or to the existence of the ceasefire
lines and there were no internationally recognised borders between
the north and the south of the island.
The
Government of Cyprus challenged the Turkish Government's allegation
that the demonstration of the CMF had been sponsored and encouraged
by the Greek-Cypriot authorities (see paragraph 87 above). The CMF
was an independent organisation which had independently promoted and
organised the demonstration. The photograph of the President of
Cyprus on a motorbike had been taken at a State fair. Moreover, as
Cyprus recognised freedom of speech and assembly, the President had
had no power to call off the demonstration. Even if the Greek-Cypriot
police might have been ineffective in controlling the demonstrators,
there was no evidence that they had intentionally facilitated their
entry into the buffer zone. Turkey's assertion that “the police
deliberately left the checkpoint unmanned ... knowing that there were
an insufficient number of UN personnel to keep the crowd under
control” (see paragraph 87 above) was incorrect. On the
contrary, the Government of Cyprus had tried to stop the
demonstration in an attempt to calm the situation. There was no
evidence that Mr Isaak had been the leader of a group of Greek
Cypriots or that he had committed any acts of violence. He had been
involved in the tragic episode because he had tried to save another
demonstrator, who was entangled in barbed wire, from the mob and from
the “TRNC” police. Mr Isaak had not had any
responsibility for the events except to the extent that he had, like
other demonstrators, violated the ceasefire lines and entered the
buffer zone.
In
any event, provocation and the lack of control of the demonstration
could not have been the cause of Anastasios Isaak's death. He had
died, as shown by the photographic and video evidence, at the hands
of the Turkish mob which included “TRNC” police. The
allegations concerning the alleged attack on Turkish-Cypriot soldiers
(see paragraph 89 above) were irrelevant.
As
to the allegedly incomplete inquiry carried out by the “TRNC”
authorities, the Government of Cyprus noted that no reports or
statements had been produced before the Court and that it had not
been indicated what precise further information was needed. Turkey
had been provided with all the medical and photographic evidence. It
had never made any request for assistance. The reality was that
Turkey had done nothing, although the applicants had even identified
the persons who were beating Anastasios Isaak. The bare truth
was that Turkey had not investigated the matter because its own
officials had murdered the victim in combination with a vicious mob
including the Grey Wolves. Therefore, Turkey had failed to carry out
an investigation satisfying the requirements of Article 2 of the
Convention, as interpreted by the Court in the cases of Hugh
Jordan v. the United Kingdom (no. 24746/94, §§ 115
and 141, ECHR 2001 III (extracts)) and Imakayeva v. Russia
(no. 7615/02, §§ 146-148, ECHR 2006 ...
(extracts)).
C. The Court's assessment
1. The alleged killing of Anastasios Isaak
(a) General principles
The
Court reiterates that Article 2, which safeguards the right to life
and sets out those circumstances in which deprivation of life may be
justified, ranks as one of the most fundamental provisions in the
Convention, to which no derogation is permitted. Together with
Article 3, it also enshrines one of the basic values of the
democratic societies making up the Council of Europe. The
circumstances in which deprivation of life may be justified must
therefore be strictly construed. The object and purpose of the
Convention as an instrument for the protection of individual human
beings also requires that Article 2 be interpreted and applied
so as to make its safeguards practical and effective (see McCann
and Others v. the United Kingdom, judgment of 27 September
1995, Series A no. 324, §§ 146-147).
The
exceptions delineated in paragraph 2 indicate that this provision
extends to, but is not concerned exclusively with, intentional
killing. The text of Article 2, read as a whole, demonstrates that
paragraph 2 does not primarily define instances where it is permitted
intentionally to kill an individual, but describes the situations
where it is permitted to "use force" which may result, as
an unintended outcome, in the deprivation of life. The use of force,
however, must be no more than "absolutely necessary" for
the achievement of one of the purposes set out in sub paragraphs
(a), (b) or (c) (ibid., § 148).
In
the light of the importance of the protection afforded by Article 2,
the Court must subject deprivations of life to the most careful
scrutiny, taking into consideration not only the actions of State
agents but also all the surrounding circumstances (see, among other
authorities, Avşar v. Turkey, no. 25657/94, §
391, ECHR 2001 VII (extracts), and Musayev and Others,
cited above, § 142).
The
first sentence of Article 2 § 1 enjoins the State not only
to refrain from the intentional and unlawful taking of life, but also
to take appropriate steps to safeguard the lives of those within its
jurisdiction (see L.C.B. v. the United Kingdom, judgment of
9 June 1998, Reports of Judgements and Decisions 1998 III,
§ 36). The State's obligation in this respect extends
beyond its primary duty to secure the right to life by putting in
place effective criminal-law provisions to deter the commission of
offences against the person backed up by law-enforcement machinery
for the prevention, suppression and sanctioning of breaches of such
provisions. Article 2 of the Convention may also imply in
certain well-defined circumstances a positive obligation on the
authorities to take preventive operational measures to protect an
individual whose life is at risk from the criminal acts of another
individual (see Osman v. the United Kingdom, judgment of 8
October 1998, Reports 1998 VIII, § 115).
In assessing evidence, the Court has adopted the
standard of proof “beyond reasonable doubt”. According to
its established case-law, proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. Moreover, the level of persuasion
necessary for reaching a particular conclusion and, in this
connection, the distribution of the burden of proof are intrinsically
linked to the specificity of the facts, the nature of the allegation
made and the Convention right at stake. In this context, the conduct
of the parties when evidence is being obtained has to be taken into
account. The Court is also attentive to the seriousness that attaches
to a ruling that a Contracting State has violated fundamental rights
(see, among others, the following judgments: Ireland v. the United
Kingdom, judgment of 18 January 1978, Series A no. 25,
§ 161; Ribitsch v. Austria, judgment of 4 December
1995, Series A no. 336, § 32; Akdivar and
Others v. Turkey, judgment of 16 September 1996, Reports
1996 IV, § 68; Tanlı v. Turkey,
no. 26129/95, § 111, ECHR 2001 III (extracts); and
Ilaşcu and Others v. Moldova and Russia [GC], no.
48787/99, § 26, ECHR 2004 VII).
The
Court has also noted the difficulties for applicants to obtain the
necessary evidence in support of allegations in cases where the
respondent Government are in possession of the relevant documentation
and fail to submit it. Where the applicant makes out a prima facie
case and the Court is prevented from reaching factual conclusions
owing to the lack of such documents, it is for the Government to
argue conclusively why the documents in question cannot serve to
corroborate the allegations made by the applicants, or to provide a
satisfactory and convincing explanation of how the events in question
occurred. The burden of proof is thus shifted to the Government and
if they fail in their arguments, issues will arise under Article 2
and/or Article 3 (see Toğcu v. Turkey, no. 27601/95,
§ 95, 31 May 2005; Akkum and Others v. Turkey, no.
21894/93, § 211, ECHR 2005 II (extracts); and Musayev
and Others, cited above, § 144).
The
Court is sensitive to the subsidiary nature of its role and
recognises that it must be cautious in taking on the role of a
first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4
April 2000). Nonetheless, where allegations are made under Articles 2
and 3 of the Convention the Court must apply a particularly thorough
scrutiny even if certain domestic proceedings and investigations have
already taken place (see Ribitsch, cited above, § 32, and
Avşar, cited above, § 283).
(b) Application of the above principles to
the present case
In
the present case, it is not contested that Anastasios Isaak
voluntarily entered the UN buffer zone, where he died. However, the
parties disagreed as to the facts which caused his death. According
to the applicants and the third-party intervener, he had been
attacked, thrown to the ground and beaten to death by a group of at
least 15 persons, including members of the Turkish or Turkish-Cypriot
forces (see paragraphs 15-16 above). Conversely, the respondent
Government alleged that he had become entangled and trapped in the
spiral barbed-wire barriers put up by the UN force (see paragraphs 26
and 86 above).
The
Court is unable to accept the respondent Government's version of
facts on this point. It observes that it is contradicted by the
witness statements produced by the applicants (see paragraphs 29-36
above). The members of UNFICYP who testified about the events of 11
August 1996 unanimously declared that Anastasios Isaak had been
attacked and beaten to death by a group of counter-demonstrators and
that some members of the “TRNC” police had either watched
the scene passively or had participated in the beating. The Court has
no reason to doubt the independence and trustworthiness of the
witnesses at issue.
The
Court further notes that the applicants' version is confirmed by
photographic evidence and by the video footage of the killing (see
paragraphs 42-56 above). In those images, whose authenticity has not
been contested by the respondent Government, it is possible to see a
group of persons, armed with sticks, surrounding Mr Isaak, who
was lying on the ground. The counter-demonstrators continued to beat
the victim on numerous parts of his body with the sticks for several
minutes. At least four uniformed soldiers belonging to the Turkish or
Turkish-Cypriot forces are seen in the vicinity of the victim. Far
from attempting to stop the beating and to protect Mr Isaak's life,
these soldiers actively participated in the mob. Photographs nos. 27,
28 and 29 show the soldiers beating the victim with metal batons.
Nothing in the photographs suggests that, at the relevant time, Mr
Isaak was carrying weapons or that he was entangled in barbed wire.
Lastly,
in his post-mortem examination report, Professor Vanezis concluded
that the cause of death was “multiple blunt head trauma”
(see paragraph 41 above).
These
elements are sufficient to reach the conclusion that Anastasios Isaak
was killed by a group of persons which included agents of the
respondent Government. It remains to ascertain whether the use of
force was justified under any of the sub-paragraphs of Article 2 §
2 and/or whether these agents satisfied their obligation to take
preventive operational measures to protect the life of the victim, in
circumstances in which it was manifestly at risk.
The
Court notes that it cannot be said that the killing was necessary “in
defence of any person from an unlawful violence”. At the moment
of the attack, the deceased seemed unarmed and was not attacking
anyone. In any event, once he was lying on the ground, he was not
posing a danger to others. Nor can it be argued that he was, at the
material time, “lawfully detained” or that the use of
force was “absolutely necessary” to “effect a
lawful arrest”. Indeed, even assuming that the intrusion into
the UN buffer zone and the deceased's alleged conduct before the
attack (see paragraph 26 above) could justify depriving him of his
liberty, it is obvious that, being surrounded by at least ten
persons, he could hardly have escaped the control of the security
forces. The use of lethal force was therefore manifestly
disproportionate.
As
to the question whether the beating was justified by the aim of
quelling a “riot or insurrection”, the Court observes
that the parties disagreed as to the nature of the Greek-Cypriot
demonstration. While the applicants alleged that the demonstration
was being brought under the control of the UN personnel, as the vast
majority of Greek Cypriots had left the buffer zone (see paragraph 95
above), the Government argued that there had been an escalation of
violence, amounting to a “riot”, and that this had been
the result of the inconsiderate actions of the Government of Cyprus
and of the representatives of the Orthodox Church (see paragraphs 87
and 88 above).
It
is not for the Court to determine which party should bear
responsibility for the facts which gave rise to the demonstration of
the Greek-Cypriot motorcyclists on 11 August 1996 and to the
counter demonstration of the Turkish nationalist groups. In the
context of the present case, the only question to be addressed is
whether the actual killing of Anastasios Isaak amounted to a
violation of Article 2 of the Convention. At the same time, the Court
cannot ignore the fact that, as the applicants also acknowledged (see
paragraphs 12 and 14 above), the demonstrators had entered the UN
buffer zone and were throwing stones at the Turkish forces. This led
to a situation of tension where there was a danger of more violent
developments.
However,
the attack on Anastasios Isaak, one isolated demonstrator, who,
according to the photographic evidence, was unarmed, could not, in
itself, be seen as a measure aimed at quelling the violence generated
by the protest. On the contrary, his savage beating in front of the
other demonstrators could have led to even more violent reactions by
the Greek-Cypriot side. Moreover, it does not appear that the action
of the Turkish or Turkish-Cypriot forces was co-ordinated with the
members of UNFICYP present on the scene; on the contrary, the latter
tried to stop the soldiers' participation in the mob. In any event,
the Court reiterates that the use of force should be “absolutely
necessary” to pursue one or more of the aims laid down in
paragraph 2 of Article 2 and that a potential illegal or violent
action by a group of persons cannot, as such, justify the immediate
killing of one or more individuals.
Lastly,
the Court cannot ignore the fact that the Turkish or Turkish Cypriot
soldiers actively participated in the beating without making any
attempt to apprehend Anastasios Isaak or to prevent the
counter demonstrators from continuing their violent behaviour.
Thus, they manifestly failed to take preventive measures to protect
the victim's life.
(c) Conclusion
In
the light of the above, the Court is of the opinion that
Anastasios Isaak was killed by, and/or with the tacit agreement
of, agents of the respondent State and that the use of force was not
justified by any of the exceptions laid down in paragraph 2 of
Article 2 of the Convention. It follows that there has been a
violation of the substantive limb of this provision.
2. The alleged inadequacy of the investigation
The
obligation to protect the right to life under Article 2 of the
Convention, read in conjunction with the State's general duty under
Article 1 of the Convention to “secure to everyone within
[its] jurisdiction the rights and freedoms defined in [the]
Convention”, also requires by implication that there should be
some form of effective official investigation when individuals have
been killed as a result of the use of force (see, mutatis
mutandis, the McCann and Others, cited above, § 161;
and Kaya v. Turkey, judgment of 19 February 1998, Reports
1998 I, § 105). The essential purpose of such
investigation is to secure the effective implementation of the
domestic laws which protect the right to life and, in those cases
involving state agents or bodies, to ensure their accountability for
deaths occurring under their responsibility. What form of
investigation will achieve those purposes may vary in different
circumstances. However, whatever mode is employed, the authorities
must act of their own motion once the matter has come to their
attention. They cannot leave it to the initiative of the next of kin
either to lodge a formal complaint or to take responsibility for the
conduct of any investigatory procedures (see, for example, mutatis
mutandis, İlhan v. Turkey [GC] no.
22277/93, § 63, ECHR 2000 VII). The Court recalls that the
obligations of the State under Article 2 cannot be satisfied merely
by awarding damages. The investigations required under Article 2 of
the Convention must be able to lead to the identification and
punishment of those responsible (see Bazorkina v. Russia,
no. 69481/01, § 117, 27 July 2006).
For an investigation into alleged unlawful killing by
state agents to be effective, it may generally be regarded as
necessary for the persons responsible for and carrying out the
investigation to be independent from those implicated in the events
(see, for example, Güleç v. Turkey, judgment of
27 July 1998, Reports 1998 IV, §§ 81-82;
and Oğur v. Turkey [GC], no. 21594/93, §§ 91-92,
ECHR 1999 III. The investigation must also be effective in the
sense that it is capable of leading to a determination of whether the
force used in such cases was or was not justified in the
circumstances (see, for example, Kaya, cited above, § 87)
and to the identification and punishment of those responsible (Oğur,
cited above, § 88). This is not an obligation of result,
but of means. The authorities must have taken the reasonable steps
available to them to secure the evidence concerning the incident,
including, inter alia, eyewitness testimony, forensic evidence
and, where appropriate, an autopsy which provides a complete and
accurate record of injury and an objective analysis of clinical
findings, including the cause of death (with regard to autopsies,
see, for example, Salman v. Turkey [GC], no. 21986/93, §106,
ECHR 2000 VII; concerning witnesses, for example, Tanrikulu
v. Turkey [GC], no. 23763/94, § 109, ECHR 1999 IV;
concerning forensic evidence, for example, Gül v. Turkey,
no. 22676/93, § 89, 14 December 2000). Any
deficiency in the investigation which undermines its ability to
establish the cause of death or the person responsible will risk
falling below this standard.
In
this context, there must also be an implicit requirement of
promptness and reasonable expedition (see Tanrikulu, cited
above, § 109; and Mahmut Kaya v. Turkey,
no. 22535/93, §§ 106-107, ECHR 2000 III). It
must be accepted that there may be obstacles or difficulties which
prevent progress in an investigation in a particular situation.
However, a prompt response by the authorities in investigating the
use of lethal force may generally be regarded as essential in
maintaining public confidence in maintenance of the rule of law and
in preventing any appearance of collusion in or tolerance of unlawful
acts (see Bazorkina, cited above, § 119).
In
the present case, the respondent Government failed to produce any
evidence showing that an investigation had been carried out into the
circumstances of Anastasios Isaak's death. Nor had they alleged that,
more than eleven years after the incident, those responsible for the
killing had been identified and arraigned before a domestic tribunal.
In this context, the Court recalls its finding that the alleged
inquiry has been pending since August 1996 without achieving any
substantial result notwithstanding the existence of photographic
evidence of the actual beating and killing, which could have enabled
the local authorities to identify the persons involved in it (see
paragraph 81 above).
In
the light of the foregoing, the Court finds that the authorities
failed to carry out an effective criminal investigation into the
circumstances surrounding the death of Anastasios Isaak. The Court
accordingly holds that there has been a violation of Article 2 also
in this respect.
III. ALLEGED VIOLATION OF ARTICLES 8 AND 14 OF THE
CONVENTION
The
applicants complained that the death of Anastasios Isaak breached
their right to respect for their private and family life under
Article 8 of the Convention. They argued that he had been killed
because of his Greek-Cypriot origin, in breach of Article 14.
The
aforementioned provisions read as follows:
Article 8
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The Government disputed these claims.
A. Arguments of the parties
1. The Government
The
Government submitted that there was no separate issue under Articles
8 and 14 of the Convention.
2. The applicants
The
applicants claimed that the killing of Anastasios Isaak had deprived
them of a family member. It had brought to an end the first
applicant's marriage and left the other applicants without a son and
a brother. At the time of Anastasios Isaak's death, the first
applicant was only nineteen, recently married and eight months
pregnant. Her husband's death had had a devastating impact on her
family life. It was very unlikely that she would ever remarry, since
remarriage was not generally accepted in Cypriot culture,
particularly in circumstances such as those of the present case.
Lastly,
the applicants considered that Anastasios Isaak had been killed
because he was of Greek-Cypriot origin and of Orthodox Christian
religion. The extreme-right ultra-nationalist Turkish group known as
Grey Wolves was clearly motivated by ethnic and religious hatred. In
addition, Turkey's actions in the occupied area were aimed at
ensuring that it was inhabited exclusively or quasi-exclusively by
ethnic Turks of the Islamic faith, to the exclusion of Cypriots of
Greek extraction and Orthodox Christian religion. This amounted to
the creation of a system of apartheid in Cyprus.
B. The Court's assessment
The
Court considers that, in the light of the conclusion reached under
Article 2 of the Convention (see paragraphs 120 and 125 above), it is
not necessary to examine whether there has also been a violation of
Articles 8 and 14 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicants sought compensation for non-pecuniary damage. As to
pecuniary damage, the first applicant observed that her husband had
been the manager of his family restaurant in Paralimni. He had also
had some income from working on a farm owned by his family. On the
basis of a calculation of past and future losses, the first applicant
claimed 488,000 Cypriot pounds (CYP) (approximately 836,822
euros (EUR)).
The
Government submitted that the method of calculation on which the
applicants' claims were based was not compatible with the Court's
practice. The amounts sought were highly speculative, imaginary,
excessive and exorbitant. The allegation that, being the wife of a
national hero, the first applicant would not remarry was a matter of
personal preference, not relevant in the context of the proceedings
before the Court. In any event, it was to be expected that she would
be well supported, both financially and morally, by the Greek-Cypriot
authorities and by the Greek Orthodox Church.
In
the Government's submission, the Court should refuse to make any
award for pecuniary damage; the award for non-pecuniary damage, if
any, should be minimal given the circumstances of the case. The
Government drew the Court's attention to the amounts awarded in the
cases of Kakoulli v. Turkey (no. 38595/97, 22 November 2005 –
EUR 20,000 for the wife of the deceased and EUR 3,500 for
each of the remaining applicants) and Güleç v. Turkey
(cited above – 50,000 French francs).
The
Government of Cyprus noted that the manner in which the claims for
past and future losses had been quantified by the applicants was in
accordance with that employed in all common-law systems in similar
cases. Not to make any pecuniary award would be a gross injustice to
a family which had lost its sole breadwinner.
The
Court reiterates that there must be a clear causal connection between
the damage claimed by the applicant and the violation of the
Convention, and that this may, in appropriate cases, include
compensation in respect of loss of earnings (see, among other
authorities, Çakıcı v. Turkey [GC],
no. 23657/94, § 127, ECHR 1999 IV). It has not been
claimed that the second, third, fourth and fifth applicants were in
any way dependent on Anastasios Isaak's earnings (see Musayev and
Others, cited above, § 189). Therefore, the Court does not
find it appropriate in the circumstances of this case to make any
award to the second, third, fourth and fifth applicants under this
head.
As
to the claim brought by the first applicant, the Court finds that
there is a direct causal link between the violation of Article 2
in respect of the first applicant's husband and the loss by her of
the financial support which he could have provided. The Court further
finds that it is reasonable to assume that, in view of his profession
and young age, Anastasios Isaak would eventually have had some
earnings from which his wife would have benefited (ibid., §
190). Having regard to the applicants' submissions and deciding on an
equitable basis, the Court awards EUR 80,000 to the first applicant
in respect of pecuniary damage, plus any tax that may be chargeable
on that amount.
As
to non-pecuniary damage, the Court notes that it has found a
violation of Article 2 of the Convention on account of the killing of
the applicants' relative and the lack of an effective investigation
and considers that an award should be made under that head, bearing
in mind the family ties between the applicants and the victim and the
seriousness of the damage sustained, which cannot be compensated for
solely by the finding of a violation (see, mutatis mutandis,
Musayev and Others, cited above, § 193). Acting on an
equitable basis, the Court awards EUR 35,000 to each of the
first, second and third applicants (the victim's widow and parents)
and EUR 15,000 to each of the fourth and fifth applicants (the
victim's sisters), plus any tax that may be chargeable on these
amounts.
B. Costs and expenses
Relying
on bills from their representatives, the applicants sought CYP
27,459.85 (approximately EUR 47,086) and 4,050 pounds sterling (GBP)
(approximately EUR 5,394) for the costs and expenses incurred in the
proceedings before the Court.
The
Government argued that the legal fees claimed by the applicants were
excessive and exorbitant. They observed that in the present case
there had been no oral hearing and that the applicants' observations
on the merits largely repeated earlier allegations. Moreover, some of
the arguments submitted (especially those concerning the exhaustion
of domestic remedies) were irrelevant as they ran counter to the
established case-law of the Court. In the light of the above, the
Government reached the conclusion that the costs which might have
been incurred in the preparation of the applicants' observations were
unnecessary.
The
Government of Cyprus considered that it was appropriate for the
applicants' lawyers to address at length the issue of domestic
remedies, which had been raised by the respondent Government.
According
to the Court's established case-law, an award can be made in respect
of costs and expenses incurred by the applicant only in so far as
they have been actually and necessarily incurred and are reasonable
as to quantum (see Belziuk v. Poland, judgment of 25 March
1998, Reports 1998 II, § 49). The Court notes that
the case was rather complex, involved perusing a certain amount of
factual and documentary evidence and required a fair degree of
research and preparation. However, it considers the amount claimed
for the costs and expenses relating to the proceedings before it
excessive and decides to award the total sum of EUR 12,000,
exclusive of any value-added tax that may be chargeable.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Dismisses the Government's preliminary
objection;
Holds that there has been a violation of
Article 2 of the Convention in respect of the killing of
Anastasios Isaak;
3. Holds that there has been a violation of
Article 2 of the Convention in respect of the failure to conduct
an effective investigation into the circumstances in which Anastasios
Isaak died;
Holds that it is not necessary to examine
whether there has been a violation of Articles 8 and 14 of the
Convention;
Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
80,000 (eighty thousand euros) to the first applicant in respect of
pecuniary damage;
(ii) EUR
35,000 (thirty-five thousand euros) to each of the first, second and
third applicants in respect of non-pecuniary damage;
(iii) EUR
15,000 (fifteen thousand euros) to each of the fourth and fifth
applicants in respect of non-pecuniary damage;
(iv) EUR 12,000
(twelve thousand euros) in respect of costs and expenses;
(v) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 24 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
