CASE OF VARNAVA AND OTHERS v. TURKEY
(Applications nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90)
18 September 2009
This judgment is final but may be subject to editorial revision.
In the case of Varnava and Others v. Turkey,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Sverre Erik Jebens,
Luis López Guerra,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
Gönül Erönen, ad hoc judge,
and Erik Fribergh, Registrar,
Having deliberated in private on 19 November 2008 and 8 July 2009,
Delivers the following judgment, which was adopted on the last mentioned date:
There appeared before the Court:
(a) for the respondent Government
Mr Z. Necatigil, Agent,
Prof. Dr. J. A. Frowein,
Mrs S. Karabacak,
Mr T. Bilgiç,
Mrs D. Akçay,
Mrs A. Özdemir, Advisers;
(b) for the applicants
Mr A. Demetriades, Barrister,
Mr L. Christodoulou, Advocate,
Mr Ian Brownlie QC, Counsel,
Mr L. Arakelian,
Mr C. Paraskeva, Advisers;
(c) for the intervening Government
Mr P. Clerides, Attorney-General, Agent,
Mr A.V.R. Lowe, Barrister at Law, and Professor of Law,
Mrs F. Hampson, Barrister at Law, and Professor of Law,
Mrs S. M. Joannides, Barrister at Law, Advisers.
The Court heard addresses by Mr Brownlie and Mr Demetriades for the applicants, by Mr Frowein for the Government and by Mr Lowe for the intervening Government.
I. THE CIRCUMSTANCES OF THE CASE
A. General context
B. The facts of these cases
1. The applicants' submissions on the facts
a. Application no. 16064/90: Andreas Varnava
b. Application no. 16065/90: Andreas Loizides
c. Application no. 16066/90: Philipos Constantinos
d. Application no. 16068/90: Demetris Theocharides
e. Application no. 16069/90: Panicos Charalambous
f. Application no. 16070/90: Eleftherios Thoma
g. Application no. 16071/90: Savvas Hadjipanteli
h. Application no. 16072/90: Savvas Apostolides
i. Application no. 16073/90: Leontis Demetriou Sarma
61. The first applicant was born in 1947; he has been considered missing since 1974. His wife, the second applicant, was born in 1949 and resided in Limassol.
2. The respondent Government's submissions on the facts
3. The submissions of the intervening Government
a. Varnava, no. 16064/90, and Sarma, no. 16073/90
b. Loizides, no. 16065/90
c. Constantinou, no. 16066/90
d. Theocharides, no. 16068/90
e. Charalambous, no. 16069/90
f. Thoma, no. 16070/90
g. Hadjipanteli, no. 16071/90
h. Apostolides, no. 16072/90
4. Recent developments
II. RELEVANT INTERNATIONAL LAW AND PRACTICE
A. The United Nations Committee on Missing Persons (“CMP”)
“181. ...According to its terms of reference, it 'shall only look into cases of persons reported missing in the intercommunal fighting as well as in the events of July 1974 and afterwards.' Its tasks have been circumscribed as follows: 'to draw up comprehensive lists of missing persons of both communities, specifying as appropriate whether they are alive or dead, and in the latter case approximate time of the deaths.' It was further specified that 'the committee will not attempt to attribute responsibility for the deaths of any missing persons or make findings as to the cause of such deaths' and that 'no disinterment will take place under the aegis of this committee. The committee may refer requests for disinterment to the ICRC for processing under its customary procedures.' 'All parties concerned' are required to co-operate with the committee to ensure access throughout the island for its investigative work. Nothing is provided as regards investigations in mainland Turkey or concerning the Turkish armed forces in Cyprus.
182. The CMP consists of three members, one 'humanitarian person' being appointed by the Greek-Cypriot side and one by the Turkish-Cypriot side and the third member being an 'official selected by the ICRC... with the agreement of both sides and appointed by the Secretary-General of the United Nations'.
183. The CMP has no permanent chairman, the presidency rotating on a monthly basis between all three members. Decisions are to be taken by consensus to the extent possible. According to the procedural rules agreed upon in 1984, the procedure is to be conducted as follows:
'1. Individual or collective cases will be presented to the CMP with all possible information. The CMP will refer each case to the side on whose territory the missing person disappeared; this side will undertake a complete research and present to the CMP a written report. It is the duty of the CMP members appointed by each side, or their assistants, to follow the enquiries undertaken on the territory of their side; the third member and/or his assistants will be fully admitted to participate in the enquiries.
2. The CMP will make case decisions on the basis of the elements furnished by both sides and by the Central Tracing Agency of the ICRC: presumed alive, dead, disappeared without visible or other traceable signs.
3. If the CMP is unable to reach a conclusion on the basis of the information presented, a supplementary investigation will be undertaken at the request of a CMP member. The third CMP member and/or his assistants will participate in each supplementary investigation, or, as the case may be, investigators recruited by the CMP with the agreement of both sides.'
184. The 1984 rules state as 'guiding principles' that 'investigations will be conducted in the sole interest of the families concerned and must therefore convince them. Every possible means will be used to trace the fate of the missing persons.' The families of missing persons may address communications to the committee which will be passed on to its appropriate member. That member will eventually provide the family with 'final information as to the fate of a particular missing person', but no interim information must be given by any member of the committee to the family of a missing person during the discussion of a particular case.
185. The committee's entire proceedings and findings are strictly confidential, but it can issue public statements or reports without prejudice to this rule. According to the 1984 procedural rules, a press release will be issued at the close of a meeting or series of meetings and occasional progress reports will also be published. Individual members may make additional statements to the press or the media, provided they comply with the rule of confidentiality, avoid criticism or contradiction to the joint statement and any kind of propaganda.
186. Due to the strict confidentiality of the CMP's procedure, no detailed information about the progress and results of its work is available. However, from the relevant sections of the regular progress reports on the UN Operation in Cyprus submitted by the UN Secretary-General to the Security Council it appears that the committee's work started in May 1984 with a limited, equal number of cases on both sides (Doc. S/16596 of 1.6.1984, para. 51); that by 1986 an advanced stage had been reached in the investigation of the initial 168 individual cases, supplementary investigations being started in 40 cases in which reports had been submitted (Doc. S/18102/Add. 1, of 11 June 1986, para. 15); and that, while no difficulties were encountered as regards the organisation of interviews or visits in the field, real difficulties then arose by the lapse of time and, even more importantly, lack of cooperation by the witnesses.
187. This prompted the committee to issue a lengthy press release on 11 April 1990 (Doc. S/21340/Annex). There the committee stated that it considered the co-operation of the witnesses as absolutely fundamental, but that the witnesses were often reluctant, unwilling or unable to give full information as to their knowledge about the disappearance of a missing person. However, the committee could not compel a witness to talk. The explanation of the witnesses' reluctance to testify was that they were afraid of incriminating themselves or others in disappearances, and this despite the witnesses being told by the committee that the information given would be kept strictly confidential and being reassured that they would 'not be subject to any form of police or judicial prosecution'. The committee appealed to the parties concerned to encourage the witnesses to give the very fullest information in their knowledge. It further stated:
'In order to further allay the fears of the witnesses, the Committee, so as to give the strongest guarantees to the witnesses, is examining measures that could be taken to ensure that they would be immune from possible judicial and/or police proceedings solely in connection with the issue of missing persons and for any statement, written or oral, made for the Committee in the pursuit of activities within its mandate.'
188. In the same press release, the committee pointed out that it considered as legitimate the desire of the families to obtain identifiable remains of missing persons. However, despite systematic enquiries on burial places of missing persons, on both sides, it had not been successful in this respect. It recalled that according to its terms of reference it could not itself order disinterments. Moreover, while there was access to all evidence available, the committee had not reached the stage of finding a common denominator for the appreciation of the value of this evidence. Finally, the committee stated that it was considering the possibility of requesting that the two sides furnish it with basic information concerning the files of all missing persons, so as to allow it to have a global view of the whole problem.
189. In December 1990, the UN Secretary-General wrote a letter to the leaders of both sides observing that so far the committee had been given details on only about 15 % of the cases and urging them to submit all cases. He further emphasised the importance of reaching consensus on the criteria that both sides would be ready to apply in their respective investigations. Moreover, the committee should consider modalities for sharing with affected families any meaningful information available (Doc. S/24050, of 31 May 1992, para. 38). On 4 October 1993, in a further letter to the leaders of both communities the UN Secretary-General noted that no improvement had been made and that the international community would not understand that the committee, nine years after it had become operational, remained unable to function effectively. Only 210 cases had been submitted by the Greek-Cypriot side and only 318 by the Turkish-Cypriot side. He again urged both sides to submit all cases without further delay and the committee to reach a consensus on the criteria for concluding its investigations (Doc. S/26777, of 22 November 1993, paras. 88 - 90).
190. On 17 May 1995 the UN Secretary-General, on the basis of a report of the CMP's third member and proposals by both sides, put forward compromise proposals on criteria for concluding the investigations (Doc. S/1995/488, of 15 June 1995, para. 47), which were subsequently accepted by both sides (Doc. S/1995/1020, of 10 December 1995, para. 33). By December 1995, the Greek Cypriot side submitted all their case files (1493). However, the committee's third member withdrew in March 1996 and the UN Secretary-General made it a condition for appointing a new one that certain outstanding questions, including classification of cases, sequence of investigations, priorities and expeditious collection of information on cases without known witnesses, be settled beforehand (Doc. S/1996/411, of 7 June 1996, para. 31). After being repeatedly urged to resolve these issues (Doc. S/1997/437, of 5 June 1997, paras. 24 -25), both parties eventually came to an agreement on 31 July 1997 on the exchange of information on the location of graves of missing persons and return of their remains. They also requested the appointment of a new third member of the CMP (Doc. S/1997/962, of 4 December 1997, paras. 21 and 29-31). However, by June 1998, no progress had been made towards the implementation of this agreement. The UN Secretary-General noted in this context that the Turkish-Cypriot side had claimed that victims of the coup d'état against Archbishop Makarios in 1974 were among the persons listed as missing and that this position deviated from the agreement (Doc. S/1998/488, of 10 June 1998, paras. 23).
191. A new third member of the CMP had, by the time of the Commission's report, been appointed (ibid. para. 24). The Committee has not completed its investigations and accordingly the families of the missing persons have not been informed of the latter's fate.”
2. Exhumations and identification of remains
3. The Council of Europe Committee of Ministers' decision of 23 March 2009
“2. considered that it was crucial that the current work of the CMP be carried out under the best possible conditions and without delay;
3. in consequence, while reaffirming that the execution of the judgment requires effective investigations, notes that these should not jeopardise the CMP's mission;
4. considered that the sequence of measures to be taken within the framework of the effective investigations, and carrying out of the work of the CMP should take into consideration these two essential aims;
5. underlined in any event the urgent need for Turkish authorities to take concrete measures having in mind the effective investigations required by the judgment, in particular relating to the CMP's access to all relevant information and places;
6. in that context, underlined, moreover the importance of preserving all the information obtained during the Programme of Exhumation and Identification carried out by the CMP; ...”
B. International law documents on enforced disappearances
1. United Nations Declaration on the Protection of all Persons from Enforced Disappearance (1/Res/47/133, 18 December 1992)
1. An act of enforced disappearance is an offence to human dignity. It is condemned as a denial of the purposes of the Charter of the United Nations and as a grave and flagrant violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in international instruments in this field.
2. Any act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families. It constitutes a violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and the right no to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to the right to life.
1. No State shall practise, permit or tolerate enforced disappearances.
2. States shall act at the national and regional levels and in co-operation with the United Nations to contribute by all means to the prevention and eradication of enforced disappearance.
Each State shall take effective legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance in any territory under its jurisdiction.
1. Acts constituting enforced disappearance shall be considered a continuing offence as long as the perpetrators continue to conceal the fate and the whereabouts of persons who have disappeared and these facts remained unclarified.
2. When the remedies provided for in article 2 of the International Covenant on Civil and Political Rights are no longer effective, the statute of limitations relating to acts of enforced disappearance shall be suspended until these remedies are re-established.
3. Statutes of limitations, where they exist, relating to acts of disappearance shall be substantial and commensurate with the extreme seriousness of the offence.
The victims of acts of enforced disappearance and their family shall obtain redress and shall have the right to adequate compensation, including the means for as complete a rehabilitation as possible. In the event of the death of the victim as a result of an act of enforced disappearance, their dependents shall also be entitled to compensation.”
General Comment on article 17 of the Declaration (E/CN.4/2001/68/18 December 2000)
27. Article 17 establishes fundamental principles intended to clarify the nature of enforced disappearances and their criminal consequences. The sense and general purpose of the article is to ensure conditions such that those responsible for acts constituting enforced disappearance are brought to justice within a restrictive approach to statutory limitations...
28. The definition of 'continuing offence' (para.1) is of crucial importance for establishing the responsibilities of the State authorities. Moreover, this article imposes very restrictive conditions. The article is intended to prevent perpetrators of those criminal acts from taking advantage of statutes of limitations...
General Comment on article 19 of the Declaration (5/CN.4/1998/43)
“72. Article 19 also explicitly mentions the right of victims and their family to 'adequate compensation'. States are, therefore, under an obligation to adopt legislative and other measures in order to enable the victims to claim compensation before the courts or special administrative bodies empowered to grant compensation. In addition to the victims who survived the disappearance, their families are also entitled to compensation for the suffering during the time of disappearance and in the event of the death of the victim, his or her dependants are entitled to compensation.
73. Compensation shall be 'adequate' i.e. proportionate to the gravity of the human rights violation (e.g. the period of disappearance, the conditions of detention, etc.) and to the suffering of the victim and the family. Monetary compensation shall be granted for any damage resulting from an enforced disappearance such as physical or mental harm, lost opportunities, material damages and loss of earnings, harm to reputation and costs required for legal or expert assistance. Civil claims for compensation shall not be limited by amnesty laws, made subject to statutes of limitation or made dependent on penal sanctions imposed on the perpetrators.
74. The right to adequate compensation for acts of enforced disappearance under article 19 shall be distinguished from the right to compensation for arbitrary executions. In other words, the right of compensation in relation to an act of enforced disappearance shall not be made conditional on the death of the victim. 'In the event of the death of the victim as a result of an act of enforced disappearance', the dependents are, however, entitled to additional compensation by virtue of the last sentence of article 19. If the death of the victim cannot be established by means of exhumation or similar forms of evidence, States have an obligation to provide for appropriate legal procedures leading to the presumption of death or a similar legal status of the victim which entitles the dependants to exercise their right to compensation. .. As a general principle, no victim of enforced disappearance shall be presumed dead over the objections of the family. ”
2. International Convention for the Protection of All Persons from Enforced Disappearance (2006)1
1. No one shall be subjected to enforced disappearance.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.
For the purposes of this Convention, 'enforced disappearance' is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.
Each State Party shall take appropriate measures to investigate acts defined in article 2 committed by persons or groups of persons acting without the authorization, support or acquiescence of the State and to bring those responsible to justice.
Each State Party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law.
The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.
Without prejudice to article 5,
1. A State Party which applies a statute of limitations in respect of enforced disappearance shall take the necessary measures to ensure that the term of limitation for criminal proceedings:
(a) Is of long duration and is proportionate to the extreme seriousness of this offence;
(b) Commences from the moment when the offence of enforced disappearance ceases, taking into account its continuous nature.
2. Each State Party shall guarantee the right of victims of enforced disappearance to an effective remedy during the term of limitation.”
The States Parties to this Convention undertake:
a. Not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees;
b. To punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories;
c. To cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons;
d. To take legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention.
For the purposes of this Convention, forced disappearance is considered to be the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees.
The States Parties undertake to adopt, in accordance with their constitutional procedures, the legislative measures that may be needed to define the forced disappearance of persons as an offense and to impose an appropriate punishment commensurate with its extreme gravity. This offense shall be deemed continuous or permanent as long as the fate or whereabouts of the victim has not been determined...”
C. Case-law concerning ratione temporis jurisdiction in disappearance cases before other international bodies
1. The Inter-American Court of Human Rights
93. The Inter-American Court of Human Rights (IACHR) has established that procedural obligations arise in respect of killings and disappearances under several provisions of the American Convention on Human Rights (“the American Convention”). In many cases, in particular those where the substantive limb of Article 4 (right to life) had not been breached, the IACHR has examined such procedural complaints autonomously under Article 8, which, unlike the Convention, guarantees the right to a fair trial for determination of rights and obligations of any nature, and Article 25, which protects the right to judicial protection, taken together with Article 1 § 1 (obligation to respect rights). The IACHR has followed the latter approach in cases where the killing or disappearance took place before the recognition of its jurisdiction by a respondent State.
2. The United Nations Human Rights Committee (“HRC”)
“States parties should also take specific and effective measures to prevent the disappearance of individuals, something which unfortunately has become all too frequent and leads too often to arbitrary deprivation of life. Furthermore, States should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life.”3
I. THE STATUS OF THE MISSING MEN AS NAMED FIRST APPLICANTS
A. Submissions to the Court
B. The Court's findings
II. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
A. Lack of legal interest
B. Objection ratione temporis
1. The Chamber judgment
2. Submissions to the Court
a. The respondent Government
b. The applicants
c. The Government of Cyprus
3. The Court's assessment
a. General principles
b. Application in the present case
i. Temporal jurisdiction and the procedural obligation under Article 2
α. Procedures linked to facts outside temporal jurisdiction
β. Reliance on earlier Court decisions rejecting procedural complaints as incompatible ratione temporis
γ. Purported retrospective application of the procedural obligation
ii. Presumption of death
iii. The nature of the procedura1 obligation to investigate disappearances
C. Six-month rule (Article 35 § 1 of the Convention)
1. The Chamber judgment
2. Submissions to the Court
a. The respondent Government
b. The applicants
c. The intervening Government
3. The Court's assessment
a. General principles
b. Applicability of time constraints to procedural obligations under Article 2 of the Convention
c. Undue delay in disappearance cases
d. Application in the present case
III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
173. Article 2 of the Convention provides:
“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.”
A. The Chamber judgment
B. Submissions to the Court
1. The applicants
2. The respondent Government
3. The Government of Cyprus
C. The Court's assessment
“132. The Court recalls that there is no proof that any of the missing persons have been unlawfully killed. However, in its opinion, and of relevance to the instant case, the above-mentioned procedural obligation also arises upon proof of an arguable claim that an individual, who was last seen in the custody of agents of the State, subsequently disappeared in a context which may be considered life-threatening.
133. Against this background, the Court observes that the evidence bears out the applicant Government's claim that many persons now missing were detained either by Turkish or Turkish-Cypriot forces. Their detention occurred at a time when the conduct of military operations was accompanied by arrests and killings on a large scale. The Commission correctly described the situation as life-threatening. The above-mentioned broadcast statement of Mr Denktaş and the later report of Professor Küçük, if not conclusive of the respondent State's liability for the death of missing persons are, at the very least, clear indications of the climate of risk and fear obtaining at the material time and of the real dangers to which detainees were exposed.”
1. The burden of proof
2. Compliance with the procedural obligation
“134. ...The Court cannot but note that the authorities of the respondent State have never undertaken any investigation into the claims made by the relatives of the missing persons that the latter had disappeared after being detained in circumstances in which there was real cause to fear for their welfare. It must be noted in this connection that there was no official follow-up to Mr Denktaş's alarming statement. No attempt was made to identify the names of the persons who were reportedly released from Turkish custody into the hands of Turkish-Cypriot paramilitaries or to inquire into the whereabouts of the places where the bodies were disposed of. It does not appear either that any official inquiry was made into the claim that Greek-Cypriot prisoners were transferred to Turkey.
135. The Court agrees with the applicant Government that the respondent State's procedural obligation at issue cannot be discharged through its contribution to the investigatory work of the CMP. Like the Commission, the Court notes that, although the CMP's procedures are undoubtedly useful for the humanitarian purpose for which they were established, they are not of themselves sufficient to meet the standard of an effective investigation required by Article 2 of the Convention, especially in view of the narrow scope of that body's investigations (see paragraph 27 above).
136. Having regard to the above considerations, the Court concludes that there has been a continuing violation of Article 2 on account of the failure of the authorities of the respondent State to conduct an effective investigation aimed at clarifying the whereabouts and fate of Greek-Cypriot missing persons who disappeared in life-threatening circumstances.”
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The Chamber judgment
B. Submissions to the Court
1. The applicants
2. The respondent Government
3. The Government of Cyprus
C. The Court's assessment
V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
A. The Chamber judgment
B. Submissions to the Court
207. The Cypriot Government contended that there was proof beyond reasonable doubt that two of the missing men, Thoma and Hadjipanteli, were detained by Turkey. The Turkish authorities had, however, failed to provide a credible and convincing account of what had happened to them; there had been no proper official records or system in place for such, nor any prompt or effective investigation. This disclosed numerous continuing violations of Article 5; and in their submission the failure of the Turkish authorities to acknowledge the detention rendered them in breach of Article 5 notwithstanding the inability of any applicant to raise the issue before the Court.
C. The Court's assessment
VI. ALLEGED VIOLATION OF ARTICLES 4, 6, 8, 10, 12, 13 AND 14 OF THE CONVENTION
VII. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
“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.”
1. The Chamber judgment
2. Submissions to the Court
a. The applicants' claims
215. The applicants submitted that Turkey's continued unwillingness to abide by her obligations were in breach of Article 46; this affected hundreds of Greek Cypriot families and threatened the effectiveness of the Convention system; they urged the Court to direct the Government to conform with its legal obligations under Articles 2, 3, 5, 8, 10, 13 and 14 of the Convention towards the applicants by conducting a prompt and effective investigation into the fate and whereabouts of the missing men, publicising the results, immediately and unconditionally releasing and repatriating any still in Turkish custody and returning the remains of those who were proved to be dead. In default of such steps, as incentive, the Government should pay each applicant 24 Cypriot pounds (CYP) per day, such rate doubling for every twelve month period that elapsed.
b. The respondent Government's response
c. The intervening Government's comments
d. Submissions by Redress
3. The Court's assessment
a. Article 46 of the Convention
b. Article 41 of the Convention
B. Costs and expenses
1. The parties' submissions
2. The Court's award
C. Default interest
FOR THESE REASONS, THE COURT
2. Dismisses by sixteen votes to one the Government's preliminary objection as to lack of temporal jurisdiction;
(a) that the respondent State is to pay, within three months, the following amounts:
(i) EUR 12,000 (twelve thousand euros) per application, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 8,000 (eight thousand euros) per application, plus any tax that may be chargeable to the applicants or their heirs, in respect of costs and expenses;
(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;
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 18 September 2009.
Fribergh Jean-Paul Costa
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) Concurring opinion of Judges Spielmann, joined by Judges Ziemele and Kalaydjeva;
(b) Joint concurring opinion of Judges Spielmann and Power;
(c) Concurring opinion of Judge Ziemele;
(d) Concurring opinion of Judge Villiger;
(e) Dissenting opinion of Judge Erönen.
CONCURRING OPINION OF JUDGE SPIELMANN, JOINED BY JUDGES ZIEMELE AND KALAYDJIEVA
JOINT CONCURRING OPINION OF JUDGES SPIELMANN AND POWER
CONCURRING OPINION OF JUDGE ZIEMELE
The status of the missing men
Presumption of death
Six months rule
CONCURRING OPINION OF JUDGE VILLIGER
I voted with the majority in finding violations of Articles 2, 3 and 5 of the Convention.
Nevertheless, I disagree with the majority's conclusion in which the Government's preliminary objection as to the application of the six months' rule under Article 35 § 1 of the Convention is rejected (§ 172 above).
There can be no doubt that the disappearances amounted to a continuing situation. However, the relatives of the missing persons claiming to suffer from the continuing violation cannot wait indefinitely until they undertake a particular form of action. At some stage, the continuing situation will come to an end, and the six months' rule has to be applied. The question arises, when this moment will be.
In the present case, this moment arose when the relatives of the missing persons had remedies at their disposal and employed them, or failed to employ them as they realised that the remedies were ineffective. The institution providing for the remedy, if I may call it this, would have been the Committee on Missing Persons (CMP). It raised high hopes in 1981 when it was set up. But after a certain time, it could be seen by everyone that it was not effective, and the relatives could no longer have been expected to apply to it.
Thus, by 1984 delays had become apparent, in particular as it was only then, i.e. three years after the CMP was set up, that the rules of procedure were prepared. Within a few years thereafter the relatives should have realised, if necessary assisted by competent legal advice, that the CMP was not at all a body which could afford relief and which they could be expected to seize.
For me the cut-off date of the continuing period falls in the year 1987. This view, therefore, coincides with the respondent Government's objection that the six months' rule started running in the year when Turkey accepted the right of individual application before the former European Human Rights Commission.
As the relatives failed to raise their complaints then, they have not, in my view, complied with the six months' rule according to Article 35 § 1 of the Convention.
DISSENTING OPINION OF JUDGE ERÖNEN
A. Following the decision of the Grand Chamber in Šilih, the majority in the present case set out to establish a consistency of jurisprudence in matters relating to ratione temporis and the six months rule in relation to disappearance cases, granting jurisdiction over the matter to the Court in order to end the anomalies present in the variety of rulings on the matter to date.
I have been unable to agree with the majority decision that the Court has jurisdiction to decide in the present case for the reasons I will expound on below and because I found no reason to change my views on the matter which I gave in the Chamber's judgment. On the whole I have found that, rather than clarifying the situation and the case-law on the subject as I believe was intended, the case-law precedents on the issue have become even more untenable and confusing as a result of the majority decision in this case, so that there is now a jurisprudence which is relatively prejudicial to the efficacy and consistency expected of the European Court of Human Rights.
This I found to be so in both the majority's assessment of ratione temporis in disappearance cases and to the application of the six months rule, both of which I feel have been eroded and dispensed with as a result of this decision. I will devote my opinion to these two aspects of the decision and to related issues. Since I do not agree that the Court has jurisdiction in this case I do not consider it ethical or correct to voice any opinion on any of the substantive issues involved in the alleged violations of the Convention.
B. I voted against the finding of the majority rejecting the respondent Government's two preliminary objections that the Court did not have jurisdiction ratione temporis to entertain the case and that the application had been filed out of time under the six months rule. It is my view that the Court does not have competence to adjudicate on the merits of the present case. I shall expand further on this opinion below. I also voted against the majority judgment to the effect that a legal interest remains in pursuing the examination of these applications for the very reason that the majority in this judgment (paras. 185, 186, 201, 202 and 208) have concluded that the first-named applicants in each application were amongst those who went missing in 1974. I do not feel it necessary to go into further detail on the lack of legal interest issue in consideration of the fact that I do not find that the Court has jurisdiction to entertain the case in view of the other two preliminary objections.
C. In conformity with my opinion that the Court does not have temporal jurisdiction, I voted against the finding that there has been a continuing violation of Article 2 on account of the failure of the authorities of the respondent State to conduct effective investigations into the fate of the nine missing men, who disappeared in life-threatening circumstances. As a result, I again do not feel it correct or ethical to express any comments on the merits of these allegations or on the majority view stated in the judgment.
D. It follows therefore that for the very same reason I did not consider it in accordance with my opinion on the lack of competence ratione temporis and the six months rule to commit myself to voicing any views on or making findings of a continuing violation under Article 3 in respect of the applicants, and of a continuing violation of Article 5, by virtue of the failure of the authorities of the respondent State to conduct an effective investigation into the fate of Eleftherios Thoma and Savvas Hadjipanteli.
E. I voted with my colleagues with regard to the alleged violation of Article 5, to the effect that there has been no continuing violation by virtue of the failure of the authorities of the respondent State to conduct an effective investigation into the fate of the seven missing men, for the sake of consistency. I do not deem this to contradict in any way my opinion on the preliminary objections.
F. Similarly, the reason I voted with my colleagues (despite my opinion that the Court does not have temporal jurisdiction to deal with the merits of this application) in finding that it was not necessary to examine the complaints relating to alleged violations under Articles 4, 6, 8, 10, 12, 13 and 14 of the Convention, was simply because the Court found no reason to adjudicate on the complaints and not because I concur with the majority findings of violations under Articles 2, 3 and 5 (para. 211).
G. For the same reason, in view of my opinion that the Court does not have temporal jurisdiction and since I do not find that there is a continuing obligation, I voted against any conclusion relating to the question whether an award should be made in respect of non-pecuniary damage.
H. I voted with my colleagues with regard to the remainder of the applicants' claim for just satisfaction, with the same motive and belief as stated in (E) above.
At this stage, I would reiterate the observations I made in the case before the Chamber. Any view I may express in this opinion is made with a view to expanding on and confirming the observations I made at that stage of the proceedings. The Grand Chamber decision in Šilih has not altered my views. I will also express my humble views on why I could not agree with the majority views in this particular case.
The majority accepts that under general principles applied to this case it does not have competence to examine factual events in 1974, considering them outside the Court's temporal jurisdiction.
However the majority view notes (a) that the duty to provide an effective investigation is itself an independent violation operating separately from the substantive limb of Article 2; (b) that even if a presumption of death could be found, this would not remove the procedural obligation to investigate; (c) that disappearances are an “instantaneous act” which nevertheless gives rise to a continuing obligation to investigate, and that the Court therefore has jurisdiction to try the case ratione temporis.
While deciding on the ratione temporis principle I found some confusion in the assessment of the two recent cases on ratione temporis, Blečić and Šilih.
As noted by the majority, the principles in Blečić state, inter alia, (in para. 77) that
“... the Court's temporal jurisdiction is to be determined in relation to the facts constitutive of the alleged interference. The subsequent failure of remedies aimed at redressing that interference cannot bring it within the Court's temporal jurisdiction.” (emphasis added).
The Court, further clarifying the principle in the Blečić judgment, emphasised as follows:
“81. In conclusion, while it is true that from the ratification date onwards all of the State's acts and omissions must conform to the Convention (see Yağcı and Sargın v. Turkey, judgment of 8 June 1995, Series A no. 319 A, p. 16, § 40), the Convention imposes no specific obligation on the Contracting States to provide redress for wrongs or damage caused prior to that date (see Kopecký v. Slovakia [GC], no. 44912/98, § 38, ECHR 2004 IX). Any other approach would undermine both the principle of non-retroactivity in the law of treaties and the fundamental distinction between violation and reparation that underlies the law of State responsibility.
82. In order to establish the Court's temporal jurisdiction it is therefore essential to identify, in each specific case, the exact time of the alleged interference. In doing so the Court must take into account both the facts of which the applicant complains and the scope of the Convention right alleged to have been violated.”
In Šilih the approach on whether a procedural obligation under Article 2 exists involved the a question of the detachability of the procedural obligation. Following Šilih, for there to be a procedural duty existing under Article 2,
a) “where death occurred before the critical date, only procedural acts and/or omissions occurring after that date can fall within the Court's temporal jurisdiction.”
b) “there must exist a genuine connection between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by Article 2 to come into effect”.
“Thus a significant proportion of the procedural steps required by this provision – which include not only an effective investigation into the death of the person concerned but also the institution of appropriate proceedings for the purpose of determining the cause of the death and holding those responsible to account (see [Vo v. France], § 89) – will have been or ought to have been carried out after the critical date.
However, the Court would not exclude that in certain circumstances the connection could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner” (Šilih, paras. 162-163).
While it is true that Turkey ratified the Convention in May 1954, it only recognised the right of individual petition regarding events occurring after 22 January 1987 and the Court's jurisdiction only in 1990. In order for Šilih to apply, it is also not established in the majority's decision what the “genuine connection between the death and entry into force of the Convention” is for Turkey.
In my respectful opinion, while Turkey could be bound by the Convention from 1954, the Court does not have the competence to examine any facts that occurred prior to 1987 even where the procedural obligation under Article 2 is “detachable”, since according to Šilih (see above) such jurisdiction to examine did not arise from any kind of procedural acts and/or omissions occurring after the “critical date” of 1987, which the majority has already accepted as being the operative date. Article 6 of Protocol 11 confirms this view. In other words the Court only has jurisdiction to examine a continuing procedural obligation occurring after 1987, since the continuing obligation would move forward after the critical date, not backwards. Article 6 of Protocol 11 did not change Turkey's restrictions regarding acceptance of the Court's compulsory jurisdiction over any of its acts or omissions before 1987.
Protocol 11 entered into force on 1 November 1998. Article 6 of Protocol 11 provides:
“Where a High Contracting Party has made a declaration recognising the competence of the Commission or the jurisdiction of the Court under former Article 25 or 46 of the Convention with respect to matters arising after or based on facts occurring subsequent to any such declaration, this limitation shall remain valid for the jurisdiction of the Court under this Protocol.”
Article 6 of Protocol 11 in effect clearly states that the present-day Court is only competent to examine “matters arising after or based on facts occurring subsequent to” any declaration recognising the competence of the Court. Hence, in line with my views on the ratione temporis question, Article 6 of Protocol 11 clearly prohibits the Court from entertaining any case which relates to any facts occurring prior to the “critical date” of 1987.
In this respect I found the majority judgment confusing in that despite Article 6 of Protocol 11 binding Turkey in respect of violations occurring after 1987, the majority prefers to take 1954 as the operative date for its temporal competence to examine the alleged violations when in fact Turkey did not agree to be compulsorily bound by them or be accountable for them until the critical date of 1987. In effect, the majority accepts that while the Court does not have jurisdiction to examine complaints raised in so far as the alleged violations are based on facts having occurred before that “critical date” (paras. 133-134), that is before 1987, it nonetheless proceeds from its finding that Turkey was bound by the provisions of the Convention from its date of ratification of the Convention, 18 May 1954. As a result, I find that it mistakenly brings the events of 1974 and the disappearances and subsequent deaths during that time within its jurisdiction.
This is hard to reconcile with the Xenides-Arestis case, as regards ratione temporis, where the Court, in assessing compensation in its judgment on just satisfaction, took the operative date as the date when Turkey recognised the compulsory jurisdiction of the Court in 1990, ruling as follows (para. 38):
“The Court will therefore proceed to determine the compensation the applicant is entitled to in respect of losses emanating from the denial of access and loss of control, use, and enjoyment of her property between 22 January 1990, the date of Turkey's acceptance of the compulsory jurisdiction of the Court, and the present time (Loizidou (Article 50), judgment of 29 July 1998, cited above, p. 1817, § 31).”
In my view, the majority judgment adds even more confusion to already complex ratione temporis issues as my comments below will further elaborate.
Presumption of death
My views in relation to this aspect remain the same as in the Chamber judgment, in that:
“... I perceive no justifiable reason why a presumption of death (in the light of the most recent development in the Court's case-law), unless for reasons of sensitivity on the issue, could not have been adjudicated and acted upon accordingly. The Blečić principle as applied to the present case, relieves, to a certain extent, the findings on the presumption of being alive and continuing violation as expressed in the Cyprus v. Turkey decision on missing persons, thereby excluding the presence of an obligation of a continuing nature. I find that the disappearances and the presumption of the applicants' being dead existed as a fact before Turkey recognised the right of individual application to the Commission. That is to say, the facts constitutive of the alleged interference, and as proven, had taken place before ratification and therefore this Court is not competent ratione temporis to examine the effective investigation issue or any other issues pertinent to the actual merits of this case.
In short, I feel that there is no violation of a “continuing nature”, and hence no obligation of a continuing nature. The findings of the Cyprus v. Turkey judgment with regard to a “continuing violation of Article 2 on account of the failure of the authorities of the respondent State to conduct an effective investigation” need to be interpreted in line with recent case-law, which necessitates that such a “continuing obligation” and all consequent requirements of such an obligation, if an obligation does exist, only exist if the case falls within the competence of this Court ratione temporis – and, in my view, the present case does not.
Given that the facts constitutive of the alleged interference (disappearance and subsequent presumed deaths) occurred before 28 January 1987, I do not feel that the Court can examine the complaints concerning the ineffectiveness of the investigation into the disappearance of the Greek Cypriots, for lack of jurisdiction ratione temporis.”
It is not clear whether the majority decision in the present case is presuming the death of the missing persons or not, though it does appear to make obscure assumptions on this issue. Further while the presumption of death is “not automatic” the majority notes that there is a possibility that the missing are dead and it also does this through examples of case-law where such presumptions of death were actually made (para. 143), “even if there was an evidential basis which might justify finding that the nine missing men died in or closely after the events in 1974” (para. 144).
In para. 146 of the majority decision the Court therefore concludes
“that even though a lapse of over 34 years without any news of the missing persons may provide strong circumstantial evidence that they have died meanwhile, this does not remove the procedural obligation to investigate.”
There appears to be a contradiction when, having made a finding based on “strong circumstantial evidence” that the men may in fact be dead, the Court states in para.148:
“A disappearance is a distinct phenomenon, characterised by an ongoing situation of uncertainty and unaccountability in which there is a lack of information or even a deliberate concealment and obfuscation of what has occurred.”
I agree with the majority findings in the present case in para. 146 and with para. 147 to the effect that
“as found in Šilih v. Slovenia concerning the procedural obligation under Article 2 to investigate unlawful or suspicious deaths, the procedural obligation under Article 2 arising from disappearances operates independently of the substantive obligation”.
Yet, while it is sought to distinguish the approach of Šilih – to the effect that the requirement of proximity of the death and investigative steps to the date of entry into force of the Convention – “applies only in the context of killings or suspicious deaths, where the anchoring factual element, the loss of life of the victim, is known for a certainty, even if the exact cause or ultimate responsibility is not” from the continuing nature of the procedural obligation as found in the phenomenon of disappearance cases (paras. 148-149), the majority have nonetheless implicitly accepted that the men are more than likely dead. I consider that the majority in presenting their views should have arrived at and expounded a more concrete and explicit finding on the fate of the “missing” rather than simply implicitly doing so.
Bearing the principles set out in Šilih in mind, even if the distinct procedural obligation, “operating independently from the substantive limb”, is of a continuing nature, it is related to the facts occurring prior to the critical date and such an obligation cannot be “detached” from the events which occurred prior to it. Conversely, even if detachable, the obligation is a part of events occurring before the critical date, and is therefore not within the Court's temporal jurisdiction.
Therefore, I feel that the observations found in paras. 147 to 149 in effect eliminate the reliance placed by the majority on Šilih and Blečić when arriving at its conclusions.
In line with my views that a presumption of death should be made, I also agree therefore with the majority that there is “strong circumstantial evidence that they have died” and that this itself does not prevent a procedural obligation from arising. However, where I differ is that this duty's existence depends on whether the Court does have temporal jurisdiction regarding the procedural obligation in the first place, which in line with the principles set down in the recent Grand Chamber judgment of Šilih, it does not.
I also concur whole-heartedly with the reasoning of Judges Bratza and Türmen in the Šilih case, looking beyond the “detachable” obligations of Article 2's procedural aspect:
“Divorcing the procedural obligation from the death which gave rise to it in this manner would, in our view, be tantamount to giving retroactive effect to the Convention and rendering nugatory the State's declaration recognising the Court's competence to receive individual applications.”
Even if noted (in para. 134) that
“the applicants specified that their claims related only to the situation pertaining after January 1987, namely the continuing failure to account for the fate and whereabouts of the missing men by providing an effective investigation”,
in the present case the obligation to carry out investigative measure was not triggered by “relevant new evidence or information” before this Court, since the majority position on this issue is, as I see it, still based on the 4th inter-State case findings.
Again, to reiterate, I hold the belief that, following the reasoning in Šilih, if a duty existed it also existed before January 1987. This being so, and since the duty to investigate existed long before the date of recognition of the jurisdiction of both the Commission and the Court (at least 13 years), then according to Article 6 of Protocol 11 the obligation to investigate said to exist cannot be detached from the events prior to 1987. Even where such an obligation is accepted as “detachable”, it is still outside this Court's temporal jurisdiction.
If the duty to investigate existed, it existed from 1974 and continued until and after the critical date. The Šilih conditions are therefore not satisfied. It is equally true that such facts are not separate or “detachable” from the events that occurred prior to 1987. Hence, in both respects, the Court has no jurisdiction to try this case.
This is what the principle of legal certainty requires. Difficulties and anomalies existing behind the judicial reasoning (paras. 132-150) found in the present applications, result in what I consider to be an effort to bring the procedural obligation of an investigation within the jurisdiction of this Court.
I could not help but ask myself the question whether one is to assume therefore that disappearance cases like the case before us, where a presumption of death is a natural consequence of the facts before the Court, do not have a place within or are excluded from the fundamental principle of the Convention found in the ratione temporis rule. Another question: does the finding of the majority in paragraphs 147-149 mean that the ratione temporis principle is no longer applicable to disappearance cases?
The ratione temporis principle is, as is the procedural aspect of Article 2, enshrined in the Convention. It is not one that can be overridden and the findings of the majority again leave the Court open to inconsistency in jurisprudence. This judgment raises serious issues of legal certainty and creates further uncertainties, if the Court's temporal jurisdiction concerning compliance with the procedural obligation of Article 2 in respect of deaths that occurred before the critical date were to be regarded as open-ended. As such, these inconsistencies will not be easily remedied if, in an effort to resolve the differences between various Court decisions on this issue as concerns the Court's jurisdiction ratione temporis over procedural complaints under Article 2, one does not remain true to the principles and aspects of “detachability” enunciated in Šilih (paras. 153-163, and especially paras. 161-165).
That means, in conclusion, that the majority approach in the present case is, in my opinion “tantamount to giving retroactive effect to the Convention and rendering nugatory the State's declaration recognising the Court's competence to receive individual applications” (see the separate opinion of Judges Bratza and Türmen in Šilih).
In view of the above and Article 6 of Protocol 11, I find that the alleged interference referred to in this case whether procedural or substantive, does not fall within the Court's temporal jurisdiction and that it is therefore not competent to examine these applications.
The six months rule
As regards whether there was a “procedural obligation to investigate the fate and whereabouts of the missing men at the time of the introduction of these applications” the majority concurs with the Chamber judgment that there was no “unreasonable delay by these applicants in introducing their complaints”.
In my view, here too in reality the six months rule becomes eroded by bringing to the rule a different interpretation from the one which is already clear-cut. While I accept the majority's interpretation of “reasonable expedition” this is entirely a relative issue pertaining to the present case and has no bearing on the Baybora applications. While accepting that there were difficulties for the applicants in realising the ineffectiveness of the CMP, the Court appears to disregard the possibly even more serious difficulties and “special circumstances” occurring during the intervening years for the Turkish Cypriot applicants on account of “the uncertainty and confusion which frequently mark the aftermath of a disappearance” (paras. 162-166). No allowances appear to have been made for Turkish Cypriot “disappearance cases where there is a state of ignorance and uncertainty and, by definition a failure to account for what has happened, if not an appearance of deliberate concealment and obstruction on the part of some authorities, [and where] the situation is less clear-cut”.
Whereas a date is given – “the end of 1990” – when the applicants were bound to know that the CMP was ineffective, the majority fail, with all due respect to my colleagues, to give the same understanding to Turkish Cypriot applicants, who in fact waited for an official confirmation through the Court judgment, that is the judgment of 10 May 2001 in the 4th inter-State case. Here I find it necessary to reiterate my opinion in the Chamber judgment on this issue:
“(a) The intervening Government of Cyprus recognised the right to individual petition to the Commission on 1 January 1989. The Turkish Cypriot applicants could not have applied earlier for redress in respect of their claims. Similarly Greek Cypriot applicants could not have applied, until Turkey's ratification in 1987, to the Commission and, in January 1990, to the Court.
(b) The applicants in the present case, as well as those in the Karabardak and Others case, could not have known of the decisions taken in the inter-State cases. The first, second or third inter-State cases did not really deal with the issues of continuing violation. It was in 2001, in the fourth inter-State case, that the notion of continuing violation in disappearance cases was first expounded. In any event, no applicant could have applied until 1989 or 1990, respectively. The present applicants lodged their application in 1990. The Karabardak applicants made their application in 2001, probably after obtaining legal advice on the issue. The legal positions, in both cases, are the same.
(c) As pointed out in the Akdivar case (Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210) prevailing “special circumstances” need to be taken into account when considering whether remedies are actually available. Considering the climate in Cyprus in both 1963-4 and 1974, one cannot say with certainty that such redress was readily available to trace the disappearances (see also Cyprus v. Turkey, § 99).
(d) The CMP did not start functioning until 1981. The CMP was concerned with collecting files on both Greek and Turkish missing persons' families, so reliance was probably placed on the outcome of the CMP investigations and no other redress claimed. Understandably, such families of missing persons were not aware of the mandate of the CMP as it stood at the time and perhaps only became aware of its functions and views on its work following the fourth inter-State judgment in May 2001. It follows then that the fact that the applicants in the present case applied to the Commission three days after Turkey recognised the Court's jurisdiction is, with all due respect to my colleagues, immaterial. Legally there is no difference between the delays of the Karabardak applicants and the present applicants in their applications to the Court and the Commission, respectively. If the Karabardak and Baybora applications were rejected for being introduced out of time under Article 35, so too should the present applications have been. The fact that the events they complained of took place during the inter-communal strife of the 1960s and not in 1974 makes no difference to the legal situation.”
While the majority claim to have given “careful consideration” to the families of the Turkish Cypriots missing in intercommunal strife in the 1960s, stating, in para. 171:
“[The Court] is particularly sensitive to any appearance that differing, and inconsistent, approaches have been taken in these cases. Nonetheless, it is not persuaded that this is so. The Chamber decisions in the aforementioned cases are very concise; and in the absence of arguments from the parties, there is no explanatory reasoning. Their conclusion, however, that the applications were introduced out of time is in line with the principles and case-law outlined above”,
I do not have the impression that this is so. I consider that there is a clear contradiction in adding that the conclusion “is in line with the principles and case-law”. Either there is no “explanatory reasoning” or the “conclusion is in line with the principles and case-law”. It cannot be both since the Baybora decisions are described as “concise”. In effect, therefore, the majority's assessment here of the Baybora case (para. 171) sadly closes the door on Turkish Cypriot applications.
For the sake of clarity and conformity of case-law, the date of the 4th inter-State judgment of this Court, when the CMP's ineffectiveness was actually discussed and addressed, would have been the more appropriate date, not “the end of 1990”.
The six months rule is a principle of law, a legal fact, and to be abided by whether 3 years or 13 years have passed. It makes no difference. If there is “undue delay” in 3 years, then there is also “undue delay” in 13 years. The reasoning given by the majority to justify both the present application and the Baybora rulings is in my opinion not in conformity with Šilih, since as was found in Baybora, so too the present applications should have been lodged within the six months period. Or, taken vice versa, a decision should have been given in Baybora in conformity with the present views.
As stated above, the Šilih judgment (para. 165) attaches importance (a) to the fact that the events giving rise to the procedural obligation had occurred a short time before the critical date of ratification and (b) to the fact that the investigations had begun after ratification. In this respect, in Šilih the Court notes that the death of the applicants' son had occurred “only a little more than a year before the entry into force of the Convention in respect of Slovenia” and also to the fact that all investigations had begun within a short time after the critical date. Therefore, since the procedural duty to investigate occurred shortly after ratification by Slovenia, the Court there found it had jurisdiction. It should be noted that unlike the respondent Government in the present case, Slovenia had recognised the compulsory jurisdiction of the European Human Rights Commission and the European Human Rights Court from the date when it deposited the instrument of ratification of the Convention, that is on 28 June 1994.
For the reasons I have stated, the present applications were not filed in conformity with the six months rule. Regrettably therefore, I cannot agree with the majority view, and conclude that the judgment on this issue also creates a serious contradiction in European Convention law and precedents by stating:
“Accordingly, by applying to the Court in January 1990, these applicants acted, in the special circumstances of their cases, with reasonable expedition for the purposes of Article 35 § 1 of the Convention” (para. 170).
Without committing myself to comments on the merits of this case and without prejudice to my above views, I find it important to make some reference to the views expressed with regard to the CMP and the burden of proof.
The Committee on Missing Persons (CMP)
In my view, relevant information regarding the functions of the CMP which was not available to the Grand Chamber in the inter-State case has been presented in these applications. Yet a simple reference (para. 85), perfectly understandable for establishing exactly what the CMP is and noting its functions, is merely taken from the inter-State case judgment delivered in 2001 and is insufficient to note the important developments since that date (paras. 86-87). It does an injustice to the large quantity of information provided by the respondent Government since that judgment was delivered.
Even if the CMP is still considered ineffective to meet the purposes of Article 2, I find it is inconceivable that there is nothing more to say about it in the light of all the material provided since the 2001 decision. The majority judgment itself makes no new finding on any aspect of its work. I do not find that the development of the CMP's functions and its relevance as part of an “effective investigation”, even after the receipt of new information and evidence, have been sufficiently reassessed. This is made more evident by the fact that while the Court has made extensive use of facts, information and case-law, etc relating to ratione temporis jurisdiction in disappearance cases before other international bodies especially (paras. 88 to 102), it has not done the same with regard to the CMP information provided.
My views are supported by the recent important developments which have shown the role and activities of the CMP as an imperative and indispensable factor towards the implementation of effective investigations as required by Article 2. This fact was emphasised in a decision taken at the 1051st DH meeting of the Committee of Ministers on 19 March 2009 (see para. 88 above).
The Committee of Ministers, supervising the execution of judgment in the 4th inter-State case, noted that the “sequence of measures within the framework of the effective investigations” necessitated that any other form of effective investigation should not jeopardise the CMP's mission and considered it crucial that the current work of the CMP be carried out under the best possible conditions and without further delay. In doing so it especially underlined the importance of preserving all information obtained during the Programme of Exhumation and Identification. It noted, in effect, that the CMP's mission is part of and not separate from any other required investigation and must take precedence over any other “effective investigation”. In my understanding, the Committee of Ministers' decision emphasises that the CMP's work on the missing would need to be completed before any other kind of additional investigation can be initiated.
The burden of proof
I would like to comment briefly too on the references to the burden of proof in the present applications:
The majority have found that “ the Court would concur that the standard of proof generally applicable in individual applications is that of beyond reasonable doubt – though this also applies equally in inter-State cases” (para 182).
However, I consider that this view fails to give a reasoning as why this is so, resulting in a situation where any differences between the two degrees of proof are not dealt with, and therefore fails to comment on whether the burden of proof has been discharged in these particular individual cases.
In inter-State cases, States do not have to prove grievance or injury. In individual cases however, such issues have to be proved. Equating individual applications with inter-State applications on the same level is, I feel, an error in law which has in effect eliminated the standard of proof necessary to establish a violation in individual applications.
As to the shifting of the burden of proof (para. 184), in individual applications the burden of proof only shifts to the respondent Government if the applicants have, in the first place, discharged their burden and initially proven the facts relied upon to establish their claim for redress. This, in my opinion, is not the case in the present applications. In effect the inter-State case findings have been taken as part and parcel of the proof of these applications and have been applied without separately examining and making separate findings of fact in these individual applications.
While stating that “There is no basis on which it can be assumed that the missing men in the present case were included in the Court's (inter-State case) findings” (para. 181), the judgment then goes on to say:
“In light of the findings in the fourth inter-State case, which have not been controverted, these disappearances occurred in life-threatening circumstances where the conduct of military operations was accompanied by widespread arrests and killings. Article 2 therefore imposes a continuing obligation on the respondent Government to account for the whereabouts and fate of the missing men in the present case” (para 186).
This is a discrepancy clearly showing that the burden of proof incumbent on the applicants in the present case has not been assessed, the Court having merely adopted the inter-State case judgment on this issue. In this part of the majority judgment (paras. 181-186), and especially in para. 185, there is an indirect finding of fact as regards what occurred in 1974, which the majority have already accepted as being outside its temporal jurisdiction. With respect, this I sense is due to the fact that while it is sought to establish a “detachable” obligation under the procedural aspect of Article 2, the judgment nonetheless relies on facts outside of the Court's temporal jurisdiction, considering them already established as existing, when this is not so.
Damages and costs
On a final note, I have found the respondent Government justified in their preliminary objections and that this Court lacks jurisdiction, ratione temporis, to entertain this case. Therefore, I do not see any purpose in giving my opinion as to whether an “impact of the violation..... regarded as being of a nature and degree as to have impinged so significantly on the moral well-being” of the second applicants can be attributable to acts or omissions of the respondent Government in violation of the Convention.
Since I do not concur in the findings that the facts of the applications can be a subject for assessment by the Court, I cannot possibly agree with the majority's assessment under Article 41 on the issue of just satisfaction claims, whether in whole or in part.
In consideration of all of the above, I find also that there should be no award as to costs since this Court lacks jurisdiction and the applications are time-barred by the six-month rule.
1. See paragraph 11.
2. See paragraph 10.
3. See paragraph 9.
1. The document provided by the applicants listed 20 names, including that of Savvas Kalli which was the name under which this applicant had been recorded (see paragraph 80).
1. The first group of remains identified consisted of 13 Turkish Cypriots at Aleminyo; subsequent identifications were made of 22 Greek Cypriots at Kazaphani, Livadhia and Sandallaris, and 6 Turkish Cypriots in the Famagusta district. Their names have since been removed from the list of missing persons.
1. This Convention was opened for signature in February 2007. It will enter into force “on the thirtieth day after the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.” Only 5 States have ratified the Convention (Albania, Argentina, France, Honduras and Mexico).
1. The last two obligations are not only derived from the Inter-American Convention, but also from the Inter-American Convention on Forced Disappearance of Persons (2004) and the Inter-American Convention to Prevent and Punish Torture (1985), which may be invoked before the Court pursuant to Article 29 (d) of the Inter-American Convention.
2. See Sarma v. Sri Lanka, 16 July 2003, § 9.5. See also Edriss El Hassy v. the Libyan Arab Jamahiriya, 24 October 2007, § 6.8.
3. General Comment No. 6 (1982) at § 4.
4. See Bleier v. Uruguay, 29 March 1982, § 14.
5. See Edriss El Hassy v. the Libyan Arab Jamahiriya, § 7.
1. See Mr. Farag Mohammed ElAlwani v. Libya, 11 July 2006. The HRC found a violation of Article 2 § 3 in conjunction with Articles 6, 7 and 9 with regard to the disappeared person and of Article 2 § 3 in conjunction with Article 7 with regard to the relative.
2. At § 6.2.
3. At § 11.
1. At § 12.2.
1. See the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (first adopted in 1864, last revision in 1949); Second Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (first adopted in 1949); Third Geneva Convention relative to the Treatment of Prisoners of War (first adopted in 1929, last revised in 1949); and Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (first adopted in 1949), together with three additional amendment protocols, Protocol I (1977), Protocol II (1977) and Protocol III (2005).