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VARNAVA AND OTHERS v. TURKEY - 16064/90 [2009] ECHR 1313 (18 September 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1313.html
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[2009] ECHR 1313
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GRAND
CHAMBER
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)
JUDGMENT
STRASBOURG
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:
Jean-Paul
Costa,
President,
Françoise
Tulkens,
Josep
Casadevall,
Anatoly
Kovler,
Vladimiro
Zagrebelsky,
Lech
Garlicki,
Dean
Spielmann,
Sverre
Erik Jebens,
Ineta
Ziemele,
Mark
Villiger,
Päivi
Hirvelä,
Luis
López Guerra,
Mirjana
Lazarova Trajkovska,
Nona
Tsotsoria,
Ann
Power,
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:
PROCEDURE
The
case originated in nine applications (nos. 16064/90, 16065/90,
16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and
16073/90) 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
eighteen Cypriot nationals, Andreas and Giorghoulla Varnava (no.
16064/90), Andreas and Loizos Loizides
(no. 16065/90), Philippos Constantinou and Demetris K. Peyiotis
(no. 16066/90), Demetris Theocharides and Elli Theocharidou
(no. 16068/90), Panicos and Chrysoula Charalambous (no.
16069/90), Eleftherios and Christos Thoma (no. 16070/90),
Savvas and Androula Hadjipanteli (no. 16071/90), Savvas and Georghios
Apostolides (no. 16072/90) and Leontis Demetriou and Yianoulla
Leonti Sarma (no. 16073/90) on 25 January 1990. Each of the nine
applications contained authorities signed by the second applicants in
their own names and on behalf of their nine missing relatives named
as the first applicants.
The
applicants were represented by Mr A. Demetriades and Dr Kypros
Chrystomides, respectively, lawyers practising in Nicosia. The
Turkish Government (“the respondent Government”) were
represented by their Agent.
The
applicants alleged that the first applicants in the above
applications had disappeared after being detained by Turkish military
forces from 1974 and that the Turkish authorities had not accounted
for them since. They invoked Articles 2, 3, 4, 5, 6, 8, 10, 12, 13
and 14 of the Convention.
The
applications were joined by the Commission on 2 July 1991 and
declared admissible on 14 April 1998. They were transmitted to the
Court on 1 November 1999 in accordance with Article 5 § 3,
second sentence, of Protocol No. 11 to the Convention, the Commission
not having completed its examination of the case by that date.
The
applications were allocated to the Fourth Section of the Court
(Rule 52 § 1 of the Rules of Court). Within that
Section, the Chamber that would consider the case (Article 27 §
1 of the Convention) was constituted as provided in Rule 26 § 1.
Mr Türmen, the judge elected in respect of Turkey, withdrew from
sitting in the case (Rule 28). The Government accordingly appointed
Ms G. Erönen to sit as an ad hoc judge in his place
(Article 27 § 2 of the Convention and Rule 29 § 1).
The
applicants and the Government each filed observations on the merits
(Rule 59 § 1).
On
17 February 2000 the Cypriot Government informed the Court that they
wished to participate in the proceedings. They submitted observations
on the merits (Rule 59 § 1).
On
1 November 2003 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed
Third Section (Rule 52 § 1).
On
17 February 2005, the applicants' representative informed the Court
that the second applicant, Christos Thoma, father of the first
applicant in application no. 16070/90, had died on 12 April 1997 and
enclosed letters of authority from his wife, Chrystalleni Thoma, and
his daughter, Maria Chrystalleni Thoma who stated their intention of
continuing the application.
On
13 November 2006, the applicants' representative informed the Court
that the second applicant, Elli Theocharidou, mother of the
first-named applicant in application no. 16068/90, had died on 1
April 2005 and that his heirs (Ourania Symeou, Kaiti Constantinou,
Yiannoulla Kari, Eleni Papayianni, Andreas G. Theocharides, Dimitris
G. Theocharides and Marios G. Theocharides) wished to continue the
application. On the same date, it was communicated that the second
applicant, Georghios Apostolides, father of the first applicant in
application no. 16072/90 had died on 14 April 1998 and that his heirs
(Panayiota Chrysou, Chrystalla Antoniadou, Aggela Georgiou, Avgi
Nicolaou and Kostas Apostolides) intended to continue the
application.
On
11 January 2007, the applicants' representative informed the Court
that the second applicant, Loizos Loizides, father of the first-named
applicant in application no. 16065/90 had died on 14 September 2001
and that his granddaughter, Athina Hava, intended to continue with
the application on behalf of all the heirs of the deceased (Markos
Loizou, Despo Demetriou, Anna-Maria Loizou, Elena Loizidou and Loizos
Loizides).
The
Chamber decided, after consulting the parties, that no hearing on the
merits was required (Rule 59 § 3 in fine). It found that
the heirs of the deceased applicants had the requisite interest and
standing to continue the applications. In its judgment of 10 January
2008 (“the Chamber judgment”), the Chamber held
unanimously that there had been violations of Articles 2, 3 and 5 of
the Convention and that no separate issues arose under Articles 4, 6,
8, 10, 12, 13 and 14 of the Convention. It also held that the finding
of a violation constituted in itself sufficient just satisfaction for
the non-pecuniary damage sustained by the applicants.
On
28 March 2008 the Government requested that the case be referred to
the Grand Chamber (Article 43 of the Convention).
On
7 July 2008 a panel of the Grand Chamber decided to accept the
request for a referral (Rule 73).
The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24.
On
11 August 2008, the Cypriot Government (“the intervening
Government”) informed the Court that they wished to participate
in the proceedings. They submitted observations on the merits (Rule
59 § 1).
On
18 September 2008, the President granted leave to Redress, an
international non-governmental organisation, to submit written
observations, which were received on 2 October 2008 (Article 36 §
2 of the Convention and Rule 44 § 2).
The
applicants, the Government and the intervening Government each filed
a memorial.
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 19 November 2008 (Rule 59 § 3).
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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. General context
The
complaints raised in this application arise out of the Turkish
military operations in northern Cyprus in July and August 1974 and
the continuing division of the territory of Cyprus. These events gave
rise to four applications by the Government of Cyprus against the
respondent State, which have led to various findings of violations of
the Convention. The history is set out in the Court's judgment in
Cyprus v. Turkey ([GC], no. 25781/94, §§ 13-18,
ECHR 2001 IV; hereinafter “the fourth inter-State case”)
and the Court sees no reason for repetition.
B. The facts of these cases
The
facts are disputed by the parties. The Court notes that the summary
of their versions of events given in the Chamber judgment have not
been; these are in large part reproduced below, with the addition of
some new information submitted by the parties and identified as such
in the text.
1. The applicants' submissions on the facts
a. Application no. 16064/90: Andreas
Varnava
The first applicant, an ironmonger, was born in 1947;
he has been considered missing since 1974. His wife, the second
applicant, was born in 1949 and resided in Lymbia.
In July 1974 the first applicant, responding to
the declared general mobilisation, enlisted as a reservist in the 305
Reservists Battalion which had its headquarters in Dhali village. On
8 9 August 1974 the reserve soldiers of the 305
Reservists Battalion, among them the applicant, took up the manning
of Cypriot outposts along the front line opposite the Turkish
military forces which extended between Mia Milia and Koutsovendis.
On the morning of 14 August 1974, Turkish military
forces, supported by tanks and air cover, launched an attack against
the Cypriot area where the applicant and his battalion were serving.
The Cypriot line of defence was broken through and the Turkish
military forces began advancing towards the area of Mia Milia; the
Cypriot forces began retreating and dispersed in all directions.
After a while the area was captured by the Turkish military forces
and the applicant was cut off in it. Trace of the applicant was lost.
Mr Christakis Ioannou of Pano Dhikomo and now of
Stavros Refugee Camp Strovolos, who had been a prisoner of the
Turkish military forces and/or Turkish authorities, stated that at
Adana prison in Turkey, where he had been taken on 31 August 1974,
there were another 40 persons in the same room for 3 4 days.
Among them was the applicant. After the said period they were split
up and he had not seen the applicant since.
b. Application no. 16065/90: Andreas
Loizides
The first applicant, a student, was born in 1954; he
has been considered missing since 1974. His father, the second
applicant, was born in 1907 and resided in Nicosia.
In July 1974 the first applicant was serving as a
second lieutenant in the 1st Company of the 256 Infantry Battalion
stationed at Xeros. On about 30 July 1974 the battalion moved up to
the Lapithos area. The soldiers were split up into various groups;
the applicant's group, consisting of ten men, was ordered to take up
positions on the Lapithos heights.
On 5 August 1974 Turkish forces launched a strong
attack from all sides against the Cypriot forces' positions while
other Turkish troops managed to encircle Lapithos. Due to Turkish
superiority in manpower and armour the Cypriot forces were ordered to
retreat towards the centre of the village where the company base was.
The applicant arrived there with his men and was informed by the
inhabitants that Lapithos was surrounded by Turkish troops. They hid
their weapons in an orchard and put on civilian clothes. The same
afternoon the applicant and others attempted unsuccessfully to break
through the Turkish lines. They than returned to Lapithos again where
they spent the night. At about 9.00 a.m. on 6 August 1974 Turkish
troops entered Lapithos and started extensive searches from house to
house. The applicant and his comrades were warned by the villagers
and they dispersed in order to avoid capture. Since then none of the
members of the group has seen the applicant again.
Nicos Th. Tampas of the 256 Infantry Battalion also on
the Lapithos heights on 5 August 1974 mentioned in a
statement that at approximately 9.00 p.m. on 6 August 1974, he
entered a warehouse in the village where he found the applicant
looking after a wounded man. After talking with the applicant, he
went away. That was the last time that he saw the applicant. He was
himself arrested by the Turks on 9 August 1974 in Lapithos,
detained in various prisons in Cyprus and Turkey and released on 22
October 1974.
Christodoulos Panyi of Vatyli, now of Strovolos, in
his statement declared that while he was a prisoner in the Adana
prison he saw and recognised the applicant, whom he had known
earlier.
c. Application no. 16066/90: Philipos
Constantinos
The first applicant, a student, was born in 1954; he
has been considered missing since 1974. His father, the second
applicant, was born in 1929 and resided in Nicosia.
In July 1973 the first applicant enlisted to do his
national service. He was posted to the 70 Engineers Battalion. On 5
August 1974, a section of the battalion, including the applicant, was
sent on a mission in the Lapithos and Karavas area (Kyrenia
district). The men spent the night at Lapithos and intended to
complete the mission the following morning.
At about 4.30 a.m. on 6 August 1974, the Turkish Army
launched a full scale attack from all sides in the Karavas and
Lapithos area. The applicant's group leader ordered his men to split
up into three groups and to withdraw towards Vasilia (also Kyrenia
district). The applicant was in one of the groups which intended to
withdraw following a route along the coast.
The men first reached the main Nicosia Kyrenia
road near the “Airkotissa” restaurant. While resting,
they heard shouting and the group leader sent the applicant and
another soldier to investigate. As they had not returned after about
15 minutes the remainder of the group left for Panagra (also in the
Kyrenia district). On their way there, they were ambushed by Turkish
soldiers and the remaining group dispersed.
Costas A. Sophocleous, of Nicosia, stated that, when
he was a prisoner in Turkey from 30 July until 28 October 1974, he
met the applicant. They were together in the same prison in Turkey
and were subsequently transferred to Cyprus, whereupon he had been
released but not the applicant.
Alexandros Papamichael, of Limassol, stated that he
recognised the first applicant from a photograph that was shown him
by the second applicant and he had been with him in prison in Adana.
Finally, the second applicant mentioned in a signed
statement that he identified his missing son in a photograph
published in “Athinaiki”, a Greek newspaper, on 28
September 1974. In this photograph Greek-Cypriot prisoners were shown
on a boat en route to Turkey.
d. Application no. 16068/90: Demetris
Theocharides
The first applicant, a photographer, was born in 1953;
he has been considered missing since 1974. His mother, the second
applicant, was born in 1914 and resided in Nicosia.
On 20 July 1974 the first applicant enlisted as a
reservist. He was posted to the 1st Company of the 301 Infantry
Battalion. On 22 July the whole battalion was ordered to move on the
following day to the area of Ayios Ermolaos. The 1st Company took up
defensive positions at a height called “Kalambaki”, near
the Turkish Cypriot village of Pileri.
At about 4.30 a.m. on 26 July 1974 the 1st Company
came under attack from the Turkish Cypriot villages of Krini Pileri.
The Turkish military forces consisted of a paratroop battalion,
twenty tanks and high angle guns. They succeeded in breaking
through the Cypriot lines and infiltrated the right flank of the 1st
Company in order to encircle it. The commander ordered the company to
regroup at the village of Sysklepos; from there they were ordered to
regroup at Kontemenos where they arrived at about 3.00 p.m. After a
roll call they found out that six soldiers of the 1st Company
were absent, including the applicant. The area in which the 1st
Company had been initially stationed was captured by the Turkish
military forces.
Mr Nicos Nicolaou of Strovolos, who was a prisoner at
Adana prison (Turkey) in September 1974, stated that one day he heard
a Turk calling the applicant's name. He also saw the applicant whom
he happened to know previously and noticed that he was lame in one
leg. On 11 September 1974 Mr Nicolaou was taken to
Antiyiama prison (Turkey) and he had not seen the applicant since.
e. Application no. 16069/90: Panicos
Charalambous
The first applicant, a student, was born in 1955; he
has been considered missing since 1974. His mother, the second
applicant, was born in 1935 and resided in Limassol.
In 1972 the first applicant enlisted in the National
Guard to do his military service.
On 23 July 1974 the applicant's father was informed by
Andreas Komodromos that the applicant had left Synchari with the men
of the Headquarters Company and had gone to Aglandjia.
On 24 July 1974 Nikiforos Kominis with 17 soldiers,
including the applicant, set out from Aglandjia in two vehicles to
reconnoitre the ground of the Koutsoventis Vounos area. Three
buses were seen driving along a street from the direction of Vounos
village. An officer by the name of Votas ordered three or four
soldiers to search the buses. The buses were full of Turkish soldiers
who started firing at the Greek-Cypriot men. The applicant was
wounded in the right hand and on the left side of his ribs. Mr.
Andreas Komodromos cleaned his wounds with water, loaded his gun and
told him to go back. After that the applicant was not seen again by
his unit.
According to the statement of Yiannis Melissis, who
had been a prisoner of the Turks at Adana and Amasia in September
1974, he happened to meet the applicant during his captivity. They
both stayed with others in Cell No. 9 until 18 September. They had
chatted together every day and became friends. On 18 September
Yiannis Melissis was brought back to Cyprus and was released on 21
September 1974. The applicant had given him a letter to pass on to
his father but he left it in his pocket when he changed his clothes.
All the clothes belonging to the prisoners were burned.
The second applicant in her statement mentioned that
she had recognised her son in a photograph that was published in the
Greek newspaper “Athinaiki” on 28 September 1974 and
showed Cypriot prisoners transported to Turkey on a Turkish destroyer
in July 1974.
f. Application no. 16070/90: Eleftherios
Thoma
The first applicant, a car mechanic, was born in 1951;
he has been considered missing since 1974. His father, the second
applicant, was born in 1921 and resided in Strovolos.
In July 1974, in response to the general mobilisation,
the first applicant enlisted as a reserve sergeant in the
Headquarters Company of the 251 Infantry Battalion.
On 20 July 1974, all the men of the Headquarters
Company, including the applicant, were trying to prevent the Turkish
landing which was taking place in the area of “Pikro Nero”,
Kyrenia. At around 12 noon on 21 July the Turkish military forces
which had landed, supported by tanks and air cover, attacked the
Cypriot forces that were defending the area. Owing to the superiority
of the Turkish military forces in men and weapons the 251 Infantry
Battalion was ordered to retreat towards Trimithi village. The
applicant was present during the regrouping of the battalion. Two
hours after the regrouping the commander of the battalion led his men
out of Trimithi village, reaching a ravine between the villages of
Ayios Georghios and Templos where they took up battle positions. A
number of commandos of the 33rd Battalion arrived in the same ravine.
At around 3.00 p.m. on 22 July 1974, Turkish military forces
surrounded the Cypriot forces in the ravine and opened fire. The
commander ordered a counter attack intending to break through
the Turkish military forces' lines and retreat towards Kyrenia.
During the counter attack and retreat the trace of the applicant
was lost.
On 4 September 1974 the “Special News Bulletin”
a daily communication by the Turkish Cypriot administration
published a photograph of Greek-Cypriot prisoners of war
under the caption “Greek Cypriot prisoners of war
having their lunch. Yesterday they were visited by a representative
of the Turkish Red Crescent.” In that photograph the first
applicant was identified by the second applicant.
A former prisoner, Mr. Efstathios Selefcou, of Elio,
now at Eylenja, in a signed statement to the Cypriot Police said that
during his transportation from Cyprus to Turkey he saw and talked to
the first applicant, whom he knew very well since they had been
together at secondary school.
g. Application no. 16071/90: Savvas
Hadjipanteli
The first applicant, a bank employee, was born in 1938
and lived at Yialousa; he had been considered missing since 1974. His
wife, the second applicant, was born in 1938 and resided in Nicosia.
On 18 August 1974 about three or four saloon cars, a
bus and two tanks, all full of Turkish and Turkish Cypriot soldiers,
turned up at Yialousa and stopped near the police station. The
soldiers got out and ordered everyone to assemble at the nearby
coffee house. About 35 persons gathered there. A Turkish officer
told them that from that time they would be under Turkish
administration and ordered them to make a census of the Greek Cypriot
inhabitants of the village from the age of 7 to 70 and that he would
be back on the following day to collect the lists. On the following
day, the same civilian and military vehicles (tanks) returned. A
number of Turks got out, marched to the coffee house and asked
for the lists. Another group of Turkish soldiers were carrying out a
house to house search. They imposed a curfew and, having
taken the lists, they took with them for questioning nine persons,
including the first applicant. They put them on a bus and drove them
outside the village in the direction of Famagusta.
On the same day, Yialousa was visited by United
Nations men to whom the arrest of the nine Greek Cypriots was
reported by their co villagers.
According to the applicants, representatives of the
International Red Cross in Cyprus visited Pavlides Garage in the
Turkish occupied sector of Nicosia and on 28 August 1974
recorded the names of 20 Greek Cypriots held there, including the
nine persons from Yialousa (they cited document EZY284D).
Costas M. Kaniou, Sofronios Mantis and Ioannis D. Constantis also saw
the said detainees at the Pavlides Garage, during the same period
that they were detained there; they were released later.
On 27 August 1974 a group of Turkish Cypriot civilians
came to Yialousa looking for Pentelis Pantelides, Loizos Pallaris,
Michael Sergides and Christakis Panayides. Having found them,
they led them to the Savings Bank. After having emptied two safes
they ordered that the third one should be opened, but they were told
that the keys were with the applicant. Subsequently they left, having
shut and sealed the outside door. After 10 12 days the same
group looked for the same persons and went again to the bank
building. They had the two keys for the safe which the applicant
always carried with him. Loizos Pallaris opened the safe. The
keys were in a leather case which the applicant had used to carry,
but his personal keys were not included. The Turkish Cypriots took
the contents of the safe, sealed the gate and left.
h. Application no. 16072/90: Savvas
Apostolides
The first applicant, a moulder, was born in 1955; he
has been considered missing since 1974. His father, the second
applicant, was born in 1928 and resided in Strovolos.
In 1974 the first applicant was doing his national
service in the 70 Engineers Battalion stationed in Nicosia. On 5
August 1974 a section of the battalion, including the applicant, was
sent on a mission in the Karavas and Lapithos area. The men spent the
night at Lapithos and intended to complete their mission the
following morning. At about 4.30 a.m. on 6 August 1974 the
Turkish military forces launched a full scale attack from all
sides in the area of Karavas and Lapithos. The commander ordered his
men to split up into three groups, withdraw towards Vasilia and meet
there. On their way they were ambushed by the Turkish military forces
and in the confusion dispersed.
Later Mr Costas Themistocleous of Omorphita, now of
Nicosia, who was taken as a prisoner to Adana prison, saw there the
applicant, whom he had known from childhood; this was on or about 17
October 1974, while he was about to return to Cyprus. They did not
speak to each other but waved.
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.
On 20 July 1974, following the general mobilisation,
the first applicant enlisted as a reservist in the 399 Infantry
Battalion. He was put in the Support Company. On 22 July the
battalion moved to the Mia Milia area to reinforce the Greek Cypriot
forces and to man outposts on the front line.
On the morning of 14 August 1974 Turkish military
forces, supported by tanks and air cover, launched a heavy attack
against the Greek-Cypriot forces in the area, where the applicant was
with his battalion. Owing to the superiority of the Turkish military
forces the Greek-Cypriot defence line was broken, the Turkish
military forces advanced towards the Mia Milia area, and the Greek
Cypriot forces began to retreat. The area was, in a short while,
occupied by the Turkish military forces, the applicant was trapped
within it. Trace of the applicant was lost.
An ex prisoner of war, Mr Costas Mena of
Palaekythro, now at Koracou, stated that during his detention at
Antiyama, Turkey, he saw the applicant who was detained in cell block
No. 9. On 18 October 1974 all the prisoners at Antiyama were taken to
Adana. There they were all lined up in four rows. A Turkish military
officer picked out some of the prisoners, including the applicant,
who were taken away. Mr Mena had not seen the applicant since.
2. The respondent Government's submissions on the facts
The
respondent Government disputed that the applicants had been taken
into captivity by the Turkish army during the military action in
Cyprus in 1974. They considered that the inevitable conclusion from
the information provided in the application forms was that all the
alleged “missing persons”, except for Savvas
Hadjipanteli, were military personnel who died in action in
July-August 1974.
The
Government noted that, since the introduction of these applications,
files relating to the same “missing persons” had been
submitted by the Government of Cyprus to the United Nations Committee
on Missing Persons (“CMP”) in Cyprus during 1994 and
1995. In these files there were no assertions that these people had
been seen in any of the prisons in Turkey. The names of the alleged
witnesses listed in application nos. 16064/90 (Christakis Iannou),
16065/90 (Christodoulos Panayi), 16066/90 (Costa Sophocleous),
16068/90 (Nicos Nicolaou), 16069/90 (Yiannis Melissis), 16070/90
(Efstathios Selefcou), 16073/90 (Costas Themisthocleous) and 16073/90
(Costas Mena) were not cited in support. The alleged sightings were
therefore without foundation.
As
regards Savvas Hadjipanteli (no. 16071/90), who was a civilian, the
Government noted that the International Red Cross (“ICRC”)
had visited the Pavlides Garage where he had allegedly been held but
his name, contrary to the applicants' assertion, did not appear in
the list of Greek Cypriots held. In any event, it was a transit
centre where people were not held for more than a few days before
being released or moved elsewhere. In the file submitted to the CMP,
there was only a reference to witnesses seeing the key case which he
was alleged to carry continually on his person. The materials of the
ICRC, who paid regular visits to prisoners and internees in Turkey,
also showed that none of the alleged missing persons had been brought
to Turkey or detained. All prisoners that had been taken to Turkey
were repatriated between 16 September 1974 and 28 October 1974 and
lists of those concerned had been handed over to the Greek-Cypriot
authorities.
As
concerned the alleged identification of the missing persons in
photographs, the Government pointed out that a scientific
investigation of certain published photographs and documentary film
had been carried out by Professor Pierre A. Margot of the Institute
of Forensic Science and Criminology of the Law Faculty of the
University of Lausanne at the request of the Third Member of the CMP.
This had shown that it was extremely dubious that anyone could be
identified from these documents and that any alleged identification
by relatives was unreliable given the quality of the material and
their emotional feelings.
3. The submissions of the intervening Government
The
Government of Cyprus submitted that the first applicants went missing
in areas under the control of the Turkish forces.
a. Varnava, no. 16064/90, and Sarma, no.
16073/90
These
two applicants had been brought with their units to the area of Mia
Milia to man Cypriot outposts along the front line. On 14 August
Turkish armed forces launched the attack which gained them control
over the whole of northern and eastern Cyprus by 16 August. When the
Turkish forces broke through the Cypriot line of defence and advanced
on Mia Milia, the Cypriot forces retreated and dispersed in all
directions. The Turkish forces rapidly gained control of the entire
surrounding area. Many Greek Cypriot soldiers, including the two
applicants, were cut off and completely surrounded. They could not
have escaped as the intervening Government would have known of their
fate.
b. Loizides, no. 16065/90
This
applicant was in charge of soldiers amongst those defending Lapithos.
After the Turkish forces encircled Lapithos, the Greek-Cypriot forces
were ordered to retreat. The applicant's group put on civilian
clothing and unsuccessfully tried to break out of the village. When
the Turkish forces entered the village next morning, the applicant's
group dispersed to avoid capture. At about 9.00 p.m. on 6 August,
the applicant was seen by Nicos Th. Tampas in a warehouse tending a
soldier injured in the head. Tampas was later captured and detained.
His was the last reported sighting of the first applicant. It was
most likely that the first applicant had remained with the injured
man and was taken into detention by the Turkish forces who were in
control of the entire area. Only one man was known to have escaped
from the village and he, unlike the first applicant, had local
knowledge of the terrain.
c. Constantinou, no. 16066/90
Under
attack from the Turkish army, the first applicant's unit was ordered
to split into three groups and withdraw westwards. The applicant's
group reached the Nicosia-Kyrenia road, 200 metres from the
Airkotissa restaurant. The applicant and another man were sent to
investigate shouting coming from the restaurant. After 15 minutes
when they did not return, the group left for Panagra. At the time
that the applicant and the other soldier were sent to the restaurant,
there were Turkish forces in the area. The most plausible explanation
for the two men not returning, in the absence of any sound of
fighting or shooting, was that they had been detained, either to
prevent them giving away the Turkish positions, for information or as
prisoners of war.
d. Theocharides, no. 16068/90
On
26 July 1974 the first applicant was discovered to be missing from
his unit at roll call after they had broken through encircling
Turkish forces. The area in which his unit had been stationed was
captured by Turkish forces. Whatever happened to the applicant
afterwards occurred in an area controlled by the Turkish forces.
e. Charalambous, no. 16069/90
This
applicant was seen wounded in his right hand and the left side of the
ribs after a clash between Greek-Cypriot forces and three buses full
of Turkish soldiers coming from Vounos village. His wounds were
cleaned by a witness named Komodromos and he was told to make his way
uphill with two other men, one of whom was also injured, to the
monastery where the Greek Cypriot forces were. The other two men were
discovered dead two days later when the Turkish forces withdrew. It
was clear that the applicant had either been found dead by the
Turkish forces or, as was more likely, found and detained in an
injured condition.
f. Thoma, no. 16070/90
This
applicant was amongst those attempting to prevent the invasion of
Kyrenia. Some individuals were identified as killed in the operation;
the applicant was not amongst them. The intervening Government had no
evidence that this applicant was dead. It had to be assumed that the
applicant had been detained alive.
This
was further corroborated by the photograph published in the “Special
News Bulletin”, issued daily by the Turkish Cypriot
administration, on 4 September, of Greek Cypriot prisoners-of-war
having their lunch. The first applicant was identified at the time by
his father, the second applicant.
In
their observations before the Grand Chamber, the intervening
Government provided a copy of a statement dated 31 July 1976 by
Efstathios Selefcou taken by a police officer which stated that while
being carried as a prisoner on a ship from Cyprus to Turkey he had
seen and spoken briefly to Eleftherios Thoma, whom he knew from
school. They also provided a copy of the ICRC Tracing Agency sheet
(Ref. No. EZG 14023/2) according to which Thoma had been sighted in a
Turkish army hospital in Mintzeli in mid-October 1974. The
intervening Government explained that they had not provided this
information to CMP as it had no mandate to investigate outside the
territory of Cyprus and a policy decision had been taken when
submitting documents to the CMP on 7 June 1994 not to antagonise
Turkey whose co-operation was necessary if the CMP was to begin
effective operation.
g. Hadjipanteli, no. 16071/90
By
16 August 1974 Turkish forces were in control of northern and eastern
Cyprus including the Karpas peninsula where the first applicant
worked as general cashier in the Savings Bank in Yialousa. On 18
August Turkish and Turkish Cypriot soldiers arrived in the village
and a Turkish officer ordered a census of the Greek Cypriots between
7 and 70 years of age. The next day, the lists were handed over and
Turkish soldiers carried out searches. They left, taking with them on
a bus, nine individuals, including the first applicant. This was
reported by fellow villagers.
Turkish
Cypriots came to the village in the circumstances reported by the
applicants (see paragraphs 54-57 above). They had the two keys for a
safe which the first applicant had always carried with him. It was
highly probable that the Turkish Cypriots had obtained the keys by
informing those holding the first applicant, showing that he was
alive and in detention for at least nine days. There was some
evidence that he was detained after those nine days, at least until
28 August, at the Pavlides garage.
The
list of persons seen by the ICRC detained at Pavlides garage on 28
August 1974 included the name Savvis Kalli, which was the name under
which this first applicant had been recorded (the first name being
misspelled and the surname of his father (Kallis), as appearing on
the first applicant's identity card, also being misspelled).
An
affidavit dated 6 November 2007 by Lakis N. Christolou, a lawyer in
the firm representing the applicants in this application, was
submitted to the Grand Chamber. It stated that the son of the missing
man, Mr Georgios Hadjipanteli, recounted that at the end of 2005 he
had met a Turkish Cypriot writer who had informed him that, while
investigating disappearances, she had discovered evidence indicating
that the nine missing persons from Yialousa had been buried near the
Turkish Cypriot village of Galatia. When the son conveyed this
information to the CMP he was informed that the inhabitants of
Galatia had already given information to the CMP about the execution
and burial of Greek Cypriot prisoners in the area of their village.
h. Apostolides, no. 16072/90
This
first applicant withdrew with his section from Lapithos towards
Vasilia. They were ambushed by Turkish military forces and dispersed.
There has been no news of the applicant since. The intervening
Government had no knowledge of the first applicant, which meant that
he had not escaped. Nor was there any evidence that he was killed in
the ambush. It was overwhelmingly likely that he had been detained by
the Turkish armed forces.
4. Recent developments
In
2007, in the context of the activity of the CMP (see below paragraphs
86-88) human remains were exhumed from a mass grave near the Turkish
Cypriot village of Galatia in the Karpas area. After anthropological
and genetic analyses, the remains of Savvas Hadjipanteli (named as
first applicant in application no. 16071/90) were identified, along
with the remains of the other eight missing persons from Yialousa
village and two other missing Greek Cypriots. The bodies of the nine
missing persons from Yialousa were lined up next to each other in the
grave, with two other bodies on top at a shallower depth. The
forensic report dated 13 November 2007 detailed the process of
exhumation and noted that it appeared to be a primary and synchronous
burial site as the condition of the bodies indicated that they were
buried while soft tissue was still present and placed in direct
contact with each other. The main object of the analysis of the human
remains was stated in the report to be their identification.
Several
bullets from firearms were found in the grave. The medical
certificate for the cause of death signed by a doctor on 12 July 2007
in regard to Savvas Hadjipanteli, indicated a bullet wound to the
skull, a bullet wound in the right arm and a wound on the right
thigh. His family was notified and a religious funeral took place on
14 July 2007.
II. RELEVANT INTERNATIONAL LAW AND PRACTICE
A. The United Nations Committee on Missing Persons
(“CMP”)
1. Background
The
CMP was formally set up in 1981. The following paragraphs are taken
from the Commission's Report in the fourth inter-state case
(paragraphs 181-191):
“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
From
August 2006 the CMP began a substantial exhumation project on
identified burial sites with a view to identifying the remains of
bodies and ensuring their return to their families. A special unit to
provide information to families was also set up.
According
to the information provided by the respondent Government, 430 sets of
remains had been located; 275 remains had been submitted for analysis
and identification by the anthropological laboratory; since June 2007
105 bodies had been identified (76 Greek Cypriots, 29 Turkish
Cypriots); by 13 March 2008, 84 files of missing persons had been
closed; by the date of the hearing, 5% of missing persons had been
identified and their remains returned to their relatives for burial;
by 10 September 2008, 180 sites had been visited by bi-communal
teams (155 in the north, 25 in the south).
3. The Council of Europe Committee of Ministers'
decision of 23 March 2009
In
the ongoing monitoring process concerning Cyprus v. Turkey
([GC], no. 25781/94, ECHR 2001 IV), the Committee of Ministers
looked at the question of missing persons and inter alia:
“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)
This
provides inter alia:
“Article 1
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.
Article 2
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.
Article 3
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.
Article 17
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.
Article 19
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.”
The
United Nations Working Group on Enforced or Involuntary Disappearance
have issued, inter alia, the following General Comments on the
above Declaration:
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)
This
provides inter alia:
“Article 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.
Article 2
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.
Article 3
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.
Article 4
Each State Party shall take the necessary measures to
ensure that enforced disappearance constitutes an offence under its
criminal law.
Article 5
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.
Article 8
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.”
3. Inter-American Convention on Forced Disappearance of
Persons (1994)
This
provides inter alia:
“Article I
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.
Article II
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.
Article III
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.
In
Blake v. Guatemala the IACHR had to deal with the ratione
temporis exception raised by the Government, since the
disappearance itself had taken place before the critical date
(acceptance of the compulsory jurisdiction in 1987). The court
considered that forced disappearances implied the violation of
various human rights and that the effects of such infringements –
even though some may have been completed – “may be
prolonged continuously or permanently until such time as the victim's
fate or whereabouts are established” (Blake, 2 July
1996, Preliminary Objections, § 39).
Mr.
Blake's fate or whereabouts were not known to his family until June
14, 1992, after the date on which Guatemala accepted the jurisdiction
of the Court. This led to the IACHR declaring itself competent
ratione temporis to examine the “effects and actions”
subsequent to the critical date. However, it accepted the
Government's preliminary objection as regards the deprivation of Mr.
Blake's liberty and his murder, which had been completed before the
critical date and could not be considered per se to be
continuous.
In
its judgment on the merits (24 January 1998, see p. 54), the
IACHR considered the disappearance as marking the beginning of a
“continuing situation”. It proceeded to examine the
complaint under Article 8 in relation to Article 1 § 1 and
declared that Guatemala had violated the right of Mr. Blake's
relatives to have his disappearance and death effectively
investigated, to have those responsible prosecuted and punished where
appropriate, and to be compensated, notwithstanding the lack of
temporal competence to deal with the substantive complaints.
The
IACHR came to a similar conclusion in cases of disappearances in
which the victim's whereabouts had never been established. In
Serrano- Cruz Sisters v. El Salvador (judgment of 23 November
2004, Preliminary Objections), the Court found that it had no
competence to examine, under Articles 4, 5 and 7 (right to personal
liberty), the disappearances of the sisters as such, since they had
allegedly taken place thirteen years before El Salvador had accepted
the contentious jurisdiction of the court. It came to the same
conclusion as regards the procedural violations invoked under Article
4 by the Inter-American Commission, since they were linked to the
alleged forced disappearance (§ 95). However,
the IACHR considered that all the facts that occurred following the
critical date and which referred to Articles 8 and 25 of the
Convention (filing of a petition for habeas corpus, criminal
proceedings), were not excluded by the temporal limitation
established by the State, since they constituted “independent
facts” or “specific and autonomous violations concerning
denial of justice” (§ 85). On the merits, it
declared that the State had violated Articles 8 and 25 of the
Convention, to the detriment of both sisters and their next of kin
(judgment of 1 March 2005).
In
a more recent judgment, Heliodoro Portugal v. Panama of
12 August 2008, the San José Court made a clear
distinction between forced disappearances and extrajudicial killings
for the purposes of its jurisdiction ratione temporis. The
case concerned the forced disappearance in 1970 (twenty years before
Panama accepted the compulsory jurisdiction of the court) of
Heliodoro Portugal, whose remains were found in 2000. It considered
that the victim should be presumed dead before the date of acceptance
of the Court's jurisdiction (9 May 1990), with regard to the fact
that twenty years had elapsed since his disappearance. It
characterised the extrajudicial killing as an instantaneous act and
accepted the Government's preliminary exception as regards the right
to life (Article 4). However, with regard to the forced disappearance
as such, it applied its previous case-law and found that it was a
permanent or continuous violation, since it had been prolonged after
the critical date until the victim's remains were found in 2000. It
was competent to examine the following violations arising out of the
disappearance: the deprivation of liberty of the victim (Article 7),
the violation of the relatives' right to humane treatment (Article
5), the non-compliance with the obligation to investigate into the
alleged disappearance, the failure to incriminate forced
disappearances and tortures in domestic law and the failure to
investigate and punish acts of torture.
On the merits, the IACHR went on to find a violation of the right to
liberty (Article 7) and a violation of Articles I and II of the
Inter-American Convention on Forced Disappearance of Persons with
regard to the deceased. It further found a breach of Articles 5
(right to humane treatment), 8 and 25 in respect of his relatives.
2. The United Nations Human Rights Committee (“HRC”)
As
regards forced disappearances, the HRC recognised “the degree
of suffering involved in being held indefinitely without contact with
the outside world” and held that they constituted “cruel
and inhuman treatment” contrary to Article 7 of the
International Covenant on Civil and Political Rights with regard to
the disappeared.
Disappearances often resulted in breaches of the right to life,
embodied in Article 6 of the Covenant. In General Comment No. 6 on
the right to life, the HRC stated:
“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.”
In
a number of cases, the HRC has found that a breach of Article 6 of
the Covenant has occurred, but has been unable to make a final
decision in that regard in the absence of confirmation of death.
Disappearances may also lead to violations of Articles 9 (right to
liberty and security of person), 10 (right of all persons deprived of
their liberty to be treated with humanity and with respect for the
inherent dignity of the human person) and 7 with regard to the
relatives of the disappeared, in view of the stress, anguish and
uncertainty caused by the disappearance.
The
positive obligation to investigate disappearances (mentioned in the
General Comment on the right to life) may also be breached in this
type of case; in these situations there may be a breach of Article 2
§ 3 (which enshrines the right to an effective remedy) in
conjunction with Article 6. The HRC, in General Comment No. 31 on
Article 2 §§ 2 and 3 of the Covenant, emphasised that the
failure to investigate in respect of grave violations such as
enforced disappearances or torture, as well as the failure to bring
to justice perpetrators of such violations, could give rise to a
separate breach of the Covenant. The Committee was thus empowered to
find a violation of Articles 6, 7 and 9 read in conjunction with
Article 2 § 3 of the Covenant.
However,
when the disappearance occurred before the date that the Covenant or
the Optional Protocol entered into force for a State, the approach of
the HRC to whether it has temporal jurisdiction has evolved over
recent years.
In
the cases of missing persons in Argentina (S.E. v. Argentina,
4 April 1990), the Committee had found that Article 2 §
3 of the Covenant could not be violated by a State Party in the
absence of jurisdiction over a substantive violation. In
Maria Otilia Vargas v. Chile, 26 July 1999, the HRC declared
the communication inadmissible ratione temporis in respect of
the author's son, whose body had never been recovered since his death
in 1973. The Committee held that the Supreme Court's judgment of 1995
rejecting the author's complaint as regards the application of the
1978 Amnesty Decree could not be regarded as a new event that could
affect the rights of a person who was killed in 1973, prior to the
international entry into force of the Covenant and the entry into
force of the Optional Protocol for Chile.
In
Sarma v Sri Lanka, 16 July 2003, the author alleged that his
son had been removed by members of the military in June 1990 and was
last seen in October 1991. Sri Lanka became a party to the Optional
Protocol in October 1997 with a declaration limiting the Committee's
competence to facts arising after this date. The Committee found that
although the initial abduction occurred outside their temporal
jurisdiction “the alleged violations of the Covenant, if
confirmed on the merits, may have occurred or continued after the
entry into force of the Optional Protocol.”
The Committee went on to find a violation of Articles 7 and 9 with
regard to the son and Article 7 with regard to the author and his
wife due to their anguish and stress at not knowing their son's
whereabouts. The HRC also emphasised that the State had a duty under
Article 2 § 3 “to provide the author and his family with
an effective remedy, including a thorough and effective investigation
into the disappearance and fate of the author's son...”
which implied that the State might have an obligation to investigate
matters which had occurred before the entry into force of the
Optional Protocol. Finally, it refrained from finding a violation of
Article 6, since the author had not abandoned hope for his son's
reappearance.
However,
in Yurich v. Chile (12 December 2005), the Committee, although
describing enforced disappearance as a continuing act, noted that the
original acts of arrest and abduction, as well as the refusal to give
information about the deprivation of freedom, had occurred before the
entry into force of the Covenant for Chile. The HRC further
considered that the author had made no reference to any action of the
State after the crucial date (entry into force of the Optional
Protocol) that would constitute “a confirmation of the enforced
disappearance”. For these reasons, it declared the application
inadmissible.
More
recently in Sankara v. Burkina Faso, 28 March 2006 (see
Appendix III, p. 52), the HRC applied this act of
confirmation approach, and also changed its analysis in considering a
failure to investigate a death which had taken place prior to the
critical date. Although it found that it had no jurisdiction ratione
temporis over the death of Mr Sankara, it went on to consider the
subsequent proceedings and failure to correct his death warrant
(which stated the cause of death as natural) and their effect on Mr
Sankara's wife and two children. It found that there had been a
failure to conduct an inquiry into Mr Sankara's death, to prosecute
those responsible and to conclude legal proceedings begun by the
author to remedy this situation. It concluded that the proceedings
had been prolonged at the fault of the authorities, the delay
continuing after the entry into force of the Covenant and Optional
Protocol. The authors were therefore affected by the authorities'
failures after this entry into force, and that gave the Committee
with jurisdiction ratione temporis over the Article 7 claim.
On
the merits, the Committee went on to find that “the refusal to
conduct an investigation into the death of Thomas Sankara, the lack
of official recognition of his place of burial and the failure to
correct the death certificate constitute inhuman treatment of Ms.
Sankara and her sons, in breach of Article 7 of the Covenant.”
THE LAW
I. THE STATUS OF THE MISSING MEN AS NAMED FIRST APPLICANTS
A. Submissions to the Court
The
respondent Government submitted that the established case-law on
disappearances showed that after a certain lapse of time there was a
presumption of death (e.g. Timurtaş v. Turkey, no.
23531/94, § 83, ECHR 2000 VI – presumption of death
after six and a half years). Given the situation of armed conflict at
the time, the absence of any credible evidence that the missing
persons had been seen after the end of hostilities and the lapse of
time, a presumption of death accorded with the Court's constant
case-law, as well as national practice, in which context Cypriot law
provided that a person could be declared dead if there had been no
news of them for ten years.
The
applicants submitted that there was no basis for presuming that the
missing men were dead, or had died in 1974. Cypriot domestic law only
permitted the finding of a presumption of death on the application of
persons with requisite standing, while in the Strasbourg cases cited
by the Government the applicants themselves had asked the Court to
make findings of presumption of death in order to support allegations
of substantive violations.
The
intervening Cypriot Government refuted the assertion that the missing
men should be presumed dead. Such a presumption could only be made at
the request of the applicants.
B. The Court's findings
The
Court observes that the parties' submissions on whether the missing
men may be presumed dead were made in the context of its competence
ratione temporis but notes that they also have relevance to the
issue of the standing of the first applicants. According to the
Court's practice, and consonant with Article 34 of Convention,
applications can only be introduced by, or in the name of,
individuals who are alive. Where a person dies after introduction of
an application, his or her heirs may seek to continue the application
without the name of the application changing. If the alleged victim
of a violation has died before the introduction of the application,
it may be possible for the person with requisite legal interest as
next-of-kin to introduce an application raising complaints related to
the death; however the application is registered in the relative's
own name (see, concerning standing to introduce applications,
Fairfield v. the United Kingdom (dec.), no. 24790/04, ECHR
2005 VI). The Court recalls that in its previous judgments
concerning disappearances the practice has been to name only the
relatives of the disappeared person as applicants.
As
regards the missing men in these applications, it must, firstly, be
noted that the remains of Savvas Hadjipanteli were discovered in 2007
in a mass grave near Galatia within the area of the “TRNC”.
No indication of the approximate date and time of death has been
included in the forensic or medical certificates, although the few
details given support the hypothesis of an extra-judicial execution
of prisoners at or about the time of hostilities in 1974. Secondly,
there has been no sighting or news of the other eight missing men
since late 1974. The Court does not however consider it necessary to
rule on whether the missing men should or should not be admitted to
the status of applicants since, in any event, there is no question
but that the close relatives of the missing men may introduce
applications raising complaints concerning their disappearance, to
the extent that such complaints fall within the Court's competence
(see e.g. Kurt v. Turkey, 25 May 1998, Reports
1998 III; Imakayeva v. Russia, no. 7615/02, ECHR
2006 XIII (extracts)).
The
Court is satisfied that it can continue to examine these applications
on the basis that the relatives of the missing persons, who
introduced these complaints, are the applicants for the purposes of
Article 34 of the Convention.
II. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
A. Lack of legal interest
The
Government submitted at the hearing that there was no legal interest
in determining these applications. Pointing out that the
disappearances of all the missing Greek Cypriots had been subject to
examination and findings of violations in the fourth inter-State
case, they referred to Article 35 § 2 (b) which barred
examination of applications which were “substantially the
same”. They also referred to Article 37 § 1 (c) which
allowed the Court to strike a case from the list where “for any
other reason the Court finds it no longer justified to pursue the
examination of the application”.
The
applicants replied that the inter-State case had not subsumed their
claims which were individual and distinct and that there was no basis
for applying Article 37 § 1 (c).
The
intervening Government considered that the cause, object and parties
were not identical and that there was no basis for rejecting the
applications on these grounds.
The
Court recalls that in its decision on admissibility in these
applications the Commission left open the general question whether it
was precluded under the former Article 27 § 1 (b) from examining
in the context of an individual application a “matter”
which had already been examined in an inter-State case (decision of
14 April 1998, Decisions and Reports (DR) 73, p. 5, referring to
nos. 5577/72-5583/72, Donnelly and Others v. the United Kingdom).
It considered in any event that it had not been established that its
previous findings in the third inter-State application concerned the
missing men in the present applications and that as the examination
of the merits remained to be carried out in the pending fourth
inter-State application, the matter could not be regarded as having
already been examined in that context either.
A
judgment has since been delivered in the fourth inter-State case
(cited above) and it is true that this included findings of
violations under Articles 2, 3 and 5 of the Convention concerning
missing Greek Cypriots and their families. However, for an
application to be substantially the same as another which has already
been examined by the Court or other procedure of international
investigation or settlement for the purposes of Article 34 § 2
(b), it must concern substantially not only the same facts and
complaints but be introduced by the same persons (Ingebjørg
Folgerø and Others v. Norway (dec.), no. 15472/02, 14
February 2006; Malsagova and Others v. Russia (dec.), no.
27244/03, 6 March 2008). It is therefore not the case that by
introducing an inter-State application an applicant Government
thereby deprives individual applicants of the possibility of
introducing, or pursuing, their own claims.
In
so far as the respondent Government have, at a very late stage,
challenged the applicants' legal interest in pursuing this
application and invoked Article 37 § 1 (c), the Court would note
that the findings in the fourth inter-State case did not specify in
respect of which individual missing persons they were made (cited
above, at § 133, where the evidence was found to bear out the
assertion that “many persons now missing” had been
detained by the respondent Government or forces for which they were
responsible). That judgment cannot therefore be regarded as
determining the issues and claims arising in the present
applications. In that regard, it should also be noted that in
individual applications the Court has the competence to issue just
satisfaction awards for pecuniary and non-pecuniary damage suffered
by individual applicants and to give indications under Article 46 as
to any general or individual measures that might be taken. It cannot
be said therefore that the present applications are incapable of
giving rise to issues or outcomes different to those of the fourth
inter-State case, or that the individual applicants' interests have
somehow been subsumed by the judgment in that case such that it is no
longer justified to continue the examination of their applications.
The Court is accordingly satisfied that a legal interest remains in
pursuing the examination of these applications.
These
objections are therefore rejected.
B. Objection ratione temporis
1. The Chamber judgment
The
Chamber excluded from its examination any allegations of violations
based on facts occurring before the crucial date of ratification of
the right of individual petition by Turkey on 28 January 1987. It
noted that the Grand Chamber in the fourth inter-State case had found
that the disappearance of some 1,485 Greek Cypriots disclosed a
situation of continuing violation under Article 2 in so far as the
authorities of the respondent State had failed to conduct an
effective investigation aimed at clarifying the whereabouts and fate
of the persons who had gone missing in life-threatening
circumstances. It found no reason to differ as concerned the nine
missing men in this case and concluded that to the extent that there
was a continuing obligation under Article 2 it had competence ratione
temporis.
2. Submissions to the Court
a. The respondent Government
The
Government submitted that temporal jurisdiction was a vital
precondition to the examination of these cases. They argued that the
Chamber had failed to apply the principles laid down in the Grand
Chamber judgment in Blečić v. Croatia ([GC] no.
59532/00, ECHR 2006 III) with due regard to international
practice. They stated that the assertion of a continuing situation
was not sufficient or decisive, since the determining question was
whether an obligation bound the State at the moment of the facts
giving rise to the dispute. Issues of continuing situation or
violation only came into play after the establishment of a norm
binding the State from that moment and for the future, as shown by
the terms of Article 6 of Protocol No. 11 itself. Turkey had only
recognised the competence of the Commission to receive individual
petitions as from 28 January 1987; this only concerned matters
raised in respect of facts which occurred subsequent to the Turkish
declaration
Thus,
in the present cases, the Government stressed that the allegations of
disappearances rested on facts occurring in July-August 1974; none of
the purported sightings of the missing men had occurred after October
1974. The Government, however, had only recognised the right of
individual petition on 28 January 1987 as concerned complaints about
facts arising after that date. Thus, the Court had no temporal
jurisdiction over the events in issue. While the Chamber judgment
purported to apply the approach of the fourth inter-State case to
this issue, the Government pointed out that temporal jurisdiction was
not in issue in that case, the Chamber confusing this aspect with
issues on the merits concerning the existence of a continuing
situation. Further, neither Blečić nor the Turkish
declaration made any exception concerning continuing situations. They
noted that the Blečić judgment referred to Moldovan
and Others v. Romania ((dec.), nos. 41138/98 and 64320/01,
13 March 2001) which found, as regarded complaints under Article 2
about ineffective investigations into killings, that there was no
temporal jurisdiction where the killings had taken place before
ratification. This showed that the consequences flowing from the
initial facts could not be examined either, excluding so-called
continuing situations, as shown by subsequent cases such as Kholodov
and Kholodova v. Russia ((dec.), no. 30651/05, 14 September 2006)
in which the Court had found that the subsequent failure of remedies
aimed at redressing an earlier interference could not bring the
matter within temporal jurisdiction (the Government also cited
Dinchev v. Bulgaria (dec.), no. 23057/03, 6 March 2007;
Meriakri v. Moldova (dec.), no. 53487/99, 16 January
2001; Mrkić v. Croatia (dec.), no. 7118/03, 8 June 2006;
and Cakir v. Cyprus (dec), no. 7864/06, 11 January 2008),
where complaints about a killing in 1974 were rejected due to a
temporal bar). The Chamber should therefore not only have refrained
from examining the facts in 1974 but also the procedures and facts
which flowed from or were linked with those facts. Its contrary
approach was inconsistent with constant practice. Rejecting the
preliminary objection on the basis of a finding of the existence of a
continuing obligation effectively prejudged the merits.
In
so far as the applicants argued that the obligation to investigate
was autonomous, this issue had been settled in Blečić
which made it clear that procedures which concerned the failure to
provide a remedy did not affect temporal jurisdiction for events and
facts before ratification. There could be no freestanding procedural
obligation, divorced from the factual origin of the complaints. The
Government further argued that the procedural obligation to
investigate under Articles 2 and 3 was recent and could not be
regarded as binding States beforehand. It relied in this respect on
the Court's judgments in Markovic and Others v. Italy ([GC],
no. 1398/03, § 111, ECHR 2006 ...) and Korbely
v. Hungary [GC], no. 9174/02, § 84, 19 September 2008,
ECHR 2008-...).
As
concerned the alleged continuing situation, the Government submitted
that the Chamber had omitted to take into account the established
case-law on disappearances, which showed that after a certain lapse
of time there was a presumption of death (see also their argument set
out at paragraph 108 above). These applicants must therefore be
presumed to have died before temporal jurisdiction came into play.
b. The applicants
The
applicants submitted that the Court had jurisdiction to examine
continuing violations which, although tracing their historical
starting point to a moment in the past, continued on or after
Turkey's recognition of the right of individual petition (they cited
Loizidou v. Turkey, 18 December 1996, §§ 41 and 47,
Reports 1996 VI). Although the first applicants did
disappear in 1974, the violations arising from and/or in connection
with these disappearances had continued since then. They denied that
their complaints were based on instantaneous acts in 1974 but argued
that they concerned violations of a continuing nature which survived
any temporal restriction and carried on to the present day. They
relied on the Court's reasoning as regards the continuing nature of
the violations arising out of disappearances in 1974 set out in the
fourth inter-State case which was, in their view, correctly followed
in the Chamber judgment.
The
applicants submitted that there was no basis for presuming the
missing men were dead, or had died in 1974. The reference to Cypriot
domestic law was of no relevance since this only permitted the
finding of a presumption of death where the Attorney-General or a
person with legal standing (claiming rights that flowed from the
death of the missing person) made such application. Nor was the
Court's case-law on Article 2 relevant, since these were cases in
which the applicants themselves had asked the Court to make findings
of presumption of death in order to support allegations of
substantive violations. Allowing the Government to have the missing
men presumed dead might also be regarded as tantamount to a de
iure violation or execution contrary to Article 2.
c. The Government of Cyprus
The
intervening Government submitted that the present applications did
not concern Turkey's responsibility for acts or omissions which took
place at a time when Turkey had not accepted the Convention. Turkey
had adhered to the Convention in 1954 and could have been subject
from that time to proceedings initiated by other Contracting Parties.
The cases relied on by the Government such as Blečić
did not assist since the violations had occurred before the
respondent State ratified the Convention while the present complaints
concerned continuing violations occurring more than 50 years after
Turkey became bound by the substantive provisions of the Convention.
The present claims were also based upon the facts concerning Turkey's
conduct after 28 January 1987 in failing to provide an investigation
into the disappearances. This failure was not an aspect of any
unlawful killing or detention or a consequence of a violation of
Article 2 or 5 but triggered separately. The temporal objection was
thus misconceived.
The
intervening Government rejected the assertion that the missing men
should be presumed dead. Such a presumption could only be made at the
request of the applicants and in any event did not put an end to any
obligation to investigate, which obligation was not limited to the
question of whether the person was dead but also covered the
circumstances in which they died and, in the case of unlawful
killing, the identification and prosecution of any perpetrator.
3. The Court's assessment
a. General principles
It
is beyond dispute that in accordance with the general rules of
international law (see, in particular Article 28 of the Vienna
Convention on the Law of Treaties of 23 May 1969) the provisions of
the Convention do not bind a Contracting Party in relation to any act
or fact which took place or any situation which ceased to exist
before the date of the entry into force of the Convention with
respect to that Party (see Blečić, cited above, §
70; and Šilih v. Slovenia, [GC] no. 71463/01, §
140, ECHR 2009-...). Furthermore, where there are proceedings
instituted by an applicant to obtain redress for an act, omission or
decision alleged to violate the Convention and which occur or
continue after the entry into force of the Convention, these
procedures cannot be regarded as part of the facts constitutive of
the alleged violation and do not bring the case within the Court's
temporal jurisdiction (Blečić, cited above, §§
77-79).
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 (Blečić,
§ 72).
b. Application in the present case
Turkey
ratified the Convention on 18 May 1954; it accepted the right of
individual petition on 28 January 1987 and the jurisdiction of the
old Court on 22 January 1990. Protocol No. 11, which brought the new
Court into existence, came into force on 11 January 1998.
Turkey
was accordingly bound by the provisions of the Convention from 18 May
1954. However, its acceptance of the right of individual petition was
limited to facts taking place after the date of the declaration to
that effect on 28 January 1987. When the old Court ceased to function
in 1998, this Court's jurisdiction became obligatory and ran from the
acceptance by a Contracting State of the right of individual
petition. It follows that the Court is not competent to examine any
complaints raised by these applicants against Turkey in so far as the
alleged violations are based on facts having occurred before 28
January 1987 (see Cankoçak v. Turkey, nos. 25182/94 and
26956/95, § 26, 20 February 2001, Demades v. Turkey
(just satisfaction), no. 16219/90, § 21, 22 April 2008).
On
that basis, any complaints by the applicants asserting the
responsibility of the Contracting State for factual events in 1974
are outside the Court's temporal jurisdiction. In so far as any
complaints are raised concerning acts or omissions of the Contracting
State after 28 January 1987, the Court may take cognisance of them.
It notes in this respect 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.
The
Court notes that the respondent Government raised two principal
strands of argument against the applicants' claims that a procedural
obligation could exist after the critical date. The first concerns
the nature of the procedural obligation under Article 2 and the
second relies on a presumption that the missing men in fact died in
or about 1974. The Court will also consider, lastly, the nature and
scope of the procedural obligation to investigate disappearances in
particular.
i. Temporal jurisdiction and the
procedural obligation under Article 2
α. Procedures linked to facts outside
temporal jurisdiction
The
respondent Government argued, relying on Blečić,
that complaints concerning such investigations, or lack of them, fell
foul of the principle that procedures aimed at redressing violations
do not affect the lack of temporal jurisdiction for facts occurring
beforehand. However, this argument fails since the procedural
obligation to investigate under Article 2 is not a procedure of
redress within the meaning of Article 35 § 1. The lack of an
effective investigation itself is the heart of the alleged violation.
It has its own distinct scope of application which can operate
independently from the substantive limb of Article 2, which is
concerned with State responsibility for any unlawful death or
life-threatening disappearance, as shown by the numerous cases
decided by the Court where a procedural violation has been found in
the absence of any finding that State agents were responsible for the
use of lethal force (see, amongst many examples, Finucane v. the
United Kingdom, no. 29178/95, ECHR 2003 VIII). Indeed
the procedural obligation to provide some form of effective official
investigation arises when individuals have gone missing in
life-threatening circumstances and is not confined to cases where it
is apparent that the disappearance was caused by an agent of the
State (see Osmanoğlu v. Turkey, no. 48804/99, § 87,
24 January 2008).
For
these reasons, therefore, the Government's reliance on the reasoning
in Blečić concerning procedures for redress is
misconceived.
β. Reliance on earlier Court decisions
rejecting procedural complaints as incompatible ratione temporis
In
so far as the respondent Government relied on cases such as Moldovan
and Others and Kholodov and Kholodova (see paragraph
123 above), the Court notes that these did not concern disappearances
but killings. The Court has recently delivered its judgment in Šilih,
cited above, which reviewed the jurisprudence on the question whether
a procedural violation could be found where a death occurred before
the date of acceptance of the right of individual petition and the
alleged deficiencies or omissions in investigative measures took
place afterwards (at §§ 148-152). The Grand Chamber
judgment set out in detail international law materials, in particular
from the Inter-American Court of Human Rights and the United Nations
Human Rights Committee, which indicated that these bodies accepted
jurisdiction ratione temporis over the procedural complaints
concerning investigations into deaths even where the lethal acts had
taken place before the critical date (see Šilih, §§
111-118, 160). It then proceeded to clarify that the procedural
obligation to carry out an investigation into deaths under Article 2
had evolved in its own case-law into a separate and autonomous duty;
it could be considered to be a “detachable obligation”
capable of binding the State even when the death took place before
the entry into force of the Convention (see Šilih, §§
153-163).
The
precedents relied on by the respondent Government are therefore not
of any assistance as regards killings. Nor did they have any bearing
on the phenomenon of disappearances, the continuing nature of which
has implications for the ratione temporis jurisdiction of the
Court, as examined below.
γ. Purported retrospective application
of the procedural obligation
In
so far as the Government also argued that the procedural obligation
under Article 2 could not apply at the time of their acceptance of
the right of individual petition as it was only developed in the
Court's case-law at a later date, the Court would note that the
references relied on in Markovic and Korbely related,
respectively, to whether a right had existed in domestic law at the
relevant time for the purposes of Article 6 and to the principles set
out in Article 7 against the retroactive imposition of criminal
penalties. Neither has any relevance to the way in which the Court
itself interprets the content of the obligations binding Contracting
States under the Convention, which interpretation cannot be equated
to a retroactive imposition of liability. The Court would observe
that case-law is a means of clarifying pre-existing texts to which
the principle of non-retroactivity does not apply in the same manner
as to legislative enactments.
ii. Presumption of death
The
respondent Government asserted that the missing men had to be
presumed dead long before any temporal jurisdiction arose in 1987;
thus, there was no “disappearance” to be investigated
after that date.
Domestically,
as pointed out by the applicants and intervening Government, it is
commonplace that after a period of some years (seven to ten on
average) the relatives of the missing person or a designated State
official may take proceedings to establish a presumption of death.
This has the purpose of promoting legal certainty and allowing those
affected by the disappearance to deal with matters of property and
family status. It benefits the next of kin or those with due legal
standing. The fact that there is a ten year threshold which may be
invoked by the relatives of missing persons in the Cyprus legal
system does not, however, render that provision applicable by analogy
in the proceedings before this Court.
In
Convention case-law, as pointed out by the respondent Government, the
Court has on numerous occasions made findings of fact to the effect
that a missing person can be presumed dead (see, amongst many
judgments, Lyanova and Aliyeva v. Russia, nos. 12713/02 and
28440/03, §§ 94-95, 2 October 2008). Generally,
this finding of fact has been reached in response to claims made by
the respondent Government that the person is still alive or has not
been shown to have died at the hands of State agents. This
presumption of death is not automatic and is only reached on
examination of the circumstances of the case, in which the lapse of
time since the person was seen alive or heard from is a relevant
element (see, for example, Vagapova and Zubirayev v. Russia,
no. 21080/05, §§ 85-86, 26 February 2009, concerning a
presumption of death reached where a young man, who disappeared in
life-threatening circumstances, had been missing for over four
years).
The
Court would here distinguish between the making of a factual
presumption and the legal consequences that may flow from such a
presumption. 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, this would not dispose of the applicants'
complaints concerning the lack of an effective investigation.
The
Court would recall that the procedural obligation to investigate
under Article 2 where there has been an unlawful or suspicious death
is triggered by, in most cases, the discovery of the body or the
occurrence of death. Where disappearances in life-threatening
circumstances are concerned, the procedural obligation to investigate
can hardly come to an end on discovery of the body or the presumption
of death; this merely casts light on one aspect of the fate of the
missing person. An obligation to account for the disappearance and
death, and to identify and prosecute any perpetrator of unlawful acts
in that connection, will generally remain.
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.
iii. The nature of the procedura1
obligation to investigate disappearances
The
Court would emphasise 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. It notes that the Inter-American Court, and
to some extent the Human Rights Committee, apply the same approach to
the procedural aspect of disappearances (see paragraphs 93-107
above), examining allegations of denial of justice or judicial
protection even where the disappearance occurred before recognition
of its jurisdiction.
There
is however an important distinction to be drawn in the Court's
case-law between the obligation to investigate a suspicious death and
the obligation to investigate a suspicious disappearance. 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 (see also the definitions of disappearance set
out above in II B. International law documents on enforced
disappearances). This situation is very often drawn out over time,
prolonging the torment of the victim's relatives. It cannot therefore
be said that a disappearance is, simply, an “instantaneous”
act or event; the additional distinctive element of subsequent
failure to account for the whereabouts and fate of the missing person
gives rise to a continuing situation. Thus, the procedural obligation
will, potentially, persist as long as the fate of the person is
unaccounted for; the ongoing failure to provide the requisite
investigation will be regarded as a continuing violation (see the
fourth inter-State case, § 136). This is so, even where death
may, eventually, be presumed.
It
may be noted that the approach applied in Šilih v. Slovenia
(cited above, § 163) concerning 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. The procedural obligation in
that context is not of a continuing nature in the sense described
above.
iv. Conclusion
The
Court rejects the Government's objections as to lack of temporal
jurisdiction. Nevertheless, the question whether there was a
continuing procedural obligation to investigate the fate and
whereabouts of the missing men at the time of the introduction of
these applications remains to be examined.
C. Six-month rule (Article 35 § 1 of the
Convention)
1. The Chamber judgment
The
Chamber considered that, even in continuing situations there might
arise a time, having regard to the purpose of legal certainty
enshrined in the six-month rule and considerations of the practical
and effective functioning of the Convention mechanism, when it could
reasonably be expected that an applicant should not wait any longer
in bringing an application to Strasbourg. Thus, applicants in
disappearance cases could be required to show reasonable expedition
in lodging complaints. In these applications however, introduced some
three years after the ratification by Turkey of the right of
individual petition and some three days after Turkey's acceptance of
the jurisdiction of the old Court, against a background of
consecutive inter-State applications the results of which had still
not been made public, there had been no unreasonable delay by these
applicants in introducing their complaints.
2. Submissions to the Court
a. The respondent Government
The
Government submitted that there was inexplicable inconsistency
between the approach taken in Karabardak and Others v. Cyprus and
Baybora and Others v. Cyprus ((decs.), nos. 76575/01
and 77116/01, 22 October 2002) and the Chamber judgment
in the present case. In the former, the Court had found that the
lapse of time between the facts and the introduction of the
applications by Turkish Cypriot applicants was too long, without
mention of any apparent continuing violation. On that basis, the
present applications should also have been rejected as out of time.
The fact that the applications were introduced three years after
ratification in Varnava while thirteen years had elapsed in
the cases against Cyprus had no logical bearing on the different
approaches applied in regard to the six-month rule. Furthermore, in
Baybora and Karabardak the applicants were seemingly
reproached for not taking their cases to the CMP although that had
already been found by the Court to be an ineffective remedy.
The
Government concluded that if the CMP was indeed an ineffective remedy
as claimed by the present applicants they should have brought their
applications to the Commission at the latest six months after the
date of ratification on 27 January 1987. They noted that the
decisions in Baybora and Karabardak were completely
silent on when time began to run. This difference in treatment
between applicants in Turkish Cypriot and Greek Cypriot cases, which
concerned the same allegations in the same historical and
geographical context, aggravated the suffering of the Turkish Cypriot
applicants.
b. The applicants
The
applicants submitted that the six-month rule did not apply to
continuing violations. As concerned the Baybora and Karabardak
cases, they considered that these could be distinguished from their
own applications as, firstly, Turkey had been notified about their
missing relatives by the end of September 1974 and the nine men had
also been included in the group of missing persons listed by the
Cyprus Government in the four inter-State cases between 1974 and
1994; secondly, their applications had been lodged on 25 January
1990, three days after Turkey's acceptance of the Court's
jurisdiction (whereas the Turkish Cypriot applications had been
lodged over a decade later); and the Turkish Cypriot applications had
been introduced in the absence of any effort by the families to
exhaust domestic remedies available since 1964 in the domestic system
of Cyprus whereas Greek Cypriots had had no access to any domestic
remedy in Turkey.
c. The intervening Government
The
Cypriot Government submitted that there had been no inordinate delay
by the applicants in lodging their complaints; this distinguished
their cases from the Turkish Cypriot cases where the applicants had
not acted for over twenty years after the investigation into the
disappearances had been terminated by the ICRC and UN civilian police
in 1968 and thirteen years after Cyprus had accepted the right of
individual petition.
3. The Court's assessment
a. General principles
The
object of the six-month time-limit under Article 35 § 1 is
to promote legal certainty, by ensuring that cases raising issues
under the Convention are dealt with in a reasonable time and that
past decisions are not continually open to challenge. It marks out
the temporal limits of supervision carried out by the organs of the
Convention and signals to both individuals and State authorities the
period beyond which such supervision is no longer possible (see,
amongst other authorities, Walker v. the United Kingdom (dec.),
no. 34979/97, ECHR 2000 I).
As
a rule, the six-month period runs from the date of the final decision
in the process of exhaustion of domestic remedies. Where it is clear
from the outset however that no effective remedy is available to the
applicant, the period runs from the date of the acts or measures
complained of, or from the date of knowledge of that act or its
effect on or prejudice to the applicant (Dennis and Others v. the
United Kingdom (dec.), no. 76573/01, 2 July 2002). Nor can
Article 35 § 1 be interpreted in a manner which would require an
applicant to seize the Court of his complaint before his position in
connection with the matter has been finally settled at the domestic
level. Where, therefore, an applicant avails himself of an apparently
existing remedy and only subsequently becomes aware of circumstances
which render the remedy ineffective, it may be appropriate for the
purposes of Article 35 § 1 to take the start of the six-month
period from the date when the applicant first became or ought to have
become aware of those circumstances (see Paul and Aubrey Edwards
v. the United Kingdom (dec.), no. 46477/99, 4 June 2001).
Consequently,
where a death has occurred, applicant relatives are expected to take
steps to keep track of the investigation's progress, or lack thereof,
and to lodge their applications with due expedition once they are, or
should have become, aware of the lack of any effective criminal
investigation (see Bulut and Yavuz v. Turkey (dec.), no.
73065/01, 28 May 2002; also Bayram and Yıldırım v.
Turkey (dec.), no. 38587/97, ECHR 2002 III). The same
principles have been applied, mutatis mutandis, to
disappearance cases (see Eren and Others v. Turkey (dec.), no.
42428/98, 4 July 2002, and Üçak and Kargili and
Others v. Turkey (dec.), nos. 75527/01 and 11837/02, 28
March 2006).
Nonetheless
it has been said that the six month time-limit does not apply as such
to continuing situations (see, for example, Agrotexim Hellos S.A.
and Others v. Greece, no. 14807/89, Commission decision of
12 February 1991, DR 71, p. 148, and Cone v. Romania,
no. 35935/02, § 22, 24 June 2008); this is because, if
there is a situation of ongoing breach, the time-limit in effect
starts afresh each day and it is only once the situation ceases that
the final period of six months will run to its end. In the
fourth inter-State case, where it was implicit that a similar
approach was applicable to a continuing practice – and in that
case it was a continuous failure to comply with the obligation to
investigate disappearances – the Court notes that the issue of
the six-month rule had been joined to the merits by the Commission
and neither Government had since made any submissions on the point
(§§ 103-104). The issue was thus not addressed expressly by
the Court in that judgment. It therefore falls to the Court to
resolve the point in the present case.
b. Applicability of time constraints to
procedural obligations under Article 2 of the Convention
The
Court cannot emphasise enough that the Convention is a system for the
protection of human rights and that it is of crucial importance that
it is interpreted and applied in a manner that renders these rights
practical and effective, not theoretical and illusory. This concerns
not only the interpretation of substantive provisions of the
Convention, but also procedural provisions; it impacts on the
obligations imposed on respondent Governments, but also has effects
on the position of applicants. For example, while it is essential for
the efficacy of the system that Contracting States comply with their
obligation not to hinder the applicant in the exercise of the right
of individual petition, individuals nonetheless bear the
responsibility of co-operating with procedures flowing from the
introduction of their complaints, assisting in clarifying any factual
issues where such lie within their knowledge and in maintaining and
supporting the applications introduced on their behalf (see Kapan
v. Turkey, no. 22057/93, Commission decision of 13 January
1997, DR 88-B, p. 17). On the same basis, where time is of the
essence in resolving the issues in a case, there is a burden on the
applicant to ensure that his or her claims are raised before the
Court with the necessary expedition to ensure that they may be
properly, and fairly, resolved.
In
that context, the Court would confirm the approach adopted by the
Chamber in the present applications. Not all continuing situations
are the same; the nature of the situation may be such that the
passage of time affects what is at stake. In cases of disappearances,
just as it is imperative that the relevant domestic authorities
launch an investigation and take measures as soon as a person has
disappeared in life-threatening circumstances, it is indispensable
that the applicants, who are the relatives of missing persons, do not
delay unduly in bringing a complaint about the ineffectiveness or
lack of such investigation before the Court. With the lapse of time,
memories of witnesses fade, witnesses may die or become untraceable,
evidence deteriorates or ceases to exist, and the prospects that any
effective investigation can be undertaken will increasingly diminish;
and the Court's own examination and judgment may be deprived of
meaningfulness and effectiveness. Accordingly, where disappearances
are concerned, applicants cannot wait indefinitely before coming to
Strasbourg. They must make proof of a certain amount of diligence and
initiative and introduce their complaints without undue delay. What
this involves is examined below.
c. Undue delay in disappearance cases
The
Court would comment, firstly, that a distinction must be drawn with
cases of unlawful or violent death. In those cases, there is
generally a precise point in time at which death is known to have
occurred and some basic facts are in the public domain. The lack of
progress or ineffectiveness of an investigation will generally be
more readily apparent. Accordingly the requirements of expedition may
require an applicant to bring such a case before Strasbourg within a
matter of months, or at most, depending on the circumstances, a very
few years after events. In 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, the
situation is less clear-cut. It is more difficult for the relatives
of the missing to assess what is happening, or what can be expected
to happen. Allowances must be made for the uncertainty and confusion
which frequently mark the aftermath of a disappearance.
Secondly,
the Court would take cognisance of the international materials on
enforced disappearances. The International Convention for the
Protection of All Persons from Enforced Disappearance stipulates that
any time-limit on the prosecution of disappearance offences should be
of long duration proportionate to the seriousness of the offence,
while the Rome Statute of the International Criminal Court excludes
any statute of limitations as regards the prosecution of
international crimes against humanity, which includes enforced
disappearances. Bearing in mind therefore the consensus that it
should be possible to prosecute the perpetrators of such crimes even
many years after the events, the Court considers that the serious
nature of disappearances is such that the standard of expedition
expected of the relatives cannot be rendered too rigorous in the
context of Convention protection.
Thirdly,
in line with the principle of subsidiarity, it is best for the facts
of cases to be investigated and issues to be resolved in so far as
possible at the domestic level. It is in the interests of the
applicant, and the efficacy of the Convention system, that the
domestic authorities, who are best placed to do so, act to put right
any alleged breaches of the Convention.
Nonetheless,
the Court considers that applications can be rejected as out of time
in disappearance cases where there has been excessive or unexplained
delay on the part of applicants once they have, or should have,
become aware that no investigation has been instigated or that the
investigation has lapsed into inaction or become ineffective and, in
any of those eventualities, there is no immediate, realistic prospect
of an effective investigation being provided in the future. Where
there are initiatives being pursued in regard to a disappearance
situation, applicants may reasonably await developments which could
resolve crucial factual or legal issues. Indeed, as long as there is
some meaningful contact between families and authorities concerning
complaints and requests for information, or some indication, or
realistic possibility, of progress in investigative measures,
considerations of undue delay will not generally arise. However,
where there has been a considerable lapse of time, and there have
been significant delays and lulls in investigative activity, there
will come a moment when the relatives must realise that no effective
investigation has been, or will be provided. When this stage is
reached will depend, unavoidably, on the circumstances of the
particular case.
In
a complex disappearance situation such as the present, arising in a
situation of international conflict, where it is alleged that there
is a complete absence of any investigation or meaningful contact with
the authorities, it may be expected that the relatives bring the case
within, at most, several years of the incident. If there is an
investigation of sorts, even if sporadic and plagued by problems, the
relatives may reasonably wait some years longer until hope of
progress being made has effectively evaporated. Where more than ten
years has elapsed, the applicants would generally have to show
convincingly that there was some ongoing, and concrete, advance being
achieved to justify further delay in coming to Strasbourg. Stricter
expectations would apply in cases where the applicants have direct
domestic access to the investigative authorities.
d. Application in the present case
These
applicants introduced their applications on 25 January 1990, some
fifteen years after their relatives went missing in 1974. The Court
notes that the disappearances were brought to the attention of the
respondent Government in or about 1974 by the intervening Government
and the International Committee of the Red Cross. The intervening
Government also introduced a series of applications from 1974 which
brought complaints arising out of the events, including the missing
persons problem, before the Commission in Strasbourg. Throughout the
1980, there were ongoing procedures on these issues. However, only
the fourth inter-State case, lodged much later in 1994, was able to
be brought before this Court, after Turkey accepted the Court's
jurisdiction; the previous three applications which were before the
Commission, ended in reports which went to the Committee of
Ministers, none of which were made available publicly before 1992,
many years after their adoption (see the fourth inter-State case, §
17).
The
post-conflict situation in Cyprus meanwhile fell under the competence
of the United Nations which took over supervision of the Buffer Zone
between the two opposing sides. From the beginning efforts were also
made to set up a mechanism to deal with the problem of
disappearances, leading in 1981 to the setting up of the United
Nations Committee on Missing Persons (CMP). The Court notes that the
functioning of the CMP was plagued from inception by disagreements of
the parties, lack of co-operation and obstruction. However,
information about the progress of the CMP's work was limited due to
the strict confidentiality of its procedure. It is apparent that
actual work on cases started in 1984 and concrete investigative steps
were being taken in the following years. In April 1990 the CMP issued
a lengthy press release highlighting fundamental difficulties with
hearing witnesses, locating bodies and obtaining disinterments. This
was followed by further efforts by the United Nations
Secretary-General to revitalise the CMP. It was not until 2006 that,
finally, the CMP launched exhumations and began to locate and
identify remains.
Against
that background, the question arises at what point the applicants
should have come to Strasbourg. It would not have been possible prior
to 1987. The respondent Government submitted that they should have
brought their applications within six months of the date of
acceptance of the right of individual petition on 28 January
1987; in their view, 25 January 1990 was too late.
The
Court considers that the applicants, who were amongst a large group
of persons affected by the disappearances, could, in the exceptional
situation of international conflict where no normal investigative
procedures were available, reasonably await the outcome of the
initiatives taken by their Government and the United Nations. These
procedures could have resulted in steps being taken to investigate
known sites of mass graves and provided the basis for further
measures. The Court is satisfied, however, that by the end of 1990 it
must have become apparent that the problematic, non-binding,
confidential nature of these processes no longer offered any
realistic hope of progress in either finding bodies or accounting for
the fate of their relatives in the near future. 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.
The
Court has, in reaching this conclusion, given careful consideration
to the respondent Government's submissions concerning the
applications introduced by the families of Turkish Cypriots who went
missing during inter-communal strife in the 1960 (Baybora and
Karabardak, cited above). It 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. It is not disputed that the
applicants' relatives disappeared or were killed in 1964, that there
was no ongoing process of exhaustion of domestic remedies or other
relevant procedures in the following years and that the matter was
eventually brought before the CMP in 1989. However in accordance with
the Court's approach above, it must have been apparent by the end of
1990 that this body could not realistically be expected to bring
about any positive results in the near future. By waiting therefore
until 2001, a further period of eleven years, during which there were
no intervening events capable of suspending the running of time, the
applicants in those cases had unduly delayed in introducing their
complaints before the Court.
The
Court rejects the preliminary objection under this head.
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
The
Chamber found no reason to differ from the conclusion of the Grand
Chamber in the fourth inter-State case, holding that the nine men had
disappeared against the same life-threatening background and that
while there might not have been an evidential basis to substantiate
that all nine men had been last seen in the custody of agents of the
respondent State, there was an obligation under Article 2 to take due
measures to protect the lives of the wounded, prisoners of war or
civilians in zones of international conflict and this extended to
providing an effective investigation for those who disappeared in
such circumstances. No effective investigation had been provided, by
the CMP or otherwise.
B. Submissions to the Court
1. The applicants
The
applicants submitted that the Chamber had correctly applied the
findings of the fourth inter-State case in their own applications.
There had been a pressing obligation on the respondent Government to
conduct a prompt, independent, effective and thorough investigation
into the fate of the missing men who had disappeared in
life-threatening circumstances during the military operations in
which they were last seen and which had been initiated by the
respondent Government. They did not consider that any recent
developments as regards the CMP were relevant, since the exhumations
had not concerned them, save very recently in one case, and there was
still no possibility of the CMP investigating effectively the
circumstances of any death or disappearance. In so far as the remains
of Savvas Hadjipanteli (application no. 16071/90) had been
discovered, they maintained their arguments that there had been a
violation.
2. The respondent Government
The
Government submitted that it had not been established that the
applicants had been detained by Turkish authorities and that no
liability arose under Article 2. They argued that inter-State
applications should be distinguished from individual applications,
being based on different Convention provisions. In the latter, the
notion of victim status was essential, whereas in the former, the
applicant State did not have to establish a prima facie case. The
Government considered that the Chamber had failed to apply the burden
of proof applicable in individual cases, that of proof beyond
reasonable doubt, but erred in relying on the findings in an
inter-State case. The Commission in its decision on admissibility in
these cases had expressed doubt that the first applicants were
covered by the findings in the inter-State case.
Even if Article 2 was applicable, the Government considered that they
had not failed to comply with its requirements. They emphasised that
the CMP had evolved considerably since the findings in the
inter-State case. It stressed the importance of the project on the
exhumation and return of remains, which was giving concrete results,
with financial and practical assistance from both sides,
international NGOs and the international community. They pointed out
that, given the Chamber's reliance on the international context of
the conflict as relevant to the nature of the obligations arising
under Article 2, it was only logical that the CMP be regarded as an
appropriate remedy against such a historical and political
background. It should not be forgotten, in their view, that Turkish
Cypriots had already disappeared in 1963 and the international
community had considered the CMP as the appropriate response to the
complex, sensitive and painful situation. This had the advantage of
treating the families on both sides in an equal manner.
3. The Government of Cyprus
The
Cypriot Government submitted that the burden of proof was the same in
inter-State and individual applications but merely appeared different
due to the context. The applicants had provided sufficient evidence
that the missing men were last seen in territory which at the time or
immediately afterwards was under the de facto control of the invading
Turkish forces or forces for whom they were responsible. At a time of
international armed conflict, this meant that those men were in a
life-threatening situation and it was the responsibility of the
Government in charge of those forces to determine what happened to
them. Such responsibility was also imposed by international
humanitarian law, which could be used to clarify the scope of
existing Convention obligations. Given that the men did not make it
back to their own lines, they were wounded, sick, dead or detained.
The respondent Government had been under the obligation to seek them
out, provide treatment if sick or, in the case of the dead, to bury
them; and in all cases, to provide information about their fate.
While
they welcomed any improvement in the functioning of the CMP, the
limitations on its terms of reference, mandate and authority were
unchanged; in particular the exclusion of jurisdiction to make
findings on cause of death and responsibility, the confinement of
territorial jurisdiction to Cyprus with the exclusion of Turkey, the
promises of impunity to persons who might be responsible and the
doubt whether it would investigate Turkish army or official actions
on Cypriot territory.
C. The Court's assessment
The
Court observes that in the fourth inter-State case the Grand Chamber
had to address the issue of the missing Greek Cypriots as a whole. It
found as follows:
“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
The
Court notes that the procedural obligation was stated as arising
where individuals, last seen in the custody of agents of the State,
subsequently disappeared in a life-threatening context. In the
context of the inter-State case it was not necessary to specify which
individuals were included in the “many persons” shown by
the evidence to have been detained by Turkish or Turkish Cypriot
forces at the time of their disappearance. There is no basis on which
it can be assumed that the missing men in the present case were
included in the Court's findings. It must therefore be determined in
this case whether the conditions for a procedural obligation arose.
In
response to the respondent Government's argument about the burden of
proof, 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
(see the Ireland v. the United Kingdom, 18 January 1978, pp.
64-65, § 161, Series A no. 25). The burden of proof may be
easier to satisfy in practical terms in the inter-State context where
the facts of many incidents and numerous events may be taken into
account. But, even in individual cases, the Court's case-law has
identified situations in which the rigour of this rule may be
mitigated.
Such
proof may follow from the coexistence of sufficiently strong, clear
and concordant inferences or of similar unrebutted presumptions of
fact (loc. cit.). Thus, where the events in issue lie wholly,
or in large part, within the exclusive knowledge of the authorities,
as in the case of persons within their control in custody, strong
presumptions of fact will arise in respect of injuries, death or
disappearances occurring during such detention. The burden of proof
may then be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (Salman v. Turkey
[GC], no. 21896/93, § 100, ECHR 2000-VII; Akdeniz and Others
v. Turkey, no. 23954/94, §§ 85-89, 31 May 2000);
see also cases short of custody, where it is possible to establish
that an individual entered a place under those authorities' control
and has not been seen since, in which circumstances, the onus is on
the Government to provide a plausible explanation of what happened on
the premises and to show that the person concerned was not detained
by the authorities, but left the premises without subsequently being
deprived of his or her liberty (e.g. Taniş and Others
v. Turkey, no. 65899/01, § 160, ECHR 2005–VIII;
Yusupova and Zaurbekov v. Russia, no. 22057/02, §§
50-55, 9 October 2008).
As
a logical development of this approach, in the situation where
persons are found injured or dead, or who have disappeared, in an
area within the exclusive control of the authorities of the State and
there is prima facie evidence that the State may be involved, the
burden of proof may also shift to the Government since the events in
issue may lie wholly, or in large part, within the exclusive
knowledge of the authorities. If they then fail to disclose crucial
documents to enable the Court to establish the facts or otherwise
provide a satisfactory and convincing explanation, strong inferences
may be drawn (see Akkum v. Turkey, no. 21894/93, § 211,
ECHR 2005-II (extracts); and, amongst many cases concerning the
situation in Chechnya, Goygova v. Russia, no. 74240/01, §§
88-96, 4 October 2007, and Magomed Musayev and Others v. Russia,
no. 8979/02, §§ 85-86, 23 October 2008).
Turning
to the present case, the Court would note that the respondent
Government did not accept that the missing men had been taken into
custody under their responsibility. Nor is it for the Court to seek
to establish what occurred in 1974, which is outside its temporal
jurisdiction. However, it is satisfied that there is a strongly
arguable case that two men were last seen in circumstances falling
within the control of the Turkish or Turkish Cypriots forces, namely,
Eleftherios Thoma and Savvas Hadjipanteli who were included on an
ICRC list as detainees (see paragraphs 77 and 80 above). As concerns
the other seven men, no such documentary evidence of actual detention
has been forthcoming. There is nonetheless an arguable case that the
other seven men were last seen in an area under the control, or about
to come under the control of the Turkish armed forces. Whether they
died, in the fighting or of their wounds, or whether they were
captured as prisoners, they must still be accounted for. Article 2
must be interpreted in so far as possible in light of the general
principles of international law, including the rules of international
humanitarian law which play an indispensable and universally-accepted
role in mitigating the savagery and inhumanity of armed conflict
(see Loizidou, cited above, § 43). The Court therefore
concurs with the reasoning of the Chamber in holding that in a zone
of international conflict Contracting States are under obligation to
protect the lives of those not, or no longer, engaged in hostilities.
This would also extend to the provision of medical assistance to the
wounded; where combatants have died, or succumbed to wounds, the need
for accountability would necessitate proper disposal of remains and
require the authorities to collect and provide information about the
identity and fate of those concerned, or permit bodies such as the
ICRC to do so.
In
the present case, the respondent Government have not put forward any
materials or concrete information that would show that any of the
missing men were found dead or were killed in the conflict zone under
their control. Nor is there any other convincing explanation as to
what might have happened to them that might counter the applicants'
claims that the men disappeared in areas under the respondent
Government's exclusive control. 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; if warranted, consequent
measures for redress could then be effectively adopted.
2. Compliance with the procedural obligation
The
Court recalls that in the fourth inter-State case the Grand Chamber
found as follows:
“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.”
The
respondent Government's arguments effectively invited the Court to
reconsider the above finding as to the ineffectiveness of the CMP in
providing a proper investigation into the fate of the missing men.
They asserted that due account should be taken of the extremely
sensitive and painful context in which the international community
have considered it appropriate to provide for a bi-communal
mechanism. They also argued that the terms of reference of the CMP
should not be regarded as decisive but that the spectacular
re-activation of its activities, and its recent achievements in
locating and identifying remains should be given overriding weight.
The
Court considers, firstly, that the Grand Chamber in the fourth
inter-State case was fully aware of the background and sensitivity of
the situation when it found the CMP's procedures did not meet the
standard of investigation required by Article 2. As concerns the
second strand of argument, it fully acknowledges the importance of
the CMP's ongoing exhumations and identifications of remains and
gives full credit to the work being done in providing information and
returning remains to relatives (see also the Committee of Ministers'
decision at paragraph 88 above). But important though these
measures are as a first step in the investigative process, they do
not exhaust the obligation under Article 2.
From
the materials provided as regards Savvas Hadjipanteli, it appears
that on identification of remains the procedure is to issue a medical
certificate of death, which in brief terms indicates the injuries
noted as causing death – in his case the presence of various
bullet wounds. There is however no report analysing the circumstances
or even the dating of death. Nor have any investigative measures been
taken to locate or question any witnesses in the area who could give
information as to how Savvas Hadjipanteli and the others found with
him in the mass grave came to meet their end and at whose hands.
Thus, even though the location of the body of Savvas Hadjipanteli has
been established it cannot be said, putting supposition and
speculation aside, that any clear light has been shed as to how he
met his fate.
The
Court does not doubt that many years after the events there would be
considerable difficulty in assembling eye-witness evidence or in
identifying and mounting a case against any alleged perpetrators.
However, the Court's case-law on the ambit of the procedural
obligation is unambiguous. 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. Even where there may be
obstacles which prevent progress in an investigation in a particular
situation, a prompt response by the authorities is vital in
maintaining public confidence in their adherence to the rule of law
and in preventing any appearance of collusion in or tolerance of
unlawful acts (see McKerr v. the United Kingdom,
no. 28883/95, §§ 111 and 114, ECHR 2001 III; and
Brecknell v. the United Kingdom, no. 32457/04, § 65,
27 November 2007). Besides being independent, accessible to the
victim's family, carried out with reasonable promptness and
expedition and affording a sufficient element of public scrutiny of
the investigation or its results, the investigation must also be
effective in the sense that it is capable of leading to a
determination of whether the death was caused unlawfully and if so,
to the identification and punishment of those responsible ( see Oğur
v. Turkey [GC], no. 21594/93, § 88, ECHR 1999 III;
Hugh Jordan v. the United Kingdom, no. 24746/94, §§
105-109, 4 May 2001; and Douglas-Williams v. the United
Kingdom (dec.), no. 56413/00, 8 January 2002).
The
Court finds no indication that the CMP is going beyond its limited
terms of reference to play any role in determining the facts
surrounding the deaths of the missing persons who have been
identified or in collecting or assessing evidence with a view to
holding any perpetrators of unlawful violence to account in a
criminal prosecution. Nor is any other body or authority taking on
that role. It may be that investigations would prove inconclusive, or
insufficient evidence would be available. However, that outcome is
not inevitable even at this late stage and the respondent Government
cannot be absolved from making the requisite efforts. By way of
example, the Court recalls that in the context of Northern Ireland
the authorities have provided for investigative bodies (variously,
the Serious Crimes Review Team and Historical Enquiry Team) to review
the files on past sectarian murders and unsolved killings and to
assess the availability of any new evidence and the feasibility of
further investigative measures; in cases before the Court, these
measures were found, given the time that had elapsed, to have been
adequate in the particular circumstances (see Brecknell, cited
above, §§ 71, 75, 79-81). It cannot therefore be said that
there is nothing further that could be done.
It may be that both sides in this conflict prefer not to attempt to
bring out to the light of day the reprisals, extra-judicial killings
and massacres that took place or to identify those amongst their own
forces and citizens who were implicated. It may be that they prefer a
“politically-sensitive” approach to the missing persons
problem and that the CMP with its limited remit was the only solution
which could be agreed under the brokerage of the UN. That can have no
bearing on the application of the provisions of the Convention.
The
Court concludes that there has been a continuing violation of Article
2 on account of the failure of the respondent State to provide for an
effective investigation aimed at clarifying the fate of the nine men
who went missing in 1974.
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
Article
3 provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The Chamber judgment
Referring
to the fourth inter-State case, the Chamber found also a violation of
Article 3 as regards the inhuman treatment suffered by the applicant
relatives due to the years of silence concerning the missing men.
B. Submissions to the Court
1. The applicants
The
applicants adopted the reasoning of the Chamber, emphasising that the
second applicants had been without news of the loved ones for 34
years, suffering daily anguish and distress, exacerbated by recent
newspaper reports that some missing persons had been used as guinea
pigs in Turkish army biochemical laboratories.
2. The respondent Government
The
Government submitted that none of the missing men had been subjected
to forcible detention and that no issue arose.
3. The Government of Cyprus
The
Cypriot Government submitted that the applicants had been victims of
continuing inhuman treatment. They had all been wives or parents of
the missing men; in three cases, following the death of the parent,
the sister or brother of the missing person had taken over the
application. They had never given up trying to find out what had
happened and their anguish was worsened by the fact that there were
people with information who were not revealing what they knew.
C. The Court's assessment
The
phenomenon of disappearances imposes a particular burden on the
relatives of missing persons who are kept in ignorance of the fate of
their loved ones and suffer the anguish of uncertainty. Thus the
Court's case-law recognised from very early on that the situation of
the relatives may disclose inhuman and degrading treatment contrary
to Article 3. The essence of the violation is not that there has been
a serious human rights violation concerning the missing person; it
lies in the authorities' reactions and attitudes to the situation
when it has been brought to their attention (see, amongst many
authorities, Orhan v. Turkey, no. 25656/94, § 358, 18
June 2002, and Imakayeva, cited above, § 164). Other
relevant factors include the proximity of the family tie, the
particular circumstances of the relationship, the extent to which the
family member witnessed the events in question, the involvement of
the family member in the attempts to obtain information about the
disappeared person (Tanış, cited above, § 219).
The finding of such a violation is not limited to cases where the
respondent State has been held responsible for the disappearance (see
Osmanoğlu, cited above, § 96) but can arise
where the failure of the authorities to respond to the quest for
information by the relatives or the obstacles placed in their way,
leaving them to bear the brunt of the efforts to uncover any facts,
may be regarded as disclosing a flagrant, continuous and callous
disregard of an obligation to account for the whereabouts and fate of
a missing person.
The
Court notes that in the fourth inter-State case the Grand Chamber
found that in the context of the disappearances in 1974, where the
military operation resulted in considerable loss of life, large-scale
arrests and detentions and enforced separations of families, the
relatives of the missing men had suffered the agony of not knowing
whether their family member had been killed in the conflict or had
been taken into detention and, due to the continuing division of
Cyprus, had been faced with very serious obstacles in their search
for information. The silence of the authorities of the respondent
State in face of the real concerns of the relatives could only be
categorised as inhuman treatment (at § 157).
The
Court finds no basis on which it can differ from this finding in the
present case. The length of time over which the ordeal of the
relatives has been dragged out and the attitude of official
indifference in face of their acute anxiety to know the fate of their
close family members discloses a situation attaining the requisite
level of severity. There has, accordingly, been a breach of Article 3
in respect of the applicants.
V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
Article
5 of the Convention provides, as relevant:
“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
The
Chamber, citing the fourth inter-State case, found a breach of
Article 5 by virtue of the failure of the authorities to provide an
effective investigation into the whereabouts of the nine missing men
in respect of whom there was an arguable claim that they had been
deprived of their liberty at the time of their disappearance.
B. Submissions to the Court
The
applicants claimed that a procedural violation arose as all the
missing men were last seen alive in an area which, upon their
disappearance, or immediately thereafter, came under the control of
the respondent Government. A presumption had been created that the
men had been detained or come under the control of the Turkish army
or forces for which they were responsible, rendering the respondent
Government responsible for their fate and putting them under an
obligation to account for them and carry out a prompt, effective,
independent and thorough investigation.
The
Government submitted that none of the missing men had been taken, or
remained, in custody and that the allegations of the applicants were
purely hypothetical. There was nothing to suggest, and it was
extremely illogical to assume, that any missing Greek Cypriot was
still detained by Turkish or Turkish-Cypriot authorities.
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
The
Court recalls that it has found above that there was a prima facie
or arguable case that two of the men were last seen in circumstances
falling within the control of the Turkish or Turkish Cypriot forces,
namely, Eleftherios Thoma and Savvas Hadjipanteli who were included
on ICRC lists as detainees (see paragraphs 77 and 80 above). They
have not been seen since. However, the Turkish authorities have not
acknowledged their detention; they have not provided any documentary
evidence giving official trace of their movements. The Court notes
the patent disregard of the procedural safeguards applicable to the
detention of persons. While there is no evidence that any of the
missing persons were still in detention in the period under the
Court's consideration, it remains incumbent on the Turkish Government
to show that they have since carried out an effective investigation
into the arguable claim that the two missing men had been taken into
custody and not seen subsequently (see, amongst many authorities,
Kurt, cited above, § 124). The Court's findings above in
relation to Article 2 leave no doubt that the authorities have also
failed to conduct the requisite investigation in that regard. This
discloses a continuing violation of Article 5.
No
sufficient evidential basis arising in respect of the other seven
missing men, no violation of Article 5 is disclosed in that
connection.
VI. ALLEGED VIOLATION OF ARTICLES 4, 6, 8, 10, 12, 13 AND
14 OF THE CONVENTION
The
applicants originally invoked Articles 4 (prohibition of slavery and
forced labour), 6 (right to fair trial), 8 (right to respect for
family and private life), 10 (freedom of expression), 12 (the right
to marry and found a family), 13 (effective remedy for arguable
Convention breaches) and 14 (prohibition of discrimination in
enjoyment of Convention rights). In their most recent submissions,
they have maintained their complaints on the above, save for Article
4.
Having
regard to the facts of the case, the submissions of the parties and
its findings under Articles 2, 3 and 5 of the Convention, the Court
considers that it has examined the main legal questions raised in the
present application and that there is no need to give a separate
ruling on the applicants' remaining complaints.
VII. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION
Article
46 provides:
“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.”
Article 41 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
1. The Chamber judgment
The
Chamber found no basis for an award of pecuniary damage. It declined
to grant the applicants' very high claims in respect of non-pecuniary
damage, emphasising that Article 41 did not provide for imposing
punitive sanctions on respondent Governments. It gave weight to the
context in which some 1,400 Greek Cypriots and 500 Turkish Cypriots
had gone missing and to the fact the Committee of Ministers was in
the process of monitoring the execution of the judgment in the fourth
inter-State case, in which respect the crucial element would be the
provision, finally, of measures to cast light on the fate of as many
of the missing men, women and children as possible. It concluded that
in these unique circumstances it would be neither appropriate or
constructive, or even just, to make additional specific awards or
recommendations in regard to individual applicants. The finding of
violations was thus considered to constitute in itself sufficient
just satisfaction.
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.
For
non-pecuniary damage, the applicants claimed under this head 407,550
euros (EUR) in respect of the violations suffered by each of the
missing men, such sums to be held by the applicants on their behalf
and the behalf of their heirs; and EUR 543,400 for each of the
applicants or their successors (namely EUR 6,175 for every year of
violation between 1987 2009 in respect of each violation). Such
compensation was essential, in their submission, as the violations
were numerous and grave, had continued for over 34 years, were
massive and systemic and were aggravated by blatant disregard of the
findings of the Convention organs. The Chamber, in not making an
award, was, they respectfully submitted, in error, and acting in a
discriminatory manner inconsistent with the Court's practice.
b. The respondent Government's response
Concerning
non-pecuniary damage, the respondent Government considered that it
was inappropriate to make any award as the allegations were basically
presumptive, there being no corroboration in the CMP files that the
men were taken into custody and all but one of them had gone missing
in a situation of conflict which inevitably entailed a certain risk
to life. They also submitted that there had been substantial progress
in the activities of the CMP and that as the issue of disappearances
concerned both communities, awards to Greek Cypriot families would
deepen the wounds of Turkish Cypriot families with missing relatives
and not help in the process of conciliation. Further, the damages
claimed were excessively and unprecedentedly high.
c. The intervening Government's comments
The
intervening Government argued that the Court should identify the
measures to be taken to put an end to the continuing violations,
which goal could not be met merely by reparation. Reparation should
be made available in the form of compensation. In not awarding such
damages, the Chamber had departed from constant practice in
disappearance cases. The fourth inter-State case was not relevant as
it was not known if compensation could, or would, be awarded. Awards
should take into account previous awards and the length of time over
which the violations have lasted.
They
requested that the Court require the Turkish Government to conduct an
effective investigation into the fate of the missing persons,
specifying what was required, and to take measures to prevent the
occurrence of disappearances and threats to the right to life
contrary to Articles 2 and 5.
d. Submissions by Redress
Redress,
an international non-governmental organisation, submitted that as a
matter of general public international law the finding of a breach
gives rise to an obligation to make reparation. In disappearance
cases, the goal was restitutio in integrum and, where that was
not possible, compensation and other adequate and appropriate forms
of reparation were considered. Compensation should be proportional to
the gravity of the violation and the circumstances of the case. They
also submitted that, in line with this Court's case-law, an effective
remedy required an effective investigation into the matter, while the
International Convention for the Protection of All Persons from
Enforced Disappearance provided that measures be taken to enable
victims to know the truth regarding the circumstances of the
disappearance. In disappearance cases, the Inter American Court
had ordered the exhumation and return of the body, as well as damages
for moral suffering, an investigation into the circumstances and
publication of the facts of the case. The right to know the truth was
also recognised by the UN Human Rights Committee. A number of treaty
texts and judgments referred to the need for special steps to end
ongoing and continuing violations and to guarantee against
non-recurrence.
They
noted that the Court had awarded compensation in most, if not all,
disappearance cases and had held under Article 13 that in the case of
breaches of Articles 2 and 3 compensation should in principle be
available. The duration of breaches was relevant to assessing
damages. The prospect of general measures being ordered did not
remove the obligation to give individual reparation. It was also open
to the Court in an individual case to specify additional forms of
just satisfaction to put an end to existing violations and prevent
recurrence.
3. The Court's assessment
a. Article 46 of the Convention
As regards the applicants' views concerning the provision of an
effective investigation, the Court reiterates the general principle
that the respondent State remains free to choose the means by which
it will discharge its legal obligation under Article 46 of the
Convention, provided that such means are compatible with the
conclusions set out in the Court's judgment (see Scozzari and
Giunta v. Italy [GC], nos. 39221/98 and 41963/98, §
249, ECHR 2000-VIII; and Andrejeva v. Latvia
[GC], no. 55707/00, § 110, ECHR 2009-...).
Consequently it considers that in these applications it falls to the
Committee of Ministers acting under Article 46 of the Convention to
address the issues as to what may be required in practical terms by
way of compliance (see, mutatis mutandis, Akdivar and
Others v. Turkey (Article 50), 1 April 1998, pp. 723-24, §
47, Reports 1998 II).
In
so far as the applicants suggested that daily fines be imposed on the
Government until they finally comply with the Court's judgments, the
Court has consistently rejected claims for punitive damages (see
Akdivar and Others, cited above, § 38, Orhan,
cited above, § 448). It considers there to be little, if any,
scope under the Convention for directing Governments to pay penalties
to applicants which are unconnected with damage shown to be actually
incurred in respect of past violations of the Convention; in so far
as such sums would purport to compensate for future suffering of the
applicants, this would be speculative in the extreme.
b. Article 41 of the Convention
The Court would observe that there is no express provision for
non-pecuniary or moral damage. Evolving case by case, the Court's
approach in awarding just satisfaction has distinguished situations
where the applicant has suffered evident trauma, whether physical or
psychological, pain and suffering, distress, anxiety, frustration,
feelings of injustice or humiliation, prolonged uncertainty,
disruption to life, or real loss of opportunity (e.g. Elsholz
v. Germany [GC], no. 25735/94, § 70, ECHR 2000 VIII;
Selmouni v. France [GC], no. 25803/94, § 123, ECHR
1999 V; and Smith and Grady v. the United Kingdom (just
satisfaction), nos. 33985/96 and 33986/96, § 12, ECHR 2000 IX)
and those situations where the public vindication of the wrong
suffered by the applicant, in a judgment binding on the Contracting
State, is a powerful form of redress in itself. In many cases where a
law, procedure or practice has been found to fall short of Convention
standards this is enough to put matters right (see, for example,
Christine Goodwin v. the United Kingdom [GC], no.
28957/95, § 120, ECHR 2002 VI; Saadi v. Italy
[GC], no. 37201/06, § 188, ECHR 2008 ...; S. and
Marper v. the United Kingdom [GC], nos.
30562/04 and 30566/04, § 134, 4 December 2008). In some
situations, however, the impact of the violation may be regarded as
being of a nature and degree as to have impinged so significantly on
the moral well-being of the applicant as to require something
further. Such elements do not lend themselves to a process of
calculation or precise quantification. Nor is it the Court's role to
function akin to a domestic tort mechanism court in apportioning
fault and compensatory damages between civil parties. Its guiding
principle is equity, which above all involves flexibility and an
objective consideration of what is just, fair and reasonable in all
the circumstances of the case, including not only the position of the
applicant but the overall context in which the breach occurred. Its
non-pecuniary awards serve to give recognition to the fact that moral
damage occurred as a result of a breach of a fundamental human right
and reflect in the broadest of terms the severity of the damage; they
are not, nor should they be, intended to give financial comfort or
sympathetic enrichment at the expense of the Contracting Party
concerned.
It
is therefore not the case that there are specific scales of damages
that should be awarded in disappearance cases as the applicants have
sought to deduce from the past cases involving disappearances in
Russia and Turkey. Neither can the Court agree that the Chamber erred
in taking into account the background of the case and the ongoing
executions process before the Committee of Ministers. As the
applicants' own submissions make plain, their principal concern is
for the uncertainty to be brought to an end by the provision of
information about what happened to their relatives so long ago. That
said, the applicants have endured decades of not knowing which must
have marked them profoundly. Given the grievous nature of the case
and making an assessment on an equitable basis, the Court awards the
sum of EUR 12,000 for non-pecuniary damage to each of the nine
applicants, to be held by the heirs where the applicant has deceased.
B. Costs and expenses
1. The parties' submissions
The
representatives for the applicants Andreas and Giorghulla Varnava
(no. 16064/90), Demetris Theocharides and the heirs of Elli
Theocharidou (no. 16068/90), Eleftherios and the heirs of Christos
Thoma (no. 16070/90), Savvas and Georghios Apostolides (no. 16072/90)
and Leontis Demetriou and Yianoulla Leonti Sarma (no. 16073/90)
claimed CYP 5,778.41 inclusive of value-added tax (VAT) for each of
the applications for costs and expenses prior to referral to the
Grand Chamber, plus EUR 6,299.58, inclusive of VAT for costs
before the Grand Chamber. This made a total per application of EUR
16,172.58.
The
representatives for Andreas Loizides and the heirs of Loizos Loizides
(no. 16065/90), Philippos Constantinou and Demetris K. Peyiotis (no.
16066/90) Panicos and Chrysoula Charalambous (no. 16069/90) and
Savvas and Androula Hadjipanteli (no. 16071/90) provided bills of
costs in the amounts of CYP 5,186.16 inclusive of VAT per application
for costs and expenses prior to referral to the Grand Chamber and EUR
6,299.58 inclusive of VAT per application for costs before the Grand
Chamber. This made a total per application of EUR 14,960.66.
The
respondent Government stated that these claims were exaggerated and
excessive. The applications were all of a similar nature and the
submissions contained profuse citations and reproduction of earlier
material.
2. The Court's award
The
Court recalls that costs and expenses will not be awarded under
Article 41 unless it is established that they were actually incurred,
were necessarily incurred and were also reasonable as to quantum.
Furthermore, legal costs are only recoverable in so far as they
relate to the violation found (see, for example, Beyeler v. Italy
(just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002,
Sahin v. Germany [GC], no. 30943/96, § 105, ECHR
2003-VIII).
Noting
that the applicants' submissions were almost entirely identical and
that not all the claimed violations were upheld, but taking into
account the length of time over which the applications have been
pending before the Convention organs and the multiple rounds of
written submissions, the Court awards EUR 8,000 per application for
costs and expenses, plus any tax that may be chargeable to the
applicants on such amount.
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
Dismisses by sixteen votes to one the
Government's preliminary objections as to lack of legal interest;
2. Dismisses by sixteen votes to one the Government's
preliminary objection as to lack of temporal jurisdiction;
Dismisses by fifteen votes to two the
Government's preliminary objection as to the six-month rule;
Holds by sixteen votes to one that there has
been a continuing violation of Article 2 of the Convention on account
of the failure of the authorities of the respondent State to conduct
an effective investigation into the fate of the nine men who
disappeared in life-threatening circumstances;
Holds by sixteen votes to one that there has
been a continuing violation of Article 3 of the Convention in respect
of the applicants;
Holds by sixteen votes to one that there has
been a continuing violation of Article 5 of the Convention 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;
Holds unanimously that there has been no
continuing violation of Article 5 of the Convention by virtue of the
failure of the authorities of the respondent State to conduct an
effective investigation into the fate of the other seven missing men;
Holds unanimously that it is not necessary to
examine the complaints under Articles 4, 6, 8, 10, 12, 13 and 14 of
the Convention;
Holds by sixteen votes to one
(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;
Dismisses unanimously the remainder of the
applicants' claims for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 18 September 2009.
Erik
Fribergh Jean-Paul Costa
Registrar President
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.
J.-P.C.
E.F.
CONCURRING OPINION OF JUDGE SPIELMANN, JOINED BY JUDGES
ZIEMELE AND KALAYDJIEVA
The
Court has decided that there has been a continuing violation of
Article 2 of the Convention on account of the failure of the
authorities of the respondent State to conduct an effective
investigation into the fate of the nine men who disappeared in
life-threatening circumstances. I regret that in the judgment and the
operative part the Court declined to indicate explicitly that the
respondent State should conduct an effective investigation.
It
is in my view regrettable that the Court decided that it falls to the
Committee of Ministers to indicate what may be required in practical
terms by way of compliance.
In
consistency with the principle of restitutio in integrum,
spelled out eloquently in the submissions by the Redress Trust
(paragraph 220 of the judgment), and by emphasising the obligation,
for the State found in breach of the Convention, to re-establish the
situation which existed before the wrongful act was committed, the
Court should have indicated, in the reasoning and the operative part
of the judgment, that an effective investigation into the matter
should be held. Accountability for the fate of the missing men
includes carrying out an investigation into the events and those
responsible and offering the possibility of claiming redress to the
victims and the relatives.
In
paragraph 191 of the judgment, the Court emphasises that the Court's
case-law on the ambit of the procedural obligation is unambiguous and
that 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. This general principle, drawn from the Court's
case-law, should have been reflected in paragraph 222 and in the
operative part of the judgment.
By
virtue of Article 46 § 2 of the Convention, supervision of the
execution of the Court's judgments is the responsibility of the
Committee of Ministers. That does not mean, however, that the Court
should not play any part in the matter and should not take measures
designed to facilitate the Committee of Ministers' task in
discharging these functions.
Indeed, the Court has held in the past that a violation
of Article 2 cannot be remedied exclusively through an award of
damages to the relatives of the victim (Kaya v. Turkey, 19
February 1998, § 105, Reports of Judgments and Decisions
1998 I). As the Redress Trust eloquently emphasised in
its observations, given the fundamental importance of the right to
protection of life, in addition to any compensatory award, there is
an obligation on states to carry out a thorough and effective
investigation likely to lead to those responsible being identified
and punished, and in which the complainant has effective access to
the investigation proceedings (Çakıcı v. Turkey
[GC], no. 23657/94, §§ 112-113, ECHR 1999 IV). An
effective remedy entails the duty to conduct an effective official
investigation into the incident(s), which must be, inter alia,
“thorough, impartial and careful.” (Velikova v.
Bulgaria, no. 41488/98, § 80, ECHR 2000 VI).
To
that end, it is essential that in its judgments the Court should not
merely give as precise a description as possible of the nature of the
Convention violation found but should also indicate to the State
concerned in the reasoning under Article 46 of the Convention and in
the operative provisions, if the circumstances of the case so
require, the measures it considers most appropriate in order to
secure redress for the violation.
JOINT CONCURRING OPINION OF JUDGES SPIELMANN AND POWER
We
share the opinion of the majority that there has been a continuing
violation of Article 2 of the Convention on account of the failure of
the authorities of the respondent State to conduct an effective
investigation into the fate of the nine men who disappeared in
life-threatening circumstances. However, we would like to express our
disagreement as to the reasoning concerning the question of the six
months rule. We agree in this respect with the analysis presented by
Judge Ziemele and, in particular, the reference to the general
principles of international law as set out in Article 14.2 of the
International Law Commission's Draft Articles on State
Responsibility.
Admittedly,
it is quite understandable that the Court wants to uphold some legal
certainty when it comes to the time frames within which complaints
can be lodged. Even though we agree as a matter of principle that
“where disappearances are concerned, applicants cannot wait
indefinitely before coming to Strasbourg” and that they “must
make proof of a certain amount of diligence and initiative and
introduce their complaints without delay” (paragraph 161), we
should still not forget that we are dealing with a continuing
violation of an international obligation and that the respondent
State has never accounted for the fate of the missing men, carried
out an investigation into the events and those responsible and
offered the possibility of claiming redress to the victims and the
relatives. As the Court rightly points out in paragraph 148 “...the
procedural obligation will, potentially, persist as long as the fate
of the person is unaccounted for; the ongoing failure to provide the
requisite investigation will be regarded as a continuing violation
(see the fourth inter-State case, § 136)....”
To
justify the reasoning as to the six months rule, the majority relies
heavily on the fact that the United Nations Committee on Missing
Persons (the “CMP”) was not effective. We are unable to
accept the consequences of that ineffectiveness as regards the
application of the six months rule. In this respect we agree with
Judge Ziemele's observations concerning the limited mandate of the
CMP and we share her view that the fact that the CMP was not
effective is only one of a number of criteria (and far from the most
relevant one) in deciding on the application or not of the six months
rule in the proceedings before the Court.
We
would like to add the following. As the Grand Chamber is not bound by
the precedents of Baybora and Karabardak ((decs), nos.
77116/01 and 76575/01, 22 October 2002), we fail to see why the
majority felt obliged to distinguish the present case from the ones
decided in 2002 by saying that the applicants in those two cases “had
unduly delayed in introducing their complaints before the Court.”
We believe that it was unnecessary to elaborate a specific reasoning
emphasising distinguishing features of the Baybora and
Karabardak cases, which concerned applications introduced by
the families of Turkish Cypriots who had gone missing during
inter-communal strife in the 1960s. In paragraph 171 the majority
concedes that “[t]he Chamber decisions in the aforementioned
cases are very concise; and in the absence of arguments from the
parties, there is no explanatory reasoning.” In such
circumstances, we are unable to subscribe to the finding that in
Baybora and Karabardak the applicants “had unduly
delayed in introducing their complaints before the Court.”
In
the absence of detailed arguments submitted by the parties, we regret
that the Karabardak and Baybora applications were
rejected under Article 35 for being introduced out of time and that
the Court held in those two cases that “even assuming that the
applicants had no effective remedies as alleged, they must be
considered to have been aware of this long before 30 October 2001,
the date on which they introduced their application.” We cannot
agree to the justification of those two inadmissibility decisions set
out in paragraph 171 by taking as the critical moment “the end
of 1990.” In this respect, we are convinced - even if we come
to a different conclusion - by the reasoning of Judge Erönen
that “[l]egally 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.”
A
continuing violation such as occurs when a State fails to investigate
or account for enforced disappearances does not cease by the passage
of time to be a continuing violation. In our view, Judge Ziemele is
correct in observing that the non-application of the six months rule
to breaches of international obligations that have a continuing
character, such as in the context of enforced disappearance, serves
the important purpose of preventing the perpetrators from enjoying
impunity for such acts.
CONCURRING OPINION OF JUDGE ZIEMELE
I
agree with all the Court's findings in this case. However, there are
a few questions that the Court leaves open in its reasoning or where
I take a different line of reasoning. The first concerns the standing
of the missing men in the proceedings before the Court (§§
111–113). The second concerns the presumption of death (§§
142–146). The third and last is the question of the application
of the six months rule to continuing violations, especially where
enforced disappearances are concerned. It should be stated at the
beginning that all these questions are interlinked. I shall now
accordingly address the three issues.
The
status of the missing men
With
reference to the existing case-law the Court points out that normally
the relatives of the disappeared person are named as applicants in
cases before the Court (§ 111). In the instant case the
applications are lodged in the name of the disappeared persons and
their relatives and there is an explicit refusal of the relatives
to accept that a presumption of death may apply to the
disappeared persons. Furthermore, the applicants do not allege a
violation of the substantive aspect of Article 2 of the Convention
(see, a contrario, the case-law regarding disappearances in
Chechnya (Russia)).
In
its judgment, the Court establishes that the obligation to account
for the fate of the missing men and bring to justice the person or
persons responsible is of a continuing character (see, e.g. §
148). In my view, from that it follows that for as long as the fate
of the missing men is not known it would be contrary to the very
nature of a particular continuing obligation if the Court were to
accept that they could be presumed dead, in which case the relevant
legal consequences would include their lack of standing before the
Court.
Moreover,
enforced disappearances are a particular phenomenon which can only be
fully addressed if it is recognized that it violates at the same time
several human rights (for definition of the phenomenon, see, e.g.,
the UN Declaration on the Protection of all Persons from Enforced
Disappearances, § 89). These rights are perhaps not all
specifically spelled out in the Convention but they may be implied in
other concepts contained therein. Among the rights violated in
situations of enforced disappearances is the right to be recognised
as a person before the law. By not accepting the applicant status of
the missing men, the Court itself may appear to refuse to recognise
these individuals as persons before the law and to limit their right
of access to justice. It is clear to me that the Court should not
only have left the question of the standing of missing men open but
it should have clearly recognised them as applicants in the case.
Presumption
of death
It
is also important to note that international recognition of the acts
of enforced disappearance as a continuing offence for as long as the
perpetrators continue to conceal the fate and whereabouts of the
missing persons is aimed at deterring States from engaging in such
practices. Within this broader aim it has been recognised at the UN
level that the presumption of death cannot be applied over the
objections of the family (§ 90). History shows that missing
persons are being found decades after international conflicts and
that the families have continued to hope and search for their loved
ones.
It
has to be noted that in the instant case, unlike the position in many
cases arising from the conflict in Chechnya (Russia) and that the
Court uses as the main source for the principles to be applied in the
instant case, the relatives have not asked either domestic
authorities or the Court to rule one way or another on whether the
missing men are dead (for comparison, see Askharova v. Russia,
no. 13566/02, § 59, 4 December 2008,
and Magomadova v. Russia,
no. 2393/05, 18 June 2009). It is the respondent Government,
again unlike the position in the Russian cases, who invoke the
presumption of death so as to argue that the events fall outside the
scope of the Court's temporal jurisdiction. The Russian cases
very clearly differ from the instant case in that even the date of
the presumed death falls within the temporal jurisdiction of the
Court and the question of a substantive violation of Article 2
arises. Typically in these cases there is relatively much more, and
more recent, evidence as to the actual event of abduction.
I
therefore do not share the Court's reasoning in the instant case that
the lapse of over 34 years may provide strong circumstantial evidence
that the missing men have died in the meantime (§146). Certainly
the Russian case-law does not constitute authority for such a
statement of principle. In our case, the applicants refuse to accept
any presumption of death while the respondent Government invokes this
argument. At the same time, the applicants do not raise the claim
under the substantive aspect of Article 2 in the context of which, in
my view, this disagreement is more logically situated. The language
of § 146 may give a wrong idea of the Court's approach regarding
long-term enforced disappearances typically associated with complex
international conflicts. The Court arrived at the conclusion that,
even though the missing men may be presumed dead, a continuing
obligation to investigate their fate and account for their
whereabouts persists. I find it difficult to see how one can
meaningfully separate the obligation from those in whom the right is
vested, i.e., the missing men. Therefore, given what enforced
disappearances represent on the day of lodging the application with
the Court, the missing men could not be presumed dead since there
were no national decisions or relatives' requests to that effect. The
missing men are the applicants and there are rights under the
Convention owed to them by the respondent State.
Six
months rule
Lastly,
I should address the question of the six months rule. It is quite
understandable that the Court wants to uphold some legal certainty
when it comes to the time frames within which complaints can be
lodged. Cut-off dates serve their legitimate purpose in judicial
proceedings. However, the question in our case is whether the same
approach applies where a continuing violation of an international
obligation is concerned. For the purposes of this question, it is
important to remind ourselves of the very character of a continuing
violation of an international obligation. Article 14 §
2 of the International Law Commission's Draft Articles on
Responsibility of States for Internationally Wrongful Acts
defines the phenomenon as follows: “The breach of an
international obligation by an act of a State having a continuing
character extends over the entire period during which the act
continues and remains not in conformity with the international
obligation”.
In
our case, the respondent State has not to date accounted for the fate
of the missing men, conducted an investigation into the events and
those responsible and offered the possibility of claiming redress to
the victims and the relatives. The fact that the United Nations
Committee on Missing Persons (CMP) was not effective is only one, and
far from the most relevant, criterion for the decision whether or not
to apply the six months rule in the current proceedings before the
Court. The CMP's mandate is limited to ascertaining whether the
disappeared persons are dead or alive. It cannot attribute
responsibility or state the cause of death (§ 85). In other
words, it is not the CMP which will discharge the full scope of
Turkish obligations with respect to the missing persons. This was a
known fact when the CMP was set up. It was confirmed in the fourth
inter State case (§ 187).
The
Court took a false route in its reasoning on the six months rule when
it stated that from the moment when it became clear that the CMP
would not offer hope for progress (§ 170) the sixth months count
should have begun for the individuals concerned for the purposes of
lodging a complaint with the Court. As the judgment shows (see
arguments of the parties under Article 2), and in view of the
findings of the Court with respect to a continuing breach of a
procedural obligation by Turkey under Article 2 (§§
191–194), we are still in the presence of an on-going breach of
a Convention obligation. The Court should therefore have followed its
own case-law on non-application of the six months rule to continuing
situations (§ 159). Non-application of the six months rule to
breaches of international obligations having a continuing character,
especially when we deal with such crimes as enforced disappearance,
serves the important purpose of preventing the perpetrators from
enjoying impunity for such acts.
However,
the non-applicability presumption is a rebuttable one. The Court will
in any case examine each situation, as indeed the Court states in §
165. As noted by the International Court of Justice in the Phosphate
Lands in Nauru Case “It is therefore for the Court to
determine in the light of the circumstances of each case whether the
passage of time renders an application inadmissible” (Phosphate
Lands in Nauru Case, ICJ Reports, § 32, 1992). The test
for the application of the six months rule to continuing situations
is therefore different from what is set out in the reasoning in
§§ 166-171. It should be asked instead whether there
was any event or act which could be seen as triggering the running of
time for the submission of the complaint, because for as long as
there are no meaningful actions taken to address the problem of
disappearances the problem persists, and the right to complain about
it accordingly also persists. In other words, the issue is not
whether there is an event suspending the running of time (see, a
contrario, § 171); it is whether there is an event
which makes the six months begin to run. If the CMP was intended to
be a proper remedy in the disappearance cases, it indeed could be
properly examined in the light of the six months rule. But
this is clearly not the case.
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.
