European Court of Human Rights

Information Note on the Court’s case-law No. 173

April 2014

Gürtekin and Others v. Cyprus (dec.) - 60441/13, 68206/13 and 68667/13

Decision 11.3.2014 [Section IV]

Article 2

Article 2-1

Effective investigation

Alleged ineffectiveness, following recent discovery of bodies, of investigation into deaths during intercommunal conflicts in Cyprus in 1960s: inadmissible

Facts - The applicants were relatives of Turkish-Cypriot missing persons whose remains had been discovered during the exhumation programme carried out by the UN Committee for Missing Persons in Cyprus. The disappearance of the applicants’ relatives dated back to the inter-communal conflict in Cyprus in 1963-64. In their applications to the European Court, the applicants essentially complained about the ineffectiveness of the investigation into their relatives’ deaths following the discovery of their bodies.

Law - Article 2: The Court reiterated that the scope of any fresh obligation to investigate events that had taken place far in the past (for example, when newly-discovered evidence had come to light) would vary according to the nature of the purported new evidence or information. It could be restricted to verifying the reliability of the new evidence. The authorities could legitimately take into account the prospects of launching a new prosecution at such a late stage. Indeed, in general, in such cases the prospects of any effective investigation leading to the prosecution of suspects would increasingly diminish as memories faded, witnesses died or became untraceable, and evidence deteriorated or ceased to exist.

In the instant cases the police had followed numerous leads, made enquiries with official bodies and organisations, updated the statements from the deceased’s relatives, looked for relevant witnesses and tracked down to the extent possible the names of potential suspects. However, given the lapse of time, many witnesses were no longer alive or traceable, and a number of potential suspects had also died. It was not apparent that there was any evidence, beyond rumour, which could be relied upon as identifying persons still alive who had been involved in the events and the applicants had not pointed to any other concrete avenues of enquiry that the police could in fact have pursued.

As to their principal complaint that the investigations had ended without any prosecutions, Article 2 could not be interpreted so as to impose a requirement on the authorities to launch a prosecution irrespective of the available evidence. A prosecution, particularly on such a serious charge as involvement in mass unlawful killings, should never be embarked upon lightly as the impact on a defendant who came under the weight of the criminal justice system was considerable, being held up to public obloquy, with all the attendant repercussions on reputation, private, family and professional life. Rumour and gossip were a dangerous basis on which to base any steps that could potentially devastate a person’s life.

Nor did the procedural obligation in Article 2 necessarily require that there should be judicial review of investigative decisions not to prosecute as such. While the existence of such review procedures were doubtless a re-assuring safeguard of accountability and transparency, it was not for the Court to micro-manage the functioning of, and procedures applied in, criminal investigative and justice systems in Contracting States which might well vary in their approach and policies. No one model could be imposed.

The Court also considered unfounded the applicants’ submissions that they had been given insufficient access to the investigation, that there had been undue delays since the finding of the bodies or that the investigation was not independent. In conclusion, there was nothing to support their allegations that the authorities had not properly investigated the fate of the deceased or that they were somehow shielding or protecting those responsible.

Conclusion: inadmissible (manifestly ill-founded).

The Court also dismissed as manifestly ill-founded the applicants’ complaint under Article 3 of the Convention.

(See also McKerr v. the United Kingdom, 28883/95, 4 May 2001; Brecknell v. the United Kingdom, 32457/04, 27 November 2007, Information Note 102; Al-Skeini and Others v. the United Kingdom [GC], 55721/07, 7 July 2011, Information Note 143)

 

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