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THIRD SECTION



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
10 January 2008

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Varnava and Others v. Turkey,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Boštjan M. Zupančič, President,
Elisabet Fura-Sandström,
Alvina Gyulumyan,
Egbert Myjer,
David Thór Björgvinsson,
Isabelle Berro-Lefèvre, judges,
Gönül Başaran Erönen, ad hoc judge,
and Santiago Quesada, Section Registrar,

Having deliberated in private on 6 December 2007,

Delivers the following judgment, which was adopted on the last mentioned date:

PROCEDURE

1.  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 Cypriot nationals, Andreas and Giorghoulla Varnava no. 16064/90), Andreas and Loizos Loizides1 (no. 16065/90), Philippos Constantinou and Demetris K. Peyiotis (16066/90), Demetris Theocharides and Elli Theocharidou2 (no. 16068/90), Panicos and Chrysoula Charalambous (no. 16069/90), Eleftherios and Christos Thoma (no. 16070/90)3, Savvas and Androula Hadjipanteli (no. 16071/90), Savvas and Georghios Apostolides (no. 16072/90) and Leontis Demetriou and Yianoulla Leonti Sarma (16073/90) on 25 January 1990.

2.  The applicants were represented by Mr A. Demetriades and Dr Kypros Chrystomides, respectively, lawyers practising in Nicosia. The Turkish Government (“the Government”) were represented by their Agent.

3.  The applicants alleged that the first applicants in the above applications had been 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.

4.  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.

5.  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).

6.  The applicants and the Government each filed observations on the merits (Rule 59 § 1).

7.  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).

8.  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).

9.  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.

10.  On 13 November 2006, the applicants’ representative informed the Court that the second applicant, Elli Theocharidou, mother of the first 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.

11.  On 11 January 2007, the applicants’ representative informed the Court that the second applicant, Loizos Loizides, father of the first 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).

12.  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.

THE FACTS


  1. THE CIRCUMSTANCES OF THE CASE

A.  General context

13.  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. At the time of the Court’s consideration of the merits of the Loizidou v. Turkey case in 1996, there was a Turkish military presence of more than 30,000 personnel throughout the whole of the occupied area of northern Cyprus which was constantly patrolled and had checkpoints on all main lines of communication (Loizidou v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996 VI).

14. In November 1983 there was the proclamation of the “Turkish Republic of Northern Cyprus” (the “TRNC”) and the subsequent enactment of the “TRNC Constitution” on 7 May 1985, which was condemned by the international community. On 18 November 1983 the United Nations Security Council adopted Resolution 541 (1983) declaring the proclamation of the establishment of the “TRNC” legally invalid and calling upon all States not to recognise any Cypriot State other than the Republic of Cyprus. In November 1983 the Committee of Ministers of the Council of Europe decided that it continued to regard the government of the Republic of Cyprus as the sole legitimate government of Cyprus and called for respect of the sovereignty, independence, territorial integrity and unity of the Republic of Cyprus.

15.  According to the respondent Government, the “TRNC” is a democratic and constitutional State which is politically independent of all other sovereign States including Turkey, and the administration in northern Cyprus has been set up by the Turkish-Cypriot people in the exercise of its right to self-determination and not by Turkey. Notwithstanding this view, it is only the Cypriot government which is recognised internationally as the government of the Republic of Cyprus in the context of diplomatic and treaty relations and the working of international organisations.

16.  United Nations peacekeeping forces (“UNFICYP”) maintain a buffer-zone. A number of political initiatives have been taken at the level of the United Nations aimed at settling the Cyprus problem on the basis of institutional arrangements acceptable to both sides.

17.  Furthermore, and of relevance to the instant application, in 1981 the United Nations Committee on Missing Persons (“CMP”) was set up to “look into cases of persons reported missing in the inter-communal fighting as well as in the events of July 1974 and afterwards” and “to draw up comprehensive lists of missing persons of both communities, specifying as appropriate whether they are still alive or dead, and in the latter case approximate times of death”. The CMP has not yet completed its investigations (see further below paragraph 101).



B.  The previous inter-State applications Cyprus v. Turkey

18.  The events of July and August 1974 and their aftermath gave rise to four previous applications by the applicant Government against the respondent State under former Article 24 of the Convention.



1. and 2.  The first (no. 6780/74) and second (no. 6950/75) applications were joined by the Commission and led to the adoption on 10 July 1976 of a report under former Article 31 of the Convention (“the 1976 report”) in which the Commission expressed the opinion that the respondent State had violated Articles 2, 3, 5, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1.

3. The third application (no. 8007/77) lodged by the applicant Government was the subject of a further report under former Article 31 adopted by the Commission on 4 October 1983 (“the 1983 report”). In that report the Commission expressed the opinion that the respondent State was in breach of its obligations under Articles 5 and 8 of the Convention and Article 1 of Protocol No. 1. On 2 April 1992 the Committee of Ministers adopted Resolution DH (92) 12 in respect of the Commission’s 1983 report. In its resolution the Committee of Ministers limited itself to a decision to make the 1983 report public and stated that its consideration of the case was thereby completed.

4. The fourth application, Cyprus v. Turkey [GC] (no. 25781/94, ECHR 2001 IV) concerned four broad categories of complaints: alleged violations of the rights of Greek-Cypriot missing persons and their relatives; alleged violations of the home and property rights of displaced persons; alleged violations of the rights of enclaved Greek Cypriots in northern Cyprus; alleged violations of the rights of Turkish Cypriots and the Gypsy community in northern Cyprus. As regarded the missing persons and their relatives, the Court adopted the findings of fact of the Commission bearing in mind the latter’s careful analysis of all material evidence including the findings reached by it in its 1976 and 1983 reports (Comm. Rep., 4 June 1999, annexed to the Court’s judgment). Like the Commission, the Court did not consider it appropriate to estimate the number of persons who fell into the category of “missing persons”. The Commission’s findings had been summarised as follows;

“25. The Commission found that the evidence submitted to it in the instant case confirmed its earlier findings that certain of the missing persons were last seen in Turkish or Turkish-Cypriot custody. In this connection, the Commission had regard to the following: a statement of Mr Denktaş, “President of the TRNC”, broadcast on 1 March 1996, in which he admitted that forty-two Greek-Cypriot prisoners were handed over to Turkish-Cypriot fighters who killed them and that in order to prevent further such killings prisoners were subsequently transferred to Turkey; the broadcast statement of Mr Yalçin Küçük, a former Turkish officer who had served in the Turkish army at the time and participated in the 1974 military operation in Cyprus, in which he suggested that the Turkish army had engaged in widespread killings of, inter alia, civilians in so-called cleaning-up operations; the Dillon Report submitted to the United States Congress in May 1998 indicating, inter alia, that Turkish and Turkish-Cypriot soldiers rounded up Greek-Cypriot civilians in the village of Asha on 18 August 1974 and took away males over the age of 15, most of whom were reportedly killed by Turkish-Cypriot fighters; the written statements of witnesses tending to corroborate the Commission’s earlier findings that many persons now missing were taken into custody by Turkish soldiers or Turkish-Cypriot paramilitaries.

26.  The Commission concluded that, notwithstanding evidence of the killing of Greek-Cypriot prisoners and civilians, there was no proof that any of the missing persons were killed in circumstances for which the respondent State could be held responsible; nor did the Commission find any evidence to the effect that any of the persons taken into custody were still being detained or kept in servitude by the respondent State. On the other hand, the Commission found it established that the facts surrounding the fate of the missing persons had not been clarified by the authorities and brought to the notice of the victims’ relatives.”

19.  The Court held that there had been no breach of Article 2 of the Convention by reason of an alleged violation of a substantive obligation under that Article in respect of any of the missing persons (paragraph 130); that there had 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 whereabouts and fate of Greek-Cypriot missing persons who disappeared in life-threatening circumstances (paragraph 136); that no breach of Article 4 of the Convention had been established (paragraph 141); that there had 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 whereabouts and fate of the Greek-Cypriot missing persons in respect of whom there was an arguable claim that they were in Turkish custody at the time of their disappearance (paragraph 150); that no breach of Article 5 of the Convention had been established by virtue of the alleged actual detention of Greek-Cypriot missing persons (paragraph 151); and that it was not necessary to examine the applicant Government’s complaints under Articles 3, 6, 8, 13, 14 and 17 of the Convention in respect of the Greek-Cypriot missing persons (paragraph 153); that there had been a continuing violation of Article 3 of the Convention in respect of the relatives of the Greek-Cypriot missing persons (paragraph 158); and that it was not necessary to examine whether Articles 8 and 10 of the Convention had been violated in respect of the relatives of the Greek-Cypriot missing persons, having regard to the Court’s conclusion under Article 3 (paragraph 161).



C. The facts of these cases

20.  The facts are disputed by the parties.



1.  The applicants’ submissions on the facts

a.  Application no. 16064/90: Andreas Varnava

21.   The first applicant, an ironmonger, was born in 1947; he has been considered missing since 1974, having been taken into captivity by the Turkish Army during their military action in Cyprus in 1974. His wife, the second applicant, was born in 1949 and resided in Lymbia.

22.  The applicants were represented by Mr. Achilleas Demetriades, a lawyer practising in Nicosia, under an authority signed by the second applicant in her own name and on behalf of the first applicant.

23.  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. He continued his service at the outposts of Lymbia until 8 9 August 1974. On 8 9 August 1974 all the reserve soldiers of the 305 Reservists Battalion, among them the applicant, were brought to the area of Mia Milia and undertook the manning of Cypriot outposts along the front line with the Turkish military forces which extended between Mia Milia and Koutsovendis.

24.  On the morning of 14 August 1974, Turkish military forces, supported by tanks and having air cover, launched an attack against the Cypriot area where the applicant and his battalion were serving, in order to capture the area from them. The Cypriot area line of defence was broken through and the Turkish military forces began advancing towards the area of Mia Milia and as a result the Cypriot forces began retreating. During the retreat that followed, the Cypriot forces dispersed in all directions. After a while the area around was captured by the Turkish military forces and the applicant was cut off in it. As a result the trace of the applicant was lost and he is today still considered to be missing.

25.  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 and was freed, stated that at Adana prison in Turkey, where he had been taken on 31 August 1974 and held, 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 ever since then he has not seen the applicant again.



b.  Application no. 16065/90: Andreas Loizides

26.  The first applicant, a student, was born in 1954; he has been considered missing since 1974, having been taken into captivity by the Turkish Army during their military action in Cyprus in 1974. His father, the second applicant, was born in 1907 and resided in Nicosia.

27.  The applicants are represented by Dr. Kypros Chrysostomides, a lawyer practising in Nicosia, under an authority signed by the second applicant in his own name and on behalf of the first applicant.

28.  In July 1974 the first applicant was serving as a Second Lieutenant in the 1st Company of the 256 Infantry Battalion stationed at Xeros, which took part in various operations against the Turkish forces. On about 30 July 1974 the battalion moved up to the Lapithos area in order to support the Greek Cypriot forces there. The soldiers were split up into various groups and the applicant was in charge of one of these. The applicant’s group, consisting of ten men in all, including Stelios Christofi Onoufriou and Xenophon Christoforou (both now missing), as well as Nakis Nicolaou and Petros A. Hadjiyianni, was ordered to take up positions on the Lapithos heights. During their stay at Lapithos the Greek Cypriot forces were continuously attacked by the Turkish forces from all sides. The Greek Cypriot forces remained at their posts defending them until 5 August 1974.

29.  On 5 August 1974 Turkish forces launched a strong attack from all sides against the Greek Cypriot forces’ positions while other Turkish troops managed to encircle Lapithos. Because of Turkish superiority in manpower and armour the Greek Cypriot forces were ordered to retreat towards the centre of the village where the Company base was. The applicant arrived with his comrades at the centre of the village and was informed by the inhabitants that Lapithos was surrounded by Turkish troops. Then they hid their weapons in an orchard and subsequently put on civilian clothes which they found in various houses. In the afternoon of 5 August 1974 the applicant with some comrades attempted to break through the Turkish lines and arrive at the Cypriot Government controlled areas. This attempt was unsuccessful and with the exception of Nakis Nicolaou they all returned to Lapithos again where they spent the night. At about 09.00 hours on 6 August 1974 Turkish troops entered Lapithos and started extensive searches from house to house. The applicant and all his comrades were warned by the inhabitants of the village about the searches and they dispersed in order to avoid capture. Since then none of the members of the group has seen the applicant again.

30.  Nicos Th. Tampas of the 256 Infantry Battalion and leader of the first group which was manning the Lapithos heights at about 5 August 1974 in a statement mentioned that at approximately 21.00 hours on 6 August 1974, while he was walking in Lapithos looking for his comrades, he entered a warehouse. In it he found the applicant looking after Georghios Allayiotis who was wounded in the head. After talking for a little while with the applicant he went away leaving him and Georghios Allayiotis there. That was the last time that he saw the applicant. He was arrested by the Turks on 9 August 1974 while he was in Lapithos. He was detained in various prisons in Cyprus and Turkey and was released on 22 October 1974.

31.  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

32.  The first applicant, a student, was born in 1954; he has been considered missing since 1974, having been taken into captivity by the Turkish Army during their military action in Cyprus in 1974. His father, the second applicant, was born in 1929 and resided in Nicosia.

33.  The applicants are represented by Dr. Kypros Chrysostomides under an authority signed by the second applicant in his own name and on behalf of the first applicant.

34.  In July 1973 the first applicant enlisted with the National Guard in order to do his national service. He was posted with the 70 Engineers Battalion which was stationed at the site of the former British Military Hospital (B.M.H.) in Nicosia. On 5 August 1974, a section of the battalion consisting of 48 men, including the applicant, was sent to Lapithos on a specific mission in the Lapithos and Karavas area (Kyrenia district). The mission began at about noon and finished at about 18.00 hours on the same day. After receiving instructions from the group leader the men spent the night at Lapithos and intended to complete the mission the following morning.

35.  At about 04.30 hours 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) where they would all meet. The soldiers split up into three groups under the respective command of the platoon leaders. The applicant was in one of the groups which intended to withdraw following a route along the coast.

36.  The men first reached the main Nicosia Kyrenia road near the "Airkotissa" restaurant. While they were having a short rest, 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 amidst the fighting and confusion that followed, the remaining group dispersed. Three soldiers from this group, Petros Constantinou (of Morphou, now of Moniatis, Limassol), Panayiotis Alexandrou (of Pera Chorio Nisou, Nicosia) and Manolis Manoli (of Lapithos, now of Engomi, Nicosia), managed to reach their destination. Until that time when the group dispersed, none of its members including the applicant, had been killed, injured or captured by the Turks.

37.  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 the said Costas A. Sophocleous was released but not the applicant.

38.  Alexandros Papamichael, of Limassol, who was a prisoner in Adana, Turkey, 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 the same prison.

39.  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

40.  The first applicant, a photographer, was born in 1953; he has been considered missing since 1974, having been taken into captivity by the Turkish Army during their military action in Cyprus in 1974. His mother, the second applicant, was born in 1914 and resided in Nicosia.

41.  The applicants are represented by Mr. Achilleas Demetriades under an authority signed by the second applicant in her own name and on behalf of the first applicant.

42.  On 20 July 1974 the first applicant enlisted as a reservist in Nicosia. He was posted in the 1st Company of the 301 Infantry Battalion commanded by Mr. Costas Papacostas. On 21 July he telephoned his mother and told her that he was well and that he was going to be moved to the Kyrenia district. Indeed 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.

43.  At about 04.30 hours on 26 July 1974 the 1st Company came under attack from the Turkish Cypriot villages of Krini Pileri. The Turkish military forces that carried out the attack consisted of a paratroops battalion, twenty tanks, as well as high angle guns. They succeeded in breaking through the Greek Cypriot lines and infiltrated the right flank of the 1st Company in order to encircle it and enclave its men. The commander ordered the Company to regroup at the Greek Cypriot village of Sysklepos. There they were ordered by their battalion to regroup again at Kontemenos where they arrived at about 15.00 hours. 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.

44.  Mr. Nicos Nicolaou of Strovolos, who was a prisoner at Adana prison (Turkey) in September 1974, stated that one day, when the prisoners were in the yard, a Turk was calling their names. Among other names, he heard the name of the applicant. He saw the applicant whom he happened to know previously. As the applicant was going back to his cell Mr. Nicolaou noticed that he was lame in one leg. On 11 September 1974 Mr. Nicolaou was taken to Antiyiama prison (Turkey) and since then he has not seen the applicant again.


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