Third section

88.  This first applicant withdrew with his section from Lapithos towards Vasilia. They were ambushed by Turkish military forces and dispersed on account of the fighting and confusion. There has been no news of the applicant since. The Turkish forces were in sufficient control of the area to undertake a successful ambush. 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.

89.  In 2007, in the context of the activity of the Committee of Missing Persons (see below paragraphs 90-102) 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 applicant, Savvas Hadjipanteli (application no. 16071/90, see paragraphs 59-64, 76, 86-87 above) 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. Several bullets from firearms were found in the grave. The medical certificate issued 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

The United Nations Committee on Missing Persons (“CMP”)

1. Background

90.  The following paragraphs are taken from the Commission’s Report in the interstate case (paragraphs 181-190):

91.  The CMP was set up in 1981. 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.

92.  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”.

93.  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."

94.  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.

95.  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.

96.  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.

97.  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."

98.  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.

99.  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).

100.  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).

101.  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. Recent developments

102.  In 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 had also been set up. Some 160 sets of bones had been submitted for analysis and identifications of missing persons, including Savvas Hadjipanteli, had been made and were likely to continue.¹

THE LAW

I.  THE GOVERNMENT’S PRELIMINARY OBJECTIONS

103.  The Government submitted that Turkey had recognised the competence of the Commission to receive individual petitions as from 28 January 1987. Their recognition of the competence of the Court ran from 22 January 1990 and included a temporal clause limiting it to matters raised in respect of facts which occurred subsequent to the Turkish declaration. They submitted that the complaints in these applications were in essence related to spontaneous acts which had occurred more than 15 years before their acceptance of jurisdiction, in particular the deaths of eight of the nine alleged missing persons in military action in July-August 1974. The ninth applicant, a non-combatant, had unfortunately lost his life as a result of the intercommunal hostilities and reprisals which reached their peak during that period, and in which the Turkey had been in no way involved.

104.  The Government submitted that there was no question of a "continuing violation" and it was illogical and unrealistic to base such claims on imaginary suppositions concerning continuing captivity for which there was no concrete proof and in respect of which the applicants’ accounts were flagrantly contradictory. Referring in particular to Blečić v. Croatia ([GC] no. 59532/00, ECHR 2006-...), they argued that temporal competence could not be derived from the consequences flowing from facts which occurred beforehand, nor from any unsuccessful procedures seeking redress for those facts. Where death occurred prior to the acceptance of the right of individual petition, no procedural obligation could arise subsequently (Moldovan and Others v. Romania, nos. 41138/98 and 64320/01, (dec.) 13 March 2001). They argued that the same held true in this case, in particular as there was no reason why the first applicants in this case were not presumed to be dead as in other disappearance cases (e.g. Akdeniz and Others v. Turkey, no. 23954/94, 31 May 2001). Further, they pointed out, citing Markovic and Others v. Italy ([GC], no. 1398/03, § 111, ECHR 2006 ...) that the procedural obligation was first applied in the Court’s jurisprudence in McCann and Others v. the United Kingdom (judgment of 27 September 1995, Series A no. 324) and argued that it should not be retroactively applied to the events in this case.

b. The applicants

105.  The applicants disputed that there was any temporal bar. They stated that there was no evidence that the first applicants had died in 1974 or since¹ and accordingly they had to be presumed to be alive. Although the first applicants did disappear in 1974, the violations arising from and/or in connection with these disappearances have continued since then. They refuted the argument that their complaints were based on instantaneous acts in 1974 but were cases of a continuance nature which survived the temporal restrictions. They relied on the Court’s reasoning as regarded the disappearances in 1974 in the inter-State case (paragraph 18(4) and (5) above).

106.  They submitted that the obligation to carry out a thorough and effective investigation into a complaint of a disappearance while in the custody of security forces continued until an explanation as to what happened to the missing detainees was forthcoming. The respondent Government was under a continuing obligation therefore to clarify what happened to the relatives of the second applicants. This was based on the effective control exercised over the victims by the respondent Government and the need to ensure effective accountability for the exercise of such control and to avoid impunity. The same rationale applied to the obligation to provide an effective investigation under Article 2 as the applicants were clearly in a life-threatening situation. They referred to evidence that the Turkish security forces on occasion killed civilians and detained fighters and that Turkish Cypriot militia tended to kill those prisoners handed over to them (ibid, paragraph 155) or leave the injured to die. The State’s obligation to protect the right to life under Article 2 was engaged in these circumstances, and this was also a continuing obligation. Even if there was insufficient evidence to conclude that one or more of the first applicants were detained by the respondent Government that Government were still responsible as they were under the effective control of their forces or forces for which they were responsible and the situation was life-threatening.

107.  The second applicants’ complaints that they were victims of inhuman treatment was also based on the continuing lack of information as to what happened to their relatives and the continuing lack of co-operation with investigative mechanisms on the part of the Turkish authorities, including the authorities in northern Cyprus.

2. The Court’s assessment

108.  The Court recalls that, in declaring these applications admissible on 14 April 1998, the Commission reserved the final determination of the question of whether the applications relate to facts covered by the temporal limitation in the Turkish declaration under former Article 25 of the Convention for a later stage in the proceedings.

109.  It would note that the objection to temporal jurisdiction is closely connected with the objection raised as to compliance with the six month rule (see below) and is principally based on the argument that, as the first applicants must be presumed to have died at the time of the hostilities in 1974, at which time they were last seen, the complaints concerned instantaneous acts that occurred long before Turkey ratified the right of individual petition and which therefore are not subject to the Court’s temporal jurisdiction. The Court accepts that it is not competent to examine applications alleging violations which are based on facts having occurred before the critical date (Blečić, cited above, § 72) and that where killings of persons occur before the date of ratification it had no competence ratione temporis to examine those deaths.

110.  However the question arises in the present applications whether the alleged violations are of a continuing nature and thus have subsisted, and continue to subsist, since the date of ratification by Turkey of the right of individual petition on 28 January 1987.

111.  The Grand Chamber has already had occasion to consider whether complaints raised by Cyprus concerning 1,485 Greek Cypriot missing persons disclosed a continuing violation. In its Cyprus v. Turkey judgment (cited above), it found that the evidence bore out the claim that many persons now missing had been detained either by Turkish or Turkish Cypriot forces during the conduct of military operations and in a situation which could be described as life-threatening and that the missing persons had disappeared against that background. It held that the failure of the authorities of the respondent State to conduct an effective investigation aimed at clarifying the whereabouts and fate of the Greek-Cypriot missing persons who disappeared in such life-threatening circumstances (see paragraphs 133-136) disclosed such a continuing violation.

112.  The inter-State case concerned the phenomenon of disappearances, which, although linked to a specific point of time when the missing person was last seen and the surrounding circumstances, may be distinguished from conventional cases of use of lethal force or unlawful killings which are dealt with under Article 2. In the latter cases, the fate of the victim is known; the former are characterised by an ongoing situation of uncertainty and, not infrequently, callous inaction, obfuscation and concealment (see, amongst many examples, Kurt v. Turkey, judgment of 25 May 1998, Reports of Judgments and Decisions 1998 III, §§ 127-128, Timurtaş v. Turkey, no. 23531/94, §§ 84,97, ECHR 2000 VI § 84, 97, Akdeniz and Others v. Turkey, no. 23954/94, § 93, 31 May 2001, Taş v. Turkey, no. 24396/94, §§ 80, 90, 14 November 2000; Imakeyeva v. Russia, §§ 150 165, 9 November 2006, Baysayeva v. Russia, §§ 119,127 April 2007). The Court is therefore not persuaded that the principles set out in Blečić and Moldovan exclude its temporal jurisdiction in the present cases or were intended as amending the approach taken in the inter-State case to disappearances. Nor does it find that the respondent Government is assisted by reliance on a passage in the Markovic case (cited above) which concerned the existence of a right in domestic or international law for the purposes of the application of Article 6 of the Convention. Further, while it may be true that the procedural obligation under Article 2 was first elucidated in the McCann case in 1995 (cited above), it was nonetheless applied in that case to events in 1988. However, even assuming therefore that an interpretation of a Convention provision cannot be retrospective in its application, this argument does not prevent an obligation of a continuing nature from being recognised as existing after that date.

113.  Accordingly, on this aspect, the Court finds no reason to differ from the conclusions reached in the inter-State case as concerns the present applications. To the extent therefore that the facts of these cases disclose a continuing obligation under Article 2, it has competence ratione temporis. It therefore rejects the respondent Government’s preliminary objection on this ground and will examine further the existence of any continuing obligation below.

B. Six months’ rule (Article 35 § 1 of the Convention)

1.  The parties’ submissions

a. The respondent Government

114.  Referring in particular to the cases of Karabardak v. Cyprus (no. 76575/01, (dec.) 22 October 2002) and Baybora v. Cyprus (no. 77116/01, (dec.) 22 October 2002), the respondent Government considered that the applications should be rejected as out of time. In those cases, no issue of a continuing situation arose and the applicants had waited too long before bringing their cases before either the CMP or Strasbourg. These applicants had also delayed too long. They should have brought their applications to Strasbourg within six months of 27 January 1987, but did not do so for some four years.

115.  They considered that the violations were of a continuing nature to which the six month rule did not apply. They also distinguished the cases relied on by the Government, noting, inter alia, that the present allegations had been brought to the attention of the respondent Government from 1974 onwards in the inter-State cases, as well as in lists notified to it by the end of 1974 at the latest, and that in any event the CMP had been largely inoperative until 1990.

2. 
   The Court’s assessment
   

117.  The Court would observe that there are differing types of “continuing situations”; there are cases where an applicant is subject to an ongoing violation, due for example, to a legislative provision which intrudes, continuously, on his private life (see e.g. Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45); and there are cases, such as disappearances, where the continuing situation flows from a factual situation arising at a particular point in time. In the latter, it cannot be the case that the relatives of a person that has gone missing at a specific point in time can wait indefinitely before bringing the matter either to the attention of the domestic authorities or this Court. As has often been said, 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 (e.g. Worm v. Austria, judgment of 29 August 1997, Reports 1997–V, at p. 1547, §§ 32-33). It marks out the temporal limits of supervision carried out by the Court and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (Walker v. the United Kingdom, (dec.), no. 34979/97, ECHR 2000 I). It is not in the interests of the practical and effective functioning of the Convention system, which is of crucial importance to the protection of the fundamental rights and freedoms, that the Court be called upon to deal with stale complaints. The greater the lapse of time the more problematic any attempted examination of the facts and issues becomes. The effect on the evidence and the availability of witnesses inevitably risks rendering a belated assessment unsatisfactory or inconclusive, by failing to establish important facts or put to rest doubts and suspicions (see, mutatis mutandis, Finucane v. the United Kingdom, no. 29178/95, § 89, ECHR 2003 VIII)..

118.  The Court therefore considers that applicants, even in disappearance cases, must act with reasonable expedition in bringing their cases before it for examination and have sufficient explanation, consonant with the purpose of Article 35 § 1 of the Convention and the effective implementation of the Convention guarantees, for long periods of delay. In the Karabardak and other cases, the delay of over thirty years was not accounted for. In contrast, as concerns the present cases, the Court recalls that they were introduced on 25 January 1990, some three years after the right of individual petition became applicable to Turkey on 27 January 1987. It is evident that, meanwhile, the disappearances had been made known to the relevant authorities from 1974 onwards in the series of inter-State cases brought by Cyprus concerning the missing persons as a whole. The reports of the Commission in these cases, although subject to discussion before the Committee of Ministers, were not made public throughout this period and the relatives of missing persons were unaware of the findings which were being made. The Court notes that it was not until 22 January 1990 that Turkey recognised the jurisdiction of the old Court to examine applications, with the possibility that entailed of a public hearing and a binding judgment in which an award of just satisfaction might be made. The present applications were introduced three days after this. Accordingly, there is, in the Court’s opinion, no element of unreasonable delay in bringing these individual applications to Strasbourg in the circumstances. Whether applications introduced at a later date, in particular, long after the Court’s inter-State judgment had made public findings on the disappearances as whole, would comply with the requirement for due expedition remains to be decided in such cases as may arise.

119.  The Court rejects the respondent Government’s preliminary objection under this head.

II.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

120.  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.”