Third section

121.  The applicants did not accept that any of the first applicants had died (save in the case of Savvas Hadjipanteli), raising no complaint of a substantive violation of Article 2. They submitted that the respondent Government was under a positive obligation to carry out an investigation into their fate since they were threatened with life-threatening circumstances during the military operations in which they were last seen and which were initiated by the respondent Government. Given that the first applicants were taken into custody, there was an additional obligation on Turkey to account for the continued existence of these people. This was a continuous obligation broader than the obligation to investigate. Given the lapse of time and the absence of any information about these missing persons who must be presumed to be alive as there was no evidence to the contrary, the obligation to conduct an effective investigation was even more pressing. They did not consider that any recent developments as regarded 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. Insofar as the remains of Savvas Hadjipanteli (application no. 16071/90) had been discovered, they maintained their arguments that a violation arose.

2. 
   The respondent Government
   

123.  They further submitted that the procedural obligation under Article 2 did not apply to killings which occurred as a result of acts of war inside fighting zones. There also had to be credible evidence that agents of the State were involved, which was not the case in these applications. Furthermore, the possibility of obtaining help through an investigating body such as the CMP, which was the most appropriate body for such investigations, could also fulfil the duty to investigate. The Greek and Turkish Cypriots had both agreed to the CMP procedure and it was not practical or logical, if not futile, to expect Turkey to carry out its own independent investigations in addition. No credible investigation could be expected to be carried out unilaterally without the co-operation of the other concerned parties.

124.  Concerning recent developments, the Government stated that in the previous two years the CMP had become an effective investigative body, with financial, moral and logistical support, pointing to the progress made in locating and identifying bodies of those who had been missing on both sides.

3.  The Government of Cyprus

125.  The intervening Government submitted that the respondent Government had been responsible for protecting the right to life of the first applicants as they were under the actual or effective control of the forces of the respondent Government and the situation in which the applicants found themselves was life-threatening. There was, in their view, an obligation to ensure that systems were in place to seek without delay the wounded, sick and dead, to investigate a killing where there was reason to believe it had not occurred during combat and to account for all detainees in the power of their own forces or of other forces over whom they exercised control.

126.  Where it was concluded beyond reasonable doubt that a person had been detained (as they considered was the case concerning applicants Thoma and Hadjipanteli) and had been taken to a place of detention in the control of the authorities the State was required to produce the detainee alive or to provide a plausible explanation as to how he met his death, failing which there was a violation of the obligation to protect life. There was no evidence that any of the applicants were killed during the fighting. The evidence showed that all the first applicants were in areas under the actual or effective control of the Turkish security forces or of other forces for whom they were responsible. As these forces and the Turkish Cypriot militia failed to treat the wounded and often killed those who came under their control, there is no doubt that if they were detained the applicants were in a life-threatening situation (see inter alia Comm. Rep. § 180, concerning killings by Turkish-Cypriot fighters and the Turkish army during so-called cleaning-up operations). The respondent Government should have ensured operational mechanisms of protection to avoid the risk of unlawful activities and to provide for the proper handling, medical treatment and recording of prisoners of war and civilians, as well as an effective system of investigation to enable military judicial personnel to investigate allegations of unlawful conduct and effective measures, such as court martial proceedings, to enforce the rules governing treatment of prisoners of war and civilians. The inaction of the respondent Government in the face of serious allegations indicated that such violations occurred as a matter of practice.

127.  The Government further submitted that the respondent Government had failed to carry out a thorough and effective investigation into the disappearances of the missing persons in life-threatening circumstances. There was no evidence that any investigation had been undertaken by the Turkish authorities into the fate of the missing applicants e.g. no evidence of any questioning of the Turkish-Cypriot militia in the relevant areas at the relevant time. The scope of the UN CMP was too narrow to constitute an investigation for the purposes of Article 2. This failure also disclosed a practice. As regarded the finding of the remains of Savvas Hadjipanteli, they submitted that did not bring to an end the continuing obligation to provide an effective investigation, since the circumstances around the death and the identity of any perpetrators had still not been elucidated.

128. The fate of the nine missing men, and whether they have been unlawfully killed, is largely unknown. While the remains of Savvas Hadjipanteli have been found very recently, the circumstances surrounding the death remain unclarified. Nonetheless, a procedural obligation 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. The Court recalls that it was established in the inter-State case that the evidence bore out the applicant Government’s claim that many persons who went missing in 1974 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. This was found to disclose a life-threatening situation. The clear indications of the climate of risk and fear obtaining at the material time, and of the real dangers to which detainees were exposed, was found to disclose a life-threatening situation.

129.  The nine missing persons in the present case disappeared against this same background. The Court notes that the eight combatants were last seen in areas surrounded or about to be overrun by Turkish forces, one of them, Panicos Charalambous, in a wounded condition. Statements from several witnesses attested to seeing the civilian missing person, Savvas Hadjipanteli, taken away by Turkish-Cypriot fighters. Given previous findings and the circumstances of the disappearances at a time and at locations which were, or very shortly thereafter were, under the control of the forces of the respondent State or those acting under their aegis, the Court considers that an obligation arises for the respondent State to account for their fate (see, mutatis mutandis, Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005 II (extracts).

130.  While it may be noted that in the context of the individual cases arising out of events in south-east Turkey and the conflict in the Chechen Republic, where there were, at the relevant times, numerous reported instances of forced disappearances, individual applicants have nonetheless been required to give an evidential basis for finding that their relatives were taken into some form of custody by agents of the State (see e.g. Kurt v. Turkey, judgment of 25 May 1998, Reports of Judgments and Decisions 1998 III, § 99, Akdeniz and Others v. Turkey, no. 23954/94, § 84, 31 May 2001, Sarli v. Turkey, 24490/94, 22 May 2001; Imakayeva v. Russia, no. 7615/02, § 141, ECHR 2006 ... (extracts)), the Court considers that the situation in the present case may be distinguished. A zone of international conflict where two armies are engaged in acts of war per se places those present in a situation of danger and threat to life. Circumstances will frequently be such that the events in issue lie wholly, or in large part, within the exclusive knowledge of the military forces in the field, and it would not be realistic to expect applicants to provide more than minimal information placing their relative in the area at risk. International treaties, which have attained the status of customary law, impose obligations on combatant States as regards care of wounded, prisoners of war and civilians¹; Article 2 of the Convention certainly extends so far as to require Contracting States to take such steps as may be reasonably available to them to protect the lives of those not, or no longer, engaged in hostilities (see, mutatis mutandis, Ertan Özkan v. Turkey, no. 47311/99, §§ 301, 307-308, 9 October 2003). Disappearances in such circumstances thus attract the protection of that provision.

131.  As regards the compliance with the obligation under Article 2 in respect of the disappearances, the Court recalls its previous findings that it cannot be discharged through the respondent State’s contribution to the investigatory work of the CMP. Whatever its humanitarian usefulness, the CMP does not provide procedures 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 (Cyprus v. Turkey, §§ 134-136). There have been no developments, legal or factual, which change this assessment.

132.  While it is true that the remains of Savvas Hadjipanteli have recently been discovered, this does not demonstrate that the CMP has been able to take any meaningful investigative steps beyond the belated location and identification of remains. Nor, given the location of Savvas Hadjipanteli’s remains in an area under TRNC control after a lapse of some thirty-two years, has this event displaced the respondent Government’s accountability for the investigative process during the intervening period.

133.  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 the nine men who went missing in 1974.

III.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

134.  Article 3 provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

135.  The second applicants submitted that they had been waiting for news of their loved ones for over 25 years which had caused them daily anguish and distress, well above any level of severity required to disclose inhuman and degrading treatment. Particular cruelty was shown in the case of the second applicant in no. 16071/90 who was married with three children and did not marry again because of the uncertainty of her husband’s fate.

136.  The Government submitted that none of the first applicants had been subjected to forcible detention and no issue arose.

137.  All the second applicants had, in their view, been victims of inhuman treatment. Three were wives of the missing men, and six the mothers or fathers (though other relatives have taken over as applicants in some cases). They have all lived with uncertainty and anguish for over 25 years. The wives have never remarried as they do not see themselves as widows. They have never given up trying to find out what happened and their anguish is worsened by the fact that there are people with information who are not revealing what they know (citing Comm. Rep, § 157, where it was stated that information about former Turkish Cypriot commanders was being concealed) and the lack of co-operation of the Turkish forces with attempts to obtain information (Dillon Commission, p. 18, second para.). This all produced helplessness and frustration in the second applicants. Further, the situation disclosed inhuman treatment inflicted as a matter of practice.

138.  The Court refers to the principles set out and the findings in the inter-State case (cited above, §§ 155-158). No point of distinction arises in the present case. The silence of the authorities of the respondent State in the face of the real concerns of the second applicants, relatives of the nine missing men, attains a level of severity which can only be categorised as inhuman treatment within the meaning of Article 3. It therefore concludes that, during the period under consideration, there has been a continuing violation of Article 3 of the Convention in this respect.

IV.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

139.  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.”

140.  All the first applicants were last seen alive in an area which soon thereafter came under the control of the respondent Government. There was therefore a presumption of Turkish responsibility for their fate and the unaccounted disappearance of such detained persons amounted to a grave breach of Article 5. There was an obligation on the Government to conduct a “prompt and effective investigation” in respect of any persons for whom an arguable claim had been brought forward that they were in Turkish detention at the time of their disappearance in 1974. The failure to provide such an investigation disclosed a continuing breach.

141.  The applicants, referring to the Commission’s report 8007/70, considered that the while the CMP was useful for humanitarian purposes it was not by itself sufficient to meet the standard of an effective investigation due to the narrow scope of its investigations and the delay.

2. The respondent Government

142.  The Government submitted that none of the first applicants were 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.

143.  They submitted that the first applicants had been detained by Turkish security forces, which detention did not fall within any of the specified grounds in Article 5 § 1; that they had not been brought before a judicial officer as required by Article 5 § 3; and that the refusal to acknowledge the detention rendered nugatory the fundamental safeguards of Article 5 § 2. There was a wide practice of unlawful detention without safeguards against “disappearances” which was an aggravated violation.

144.  The evidence established an arguable claim that the first applicants had been detained by or had been within the effective and exclusive control of the Turkish security forces or forces for whom they were responsible, on the last occasion on which they were seen. Clarification as to what happened to them depended on the respondent Government and persons within their control. They referred to the need for the respondent State to provide a credible and substantiated explanation of what happened to them. There was no evidence of any system of recording those who were detained. (Rep., § 178) or indication that there was even an official or complete list of prisoners (none was provided to the ICRC). Nor has there been any prompt or effective investigation into the fate of the first applicants. The investigation by the CMP did not qualify for reasons given in the Commission Report (§§ 210-211). Further the evidence in the four inter-State cases concerning missing persons established that there was an arguable claim that large numbers of Greek Cypriots had been unlawfully detained and that there was routine failure to record those detentions and total failure to carry out any prompt or effective investigations.

B.  The Court’s assessment

145. Referring to its findings above and those in the inter-State case (paragraphs 148-151), the Court observes that it has not been established that during the period under consideration in this application the nine missing men were actually being detained by the Turkish or Turkish Cypriot authorities and no breach has thereby been established in that respect. However, 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 whereabouts and fate of the nine first applicants, in respect of whom there is an arguable claim that they had been deprived of their liberty at the time of their disappearance.

V.  ALLEGED VIOLATION OF ARTICLES 4, 6, 8, 10, 12, 13 AND 14 OF THE CONVENTION

146.  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).

147.  The Court notes that the applicants have not maintained, or pursued in their recent submissions their complaint under Article 4. Having regard also to the approach adopted in the inter-State case concerning complaints under the above provisions (Cyprus v. Turkey, cited above, §§ 141, 153 and 161) and the violations found in the present case, the Court does not consider it necessary to examine these matters further.

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

148.  Article 41 of the Convention 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.”

149.  The applicants reserved the right to file a claim for pecuniary damages until such time as the Court issued findings of violations.

150.  For non-pecuniary damage, the applicants claimed under this head 341,550 euros (EUR) converted in Cyprus pounds (CYP) for the first applicants, such sums to be held by the second applicants on their behalf and the behalf of their heirs; and EUR 455,400 for the second applicants or their successors (namely EUR 5,692.5 for every year of violation between 1987-2007 in respect of each violation). They also claimed additional damages to reflect the special circumstances of the violations (the grave systematic nature of the breaches and their duration), namely CYP 225,000 to 1,450,000 respectively.

151.  They also requested that the Court direct the respondent Government to take specific remedial measures so as to ensure that they conformed to their obligations under the Convention and that the Government be required to pay CYP 24 for every day between the date on which the judgment became final and the implementation of the said remedial measures, such rate doubling every twelve months.

152.  The respondent Government submitted that it was not appropriate to make any award for pecuniary damage.

153.  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 unprecedently high.

c. The intervening Government’s comments

154.  They submitted that the Court should seek to make an order that ensured compliance by the respondent Government with their obligations and that the continuing nature of the violation should be taken into account in any award.

155.  In light of the breaches of the procedural aspects of Articles 2 and 5, the Court finds no basis for any pecuniary award and declines to adjourn this matter.

156.  As concerns non-pecuniary damages for these breaches and that under Article 3 as concerned the second applicants, the amounts claimed are very high. While the Court notes the applicants’ concern to induce the respondent Government to take action as promptly as possible under pain of increased damages, it finds no precedent for such an ongoing, indefinite and prospective award in its case-law and perceives no basis of principle on which to embark on such a course in the present case. The Court would also emphasise that Article 41 of the Convention does not provide a mechanism for compensation in a manner comparable to domestic court systems nor for imposing punitive sanctions on respondent Governments (Orhan v. Turkey, no. 25656/94, § 448, 18 June 2002). Although the trigger for the Court’s jurisdiction under Article 34 of the Convention is that an individual or private body can claim to be a victim of a breach of their rights, the Court serves a purpose beyond the individual interest in the setting and applying of minimum human rights standards for the legal space of the Contracting States. The individual interest is subordinate to the latter, as shown by the Court’s competence to continue the examination of an application, even if the applicant no longer wishes to pursue his case, where respect for human rights so requires (Article 37 § 1 in fine).

157.  The issues in this case have already been subject to thorough examination in the inter-State case in which it may be noted that the Grand Chamber adjourned consideration of the issue of the possible application of Article 41. The Court cannot but be sensitive to the fact that the present individual applications derive from a situation in which over 1,400 people were declared missing on the Greek-Cypriot side and some 500 claimed missing on the Turkish-Cypriot side. In the context of the inter-State case it must also take cognisance of the ongoing execution function being performed by the Committee of Ministers (see interim resolution ResDH(2007)25 adopted on 4 April 2007), in which respect the crucial element will be the provision, finally, of measures which enable light to be shed on the fate of as many of the missing men, women and children as may be possible.

158.  In light of the above, the Court does not find it appropriate or constructive, or even just, to make additional specific awards or recommendations in regard to individual applicants.

159.  In the unique circumstances of these cases therefore, the Court finds that the finding of violations constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants.