Third section

160.  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 (16073/90) claimed CYP¹ 4,322. 66 for each of the applications, plus CYP 548.40 for value-added tax (VAT).

161.  The representatives for Andreas and the heirs of Loizos Loizides (no. 16065/90), Philippos Constantinou and Demetris K. Peyiotis (16066/90) Panicos and Chrysoula Charalambous (no. 16069/90) and Savvas and Androula Hadjipanteli (no. 16071/90) claimed CYP 4,596.66 for each of the applications plus 589.59 for VAT.

162.  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.

163.  The Court observes that the applicants’ observations were on each occasion submitted in two batches, from the two separate legal representatives. They were however largely identical and it appears that that there was considerable overlapping and co-ordination of work. Given the lack of any oral procedure but taking into account the varying rounds of written observations, it awards the applicants’ representatives EUR 4,000 in respect of each application.

C.  Default interest

164.  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

1.  Dismisses by six votes to one the Government’s preliminary objections;

(a)  that the respondent State is to pay the applicants within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros) per application in respect of costs and expenses, plus any tax that may be chargeable;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
9.  Dismisses unanimously the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 10 January 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago Quesada Boštjan M. Zupančič
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinion of Judge Gönül Başaran Erönen is annexed to this judgment.

B.M.Z.
S.Q.

SEPARATE OPINION OF JUDGE GÖNÜL BAŞARAN ERÖNEN

A. I voted against the finding of the majority in the Chamber rejecting the respondent Government’s preliminary objection that the Court did not have jurisdiction ratione temporis to entertain the case. Recent judgments and decisions have developed the case-law on jurisdiction ratione temporis, especially in disappearance cases. One such case is Blečić v. Croatia ([GC], no. 59532/00, ECHR 2006 ...), a judgment of the Grand Chamber. Having read the reasoning behind the preference not to apply that precedent to the case before us, I unfortunately found myself unable to agree that it did not apply or could not be followed in the present case, even in spite of the findings in the fourth inter-State case on the issue. As the justifications used by the majority of my colleagues to support their conclusions of continued violations of Articles 2, 3, and 5 can only be valid if the case falls within the temporal jurisdiction of this Court, I do not propose to commit myself to giving an opinion on the merits of the case, since I do not consider that the case falls within the Court’s competence. I prefer to follow the recent case-law on the matter before us, and moreover, in the light of recent judgments, I do not agree that the allegations of violations were of a “continuing nature”. Additionally under this head, considering the lapse of time from 1974 to the date of the application, the more logical presumption of death, not the illogical “presumption of being alive”, should have been adopted in the present case and, that being so, the disappearance could not be considered to be of a continuing nature, creating a continuing obligation under Article 2 to conduct effective investigations. This view is in line with recent Court judgments.

commit myself to voicing any views on the findings of a violation under Article 3 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 whereabouts and fate of the nine applicants, in respect of whom it has been found that there is an arguable claim that they had been deprived of their liberty at the time of their disappearance.

Series A no. 25), I do not feel that the majority of my learned colleagues have delved as deeply as they should have done into the proof of the factual allegations in these individual applications, especially when considering the recent development of pertinent case-law on the ratione temporis principle in disappearance cases.

The conclusions drawn on the missing persons issue at the close of the present case seem to stem from the perspective of the inter-State case position. In other words, in line with the reasoning in the fourth inter-State case, in the absence of proof to the contrary, the presumption of being alive has been the basis for the Court’s hypothesis in the present application (see, in this respect, paragraphs 111 and 113).

Whilst, in paragraph 136 of the Cyprus v. Turkey judgment, the Court held that

“[h]aving regard to the above considerations, ... there ha[d] 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”

it nevertheless refrained from concluding that those persons had to be presumed dead (§§ 127-29).

The Grand Chamber in the Cyprus v. Turkey case, in view of the failure by the respondent Government to participate and appear in those proceedings, quite properly “decided to proceed with the hearing, being satisfied that such a course was consistent with the proper administration of justice” (§ 12; see also § 58). In the context of that application, the fact remains that when considering and assessing what facts and evidence on the missing persons’ issue was before it at the time, whilst doing all that it could to ensure fairness, the Court was nonetheless faced with one party’s absence from the proceedings and oral hearings, albeit by the respondent Government’s own choice. In accepting, however, that there was no “equality of arms” the Court noted in paragraph 106 of the Cyprus v. Turkey judgment as follows:

“The Court observes that where it was impossible to guarantee full respect for the principle of equality of arms in the proceedings before the Commission, for example on account of the limited time available to a party to reply fully to the other’s submissions, the Commission took this factor into account in its assessment of the evidential value of the material at issue. Although the Court must scrutinise any objections raised by the applicant Government to the Commission’s findings of fact and its assessment of the evidence, it notes that, as regards documentary materials, both parties were given a full opportunity to comment on all such materials in their pleadings before the Court, including the above-mentioned aide-mémoire, which was admitted to the file by virtue of a procedural decision taken by the Court on 24 November 1999.”

Understandably, the Court in Cyprus v. Turkey reached the conclusions it did on the basis of other evidence before it, which included the Report of the Commission of 4 June 1999. Nevertheless, and with a period of over six years having elapsed since that judgment, I feel that such a situation as the one the Court faced in that case alone made it all the more imperative in the present application today to interpret the decision of the Court in the Cyprus v. Turkey case in line with contemporary case-law of a similar value and weight, thereby assisting the Court in expounding and developing the findings and inferences that have been made previously.

I must admit that I am not satisfied as to why recent settled Court precedents were not followed in the present application. While accepting 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” (paragraph 109) the question the Court poses is whether the alleged violations in the present application are of a continuing nature, subsisting from ratification to the present date.

My colleagues proceeded from the point of view that the Grand Chamber judgment in Blečić, dealing with the altogether different issue of what has been termed an “instantaneous act”, could not apply since the sui generis position of “disappearances” in Cyprus invoked a situation which was continuing in nature and hence still subsisted – thus effective investigation obligations subsisted and hence a violation or procedural obligation under Article 2 subsisted.

However, I found Blečić quite clear in its findings. The Court stated in paragraph 75 of that judgment:

“In Moldovan and Others and Rostas and Others v. Romania ((dec.), nos. 41138/98 and 64320/01 (joined), 13 March 2001) the applicants complained inter alia, under Article 2 of the Convention, that the Romanian authorities had failed to conduct an effective investigation into the killings of their relatives, which had taken place before ratification. The Court held that the alleged obligation to conduct an effective investigation was derived from the aforementioned killings whose compatibility with the Convention could not be examined. It therefore declared that complaint incompatible with the Convention ratione temporis.”

The “appropriate test” as enunciated in Blečić is stated in paragraph 77:

“It follows from the above case-law 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, 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.” (emphasis added)

The Court then went on to apply this “appropriate test” to the Blečić facts.

A more recent judgment confirming and implementing the Blečić position, where the Court declared an application inadmissible, is that of Kholodovy v. Russia ([dec], no. 30651/05, 14 September 2006):

“Admittedly, the investigation into R. Kholodov’s death and the trial of putative perpetrators continued long after the ratification of the Convention by the Russian Federation. However, 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 its temporal jurisdiction.”

Even leaving aside Moldovan, there is the recent Teren Aksakal v. Turkey judgment (no. 51967/99, ECHR 2007 ... (extracts)) where, in the partly dissenting opinion of Judges Türmen and Mularoni, the Blečić principle has been once again been followed:

“It is true that the Blečić judgment concerns Article 8 of the Convention. However, in the above-cited paragraphs the Court has established a general principle regarding its temporal jurisdiction that encompasses all the Articles of the Convention including Articles 2 and 3. ...

Therefore, the majority’s reasoning in the present case, separating the investigation from the constitutive fact, i.e. the killing of the deceased, and concluding that the investigation remained within the temporal jurisdiction of the Court, is clearly in contradiction with the finding of the Grand Chamber in Blečić.”

How should the “appropriate test” in Blečić have been applied in this present case?

What is the “constitutive element” in this case? The date of the disappearance is the constitutive element. It is the instantaneous act that created the interference. This is so because it is the only fact that has been evidentially proved to exist. In other words this is the factual situation as it stands. We see before us as a fact that since the disappearances of the applicants occurred before the date of ratification the Court has no competence ratione temporis to examine either the disappearances or the alleged failure to comply with an obligation to conduct an effective investigation which is derived from those disappearances.

The principle enunciated was not limited to the facts of the Blečić case alone but was of general application and was one which I feel could easily have been applied in the present case.

Each case is based and decided upon relative facts pertinent to that case alone. Unless ruled to be otherwise, the principles enunciated can be applied or modified in determining the specific case, but the legal principles enunciated by the Court do not change simply because the facts are different. The law is applied in accordance with all proven facts before the Court in a given case.

Noting that the Grand Chamber in Silih v. Slovenia (no. 71463/01) will hopefully soon be giving a decision on the ratione temporis principle, my stance on the issue in relation to the present application remains as it is and is what I feel it should be, in accordance with recent case-law.

In order to complete the reasoning in my opinion on jurisdiction ratione temporis, I now turn to the judgments of the Court relating to the presumption of death. The Court, in the case of İpek v. Turkey (no. 25760/94, § 168, ECHR 2004 II (extracts)), concluded as follows:

“For the above reasons, and taking into account that no information has come to light concerning the whereabouts of the applicant’s sons for almost nine and a half years, the Court is satisfied that Servet and İkram İpek must be presumed dead following their unacknowledged detention by the security forces.” (emphasis added)

In the case of Çiçek v. Turkey (no. 25704/94, 27 February 2001) the Court concluded there was a presumption of death as there had been no information on the whereabouts of the applicant’s son for almost six and a half years. Similarly, in the more recent Akdeniz v. Turkey case (no. 25165/94, 31 May 2005), the Court again concluded that a period of 11 years was sufficient to accept the presumption of death.

In the Timurtaş judgment (Timurtaş v. Turkey, no. 23531/94, § 83, ECHR 2000 VI) the Court gave the following assessment:

“In this respect the period of time which has elapsed since the person was placed in detention, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time goes by without any news of the detained person, the greater the likelihood that he or she has died.”

This being so, and in the light of the general principle in Blečić with regard to temporal jurisdiction, the most recent case-law confirms that a person missing in a life-threatening situation about whom there has been no information for a substantial period of time is to be “presumed dead”. This is a presumption that the Court is now able to draw following the authoritative Grand Chamber precedent.

In the present case, the period since the applicants disappeared in life-threatening conditions, that is to say, during the war in 1974, is 33 years. It follows that the disappeared first applicants must be presumed to have died long before 28 January 1987, the date from which the Turkish Government authorised the Commission to receive individual petitions. Similarly, therefore, since the presumption of death situation occurred before the date of ratification, the Court has no competence ratione temporis to examine the alleged failure to comply with an obligation to conduct an effective investigation which is derived from the date of this presumption of fact, prior to ratification. Any investigation conducted before ratification but continued after ratification does not change the lack of competence (see Blečić, § 77). In short, with a presumption of death established prior to 1987, no allegation of a violation of a continuing nature subsisting up to the date of ratification can be upheld.

My conviction is that the only logical inference that could be drawn from the facts that have actually been proven is the existence of the presumption of death. Simple lack of evidence as to what actually happened to the missing persons does not preclude this inference from being drawn. Considering the circumstances that existed at the time of their disappearance, unless rebutted by proof of their being alive, the only inference that should have been drawn was one of ‘presumed dead’. This has not been the case. I am sure that my colleagues will agree with me that it is not contradictory to reach a different conclusion in respect of individual applicants from that reached on the collective complaints in the inter-State case. Equally so, the onus and degree of proof in individual applications is much more demanding than in the inter-State cases. With the actual facts as presented and proved, and also in line with recent case-law, the Court is now able to draw a different inference or presumption than the one drawn in the fourth inter-State case. I cannot find myself agreeing with the presumption made by the majority in the Chamber, although I perceive that it stems perhaps from an admirable intention to assuage the feelings of loss.

The inter-State case judgment of 2001, while of general application on the missing persons’ issues and concerning the “phenomenon of disappearances”, in no way precludes us from benefiting also from more recent case-law on how to approach and solve issues in disappearance cases which carry an “ongoing situation of uncertainty” (see paragraph 111). The fourth inter-State case provided guidance in reaching the decision arrived at in the present application. This, of course, I accept. But one must not forget that in such individual cases as those before us where the element of personal, subjective views in the applicants’ assertions is prevalent, discharging the onus of proof of such alleged obligations is all the more exacting and stringent in application than it would be in inter-State cases. I also humbly concede that it is probably easier to follow the inter-State case reasoning on missing persons, than create a new precedent in the Cyprus missing persons issue as a whole.

The facts on which precedent-making decisions are based may be different, yet I am of the opinion that, unless there are compelling reasons not to do so, new precedent-creating case-law relevant to the subject should have been followed here. I am not convinced that there are such reasons in the present cases not to follow the principles enunciated in Blečić.
On the whole, I am not satisfied there was substantial evidence beyond reasonable doubt which raised and supported the improbable assertion that the applicants could still be alive. In Ireland v. the United Kingdom (cited above), Judge Zekia, in a separate opinion, dealt briefly with the principle underlying the onus of proof and the discharge of such onus in a case where a Contracting State is alleged to have violated its obligation under an Article of the Convention:

“On whom lies the burden to discharge the onus of proof.

When a Contracting State is alleged to have committed a violation of a specific Article or Articles of the Convention by disregarding its obligation under it and such allegation is denied, surely there is a burden of proof to be discharged in some way or other in order to substantiate such accusation before an authorised organ of the Convention. What is material here is not whether a burden of proof does exist or not - it is an elementary rule of justice that it does exist and the fact that the presumption of innocence is codified by Article 6 para. 2 (art. 6-2) of the Convention is a strong indication of it - but by whom and how such onus should be discharged. ... I would say that, at the end of proceedings, the Commission or the Court has, on the totality of evidence and material before them, to decide whether the burden of proof required to substantiate an allegation of contravention of the Convention by the respondent State has been discharged or not.”

Similarly, the Court in the Cyprus v. Turkey judgment noted in paragraphs 112-13 (see also §§ 114-17):

“112.  The Court also observes that in its assessment of the evidence in relation to the various complaints declared admissible, the Commission applied the standard of proof ‘beyond reasonable doubt’ as enunciated by the Court in its Ireland v. the United Kingdom judgment of 18 January 1978 (Series A no. 25), it being noted that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (ibid., pp. 64-65, § 161).

  113.  The Court, for its part, endorses the application of this standard, all the more so since it was first articulated in the context of a previous inter-State case and has, since the date of the adoption of the judgment in that case, become part of the Court’s established case-law (for a recent example, see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).”

Leaving aside the recent case-law on the issue for the moment, in my respectful opinion and in all honesty, I fail to understand how under any circumstance, let alone in Cyprus in 1974, even by applying simple logic, persons who have disappeared in a life-threatening situation or have gone missing and have not been heard of for a period of over 33 years, can be presumed or accepted to be still “legally” alive. Even if one were to take Turkey’s ratification date of 1987, a time-period of 13 years would still have elapsed.

Accordingly, I reiterate 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 the respondent Government 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” needs 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 exists 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.