Third section

Since I am of the opinion that a “presumption of death” should be the presumption drawn in the case before us, I do not concur with my colleagues when they observe that the present case before us is one “where the continuing situation flows from a factual situation arising at a particular point in time” (paragraph 116), thereby bringing it within the six-month rule. I find that a continuing situation does not “flow”. The presumption of death excludes this possibility.

Another point about the majority’s assessment in this connection, which I feel I must make here simply because of a possible paradox that I notice may exist, is that while in the present application a finding is made that there is a “continuing violation”, in contrast to a previous judgment concerning Turkish Cypriot missing persons who had gone missing under similar life-threatening circumstances in 1964, at the time of inter-communal strife, the majority accept that the Court “in reaching th[at] decision, as with the other similar applications, made no mention of a ‘continuing situation’ in its analysis in reaching the conclusion that the case had been introduced out of time” (paragraph 116).

I note that the explanation given is that in the Karabardak case (Karabardak and Others v. Cyprus, (dec.) no. 76575/01, 22 October 2002) the “long delay” of over thirty years in bringing the matter to examination pursuant to Article 35(1) of the Convention was not accounted for and that: “[i]t 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” (see paragraph 117). Whereas in the present application the applicants applied to the Commission three days after Turkey had recognised the jurisdiction of the old Court on 22 January 1990.

In view of the majority’s decision in the present application I have found it difficult to understand how the decisions in Karabardak and Baybora were reached. I cannot seem to find this assessment consistent with the jurisprudence of the Court. Observing that the Karabardak and Others case also concerned disappearances occurring in a strife-ridden Cyprus where life-threatening circumstances prevailed, and bearing in mind the reasoning followed by the majority of my colleagues in the present application as to a “continuing situation” or violation, can one assume, even at the risk of appearing speculative, that a decision on the merits in the Karabardak and Others case would have been similar to the one reached in the present application? Hence, with great respect and modesty, merely for the sake of completeness, were I to apply the majority view (I merely reiterate, but do not adopt it) mutatis mutandis to the Karabardak and Others case, it too might have been found admissible as maintaining continuing violations which generated a continuing obligation of effective investigation. Yet, I perceive an anomaly in the approach in the present applications and feel that a consistency of logic in conformity with, and no different from, the Karabardak and Others case should have been adopted.

I wholeheartedly agree that in the interests of the “practical and effective functioning of the Convention system, the greater the lapse of time the more problematic any attempted examination of the facts and issues”. However, this observation applies to the present case and was also the main issue in the admissibility stages of Baybora and Karabardak.

With due respect to my colleagues adjudicating in the cases of both Baybora and Karabardak (on perusal of the Observations of the Government of Turkey of 1 March 2007, § 27) it may have been a more positive step to have communicated or have invited the respondent Government to give their views so as to present before the Court a more balanced view of the case and thus aid the Court on the issue of jurisdiction ratione temporis, as they have done in the present case.

I merely mention that I feel there may be some frailty in the reasoning here in rejecting the respondent Government’s whole argument under this head; for the applicants, on the introduction of the present application, applied to the Commission, not to the Court, for redress. The important factor, or date, for consideration, is the date when Turkey recognised the right of individual application to the Commission that is 1987; it is not 1990, the date when Turkey recognised the Court’s jurisdiction. Therefore, I was not able to concur in this assessment. In addition, I make note of the fact that:

(a) The intervening Government of Cyprus recognised the right to individual petition to the Commission on 1 January 1989. The Turkish Cypriot applicants could not have applied earlier for redress in respect of their claims. Similarly Greek Cypriot applicants could not have applied, until Turkey’s ratification in 1987, to the Commission and, in January 1990, to the Court.

(b) The applicants in the present case, as well as those in the Karabardak and Others case, could not have known of the decisions taken in the inter-State cases. The first, second or third inter-State cases did not really deal with the issues of continuing violation. It was in 2001, in the fourth inter-State case, that the notion of continuing violation in disappearance cases was first expounded. In any event, no applicant could have applied until 1989 or 1990, respectively. The present applicants lodged their application in 1990. The Karabardak applicants made their application in 2001, probably after obtaining legal advice on the issue. The legal positions, in both cases, are the same.

(c) As pointed out in the Akdivar case (Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210) prevailing “special circumstances” need to be taken into account when considering whether remedies are actually available. Considering the climate in Cyprus in both 1963-4 and 1974, one cannot say with certainty that such redress was readily available to trace the disappearances (see also Cyprus v. Turkey, § 99).

(d) The CMP did not start functioning until 1981. The CMP was concerned with collecting files on both Greek and Turkish missing persons’ families, so reliance was probably placed on the outcome of the CMP investigations and no other redress claimed. Understandably, such families of missing persons were not aware of the mandate of the CMP as it stood at the time and perhaps only became aware of its functions and views on its work following the fourth inter-State judgment in May 2001.

It follows then that the fact that the applicants in the present case applied to the Commission three days after Turkey recognised the Court’s jurisdiction is, with all due respect to my colleagues, immaterial. Legally there is no difference between the delays of the Karabardak applicants and the present applicants in their applications to the Court and the Commission, respectively. If the Karabardak and Baybora applications were rejected for being introduced out of time under Article 35, so too should the present applications have been. The fact that the events they complained of took place during the inter-communal strife of the 1960s and not in 1974 makes no difference to the legal situation. I refer in support of this view to comments of Judge Fuad in the Cyprus v. Turkey judgment: “With great respect, in my view the majority has not given sufficient weight to the causes and effects of the ugly and catastrophic events which took place in Cyprus between 1963 and 1974 (which literally tore the island apart)” (Partly dissenting opinion, § 2).

Accordingly, since the present application has been found admissible, I would like to note that I am unable to regard this decision as sustaining a justification as to why the Karabardak and Others case was treated differently on the issue of jurisdiction ratione temporis and why those applicants’ claims for redress were not accepted. Therefore, I conclude that the respondent Government’s preliminary objection under this head should have been accepted, and a judgment in conformity with the Baybora and Karabardak decisions recorded (followed in preceding cases of Şemi and Others v. Cyprus, no. 13212/02, and Hüseyin and Göçer v. Cyprus, no. 28280/02).

It is here, also, that I again find myself in agreement with my colleague Judge Kutlu Fuad, who in his partly dissenting opinion in the Cyprus v. Turkey case said (§ 25):

“Here the position is not simple. The events which the majority of the Court held to have given rise to an obligation to conduct effective investigations occurred in July and August 1974. This was some fifteen years before the operative date of Turkey’s declaration. Neither the Commission nor the Court found sufficient evidence to hold that the missing persons were still in the custody of the Turkish authorities at the relevant time. In my opinion, it cannot be right to treat the Convention obligation which arises in certain circumstances to conduct a prompt and effective investigation as having persisted for fifteen years after the events which required investigation so that, when Turkey did become bound by the Convention, her alleged failure to date to conduct appropriate investigations can be regarded as a violation of the Convention. In my view, the concept of continuing violations cannot be prayed in aid to reach such a result. It seems to me that such an approach would be to apply an obligation imposed by the Convention retrospectively and to divest the time limitation in the declaration of its effect.”

Accordingly, the case is inadmissible under Article 35(3) and (4) of the Convention.
Committee of Missing Persons (CMP)
Without committing myself to comments on the merits of this case I find it important to make some reference to the developments regarding the facts relating to the Committee of Missing Persons (CMP). In the information we have before us (Further submissions of Turkey 21 August 2007, § 20) we note that the last few years have seen the CMP’s role in ascertaining the whereabouts of missing persons increase in a substantial and successful manner. So without prejudice to the rest of my opinion, I would also like to make some brief remarks before concluding.

We see that the CMP since 2004 has been activated in a substantial manner. It is assisted by well-known international experts and has developed several programmes in order to start exhumations to identify remains with anthropological and genetic tests, with a view to returning the remains to the families. Exhumation, identification and burial procedures are implemented not only with respect to scientific criteria, but also with respect to the dignity of the deceased and their families. With international financial support provided, and forthcoming, this shows that the CMP has become an international experimented model for similar investigations in other parts of the world.

Exhumations are producing concrete and convincing results. There is much more which prima facie shows that the CMP’s work today may in the future represent more of an effective investigation into the circumstances surrounding the disappearances, despite the terms of reference. There is a clear movement towards complying with Article 2 and I feel that views in line with the fourth inter-State ruling may be excessive in light of the CMP’s present day activities and functions. If there was no effective investigation I do not think it possible that the remains of the missing could have been found or the findings and discoveries made. While the work of the CMP is conducted in secrecy, this does not mean that it is not the most effective method of tracing the disappearances.

Regrettably, I simply cannot agree with my colleagues’ opinion on the ineffectiveness of CMP investigations into the fate of the missing persons. While it may have been the case in 2001 (Cyprus v. Turkey), the present activities and events relating to the CMP’s work and findings, as I have described above, today, cannot go unnoticed.

In light of what I have said above in regard to the present-day CMP investigations and the disclosures that they have made, I do not agree with the view that there are “no developments, legal or factual” which change the assessment of the Court with regard to the CMP’s work. There is significant proof of the developments and width of CMP activities. I do not find it correct to say that the fact that the “...remains of Savvas Hadjipanteli have recently been discovered...does not demonstrate that the CMP has been able to take any meaningful investigative steps beyond the belated location and identification of remains.” (paragraph 132).

If the scope of the CMP’s work had not been sufficiently enlarged so as to be effective or investigative, the remains and evidence of bullet-wounds would not have been revealed in the first place. The “recent developments” (paragraphs 89 and 102) reveal how remarkably the work of the CMP is steadily advancing today.

I ask for indulgence as I express my sensitivities in the following views:

A period of almost 33 years has passed. I find myself asking such questions as: The missing persons issue in Cyprus as it stands today, would any other form be an “effective investigation” sufficient to satisfy Article 2 in the upholding and protection of human rights? Would it be more successful than the CMP, especially in discoveries of the whereabouts of the missing? Would it interfere or hamper the work of the CMP?

The CMP has been built up to its present strength over long years of trial and error, and continues to build in potency. Dedicated persons, scientists, from both sides, and internationally, strive endlessly to diminish the loss of loved ones of both Greek and Turkish Cypriots alike. To find and give the remains of the missing back to loved ones; thus not prolonging the anguish for those directly concerned. The events of 1974 in all its aspects, created many separations, sadness, confusion and uncertainties for all concerned. What is left and what I feel is wanted by the people of Cyprus today, is to find their missing loved ones. Memories have faded, become distorted, persons have passed on. What if the successful work of the CMP is undermined by any other form of investigation, where sensitivity and secrecy is the operating factor? As far as I am concerned, it is this aspect that has gained precedence in today’s Cyprus. Here, I leave aside the fact that the CMP has gone far beyond the purpose for which it was set up.

I am therefore of the view that the CMP is capable of effectively doing all that can reasonably and possibly be done. I find that the CMP satisfies the criteria of effective investigation as is necessary in the events and developments in Cyprus today. This is my view of the work and purpose of CMP, and nothing I can see in the present case has convinced me otherwise.

Since I do not concur on the findings that the applications are admissible on their merits, I cannot possibly agree with the majority’s assessment under Article 41 on the issue of just satisfaction claims, whether in whole or in part. In consideration of all of the above, I find also that there should be no award as to costs since the case is inadmissible ratione temporis and time-barred by the six-month rule.