CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 20 mai 2008

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s41C5B720 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE511D6F6 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid } .sD73EB0F { width:14.21pt; display:inline-block } .sD6BE18B4 { width:200.44pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }   SECOND SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application no. 13320/02 by Panayiotis KYRIACOU TSIAKKOURMAS and Others against Turkey The European Court of Human Rights (Second Section), sitting on 20   May 2008 as a Chamber composed of:   Françoise Tulkens, President,   Ireneu Cabral Barreto,   Vladimiro Zagrebelsky,   Danutė Jočienė,   András Sajó,   Nona Tsotsoria,   Işıl Karakaş, judges, and Sally Dollé, Section Registrar , Having regard to the above application lodged on 11 June 2001, Having deliberated, decides as follows: THE FACTS 1.     The application arises out of the allegedly unlawful detention, torture and unfair trial of the first applicant, Mr Panayiotis Kyriacou Tsiakkourmas, following his abduction by agents of the Turkish Government in the territory of the British Sovereign Base Area of Dhekelia. A.     The applicants 2.     The applicants, Mr Panayiotis Kyriacou Tsiakkourmas, Mrs Niki Kyriacou Tsiakkourma, Ms Eleni P.K. Tsiakkourma, Ms Maria P.K. Tsiakkourma, Mr Kyriacos P.K. Tsiakkourmas, Mr Georghios Kyriacou Tsiakkourmas, Mrs Giovanna Andreou Theodosiou (born Kyriacou Tsiakkourma), Mr Ioannis Kyriacou Argyrou Tsiakkourmas, Mrs Myrofora Kyriacou Nicolaou Spetsioti (born Kyriacou Tsiakkourma), Mr Nicolas Kyriacou Argyrou Tsiakkourmas, Mr Andreas Kyriacou Argyrou Tsiakkourmas, Mr Soteris Kyriacou Argyrou Tsiakkourmas and Mrs   Evanthia Kyriacou Tsiakkourma, are Cypriot nationals who were born in 1962, 1967, 1989, 1996, 1998, 1942, 1944, 1946, 1947, 1949, 1955, 1957 and 1960, respectively, and live in Larnaca and Nicosia. The applicants are represented before the Court by Dr K. Chrysostomides & Co. and Georghiades & Pelides, a law firm operating in Nicosia. 3.     The first applicant is the main victim of the alleged events in question. The second applicant is the wife of the first applicant. The third, fourth and fifth applicants are the minor children of the first and second applicants. The sixth to thirteenth applicants are the five surviving brothers and three sisters of the first applicant. The first and sixth to thirteenth applicants are the joint heirs of the late Eleni Kyriacou Argyrou Tsiakkourma, who was listed as the fourteenth applicant (see paragraph 17 below). B.     The circumstances of the case 4.     The facts of the case, as submitted by the applicants, may be summarised as follows. 1.     Background to the abduction of Panayiotis Kyriacou Tsiakkourmas 5.     Mr Panayiotis Kyriacou Tsiakkourmas (“Panicos Tsiakkourmas”) is a Greek Cypriot living in Livadhia, a village which is about eight kilometres from the Pyla village. He is a building contractor who runs a company known as Panicos Tsiakkourmas and Co. Ltd., of which he and the thirteenth applicant, Mr Soteris Kyriacou Tsiakkourmas, are the directors. This company employs a number of labourers, including some Turkish Cypriots, who work at building sites. 6.     In the last ten years Mr Panicos Tsiakkourmas used to collect his Turkish Cypriot employees at a café in the Sovereign Base Area of Dhekelia (“SBA”) which adjoins the Turkish part of Cyprus. Dhekelia is one of the two Sovereign Base Areas which were retained by the United Kingdom when the Republic of Cyprus became independent in 1960. As their names suggest, the two SBAs are treated by the United Kingdom as British territory and are governed by British authorities. They have their own police force (“the SBA police”), which consists of British officers and officers drawn from the Greek Cypriot and Turkish Cypriot communities. Only the SBA police have powers of arrest within the territory of the SBAs. 7.     On 1 December 2000 a Turkish Cypriot called Ömer Gazi Tekoğul was arrested by the police of the Republic of Cyprus in the southern part of Cyprus on suspicion of the possession and supply of almost two kilograms of heroin. His arrest brought protests from the authorities of the Turkish Republic of Northern Cyprus (“TRNC”) who maintained that he had been arrested in the area between the ceasefire lines of the Turkish armed forces and the Cyprus National Guard, an area which is operationally under the observation of the United Nations Force in Cyprus (“UNFICYP”). 8.     On 3 December 2000 Mr M. İkidereli, who is the Head of the Directorate on Consular Affairs and Minorities Issues of the Ministry of Foreign Affairs and Defence of the TRNC, made a formal protest to Inspector John   Courtney, an Irish police inspector who was serving with the United Nations civil police in Cyprus. Mr İkidereli protested the kidnapping by the Greek Cypriot police of Mr Tekoğul in the Pyla village within the United Nations controlled buffer zone on the night of 1   December 2000, and stated that, if he were not released before 4 December 2000, the Greek Cypriots living in the Pyla area would also disappear. He noted that the Turkish Cypriot police would respond in a similar manner to the Greek Cypriot police's new policy of kidnapping suspects in the buffer zone. 2.     The abduction of Panicos Tsiakkourmas 9.     On 13 December 2000 Panicos Tsiakkourmas drove to the SBA shortly before 5.45 a.m. It had been raining heavily throughout the night and parts of the road were flooded. After he had entered the territory of the SBA but while he was still some 500 metres from the café where his workers were waiting for him, he was snatched from his car by Turkish agents in two vehicles, a red Renault car and a white Renault car, of the kind used by the TRNC police. He was beaten, knocked down into a stream of rainwater running across the road and a pistol was placed against his forehead. He was forced into the red car and driven at speed to the Pergamos Gate. His car was found shortly afterwards with its engine running, lights on and driver's door open, on the right side of the road in the SBA, at an angle towards the fields. 10.     His captors drove Panicos Tsiakkourmas in the occupied area for a while and threatened to kill him. At one point they stopped and placed a rope around his neck and, with the end of the same rope, tied his hands behind his back. After he was blindfolded and gagged, his captors transferred him to another car and handed him over to another group of men who took him to a building where he was interrogated for several hours. The interrogation was oppressive and Panicos Tsiakkourmas was kept blindfolded for much of the time. Most of the questions concerned his family and whether he had relatives who were connected in any way with the civil service of the Government of Cyprus or the police or armed forces of the Republic of Cyprus. Much later, persons in civilian clothes told him that they had found him in possession of drugs. Panicos Tsiakkourmas expressed his astonishment as he had had no drugs with him that day or at any other time in his life. The subject of drugs was one which had not hitherto been mentioned during his long interrogation. He was then driven to Nicosia and taken to another building where he was shown a plastic bag containing two items which looked like plates wrapped in cloth. These items were eventually placed in a container and sealed in his presence. Throughout the day he remained completely bewildered as to what was happening and whether he was accused of a crime. 3.     The investigation conducted by the SBA police 11.     Following an exhaustive investigation, the SBA police found that Panicos Tsiakkourmas had been chosen at random, in execution of the threat issued by M. İkidereli (paragraph 8 above). Those who had seized him had already made at least one unsuccessful attempt to capture another Greek Cypriot on 13 December 2000. 12.     The SBA police report stated, inter alia , the following: “Turkish Cypriot police officers maintain that they arrested Tsiakkourmas inside the Turkish controlled area about 70 yards west of Pergamos Gate. If this account is accepted, then Tsiakkourmas must have abandoned his vehicle, engine running, lights on and driver's door open, almost in the middle of what was then a fairly busy road. He must have left his briefcase and mobile telephone and (carrying a large quantity of cannabis) walked 500 metres across a muddy field, climbed a 1 ½ metre high fence and crossed a 4 metre wide ditch. An SBA officer will state that there was water to a depth of one metre in the ditch that morning. He thereafter must have tried to hide cannabis under a 1 metre high olive tree (the only one in the area described by the Turkish police). This is an area with which Tsiakkourmas would be unlikely to be familiar – inside the Turkish controlled area. All of this must have been accomplished knowing that his employees were waiting for him at 5.45 a.m., as they had been doing for the past ten years at the Pergamos Check Point... Notwithstanding the fact that it is often much more difficult to prove innocence rather than guilt, it is submitted, in spite of the statements of the Turkish Cypriot Police to the contrary, all other evidence indicates that Panicos Tsiakkourmas was taken from his vehicle at the locus where that vehicle was abandoned – well within the Eastern Sovereign Base Areas. Other than the statements of the Turkish Cypriot Police Officers there is absolutely no evidence – forensic or historical – to indicate that Tsiakkourmas had – or ever has had – illegal drugs in his motor vehicle or in his possession.” 4.     The subsequent detention of Panicos Tsiakkourmas 13.     In the evening of 13 December 2000 Panicos Tsiakkourmas was brought before a judge and remanded in prison, charged with drug related offences. His cell at the Seray prison was extremely damp and filthy. It was also very cold and he was denied adequate bedding and food. Following his transfer to another prison, his cell conditions improved. 14.     On 21 December 2000 Panicos Tsiakkourmas was brought before a court which refused him bail and remanded him in custody. There was no adequate interpretation and the proceedings were not properly explained to him. This experience was repeated in subsequent proceedings in January   2001. 15.     During his detention in the remand prison, Panicos Tsiakkourmas was subjected to extreme psychological pressure. It was made clear to him that he was a hostage and that his fate was unconnected with his own behaviour. This pressure was particularly oppressive to him because of his physical condition. Although it was known to the prison authorities that he suffered from diabetes, he was not given proper medical treatment for this condition. Nor was he provided with the right food. The conditions of his detention had serious effects on his health. 16.     Panicos Tsiakkourmas was visited by his own lawyer and a Turkish Cypriot lawyer as well as by members of his family and an officer from the United Nations. The visits were monitored by the authorities and he was not permitted the same freedom to communicate by telephone with his family that was accorded to Turkish Cypriot prisoners. The members of his family were concerned about his fate and were denied proper contact with him. 17.     On 26 April 2001 the mother of Panicos Tsiakkourmas, who is listed as the fourteenth applicant, died hours before it was known that he would be released. 18.     The second applicant, the wife of Panicos Tsiakkourmas, received anonymous telephone calls from a man who spoke Greek with a Turkish Cypriot accent, seeking to exert pressure on her by telling her that her husband would be released only if Ömer Gazi Tekoğul were released. When she crossed the border to visit Panicos Tsiakkourmas, she was told that she might not see him again if Mr Tekoğul was not released. She and her three children, namely the third, fourth and fifth applicants, suffered extreme stress and psychological pressure as a result of these events. 5.     The criminal proceedings against Panicos Tsiakkourmas 19.     Panicos Tsiakkourmas was brought before the Famagusta (Gazimağusa) Assize Court for a preliminary inquiry on charges of the importation and possession of cannabis. The inquiry took place between 8   February 2001 and 15 February 2001. Although he was represented by a local lawyer, Mr Menteş Aziz, and an English barrister, Mr Paul Bogan, he claimed that the proceedings were flawed since the court manifested a bias against him. In particular, there was a complete failure to respect the principle of equality of arms and no adequate interpretation was made available. 20.     The trial took place before the Famagusta Assize Court over several days between 19 February 2001 and 26 April 2001. On the latter date, Panicos Tsiakkourmas was found guilty and sentenced to six months' imprisonment on the first count, with no sentence on the second count. Since he had already been on remand for such a long time, he was released on that day. COMPLAINTS 21.     The applicants complained of a violation of Articles 2, 3, 5, 6, 8, 10 and 14 of the Convention. A.     Alleged violation of the rights of the first applicant, Panicos   Tsiakkourmas 22.     Panicos Tsiakkourmas complained under Article 2 of the Convention that his life had been threatened as a result of the authorities' failure to provide him adequate medical care when he was known to be diabetic. 23.     He maintained that the ill-treatment inflicted on him and the conditions of his detention from 13 December 2000 until his eventual release constituted a violation of his rights under Article 3 of the Convention. 24.     Panicos Tsiakkourmas alleged that his arrest in the territory of the SBA and his subsequent detention in the occupied part of Cyprus was in flagrant violation of both international and domestic law, and constituted a violation of Article 5 § 1 of the Convention. 25.     He asserted under Article 5 § 2 of the Convention that he had not been informed promptly and in the only language (Greek) which he fully understood of the reasons for his arrest and the nature of the charges against him. 26.     He alleged under Articles 5 §§ 3 and 4 of the Convention, taken alone and in conjunction with Article 5 § 1, that he had been unnecessarily remanded in custody with no adequate explanation as to why he had not been allowed bail. He had not been brought promptly before a court whose proceedings he could follow. Nor had it been possible for him to take proceedings as required by Article 5 § 4. 27.     He further contended under Article 6 §§ 1, 2 and 3 of the Convention that he had been denied a fair hearing by an independent and impartial tribunal established by law. He noted in this connection that the courts had not been established in accordance with the law of the Republic of Cyprus, and that the judges had manifested bias against him since they had convicted him on the basis of evidence fabricated by the prosecution. He also asserted that the lack of adequate interpretation in the course of the proceedings and the restriction placed on his ability to communicate with his lawyers had amounted to a denial of his right to have adequate facilities for the preparation of his defence. 28.     He maintained under Article 8 of the Convention that the restrictions placed on his contact with his family constituted a violation of his right to respect for his family and private life. 29.     He also alleged under Article 10 of the Convention that the monitoring and denial or restriction of his communication with his family, visitors, lawyers and United Nations officials had violated his right to freedom of expression. 30.     He finally claimed under Article 14 of the Convention that the above-mentioned violations were the result of discrimination against him since he was a Greek Cypriot. B.     Alleged violation of the rights of the second to fourteenth applicants 31.     The applicants alleged that the threats made to the second applicant in front of the third applicant had constituted inhuman treatment in violation of Article 3 of the Convention. 32.     The second to fourteenth applicants alleged that the arbitrary arrest and detention of Panicos Tsiakkourmas, the threats issued to him and to members of his family, and the restrictions imposed on his communication with his family, had constituted a violation of Article 8 of the Convention. 33.     The second to fourteenth applicants maintained that the restrictions on their communication with Panicos Tsiakkourmas, and the constant monitoring of visits and general climate of intimidation during those visits, had violated their rights under Article 10 of the Convention, taken together with Article 8. 34.     They finally submitted under Article 14 of the Convention that the above-mentioned violations had occurred as a result of their Greek Cypriot origin. THE LAW A.     Alleged violation of the rights of the first applicant 35.     The first applicant complained of a violation of his rights guaranteed by Articles 2, 3, 5, 6, 8, 10 and 14 of the Convention as a result of his alleged detention, torture and trial in the TRNC following his abduction by agents of the Turkish Government in the territory of the British Sovereign Base Area of Dhekelia. 36.     The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government. B.     Alleged violation of the rights of the second to fourteenth applicants 37.     The second to fourteenth applicants complained of a violation of their rights under Articles 3, 8, 10 and 14 of the Convention. 1.     Victim status of the fourteenth applicant, Kyriacou Argyrou Tsiakkourma 38.     The Court notes the fourteenth applicant Kyriacou Argyrou Tsiakkourma died on 26 April 2001 (see paragraph 17 above), before this application was submitted to it on 11 June 2001. The alleged events in question did not directly involve her but the first applicant. Accordingly, the late Kyriacou Argyrou Tsiakkourma cannot have standing as a victim within the meaning of Article 34 of the Convention. 39.     It follows that the complaints lodged on behalf of Kyriacou Argyrou Tsiakkourma are incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35   § 3, and must be rejected pursuant to Article 35   §   4. 2.     Alleged violation of Article 3 of the Convention 40.     The applicants alleged that the threats made to the second applicant in front of the third applicant had constituted inhuman treatment in violation of Article 3 of the Convention. 41.     The Court reiterates that, to fall within the scope of Article 3 of the Convention, the alleged treatment must attain a minimum level of severity (see Ireland v. the United Kingdom , judgment of 18 January 1978, Series   A   no.   25, p. 65, §   162). In the present case there is no indication that the treatment complained of reached the threshold of severity bringing the matter within the scope of Article 3. 42.     It follows that this part of the application should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 3.     Alleged violation of Articles 8 and 10 of the Convention 43.     The applicants alleged that the arbitrary arrest and detention of Panicos Tsiakkourmas, the threats issued to him and to members of his family and the restrictions imposed on his communication with his family and general climate of intimidation during their visits had violated their rights under Articles 8 and 10 of the Convention. 44.     The Court observes that these complaints are inextricably linked to those raised by the first applicant under the same provisions. This being so, it considers that it would be more appropriate to examine them together. 45.     Thus, the Court concludes that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule   54   §   2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government. 4.     Alleged violation of Article 14 of the Convention 46.     The applicants also alleged that they had been discriminated against as a result of their Greek Cypriot origin, in violation of Article 14 of the Convention. 47.     In the light of its conclusions above and having regard to the evidence in its possession, the Court finds nothing in the circumstances which can be considered to be discrimination. This complaint is therefore unsubstantiated. 48.     It follows that this complaint is manifestly ill-founded and must be rejected under Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously   Decides to adjourn the examination of the first applicant's complaints concerning the alleged violation of his rights under Articles 2, 3, 5, 6, 8, 10 and 14 of the Convention, as well as the complaints raised by the second to thirteenth applicants under Articles 8 and 10 of the Convention;   Declares the remainder of the application inadmissible.     Sally Dollé   Françoise Tulkens   Registrar   President