CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 1 juin 2010

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Mr Zacharias Hatzigeorgiou, born in 1962; 2. Mrs Maria Hatzigeorgiou, born in 1936, is the mother of the other applicants and administrator of the property of her missing husband (see below); 3. Mrs Elena Ioannou-Hatzigeorgiou, born in 1958; 4. Mr Sotiris Hatzigeorgiou, born in 1964; 5. Mr Andreas Hatzigeorgiou, born in 1966; 6. Ms Sofia Hatzigeorgiou, born in 1973. The application was stated to be brought by the applicants, in their own capacity and on behalf of Loizos Hatzigeorgiou-Poirazis, their husband and father respectively, and Georgios Loizou Hatzigeorgiou, their son and brother respectively, who have been missing since August 1974. The applicants are the heirs to the property of Loizos Hatzigeorgiou-Poirazis. Applicants nos. 1, 2, 3, 5 and 6 are living in Nicosia and applicant no. 4 is living in Paphos. They were represented before the Court by Mr A. Demetriades, a lawyer practising in Nicosia. The Turkish Government (“the Government”) were represented by their Agent. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1. The applicants All the applicants and the missing persons were born in the village of Strogillos in the District of Famagusta which had inhabitants of both Greek- Cypriot and Turkish-Cypriot origin. The applicants stated that until 14   August 1974 they were all living together in the village. After the intervention by the Turkish armed forces in July 1974 the applicants alleged that they remained in their village following reassurances by fellow Turkish-Cypriot villagers and the head of the latter's community in the village that they would protect them. Subsequently, on 14 August 1974 the Turkish armed forces took over the village and arrested the applicants. The applicants claimed that on 15 August 1974 Loizos Hatzigeorgiou-Poirazis, who was 43 years old at the time and Georgos Loizou Hatzigeorgiou, 18 at the time, were taken by the Turkish armed forces and/or Turkish Cypriots under their command along with other men of Greek-Cypriot origin in the village and that they were told that the villagers had been taken to Sinda for interrogation. The applicants stated that they were detained in a house, with other women and children, with armed guards outside and that they were not allowed to go home, or to take care of their animals on the farm or their property. Then they were put onto trucks and taken through various villages, subjected en route to abuse by mobs who were spitting, shouting abuse and throwing objects at them. On 26 August 1984 the applicants stated that they were forced to abandon their home, property and village and flee to southern Cyprus. Since 15 August 1974 the applicants have never seen their husband/father and son/brother again and they claimed that Turkey refused to give any information about their whereabouts. These men were listed as missing persons, the information being given to the Cypriot authorities, the Red Cross and the United Nations. In 1981, the United Nations Committee on Missing Person (“CMP”) was set up to look into cases of persons reported missing in the intercommunal fighting as well as the events of July 1974 and afterwards (for further details on the CMP, see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, §§ 85-88, ECHR 2009 ‑ ...). 2. The Government The Government stated, inter alia , that it had no knowledge of the missing persons and that the applicants had failed to initiate any inquiry about their missing relatives. COMPLAINTS   The applicants complained under Articles 2, 3, 4, 5, 8 and 14 of the Convention that their husband/ father and son/ brother were missing. They complained that they were detained in a house in their village by the Turkish armed forces from 15 until 26 August 1974 during the intervention in violation of Article 5 of the Convention. They complained under Articles 8 and 14 of the Convention and 1 of Protocol No.1 that since August 1974 Turkey had prevented them from having access to their family home and from exercising their right to the peaceful enjoyment of their property. They affirmed that this was due to the fact that they are Orthodox and of Greek-Cypriot origin. THE LAW A. Complaints concerning the disappearance of the two missing men   1. The applicants complained that their relatives had disappeared in life-threatening circumstances in 1974, invoking Article 2 of the Convention which guarantees that the right to respect for life shall be guaranteed by law. They also invoke variously in this regard Article 3 (prohibition of torture and inhuman and degrading treatment or punishment), Article 4 (prohibition of forced labour), Article 5 (right to liberty and security of person), Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination in the enjoyment of Convention rights). The applicants further invoke Article 5 as regards the way in which they were held by force in a house during August 1974. The Court observes that Turkey ratified the right of individual petition on 28 January 1987. Insofar therefore as the applicants' substantive complaints were based on the event of disappearance and alleged deprivation of liberty in 1974, the Court lacks temporal jurisdiction (see Blečić v. Croatia [GC], no. 59532/00, § 70, ECHR 2006 ‑ III; Varnava and Others v. Turkey [GC], cited above, §   134). This part of the application must therefore be rejected as incompatible ratione temporis pursuant to Article 35 §§ 3 and 4 of the Convention.   2. Insofar as the applicants may be taken to complain under Articles 2, 3 and 5 of a continuing lack of effective investigation into the disappearances of their relatives since the events in 1974, the Court recalls that, pursuant to Article 35 § 1 of the Convention, it may only deal with a matter “within a period of six months from the date on which the final decision was taken”. In Varnava and Others v. Turkey [GC] (cited above), the Court had occasion to consider the application of the six-month rule in cases concerning missing persons from the 1974 conflict. It noted as follows: “In a complex disappearance situation such as the present, arising in a situation of international conflict, where it is alleged that there is a complete absence of any investigation or meaningful contact with the authorities, it may be expected that the relatives bring the case within, at most, several years of the incident. If there is an investigation of sorts, even if sporadic and plagued by problems, the relatives may reasonably wait some years longer until hope of progress being made has effectively evaporated. Where more than ten years has elapsed, the applicants would generally have to show convincingly that there was some ongoing, and concrete, advance being achieved to justify further delay in coming to Strasbourg.” It concluded (at § 170): “The Court considers that the applicants, who were amongst a large group of persons affected by the disappearances, could, in the exceptional situation of international conflict where no normal investigative procedures were available, reasonably await the outcome of the initiatives taken by their Government and the United Nations. These procedures could have resulted in steps being taken to investigate known sites of mass graves and provided the basis for further measures. The Court is satisfied, however, that by the end of 1990 it must have become apparent that the problematic, non-binding, confidential nature of these processes no longer offered any realistic hope of progress in either finding bodies or accounting for the fate of their relatives in the near future.” The applicants in Varnava having applied to the Court in January 1990, they were found to have acted with reasonable expedition for the purposes of Article 35 § 1 and the Government's preliminary objection to the contrary was rejected. In the present cases, which also concerned disappearances during the conflict in 1974, the applicants applied to the Court on 27 September 1999. In light of the Court's conclusion in Varnava , it should have been apparent by the end of 1990 that the CMP procedure had failed to make any concrete advance in uncovering the fate of the applicants' relatives (see Varnava , cited above, §§ 165 to 166). Nor is there any evidence in the present application of any other form of investigative activity post-1990 which could have provided to the applicants some indication, or realistic possibility, of progress in relation to their relatives' disappearances and which could have justified a further lapse of nine years in coming to Strasbourg. It follows that the applicants' complaints relating to the lack of effective investigation into the disappearances and unacknowledged detention of their relatives in 1974 were introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention. B. Complaints concerning lack of access to property and home The applicants complained under Article 1 of Protocol No. 1 and Articles 8 and 14 of their lack of access to property and home. It would appear from the materials in the case-file that the property in question, of which no title deeds or Land Registry certificates have been provided, was owned by Mr   Loizos Hatzigeorgiou-Poirazis, who has been missing since 1974. It also appears that the second applicant is the administrator of his property and that the applicants are acknowledged as his legal heirs. The Court recalls that applicants are required by Article 35 § 1 of the Convention to exhaust available, effective domestic remedies. It also recalls that in Demopoulos and Others v. Turkey [GC] (no. 46113/99 and al., decision of 1 March 2010, ECHR 2010-...) the Grand Chamber examined the issue of whether Greek-Cypriot applicant property-owners had available to them a remedy in respect of their complaints. It found that for the purposes of Article 35 § 1 of the Convention, the procedure before the Immovable Property Commission (“IPC”), and further appeal to the “TRNC” High Administrative Court, provided for in Law 67/2005 were to be regarded as “domestic remedies” of the respondent State and that no ground of exemption of the application of Article 35 § 1 of the Convention has been established in that regard. As regarded the efficacy of the framework of redress provided, it held: “127. The Court finds that Law 67/2005 provides an accessible and effective framework of redress in respect of complaints about interference with the property owned by Greek Cypriots. The applicant property owners in the present cases have not made use of this mechanism and their complaints under Article 1 of Protocol No. 1 to the Convention must therefore be rejected for non-exhaustion of domestic remedies. It is satisfied that Law 67/2005 makes realistic provision for redress in the current situation of occupation that is beyond this Court's competence to resolve. 128.     Lastly, it would stress that this decision is not be interpreted as requiring that applicants make use of the IPC. They may choose not to do so and await a political solution. If, however at this point in time, any applicant wishes to invoke his or her rights under the Convention, the admissibility of those claims will be decided in line with the principles and approach above. The Court's ultimate supervisory jurisdiction remains in respect of any complaints lodged by applicants who, in conformity with the principle of subsidiarity, have exhausted available avenues of redress.” The Court notes that the applicants, who as the legal heirs to the property, have not filed claims with the IPC. It further notes that claimants who may make property claims to the IPC, may also lodge claims in respect of non-pecuniary damage, which provision in Law 67/2005 is broad enough to encompass aspects of any loss of enjoyment of home (see section 8(4)E, Demopoulos and Others , cited above, § 133)). It accordingly finds that these applicants' complaints under Article 8 also fail for non-exhaustion of domestic remedies as they have not brought such claims before the IPC. This part of the application must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. In the circumstances, no separate issue arises under Article 14 of the Convention (see Demopoulos and Others , cited above, § 143). For these reasons, the Court unanimously Declares the application inadmissible.   Fatoş Aracı   Nicolas Bratza Deputy Registrar   President