CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 3 juin 2010

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border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:2.48pt; padding-left:2.48pt } .sD73903ED { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:2.48pt; padding-left:2.48pt; vertical-align:top } .s79A613E5 { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:2.48pt; padding-left:2.48pt; vertical-align:top } FIRST SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Applications nos. 59623/08, 3706/09, 16206/09, 25180/09, 32744/09, 36499/09 and 57250/09 by Semral Emin and Others, Nazli Gürtekin and Others, Fatma Aybenk Abdullah and Others, Meryem Arkut and Others, Ayşe Akay and Others, Omer Hussein and Others and Ayşe Eray and Others against Cyprus, Greece and the United Kingdom The European Court of Human Rights (First Section), sitting on 3 June 2010 as a Chamber composed of:   Nina Vajić, President,   Christos Rozakis,   Nicolas Bratza,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   George Nicolaou, judges, and André Wampach, Deputy Section Registrar , Having regard to the above applications lodged on 21 November 2008, 19 December 2008, 18 March 2009, 21 April 2009, 10 and 30 June 2009, 30   September 2009; Having deliberated, decides as follows: THE FACTS The applicants state that they are nationals of the “Turkish Republic of Northern Cyprus”. Their names, dates of birth and places of residence are set out in the Annex. They are represented before the Court by Ms   Y.   Renda, a lawyer practising in Nicosia. A.     The circumstances of the cases The facts of the cases, as submitted by the applicants (listed in the Annex), may be summarised as follows. They are relatives of Turkish Cypriot men who went missing in either December 1963 or April-May 1964 during incidents of mounting tension and violence in which Turkish Cypriots or Turkish-Cypriot villages were targeted. These men were listed as missing persons, the information being given to the Cypriot authorities, the Red Cross and the United Nations. The remains of the missing men have been found during exhumations carried out by the United Nations Committee for Missing Persons in 2006 ‑ 9. Further details are set out in the Annex. In three cases, the applicants wrote to Cypriot authorities requesting information about any investigation into the disappearance of their relative and/or the discovery of the remains: in Akay and Others , no. 32744/08, by letter dated 6 May 2009 to the Minister of the Interior, in Gürtekin and Others , no. 3706/09, by letter dated 14 November 2008 to the Minister of the Interior and in Arkut and Others , no. 25180/09, by letters dated 22   February 2009, to the Attorney-General and to the Minister of the Interior. No reply was received. B.   Relevant domestic law and practice 1. Panagiota Konstantinou and others v. Republic of Cyprus, Council of Ministers, Attorney-General, Ministry of Foreign Affairs and Presidency of the Commission of Humanitarian Affairs (case no.   1253/00) In this case, the claimants challenged the decision in 1997 to remove their relative, a Greek Cypriot combatant last seen in July 1974, from the list of missing persons after examination of the list by the Attorney-General of Republic of Cyprus; his file was communicated to the Turkish-Cypriot side instead on the basis that he had died of wounds during the fighting and not to the Committee of Missing Persons. In a decision dated 16 October 2003, the Supreme Court in its appellate jurisdiction rejected the case on the basis that the case did not concern an administrative decision but was an act of Government outside the court's jurisdiction. Matters relating to missing persons were part of the Cyprus problem and fell within the power of the political authority. 2. Öealp Behiç, Ece Behic and Suzan Behiç and others v. Republic of Cyprus Attorney General, Council of Ministers, Ministry of Foreign Affairs, Ministry of Interior (case nos. 589/06, 590/06, 591/06, 592/06, 593/06) In these cases lodged in 2006, the relatives of five Turkish Cypriot men who went missing on 14 August 1974 after they had been taken from their homes by armed Greek Cypriots, lodged applications under Article 146 of the Constitution, claiming that the Republic of Cyprus had known of the deaths of the missing persons but had not searched for the corpses or brought the guilty persons to justice and that the Republic had not taken the necessary actions to pursue an effective investigation to determine the whereabouts and fate of the missing persons. In their response, the Republic of Cyprus stated that they had not been passive but had been unable to pursue their intentions to exhume and identify corpses due to the agreement between the UN, the Turkish Cypriot side and themselves that exhumations would be conducted by a common programme of the Committee of Missing Persons. They also pointed out that exhumations had begun in 2004 and the programme indicated the likelihood of the graves in the relevant area would commence in August 2008. They disputed that the matter fell within the jurisdiction of the courts but fell under the supervision of the United Nations and the authority and initiative of the President of the Republic. In its decision dated 29 May 2008, the Supreme Court in its appellate capacity held that the fate of missing persons fell within the authority of the President of the Republic as it had an international aspect; the cases therefore concerned an act of government which did not fall within the jurisdiction to annul of the Supreme Court. COMPLAINTS A. Complaints against Cyprus The applicants complain variously that the Government were responsible for the killing of their relatives as part of a planned and State-encouraged campaign of ethnic cleansing; that their relatives were unlawfully and intentionally killed by Greek Cypriot agents or militia acting under the orders of Cyprus. The applicants complain under Article 2 that the respondent Government failed to carry out an effective investigation into the disappearance and killings of their relatives even though all necessary information had been provided to their authorities. The discovery of the remains disclosed that their relatives had been killed by violence and investigations should be carried out to find and punish the perpetrators. The applicants complain under Article 3 that the disappearance and discovery of the remains inflicted serious trauma on them and they suffer anguish at the thought that the killers live freely and lead normal lives. They refer to the attitude of the Government which had denied for years that there were any Turkish Cypriot missing persons and had declared 2005 as EOKA year, thereby praising members of a terrorist organisation involved in various of the abductions and killings of Turkish Cypriots. The applicants complain under Article 8 that the disappearance of their father when they were young left them in poverty and uncertainty. The applicants complain under Article 13 that they were denied a remedy in respect of the death of their relative. Finally, the applicants complain under Article 14 that their relatives were effectively subject to a form of ethnic cleansing based on their identity as Turkish Cypriots which disclosed discrimination based on ethnic, religious, racial and political motives. B. Complaints against Greece The applicants in five cases ( Aybenk Abdullah and Others (no.   16206/09), Arkut (no. 25180/09), Akay and Others (no. 32744/09), Hussein and Others (no. 36499/09), and in Eray and Others (no. 57250/09)) complain that Greece was responsible for the violation of Article 2 as they helped the Republic of Cyprus to act against the Turkish-Cypriot population by providing military training, and armaments and intervening in internal affairs. They also complain that their relatives were killed by Greek soldiers or militia acting under the orders of the Republic of Greece alongside the Cypriot forces acting under the orders of the Republic of Cyprus. C. Complaints against the United Kingdom In Arkut (no. 25180/09), the applicants submit that their relative had held a British passport and had been working at the British base; he had been killed during working hours. In their view, the United Kingdom had failed to comply with its obligation to undertake the necessary investigation when its citizens are killed; nor had that Government provided any information or compensation, even though their relative was covered by British insurance. Further even though the situation had been life-threatening, the British authorities had done nothing to give protection or request protection from the Cyprus Government. They invoke Articles 2 and 13 of the Convention. In Eray and Others (no. 57250/09), the applicants claim that some of the eleven victims held British passports and all were working on the British base. They claim that the United Kingdom is responsible on the same grounds as set out in the paragraph above. THE LAW 1. The applicants complain that their relatives disappeared in life-threatening circumstances in 1963 and 1964, invoking Article 2 of the Convention which guarantees that the right to respect for life shall be guaranteed by law. They allege the responsibility of the Republic of Cyprus (all cases), Greece (five cases) and the United Kingdom (two cases). They also invoke in this regard Articles 3 (prohibition of torture and inhuman and degrading treatment or punishment), 8 (right to respect for private and family life), 13 (right to an effective remedy for violations of Convention rights) and 14 (prohibition of discrimination in the enjoyment of Convention rights). The Court observes that the Republic of Cyprus, Greece and the United Kingdom ratified the Convention on dates subsequent to the events concerned, on 1 January 1989, 20 November 1985 and 14 January 1966 respectively. Insofar therefore as the applicants' complaints are based on the event of disappearance itself in 1963 or 1964, the Court lacks temporal jurisdiction (see Blečić v. Croatia [GC], no. 59532/00, § 70, ECHR 2006 ‑ III; 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, § 134, ECHR 2009 ‑ ...). This part of the application must therefore be rejected as incompatible ratione temporis pursuant to Article 35 §§ 3 and 4 of the Convention.   2. The applicants complain of a lack of effective investigation into the disappearances of their relatives, in all cases alleging the responsibility of the Republic of Cyprus and in two cases alleging the responsibility of the United Kingdom. They also invoke Article 3 in this respect. a. Concerning the United Kingdom The Court recalls that generally the procedural obligation falls on the respondent State under whose jurisdiction the victim was at the time of death. Article 2 does not require member States' criminal laws to provide for universal jurisdiction in cases involving the death of one of their nationals ( Rantsev v. Cyprus and Russia , no. 25965/04, § 244, 7 January 2010). The Court finds no special elements arising in these cases which would support the imposition of a duty on the United Kingdom to conduct its own investigation into disappearances which took place within the territory and under the jurisdiction of the Republic of Cyprus. Nor is there any right to compensation in respect of the disappearance derivable under Article 2 due to the fact of employment by some of the applicants' relatives by the United Kingdom. No ground emerges either for a finding of responsibility by the United Kingdom under Article 3 for any suffering of the relatives due to the lack of any investigation into the disappearances. This part of the application is therefore incompatible ratione personae and materiae and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. b. Concerning the Republic of Cyprus 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 (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 concerned disappearances even before the conflict in 1974, the applicants applied to the Court between 21 November 2008 and 30   September 2009. In light of the Court's conclusion in Varnava , it should have been apparent, at the very latest, 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 and Others , cited above, §§   165 to 166). Nor is there any evidence in the present applications 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 eighteen years or more in coming to Strasbourg. It follows that the applicants' complaints relating to the lack of effective investigation into the disappearances of their relatives in 1963-1964 were introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention.   3. Insofar as the applicants complain of the lack of any investigation by the authorities of the Republic of Cyprus following the discovery of the remains of their relatives between 2006-2009 and the treatment to which this subjects them, the Court finds that issues arise which it considers fall to be examined under Articles 2 and 3 of the Convention. However, it cannot, on the basis of the case file, determine the admissibility of this aspect of the applications and that it is therefore necessary, in accordance with Rule 54 §   2 (b) of the Rules of the Court, to give notice of this part of the applications to the respondent Government. For these reasons, the Court unanimously Decides to adjourn the examination of the applicants' complaints against the Republic of Cyprus concerning the lack of investigation following the discovery of the remains of their relatives and the treatment which they suffer as a result; Declares the remainder of the applications inadmissible. André Wampach   Nina Vajić Deputy Registrar   President     A N N E X   No. Application   No. Applicant name date of birth place of residence Missing person Date and circumstances of disappearance Date and location of discovery of body Details of forensic report                    59623/08 Semral Emin (Mustafa) 17/12/1945 Gazimağusa Asim Sermet Erk (Mustafa) 04/12/1946 Gazimağusa Huseyin Semih Erk (Mustafa) 04/11/1949 Gönyeli / Lefkoşa Kutlay Erk (Mustafa) 13/09/1952 Lefkoşa Mustafa Arif Last seen by family on 22.12.1963 in hospital in Nicosia after he had suffered a heart attack. Hospital witnesses told the family that on 23. 12.1963 two uniformed Greek Cypriots from the Central Prison had taken him from the ward Remains found with another body in a backfilled well in Strovolos, south Nicosia on 20 February 2007; identification report dated 23 May 2008; family viewed body on 29 May 2008.   Forensic report dated 10 June 2008; death caused by massive brain damage from gun shot to the head by longbarrelled weapon or high calibre automatic weapon at close proximity.                    3706/09 Nazli Gürtekin 28/10/1926 Lefkoşa / Mersin 10 Ali Gürtekin 05/01/1963 Lefkoşa / Mersin 10 Mehmet Salih Gürtekin 19/02/1954 Lefkoşa / Mersin 10 Lema Tavli 25/12/1955 Konya Serife Gürtekin 05/05/1957 Lefkoşa / Mersin 10 Derviş Mehmet Last seen 24 December 1963 setting out for Nicosia on foot; the Turkish-Cypriot village of Matyat had been attacked on 23 December by EOKA paramilitaries, the population forced out and the houses looted and set on fire.   Remains found with another in a backfilled well in Strovolos, south Nicosia; identification report dated 29 July 2008;   Forensic report dated 10 June 2008 indicated that he had been killed by a bullet to the head fired at close range.                    16206/09 Fatma Aybenk Abdullah 03/01/1938 Mersin Nazim Aybenk 12/02/1958 London Goksun Denizhan 24/08/1960 Mersin Emir Erdinc Aybenk 25/12/1963 Mersin Abdullay Emirzade Killed by Greek Cypriot soldiers on 11 May 1964 when his truck was stopped; truck later seen driven by Greek Cypriot soldiers.   Remains found 18-19 January 2008 in a burial site containing another body at Dipkarpaz/Rizokarpasson; identification report dated 3 November 2008; family saw the remains on 7 November 2008.   Forensic report dated 18 November 2008 indicated bullet wound to head and multiple fractures                    25180/09 Meryem Arkut 05/04/1937 Lefkoşa / Mersin 10 Mehmet Savas Arkut 12/01/1964 Lefkoşa / Mersin 10 Ahmet Arkut 29/04/1962   Lefkoşa / Mersin 10 Hüseyin Ahmet   Last seen on 11 May 1964, when the bus he was driving for NAAFI was stopped by Greek Cypriot soldiers; he was taken from the bus with another Turkish Cypriot.   Remains located in backfilled well in locality Protaras-Pirki with five other bodies in June 2006; formal identification report dated 29 November 2007; remains handed over to family August 2007. No forensic report in the file. Bullet hole visible in skull and shrapnel damage to left hip.                    32744/09 Ayşe Akay 06/12/1940 Mersion 10 Halil Tomac 26/10/1958 Mersin 10 Akay Osman 07/12/1959 Girne / Mersin 10 Zuhal Keskinel 23/01/1962 Mersin 10 Mesut Akay 09/03/1964 Mersin 10 Mustafa Osman Akay Last seen on 29 April 1964 driving to deliver groceries, van found abandoned when stopped by Greek-Cypriot paramilitaries. Identification report 9 April 2009. Forensic report 16 April 2009; death by bullet to the head.                    36499/09 Omer Hussein 27/12/1952 Kent Hasan Buba 24/03/1958 Girne / Mersin 10 Fahri Egemen 1934 Girne / Mersin 10 Hüseyin Mehmet Baba Last seen getting off bus in Nicosia on the way to his duty as Cypriot soldier at the tripartite army HQ on 23 December 1963. Remains found in locality of Strovalos when well was re-opened Sept-Nov 2007 and further three bodies found; identification report 12 February 2009; remains handed over to family on 17 February 2009. Forensic report dated 3 March 2009 indicated a bullet entry and exit hole to the skull.                    57250/09 Ayşe Eray 05/07/1939 Mağusa / Mersin 10 Sadi Esentan 12/08/1952 Mersin 10 Ayse Esentan 1927 Mersin 10 Ayse Aykanat 17/10/1939 Güzelyurt / Mersin 10 Vasviye Aysan 08/03/1957 Güzelyurt / Mersin 10 Salih Aykanat 03/03/1958 Mersin 10 Gulay Inonulu 17/10/1959 Mersin 10 Umit Aykanat 01/04/1962 Güzelyurt / Mersin 10 Melek Ozluses 10/06/1964 Mersin 10   Vijdan Ozanalp 12/03/1939 Mersin 10 Mustafa Ozatli 18/03/1960 Girne / Mersin 10 Duru Ozatli 04/02/1957 Lefkoşa / Mersin 10 Musteyde Hacioglu 1954 Mersin 10 Ayse Esencag 1957 Mersin 10 Fikriye Ozgum 01/04/1937 Girne / Mersin 10 Mustafa Ozgum 27/11/1954 Girne / Mersin 10 Ali Ozgum 04/09/1957 Girne / Mersin 10 Ercan Ozgum 18/03/1959 Girne / Mersin 10   Tunay Ozgum 19/07/1962 Girne / Mersin 10 Fatma Mercanoglulari 13/10/1936 Mersin 10 Fatma Taskan 25/07/1955 Mersin 10   Erbay Goksan 12/02/1949 Mersin 10 Hasan Eray Goksan 06/02/1947 Mersin 10 Zehra Guneysel 08/04/1937 İskele / Mersin 10 Huseyin Guneysel 11/12/1960 İskele / Mersin 10 Mumus Alkim 15/12/1962 Lefkoşa / Mersin 10 Goksel Yusuf 09/02/1939 Melbourne Victoria Ozel Sehitoglu 30/10/1942 Mersin 10 Aysel Aydin Durusoy 16/08/1947 Mersin 10   Hatice Dimililer 24/10/1930 Mersin 10 Ceylan Celiker 07/07/1951 Mersin 10 Taner Dimililer 04/09/1952 Girne / Mersin 10     Yahya Dimililer 14/02/1954 Mersin 10 Celal Dimililer 01/11/1955 Mersin 10 Husnuye Bitta 02/02/1957 Girne / Mersin 10 Songul Sagdinc 27/08/1959 Mersin 10 Sentac Ari 02/04/1962   Girne / Mersin 10   Mehmet Indiyano One of the ten passengers last seen on 13 May 1964 on the bus to the British Base at Dhekelia where they worked: Yusuf Tosun (below) was the bus driver. The bus was never found.   Remains found at burial site in a well in Voroklini village in Sept-Oct 2006; handed over to family in April 2009. Identification report 20 May 2009. Forensic report dated 24 July 2009; two bullets to head, one bullet to right arm. Kamil Raif Dimililer   As above. As above. Forensic report dated 24 July 2009; three bullets to the head, severe traumatic fractures to ribs and left arm bones. Ahmet Balamagi As above. As above. Forensic report dated 24 July 2009; death by bullet to head; fractures on ribs possibly due to other bullet injuries. Hasan Mustafa Bari As above. As above. Forensic report dated 24 July 2009; three bullet wounds at least to head (bones fractured severely); one bullet entry wound to the back. Behiç Hasan Göksan As above. As above. Forensic report dated 24 July 2009; two bullets to head at least; fracture to left leg bone. Hasan Durmus As above. As above. Forensic report dated 24 July 2009; two bullet wounds to head, three others on left arm, right arm and back. Yusuf Tosun As above. As above. Forensic report dated 24 July 2009; at least two bullets to the head; at least three fractures by bullets caused to right arm bones, left leg bones (2). Kemal Enver Veloks As above. As above. Forensic report dated 24 July 2009, four bullet wounds to head, one to ribs; numerous fractures possibly indicative of ill-treatment before death. Bayram Mustafa As above. As above. Forensic report dated 24 July 2009; three bullets to the head; bullet fracture on left leg bone. Hasan Hüseyin Fehmi As above. As above. Forensic report dated 24 July 2009; three, possibly four bullets to the head; traumatic lesion on right foot. Kemal Mustafa Aydoglani As above. As above. Forensic report dated 24 July 2009; two bullet wounds to head, traumatic fractures of ribs, left leg and left pelvis.