FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54591/00
by Andreas MANITARAS and Others
against Turkey

The European Court of Human Rights (Fourth Section), sitting on 3 June 2008 as a Chamber composed of:

Nicolas Bratza, President,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
Işıl Karakaş,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 1 October 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants (first applicant: Mr Andreas Manitaras; second applicant: Mr Elias Elia; third applicant: Mr Panayiotis Elia; fourth applicant: Mrs Anna Manitara; fifth applicant: Mrs Evangelia Manitara; sixth applicant: John Manitaras) are six Cypriot nationals of Greek Cypriot origin who were born in 1939, 1955, 1956, 1957, 1959 and 1964 respectively. The second applicant is living in Meneou and the third, fourth and fifth applicants are living in Paralimni. The first and sixth applicants have dual Cypriot and British nationality and live in the United Kingdom.

2. The applicants brought their application on their own behalf and on behalf of Ioannis Manitaras, a Cypriot national of Greek Cypriot origin who was born in 1914 and died on 4 April 1999. The first, second, third, fourth and fifth applicants are the children of Ioannis Manitaras, and the sixth applicant is his grandson.

3. The applicants are represented before the Court by Mr Z. Koulias, a lawyer practising in Larnaca. The Turkish Government (“the Government”) are represented by their Agent, Mr Z.M. Necatigil.

4. The facts of the case, as submitted by the parties, may be summarised as follows.

1. The death of Ioannis Manitaras

5. Ioannis Manitaras was born and raised in the village of Rizokarpaso in the Karpas peninsula, district of Famagusta, in northern Cyprus. He worked there as a farmer and owned a house with some land.

6. Following the Turkish intervention of 1974, Ioannis Manitaras remained in Rizokarpaso as one of the “enclaved”, that is, a small remaining group of Greek Cypriot residents of the Karpas peninsula who continue to live there under Turkish occupation. In February 1998 he gave evidence to the delegation of the European Commission of Human Rights in the course of the Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001-IV) proceedings at a hearing held at the Ledra Palace Hotel in Nicosia.

7. On 4 April 1999 Ioannis Manitaras was found dead in his house in Rizokarpaso.

8. On 5 April 1999 a post-mortem examination was carried out by Dr Horoz, a general practitioner authorised by the local authorities. He concluded that Ioannis Manitaras had died of a myocardial infection. Consequently, a press statement was issued by the Ministry of Foreign Affairs of the Turkish Republic of Northern Cyprus (“the TRNC”) confirming the findings of this report. A medical officer from the United Nations Peacekeeping Forces in Cyprus (UNFICYP) was present at the post-mortem examination. He also prepared a brief report, without referring to the cause of death.

9. The applicants allege that they were unable to bury the deceased in his home village because of restrictions on freedom of worship and repeated vandalism of Greek Cypriot graves. Thus they arranged for him to be buried in the southern part of Cyprus. They allege that the body was handed over to them in a particularly distressing and disrespectful manner and that the Turkish authorities showed a total lack of regard for the grieving family. In particular, they state that when it was delivered to them, the deceased’s body was partially covered in an old sheet and was not in a temporary coffin or body bag. Further, the sixth applicant, the grandson of the deceased, was refused permission to accompany the first, second and third applicants (that is, his father and two uncles) to Rizokarpaso village on 5 April 1999 for a brief visit to retrieve the clothes of Ioannis Manitaras and other things necessary for the funeral and burial.

2. The post-mortem examination conducted in the General Hospital in Nicosia

10. On 7 April 1999 a second post-mortem examination was conducted in the General Hospital in Nicosia by two specialists, Dr Sofocleous and Dr Matsakis (one appointed by the family of Ioannis Manitaras and one by the Government of the Republic of Cyprus), in the presence of United Nations observers. A video and photographs were taken during the autopsy. The conclusions of these examinations were that there was “no evidence of coronary artery thrombosis, myocardial infarction or significant previous ischemic episodes” and that the cause of death was “severe trauma in the cervical vertebra due to the application of excessive force”.

11. At the request of the Attorney General of the Republic of Cyprus, the reports of both post-mortem examinations were reviewed by Professor Jorgen L. Thomsen, State Forensic Pathologist at the Institute of Forensic Medicine at the University of Southern Denmark. He agreed with the conclusions of the second post-mortem report and criticised the first as not living up to international standards.

12. On 20 May 1999 the file was referred to the “TRNC” Attorney-General, who recommended a coroner’s inquest. The coroner examined the file and came to the conclusion that the deceased had died a natural death due to myocardial infarction and that there was no indication that he had been the victim of an act of violence. In view of the above, the coroner decided that it was not necessary to carry out an inquest.

3. The report by Dr Cassidy

13. Before the Court, the Government produced a report from Dr M.T. Cassidy, Deputy State Pathologist and Senior Lecturer at the Forensic Medicine Department of Dublin Trinity College. At the request of the UNFICYP, Dr Cassidy examined various documents, scientific reports, videos and photographs concerning the death of Ioannis Manitaras. She also interviewed all persons who could give information about the case, including the members of the deceased’s family.

14. Paragraphs 3, 4 and 5 of Dr Cassidy’s report read as follows:

“3. Summary

3.1 Mr Ioannis Manitaras was an elderly Greek Cypriot, residing alone in the Turkish region.

3.2 He was receiving treatment for heart disease and had been hospitalised for a “heart attack” and for treatment of an arrhythmia.

3.3 He was at his neighbour’s home on the night of 3rd April 1999 and was said to have been seen and spoken to early on Sunday 4th April 1999.

3.4 In the mid Sunday morning Mr Manitaras was found dead lying on the floor of his bedroom.

3.5 He was fully clothed, including jacket, apart from his shoes. He was lying face down and on his right side. There was a pool of fluid and blood at his head. There were a few injuries on the right side of head.

3.6 His body was removed to the local hospital and a post-mortem examination was carried out on 5th April. This was limited to removal of the cerebral hemispheres, the lungs and the heart. The latter only was dissected.

3.7 External examination showed bruising around both eyes and two injuries to the right side of the head. Post mortem staining was noted over the back and multiple “bruises” over the upper chest.

3.8 An area of discoloration on the heart was interpreted as an infarct, and the cause of death was determined as due to a heart attack.

3.9 The body was transported to the Greek region and a second post-mortem examination was carried out.

3.10 This described additional injuries including superficial flapped injury to the left side of the scalp, marks on the cheeks and lips as well as minor injuries on the hands. Petechial haemorrhage was noted in the eyes.

3.11 Internally the most significant finding was of bruising in the soft tissues of the neck and a fracture of the spine.

3.12 These injuries were interpreted as indicating an assault, death being due to a broken neck, caused in an arm lock, which was thought to have caused asphyxia. Other explanations were dismissed.

3.13 The photographs of the scene and the body pre-autopsy, after the first autopsy and during the second autopsy were taken.

3.14 The body is seen fully clothed, apart from shoes lying on his right side, face down on a stone floor. A few minor injuries were noted on the right side of the head and there was fluid and blood under the head apparently from the injuries.

3.15 Photographs after the first post mortem confirm the paucity of injuries.

3.16 Photographs of the second post mortem now show well developed bruising of the eyes and petechiae are now prominent around the eyes, the neck and over the upper chest. A post mortem injury is now apparent on the left side of the scalp and some other indistinct marks are shown. There was definite bruising under the injuries on the right side of the scalp but no skull or brain injury.

3.17 Internally a fracture of the cervical vertebra is demonstrated.

4. Interpretation

4.1 This elderly man was found dead in his home.

4.2 The position of the body at the scene is consistent with slumping forward onto the ground from a sitting position on the bed, no attempt being made to save himself, as determined by the position of the hands.

4.3 The injuries apparent were to the right side of face and head, consistent with impact with the stone ground.

4.4 Despite lying in this position after death, when the body is examined later, at the second post-mortem, lividity is on the back of the body, therefore he had not been lying long after death. This would be consistent with him dying on Sunday morning and therefore he could have been seen alive at 6.50 a.m. that morning.

4.5 The position of the body also suggests sudden collapse.

4.6 Petechial haemorrhage are seen around the eyes, on the face, neck and upper chest. The presence of petechial haemorrhages indicates hypoxia/asphyxia, and obvious causes of mechanical asphyxia must be excluded, particularly strangulation. However, petechial haemorrhage around the eyes are commonly seen in deaths from natural causes, particularly if due to heart disease which causes hypoxia. Petechial/purpuric haemorrhage are also commonly found within areas of post-mortem lividity and as Mr Manitaras was found lying “face down” this is one possibility which must be considered.

The pattern of distribution of the haemorrhage may give some indication of their cause. In strangulation the haemorrhages are above the level of compression of the neck.

As the distribution of the haemorrhages continues below the neck, a cause other than compression of the neck must be considered.

In cases of suspected neck compression, the neck is always examined last, first draining the area of blood by opening and removing the organs from the cranial and chest and abdominal cavities. This is done as artefactual haemorrhages can be produced in the neck area during manipulation and dissection of the neck organs. Therefore the interpretation of bruising in the anterior compartment of the neck, on the surface of the strap muscles, is fraught with potential difficulties. A post-mortem examination had been performed, the blood vessels in that area are seen to be congested, the neck was said to have been manipulated before the second post mortem and at the second post mortem the neck was dissected with the chest organs in situ. In view of this the bruising cannot be unequivocally attributed to pre-mortem compression of the neck.

4.7 The injuries to the face are concentrated on the right side, as illustrated in photograph 5. This was the side of the face in contact with the ground, and therefore all of these injuries could be caused by one impact with the ground. The soft tissues of the face were not dissected and therefore the other injuries described were not proven to be associated with subcutaneous bruising.

The pattern of bruising under the eye is of bruising related to the injury below the outer corner, which is an abrasion injury, more likely due to contact with the ground rather than a punch.

While one can never totally exclude that each and every injury is due to a separate impact, the pattern of injuries is the key factor.

4.8 One positive finding was fracture of the first cervical vertebra. There was haemorrhage over the front of the upper cervical spine indicating bleeding from this injury. Bodies can bruise and bleed after death, while the blood is still fluid within the vessels. This injury can therefore be interpreted as a pre or peri-mortem injury. This type of injury is due to compression of the head on the neck splitting the vertebra, +/- hyperextension. The mechanism of causation is a force transmitted through the head to the neck.

It is unlikely to be caused by a force from the front of the neck as such a force would be expected to be associated with more severe injury to the structures at the front of the neck.

If such an injury was the cause of death, damage to the upper cervical cord/brain stem would be expected. Firstly this area was damaged during the first post-mortem. Secondly there is no evidence of bleeding around the site in the photographs and no demonstrable damage. Microscopy may show haemorrhage into the tissue, which must be differentiated from congested vessels which can be misinterpreted as petechial haemorrhage. There is no evidence that the spine fracture had caused damage to the spinal cord nor that it caused his death.

4.9 The injuries to the hands are minor injuries, described as, and with the appearance in the photographs of, abrasions and lacerations. There are quite different injuries to those on the head area. These injuries are caused by contact with something rough or sharp, and while from their position they could be interpreted as defence injuries, as they are different and caused in a different manner from other injuries, they are not defence injuries caused by attempting to ward off blows of his head. One explanation is that these injuries could be inflicted by handling branches with rough or sharp edges.

4.10 Examination of the heart was incomplete at both post-mortems. Weighing the heart would have given an indication as to whether or not the heart was enlarged. However Mr Maniataras had a well documented history of heart problems including arithymia and cardiac failure, and was prescribed treatment for this.

Whether or not he was taking his medication, he was still at risk from collapsing and dying from his heart disease, despite no obstruction of the vessels being found at the second post-mortem.

Again the post-mortem findings must be interpreted in light of his medical history. Again histological examination of the tissues may show myocyte damage and fibrosis not obvious with the naked eye. In particular the area of discoloration described at the first post-mortem could have been proved or disproved as an infarct. The lack of acute findings in the heart does not negate the conclusion that death was due to heart disease.

4.11 Although he may have collapsed suddenly, Mr Manitaras may not have died instantly and may have survived unconscious for a few minutes.

5. Summary

After examination of the statements, reports, photographs and post-mortem reports I am of the opinion that Mr Manitaras appears to have been sitting on the edge of his bed when he suddenly keeled over, with a “heart attack”, falling heavily to the floor, the impact site, to the head and right side of the face. The force from the impact was transmitted across the head to the top of the spine, crushing and splitting the first cervical vertebra. He appears to have made no attempt to save himself as implied by the position of the hands and arms, suggesting that he was either dead or unconscious when he pitched forward to the ground. The injuries to the hands could have occurred separately during the course of his work. Death appears to be due to natural causes.”

15. In a letter of 8 August 1999, Inspector Liam Hogan from the United Nations Civilian Police (UNCIVPOL) forwarded Dr Cassidy’s report to the competent authorities. This letter reads as follows:

“Please find enclosed a copy of the report prepared for UNFICYP by an independent Forensic Pathologist.

We are in agreement with the conclusions reached by Dr Cassidy.”

COMPLAINTS

16. Invoking Article 2 of the Convention, the applicants complained about the killing of Ioannis Manitaras.

17. Invoking Article 13 of the Convention, the applicants complained of the absence of any proper investigation into the death of Ioannis Manitaras.

18. The applicants complained that the killing of Ioannis Manitaras and the subsequent treatment of his body and his family constituted inhuman and/or degrading treatment contrary to Article 3 of the Convention as well as a violation of their right to respect for their family life and home under Article 8.

19. Invoking Article 14 of the Convention, the applicants considered that the violations of their fundamental rights were due to their Greek Cypriot origins.

THE LAW

20. The applicants alleged that Ioannis Manitaras had been killed by or with the connivance of the Turkish authorities in northern Cyprus.

They invoked Article 2 of the Convention, which reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

21. The Government disputed this claim

A. The Government’s preliminary objections

1. Objection concerning Turkey’s lack of jurisdiction

(a) The Government’s objection

22. Relying on the principles laid down by the Court in the decision Bankovic and Others v. Belgium and Other States (no. 52207/99, ECHR 2001-XII), the Government disputed Turkey’s liability under the Convention for the violations alleged in the application. In particular, they contended that, notwithstanding the presence in Cyprus of a large number of Turkish troops engaging in active duties, Turkey had no actual “jurisdiction” and/or control over northern Cyprus, where the acts complained of by the applicants had occurred. In particular, Turkey had no jurisdiction over the Karpas area, which was under the administration and exclusive control of the “TRNC”. The latter was an independent de facto State exercising effective control over its people and territory. Therefore, Turkey could not be held responsible under the Convention for any act allegedly attributable to the “TRNC” authorities. Moreover, Turkey had no legal relationship with any of the applicants.

(b) The applicants’ reply

23. The applicants submitted that the Government’s objection amounted to an attempt to reopen questions which had been decided in the cases of Loizidou v. Turkey (judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, §§ 52-57) and Cyprus v. Turkey ([GC] no. 25781/94, §§ 75-78, ECHR 2001-IV). That approach should be confirmed in the present case, as the decision taken by the Court in the case of Bankovic and Others (cited above; see, in particular, §§ 70-71) did not suggest any reconsideration of the principles laid down in the previous case-law.

24. The applicants challenged the Government’s allegations concerning the independence of the “TRNC”. They pointed out that the “TRNC” was nothing more than a subordinate local administration and that its existence had not been recognised by any State other than Turkey.

(c) The Court’s assessment

25. The Court reiterates that, under Article 1 of the Convention, Contracting States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “jurisdiction”. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others v. Moldova and Russia, [GC], no. 48787/99, § 311, ECHR 2004‑VII). Furthermore, the words “within their jurisdiction” in Article 1 of the Convention must be understood to mean that a State’s jurisdictional competence is primarily territorial (see Banković and Others, decision cited above, § 59).

26. In exceptional circumstances the acts of Contracting States performed outside their territory or which produce effects there (“extra-territorial act”) may amount to exercise by them of their jurisdiction within the meaning of Article 1 of the Convention (see Loizidou, cited above, § 52, and Issa and Others v. Turkey, no. 31821/96, §§ 68 and 71, 16 November 2004). According to the relevant principles of international law, a State’s responsibility may be engaged where, as a consequence of military action – whether lawful or unlawful – that State in practice exercises effective control of an area situated outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control, whether it be exercised directly, through its armed forces, or through a subordinate local administration (see Loizidou, cited above, § 52).

27. In the particular situation concerning Cyprus, the Court found in the case of Cyprus v. Turkey (cited above) that having effective overall control over northern Cyprus, Turkey’s responsibility could not be confined to the acts of its own soldiers or officials in northern Cyprus but had also to be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support. It follows that, in terms of Article 1 of the Convention, Turkey’s jurisdiction must be considered to extend to securing the entire range of substantive rights set out in the Convention and those additional Protocols which she has ratified, and that violations of those rights are imputable to Turkey (see Cyprus v. Turkey, cited above, § 77).

28. At the outset the Court notes that the area in which the alleged acts complained of took place belonged to the territory of the “TRNC”. Therefore, Ioannis Manitaras came under the authority and/or effective control, and therefore within the jurisdiction, of the respondent State through its agents (see, mutatis mutandis, Isaak and Others v. Turkey (dec.), no. 44587/98, 28 September 2006).

29. The Court concludes, accordingly, that the matters complained of in the present application fall within the “jurisdiction” of Turkey within the meaning of Article 1 of the Convention and therefore entail the respondent State’s responsibility under the Convention.

30. It follows that the Governement’s objection should be dismissed.

2. Objection that the application is out of time

(a) The Government’s objection

31. The Government observed that Ioannis Manitaras had died on 4 April 1999 and that the second post-mortem examination had been carried out at Nicosia General Hospital on 6 April 1999. As the present application was base