FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Applications nos. 479/07, 4607/10 and 10715/10
by Angeliki PAPAYIANNI and Others and two other cases
against Turkey
The European Court of Human Rights (Fourth Section), sitting on 6 July 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Işıl Karakaş,
Ledi Bianku, judges,
and Lawrence Early, Section Registrar,
Having regard to the above applications lodged on 21 December 2006,
Having deliberated, decides as follows:
THE FACTS
The applicants are Cypriot nationals. Their names, dates of birth and places of residence are set out in the Annex.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. The applicants are relatives of three Greek-Cypriot men, reservists or serving in the army, who went missing in July-August 1974 following the invasion of northern Cyprus by Turkish armed forces. These men were listed as missing persons, the information being given to 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 between 2005‑9 (“CMP”). Further details are set out in the Annex.
B. The applicants also claimed that since the 1974 Turkish intervention in northern Cyprus they had been deprived of their property rights, as their property was located in the area that was under the occupation and control of the Turkish military authorities. Since that date, they had been prevented from having access to and using their properties and, in some cases, their homes.
COMPLAINTS
A. Concerning the disappearance and deaths of relatives
All applicants complain under Article 2 about the disappearance and death of their respective relatives and the lack of effective investigation into those matters, as well as invoking Articles 3 (as concerns the victim and/or themselves) and 5 in that regard.
The applicants 479/07 also complain under Articles 8, 10 and 13, while the applicants in 4607/10 complain additionally under Articles 8 and 14.
B. Concerning property complaints and lack of access to home
The applicants in all cases complained under Article 1 of Protocol No. 1 that they had been denied access to, and enjoyment of their properties in northern Cyprus and under Article 14 that the above matters disclosed discrimination.
The first to eighth applicants in no. 479/07 complained under Article 8 of lack of access to their family home, which the first applicant had owned until 1995-6 when she transferred it to the fourth applicant. The first, second and third applicants in no. 4607/10 complained under Article 8 that they had been deprived of their homes of which they are the co-owners, the second and third applicants being heirs to the share of their father. All four applicants in 10715/10 complained of lack of access to home which is owned by the first applicant.
THE LAW
A. Concerning the status of applicants
As a preliminary matter, the Court notes that in application no. 479/07 the missing person whose remains have been found is named as an applicant. According to the Court's practice, applications can only be introduced by, or in the name of, individuals who are alive at the moment they are lodged (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, § 111-113, ECHR 2009‑...). In the circumstances, the Court will continue to examine the application on the basis that the relatives of the missing person are the applicants for the purposes of Article 34 of the Convention.
B. Concerning events in 1974
The applicants complain that their relatives 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 Articles 3 (prohibition of torture and inhuman and degrading treatment or punishment), Article 5 (right to liberty and security of person), Article 8 (right to respect for private and family life), Article 10 (freedom of expression), Article 13 (right to an effective remedy for violations of Convention rights) and Article 14 (prohibition of discrimination in the enjoyment of Convention rights).
The Court observes that Turkey recognised the right of individual petition on 28 January 1987. Insofar therefore as the applicants' complaints are 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], 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.
C. Concerning investigation into the disappearance
The applicants complain under Article 2 of a lack of effective investigation into the disappearances of their relatives. They also invoke Articles 3 and 5 in this respect.
The Court recalls that the procedural obligation operates independently from the substantive obligation under Article 2. Where disappearances are concerned, the failure to account for the whereabouts or fate of persons gives rise to a continuing situation persisting after the actual event of disappearance, and accordingly the complaints as to the lack of investigation into the disappearance after ratification will fall within the Court's temporal jurisdiction (see Varnava and Others v. Turkey [GC], nos. 16064/90 et al, 18 September 2009, §§ 147-150, ECHR 2009-...).
Matters of jurisdiction aside, the Court may also only deal with a matter which has been introduced within the six-month time-limit imposed by Article 35 § 1 of the Convention.
In Varnava and Others v. Turkey [GC] (cited above, §§ 151-172), 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:
“166. 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 between 21 November 2008 and 30 September 2009. 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, §§ 165-166). 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 under Article 2 relating to the lack of effective investigation into the disappearances of their relatives in 1974 were introduced out of time. The same must equally apply to the complaints raised under Articles 3 and 5 in this respect.
This part of the application must accordingly be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
D. Concerning investigation into the discovery of remains
Insofar as the applicants complain of the lack of any investigation by the authorities of Turkey following the discovery of the remains of their relatives in 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.
E. Concerning property and home
1. Property complaints
Insofar as the applicants in these applications complained of interference with their property rights guaranteed under Article 1 of Protocol No. 1, 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 et 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 concerning property in the northern part of Cyprus. 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 from the application of Article 35 § 1 of the Convention has been established in that respect. As to 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 applicant property owners in the present cases, or as appropriate their legal heirs, have not made use of this mechanism. Their complaints under Article 1 of Protocol No. 1 to the Convention must therefore be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
2. Concerning home complaints
Insofar as applicants also complained that they had been prevented from returning to the homes which they owned, the Court notes that claimants who own property may make claims to the IPC in respect of non-pecuniary damages, which provision in Law 67/2005 is broad enough to encompass aspects of any loss of enjoyment of home (see Demopoulos, cited above, §§ 37 and 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.
Insofar as applicants who had no property right in the claimed home complained of a continuing inability to return to that home (namely the second, third and fourth applicants in application no. 10715/10 and no. 4607/10, and first, second, third, sixth, seventh and eight applicants in no. 479/07) the Court recalls that they would be unable to take any claim based on Article 8 alone before the IPC (see Demopoulos, cited above, § 135).
However, the Court also found in Demopoulos (cited above, § 136) that:
“...it is not enough for an applicant to claim that a particular place or property is a “home”; he or she must show that they enjoy concrete and persisting links with the property concerned (see e.g. Gillow v. the United Kingdom, 24 November 1986, § 46, Series A no. 109). The nature of the ongoing or recent occupation of a particular property is usually the most significant element in the determination of the existence of a “home” in cases before the Court. However, where “home” is claimed in respect of property in which there has never been any, or hardly any, occupation by the applicant or where there has been no occupation for some considerable time, it may be that the links to that property are so attenuated as to cease to raise any, or any separate, issue under Article 8 (see, for example, Andreou Papi v. Turkey, no. 16094/90, § 54, 22 September 2009). Furthermore, while an applicant does not necessarily have to be the owner of the “home” for the purposes of Article 8, it may nonetheless be relevant in such cases of claims to “homes” from the past that he or she can make no claim to any legal rights of occupation or that such time has elapsed that there can be no realistic expectation of taking up, or resuming, occupation in the absence of such rights (see, mutatis mutandis, Vrahimi v. Turkey, no. 16078/90, § 60, 22 September 2009, where the applicant had never had any “possession” in the property which had been owned by a company). Nor can the term “home” be interpreted as synonymous with the notion of “family roots”, which is a vague and emotive concept (e.g. Loizidou, judgment on the merits cited above, § 66).
As concerns the second, third and fourth applicants in application no. 10715/10) the Court notes that they were born in 1971, 1972 and 1973 respectively. They were thus were very young at the time they ceased to live in the then family home in 1974, which was some thirteen years before the Court's temporal jurisdiction commenced and some thirty-six years before the date of introduction of their application. Similarly, the second, third and fourth applicants in no. 4607/10 were born in 1969, 1971 and 1975. For most of their lives, these applicants have been living with their families elsewhere; indeed the fourth applicant in no. 4607/10 was born after the family fled the family home in 1974 and had never lived there. The Court perceives no concrete ties in existence at this moment in time, and accordingly does not find that the facts of the case are such as to disclose any present interference with the applicants' right to respect for home.
As concerns the first, second, third, sixth, seventh and eighth applicants in no. 479/07, the Court recalls that the first applicant, born in 1927, ceded her title to the family home to one of her children in or about 1994-5; the second and third applicants, her children born in 1948 and 1950, and the sixth applicant born in 1938 who married the second applicant at an unspecified date and their children, the seventh and eighth applicants, born in 1966 and 1969 in London have all claimed that they were forced to leave the family home in 1974, implying that they had all been living there together at the time of the invasion. However, the Court notes that the title to the family home is now vested in the fourth applicant who may, as noted above, make a claim before the IPC for restitution, exchange or compensation in lieu of restitution. It cannot be anticipated at this stage whether or not the fourth applicant would be successful in obtaining possession of the erstwhile family home or whether, for example, he might accept an offer of friendly settlement of compensation during the proceedings as many previous claimants before the IPC have done. It therefore seems to the Court that the applicants' claims of being unable to return to their former home are contingent on the outcome of any proceedings brought by the fourth applicant in respect of his property rights and his decisions as to the eventual disposal of that property if returned to him; these applicants' claimed links with the property themselves have thus become legally tenuous and any return to occupation a somewhat speculative option dependent on the vindication by another of his ownership rights through domestic procedures. In these very particular circumstances, the Court considers that no separate issue arises concerning the applicants' claims about inability to return to homes which are owned by others.
This part of the application must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
3. Remaining complaints under Article 14 of the Convention
Having regard to the facts of the cases, the submissions of the parties and its findings under Article 1 of Protocol No. 1 and Article 8 of the Convention, the Court considers that no further issue arises for examination concerning the remaining complaints made by the applicants.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to adjourn the examination of the applicants' complaints 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.
Lawrence EarlyNicolas Bratza
RegistrarPresident
A N N E X
No.
Appl. no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
Name of victim
Date and circumstances of desappearance
Date and location of discovery of body and id documents
Details of forensic report (date and cause of death/findings)
479/07
21/12/2006
Angeliki Papayianni
28/07/1927
Nicosia
Theano Papayianni Kyriakou
15/02/1948
Nicosia
Maria Papayianni
13/02/1950
Nicosia
Andreani Papayianni Myridaki
02/12/1952
Athens
Panayiotis Kyriakou
17/01/1938
Nicosia
Diamanto Kyriakou Theodotou
10/09/1966
Nicosia
Kyriakos Kuriakou
09/02/1969
Nicosia
Achilleas Demetriades
Ioannis Papayianni (reservist)
The victim was with the 398th infantry battalion stationed in Kythrea. Last seen on 14 August 1974 with 4 comrades in the custody of Turkish soldiers near the village of Chatos (Kiados). He was photographed while in detention by a journalist working for a Turkish newspaper who was covering the event and who was captured on that above date by the Cypriot national guard (five men from the same battalion appear in the photo). [In one picture Mr Papayianni is sitting on the ground with his hands behind his head and a Turkish soldier is seen lighting a cigarette for him.
The remains were found in a well in Kiados (the remains of 19 individuals) and exhumed between 22 November and 3 December 2006. They given to the family on 14 August 2009.
On 19 October 2009 the family were given (i) the identification report by the Cyprus institute of Neurology and Genetics dated 6 August 2009; (ii) the summary report of Anthropological identification by the CMP Bi communal forensic team dated 9 October 2009 (iii) a letter by CMP informing relatives of discovery and identification of remains dated 24 September 2009.
The medical certificate for the cause of death signed by a doctor and dated 12 August 2009 indicated two bullet wounds to the head.
4607/10
30/12/2009
Styliani Georghiou
07/05/1951
Latsia
Chrystalla Constantinou Allayiotou
13/05/1969
Latsya
Costas Constantinou
11/02/1971
Latsya
Charalambia Konstantinou Michail
10/02/1975
Aradippou
Achilleas Demetriades
Georgios Constandinou Papageorghiou
The victim had been serving with the 398th infantry battalion in Kythrea. According to a message sent via the I.C.R.C. the victim was apparently last seen in Kornokipos village around 20 September 1974. The village was under the control of the Turkish troops.
The remains were found in a mass grave in a well in Kiados and given to the family on 9 October 2009.
The medical certificate for the cause of death signed by a doctor and dated 8 October 2009 indicated a bullet wound to the skull. A post-mortem examination dated 29 October 2009 taken by a forensic pathologist and pathological anatomist indicated as the cause of death a bullet wound to the head fired by a low velocity weapon at relatively close range. The doctor also noted that “the scapulae, clavicles and hand bones” were missing bilaterally and “the possibility of a second bullet wound through the temporo-parietal regions was suspected but could not be confirmed or rules out as there was much bone loss in these areas.”
10715/10
09/02/2010
Georghia Andreou Aghapiou
03/11/1948
Nicosia
Savvas Agapiou
15/02/1971
Nicosia
Constantia Agapiou
24/04/1972
Nicosia
Kyriacos Agapiou
31/08/1973
Nicosia
Achilleas Demetriades
Nikos Aghapiou
As above.
The remains were found in a well in Kiados (the remains of 19 individuals) and exhumed between 22 November and 3 December 2006. The family were given the remains on 10 October 2009. On 20 January 2010 the family were given (i) the identification report by the Cyprus institute of Neurology and Genetics dated 8 December 2009; (ii) the summary report of Anthropological identification by the CMP Bi communal forensic team dated 11 December 2009 (iii) a letter by CMP informing relatives of discovery and identification of remains dated 14 December 2009.
The medical certificate for the cause of death signed by a doctor and dated 8 October 2009 indicated a bullet wound to the head and a wound caused by a pointed cutting instrument to the 4th and 5th cervical vertebrae.
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