IOANNOU IACOVOU AND OTHERS v. TURKEY

FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 24506/08, 24730/08, 60758/08
by Anastasia IOANNOU IACOVOU and Others
against Turkey

The European Court of Human Rights (Fourth Section), sitting on 5 October 2010 as a Chamber composed of:

Nicolas Bratza, President,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Işıl Karakaş,
Ledi Bianku,
Nebojša Vučinić, judges,
and Fatoşı Araci, Deputy Registrar,

Having regard to the above applications lodged on 15 May, 22 April and 3 December 2008,

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 Mr Ioannis Iacovou Stylianou, a Greek Cypriot who went missing in July 1974 following the invasion of northern Cyprus by Turkish armed forces. He was listed as a missing person, the information being given to the Red Cross and the United Nations.

The remains of the Mr Stylianou 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 first applicant also claimed that since the 1974 Turkish intervention in northern Cyprus she had been deprived of their property rights, as the family home was located in the area that was under the occupation and control of the Turkish military authorities. Since that date, the family had been prevented from having access to and using that family home.

COMPLAINTS

A. Concerning the disappearance and deaths of relatives

All applicants complain under Article 2 about the disappearance and death of their relative and the lack of effective investigation into those matters, as well as invoking Articles 3 (as concerns the victim and/or themselves), 5, 8 and 13 in that regard.

B. Concerning lack of access to home

The first applicant complained under Article 8 that she had been denied access to, and enjoyment of, the family home in northern Cyprus, of which she was the owner. The second and third applicants also complained of lack of access to the family home.

THE LAW

A. Concerning events in 1974

The applicants complain that their relative 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) and Article 13 (right to an effective remedy for violations 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.

B. Concerning investigation into the disappearance

The applicants complain under Article 2 of a lack of effective investigation into the disappearance of their relative. 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 may fall within the Court’s temporal jurisdiction (see Varnava and Others, cited above, §§ 147‑150).

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 (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 case, which also concerned a disappearance during the conflict in 1974, the applicants applied to the Court at various dates in 2008. 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 and Others, 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 relative’s 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 disappearance of their relative 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.

C. 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 relative in 2008 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.

D. Concerning property

Insofar as the first applicant complained of interference with her 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 has not made use of this mechanism. Her 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.

E. Concerning home complaints

Insofar as the first applicant complained that she had been prevented from returning to the home which she owned, the Court notes that claimants who own property may make claims to the Immovable Property Commission (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 and Others, cited above, §§ 37 and 133). It accordingly finds that this applicant’s complaints under Article 8 also fail for non-exhaustion of domestic remedies as she has not brought such a claim before the IPC. This part of the application is rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

Insofar as the second and third applicants who had no property right in the claimed home complained of a continuing inability to return to that home the Court recalls that they would be unable to take any claim based on Article 8 alone before the IPC (see Demopoulos and Others, cited above, § 135).

However, the Court also found in Demopoulos and Others (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).

The Court notes that these applicants were born in 1964 and 1971 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-four years before the date of introduction of their application. For most of their lives, they have been living with their families elsewhere. 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.

This part of the application must therefore be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

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 relative and the treatment which they suffer as a result;

Declares the remainder of the applications inadmissible.

Fatoşı AraciNicolas Bratza
              Deputy 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)

1.

24506/08

15/05/2008

Anastasia Ioannou Iacovou

02/03/1930

Ahna

Loukis G. Loucaides

Ioannis Iacovou Stylianou (civilian)

Last seen in the afternoon of 21 July 1974 in Elia village in Kyrenia. He was hiding in the basement of a house with other co-villages, including women and children (around 40 persons). In the afternoon (at about 4.00 p.m.) they were arrested by Turkish troops and led to a nearby olive-grove. At about 6.00 p.m. the Turkish soldiers started separating the men from the women and children and firing at the men. The women and children were pushed away by the Turkish soldiers and were forced to run away.

The remains of the missing person were exhumed between 27-28 January 2005 from a grave in a field in the village of Elia (the grave contained 12 bodies).

The family were given the remains on 3 October 2008. On 6 November 2008 the family were given (i) the identification report by the Cyprus institute of Neurology and Genetics dated 31 July 2008; (ii) the summary report of Anthropological identification by the CMP Bi communal forensic team dated 20 July 2008 (iii) a letter by the CMP informing relatives of discovery and identification of remains dated 10 October 2008.

The medical certificate for the cause of death signed by a doctor and dated 23 September 2008 indicated bullet wound to the head.

2.

24730/08

22/04/2008

Iacovos Ioannou Iacovou

07/06/1972

Kyrenia

Kyriakoula Ioannou Iacovou

23/11/1964

Kyrenia

As above.

As above.

As above.

As above.

As above.

3.

60758/08

03/12/2008

Anastasia Ioannou Iacovou

02/03/1930

Ahna

Iacovos Ioannou Iacovou

07/06/1972

Kyrenia

Kyriakoula Ioannou Iacovou

23/11/1964

Kyrenia

Kalliopi Ioannou Iacovou

14/06/1961

Karavas-Kyrenia

Efstathia Ioannou Iacovou

17/07/1969

Karavas-Kyrenia

As above.

As above.

As above.

As above.

As above.

 

Full & Egal Universal Law Academy