Information Note on the Court’s case-law No. 104
January 2008
Varnava and Others v. Turkey - 16064/90, 16065/90, 16066/90 et al.
Judgment 10.1.2008 [Section III]
Article 2
Positive obligations
Failure to conduct effective investigation into fate of Greek-Cypriots who had gone missing during the Turkish military operations in northern Cyprus in 1974: violation
Article 3
Inhuman treatment
Silence of authorities in face of real concerns about the fate of Greek-Cypriots who had gone missing during the Turkish military operations in northern Cyprus in 1974: violation
Article 5
Article 5-1
Deprivation of liberty
Failure to conduct effective investigation into arguable claim that missing Greek-Cypriots may have been detained during Turkish military operations in northern Cyprus in 1974: violation
Article 35
Article 35-1
Six month period
Application in disappearance case lodged more than six months after the respondent State’s ratification of the right of individual petition but within days of its recognition of the jurisdiction of the old Court: preliminary objection dismissed
Article 35-3
Ratione temporis
Court’s temporal jurisdiction in respect of disappearances that had occurred some thirteen years before the respondent State recognised the right of individual petition: preliminary objection dismissed
[This case was referred to the Grand Chamber on 7 July 2008]
Facts: The applicants are nine Cypriot nationals who disappeared during Turkish military operations in northern Cyprus in July and August 1974 and relatives of theirs. The facts were disputed. Eight of the missing men were members of the Greek-Cypriot forces and it is alleged that they disappeared after being captured and detained by Turkish military forces. Witnesses have testified to seeing them in Turkish prisons in 1974 and some of the men were identified by their families from photographs of Greek-Cypriot prisoners of war that were published in the Greek press. The Turkish Government denied that the applicants were taken into captivity by Turkish forces and said that they had died in action during the conflict. The ninth missing man, Mr Hadjipanteli, was a bank employee. The applicants alleged that he was one of a group of people taken by Turkish forces for questioning in August 1974 and who had been missing ever since. His body was discovered in 2007 in the context of the activity of the United Nations Committee of Missing Persons (CMP). The CMP was set up in 1981 with the task of drawing up comprehensive lists of missing persons on both sides and specifying whether they were alive or dead. It has no power to attribute responsibility or to make findings as to the cause of death. Mr Hadjipanteli’s remains were exhumed from a mass grave near a Turkish-Cypriot village. A medical certificate indicated that he had received bullet wounds to the skull and right arm and a wound to the right thigh. The Turkish Government denied he had been taken prisoner, noting that his name was not on the list of Greek Cypriots held in the alleged place of detention, which had been visited by the International Red Cross.
Law: Article 35 – (a) Temporal jurisdiction: The Turkish Government had submitted that, as the missing men had to be presumed to have died in 1974, the complaints concerned instantaneous acts that had occurred long before Turkish ratification of the right of individual petition in 1987. In rejecting that argument, the Court reaffirmed its ruling in the inter-State case of Cyprus v. Turkey (application no. 25781/94 – Information Note no. 30) that a failure to conduct an effective investigation into disappearances in life-threatening circumstances disclosed a continuing violation, as cases involving disappearances were characterised by ongoing uncertainty and were distinguishable from conventional cases of unlawful killing in which the fate of the victim was known. To the extent therefore that the facts of the applicants’ cases disclosed a continuing obligation under Article 2, the Court had competence ratione temporis.
(b) Six-month rule: The Turkish Government had argued that the applicants should have brought their applications to Strasbourg within six months of Turkish ratification of the right of individual petition. In rejecting that argument, the Court drew a distinction between two differing types of “continuing situations”: cases where the applicant was subject to an ongoing violation, due for example, to a legislative provision which intruded, continuously, on his private life, and cases, such as disappearances, where the continuing situation flowed from a factual situation that had arisen at a particular point in time. While accepting that applicants in the latter type of case had to act with reasonable expedition, it found that there had been no unnecessary delay in the instant case, as the applications had been lodged within three days of Turkey recognising the jurisdiction of the old Court. The issue whether applications introduced at a later date (in particular, long after the inter-State judgment) would comply was left open.
Conclusion: objections dismissed (six votes to one).
Article 2 – (a) Procedural obligation: The Grand Chamber had established in the inter-State case that many people who went missing in 1974 had been detained by Turkish or Turkish-Cypriot forces at a time when military operations were accompanied by large scale arrests and killings. The climate of risk and fear and the real dangers to which detainees were exposed disclosed a life-threatening situation. It was against that same background that the nine missing men in the applicants’ case had disappeared. The eight combatants had last been seen in areas surrounded or about to be overrun by Turkish forces and several witnesses had attested to seeing Mr Hadjipanteli being taken away by Turkish-Cypriot fighters. Given previous findings and the circumstances of the disappearances at locations which at the time or very shortly afterwards were under the control of Turkish forces or those acting under their aegis, Turkey had an obligation to account for their fate.
(b) Evidential requirements: Although individual applicants to the Court in cases arising out of events in south-east Turkey and the Chechen Republic had, despite numerous reported instances of forced disappearances, nonetheless been required to adduce evidence that their relatives had been taken into custody by State agents, the situation in the applicants’ case could be distinguished. A zone of international conflict where two armies were engaged in acts of war was per se life-threatening for those present. The relevant events would frequently be within the exclusive knowledge of the military and it would be unrealistic to expect applicants to provide more than minimal information placing their relatives in the area at risk. International treaties imposed obligations on combatant States as regards the care of prisoners of war, the wounded and civilians. Article 2 certainly extended so far as to require States which had ratified the Convention to take reasonable steps to protect the lives of persons not or no longer engaged in the hostilities. Disappearances in such circumstances therefore attracted the protection of Article 2.
(c) Compliance: The obligation to carry out an effective investigation could not be discharged through the respondent State’s contribution to the investigatory work of the CMP. Whatever its humanitarian usefulness, the CMP did not provide procedures sufficient to meet the standard required by Article 2, especially in view of the narrow scope of its investigations. The recent discovery of the remains of Mr Hadjipanteli did not demonstrate that the CMP had been able to take any meaningful investigative steps beyond the belated location and identification of remains. Nor, given the location of the remains in an area under the control of the “Turkish Republic of Northern Cyprus” after a lapse of some 32 years, had that event displaced the Turkish Government’s accountability for the investigative process during the intervening period.
Conclusion: continuing procedural violation (six votes to one).
Article 3 – The Court followed the principles and findings set out in the inter-State case and noted that the silence of the Turkish authorities in the face of the real concerns of the missing men’s relatives could only be categorised as inhuman treatment.
Conclusion: continuing violation (six votes to one)
Article 5 – (a) Substantive limb: It had not been established that the missing men had actually been detained by the Turkish or Turkish Cypriot authorities during the period under consideration.
Conclusion: no violation (unanimously).
(b) Procedural limb: The Turkish authorities had failed to conduct an effective investigation into the missing men’s whereabouts and fate when there was an arguable claim that they had been deprived of their liberty at the time of their disappearance.
Conclusion: continuing violation (six votes to one).
Article 41 – The claims for non-pecuniary damage were very high. While the Court noted the applicants’ concern to induce the respondent Government to take action as promptly as possible under pain of increased damages, it found no precedent for such an ongoing, indefinite and prospective award in its case-law and perceived no basis of principle on which to embark on such a course.
Noting that the individual interest was subordinate to the Court’s primary purpose of setting and applying minimum human-rights standards, the Court found that in the unique circumstances of the case, it would not be appropriate, constructive or even just, to make additional specific awards or recommendations for non-pecuniary damage sustained by individual applicants. In so deciding, it observed that (i) consideration of the possible application of Article 41 had been adjourned in the inter-State case; (ii) the situation was sensitive with over 1,400 people having been declared missing on the Greek-Cypriot side and some 500 claimed missing on the Turkish-Cypriot side; and (iii) the Committee of Ministers had an ongoing execution function in the context of the inter-State case, with the crucial element being the provision of measures enabling light to be shed on the fate of as many of the missing men, women and children as possible.
Conclusion: finding of violations sufficient just satisfaction (six votes to one).
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This summary by the Registry does not bind the Court.
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