Varnava and Others v. Turkey [GC]

Information Note on the Court’s case-law No. 122

August-September 2009

Varnava and Others v. Turkey [GC] - 16064/90, 16065/90, 16066/90 et al.

Judgment 18.9.2009 [GC]

Article 2

Positive obligations

Article 2-1

Effective investigation

Failure to conduct effective investigation into fate of Greek Cypriots missing since 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 missing since Turkish military operations in northern Cyprus in 1974: violation

Article 5

Article 5-1

Liberty of person

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: preliminary objection dismissed

Article 35-2

Same as matter already examined

Court’s jurisdiction where it had already examined case concerning substantially same facts in an inter-State case: 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

Facts – The applicants were relatives of nine Cypriot nationals who disappeared during Turkish military operations in northern Cyprus in July and August 1974. The facts were disputed. Eight of the missing men were members of the Greek-Cypriot forces and it is alleged by the applicants that they disappeared after being captured and detained by Turkish military forces. Witnesses had 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 men had been taken into captivity by Turkish forces and maintained 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 in Cyprus (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.

In a judgment of 10 January 2008 (see Information Note no. 104) a Chamber of the Court held that there had been continuing procedural violations of Articles 2 and 5, and a violation of Article 3. It found no substantive violation of Article 5.

Law

(a) Preliminary objections – The respondent Government challenged the Court’s jurisdiction to examine the case on several counts. Firstly, they submitted that there was no legal interest in determining the applications as the Court had already decided the question of the disappearances of all missing Greek Cypriots in the fourth inter-State case (Cyprus v. Turkey [GC], no. 25781/94, 10 May 2001, Information Note no. 30). Secondly, the applications fell outside the Court’s temporal jurisdiction as the missing men had to be presumed to have died long before Turkey’s acceptance of the right of individual petition on 28 January 1987 and there could be no freestanding procedural obligation, divorced from the factual origin of the complaints. In any event, the procedural obligation under Articles 2 and 3 was a recent jurisprudential development and could not be regarded as binding the States beforehand. Lastly, the applications had been lodged on 25 January 1990, more than six months after Turkey’s acceptance of the right to individual petition, and so were out of time.

(i) Legal interest: For the purposes of Article 35 § 2 (b) of the Convention, an application was only “substantially the same” as another which had already been examined if it concerned substantially not only the same facts and complaints but was introduced by the same persons. An inter-State application did not, therefore, deprive individual applicants of the possibility of introducing, or pursuing, their own claims. As to the question whether the applications should be struck from the Court’s list under Article 37 § 1 (c), the findings in the fourth inter-State case had not specified in respect of which individual missing persons they were made. Moreover, in individual applications, the Court had the competence to issue just satisfaction awards to individual applicants and to indicate measures under Article 46. A legal interest therefore remained in pursuing the examination of the applications.

Conclusion: preliminary objection dismissed (sixteen votes to one).

(ii) Temporal jurisdiction: The procedural obligation to carry out an investigation into deaths under Article 2 had evolved into a separate and autonomous duty and could be considered a “detachable obligation” capable of binding the State even when the death took place before the entry into force of the Convention (see Šilih v. Slovenia [GC], no. 71463/01, 9 April 2009, Information Note no. 118). It was immaterial that that procedural obligation had only developed in the Court’s case-law after Turkey’s acceptance of the right of individual petition as case-law was a means of clarifying pre-existing texts to which the principle of non-retroactivity did not apply in the same manner as to legislative enactments.

As to the argument that the missing men had to be presumed dead long before any temporal jurisdiction had arisen in 1987, the Court distinguished between the making of a factual presumption and the legal consequences that flowed from it. The procedural obligation to investigate disappearances in life-threatening circumstances could hardly come to an end on discovery of the body or the presumption of death as an obligation to account for the disappearance and death, and to identify and prosecute any perpetrator of unlawful acts, would generally remain. Accordingly, even though a lapse of over thirty-four years without any news could provide strong circumstantial evidence of intervening death, this did not remove the procedural obligation to investigate.

Further, there was an important distinction to be drawn between the obligation to investigate a suspicious death and the obligation to investigate a suspicious disappearance. A disappearance was a distinct phenomenon, characterised by an ongoing situation of uncertainty and unaccountability in which there was a lack of information or even a deliberate concealment and obfuscation of what had occurred. It was not an “instantaneous” act or event; the additional distinctive element of subsequent failure to account for the whereabouts and fate of the missing person gave rise to a continuing situation, with the procedural obligation potentially persisting as long as the fate of the missing person was unaccounted for, even where death was presumed. In that connection, the requirement for proximity of the death and investigative steps to the date of entry into force of the Convention (see Šilih) applied only in the context of killings or suspicious deaths.

Conclusion: preliminary objection dismissed (sixteen votes to one).

(iii) Six-month rule: Applicants in disappearance cases had to make proof of a certain amount of diligence and initiative and introduce their complaints without undue delay. While the standard of expedition expected of relatives should not be too rigorous in view of the serious nature of disappearance offences, applications could be rejected where there had been excessive or unexplained delay by applicants who were, or should have been, aware that no investigation had been instigated or that it had lapsed into inaction or become ineffective and that there was no immediate, realistic prospect of an effective investigation in the future. When that stage was reached depended on the circumstances of the particular case.

In the exceptional circumstances of the instant case, which involved an international conflict with no normal investigative procedures available, it had been reasonable for the applicants to await the outcome of the Government and United Nations initiatives, as these could have resulted in steps being taken to investigate known sites of mass graves and provided the basis for further measures. While it must have been apparent by the end of 1990 that those 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 had applied to the Court in January of that year. Accordingly, they had, in the special circumstances of the case, acted with reasonable expedition.

Conclusion: preliminary objection dismissed (fifteen votes to two).

(b) Merits

Article 2: The Court was satisfied that there was an at least arguable case that the missing men had last been seen in an area under, or about to come under, the control of the Turkish armed forces. Whether they had died or been taken prisoner, those men still had to be accounted for. Article 2 had to be interpreted in so far as possible in the light of the general principles of international law, including the rules of international humanitarian law, which played an indispensable and universally-accepted role in mitigating the savagery and inhumanity of armed conflict. In a zone of international conflict Contracting States were under obligation to protect the lives of those not, or no longer, engaged in hostilities. That obligation also extended to the provision of medical assistance to the wounded, the proper disposal of remains and the provision of information on the identity and fate of those concerned. The respondent Government had not produced any evidence or convincing explanation to counter the applicants’ claims that the missing men had disappeared in areas under the former’s exclusive control. As the disappearances had occurred in life-threatening circumstances where the conduct of military operations was accompanied by widespread arrests and killings, Article 2 imposed a continuing obligation on the respondent Government to account for the missing men’s whereabouts and fate.

On the question of compliance with that obligation, the Court fully acknowledged the importance of the CMP’s ongoing exhumations and identifications of remains and gave full credit to the work being done in providing information and returning remains to relatives. It noted, however, that while the CMP’s work was an important first step in the investigative process, it was not sufficient to meet the Government’s obligation under Article 2 to carry out effective investigations. From the materials provided in respect of one of the missing men, Mr Hadjipanteli, it appeared that the procedure on identification of remains was to issue a medical certificate of death, briefly indicating the fatal injuries. There was, however, no report analysing the circumstances or even the dating of death and no investigative measures to locate or question witnesses. Thus, even though the location of the body had been established it could not be said that any clear light had been shed on how the victim had met his fate.

While recognising the considerable difficulty in assembling evidence and mounting a case so long after the events, the Court reiterated that to be effective an investigation had to be capable of leading to a determination of whether the death was caused unlawfully and, if so, to the identification and punishment of those responsible. There was no indication that the CMP had gone beyond its limited terms of reference and no other body or authority had taken on the role of determining the facts or collecting and assessing evidence with a view to a prosecution. While an investigation might prove inconclusive, such an outcome was not inevitable and the respondent Government could not be absolved from making the requisite efforts. The fact that both sides in the conflict may have preferred a “politically-sensitive” approach and that the CMP with its limited remit was the only solution which could be agreed under the brokerage of the UN could have no bearing on the application of the Convention. There had thus been a continuing failure to effectively investigate the fate of the nine missing men.

Conclusion: continuing procedural violation (sixteen votes to one).

Article 3: The Court found no reason to differ from its finding in the fourth inter-State case that the Turkish authorities’ silence in the face of the real concerns of the applicants over the fate of their missing relatives could only be categorised as inhuman treatment.

Conclusion: continuing violation (sixteen votes to one).

Article 5: There was an arguable case that two of the missing men, both of whom had been included on International Red Cross lists as detainees, had last been seen in circumstances falling within the control of the Turkish or Turkish-Cypriot forces. However, the Turkish authorities had not acknowledged their detention, nor had they provided any documentary evidence giving official trace of their movements. While there had been no evidence that any of the missing persons had been in detention in the period under the Court’s consideration, the Turkish Government had to show that they had carried out an effective investigation into the arguable claim that the two missing men had been taken into custody and had not been seen subsequently. The Court’s findings above in relation to Article 2 left no doubt that the authorities had also failed to conduct the necessary investigation in that regard.

Conclusion: continuing violation in respect of two of the missing men (sixteen votes to one).

Article 41: EUR 12,000 in respect of non-pecuniary damage to each of the applicants, in view of the grievous nature of the case and decades of uncertainty the applicants had endured. The Court explained that it did not apply specific scales of damages to awards in disappearance cases, but was guided by equity, which involved flexibility and an objective consideration of what was just, fair and reasonable in all the circumstances.

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This summary by the Registry does not bind the Court.

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