CM/Inf/DH(2005)6/1 revised 4 23 November 20051
Case of Cyprus against Turkey, judgment of 10/05/01 - Grand Chamber - Greek Cypriot missing persons and their relatives
Memorandum prepared by the Secretariat – Version updated for the 948th meeting
1. The purpose of this document is to summarise the information received during the examination of the case by the Deputies at the Committee of Ministers’ meetings concerning the violations of Articles 2, 3 and 5 of the Convention with respect to Greek-Cypriot missing persons and their families.
2. To facilitate the reading of this document, the further details and the new information submitted since the last version are presented in grey boxes.
3. This question was last examined at the 940th meeting of the Committee of Ministers (October 2005).
4. It is proposed for debate at the present meeting.
Table of contents
Continuing violation of Articles 2 and 5 of the Convention page 2
Continuing violation of Article 3 of the Convention page 5
1. In its judgment, the Court considered the facts as found by the Commission as established and stated its “concern to limit its inquiry to ascertaining the extent, if any, to which the authorities of the respondent State have clarified the fate or whereabouts of the missing persons.” It specified in this respect that “it is not its task to make findings on the evidence on whether any of these persons are alive or dead or have been killed in circumstances which engage the liability of the respondent State” (§§ 120 and 121 of the judgment).
Continuing violation of Article 2 of the Convention (right to life) of the Convention
2. According to the Commission, “the authorities of the respondent State had a positive obligation under Article 2 to conduct effective investigations into the circumstances surrounding the disappearances” (§ 127 of the judgment). In this respect, the Court has in particular found, that “no attempt was made to identify the names of the persons who were reportedly released from Turkish custody into the hands of Turkish-Cypriot paramilitaries or to inquire into the whereabouts of the places where the bodies were disposed of. It does not appear either that any official inquiry was made into the claim that Greek-Cypriot prisoners were transferred to Turkey” (§ 134 of the judgment).
3. The Court concluded that there was a continuing violation of Article 2 concerning the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts and fate of Greek Cypriot missing persons who disappeared in life-threatening circumstances (§ 136 of the judgment).
4. In this respect, the Court found that, “the respondent State’s procedural obligation at issue cannot be discharged through its contribution to the investigatory work of the CMP. Like the Commission, the Court notes that, although the CMP’s procedures are undoubtedly useful for the humanitarian purpose for which they were established, they are not of themselves sufficient to meet the standard of an effective investigation required by Article 2 of the Convention, especially in view of the narrow scope of that body’s investigations (paragraph 27 above)” (§ 135 of the judgment).
5. In fact, the Court agreed with the conclusions of the Commission (§ 27), according to which, “the scope of the investigation being conducted by the CMP [is] limited to determining whether or not any of the missing persons on its list [are] dead or alive; nor [is] the CMP empowered to make findings either on the cause of death or on the issue of responsibility for any deaths so established. Furthermore, the territorial jurisdiction of the CMP [is] limited to the island of Cyprus, thus excluding investigations in Turkey where some of the disappearances were claimed to have occurred. [Finally,] it [is] doubtful whether the CMP’s investigation [may] extend to actions by the Turkish army or Turkish officials on Cypriot territory.”
Continuing violation of Article 5 of the Convention (right to liberty and security)
6. Examining the question in the light of the procedural obligations arising under Article 5 of the Convention, the Court reiterated that, “without questioning the value of the humanitarian work being undertaken by the CMP, (…) those obligations cannot be discharged with reference to the nature of the CMP’s obligation” (§ 149 of the judgment).
7. Moreover, although noting that it had not been established that during the period under consideration any missing Greek Cypriots were still being detained, the Court considered that there was a continuing violation of Article 5 concerning the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts and fate of the Greek-Cypriot missing persons in respect of whom there was an arguable claim that they were in Turkish custody at the time of their disappearance (§ 150 of the judgment).
Information/observations submitted by the Turkish authorities
8. Information received has, so far, focused on the role played by the Committee on Missing Persons in Cyprus (CMP). The Turkish authorities have underlined the importance of the CMP, the contribution of Turkey to the work of the CMP and the necessity of reactivating it. For this purpose, a letter was sent, on 17 June 2004 by Mr Denktaş to the Secretary-General of the United Nations. The latter’s reply of 4 August 2004, although favourable to the convening of the meeting, underlined his conviction that the CMP should not consider issues outside its sphere of responsibility. According to him, if the members of the CMP wish to enlarge the scope of activity and responsibility of the committee, they can do so by strengthening its existing rules of procedure.
9. The CMP has met several times as from 30 August 2004 and since then, the expert of the Turkish authorities has, at each examination of the case, presented the main work done in this context. It has thus been announced, that:
- Requests to provide information on the missing persons of both sides have been published in the Greek Cypriot and Turkish Cypriot press;
- The INFORCE Foundation has been chosen to carry out the exhumation work;
- The CMP set itself the objective to bring to a closure, as soon as possible, the remaining investigative work on both sides, on the basis of an agreed, comprehensive timetable;
- Discussions are underway with a view to amending the rules of procedure of the CMP to increase its effectiveness, while taking the suggestions and advice of the Secretary General of the United Nations in his letter of 04/08/04, and the necessity of applying the 1997 agreement on exhumations, identification of remains and their return to the families, into account;
- The results of the first searches carried out in northern Cyprus in January 2005 were negative, but new burial sites have since been and continue to be identified;
- An agreement was reached to establish an anthropological laboratory in the Buffer Zone, which is expected to be operational by the end of 2005.
10. According to the latest information provided by the Turkish authorities2 :
- Emergency excavations, conducted by an INFORCE archaeologist assisted by Turkish Cypriot and Greek Cypriot anthropologists and archaeologists, were carried out between 27/06/05 and 05/08/05 to safeguard remains and burial sites at risk due to heavy construction and land use projects taking place in northern Cyprus; they were carried out at 4 locations, discovered in late 2004 by the “Turkish Cypriot investigative teams” (TCIT) following intensive investigations, interviews with more that 38 persons and field work; the remains of approximately 25 persons were discovered, the exact number will be determined by the study of the remains by forensic anthropologists;
- In addition to those carried out by INFORCE, emergency excavations have also been conducted, on 8 sites, by the expert archaeologists of the “Department of Antiquities and Museums of the TRNC”, mainly necessitated by the ongoing construction boom in the “TRNC”; a rudimentary study has indicated the presence of approximately 55 to 60 persons, the exact number to be determined by careful study at an anthropological laboratory;
- All bones and artifacts discovered by the “TCIT” and INFORCE are currently kept at climatologically controlled safe deposit sites in the “TRNC”;
- The Turkish Cypriot side has spent nearly 200,000 USD between August 2004 and August 2005 for investigations, assessment and emergency excavations carried out in northern Cyprus;
- On 03/10/05, the Turkish Cypriot Member submitted to the CMP secretariat statistical information which summarizes the result of the intensive investigations carried out by the “TCIT”, indicating in particular that the Turkish Cypriot side managed to locate 136 burial sites, 123 of which await excavation;
- A general program of exhumations is expected to start in spring 2006, with 15 INFORCE experts;
- The “Committee of Ministers of the TRNC” allocated 195.000 New Turkish Liras (approximately 122.000 euros) for the establishment of the anthropology laboratory;
- The Turkish Government has donated 150.000 USD as a contribution to the work of the CMP.
11. In addition, the Turkish authorities stated that it is not necessary to conduct investigations in Turkey. In this regard they pointed out that:
- the ICRC (International Committee of the Red Cross), following numerous talks with Greek and Greek Cypriot prisoners detained in Turkey, noted in a statement of 13/03/1976 that no case of escape, death or disappearance of a war prisoner had ever been brought to its attention and that the prisoners detained in Turkey had later been repatriated and released in the territory under Greek Cypriot control;
- all Greek Cypriot prisoners taken to Turkey were contacted and listed by the ICRC at the relevant time and the term ‘missing’ thus did not apply to them;
- the 9 prisoners mentioned in the ICRC declaration of 11/03/1976 as being reported missing, were in fact detained in Cyprus, had never left the island and appeared on a list drawn up in Cyprus by a delegate of the ICRC on 28/08/743; an investigation into their fate would now be conducted within the revived CMP;
- with regard to persons allegedly recognised on photographs that were published in newspapers, a certain number of these cases has been transferred to a specialised institution in Lausanne for investigation and identification, of which the outcome was negative;
- so far no concrete evidence proving the presence of missing persons in Turkey had been provided to the CMP;
- lastly, the European Court itself has concluded in the relevant judgment, that there was no evidence to support the assumption that any missing Greek Cypriots were still in Turkish custody.
12. Following the reactivation of the CMP in August 2004, the Cypriot authorities, have stressed the need for the Committee of Ministers now to set strict deadlines and lay down the steps to be taken by the Turkish authorities. As a first step, the Turkish authorities should be urged to provide without delay:
- concrete information as to the fate of the missing civilians and prisoners of war during and after the hostilities,
- the list of persons arrested and detained in Turkey and in the north of Cyprus,
- the reports and records of the Turkish army concerning the Greek Cypriot and Greek dead and the place where their remains are buried.
13. With regard to the necessity of conducting investigations in Turkey and to the declaration of the ICRC of 1979 to which the Turkish authorities refer to deny the need for such investigations (see §11 above), they stress that this document and a certain number of similar documents had been carefully examined by the Court in the proceedings before it. They also note that the Turkish authorities have never provided any exact information neither on the number, nor on the identity of the Greek Cypriots that were deported as prisoners of war to Turkish prisons before August 1974.
Information/observations submitted by the Greek authorities
14. At the 940th meeting (11-12 October 2005), the Greek delegation announced that, in response to calls for support of the CPM, the Greek Government had decided to contribute the sum of 50,000 Cypriots Pounds (approximately 86,000 euros), to begin with.
Assessment and outstanding questions
15. The Secretariat notes that the work of the CMP progresses in a concrete manner. Exhumations have been conducted and remains have been found and stored awaiting their transfer to the anthropological laboratory which should be operational soon.
16. In this encouraging context, the following issues, which have already been mentioned in the past and recalled in the Interim Resolution adopted by the Committee on 7 June 2005, must nevertheless be kept in mind.
17. The urgency of obtaining concrete results: given the seriousness of the questions at issue, there can be no doubt as to the urgent need to take concrete steps as to the conduct of effective investigations, whether in the framework of the CMP or unilaterally. In this context, the information provided on the intensive work conducted during the Summer 2005 is highly welcome, as well as the assurance given that the anthropological laboratory established in the buffer zone will start to work soon.
18. The need – in any case – for additional measures: the Secretariat recalls that it is necessary to conduct effective investigations within the meaning of the Convention and the case-law of the European Court. In this respect, it is to be noted that the current mandate of the CMP4 does not allow this requirement to be fully satisfied (see § 5 above) and additional measures are therefore required, particularly to determine the causes of the disappearances and the circumstances in which they occurred. No information has as yet been provided as to the additional measures envisaged by the Turkish authorities.
19. The need to conduct investigations in Turkey: concerning the statement of the ICRC of 1976, the Secretariat notes that, despite the additional explanations provided by the Turkish authorities, clarifications are still needed, given the fact that the contested argument stating that all prisoners of war detained in Turkish prisons were repatriated under the patronage of the ICRC had been advanced before the European Commission on Human Rights as well as before the European Court, who nevertheless concluded that one of the deficiencies of the CMP was the territorial limitation of its competence.
Continuing violation of Article 3 (prohibition of inhuman or degrading treatment)
20. With regard to the relatives of Greek Cypriot missing persons, the Court found a continuing violation of Article 3 in that the silence of the Turkish authorities in the face of the real concerns of the relatives attained a level of severity which could only be categorised as inhuman treatment (§ 158).
21. The Court emphasised, more specifically, that, “the essence of such a violation does not so much lie in the fact of the “disappearance” of the family member but rather in the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct” (§ 156).
Information/observations submitted by the Turkish authorities
22. According to the information provide by the Turkish authorities, a special information unit had been created and would begin working shortly within the Office of the Turkish Cypriot member of the CMP to provide information to the families of Greek Cypriot and Turkish Cypriot missing persons. This unit has begun to function on 12/11/04 and that it had been the object of extensive coverage in the Greek and Turkish Cypriot press for about a week. Since that time, this unit had begun to receive requests, directly or by telephone, and the persons who introduced the requests would receive all the information available within a period of 48 hours.
23 In reaction to the criticism expressed by the Cypriot authorities (see §24 below), the Turkish authorities underline that all information available to them has been communicated to the CMP. They explain that the unit has been created to provide the families that ask for it with the available information, already transmitted to the CMP, but that it also promotes transparency, insofar as it appears that, in certain cases, the statements made by the families today, differ from those in the records of the CMP. As a consequence, this unit makes it possible to clarify these irregularities, as far as they exist. In addition, the dialogue that is established with the families and the fact that they are listened to, contribute to the reconciliation. Lastly, the Turkish authorities assure that all new information that could be obtained in this context would of course be transmitted to the CMP.
Information/observations submitted by the Cypriot authorities
24. The Cypriot authorities express their doubts as to the information that this special unit is capable of providing to the families. According to them, there are only two hypotheses: either the “Turkish Cypriot authorities” are in possession of information that should have been provided to the CMP a long time ago, or they have no information to provide and the unit is not more than a deception. In this respect, the Cypriot authorities criticize the fact that in the framework of this new unit, very basic information is requested of the families, information that has already been submitted to the CMP.
Assessment and outstanding questions
25. The explanations provided by the Turkish authorities on the functioning of the special information unit, notably in response to the criticism expressed by the Cypriot authorities, are encouraging.
26. It must nevertheless be pointed out that, while representing significant progress in the execution of the Court’s judgment as regards the violation of Article 3, such a unit will only fully fulfil its role as a remedy for this violation when concrete results for the families will be available as a result of the ongoing work of the CMP.
Note 1 This document has been classified restricted at the date of issue. Unless the Committee of Ministers decides otherwise, it will be declassified according to the rules set up in Resolution Res(2001)6 on access to Council of Europe documents.
Note 2 See Memorandum DD(2005)590 distributed to all delegations on 11/10/2005
Note 3 document not produced
Note 4 See the “Terms of reference for the Establishment of the CMP” adopted in April 1981 and quoted in the report of the European Commission of Human Rights of 4 June 1999, § 181