CM/Inf/DH(2007)10/1 revised 24 May 20071
Case of Cyprus against Turkey, judgment of 10/05/01 - Grand Chamber - Greek Cypriot missing persons and their relatives
Memorandum prepared by the Secretariat of the Department for the execution of judgments of the ECHR (Directorate General of Human Rights and Legal Affairs) – Version updated for the 997th 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 992nd meeting of the Committee of Ministers (April 2007).
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 6
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
A – As regards the activities conducted in the framework of the Committee on Missing Persons
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 which made possible the establishment of an anthropological laboratory in the Buffer Zone.
10. The Turkish authorities submitted to the Deputies the following information2:
- 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 a memorandum dated 31 January 20063 the Turkish authorities indicated notably that various other countries have also contributed to the exhumation works. Germany has donated 100.000 euros for the construction of the anthropological laboratory. In addition, the United Kingdom has donated 45.000 Cypriot Pounds for the training of the experts invited to participate in the identification and exhumation project. Furthermore, the location for the anthropological laboratory in the Buffer Zone had been selected and
construction work commenced on 9 January 2006. It was expected that it would be completed before April 2006. Agreement has been reached on the special DNA research mechanism to be used, under the general scientific supervision of two Scientific Advisors of the CMP (one Greek Cypriot and one Turkish Cypriot) for the identification of remains exhumed by the INFORCE Foundation. Turkish and Greek Cypriot experts, who will work in the anthropological laboratory, were expected to receive training in the United Kingdom with the support of the INFORCE Foundation.
12. At the 960th DH meeting (March 2006), the Turkish authorities provided further information regarding the progress of the Exhumation and Identification Project for which the proposal had been finalised under the guidance of three forensic advisors from the ICRC. During a 14-day program, the ICRC advisors helped to evaluate local capacities and provided on-site training for local anthropologists and archaeologists. Furthermore, the Turkish authorities stated that the building which would house the anthropological laboratory was ready, and that it would be equipped and furnished in consultation with the relevant institutions. In addition, DNA matching and identification was envisaged to be carried out at a special unit of the Cyprus Institute of Neurology and Genetics (“CING”). This unit, which consisted of Turkish and Greek Cypriot scientists, will be supervised by senior experts from both sides. The Turkish authorities further stated that the CMP hoped to receive the international support and encouragement in realizing this urgent Project and called upon the EU countries to support raising funds for it.
13. The Exhumation and Identification Project was launched on 21/08/2006. Since then, the Turkish authorities have continued to provide updated information on the progress in its implementation, and in particular the number of bodies excavated and the number of remains that underwent anthropological analysis, through statements at the respective DH meetings and through press releases of the CMP. They have also confirmed that the continued functioning of the Project through 2007 is guaranteed.
14. At the 992nd meeting (April 2007), the Turkish authorities submitted new information on the Exhumation and Identification Project. In particular, they announced that:
- the remains of 225 missing persons, belonging to both communities, were excavated and analysed in the CMP anthropological laboratory;
- the experts from the bi-communal team of the CING laboratory started to extract DNA samples for the analysis of the excavated remains;
- 76 samples from 7 sites were transferred from the anthropological laboratory to the CING for the first scheduled DNA analysis;
- 115 samples of DNA from relatives of missing persons were transferred from the Turkish Cypriot DNA laboratory to the CING for the identification of the human remains;
- the anthropological laboratory concluded a contract with an IT expert for the creation of a data base to facilitate the conservation of data necessary to the identification process;
- the CMP envisages returning the remains of the first group of missing persons to their relatives towards the end of June 2007;
- psychological support is envisaged for the families of the missing persons, as well as the construction of appropriate premises to receive these families at the moment of the return of the remains of their relatives;
- in the meantime, the excavation activities are continued in the Kyrenia region, in the north of Cyprus, excavations are also envisaged in the region of Strovolos, in the south.
B – As regards the question of additional measures
15. At the 960th meeting (March 2006) the Turkish authorities further stated that much was done to fulfill the objectives as described in the Interim Resolution in this case (ResDH(2005)44). If these objectives would be realised by pursuing the current activities, additional measures would, according to them, no longer be necessary.
16. In addition, the Turkish authorities have 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 28/08/744; 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.
Information/observations submitted by the Cypriot authorities
A – As regards the activities conducted in the framework of the Committee on Missing Persons
17. The Cypriot authorities have stated on several occasions that they welcome the current progress made by the CMP. They have added however that all developments so far have occurred within the mandate of the CMP and that therefore additional measures remain necessary.
18. In a memorandum of 13 October 20065, the Cypriot authorities asked the Committee of Ministers to assume a more active role and set strict deadlines, demand information and lay down steps that need to be taken to ensure Turkey’s full compliance with the judgment of the European Court. According to the Cypriot authorities, the Committee should thus ask Turkey to provide the following information:
- Lists including the total number of Greek Cypriot prisoners who were transported to Turkey and not only the cases of those referred to in ICRC lists who were then released from Turkish prisons and transported back to Cyprus in the presence of ICRC delegates;
- Concrete information on the cases of Greek Cypriot prisoners who have been listed in the ICRC documents and about whom no cogent answers have been given so far;
- Concrete information concerning the prisoners who were arrested and transported to Turkey before the full activation of the ICRC;
- Military reports and records prepared by the Turkish army in 1974 concerning information about the number of prisoners transported to Turkey and detained in Turkish prisons;
- Reports prepared by the Turkish army concerning information on ‘clearing’ the battlefields, including documentation pertaining to the number of dead Greek Cypriots and the number of Greek Cypriot prisoners;
- Reports by the Turkish army concerning information on the number of Greek Cypriots and Greek officers who were killed or arrested in 1974;
- Information concerning the number of prisoners who were detained in Turkish prisons and transferred to Turkish hospitals for medical reasons, and
- Photographs of each Greek Cypriot transported to and detained in Turkey in 1974 (according to information reported by Greek Cypriot prisoners who were detained in Turkish prisons and were subsequently released and transported back to Cyprus, the Turkish army took two photos of each prisoner).
19. 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, 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.
Other relevant information
20. Both the Turkish and the Cypriot authorities have provided information regarding the appointment of the new Third Member of the CMP, Mr Christophe Girod, on 14 April 2006. Both sides have welcomed this development.
21. On 15 March 2007 the European Parliament adopted a resolution calling on the parties involved to work together towards providing the necessary investigations into the fate of all missing persons on Cyprus and to fully execute the European Court’s judgment in the case of Cyprus against Turkey. The resolution also requested the parties to submit to the CMP without delay any information they might have on this issue, from personal knowledge, archives, reports of battles or lists of places of detention.
Assessment and outstanding questions
22. The Secretariat notes that the work of the CMP progresses in a concrete manner. The remains of 225 missing persons, belonging to both communities, have been excavated and analysed in the CMP anthropological laboratory.
Furthermore, the CMP envisages the return of the human remains of the first group of missing persons to their relatives towards the end of June 2007.
23. 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.
24. 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 exhumations performed and the anthropological and DNA analyses conducted is highly welcome.
25. 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 CMP6 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 (see also ResDH(2005)44). No information has as yet been provided as to the additional measures envisaged by the Turkish authorities.
26. 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 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)
27. 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).
28. 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
29. 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.
30. In reaction to the criticism expressed by the Cypriot authorities (see §32 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.
31. The Turkish authorities also indicated that the CMP, in co-operation with the families of the missing persons, is creating the appropriate conditions to receive these families when they accept the remains of their relatives (see §14 above). Psychological support is also envisaged, as well as the construction of appropriate premises for the return of the remains of the missing persons. In addition, the ICRC provided the CMP with a consultant for the organisation of this phase of the Exhumation and Identification Project.
Information/observations submitted by the Cypriot authorities
32. The Cypriot authorities express their doubts as to the information that the special unit within the Turkish member of the CMP 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
33. 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.
34. 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.
35. In this context, it would be useful to keep the Committee informed of the developments concerning the co-operation between the CMP and the families of the missing persons envisaged within the framework of the Exhumation and Identification Project (see §31 above).
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 out 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 See Memorandum DD(2006)37 distributed to all delegations on 31/01/ 2006
Note 4 Document not produced
Note 5 See Memorandum DD(2006)574, distributed to all delegations on 13/10/2006.
Note 6 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