Varnava and Others v. Turkey (16064/90

Date	20080110
Article	2, 3, 5
Decision	violation

CHAMBER JUDGMENT VARNAVA AND OTHERS v. TURKEY

The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Varnava and Others v. Turkey (application nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90).

The Court held:

· by six votes to one, that there had been a continuing violation of Article 2 (right to life) of the European Convention on Human Rights concerning Turkey’s failure to conduct an effective investigation into the whereabouts and fate of nine of the applicants, who disappeared in life-threatening circumstances;

· by six votes to one, that there had been a continuing violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention concerning the remaining nine applicants, relatives of the nine men who disappeared;

· by six votes to one, that there had been a continuing violation of Article 5 (right to liberty and security) concerning Turkey’s failure to conduct an effective investigation into the whereabouts and fate of the nine men, concerning whom there was an arguable claim that they had been deprived of their liberty at the time of their disappearance; and,

· unanimously, that no violation of Article 5 had been established concerning the alleged detention of the nine men.

Under Article 41 (just satisfaction), the Court held, by six votes to one, that the finding of violations constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants, and awarded them 4,000 euros (EUR), per application, for costs and expenses. (The judgment is available only in English.)

1. Principal facts

The applicants are or were 18 Cypriot nationals, nine of whom disappeared after being captured and detained during the Turkish military operations in northern Cyprus in July and August 1974. The other applicants (three of whom have since died and been replaced by their heirs) are or were relatives of the men who disappeared.

The applicants are or were: Andreas and his wife Giorghoulla Varnava, who lived in Lymbia; Andreas and his father Loizos Loizides (now deceased), who lived in Nicosia; Philippos Constantinou and his father Demetris Peyiotis, who lived in Nicosia; Demetris Theocharides and his mother Elli Theocharidou (now deceased), who lived in Nicosia; Panicos and his mother Chrysoula Charalambous, who lived in Limassol; Eleftherios and his father Christos Thoma (now deceased), who lived in Strovolos; Savvas and his wife Androula Hadjipanteli, who lived in Nicosia; Savvas and his father Georghios Apostolides, who lived in Strovolos; and, Leontis and his wife Yianoulla Sarma, who lived in Limassol. The applicants were born, respectively, in: 1947, 1949, 1954, 1907, 1954, 1929, 1953, 1914, 1955, 1935, 1951, 1921, 1938, 1938, 1955, 1928, 1947 and 1949.

Witnesses have testified to seeing eight of the missing men in Turkish prisons in 1974; they have been considered missing ever since. A number of the applicant parents also claimed that they had identified their missing sons in photographs published in Greek newspapers showing Greek-Cypriot prisoners of war. The body of the ninth missing man, Savvas Hadjipanteli, was discovered in 2007.

The applicants made the following claims:

Varnava and Sarma

In July and August 1974 Andreas Varnava and Leontis Sarma’s battalions was stationed in the vicinity of Mia Milia to man the Cypriot outposts. On the morning of 14 August 1974, Turkish military forces, supported by tanks and with air cover, launched an attack on the area. Cypriot forces retreated and the surrounding area was captured by the Turkish military forces.

Loizides

In July 1974 Andreas Loizides was serving in a battalion which was moved to the Lapithos area to support Greek Cypriot forces there. The soldiers were split up into various groups and the applicant was in charge of one of those. On 5 August 1974 they were over-powered by Turkish forces and ordered to retreat. Since 6 August 1974 none of the members of his group have seen Mr Loizides.

Constantinos

Mr Constantinos was posted with a section of his battalion to Lapithos. Following a full-scale attack from the Turkish Army on 6 August 1974, the group split up.

Theocharides

At about 04.30 hours on 26 July 1974 Mr Theocharides’ company came under attack from a Turkish paratroops battalion, with 20 tanks, who broke through Greek Cypriot lines, infiltrating the right flank of the applicant’s company. When his company was regrouped, he was missing.

Charalambous

On 24 July 1974 Mr Charalambous came under fire from Turkish soldiers while searching buses in the Koutsoventis Vounos area with two or three other soldiers. He was wounded in the right hand and on the left side of his ribs. After his wounds were cleaned and his gun loaded, he went back. He has not been seen again by his unit.

Thoma

On the morning of 20 July 1974 Eleftherios Thoma was involved in trying to prevent Turkish military forces landing in the area of "Pikro Nero", Kyrenia. At around 12.00 hours on 21 July the Turkish military forces which had landed, supported by tanks and with air cover, attacked Cypriot forces defending the area. The applicant’s battalion was ordered to retreat. After the battalion had been regrouped the applicant was missing.

Hadjipanteli

On 18 August 1974 Mr Hadjipanteli, a bank employee, was taken for questioning by Turkish soldiers. According to the applicants, representatives of the International Red Cross in Cyprus visited Pavlides Garage in the Turkish occupied sector of Nicosia and on 28 August 1974 recorded the names of 20 Greek Cypriots held there, including the applicant.

On 27 August 1974 a group of Turkish Cypriot civilians went to a bank where they emptied two safes and ordered a third to be opened, but they were told that the keys were with the applicant. Subsequently they returned with the keys for that safe, which the applicant always carried with him.

In 2007, in the context of the activity of the United Nations Committee of Missing Persons (CMP), human remains were exhumed from a mass grave near the Turkish Cypriot village of Galatia in the Karpas area. The remains of Mr Hadjipanteli were identified and several bullets were found in the grave. Mr Hadjipanteli’s medical certificate indicated a bullet wound to his skull, a bullet wound in his right arm and a wound on his right thigh.

The Turkish Government disputed that the applicants had been taken into captivity by the Turkish army during the military action in Cyprus in 1974. They considered that all the alleged "missing persons", except for Mr Hadjipanteli, were military personnel who died in action in July-August 1974. The Government noted that the International Red Cross had visited the Pavlides Garage, where Mr Hadjipanteli had allegedly been held, but his name did not appear in the list of Greek Cypriots held.

The Government of Cyprus submitted that the nine men went missing in areas under the control of the Turkish forces.

2. Procedure and composition of the Court

The nine applications were lodged with the European Commission of Human Rights on 25 January 1990. They were joined by the Commission on 2 July 1991, and declared admissible on 14 April 1998. They were transmitted to the Court on 1 November 1999.

The Cypriot Government submitted observations on the merits of the case.

Judgment was given by a Chamber of seven judges, composed as follows:

Boštjan Zupančič, (Slovenian), President,
Elisabet Fura-Sandström, (Swedish),
Alvina Gyulumyan, (Armenian),
Egbert Myjer, (Dutch),
David Thór Björgvinsson, (Icelandic),
Isabelle Berro-Lefèvre, (Monegasque), judges,
Gönül Erönen, (Turkish), ad hoc judge,

and also Santiago Quesada, Section Registrar.

3. Summary of the judgment2

Complaints

The applicants relied on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 4 (prohibition of forced labour), 5 (right to liberty and security), 6 (right to a fair trial), 8 (right to respect for private and family life), 10 (freedom of expression), 12 (right to marry), 13 (right to an effective remedy) and 14 (prohibition of discrimination).

Article 2

The Court noted that the fate of the nine missing men, and whether they had been unlawfully killed, was largely unknown. While Mr Hadjipanteli’s remains had been found very recently, the circumstances surrounding his death remained unclarified. The Court recalled that it was established in its Grand Chamber inter-State case Cyprus v. Turkey (application no. 25781/94 of 10 May 2001) that the evidence showed that many people who went missing in 1974 were detained either by Turkish or Turkish-Cypriot forces. Their detention occurred at a time when the conduct of military operations was accompanied by arrests and killings on a large scale which was found to disclose a life-threatening situation. The clear indications of the climate of risk and fear at the time, and of the real dangers to which detainees were exposed, was found to disclose a life-threatening situation. The nine missing men in the applicants’ case disappeared against that same background. The Court noted that the eight combatants were last seen in areas surrounded or about to be overrun by Turkish forces, one of them, Panicos Charalambous, in a wounded condition. Statements from several witnesses attested to seeing Mr Hadjipanteli being taken away by Turkish-Cypriot fighters. Given previous findings and the circumstances of the disappearances at a time and at locations which were, or very shortly thereafter were, under the control of Turkish forces or those acting under their aegis, the Court considered that an obligation arose for Turkey to account for their fate.

While it might be noted that in the context of the individual cases arising out of events in south-east Turkey and the conflict in the Chechen Republic, where there were, at the relevant times, numerous reported instances of forced disappearances, individual applicants had nonetheless been required to give an evidential basis for finding that their relatives were taken into some form of custody by agents of the State, the Court considered that the situation in the applicants’ case was different. A zone of international conflict where two armies were engaged in acts of war was per se life-threatening for those present. Circumstances would frequently be such that the events in question lay wholly, or in large part, within the exclusive knowledge of the military forces in the field, and it would not be realistic to expect applicants to provide more than minimal information placing their relative in the area at risk. International treaties imposed obligations on combatant States as regards the care of wounded, prisoners of war 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 those not, or no longer, engaged in hostilities. Disappearances in such circumstances were therefore protected by Article 2.

The Court recalled its previous finding that, whatever its humanitarian usefulness, the CMP did not provide procedures sufficient to meet the standard of an effective investigation required by Article 2, especially in view of the narrow scope of that body’s investigations.

While it was true that the remains of Savvas Hadjipanteli had recently been discovered, that 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 Mr Hadjipanteli’s remains in an area under the control of the “Turkish Republic of Northern Cyprus3” after a lapse of some 32 years, had that event displaced the Turkish Government’s accountability for the investigative process during the intervening period.

The Court concluded that there had been a continuing violation of Article 2 concerning the failure of the Turkish authorities to conduct an effective investigation aimed at clarifying the whereabouts and fate of the nine men who went missing in 1974.

Article 3

The Court recalled, in view of the circumstances in which their family members disappeared following a military intervention during which many persons were killed or taken prisoner and where the area was subsequently sealed off and became inaccessible to the relatives, they must undoubtedly have suffered most painful uncertainty and anxiety. Furthermore, their mental anguish did not vanish with the passing of time.

The Court observed that the Turkish authorities had failed to undertake any investigation into the circumstances surrounding the disappearance of the missing persons. In the absence of any information about their fate, the relatives of those who went missing during the events of July and August 1974 were condemned to live in a prolonged state of acute anxiety which could not be said to have been erased with the passage of time. The Court recalled that the military operation resulted in a considerable loss of life, large-scale arrests and detentions and enforced separation of families. The overall context had still to be vivid in the minds of the relatives of persons whose fate has never been accounted for by the authorities. They endured the agony of not knowing whether family members were killed in the conflict or were still in detention or, if detained, had since died. The fact that a very substantial number of Greek Cypriots had to seek refuge in the south coupled with the continuing division of Cyprus had to be considered to constitute very serious obstacles to their quest for information. The provision of such information was the responsibility of the Turkish authorities.

The silence of the Turkish authorities, in the face of the real concerns of the relatives of the nine missing men, attained a level of severity which could only be categorised as inhuman treatment within the meaning of Article 3. The Court therefore concluded that, during the period under consideration, there had been a continuing violation of Article 3.

Article 5

The Court found no violation of Article 5 concerning the alleged detention of the nine missing men as it had not been established that, during the period under consideration in the applicants’ case, they were actually being detained by the Turkish or Turkish Cypriot authorities.

However, there had been a continuing violation of Article 5 because the Turkish authorities had failed to conduct an effective investigation into the whereabouts and fate of the nine men, in respect of whom there was an arguable claim that they had been deprived of their liberty at the time of their disappearance.

Articles 4, 6, 8, 10, 12, 13 and 14

The Court did not consider it necessary to examine further the applicants’ other complaints.

Ad hoc judge Gönül Erönen expressed a separate opinion, which is annexed to the judgment.