AS TO THE ADMISSIBILITY OF

1. Application No. 16064/90                  5. Application No. 16069/90

   by Andreas and Giorghoulla VARNAVA           by Panicos and Chrysoula

   against Turkey                                  CHARALAMBOUS

                                                against Turkey

2. Application No. 16065/90                  6. Application No. 16070/90

   by Andreas and Loizos LOIZIDES               by Eleftherios and Christos

   against Turkey                                  THOMA

                                                against Turkey

3. Application No. 16066/90                  7. Application No. 16071/90

   by Philippos CONSTANTINOU and                by Savvas and Androula

      Demetris K. PEYIOTIS                         HADJIPANTELI

   against Turkey                               against Turkey

4. Application No. 16068/90                  8. Application No. 16072/90

   by Demetris THEOCHARIDES and                 by Savvas and Georghios

      Elli THEOCHARIDOU                            APOSTOLIDES

   against Turkey                               against Turkey

                        9. Application 16073/90

                           by Leontis DEMETRIOU SARMA and

                              Yiannoulla LEONTI SARMA

                           against Turkey

      The European Commission of Human Rights sitting in private on

14 April 1998, the following members being present:

           MM    S. TRECHSEL, President

                 J.-C. GEUS

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

           Mrs   G.H. THUNE

           MM    F. MARTINEZ

                 C.L. ROZAKIS

           Mrs   J. LIDDY

           MM    L. LOUCAIDES

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGÓ

           Mrs   M. HION

           MM    R. NICOLINI

                 A. ARABADJIEV

           Mr    M. de SALVIA, Secretary to the Commission

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the applications all introduced on

25 January 1990 and registered on 26 January 1990;

      Having regard to :

-     the reports provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the Commission's decision of 1 July 1991 to communicate the

      applications;

-     the Commission's decision of 2 July 1991 to join the

      applications;

-     the observations submitted by the respondent Government on

      31 October 1991 and the observations in reply submitted by the

      applicants on 8 January 1992;

-     the respondent Government's further observations of 3 April 1992;

-     the Commission's decision of 13 October 1992 to request the

      parties to submit further observations;

-     the observations submitted further to this request by the

      applicants on 1 December 1992 and 3 December 1992 and by the

      respondent Government on 3 December 1992;

-     the Commission's decision of 23 January 1997 to request the

      respondent Government to submit supplementary observations in the

      light of the Court's Loizidou v. Turkey judgment of

      18 December 1996;

-     the supplementary observations submitted by the respondent

      Government on 2 July 1997 and the observations in reply submitted

      by the applicants on 6 October 1997;

      Having deliberated;

      Decides as follows:

THE FACTS

A.    The particular circumstances of the cases

      The Government have made no comments on the applicants'

submissions as to the facts. The latter may be summarised as follows.

1.    Application No. 16064/90

      The first applicant, an ironmonger, was born in 1947; he has been

considered missing since 1974, having been taken into captivity by the

Turkish Army during their military action in Cyprus in 1974. His wife,

the second applicant, was born in 1949 and is residing in Lymbia.

      The applicants are represented by Mr. Achilleas Demetriades, a

lawyer practising in Nicosia, under an authority signed by the second

applicant in her own name and on behalf of the first applicant.

      In July 1974 the first applicant, responding to the declared

general mobilisation, enlisted as a reservist in the 305 Reservists

Battalion which had its headquarters in Dhali village. He continued his

service at the outposts of Lymbia until 8-9 August 1974. On

8-9 August 1974 all the reserve soldiers of the 305 Reservists

Battalion, among them the applicant, were brought to the area of

Mia Milia and undertook the manning of Cypriot outposts along the front

line with the Turkish military forces which extended between Mia Milia

and Koutsovendis.

      On the morning of 14 August 1974, Turkish military forces,

supported by tanks and having air cover, launched an attack against the

Cypriot area where the applicant and his battalion were serving, in

order to capture the area from them. The Cypriot area line of defence

was broken through and the Turkish military forces began advancing

towards the area of Mia Milia and as a result the Cypriot forces began

retreating. During the retreat that followed, the Cypriot forces

dispersed in all directions. After a while the area around was captured

by the Turkish military forces and the applicant was cut off in it.

As a result the trace of the applicant was lost and he is today still

considered to be missing.

      Mr. Christakis Ioannou of Pano Dhikomo and now of Stavros Refugee

Camp Strovolos, who had been a prisoner of the Turkish Military Forces

and/or Turkish authorities and is now free, stated that at Adana prison

in Turkey, where he had been taken on 31 August 1974 and held, there

were another 40 persons in the same room for 3-4 days. Among them was

the applicant. After the said period they were split up and ever since

then he has not seen the applicant again.

2.    Application No. 16065/90

      The first applicant, a student, was born in 1954; he has been

considered missing since 1974, having been taken into captivity by the

Turkish Army during their military action in Cyprus in 1974. His

father, the second applicant, was born in 1907 and is residing at

Nicosia.

      The applicants are represented by Dr. Kypros Chrysostomides, a

lawyer practising in Nicosia, under an authority signed by the second

applicant in his own name and on behalf of the first applicant.

      In July 1974 the first applicant was serving as a Second

Lieutenant in the 1st Company of the 256 Infantry Battalion stationed

at Xeros, which took part in various operations against the Turkish

forces. On about 30 July 1974 the battalion moved up to the Lapithos

area in order to support the Greek Cypriot forces there. The soldiers

were split up into various groups and the applicant was in charge of

one of these. The applicant's group, consisting of ten men in all,

including Stelios Christofi Onoufriou and Xenophon Christoforou (both

now missing), as well as Nakis Nicolaou and Petros A. Hadjiyianni, was

ordered to take up positions on the Lapithos heights. During their stay

at Lapithos the Greek Cypriot forces were continuously attacked by the

Turkish forces from all sides. The Greek Cypriot forces remained at

their posts defending them until 5 August 1974.

      On 5 August 1974 Turkish forces launched a strong attack from all

sides against the Greek Cypriot forces' positions while other Turkish

troops managed to encircle Lapithos. Because of Turkish superiority in

manpower and armour the Greek Cypriot forces were ordered to retreat

towards the centre of the village where the Company base was. The

applicant arrived with his comrades at the centre of the village and

was informed by the inhabitants that Lapithos was surrounded by Turkish

troops. Then they hid their weapons in an orchard and subsequently put

on civilian clothes which they found in various houses. In the

afternoon of 5 August 1974 the applicant with some comrades attempted

to break through the Turkish lines and arrive at the Cypriot Government

controlled areas. This attempt was unsuccessful and with the exception

of Nakis Nicolaou they all returned to Lapithos again where they spent

the night. At about 9.00 hours on 6 August 1974 Turkish troops entered

Lapithos and started extensive searches from house to house. The

applicant and all his comrades were warned by the inhabitants of the

village about the searches and they dispersed in order to avoid

capture. Since then none of the members of the group has seen the

applicant again.

      Nicos Th. Tampas of the 256 Infantry Battalion and leader of the

first group which was manning the Lapithos heights at about

5 August 1974 in a statement mentioned that at approximately 21.00

hours on 6 August 1974, while he was walking in Lapithos looking for

his comrades, he entered a warehouse. In it he found the applicant

looking after Georghios Allayiotis who was wounded in the head. After

talking for a little while with the applicant he went away leaving him

and Georghios Allayiotis there. That was the last time that he saw the

applicant. He was arrested by the Turks on 9 August 1974 while he was

in Lapithos. He was detained in various prisons in Cyprus and Turkey

and was released on 22 October 1974.

      Christodoulos Panyi of Vatyli, now of Strovolos, in his statement

declared that while he was a prisoner in the Adana prison he saw and

recognised the applicant whom he had known earlier.

3.    Application No. 16066/90

      The first applicant, a student, was born in 1954; he has been

considered missing since 1974, having been taken into captivity by the

Turkish Army during their military action in Cyprus in 1974. His

father, the second applicant, was born in 1929 and is residing at

Nicosia.

      The applicants are represented by Dr. Kypros Chrysostomides, a

lawyer practising in Nicosia, under an authority signed by the second

applicant in his own name and on behalf of the first applicant.

      In July 1973 the first applicant enlisted with the National Guard

in order to do his national service. He was posted with the 70

Engineers Battalion which was stationed at the site of the former

British Military Hospital (B.M.H.) in Nicosia. On 5 August 1974, a

section of the battalion consisting of 48 men, including the applicant,

was sent to Lapithos on a specific mission in the Lapithos and Karavas

area (Kyrenia district). The mission began at about noon and finished

at about 18.00 hours on the same day. After receiving instructions from

the group leader the men spent the night at Lapithos and intended to

complete the mission the following morning.

      At about 04.30 hours on 6 August 1974, the Turkish Army launched

a full-scale attack from all sides in the Karavas and Lapithos area.

The applicant's group leader ordered his men to split up into three

groups and to withdraw towards Vasilia (also Kyrenia district) where

they would all meet. The soldiers split up into three groups under the

respective command of the platoon leaders. The applicant was in one of

the groups which intended to withdraw following a route along the

coast.

      The men first reached the main Nicosia-Kyrenia road near the

"Airkotissa" restaurant. While they were having a short rest, they

heard shouting and the group leader sent the applicant and another

soldier to investigate. As they had not returned after about 15 minutes

the remainder of the group left for Panagra (also in the Kyrenia

district). On their way there, they were ambushed by Turkish soldiers

and amidst the fighting and confusion that followed, the remaining

group dispersed. Three soldiers from this group, Petros Constantinou

(of Morphou, now of Moniatis, Limassol), Panayiotis Alexandrou (of Pera

Chorio Nisou, Nicosia) and Manolis Manoli (of Lapithos, now of Engomi,

Nicosia), managed to reach their destination. Until that time when the

group dispersed, none of its members including the applicant, had been

killed, injured or captured by the Turks.

      Costas A. Sophocleous, of Nicosia, stated that, when he was a

prisoner in Turkey from 30 July until 28 October 1974, he met the

applicant. They were together in the same prison in Turkey and were

subsequently transferred to Cyprus whereupon the said Costas A.

Sophocleous was released but not the applicant.

      Alexandros Papamichael, of Limassol, who was a prisoner in Adana,

Turkey, stated that he recognised the first applicant from a photograph

that was shown him by the second applicant and he had been with him in

the same prison.

      Finally, the second applicant mentioned in a signed statement

that he identified his missing son in a photograph published in

"Athinaiki", a Greek newspaper, on 28 September 1974. In this

photograph Greek Cypriot prisoners were shown on a boat en route to

Turkey.

4.    Application No. 16068/90

      The first applicant, a photographer, was born in 1953; he has

been considered missing since 1974, having been taken into captivity

by the Turkish Army during their military action in Cyprus in 1974. His

mother, the second applicant, was born in 1914 and is residing at

Nicosia.

      The applicants are represented by Mr. Achilleas Demetriades, a

lawyer practising in Nicosia, under an authority signed by the second

applicant in her own name and on behalf of the first applicant.

      On 20 July 1974 the first applicant enlisted as a reservist in

Nicosia. He was posted in the 1st Company of the 301 Infantry Battalion

commanded by Mr. Costas Papacostas. On 21 July he telephoned his mother

and told her that he was well and that he was going to be moved to the

Kyrenia district. Indeed the whole battalion was ordered to move on the

following day to the area of Ayios Ermolaos. The 1st Company took up

defensive positions at a height called "Kalambaki", near the Turkish

Cypriot village of Pileri.

      At about 04.30 hours on 26 July 1974 the 1st Company came under

attack from the Turkish Cypriot villages of Krini-Pileri. The Turkish

military forces that carried out the attack consisted of a paratroops

battalion, twenty tanks, as well as high-angle guns. They succeeded in

breaking through the Greek Cypriot lines and infiltrated the right

flank of the 1st Company in order to encircle it and enclave its men.

The commander ordered the Company to regroup and form platoons at the

Greek Cypriot village of Sysklepos. There they were ordered by their

battalion to regroup again at Kontemenos where they arrived at about

15.00 hours. After a roll-call they found out that six soldiers of the

1st Company were absent, including the applicant. The area in which the

1st Company had been initially stationed was captured by the Turkish

military forces.

      Mr. Nicos Nicolaou of Strovolos, who has been a prisoner at Adana

prison (Turkey) in September 1974, stated that one day, when the

prisoners were in the yard, a Turk was calling their names. Among other

names, he heard the name of the applicant. He saw the applicant whom

he happened to know previously. As the applicant was going back to his

cell Mr. Nicolaou noticed that he was lame in one leg. On

11 September 1974 Mr. Nicolaou was taken to Antiyiama prison (Turkey)

and since then he has not seen the applicant again. All trace of the

applicant has been lost and he is considered missing till today.

5.    Application No. 16069/90

      The first applicant, a student, was born in 1955; he has been

considered missing since 1974, having been taken into captivity by the

Turkish Army during their military action in Cyprus in 1974. His

mother, the second applicant, was born in 1935 and is residing at

Limassol.

      The applicants are represented by Dr. Kypros Chrysostomides, a

lawyer practising in Nicosia, under an authority signed by the second

applicant in her own name and on behalf of the first applicant.

      In 1972 the first applicant enlisted in the National Guard to do

his military service. He was subsequently promoted to Sergeant.

      On 14 July 1974 the applicant visited his relations at Polemidhia

and told them that he would be demobilised on 20 July. He returned to

his unit on the same day. On 19 July 1974 he telephoned his father and

told him that he would not be released after all because of the Coup

that had taken place in the meantime. On 22 July 1974 the applicant's

father was informed by Nicos Hadjicosti, a Limassol factory owner, that

he had seen his son at the company's headquarters at Synchari and that

he was well. On 23 July 1974 the father of the applicant was informed

by Andreas Komodromos that the applicant had left Synchari with the men

of the Headquarters Company and had gone to Aglandjia.

      On 24 July 1974 Nikiforos Kominis with 17 soldiers, including the

applicant and Efthymios Hadjipetrou, set out from Aglandjia in two

vehicles to reconnoitre the ground of the Koutsoventis-Vounos area.

Among them were Phaedros Roussi and Yiannis Melissis. After Kominis had

marked the Turkish positions on paper, he went at about 12.00 hours to

the headquarters of one of the Commando Units in order to relay by

telephone the results of the reconnaissance mission. After twenty

minutes three buses were seen driving on a street from the direction

of Vounos village. At about the same time a Greek officer by the name

of Votas accompanied by three other soldiers went near the men of the

reconnaissance patrol. The officer ordered three or four soldiers to

come down on the street and search the buses. The buses were full of

Turkish soldiers who started firing at the Greek Cypriot men as soon

as they became aware of their nationality. The applicant was wounded

in the right hand and on the left side of his ribs. Mr. Andreas

Komodromos cleaned his wounds with water, loaded his gun and told him

to go back, which he did. Since then the applicant has not been seen

again.

      According to the statement of Yiannis Melissis, who had been a

prisoner of the Turks at Adana and Amasia in September 1974, he

happened to meet the applicant during his captivity. They both stayed

with others in Cell No. 9 until 18 September. They were chatting

together every day and became friends. On 18 September Yiannis Melissis

was brought back to Cyprus and was released on 21 September 1974. The

applicant had given him a letter to the applicant's father which he

forgot in his pocket in the clothes that he changed at the Hotel and

Catering School in Nicosia. All those clothes belonging to the

prisoners were burned.

      Besides, the second applicant in her statement mentioned that she

had recognised her son in a photograph that was published in the Greek

newspaper "Athinaiki" on 28 September 1974. The photograph shows

Cypriot prisoners transported to Turkey on a Turkish destroyer in

July 1974.

6.    Application No. 16070/90

      The first applicant, a car mechanic, was born in 1951; he has

been considered missing since 1974, having been taken into captivity

by the Turkish Army during their military action in Cyprus in 1974. His

father, the second applicant, was born in 1921 and is residing at

Strovolos.

      The applicants are represented by Mr. Achilleas Demetriades, a

lawyer practising in Nicosia, under an authority signed by the second

applicant in his own name and on behalf of the first applicant.

      In July 1974, in response to the general mobilisation, the first

applicant enlisted as a reserve Sergeant in the Headquarters Company

of the 251 Infantry Battalion stationed at Glykiotissa, Kyrenia, with

Captain Michael Polycarpos in charge.

      On the morning of 20 July 1974 Turkish military forces, supported

by naval units and having air cover, succeeded in landing with their

armour. All the men of the Headquarters Company, including the

applicant, were trying during the whole of the day to prevent the

Turkish landing which was taking place 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 having air cover, attacked the

Cypriot forces that were defending the area. Owing to the superiority

of the Turkish military forces in men as well as in weapons the

251 Infantry Battalion was ordered to retreat towards Trimithi village.

The applicant was present during the regrouping of the battalion. Two

hours after the regrouping the commander of the battalion (who is

missing with 40-50 other soldiers, including the applicant serving as

the commander's driver) left Trimithi village and ended up in a ravine

between the villages of Ayios Georghios and Templos and took up battle

positions. A number of commandos of the 33rd Battalion arrived in the

same ravine. At around 15.00 hours on 22 July 1974, Turkish military

forces surrounded the Cypriot forces in the ravine (between Ayios

Georghios and Templos) and opened fire against them with all their

guns. Then the commander ordered a counter-attack intending to break

through the Turkish military forces' lines and at the same time to

retreat towards Kyrenia. During the counter-attack and the retreat the

applicant's trace was lost.

      On 4 September 1974 the "Special News Bulletin" - a daily issue

of the Turkish Cypriot administration - published a photograph of Greek

Cypriot prisoners-of-war under the caption "Greek-Cypriot

prisoners-of-war having their lunch. Yesterday they were visited by a

representative of the Turkish Red Crescent. He toured all the

prisoners-of-war camps in the area of the island under the Turkish

control, in order to ascertain the needs of the prisoners." In that

photograph four of the prisoners were identified. Among them was the

first applicant who was identified by the second applicant.

      A former prisoner, Mr. Efstathios Selefcou, of Elio, now at

Eylenja, in a signed statement to the Cypriot Police said that during

his transportation from Cyprus to Turkey he saw and talked to the first

applicant whom he knew very well since they had been together at

secondary school.

      All above-mentioned prisoners were taken to Adana prison and

since that time the applicant has been missing.

7.    Application No. 16071/90

       The first applicant, a bank employee, was born in 1938 and lived

at Yialousa; he has been considered missing since 1974, having been

taken into captivity by the Turkish Army during their military action

in Cyprus in 1974. His wife, the second applicant, was born in 1938 and

is residing at Nicosia.

      The applicants are represented by Dr. Kypros Chrysostomides, a

lawyer practising in Nicosia, under an authority signed by the second

applicant in her own name and on behalf of the first applicant.

      On 18 August 1974 about three or four saloon cars as well as a

bus and two tanks, all full of Turkish and Turkish Cypriot soldiers

turned up at Yialousa and stopped near the police station, along the

main road. The soldiers got out of their vehicles and ordered all those

who were there to gather at the nearby coffee-house of Christos

Malakounas. About 35 persons gathered there.  Subsequently, a Turkish

officer told them that from that time they would be under Turkish

administration and ordered them to make a census of the Greek Cypriot

inhabitants of the village starting from the age of 7 to 70 and that

he would be back on the following day to collect the lists. On the

following day, the same civilian and military vehicles (tanks) returned

and were parked near the police station. A number of Turks got off,

marched to Malakounas coffee-house and asked for the lists. Another

group of Turkish soldiers were carrying out a house-to-house search.

They imposed a curfew and, having taken the lists, they took with them

for questioning nine persons, including the first applicant. They put

them on a bus and drove them outside the village in the direction of

Famagusta. The said Greek Cypriots are still missing.

      On the same day, the village of Yialousa was visited by United

Nations men to whom the arrest of the nine Greek Cypriots was reported

by their co-villagers.

      According to a Red Cross document the applicant, as well as the

other eight men from Yialousa, were arrested by Turkish Cypriots from

Ayios Andronikos. 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 nine persons from Yialousa. Costas M. Kaniou,

Sofronios Mantis, Ioannis D. Constantis also saw the said detainees at

the Pavlides Garage, during the same period that they were detained

there; they were released later.

      On 27 August 1974 a group of Turkish Cypriot civilians came to

Yialousa looking for Pentelis Pantelides, Loizos Pallaris,

Michael Sergides and Christakis Panayides. Having found them, they led

them to the Savings Bank in order to search and seal the building. They

all entered the building. After having emptied two safes they ordered

that the third one should be opened, but they were told that the keys

were with the applicant. Subsequently they left, after having shut and

sealed the outside door. After 10-12 days the same group looked for the

same persons and went again to the bank building. They had the two keys

for the safe which the applicant always carried with him.

Loizos Pallaris opened the safe. The keys were in a leather case which

the applicant had, but his personal keys were not included. The Turkish

Cypriots took the contents of the safe, sealed the gate and left.

8.    Application No. 16072/90

      The first applicant, a moulder, was born in 1955; he has been

considered missing since 1974, having been taken into captivity by the

Turkish Army during their military action in Cyprus in 1974. His

father, the second applicant, was born in 1928 and is residing at

Strovolos.

      The applicants are represented by Mr. Achilleas Demetriades, a

lawyer practising in Nicosia, under an authority signed by the second

applicant in his own name and on behalf of the first applicant.

      In 1974 the first applicant was doing his national service in the

70 Engineers Battalion stationed at the site of the former British

Military Hospital (B.M.H.) in Nicosia. On 5 August 1974 a section of

the battalion consisting of 48 men, including the applicant, was sent

to Lapithos on a specific mission in the Karavas and Lapithos area. The

mission began at about noon and was completed at about 18.00 hours the

same day. After receiving instructions from the section leader,

Efstratios Katsoulotou, the men spent the night at Lapithos and

intended to complete their mission the following morning. At about

04.30 hours on 6 August 1974 the Turkish military forces launched a

full-scale attack from all sides in the area of Karavas and Lapithos.

The Commander of the Engineers ordered his men to split up into three

groups, withdraw towards Vasilia and meet there. The three groups set

off intending to reach the prearranged point. On their way they were

ambushed by the Turkish military forces. Because of the Turkish

military forces' fire and the confusion that followed all the Engineers

dispersed. Up to the time of the dispersion no member of the group had

been killed, injured or captured by the Turkish military forces, and

neither was the applicant.

      Later on Mr. Costas Themistocleous of Omorphita, now of Nicosia,

who was taken as a prisoner to Adana prison in Turkey, saw the

applicant there on or about 17 October 1974, while he was about to

return to Cyprus. They did not speak to each other but waved their

hands. Mr. Themistocleous recognised the applicant since he knew him

ever since they were children.

9.    Application No. 16073/90

      The first applicant, a worker, was born in 1947; he has been

considered missing since 1974, having been taken into captivity by the

Turkish Army during their military action in Cyprus in 1974. His wife,

the second applicant, was born in 1949 and is residing at Limassol.

      The applicants are represented by Mr. Achilleas Demetriades, a

lawyer practising in Nicosia, under an authority signed by the second

applicant in her own name and on behalf of the first applicant.

      On 20 July 1974, following the general mobilisation, the first

applicant enlisted as a reservist in the 399 Infantry Battalion

stationed at Bogazi, Famagusta. He was put in the Support Company of

the Battalion (B.C.S.C.). On 20 July the battalion captured the Turkish

Cypriot village of Chatos. On 22 July the battalion moved to the Mia

Milia area to reinforce the Greek Cypriot forces there and to man the

Greek Cypriot outposts on the front line.

      On the morning of 14 August 1974 Turkish military forces,

supported by tanks and having air cover, launched a heavy attack

against the Greek Cypriot forces in the area, where the applicant was

with his battalion, intending to occupy the area. Owing to the

superiority of the Turkish military forces the Greek Cypriot defence

line was broken, the Turkish military forces began to advance towards

the Mia Milia area, and the Greek Cypriot forces began to retreat. The

area was, in a short while, occupied by the Turkish military forces and

the applicant was enclaved in it. His trace was lost.

      The ex-prisoner of war, Mr. Costas Mena of Palaekythro, now at

Koracou, stated that during his detention at Antiyama, Turkey, he saw

the applicant who was detained in cell-block No. 9. On 18 October 1974

all the prisoners at Antiyama were taken from Antiyama to Adana. There

they were all lined up in four rows. A Turkish military officer walked

in front of the line and picked out some of the prisoners, who were

taken away from the line. From the first row the applicant was picked

out and taken away. Since then Mr. Mena has not seen the applicant ever

again and he has been missing until today.

B.    Terms of Reference and Rules of Procedure of the Committee on

      Missing Persons in Cyprus

i     Terms of Reference

      1.   A committee on missing persons in Cyprus will be formed

      immediately consisting of three members. The Greek Cypriot and

      Turkish Cypriot sides will each appoint one humanitarian person

      to the committee. The third member will be an official selected

      by the ICRC for that purpose with the agreement of both sides and

      appointed by the Secretary-General of the United Nations.

      2.   The decisions of the committee will be taken by consensus

      to the extent possible. In the event of disagreement between the

      representatives of the two sides, the third member shall consult

      both of them with a view to bringing their views together and

      reaching a consensus.

      3.   Each of the committee members can be assisted by up to two

      staff assistants as necessary. No other persons will participate

      in the deliberations or investigative work of the committee. No

      person directly involved with the issue of missing persons may

      be appointed as staff assistant. The committee will not request

      outside expert assistance.

      4.   The committee will not have a chairman, but the meetings

      will be directed by the members on a rotating basis for a period

      of one month's duration --- the first director will be the

      official of the ICRC, to be followed by the Turkish Cypriot

      member or the Greek Cypriot member, to be determined at the first

      meeting by lot.

      5.   The three members of the committee will meet immediately

      and will continue in regularly scheduled sessions for as long as

      required.

      6.   All parties concerned shall co-operate with the committee

      to ensure access throughout the island for the investigative work

      of the committee.

      7.   The committee shall look only into cases of persons

      reported missing in the intercommunal fightings as well as in the

      events of July 1974 and afterwards.

      8.   The order of investigation of cases will be decided by the

      committee, but it is agreed that the first investigative case

      will be put forward by the Turkish Cypriot member of the

      committee. This will be followed by a case put forward by the

      Greek Cypriot member. The investigations will rotate to the

      extent possible until all cases have been examined.

      9.   The committee's entire proceedings and findings will be

      strictly confidential. Any violation of this rule would place the

      work of the committee in jeopardy.

      10.  The committee will determine whether to issue public

      statements or reports without prejudice to paragraph 9.

      11.  The committee will not attempt to attribute responsibility

      for the deaths of any missing persons or make findings as to the

      cause of such deaths.

      12.  No disinterment will take place under the aegis of this

      committee. The committee may refer requests for disinterment to

      the ICRC for processing under its customary procedures.

      13.  The committee will use its best efforts to draw up

      comprehensive lists of missing persons of both communities,

      specifying as appropriate whether they are alive or dead, and in

      the latter case approximate time of the deaths.

ii    Rules of Procedure

      I.   Meetings

      a)   Closed meetings

           The Committee on Missing Persons can, if members so decide,

           sit in camera, i.e. without attendants and/or secretarial

           staff.

      b)   Reports

           A summary report will be established for every meeting.

           Decisions taken will be dictated to the committee's

           secretary by the member directing the meeting.

      II.  Relations with press and media

      a)   Press releases

           Insofar as possible, a press release will be issued at the

           close of a meeting or series of meetings. Progress reports

           will also be published occasionally.

      b)   Members' individual declarations

           The members of the Committee are bound by paragraph 9 of

           the Terms of Reference, but if a member wishes to make an

           additional statement to the press or media, he may do so,

           provided he avoids any criticism or contradiction of the

           joint statement. Any kind of propaganda should be avoided.

      III. Relations with families

      a)   Communications from the families

           Written communications addressed to the Committee by the

           families of missing persons will be passed on to the

           appropriate member of the Committee with a note of

           explanation to the family.

      b)   Final information as to the fate of a particular missing

           person will be referred to the member of the Committee

           concerned with the case and the family will be informed

           through that member.

      c)   Interim information

           No interim information will be passed on by the Committee

           to the family of a missing person during the discussion of

           a particular case. The same rule will apply to any member

           of the Committee and to any person attending the meeting.

      IV.  Approximate number of cases and their manner of

           presentation

      a)   Approximate number

           For working purposes, the following number of cases may be

           considered: Greek Cypriot: approximately 1600; Turkish

           Cypriot: approximately 800.

      b)   Presentation of cases

           At the very least, the elements enumerated in the attached

           document should be furnished.

      c)   Division of cases

           Following the presentation of the first two cases, further

           cases will be examined in groups of cases, the size of

           which will be determined by the Committee, after which a

           recess will be taken to allow time to carry out

           investigations.

      V.   Investigations

      1.   Guiding principles

           1.    Investigations will be conducted in the sole interest

           of the families concerned and must therefore convince them.

           2.    Every possible means will be used to trace the fate of

           the missing persons.

      2.   Practical measures

           1.    Individual or collective cases will be presented to

           the CMP with all possible information. The CMP will refer

           each case to the side on whose territory the missing person

           disappeared; this side will undertake a complete research

           and present to the CMP a written report. It is the duty of

           the CMP members appointed by each side, or their

           assistants, to follow the enquiries undertaken on the

           territory of their side; the third member and/or his

           assistants will be fully admitted to participate in the

           enquiries.

           2.    The CMP will make case decisions on the basis of the

           elements furnished by both sides and by the Central Tracing

           Agency of the ICRC: presumed alive, dead, disappeared

           without visible or other traceable signs.

           3.    If the CMP is unable to reach a conclusion on the

           basis of the information presented, a supplementary

           investigation will be undertaken at the request of a CMP

           member. The third CMP member and/or his assistants will

           participate in each supplementary investigation, or, as the

           case may be, investigators recruited by the CMP with the

           agreement of both sides.

COMPLAINTS

      The applicants allege violations of Articles 3, 4, 5, 6, 8, 10,

12, 13 and 14 of the Convention.

      In the alternative it is alleged that, in case the first

applicants have died during their detention and while in the custody

of the Turkish military and/or other authorities, Turkey's failure to

protect their lives constitutes a violation of Article 2 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The applications were introduced on 25 January 1990 and

registered on 26 January 1990.

      On 1 July 1991 the Commission decided to communicate the

applications to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

applications. On 2 July 1991 the Commission decided to join the

applications.

      The Government's written observations were submitted on

31 October 1991. The applicants replied on 8 January 1992. On

3 April 1992 the Government submitted further observations.

      On 13 October 1992 the Commission decided to request the parties

to submit further observations.

      The applicants submitted such observations on 1 December 1992 and

3 December 1992 and the Government on 3 December 1992.

      On 25 January 1994 the Commission decided to adjourn its further

examination of the applications pending the determination of certain

issues by the Court in the context of the Loizidou v. Turkey case. This

decision was confirmed on 13 April 1995.

      On 23 January 1997 the Commission decided to request the

respondent Government to submit supplementary observations in the light

of the Court's Loizidou v. Turkey judgment of 18 December 1996.

      On 2 April 1997 the respondent Government requested the

Commission to adjourn the examination of the applications until

completion by the Court of its consideration of the issue under

Article 50 of the Convention in the Loizidou v. Turkey case. On

18 April 1997 the Commission decided not to accede to the respondent

Government' s request and fixed a new time-limit for the submission of

their supplementary observations.

      The Government's supplementary observations were submitted on

2 July 1997, after an extension of the second time-limit fixed for that

purpose. The applicants replied on 6 October 1997.

THE LAW

1.    The applications have been brought on behalf of persons of Greek-

Cypriot origin which are considered missing since 1974, when they were

allegedly taken in captivity by the Turkish army during its military

action in Cyprus, and by members of their families. They concern the

fate of these persons and the consequences for their families. The

applicants invoke Articles 2, 3, 4, 5, 6, 8, 10, 12, 13 and 14

(Art. 2, 3, 4, 5, 6, 8, 10, 12, 13, 14) of the Convention.

2.    The Government submit that the applications relate to

instantaneous acts and events which occurred before 28 January 1987,

the date of deposit of Turkey's declaration recognising the right of

individual petition under Article 25 (Art. 25) of the Convention.

However, according to that declaration, the right to individual

petition only extends to "allegations made in respect of facts,

including judgments which are based on such facts, which have occurred

subsequent to the date of deposit".

      The applicants argue that the alleged violations are of a

continuing nature, since they concern persons which are presumed to be

in a state of unlawful detention. They also submit that, assuming that

these persons are dead, the failure of the respondent Government to

account for their fate to their families gives rise to a continuing

situation.

      The Commission, having noted both parties' positions, considers

that this is an issue which can only be determined at the merits stage

of the proceedings. As a result, the Commission decides to reserve the

final determination of the question of whether the applications relate

to facts covered by the temporal limitation in the Turkish declaration

under Article 25 (Art. 25) of the Convention for a later stage in the

proceedings. It follows that the applications cannot be declared

inadmissible under Article 27 para. 2 (Art. 27-2) on the ground that

they are incompatible ratione temporis with the provisions of the

Convention.

3.    The Government also submit that the applications concern a matter

which has already been examined by the Commission in the context of

applications Nos. 6780/74, 6950/75 and 8007/77 Cyprus v. Turkey (Comm.

Reports, 10.7.76, unpublished, and 4.10.83, D.R. 72, p. 5) and which

is part of another application which has been declared admissible

(No. 25781/94 Cyprus v. Turkey, Dec. 28.6.96, D.R. 86-A, p. 104). They

argue in this connection that Article 27 para. 1 (b) (Art. 27-1-b) of

the Convention puts the emphasis on the identity of the matter in

question and not on the identity of the parties to the proceedings

before the Commission. The eight applicants were all mentioned by the

applicant Government in application No. 8007/77. Although new

complaints have now been added, the facts remain the same. The present

applications cannot be used to reverse the res judicata effect of the

Committee of Ministers' Resolution DH (92) 12 of 2 April 1992 in the

third inter-State case.

      The Government further argue that the applications concern a

matter which has already been submitted to another procedure of

international investigation or settlement. They refer in this

connection to the Committee on Missing Persons which was established

in 1981. They recall the agreement on the terms of reference for the

establishment of this Committee (1981), the agreement on the rules of

procedure (1984) and on the guidelines for investigations (1995) and

the criteria of the UN Secretary General which have been accepted by

both the Greek Cypriot and the Turkish Cypriot side. The initial

procedural difficulties have now been overcome and the Greek Cypriot

side submitted all their cases by December 1995, the number of these

cases having been reduced to 1493. As a result, the Government submit

that there exists an adequate forum to examine the question of missing

persons.

      In the light of all the above, the Government argue that the

Commission is  precluded under Article 27 para. 1 (b) (Art. 27-1-b) of

the Convention from declaring the applications admissible.

      The applicants point out that they complain of continuing

violations. As a result and by definition, their applications cannot

be the same as the inter-State applications mentioned by the

Government. The fourth inter-State case also relates to a different

period of time and, in any event, the Commission has not yet carried

out an examination of its merits. The applicants further submit that

there is no identity of parties, cause and object between the inter-

State cases and the present applications. In any event, they argue that

the present applications extend to complaints which have never been

raised before. Finally, the applicants argue that the resolution of the

Committee of Ministers in the third inter-State case is incapable of

producing any res judicata effect.

      The applicants further submit that Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention refers to a petition submitted by the

applicant to another procedure of international investigation or

settlement. This is not the case with the Committee on Missing Persons

where the procedure is initiated by a third party acting in a

humanitarian fashion. They also argue that Turkey is not a party to the

procedure and that the Committee cannot attribute responsibility for

the deaths of any missing persons or make findings as to the cause of

such deaths. Neither is the Committee competent to pronounce on the

legal issues involved in their applications or to carry out an

investigation in Turkey or to order an exhumation.

      The Commission recalls that under Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention it shall not deal with any petition

submitted under Article 25 (Art. 25) which "is substantially the same

as a matter which has already been examined by the Commission or has

already been submitted to another procedure of international

investigation or settlement and if it contains no relevant new

information."

      However, the Commission considers that it is not necessary to

pronounce on the general question, which has been left open in another

case (Nos. 5577/72-5583/72, Donnelly and others v. the United Kingdom,

Dec. 5.4.73, Yearbook 16, p. 212), of whether it is precluded under

Article 27 para. 1 (b) (Art. 27-1-b) of the Convention from examining

in the context of an individual application a "matter" which has

already been examined in an inter-State case. Neither does it consider

it necessary to pronounce on the question of whether the mere passage

of time since its Report of 4 October 1983 in the third inter-State

case would in itself qualify, in the particular circumstances of the

case, as "relevant new information" for the purposes of Article 27

para. 1 (b) (Art. 27-1-b) of the Convention.

      The Commission recalls that in its Report of 10 July 1976 in

applications Nos. 6780/74 and 6950/75 Cyprus v. Turkey (the first and

second inter-State cases) it considered that the evidence before it did

not allow a definitive finding with regard to the fate of Greek

Cypriots declared to be missing. Although in its Report of

4 October 1983 in application No. 8007/77 Cyprus v. Turkey (the third

inter-State case) the Commission considered that it had found

sufficient indications, in an indefinite number of cases, that Greek

Cypriots who were still missing at the time had been unlawfully

deprived of their liberty, it cannot be established with any certainty

that this finding also concerned the cases of the first applicants in

the present applications. Finally, the Commission recalls that an

examination of the merits of application No. 25781/94 Cyprus v. Turkey

(the fourth inter-State case) still remains to be carried out. In these

circumstances, the Commission considers that the present individual

applications do not concern a "matter" which has "already been

examined" by the Commission in the context of one of the inter-State

cases. Having reached this finding the Commission considers it

unnecessary to address the Government's arguments - whatever their

relevance might be in an individual application - about the

res judicata effect of the Committee of Ministers' resolution in the

third inter-State case.

      As regards the Government's arguments concerning the Committee

on Missing Persons, the Commission has always considered that the

procedures envisaged by the second limb of Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention are procedures in which a matter is

submitted by way of "a petition" lodged formally or substantively by

the applicant (see No. 16358/90, Dec. 12.10.92, unpublished, and, by

implication, No. 11603/85, Dec. 20.1.87, D.R. 50, p. 228, No. 17230/90,

Dec. 9.10.91, unpublished and No. 17512/90, Dec. 30.6.92 and 6.7.92,

unpublished). This is not, however, the case with the Committee on

Missing Persons (No. 25781/94 Cyprus v. Turkey, Dec. 28.6.96, supra).

Moreover, the Commission notes that Turkey is not a party to the

procedure before that Committee and that the Committee cannot attribute

responsibility for the deaths of any missing persons or make findings

as to their cause. Finally, the Commission notes that the Committee's

investigating capacity is limited. In these circumstances, the

Commission considers that the Committee is not "a procedure of

international investigation or settlement" of the "matter" which is

pending before the Commission in the present applications.

      As a result, the Commission considers that it cannot reject the

applications as inadmissible under Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention on the ground that they concern a

matter which has already been examined by the Commission or has already

been submitted to a procedure of international investigation or

settlement.

5.    Finally, the Government argue that the applications are

manifestly ill-founded. According to the information given in the

application forms, the alleged "missing persons" were military

personnel who were lost in action. A number of experts who have

addressed the issues agree that there is no indication that any of "the

missing persons" is alive.

      The applicants argue that the expert opinions to which the

Government refer are not supported by any evidence. As a result, the

Government continue to bear the obligation to account for the fate of

the "missing persons".

      The Commission, in the light of the parties' observations,

considers that the application raises serious questions of fact and law

which are of such complexity that their determination should depend on

an examination of the merits. The application cannot, therefore, be

regarded as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground

for declaring it inadmissible has been established.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

      merits of the case.

        M. de SALVIA                         S. TRECHSEL

         Secretary                             President

     to the Commission                    of the Commission