FOURTH SECTION

DECISION

Application s no s . 60441/13 , 68206/13 and 68667/13 Nazli GÃœRTEKÄ°N and others against Cyprus, Ayse AKAY and others against Cyprus and Ay se ERAY and others against Cyprus

The European Court of Human Rights (Fourth Section), sitting on 11 March 2014 as a Chamber composed of:

Ineta Ziemele , President, Päivi Hirvelä , George Nicolaou , Nona Tsotsoria , Zdravka Kalaydjieva , Krzysztof Wojtyczek , Faris Vehabović , judges, and Françoise Elens-Passos , Section Registrar ,

Having regard to the above applications lodged on 19 September 2013,

Having deliberated, decides as follows:

THE FACTS

A list of the applicants is set out in the appendix.

A. The circumstances of the case

1. The facts of the case, as submitted by the applicants, may be summarised as follows.

2. The applicants are relatives of men who disappeared during intercommunal conflicts in Cyprus in 1963-1964. They had previously introduced applications (nos. 3706/09, 32744/09 and 57250/09) which principally raised complaints about the effectiveness of the investigations into the deaths of the missing men whose bodies had been found during exhumation programme of the United Nations Committee on Missing Person s (CMP). The complaints about the alleged ineffectiveness of the investigations into the discovery of the bodies were rejected by the Court as inadmissible on 3 April 2012 as premature as these investigations were still pending.

3. On 11 October 2010, the Attorney General directed the Chief of Police to carry out an investigation to ascertain the circumstances of the death of the applicants ’ relatives and whether this was the result of unlawful acts and, in such a case, to identify and punish those responsible.

4. Inquiries were launched by the Cypriot police. Contact was made with various applicants who were invited to give statements. Applicant Mehmet Salih Gurtekin from application no. 60441/13 attended such an interview; the families in application no. 68206/13 attended for interview in January and February 2011. Three applicants from application no. 68667/13 attended the police station to give statements. Other investigative steps were taken to contact possible witnesses and to identify potential suspects as set out below.

B. Application No. 60441/13

5. On 23 May 2013, the Attorney General issued a report to the applicants ’ lawyer. He stated that the police had submitted the results of their investigation to his office in September 2012 and in December 2012 he had instructed further steps to be taken. The file was completed and returned in April 2013. He stated:

“.. I have studied the investigation file with all evidential material collected and I consider that the investigation has reached a point at which it cannot proceed any further. This is due to the fact that all leads and possible sources of information that were available for ascertaining the circumstances of the death of Dervis Mehmet and holding accountable the perpetrators in this very serious case have been pursued exhaustively and despite the fact that the resulting information/evidence respecting the core facts of the case, including the ascertainment of the identity of the perpetrators is scanty and does not lead to persons that can be considered as possible suspects. There are no other available leads/directions to be followed by the police for collecting further evidence in the case.”

6. In particular, the report stated that:

7. The Attorney General concluded that the passage of time since events had rendered unfeasible the questioning of the persons who might have been able to shed light on the investigation. As there were no remaining leads, the investigation could not be pursued further. However, if any new evidence or information did come to light in the course of other ongoing investigations into events in 1963-1964, he had instructed the police to bring it to his attention for evaluation and further directions. He would keep the applicants updated in such event.

C. Application No. 68206/13

8. By letter dated 29 March 2013, the Attorney-General issued a report to the applicants on the investigation into the fate of the deceased in this application. He stated that the police had delivered to his office the evidential material collected in the investigation and that notwithstanding all the inherent difficulties in trying to ascertain facts going back so far, all available leads had been pursued. He set out the steps taken in the investigation:

9. The Attorney-General reported that there were serious indications that the murders had been committed by five named individuals. However he concluded that, on the basis of the evidence, there was no reasonable prospect of being able to convict the two suspects still alive as the evidence was based on hearsay evidence from people no longer alive or on rumours coming from unascertainable sources or which could not be investigated further. Thus a prosecution of these two persons was not justified. He stated that he would inform the applicants if any further information arose in the context of other pending investigations.

D. Application No. 68667/13

10. On 23 May 2013, the Attorney-General issued a report to the applicants ’ lawyer. He stated that the police had submitted the results of their investigation to his office in September 2012 and in December 2012 he had instructed further steps to be taken. The file was completed and returned in April 2013. He stated that he had studied all the evidential material collected and found that it could not proceed further as all the leads and possible sources of information had been exhausted and the evidence of the identity of any perpetrators was scanty and had not led to persons that could be treated as possible suspects. He set out the investigative steps which had been taken, including the following:

11. The Attorney-General concluded that it was very likely that the deceased had been at the Cheilides checkpoint as this was the only point of entry and exit for the Turkish-Cypriot sector of Nicosia; there was hearsay evidence that he had been abducted from the checkpoint while in the company of three other Turkish Cypriots, of whom two were unidentified. It had not been possible to clarify where the deceased had been killed. He concluded that the passage of time since events had rendered unfeasible the questioning of the persons who might have been able to shed light on the investigation. As there were no remaining leads, the investigation could not be pursued further. However, if any new evidence or information did come to light in the course of other ongoing investigations into events in 1963-1964, he had instructed the police to bring it to his attention for evaluation and further directions. He would keep the applicants updated in such event.

E. Relevant domestic law and practice

Özalp Behiç , Ece Behiç and Suzan Behiç and others v. Republic of Cyprus Attorney-General, Council of Ministers, Ministry of Foreign Affairs, Ministry of Interior (case nos. 589/06 , 590/06 , 591/06 , 592/06 , 593/06 )

12. In these cases lodged in 2006, the relatives of five Turkish Cypriot men who went missing on 14 August 1974 after they had been taken from their homes by armed Greek Cypriots, lodged applications under Article 146 of the Constitution, claiming that the Republic of Cyprus had known of the deaths of the missing persons but had not searched for the corpses or brought the guilty persons to justice and that the Republic had not taken the necessary actions to pursue an effective investigation to determine the whereabouts and fate of the missing persons. In their response, the Republic of Cyprus stated that they had not been passive but had been unable to pursue their intentions to exhume and identify corpses due to the agreement between the United Nations, the Turkish-Cypriot side and themselves that exhumations would be conducted by a common programme of the Committee of Missing Persons. They also pointed out that exhumations had begun in 2004 and the programme indicated the likelihood of the exhumation of the graves in the relevant area would commence in August 2008. They disputed that the matter fell within the jurisdiction of the courts but fell rather under the supervision of the United Nations and the authority and initiative of the President of the Republic.

In its decision dated 29 May 2008, the Supreme Court in its appellate capacity held that the fate of missing persons fell under the authority of the President of the Republic as it had an international aspect; the cases therefore concerned an act of government which did not fall within the jurisdiction to annul of the Supreme Court.

COMPLAINTS

13. The applicants complained under Article 2 that the investigation was ineffective. They submitted that they had been barred from participating in, the investigation, in particular, as the authorities had not furnished them with any direct evidence, given them any names of possible perpetrators or provided the families with any of the witness statements or police reports. The applicants considered that the authorities had not adequately investigated the references in statements concerning the Kykkos high school and were convinced that the Government authorities of the time knew what had occurred but chose to remain silent; they asserted that the Government were still protecting erstwhile members of Akritas and militia groups. They found the outcome of the investigation unconvincing and that it lacked judicial and public scrutiny and any adversarial procedure. They also complained that the investigation was not independent due to political aspects, in particular past connections between Government figures and Akritas ; and also that the delay in 50 years in launching the investigation was not prompt.

14. The applicants complained under Article 3 that the failure of the authorities to pursue an effective investigation with public scrutiny and proper access to the investigation caused them distress and that they remained in mental anguish as to past events.

15. The applicants complain under Article 13 that they were not given the opportunity to challenge the acts or omissions of the investigating authorities in court and had no remedy against the decision of the Attorney- General to close the file.

THE LAW

A. Joinder of the applications

16. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.

B. Article 2 of the Convention

17. The applicants have complained that there has not been an effective investigation into the deaths of their relativ es who disappeared in 1963-1964 , invoking Article 2 of the Convention which provides, as relevant:

“1. Everyone ’ s right to life shall be protected by law. ... ”

18. The Court would recall that it is only called upon to examine issues arising in respect of the investigation into the discovery of the bodies of the applicants ’ relatives. The issues relating to the disappearances in 1963-1964 have already been rejected as having been submitted out of time (see Emin and Others v Cyprus, Greece and the United Kingdom , nos. 59623/08 et al, ( dec. ) 3 June 2010).

19. The Court ’ s case-law establishes that the obligation to protect the right to life under this provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios , agents of the State (see McCann and Others v. the United Kingdom , 27 September 1995, § 161, Series A no. 324). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98 , § 110, ECHR 2005-VII).

22. The extent to which the other requirements of an adequate investigation -effectiveness, independence, accessibility to the family and sufficient public scrutiny- apply will again depend on the particular circumstances of the case (for a general statement of principle on the requirements of Article 2 under its procedural head, see, for example, Al- Skeini v. the United Kingdom , [GC] no. 55721/07 § 166-167 ECHR 2011 ). While what reasonably can be expected by way of investigative measures may well be influenced by the passage of time as stated above, the criterion of independence will, generally, remain unchanged (see, for the importance of this criterion from the very earliest stage of the procedure, Ramsahai and Others v. the Netherlands [GC], no. 52391/99, §§. 325, 333-341, ECHR 2007-...). Finally, it must be noted in general that with a considerable lapse of time since an incident, memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and the prospects of any effective investigation leading to the prosecution of suspects will increasingly diminish (see, mutatis mutandis , Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, §§ 161, 192, ECHR 2009; Palić v. Bosnia and Herzegovina , cited above, no. 4704/04 , § 49, 15 February 2011 ).

23. As concerns the present applications, the Court would recall that in the previous applications concerning these matters it had held that the discovery of the remains of the applicants ’ relatives bearing signs of violence and buried in circumstances highly suggestive of extra-judicial execution or murder triggered an obligation on the authorities to take investigative steps to identify the likely cause and circumstances of death and the identity of the perpetrators of any unlawful violence. The Court noted that investigations had been underway since October 2010 and concluded in its decision of 3 April 2012 that despite the applicants ’ allegations that the investigations were sham and pro forma it was premature to conclude that they were ineffective.

24. Since the Court ’ s rejection of the previous applications (see paragraph 2 above), the Attorney-General has, in March and May 2013, issued reports on the investigations (see paragraphs 5-11 above). In light of the findings of the investigations, he has concluded that there is insufficient evidence to bring prosecutions and, pending further evidence coming to light, the investigations must now be regarded as closed. The Court must therefore examine the applicants ’ complaints that these investigations have been ineffective in the sense of the Court ’ s case-law outlined above.

26. The applicants have submitted that the investigations were nonetheless ineffective However, they have not pointed to any other concrete avenues of enquiry that the police could in fact pursue, beyond referring to the fact that enquiries did not appear to have been made about the school where some Turkish-Cypriot people had allegedly been kept prisoner. There is nothing however to indicate that any teachers or school personnel were in any way involved in the events, or had been witnesses of events; indeed it would appear highly unlikely that school personnel would have been present at the same time as any paramilitary activities were being conducted at the school. This omission, if such it is, does not give any appearance of undermining the efficacy of the investigation in itself.

30. Insofar as the applicants make reference to a lack of expedition and to the lapse of time since their relatives disappeared, the Court would underline that the only period of time in issue in the present case is that which has elapsed since the finding of the bodies and the launch of the investigation into those discoveries. Given that it has already found that there was no undue delay disclosed by the time of its consideration of the earlier applications on 3 April 2012, the Court does not find that the fact that it took about another year for the police to submit their report to the Attorney-General, for the Attorney-General to consider whether to instruct further steps to be taken, to re-assess the file in light of any additional measures and then to draw up and send out his report gives any ground for a finding of undue delay. This finding that the authorities did not lack the appropriate expedition in investigating the discovery of the bodies must be distinguished from the inevitable impact of the overall passage of time since the occurrence of events on the outcome of the investigation (see paragraph 22 above).

31. Lastly, insofar as the applicants referred to lack of independence in the investigation, the Court recalls that they have mentioned alleged links between the now defunct “ Akritas organization” and political figures at the time of events. There is however no indication of any links existing between the police authorities or Attorney-General and any political figures or organisations purportedly tainted by involvement in events in 1963-1964. The applicants ’ allegations largely amount to a general assertion that no Cypriot authority could claim to be independent of past events or those involved in them. The Court sees no basis on the materials or arguments before it for finding any such theoretical impossibility for the Republic of Cyprus to carry out an effective investigation.

32. In conclusion, the Court does not find anything to support the applicants ’ allegations that the authorities did not properly investigate the fate of the deceased or that they are somehow shielding or protecting those responsible. The investigation has not been shown to have infringed the minimum standard required under Article 2. It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3(a) and 4 of the Convention.

C. Article 3 of the Convention

33. The applicants complained that the failure to provide a proper investigation caused them distress and anguish, invoking Article 3 of the Convention which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

34. It is true that, in cases of a “disappeared person”, a family member can claim to be the victim of treatment contrary to Article 3 where the disappearance was followed by a long period of uncertainty until the body of the missing person was discovered. The essence of the violation in such a case lies in the authorities ’ dismissive reactions and attitudes when the situation was brought to their attention or in failures by the authorities which may be regarded as disclosing a flagrant, continuous and callous disregard of an obligation to account for the fate of the missing person. It is only in very restricted circumstances that the Court has reached a separate finding of Article 3 in relation to situations of confirmed death (see Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09 , §§ 177-181, ECHR 2013 ).

35. In the present cases, as mentioned above (see paragraph 18), the issue at stake does not concern the disappearances but the responses of the authorities to the discovery of the bodies of the deceased. The Court has found above that the authorities have not failed in any duty of reasonable expedition or of notification of the families that might be required by Article 2 of the Convention. Nor are there any other elements which might disclose a basis for finding a violation of Article 3 of the Convention arising from the applicants ’ complaints.

36. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3(a) and 4 of the Convention.

D. Article 13 of the Convention

37. The applicants complained about a lack of effective remedy for their complaints above, invoking Article 13 of the Convention which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

38. H aving regard to the submissions of the applicants and its findings under Articles 2 and 3 of the Convention in these applications as well as the previous applications, the Court considers that no further issue arises for examination concerning the remaining complaints made by the applicants.

For these reasons, the Court unanimously

Decides to join the applications;

Declares the applications inadmissible.

Françoise Elens-Passos Ineta Ziemele Registrar President

ANNEX

No

Application No

Lodged on

Applicant

Date of birth

Place of residence

Nationality

Represented by

60441/13

19/09/2013

Nazli GÃœRTEKÄ°N

28/10/1926

LefkoÅŸa / Mersin 10

Mehmet Salih GÃœRTEKÄ°N

19/02/1954

LefkoÅŸa / Mersin 10

Lema TAVLI

25/12/1955

Konya

Åžerife GÃœRTEKÄ°N

05/05/1957

LefkoÅŸa / Mersin 10

Ali GURTEKIN

05/01/1963

Lefkosa

Yaprak RENDA

68206/13

27/09/2013

AyÅŸe ERAY

05/07/1939

MaÄŸusa / Mersin 10

Sadi ESENTAN

12/08/1952

Mersin 10

AyÅŸe ESENTAN

01/01/1927

Mersin 10

AyÅŸe AYKANAT

17/10/1939

Güzelyurt / Mersin 10

Vasviye AYSAN

08/03/1957

Güzelyurt / Mersin 10

Salih AYKANAT

03/03/1958

Mersin 10

Gülay İNÖNÜLÜ

17/10/1959

Mersin 10

Ãœmit AYKANAT

01/04/1962

Güzelyurt / Mersin 10

Melek ÖZLUSES

10/06/1964

Mersin 10

Vijdan OZANALP

12/03/1939

Mersin 10

Mustafa ÖZATLI

18/03/1960

Girne / Mersin 10

Dürü ÖZATLI

04/02/1957

LefkoÅŸa / Mersin 10

HACIOÄžLU

01/01/1954

Mersin 10

Ayşe ESENÇAĞ

01/01/1957

Mersin 10

Fikriye ÖZGÜM

01/04/1937

Girne / Mersin 10

Mustafa ÖZGÜM

27/11/1954

Girne / Mersin 10

Ali ÖZGÜM

04/09/1957

Girne / Mersin 10

Ercan ÖZGÜM

18/03/1959

Girne / Mersin 10

Tünay ÖZGÜM

19/07/1962

Girne / Mersin 10

Fatma TAÅžKAN

25/07/1955

Mersin 10

Hasan Eray GÖKSAN

06/02/1947

Mersin 10

Zehra GÃœNEYSEL

08/04/1937

Ä°skele / Mersin 10

Hüseyin GÜNEYSEL

11/12/1960

Ä°skele / Mersin 10

Mümüş ALKIM

15/12/1962

LefkoÅŸa / Mersin 10

Göksel YUSUF

09/02/1939

Melbourne Victoria

Özel ŞEHİTOĞLU

30/10/1942

Mersin 10

Aysel Aydin DURUSOY

16/08/1947

Mersin 10

Ceylan ÇELİKER

07/07/1951

Mersin 10

Taner DÄ°MÄ°LÄ°LER

04/09/1952

Girne / Mersin 10

Yahya DÄ°MÄ°LÄ°LER

14/02/1954

Mersin 10

Celal DÄ°MÄ°LÄ°LER

01/11/1955

Mersin 10

Hüsnüye BİTTA

02/02/1957

Girne / Mersin 10

Songül SAĞDİNÇ

27/08/1959

Mersin 10

Şentaç ARI

02/04/1962

Girne / Mersin 10

Yaprak RENDA

68667/13

18/09/2013

AyÅŸe AKAY

06/02/1940

Mersion 10

Halil TOMAÇ

26/10/1958

Mersin 10

Osman AKAY

07/12/1959

Girne / Mersin 10

Zühal KESKİNEL

23/01/1962

Mersin 10

Mesut AKAY

09/03/1964

Mersin 10

Yaprak RENDA