FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 7864/06 by Halide Ç AKIR and Others against Cyprus

The European Court of Human Rights (First Section), sitting on 29 April 2010 as a Chamber composed of:

Christos Rozakis , President, Nina Vajić , Khanlar Hajiyev , Dean Spielmann , Sverre Erik Jebens , Giorgio Malinverni , George Nicolaou , judges, and Søren Nielsen, Section Registrar ,

Having regard to the above application lodged on 13 February 2006,

Having deliberated, decides as follows:

THE FACTS

The five applicants are Cypriot nationals who live in the “ Turkish Republic of Northern Cyprus ” (“TRNC”). The first applicant, Mrs Halide Çakir , is the mother of the second, third and fourth applicants, Mr Serkan Çakir , Mrs Sinem Çakir and Mr Songür Çakir . The fifth applicant, Mr Mehmet Çakir , is the brother-in-law of the first applicant. The applicants were born in 1947, 1965, 1968, 1971 and 1943 respectively. The first four applicants have lodged the application on their own behalf and on behalf of Mr Erdoğan Çakir , the husband of the first applicant and the father of the second, third and fourth applicant. The fifth applicant has lodged the application on his own behalf and on behalf of his brothers, Mr Erdoğan Çakir and Mr Mustafa Çakir . The applicants were rep resented before the Court by Mr Z. Necatigil and Ms S. Karabacak , lawyers practising in the TRNC.

The complaints raised in the present application concern events that took place during the second round of military operations by Turkey in northern Cyprus in August 1974. The facts of the case, as submitted by the applicants, may be summarised as follows.

Before the events of August 1974, the applicants, Mr Erdoğan Çakir and Mr Mustafa Çakir lived in Ktima , in the district of Paphos .

On 14 August 1974, the Turkish quarter of Ktima was under heavy fire from units of the Cypriot National Guard. The United Nations Peace Force advised Turkish-Cypriot residents, through loudspeakers, to remain in their houses and the Çakir family, including the applicants and Erdoğan and Mustafa Çakir , gathered in the house of Erdoğan Çakir . At the time, the second, third and fourth applicants were children aged nine, six and three years respectively, Mustafa Çakir was 22 years old and Erdoğan Çakir was 36 years old. Everyone in the house was in civilian clothes and unarmed. While they were in the house, members of the Greek-Cypriot forces fired at the door with automatic weapons. They subsequently kicked the door open while continuing to fire, shooting and wounding Erdoğan Çakir , who was close to the door. Mustafa Çakir then entered from the adjacent room with his hands on his head pleading with the assailants not to shoot as there were women and children among them. He was taken outside and shot with an automatic weapon. He died immediately. The dead and wounded were taken outside while the women and children were kicked, humiliated, abused and struck with rifle butts before being pushed out of the house. Erdoğan Çakir , who was still alive at the time not having received fatal wounds, was taken away by the Greek-Cypriot forces, together with the dead body of Mustafa Çakir .

All the remaining Turkish Cypriots were taken from their houses to the football pitch in town. There they were divided into groups. A number of them, including the fifth applicant, were sent to a prisoners ' camp and the rest were sent back to their homes. The fifth applicant was detained in the prisoners ' camp for 42 days.

On 15 August 1974, the day after the killings, the dead bodies of Erdoğan and Mustafa Çakir were returned to their relatives by the United Nations Peace Force. They were taken by their relatives to the courtyard of the local mosque for burial. Erdoğan Çakir ' s jaw and ribs were broken and he had pinholes in his body.

The Social Welfare Officer of the town, Murad Hüsnü Özad , identified by name six persons he alleged were responsible for the crimes committed on 14 August 1974. According to the applicants, the Greek-Cypriot authorities also knew the identities of the persons concerned and the Greek-Cypriot President at the time announced that those responsible would be punished.

In 2005, the second applicant visited the tombs of his father and uncle in the Greek part of the island. He was approached by a Greek-Cypriot who informed him of the names of three people responsible for their deaths; all three were among those previously accused by Murad Hüsnü Özad of the killings. The second applicant was also told that the massacre had been ordered by a Greek military chief commandant.

By letter dated 23 February 2006 the applicants ' lawyer requested the Attorney-General of the Republic of Cyprus to inform him, by the end of March 2006, whether the authorities had carried out any investigation into the killings of Mr Erdoğan Çakir and Mr Mustafa Çakir ; the result of any such an investigation; and whether the persons involved in the commission of the crimes had been brought to justice.

By letter dated 20 April 2006 the Attorney-General informed the applicants ' lawyer that the contents of his letter of 23 February 2006 was under consideration and that he would contact him in due course. No further correspondence from the Attorney-General has been received by the applicants ' lawyer.

COMPLAINTS

The applicants complained under Article 2 of the Convention of a breach of the right to life in respect of the killings of their relatives, Erdoğan Çakir and Mustafa Çakir . They further complained that the authorities of the respondent Government had failed to conduct an effective investigation into the deaths of their relatives, to take any measures against the persons responsible and to provide any information to the applicants in this respect.

The applicants also complained of a violation of Articles 3 and 8 of the Convention in respect of the ordeal to which they had been subjected and the grief which they had suffered as a result of the killing of their relati ves. They argued that the failure to conduct an Article 2-compliant investigation increased their suffering. They also relied on Article 3 in respect of the respondent Sta te ' s failure to conduct an effective investigation .

The applicants further complained that no criminal investigation had been conducted into the deaths of their relatives and that they had therefore been denied an effective remedy, in breach of Article 13 of the Convention.

Finally, the applicants complained that the violations they suffered were due to their Turkish-Cypriot origin and Muslim religion, contrary to the requirement of non-discrimination in Article 14.

THE LAW

The applicants submitted that the Cypriot authorities ' failure to carry out an effective investigation into the deaths of ErdoÄŸan and Mustafa Çakir and to punish those responsible for their deaths constituted a violation of a continuing nature. In this connection they relied, inter alia, on the findings of the Court concerning Greek-Cypriot missing persons in Cyprus v. Turkey ( [GC], no. 25781/94, §§ 134-136, 147-150 and 156-157 , ECHR 2001 ‑ IV ) and the decision of the Chamber in Varnava and Others v. Turkey (nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § § 112-113 , 10 January 2008 ). The applicants noted that the facts of the present case were different from the above cases in that it was known that ErdoÄŸan and Mustafa Çakir had been killed and when their deaths had occurred. They argued that there should be no expiry date for the obligation to carry out an investigation into a death resulting from the use of force.

The applicants further argued that following the division of the island in 1974, they had no means of accessing the Greek-Cypriot authorities until April 2003, when restrictions on crossing the Green Line separating the two halves of the island were relaxed. In any case, they contended that the respondent Government, as a matter of administrative practice, did not reply to complaints concerning Turkish Cypriots who had been killed or had gone missing in life-threatening situations, nor did they provide any information to relatives. Accordingly, any action at domestic level to compel the authorities to carry out an investigation would have been futile. In this regard, the applicants pointed to their letter to the Attorney-General of 23 February 2006, noting that they were still waiting for a substantive response to that letter. In any event, according to the Court ' s case-law it was for the authorities to act of their own motion once the matter came to their attention, and not for the next of kin to lodge a formal complaint or to take responsibility for conducting any investigative procedures. In view of the unwillingness of the authorities of the respondent State to take any steps, there was nothing that the applicants could have done to exhaust domestic remedies (citing in particular Denizci and Others v. Cyprus , nos. 25316-25321/94 and 27207/95, §§ 355-362 , ECHR 2001 ‑ V ).

Finally, the applicants contended that they had no means of knowing that the Cypriot Government had accepted the right of individual petition on 1 January 1989. They had applied to the Turkish-Cypriot Attorney-General, who referred them to the Turkish-Cypriot police, but the Turkish-Cypriot authorities were not able to bring the culprits to justice. The applicants only became aware of the possibility of applying to the Court for redress following publicity regarding the cases of Adalı v. Turkey , no. 38187/97, 31 March 2005 and Kakoulli v. Turkey , no. 38595/97, 22 November 2005 .

The Court emphasises that the provisions of the Convention do not bind a Contracting Party in relation to any act or omission which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party or, as the case may be, before the date on which the respondent Party recognized the right of individual petition (“the critical date” – see Blečić v. Croatia [GC], no. 59532/00, § 70 , ECHR 2006 ‑ III ; Å ilih v. Slovenia [GC], no. 71463/01, § 140 , 9 April 2009 ; and 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 , § 130 , ECHR 2009 ‑ ... ). The Court may, however, have some regard to facts which occurred prior to the critical date because of their causal connection with subsequent facts which form the sole basis of the complaint and of the Court ' s examination (see Å ilih , cited above, § 141).

The Court notes that the killings of Erdoğan and Mustafa Çakir took place on 14 August 1974. The right of individual petition in respect of Cyprus took effect over 14 years later on 1 January 1989. The applicants referred to the grief they experienced following the deaths and the absence of an Article 2-compliant investigation in order to seek to establish a continuing situation in respect of their substantive complaints regarding the killings. However the Court does not consider that any continuing situation arises in the present case. In particular, while it has found the absence of an investigation to constitute inhuman and degrading treatment in the case of missing persons, that finding was based on relatives ' ignorance of the fate of their loved ones and the uncertainty that stemmed from such ignorance (see Varnava and Others , cited above, § 200-202; and Cyprus v. Turkey , cited above, § 157). In the present case, no such uncertainty arises. The applicants were aware of the fate of both Mustafa and Erdoğan Çakir at the time of the events and their bodies were returned to the applicants. Accordingly, to the extent that the applicants complained under Articles 2, 3, 8 and 14 about the events of August 1974 themselves, including the killings of their relatives and the effects on them as witnesses to the killing of Mustafa Çakir and the shooting of Erdoğan Çakir , and the impact on them of the authorities ' failure to investigate, the Court concludes that the complaints arise from events which cannot be construed as continuing violations and which took place on an identifiable date. The date in question being prior to the critical date, these complaints are inadmissible ratione temporis .

However, following the killings of the applicants ' relatives, a procedural obligation arose requiring the authorities of the respondent State to investigate and to identify and punish the perpetrators. The applicants contended that the obligation was of indefinite duration and did not expire until it had been satisfied. The Court must therefore consider whether any procedural obligations arising in the present case under Articles 2 and 3 of the Convention are within its temporal jurisdiction .

It is clear from the Court ' s case-law that the procedural obligation to carry out an effective investigation under Article 2 constitutes a separate and autonomous duty on Contracting States. It can therefore be considered an independent obligation arising out of Article 2, capable of binding the State even when the death took place before the critical date (see, inter alia , Šilih , cited above, § 159; Varnava and Others , cited above, § 147; and Velcea and Mazăre v. Romania , no. 64301/01 , § 81 , 1 December 2009 ) . As the Court has previously observed, the procedural obligation under Article 2 binds the State throughout the period in which the authorities can reasonably be expected to take measures with an aim to elucidate the circumstances of death and establish responsibility for it (see Šilih , cited above, § 157). In this context, it should be noted that there is little ground to be overly prescriptive as regards the possibility of an obligation to investigate unlawful killings arising many years after the events since the public interest in obtaining the prosecution and conviction of perpetrators is firmly recognised, particularly in the context of war crimes and crimes against humanity (see Brecknell v. the United Kingdom , no. 32457/04, § 69, 27 November 2007 ).

However, having regard to the principle of legal certainty, the Court ' s temporal jurisdiction as regards compliance with procedural obligations in respect of events that occur before the critical date is not open-ended. As the Court explained in Šilih , cited above, §§ 161-163 , where the death occurred before the critical date, only procedural acts or omissions which occur after that date fall within the Court ' s temporal jurisdiction. Further, there must exist a genuine connection between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by Article 2 to come into effect. In practice, this means that a significant proportion of the procedural steps required by this provision have been, or should have been, carried out after the critical date . However, the Court does not exclude that in certain circumstances the connection could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner (see also Velcea and Mazăre , cited above, §§ 83-85; Tuna v. Turkey , no. 22339/03 , § § 58-60 , 19 January 2010 ; and Agache and Others v. Romania , no. 2712/02 , § 69 , 20 October 2009 ) .

The Court reiterates in this regard that there is an important distinction to be made between cases involving missing persons and those involving killings in so far as its assessment of whether the procedural obligation falls within the competence ratione temporis of the Court is concerned. As the Court found in V arnava and Others , cited above, §§ 148-149:

“ There is however an important disti nction to be drawn in the Court ' s case-law between the obligation to investigate a suspicious death and the obligation to investigate a suspicious disappearance. A disappearance is a distinct phenomenon, characterised by an ongoing situation of uncertainty and unaccountability in which there is a lack of information or even a deliberate concealment and obfuscation of what has occurred ... This situation is very often drawn out over time, prolonging the torment of the victim ' s relatives. It cannot therefore be said that a disappearance is, simply, an ' instantaneous ' act or event; the additional distinctive element of subsequent failure to account for the whereabouts and fate of the missing person gives rise to a continuing situation. Thus, the procedural obligation will, potentially, persist as long as the fate of the person is unaccounted for; the ongoing failure to provide the requisite investigation will be regarded as a continuing violation (see the fourth inter-State case, § 136). This is so, even where death may, eventually, be presumed.

It may be noted that the approach applied in Šilih v. Slovenia (cited above, § 163) concerning the requirement of proximity of the death and investigative steps to the date of entry into force of the Convention applies only in the context of killings or suspicious deaths, where the anchoring factual element, the loss of life of the victim, is known for a certainty, even if the exact cause or ultimate responsibility is not. The procedural obligation in that context is not of a continuing nature in the sense described above. ”

The Court has previously considered cases in which some investigation into the deaths in question, as well as relevant court proceedings seeking redress, took place both before and after the critical date (see, for example, Å ilih , cited above, and Teren Aksakal v. Turkey , no. 51967/99, ECHR 2007 ‑ X (extracts) ; Agache and others , cited above; Velcea and Mazăre , cited above; Åžandru and Others v. Romania , no. 22465/03 , 8 December 2009 ; and Tuna , cited above ). In such cases, having established that some of the steps were taken after the critical date, the Court examined the nature of these steps and their significance to the proc edural obligation under Article 2 in order to assess whether it had temporal jurisdiction. Accordingly, in Å ilih , the proximity in time of the death of the applicant ' s son to the acceptance by Slovenia of the right of individual petition as well as the fact that the large majority of the civil and criminal proceedings occurred after the critical date established the temporal competence of the Court in respect of the procedural obligation under Article 2 of the Convention (see Å ilih , cited above, §§ 164-165). In Teren Aksakal , the Court noted that the procedure by which the authorities had the opportunity to provide appropriate redress for the alleged violations of the Convention had terminated some sixteen years after the date on which Turkey had recognised the right of individual petition. The obligation on Turkey to have regard to their obligations under the Convention in respect of all pending cases justified the establishment of the Court ' s temporal jurisdiction in respect of the procedural steps and legal proceedings which continued after the critical date ( Teren Aksakal , cited above, §§ 67 and 74-76). In finding that it had temporal jurisdiction in the cases of Agache and others , Velcea and Mazăre and Tuna , the Court emphasised that all or most of the criminal and civil proceedings had begun and were completed after the critical date and that the complaints before the Court essentially related to these proceedings ( Agache and others , cited above, §§ 70-72; Velcea and Mazăre , cited above, §§ 86-87; and Tuna , cited above, §§ 61-62).

In the present case, the applicants ' procedural complaint is not related to alleged failings in the investigation or any subsequent legal proceedings but to the complete absence of any investigation whatsoever into their relatives ' deaths. As noted above, in order for the Court ' s jurisdiction to be established in respect of the alleged violation of the respondent State ' s procedural obligations, it must be shown that omissions occurred after the critical date and that there is a genuine connection between the death of the applicants ' relatives and the coming into effect of the right of individual petition in respect of Cyprus. Accordingly, the Court must be satisfied that a significant proportion of the procedural steps required by the Convention ought to have been carried out after the critical date .

In accordance with their Article 2 obligations, the Cypriot authorities were required to conduct an effective official investigation into the deaths of ErdoÄŸan and Mustafa Çakir on 14 August 1974, promptly and with reasonable expedition (see, inter alia , YaÅŸa v. Turkey , 2 September 1998, §§ 102-104 , Reports of Judgments and Decisions 1998 ‑ VI ; Çakıcı v. Turkey [GC], no. 23657/94, § § 80-87, ECHR 1999 ‑ IV ; and Mahmut Kaya v. Turkey , no. 22535/93, § § 106-107 , ECHR 2000 ‑ III ). It is clear from contemporaneous newspaper reports submitted by the applicants that the killings in Ktima were publicly known, and the applicants themselves insist that the Cypriot authorities were aware of them. Further, there was some evidence of the identities of the individuals allegedly responsible. Bearing in mind the political situation in Cyprus and the uncertainty surrounding the fate of a number of Cypriot nationals following the events of the summer of 1974, some delay in initiating and progressing the investigation might reasonably have been expected. However, notwithstanding the particular context of the present case and the special circumstances which exist, the Court considers that a significant proportion, indeed all, of the procedural steps required by Article 2 ought to have been completed well before the critical date of 1 January 1989, some 14 and a half years after the killings of the applicants ' relatives.

While it is clear that there are circumstances in which the procedural obligations arising under Article 2 may be, to some degree, revived, those circumstances are not present here. As the Court has previously noted, it cannot be the case that any assertion or allegation can trigger a fresh investigative obligation under Article 2. However where there is a new plausible allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrator of an unlawful killing, the authorities are under an obligation to take further investigative measures (see Brecknell , cited above, §§ 70-71). In the present case, the Court observes that t he events of 14 August 1974 which resulted in the deaths of Erdoğan and Mustafa Çakir are not in dispute and the identities of those allegedly responsible were known at the time. The Court notes the reliance placed by the applicants on the information obtained by the second applicant in 2005 and the letter of their lawyer of 23 February 2006 to the Attorney-General of Cyprus . However, the names of those allegedly responsible provided in 2005 were already known in 1974 and the request for information from the Attorney-General, made over thirty years after the killings, does not constitute a new plausible allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrators such as to revive the authorities ' procedural obligation to investigate the applicants ' relatives deaths and to bring the procedural obligations under Article 2 within the temporal jurisdiction of the Court.

Accordingly, the Court finds that the alleged failure of the Cypriot authorities to investigate the deaths of Erdoğan and Mustafa Çakir , to identify and punish the perpetrators and to inform the applicants of the outcome of the investigation occurred before 1 January 1989. The applicants ' procedural complaint under Articles 2 must therefore be considered inadmissible ratione temporis . Even assuming that the principles regarding the obligation to investigate under Article 2 , outlined in Šilih and Varnava and Others (both cited above) , apply similarly to Article 3 of the Convention, the complaint under Article 3 must also be rejected for the reasons set out above. In respect of the applicants ' complaint under Article 14 together with Articles 2 and 3 of the Convention, the alleged procedural violations being outside the temporal competence of the Court, the associated Article 14 complaint also falls outside the Court ' s temporal jurisdiction.

Finally, as regards the applicants ' Article 13 complaint, the Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy where there is an “arguable claim” of a violation of a substantive Convention provision (see Boyle and Rice v. the United Kingdom , 27 April 1988, § 52 , Series A no. 131 ). As the Court has found the applicants ' complaints under Articles 2, 3, 8 and 14 to be outside its temporal jurisdiction , it follows that the Court is not competent ratione temporis to examine whether the applicants had an “arguable claim”. Accordingly, the applicants ' submissions in respect of Article 13 also fall outside the Court ' s competence ratione tempo ris (see Meriakri v. Moldova ( dec .), no. 53487/99, 16 January 2001 ; and Moldovan and Others and Rostaş and Others v. Romania ( dec .), nos. 41138/98 and 64320/01 , 13 March 2001 ).

In conclusion, the application as a whole is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be declared inadmissible pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President