FOURTH SECTION

DECISION

Application no . 42153/14 Ahmet KAYIPLAR and others against Cyprus

The European Court of Human Rights (Fourth Section), sitting on 6 January 2015 as a Chamber composed of:

Guido Raimondi , President, Päivi Hirvelä , George Nicolaou , Nona Tsotsoria , Paul Mahoney , Krzysztof Wojtyczek , Faris Vehabović , judges, and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 15 November 2013 ,

Having deliberated, decides as follows:

THE FACTS

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

A. The circumstances of the case

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

3. The applicants ’ relatives, Aydin Ahmet and Bekir Ahmet, disappeared on 15 August 1974, along with 82 other men who were taken by Greek Cypriots from three villages, Ta ş kent ( Tochni ), Terazi and Tatlisu . Information known about this incident is set out in Cakicisoy and Oth ers v Cyprus , no. 6523/12 (decision of 23 September 2014), which application was introduced by some 247 relatives of men who had disappeared also at this time.

4. The bodies of the applicants ’ relatives were exhumed by the Committee on Missing Persons and their funerals took place on 22 June 2013. A forensic report indicates that the remains bore signs consistent with being hit by numerous bullets.

5. The Attorney-General launched an investigation into the circumstances of the missing 84 men on 27 October 2005. The details of the investigation which is still pending are set out in the above-mentioned Cakicisoy and Others decision (see paragraphs 14-20).

B. Relevant domestic law and practice

6. See the case-law set out in Cakicisoy and Others v Cyprus (cited above), at paragraphs 28-29.

COMPLAINTS

7. The applicants complained under Article 2 of the Convention that there had been no effective and adequate investigation into the deaths of their relatives. They also complained that this lack of effective investigation over all these years, and the trauma following the discovery of the bodies, caused them suffering in violation of Articles 3 and 8 of the Convention . They further submitted that they had no effective remedy for their complaints contrary to Article 13 of the Convention and that these matters disclosed discrimination contrary to Article 14 of the Convention.

THE LAW

8. The applicants complained that there had not been any effective investigation into the disappearance and killing of their relatives and that they had suffered anguish for years as a result, invoking Articles 2, 3, 8, 13 and 14 of the Convention. Insofar as the applicants ’ complaints essentially refer to the alleged lack of investigation into the deaths, the Court will examine the matter under Article 2 of the Convention.

9. Article 2 provides as relevant:

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

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).

10. The obligation comes into play, primarily, in the aftermath of a violent or suspicious death and in the normal course of events, a criminal trial, with an adversarial procedure before an independent and impartial judge, must be regarded as furnishing the strongest safeguards of an effective procedure for the finding of facts and the attribution of criminal responsibility. There is no right however to obtain a prosecution or conviction ( e.g. Szula v. the United Kingdom , ( dec. ) no. 18727/06, 4 January 2007 ) and the fact that an investigation ends without concrete, or with only limited, results is not indicative of any failings as such. The obligation is of means only , not result ( AvÅŸar v. Turkey , no. 25657/94, § 394, ECHR 2001 ‑ VII (extracts)) .

11. Even where events took place far in the past, it is possible that new developments occur such that a fresh obligation to investigate arises, for example, newly-discovered evidence comes to light ( Brecknell v. the United Kingdom ( no. 32457/04, §§ 73 ‑ 75, 27 November 2007 ) ; Hackett v United Kingdo m ( n o. 34698/04 , ( dec. ) 10 May 2005 ) ; Gasyak and Others v. Turkey (no. 27872/03 , 13 October 2009) ) . The scope of the fresh obligation to investigate will vary according to the nature of the purported new evidence or information. It may be restricted to verifying the reliability of the new evidence. The authorities can legitimately take into account the prospects of launching a new prosecution at such a late stage. Due to the lapse of time, the level of urgency may have diminished; the immediacy of required investigative steps in the aftermath of an incident is likely to be absent (e.g. Brecknell , cited above, §§ 79-81 ) . The standard of expedition in such historical cases is much different from the standard applicable in recent incidents where time is often of the essence in preserving vital evidence at a scene and questioning witnesses when their memories are fresh and detailed (see Emin and Others v Cyprus , no. 59623 /08 et al, ( dec. ) 3 April 2012 concerning complex post-conflict situations ; Mujkanović v Bosnia and Herzegovina , no. 47063/08, ( dec. ) 3 June 2014, § 41 ).

12. The extent to which the other requiremen ts 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 1 6073/90, §§ 161, 192, ECHR 2009 ; Fazli ć v Bosnia and Herzegovina , no. 66758/09, ( dec. ) 3 June 2014, § 39 ).

13. Turning to the present application, the Court would refer to its reasoning in the Cakicisoy and Others case (cited above):

“42 ...it is apparent that there is strong evidence, based on eyewitness testimony, that the missing men [from the Tochni area] were killed by unlawful violence; disclosures about the killings in 1974 appeared in the press; and some remains have been found and are in course of identification. In the circumstances, the Court finds that an obligation arises on the Government under Article 2 to conduct an investigation the fate of the applicants ’ relatives. It notes that according to the Government an investigation was launched into the fate of the applicants ’ relatives in October 2005. It is still pending in 2014, some nine years later. The Court must examine whether this investigation complies with the standards of Article 2 as outlined above.

43. The applicants complained that they had never been informed about any investigation until 2011 when they indirectly learned through another case lodged with the Court. It was because of this silence that they had brought unsuccessful proceedings before the Supreme Court. They complained that they were not parties to the investigation and doubted that the investigation had been thorough noting that no statements had been taken from the applicants since 2005 and that no information had been forthcoming about what steps had been taken to investigate the persons whose names had been identified as involved in events. They were doubtful about the sincerity of the investigation which had not been mentioned in the Supreme Court proceedings and which appeared to being prolonged indefinitely.

44. The Court would note that although the applicants claimed not to have been informed of any investigation until 2011 they also acknowledged that statements had been taken from applicants in 2005. It further appears that the authorities have taken statements from the men already named as being implicated in the events in 1974. Of these two had died and three had denied any involvement. The sixth had admitted being involved in gathering Turkish Cypriot men in the school but had then left and thus had not been involved in the removal of the victims the next day. Another man named as having guarded the victims at the school had also found to have died. On 11 April 2013 and 5 June 2013, the Attorney-General gave instructions to the police as to further steps that should be taken, widening the investigation. In particular he instructed that the investigation should not be closed without the discovery and identification of all the missing men. The Court observes that while remains have been found, complications have arisen due to the apparent removal of bodies to another burial site. Searches and analyses are ongoing. It may therefore be some time before this aspect of the investigation will be complete. ”

45. The Court is not convinced against this background that the authorities have shown a failure to take effective investigative steps or properly to follow up known leads. It is true that the investigation has been pending for a considerable time. However, this may be explained by the practical problems of locating remains and identifying them in the context of a large-scale exhumation project and the difficulties of tracing witnesses and evidence after such a long period of time. While it is true that there has been little communication between the applicants and the authorities, it would appear that there has been so far little to report. T he Court notes that the procedural obligation under Article 2 does not require applicants to have access to police files, or copies of all documents during an ongoing inquiry, or for them to be consulted or informed about every step ( McKerr v. the United Kingdom , no. 28883/95, ECHR 2001 ‑ III, § 121; Green v. the United Kingdom , no. 28079/04, ( dec. ) 19 May 2005; Hackett v. the United Kingdom , ( dec. ) 34698/04, 10 May 2005). Nor, as claimed by the applicants, is there any obligation for the victims ’ relatives to be treated as parties to the investigation as such.

46. The Court cannot but sympathise with the applicants who have waited years for elucidation as to the fate of their relatives and who must be frustrated by the apparent lack of concrete progress. However, the Court perceives no lack of good faith on the part of the authorities and finds no indication of any deliberate procrastination. Given that events took place far in the past, there is no special duty of expedition on the part of the authorities and the fact that a complicated investigation continues over a number of years will not, in itself, disclose a failure of effectiveness, as long as there are steps that are still being taken, which is the case in the current application.

47. In conclusion, the Court notes that the investigation is still ongoing. It finds nothing to support the applicants ’ allegations that the investigations are in some way a sham. For the moment, it is too early to find that overall, despite some possible shortcomings in the area of communication by the authorities with the victims ’ relatives, the approach of the authorities have infringed the minimum standard required under Article 2. It follows that at the present stage the applicants ’ complaints are premature and must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.”

14. The Court finds no element arising in the present application which could lead it to a different conclusion. It therefore concludes that it is premature and must also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3(a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 29 January 2015 .

Françoise Elens-Passos Guido Raimondi Registrar President

APPENDIX

N o .

Firstname LASTNAME

Birth date

Birth year

Ahmet KAYIPLAR

26/02/1972

1972Hayriye ARSLAN

01/02/1954

1954Aliye KAYIPLAR

20/03/1945

1945Ramadan KAYIPLAR

14/05/1974

1974