FOURTH SECTION

DECISION

Application no . 23082/07 Maria TZILIVAKI and others against Cyprus

The European Court of Human Rights ( Fourth Section), sitting on 14 October 2014 as a Chamber composed of:

Ineta Ziemele , President, George Nicolaou , Ledi Bianku , Nona Tsotsoria , Zdravka Kalaydjieva , Paul Mahoney , Krzysztof Wojtyczek , judges,

and , Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 23 May 2007 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants ’ ,

Having regard to the additional information submitted by the parties;

THE FACTS

1. The applicants, Ms Maria Tzilivaki, Mr Georgios Yianakakis and Mr Loucas Yianakakis, are Greek nationals who were born in 1969, 1939 and 1970 respectively and live in Chania, in Greece. They are represented before the Court by Mr E. Levantis, a lawyer practising in Athens.

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

A. The background facts

3. On 22 July 1974, during the Turkish invasion, a military aircraft carrying the 1st commando battalion of Chania, sent as reinforcements from Greece, was shot down by friendly fire in the area of Tymvos, in Makedonitissa. Out of the 32 commandos and crew only one survived. The victims included the first applicant ’ s brother, Stefanos Tzilivakis, and the son and brother of the second and third applicants respectively, Kosmas Gianakakis.

4. According to army records, Stefanos Tzilivakis and Kosmas Gianakakis were buried in individual and marked plots in Lakatamia Cemetery on 22 July 1974. Not all the bodies of the victims of the crash had been recovered and buried separately. The crash site had been covered over and converted into a Memorial for all Greek soldiers killed in the conflict; some unidentified remains from the crash had been buried in an unnamed mass grave, due to the small size of the bones, at the Memorial itself. At the site, there was built a memorial as well as a military cemetery with a church. The site was regarded altogether as a monument for honouring and commemorating those who fell.

5. In 1979, the army authorities exhumed and returned the bodies of 44 Greek soldiers killed in 1974 and buried in graves at Lakatamia Cemetery, including 16 victims of the crash. The remains from the grave bearing the name of Stefanos Tzilivakis were exhumed in the presence of his father and returned to the family in Greece on 3 September 1979. The grave bearing the name of Kosmas Gianakkis was exhumed in the presence of two of his brothers and returned to his relatives in Greece on 10 November 1979.

6. Sometime later a doubt arose as to the correct identification of remain s. Beginning in 1999, an organiz ation PHR (“Physicians for Human Rights”) in agreement with the authorities conducted exhumations at Lakatamia and other cemeteries, in particular of unidentified remains. In a 2000 report, PHR stated that burials in 1974 had taken place “under confusing circumstances” and that it appeared that the identifications had not been objectively verified, resulting in many mistaken attributions of identity and that due to lack of expertise, incomplete skeletons had been removed and parts of several individuals had been mixed together.

7. In 2001 the families of the victims , including the applicants ’ families, were visited by experts involved in the exhumation of the remains of the victims and were asked to give blood with a view to proceeding to proper identifications .

8. In June 2003 the first applicant ’ s family handed over to the Cypriot authorities for DNA tests the re mains which they had been given in 1979. Following such tests, the first applicant and her family were informed that the se remains r eceived in 1979 had not been those of Stefanos Tzilivakis.

9. In 2005, following testing of the remains given to the family of the second and third applicants and sent back to Cyprus, the family were informed that the remains contained parts of several other individuals.

10. In February 2005, DNA tests disclosed that the remains buried under the name of S.Y. had included part of the remains of Stefanos Tzilivakis. The family was so informed. The applicant was informed in 2006 that further remnants of Stefanos Tzilivakis had been discovered.

11. In 2006, it became apparent that the 22 remains returned to families represented at least 42 different individuals.

B. Concerning excavation of the crash site

12. The first applicant applied to the authorities in 2003 and 2004, urging that the crash site be excavated in order to find the remains of her brother that she thought must still be at that location. It is not apparent that the second or third applicants approached the authorities on this matter.

13. By a letter dated 18 February 2004, the Director of the Diplomatic Office of the President informed the first applicant that instructions had already been given for the planning of the excavations. The letter stated as follows, in so far as relevant:

“...

Before receiving your letter instructions had been given to start the planning for the excavation in Tymvos.

We had discussed the matter with the Greek Ambassador and following the instructions of the President of the Republic we are taking the necessary measures to excavate the site where the remains of the aircraft are and to exhume the remains which may have possibly been buried with them.

As I had told you orally we acknowledge the obligation to fully investigate the possibility that human remains have been buried with the aircraft remains; upon a possible finding of such remains and their forensic identification, we will give a reply to the family/families concerning the fate of their loved ones who fell while carrying out their duties for their country.

We also have an obligation in such a case to deliver the remains to the families so they can be buried with the befitting honour and in accordance with the religious rites and customs.

You appreciate that this task will take time and we therefore ask you to be patient.”

14. By a letter dated 25 February 2004 the Director General of the Ministry of Foreign Affairs informed the first applicant that the authorities were doing everything possible to locate the remains of her deceased brother in order to end the agony and uncertainty of her family and of the families of the remaining victims.

15. On 16 September 2003 the first applicant filed a complaint with the Commissioner of Administration ( “Ombudsman”) against the Ministry of Foreign Affairs (complaint 1205/2003).

16. In a letter dated 2 March 2004 the Ombudsman informed the first applicant that the Director General of the Ministry of Foreign Affairs had informed her that they were taking the necessary measures towards excavating the remains of the aircraft and to exhume the bodies that may have been buried there. In view of this the Ombudsman considered that there were no grounds for her continued intervention.

17. The Government submitted that work was undertaken to identify all the available remains in order to clarify the situation before proceeding to any large-scale excavations at the Memorial site. They also stated that they were hampered in identifications by the decisions of some families not to participate in the return of remains for identification; it also appears that one family had destroyed the remains. They stated that a large part of the remains of Stefanos Tsilivakis were recuperated; as his commando badge and ID tags had been found at Lakatamia Cemetery, there were no strong grounds for assessing that his body had been left at the site and that it was more likely that his remains were with all those transferred to Lakatamia.

18. Meanwhile several surveys and exploratory excavations were carried out at the Memorial site. This culminated in a PHR report of 22 July 2008 which stated that the unnamed remains stored at the Memorial site had been removed but their state was such that current DNA analysis methods had not been able to yield reliable results. It appears that there was a decision by the authorities not to proceed to excavate the site at this time due to

19. On 2 April 2009, the PHR issued a report, stating inter alia , that some victims of the crash remained unaccounted for and that there was a possibility that remains had been buried along with the aircraft on the site and urged that an investigation be launched to put an end to the uncertainty of the relatives.

20. On 26 February 2014 the Council of Ministers approved the Ministry of Foreign Affairs proposal no. E268/2014 for the excavation of the air crash site. The excavation was to take place under the supervision of the Ministry of Foreign Affairs and will be conducted by the scientific staff of PHR in co-operation with the Cypriot archeologists, the Ministry of Defence and the National Guard. The proposal included an analysis of the costs to be incurred in the total amount of 90,000 euros.

COMPLAINTS

21. The applicants complain ed under Article 2 of the Convention invoking both the substantive and procedural limbs of this provision. In particular, the applicants complain ed about the authorities ’ procrastination in excavating the site of the crash and exhuming the victims ’ remains with a view to their identification and burial by their families in accordance with religious beliefs.

22. Furthermore, the applicants complain ed under Articles 2 and 8 of the Convention about the failure of the authorities during all these years to provide them with any information concerning the excavation and exhumation of the remains of their relatives.

23. The applicants also complain ed under Article 8 of the Convention about the suffering the authorities ’ inaction has caused them over a very long period of time .

24. Finally, the applicants complain ed under Articles 6 § 1 and 13 of the Convention about a lack of an effective remedy.

THE LAW

A. Concerning the complaints raised under Articles 2 and 8 of the Convention

25. The applicants invoked Article 2 of the Convention which provides as relevant:

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

26. Insofar as the applicants invoked Article 2 in its substantive aspect, namely, that the respondent Government was responsible for the deaths of their relatives, the Court notes that the Republic of Cyprus recognised on 2 September 1988 the competence of the European Commission of Human Rights to accept individual petitions under the Convention in relation to facts occurring after 31 December 1988 . The death of the victims in this case occurred in 1974. It follows that the Court has no temporal jurisdiction in this matter and that the complaint is to be rejected as incompatible ratione temporis pursuant to Article 35 §§ 3 and 4 of the Convention.

27. Insofar as the applicants invoked the procedural obligation under Article 2 of the Convention, the Court would recall that this obligation concerns primarily the duty of the authorities to carry out effective investigations to uncover the fate of victims of violent or unlawful death and hold perpetrators to account where appropriate (see amongst many authorities, McCann and Others v. the United Kingdom , 27 September 1995, § 161, Series A no. 324 ). In the present case, it appears that there is no uncertainty about the fate of the applicants ’ relatives who were victims of friendly fire during an international armed conflict. The applicants ’ complaints are not in essence about any failure to hold those responsible to account for the deaths of their relatives. Their principal grievance concerns the ongoing uncertainty about the location of the bodies. The Court considers that this falls to be examined with the applicants ’ complaints raised under Article 8 of the Convention.

28. The applicants have complained under this provision that the authorities have not excavated the Memorial site, have unduly procrastinated and failed to provide them with information about the exhumations and excavations.

Article 8 of the Convention provides as relevant...:

“1. Everyone has the right to respect for his private and family life ... ”

29. The Government submitted that the applicants knew about the uncertainty as to the identification of the remains in 2003 and should have introduced their complaints at that time; there was, in their view, no continuing situation which stopped the running of the six-month time-limit imposed by Article 35 § 1 of the Convention nor exhaustion of remedies after that time. In any event, they argued that there was no obligation imposed by Article 8 to carry out the excavation of the Memorial site nor had they undertaken ever to do more than fully explore the possibility. Positive obligations of this kind attracted a wide margin of appreciation. While they acknowledged that there was an obligation to take measures to identify remains, the choice of means fell within that margin. The authorities had balanced the relevant interests and their approach to await the DNA identification of existing remains was legitimate and justified. There was no lack of provision of information given to the applicants as regards what was known about the remains of their relatives.

30. The applicants submitted that they were never informed or kept up to date about the whereabouts of the remains of their relatives. All the first applicant ever knew was that the remains of her brother were still missing; she claimed that she has not been contacted over the past 26 years. She disputed that the larger part of the remains had been located. The Government had never given the victims ’ relatives an active role in the decision not to proceed to an excavation in earlier years. This situation had led to years of uncertainty, frustration and distress.

31. Insofar as the Government submitted that the applicants ’ application introduced in 2007 was out of time as this was more than six months after their discovery in 2003 of the misidentification of remains, the Court finds it unnecessary to decide on their objection due to its assessment below.

32. The Court observes that the issue is whether the authorities have shown a lack of respect for the family life of the applicants due to alleged failures in exhuming their relatives ’ bodies or in providing information on this matter. This involves the assertion by the applicants that the authorities were under a positive obligation in this regard to take particular steps.

33. The Court ’ s case-law concerning positive obligations under Article 8 indicates that the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities. However, this provision does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there are positive obligations inherent in an effective respect for private or family life. While these obligations may involve the adoption of measures designed to secure respect for private life or family life (see, inter alia , Airey v. Ireland , 9 October 1979, § 32, Series A no. 32), the choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States ’ margin of appreciation, whether the obligations on the State are positive or negative. There are different ways of ensuring respect for private life and the nature of the State ’ s obligation will depend on the particular aspect of private or family life that is at issue. Even though t he boundaries between the State ’ s positive and negative obligations under this provision do not lend themselves to precise definition , t he applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation ( Kutzner v. Germany , no. 46544/99, § 62 , ECHR 2002 ‑ I ). .

34. As concerns the subject-matter of the present case, there is no case ‑ law indicating that in any general sense Article 8 requires Contracting States to ensure identification, exhumation or burial of remains on request of family members (see, for differing outcomes in cases concerning widely differing facts, Pannullo and Forte v. France , no. 37794/97, § § 35-40 , ECHR 2001 ‑ X ; Hadri-Vionnet v. Switzerland , no. 55525/00, § § 50-62 , 1 4 February 2008 ; Elli Poluhas Dodsbo v Sweden 61564/2000, §§ 23-29, 17 January 2006; Kemal Åž i ÅŸ man v Turkey , 46352/10, 21 January 2014). Nor does the Court find it appropriate on the facts of the present applications to attempt to define any responsibilities that might arise in this respect.

35 . Even assuming that the case under examination fell within the scope of Article 8 of the Convention , the Court would note that as soon as the misidentification problem came to light, steps have been taken by, and under the auspices of, the authorities, to identify correctly the remains. DNA samples were obtained from relatives, including the applicants ’ families; families were invited to return remains for DNA analysis; steps were taken to locate remains in known graves at the site and elsewhere. Several reports were issued giving progress and recommendations. This process appears to have been rendered difficult by the lack of full range of DNA samples and return of remains as some families have declined to participate or have destroyed remains so that the identification of remains removed from the Lakatamia cemetery is incomplete. The applicants ’ families, if not the individual applicants themselves, have been informed of any identification results for their own relatives.

36. It now transpires that the Government have issued a decision to proceed to excavate the site and have allotted funds for that purpose. The applicants have expressed approval of this development but expressed their view that this did not remedy the past delay in taking this step. The Court notes that it was previously considered not appropriate to disturb the Memorial due to uncertainty of information, the possibility of interference with existing graves and the edifices on the site. It would appear that the authorities did not rule out the possibility of excavation at earlier stages but considered it appropriate to await further information from DNA analyses.

37. The Court is aware of the inherent difficulties in locating and identifying remains in the circumstances of this case and the sensitive nature of undertaking a major excavation at a commemoration site. It understands that authorities will make efforts to keep relatives, including those in other countries, informed of progress in the planned excavation or by other means make information accessible to the public and those who might be concerned.

38. In the circumstances, it follows that the applicants ’ complaints must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention

B. Concerning the remaining complaints

39. Insofar as the applicants complained under Article 6 of the Convention of lack of access to court, the Court finds no indication of any dispute about a civil right or obligation that would bring this provision into play ( Boulois v. Luxembourg [GC], no. 37575/04 , § §90-91 , ECHR 2012 ). Insofar as the applicants also complained under Article 13 of the Convention that no effective remedy was provided for their complaints, the Court recalls that Article 13 only comes into play where there is an arguable complaint of a violation of one or more of the rights under the Convention ((see among many authorities KudÅ‚a v. Poland [GC], no. 30210/96, § 157 , ECHR 2000 ‑ XI ). Given its findings above, there is no “arguable” complaint in this sense.

40. It follows that this part of the application must be rejected under Article 35 § 3(a) and 4 of the Convention.

For these reasons, the Court unanimously,

Declares the application inadmissible .

Françoise Elens-Passos Ineta Ziemele Registrar President

APPENDIX

N o .

Firstname LASTNAME

Birth date

Birth year

Nationality

Place of residence

Maria TZILIVAKI

26/03/1969

1969Greek

CHANIA

Georgios GIANAKAKIS

23/11/1939

1939Greek

CHANIA

Loucas GIANAKAKIS

23/11/1970

1970Greek

CHANIA