FOURTH SECTION

DECISION

Application no . 4176/14 Semral EM Ä° N (MUSTAFA) and others against Cyprus

The European Court of Human Rights (Fourth Section), sitting on 23 September 2014 as a Chamber composed of:

Ineta Ziemele , President, Päivi Hirvelä , George Nicolaou , Nona Tsotsoria , Krzysztof Wojtyczek , Faris Vehabović , Ledi Bianku , judges,

and Françoise Elens-Passos, Sectio n Registrar ,

Having regard to the above application lodged on 24 December 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 parties, may be summarised as follows.

3 . The applicants stated that they are nationals of the “Turkish Republic of Northern Cyprus”. Their names, dates of birth and places of residence are set out in the Annex. They are represented before the Court by Ms Y. Renda , a lawyer practising in Nicosia.

4 . The facts of the case may be summarised as follows. The applicants are relatives of a Turkish-Cypriot man who went missing from hospital in Nicosia on 23 December 1963 at a time of mounting tension and violence in which Turkish Cypriots or Turkish-Cypriot villages were targeted.

5 . Their relative was listed as a missing person, the information being given to the Cypriot authorities, the Red Cross and the United Nations.

6 . The remains of the missing man were found in 2007 during exhumations carried out by the United Nations Committee for Missing Persons (“CMP”). The remains were identified in 2008.

7 . By letter dated 11 October 2010, the Attorney-General instructed the police to carry out an investigation into the circumstances of the death of the applicants ’ relative.

By report dated 21 June 2013, the Attorney-General informed the applicants that police had submitted in the investigation file in September 2012. He had returned it, indicating further steps to be taken. In April 2013, the file had been re-submitted. On the basis of the information obtained and analysis of the file, the Attorney-General had come to the conclusion that the investigation had reached a point where it could not proceed further as all leads had been pursued exhaustively, the evidence concerning the core facts was scanty and did not lead to persons who could be considered as possible suspects. He listed the investigative steps taken, which included

8 . 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.

COMPLAINTS

9 . The applicants complained under Article 2 of the Convention that the respondent Government of Cyprus failed to carry out an effective investigation into the disappearance and killing of their relative even though all necessary information had been provided to their authorities. They complained under Article 3 of the Convention of the continued and serious trauma and anguish which they suffer following the discovery of the remains and the lack of any serious efforts to hold to account those responsible for the deaths of their relatives. They further invoke Article 13 due to lack of remedies.

THE LAW

10 . The applicants complained under Articles 2, 3 and 13 of the Convention that there has not been an effective investigation into the death of their relative who disappeared in 1963 and whose remains had been recently exhumed. The Court will examine these complaints under Article 2 of the Convention which provides, as relevant:

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

11 . The Court would refer to the general principles set out in the case Gürtekin and Others v. Cyprus (no. 60441/13 et al, decision of 11 March 2014) which raised very similar complaints about the alleged inadequacy of an investigation conducted following the discovery of the remains of men who went missing in 1963-1964. In brief, a fresh obligation to investigate events which have taken place long ago may arise where newly-discovered evidence comes to light. However, due to the passage of time, the scope of the obligation will vary. In particular, t he 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, paras. 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; see also Palić v. Bosnia and Herzegovina , no. 4704/04 , § 70, 15 February 2011 concerning complex post-conflict situations; Mujkanović v Bosnia and Herzegovina , no. 47063/08, ( dec. ) 3 June 2014, § 41 ). Furthermore it must be noted in general that with a considerable passage 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; Fazli ć v . Bosnia and Herzegovina , no. 66758/09, ( dec. ) 3 June 2014, § 39).

12 . As concerns the present case, the Court recalls that in the previous application concerning these matters it had held that the discovery of the remains of the applicants ’ relative 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 (see Emin and Others v Cyprus , cited above).

13 . Since the Court ’ s rejection of the previous application, the Attorney-General has, in June 2013, issued reports on the investigations (see paragraphs 7-8 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 having been 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.

14 . The Court would note, first of all, that the police have followed numerous leads, making enquiries with official bodies and organisations , updating the statements from the relatives of the deceased, looking for witnesses from the hospital where the deceased was last seen and the prison where he worked. As concerned the one person identified as having been seen with the deceased before he disappeared, the police discovered that he was deceased. A number of other potential witnesses were found to have died. Of those alive none were found to have any knowledge of the circumstances of the deceased ’ s disappearance or death.

15 . While the applicants have submitted that the investigation was nonetheless ineffective, they have not pointed to any other concrete avenues of enquiry that the police could in fact pursue.

16 . The applicants ’ principal complaint, as in the Gürtekin case (cited above), appears to be that the investigations have ended without any prosecutions. However, Article 2 cannot be interpreted so as to impose a requirement on the authorities to launch a prosecution irrespective of the evidence which is available. In any event, it is not apparent that there are any leads concerning any suspected perpetrators who could be subject to prosecution that have been neglected.

17 . The Court would also refer to its reasoning in the Gürtekin case:

“ Insofar as the applicants argued that, at the very least, the decision that the evidence was insufficient to justify a prosecution should have been submitted for decision by a court, the Court does not consider that the procedural obligation in Article 2 necessarily requires that there should be judicial review of investigative decisions as such. Where such review of investigative decisions exists, they are doubtless a re-assuring safeguard of accountability and transparency. However, it is not for the Court to micro-manage the functioning of, and procedures applied in, criminal investigative and justice systems in Contracting States which may well vary in their approach and policies. No one model can be imposed (see, mutatis mutandis , McKerr v. the United Kingdom , no. 28883/95, § 143, ECHR 2001 ‑ III).”

18 . As concerns the applicants ’ criticisms about the accessibility of the investigation to the family of the deceased and the existence of sufficient public scrutiny, the Court notes that this aspect of the procedural obligation 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). In the present case, the report of the Attorney-General was detailed, gave relevant and plausible reasons for the decision not to prosecute and made it clear that if any further evidence was uncovered during other investigations that this decision would be reviewed. The Court finds no substance in the allegations in this regard.

19 . In relation to any alleged lack of expedition or 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 application on 3 April 2012, the Court does not find that the fact that it took about another fourteen months 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 12 above).

20 . Lastly, insofar as the applicants referred to lack of independence in the investigation, the Court recalls that, as in the Gürtekin case, they have mentioned alleged links between the now defunct “ Akritas organization” and political figures at the time of events. It reiterates its reasoning in the earlier case:

“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.”

21 . The Court concludes that there is no indication 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 the application must be rejected as manifestly ill ‑ founded pursuant to Article 35 §§ 3(a) and 4 of the Convention.

For these reasons, the Cou rt unanimously ,

Declares the application inadmissible.

Françoise Elens-Passos Ineta Ziemele Registrar President

Appe ndix

N o .

Firstname LASTNAME

Birth date

Birth year

Place of residence

Semral EMÄ°N (MUSTAFA)

17/12/1945

1945GAZIMAÄžUSA

Asim Sermet ERK (MUSTAFA)

04/12/1946

1946GAZIMAÄžUSA

Hüseyin Semih ERK (MUSTAFA)

04/11/1949

1949GÖNYELi / LEFKOŞA

Kutlay ERK (MUSTAFA)

13/09/1952

1952LEFKOÅžA