FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45503/99 by Christos KAREFYLLIDES and Others against Turkey

The European Court of Human Rights (Fourth Section), sitting on 1 December 2009 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Ljiljana Mijović , David Thór Björgvinsson , Ján Šikuta , Päivi Hirvelä , Işıl Karakaş , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 7 January 1999,

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

Having regard to the comments submitted by Cyprus Government as intervening third party ,

Having regard to the further submissions lodged by the parties following the Grand Chamber judgment in 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, 18 September 2009 ),

Having deliberated, decides as follows:

THE FACTS

The applicants are named as:

- Christos Karefyllides , a Cypriot national born in 1954;

- Helen Karefyllides , his mother, an American citizen born in 1928;

- Maria Ionnou , sister of Christos, a Cypriot national born in 1951.

The second and third applicants live in Nicosia , while the whereabouts of the first applicant have been unknown since the events in 1974. They are represented before the Court by Mr A. Demetriades , a lawyer practising in Nicosia . The Turkish Government (“the respondent Government”) were represented by their Agent, as were the intervening Cyprus Government (“the intervening Government”).

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

A. The circumstances of the case

1. The facts as submitted by the applicants

The first and third applicants were born in Kyrenia . In July 1974 the first and second applicants lived in Kyrenia , while the third applicant lived in Nicosia .

On 22 July 1974 the first applicant, an army reservist, took part in a battle against the Turkish forces in Ayios Georghios and was slightly wounded in the arm. On the same day his unit took up position at Praxandros Stadium in Kyrenia . When Kyrenia was seized by the Turkish forces, the first applicant together with other soldiers went to Bellapais and then to Kythrea , where he received treatment for his wound. Then he headed towards Pachiammos . [1] He was never seen again. These areas shortly afterwards came under the control of the Turkish forces.

At about the same time the second applicant fled Kyrenia and moved to the part of the island that is controlled by the Government of the Republic of Cyprus .

On 2 August 1974 the newspaper “ Agon ” reported that the first applicant ' s name had figured together with six other names on a list posted on the notice board of the International Red Cross in Nicosia under the rubric “persons captured in the Boghazi area”. The third applicant had tracked down this information on 19 December 1997, after she had started her own investigation in reaction to a visit on 20 March 1996 to the premises of the United Nations Committee of Missing Persons (“CMP”) which had disappointed her in view of the limited information on file about her brother. In a statement dated 22 January 1998, the journalist responsible for the article confirmed that he had taken the information about her brother ' s capture from the lists at the Red Cross offices. The applicant had also contacted a former class-mate of the first applicant who in a statement dated 18 November 1997 confirmed that when at the Red Cross premises in Nicosia in August 1974 she had seen the first applicant ' s name on a UN list of persons captured by Turkish troops; it had been written that he had been captured at Boghazi near Kyrenia between 3-5 August 1974. She stated that she had provided this information to the Government of Cyprus.

By letter dated 16 July 1997, in answer to the third applicant ' s enquiry, the Cyprus Red Cross Society informed the third applicant that they had no records of the whereabouts of her brother between 3 and 5 August 1974. By letter dated 13 November 1997, the Archives of the International Committee of the Red Cross informed her that they had no information in their files about her brother.

According to a statement by Andreas Photiades , one of the men listed as captured along with the first applicant, which was published in 1987 in a book "Invasion –Cyprus 1974", the persons who had been taken prisoners in the Boghazi area were transferred to prisons in Turkey. During the transfer and their detention they were tortured. They were, inter alia , stripped to their underpants, their hands were kept tied for long periods causing serious and agonising injuries to their skin; during the transfer in the hold of a ship they were not given access to toilets nor any food and in prison were only allowed out of their cells once every ten days. The other six persons whose names figured on the Red Cross list were released from the Turkish prisons.

2. The facts according to the respondent Government

The first applicant was a combatant engaged in hostilities and he died in action. He was never taken into captivity. They denied assertions that he had been listed with six other persons as having been captured in the Boghazi area or on any other list and there was no foundation for asserting that he had been taken to Turkey . If he had been transported to Turkey with other prisoners there was no reason why he would not have been returned with them. They noted that in the file first submitted by the Greek-Cypriot representative of the Committee of Missing Persons (CMP) during a meeting on 23 November 1995 there was no mention of the first applicant appearing on any list or that he had been taken into captivity.

The report before the CMP noted that he had been posted at Bellapais at the time of the invasion and that on 22 July 1974 he had been ordered with others of the 33rd Commando Battalion to take up position in Ayios Georghios ( Kyrenia ) to support the National Guard forces. Turkish troops commenced shelling their positions. At about 11.00 the commander of the second company to which the first applicant was attached ordered his men to retreat toward Kyrenia , which they did pursued by Turkish tanks. The first applicant disappeared during the retreat and his whereabouts and fate were unknown.

The Government considered that the facts now submitted by the applicants were very different and had been contrived to engage Turkish liability and avoid temporal restrictions on jurisdiction. The statement of the first applicant ' s uncle was hearsay, there was no evidence from the Red Cross to support allegations about his appearance on any of their lists and the claim that the Red Cross had listed him as taken prisoner at Boghaz contradicted the applicants ' account of his having fought at Boghaz and then returning to Bellapais , from there to Kythrea and finally to Pachiammos .

COMPLAINTS

1. The applicants complained that the first applicant was missing, invoking Articles 2, 3, 4, 5, 8, 12 and 14 of the Convention in respect of the first applicant and Articles 2, 3 and 8 of the Convention in respect of the effect of the disappearance on the second and third applicants. The second and third applicants also complained under Articles 3, 8 and 14 of the Convention about the impact that the first applicant ' s fate has had on their lives.

2. The second and third applicants also complained under Article 8 that they had been deprived of access to their home in Kyrenia following the events in 1974.

THE LAW

1. The applicants complained about the disappearance of Christos Karefyllides in 1974, raising Articles 2, 3, 4, 5, 8, 12, 13 and 14 of the Convention.

However the Court is not required to examine these complaints for the reasons set out below.

In its recent judgment of 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, 18 September 2009 , ECHR 2009-...) the Court held as follows concerning the six month time-limit imposed by Article 35 § 1 and its application to disappearance cases:

a. General principles

156. The object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, amongst other authorities, Walker v. the United Kingdom ( dec .), no. 34979/97, ECHR 2000 ‑ I ).

157. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset however that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant ( Dennis and Others v. the United Kingdom ( dec .), no. 76573/01, 2 July 2002). Nor can Article 35 § 1 be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see Paul and Aubrey Edwards v. the United Kingdom ( dec .), no. 46477/99, 4 June 2001).

158. Consequently, where a death has occurred, applicant relatives are expected to take steps to keep track of the investigation ' s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Bulut and Yavuz v. Turkey ( dec .), no. 73065/01, 28 May 2002; also Bayram and Yıldırım v. Turkey ( dec .), no. 38587/97, ECHR 2002 ‑ III ). The same principles have been applied, mutatis mutandis , to disappearance cases (see Eren and Others v. Turkey ( dec .), no. 42428/98, 4 July 2002, and Üçak and Kargili and Others v. Turkey ( dec .), nos. 75527/01 and 11837/02, 28 March 2006).

159. Nonetheless it has been said that the six month time-limit does not apply as such to continuing situations (see, for example, Agrotexim Hell a s S.A. and Others v. Greece , no. 14807/89, Commission decision of 12 February 199 2 , DR 71, p. 148, and Cone v. Romania , no. 35935/02, § 22, 24 June 2008); this is because, if there is a situation of ongoing breach, the time-limit in effect starts afresh each day and it is only once the situation ceases that the final period of six months will run to its end. In the fourth inter-State case, where it was implicit that a similar approach was applicable to a continuing practice – and in that case it was a continuous failure to comply with the obligation to investigate disappearances – the Court notes that the issue of the six-month rule had been joined to the merits by the Commission and neither Government had since made any submissions on the point (§§ 103-104). The issue was thus not addressed expressly by the Court in that judgment. It therefore falls to the Court to resolve the point in the present case.

b. Applicability of time constraints to procedural obligations under Article 2 of the Convention

160. The Court cannot emphasise enough that the Convention is a system for the protection of human rights and that it is of crucial importance that it is interpreted and applied in a manner that renders these rights practical and effective, not theoretical and illusory. This concerns not only the interpretation of substantive provisions of the Convention, but also procedural provisions; it impacts on the obligations imposed on respondent Governments, but also has effects on the position of applicants. For example, while it is essential for the efficacy of the system that Contracting States comply with their obligation not to hinder the applicant in the exercise of the right of individual petition, individuals nonetheless bear the responsibility of co-operating with procedures flowing from the introduction of their complaints, assisting in clarifying any factual issues where such lie within their knowledge and in maintaining and supporting the applications introduced on their behalf (see Kapan v. Turkey , no. 22057/93, Commission decision of 13 January 1997, DR 88-B, p. 17). On the same basis, where time is of the essence in resolving the issues in a case, there is a burden on the applicant to ensure that his or her claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved.

161. In that context, the Court would confirm the approach adopted by the Chamber in the present applications. Not all continuing situations are the same; the nature of the situation may be such that the passage of time affects what is at stake. In cases of disappearances, just as it is imperative that the relevant domestic authorities launch an investigation and take measures as soon as a person has disappeared in life-threatening circumstances, it is indispensable that the applicants, who are the relatives of missing persons, do not delay unduly in bringing a complaint about the ineffectiveness or lack of such investigation before the Court. With the lapse of time, memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and the prospects that any effective investigation can be undertaken will increasingly diminish; and the Court ' s own examination and judgment may be deprived of meaningfulness and effectiveness. Accordingly, where disappearances are concerned, applicants cannot wait indefinitely before coming to Strasbourg . They must make proof of a certain amount of diligence and initiative and introduce their complaints without undue delay. What this involves is examined below.

c. Undue delay in disappearance cases

162. The Court would comment, firstly, that a distinction must be drawn with cases of unlawful or violent death. In those cases, there is generally a precise point in time at which death is known to have occurred and some basic facts are in the public domain. The lack of progress or ineffectiveness of an investigation will generally be more readily apparent. Accordingly the requirements of expedition may require an applicant to bring such a case before Strasbourg within a matter of months, or at most, depending on the circumstances, a very few years after events. In disappearance cases, where there is a state of ignorance and uncertainty and, by definition, a failure to account for what has happened, if not an appearance of deliberate concealment and obstruction on the part of some authorities, the situation is less clear-cut. It is more difficult for the relatives of the missing to assess what is happening, or what can be expected to happen. Allowances must be made for the uncertainty and confusion which frequently mark the aftermath of a disappearance.

163. Secondly, the Court would take cognisance of the international materials on enforced disappearances. The International Convention for the Protection of All Persons from Enforced Disappearance stipulates that any time-limit on the prosecution of disappearance offences should be of long duration proportionate to the seriousness of the offence, while the Rome Statute of the International Criminal Court excludes any statute of limitations as regards the prosecution of international crimes against humanity, which includes enforced disappearances. Bearing in mind therefore the consensus that it should be possible to prosecute the perpetrators of such crimes even many years after the events, the Court considers that the serious nature of disappearances is such that the standard of expedition expected of the relatives cannot be rendered too rigorous in the context of Convention protection.

164. Thirdly, in line with the principle of subsidiarity , it is best for the facts of cases to be investigated and issues to be resolved in so far as possible at the domestic level. It is in the interests of the applicant, and the efficacy of the Convention system, that the domestic authorities, who are best placed to do so, act to put right any alleged breaches of the Convention.

165. Nonetheless, the Court considers that applications can be rejected as out of time in disappearance cases where there has been excessive or unexplained delay on the part of applicants once they have, or should have, become aware that no investigation has been instigated or that the investigation has lapsed into inaction or become ineffective and, in any of those eventualities, there is no immediate, realistic prospect of an effective investigation being provided in the future. Where there are initiatives being pursued in regard to a disappearance situation, applicants may reasonably await developments which could resolve crucial factual or legal issues. Indeed, as long as there is some meaningful contact between families and authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay will not generally arise. However, where there has been a considerable lapse of time, and there have been significant delays and lulls in investigative activity, there will come a moment when the relatives must realise that no effective investigation has been, or will be provided. When this stage is reached will depend, unavoidably, on the circumstances of the particular case.

166. In a complex disappearance situation such as the present, arising in a situation of international conflict, where it is alleged that there is a complete absence of any investigation or meaningful contact with the authorities, it may be expected that the relatives bring the case within, at most, several years of the incident. If there is an investigation of sorts, even if sporadic and plagued by problems, the relatives may reasonably wait some years longer until hope of progress being made has effectively evaporated. Where more than ten years has elapsed, the applicants would generally have to show convincingly that there was some ongoing, and concrete, advance being achieved to justify further delay in coming to Strasbourg . Stricter expectations would apply in cases where the applicants have direct domestic access to the investigative authorities.

In light of this judgment, the Government submitted that the applicants had not shown the requisite diligence in introducing their application before the Court. They submitted that there were no new circumstances which would have justified the applicants waiting until 1999 to lodge their complaints. They stated that insofar as the applicants referred to alleged new information obtained from the Red Cross in 1997 this had been inconclusive and did not explain a further two years ' delay in coming to Strasbourg .

The applicants disputed that the lapse of time could be used as a basis for rejecting their complaints under Article 35 § 1, arguing that there should be no duty on applicants to show due diligence or expedition in introducing their complaints, in particular since their complaints concerned disappearances. In any event on 31 July 1997 hope had been kindled in relatives that there would be progress in finding the disappeared persons when the leaders of the Greek and Turkish-Cypriot communities issued a joint statement under UN auspices recognising the right of families to be informed of the fate of their loved ones and agreeing to exchange information about the location of graves of missing persons. Also, it was only when the Court issued its judgment in the inter-State case in May 2001 ( Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001 ‑ IV ) that it was legally obvious that the Committee for Missing Persons was not an effective remedy. Furthermore, the efforts of the third applicant resulted in new and important evidence emerging that her brother had been a prisoner of the respondent Government and had never been released. The applicants could not be considered as having unduly delayed their application since the respondent Government continued to hold him in breach of Article 5.

The intervening Government submitted that there was at least prima facie evidence that the first applicant had been detained, raising issues under Article 5 as well as Article 2, and requiring the respondent Government to account for him. They argued that the applicants had not shown excessive delay in raising their complaints with the Court, noting that this was part of a complex disappearance situation, where the applicants had no idea of what was occurring in the CMP because its proceedings were confidential. Further, the third applicant was making her own enquiries and managing to obtain information in 1997 which was highly relevant to the investigation and which she was entitled to consider as a concrete advance suspending the running of time, in particular that her brother had been detained and probably taken to Turkey.

The Court considers that the principles set out in the Varnava judgment above apply to the present case. It is not persuaded by the applicants ' submissions that there is any basis on which it can rule, contrary to that approach, that in disappearance cases, even of a complex international character, the relatives may claim to be able to wait indefinitely, and effectively for many decades, before introducing their complaints with the Court. The question arises therefore at what point these applicants should have lodged their application in Strasbourg . It recalls that in Varnava (cited above, §§ 167-172) the Grand Chamber found that by the end of 1990 it was evident that the CMP procedure had been completely obstructed by lack of co-operation by the two sides and that it was unlikely to make any progress in the near future. While it is true that the CMP procedures were confidential, the Court considers that, having regard to the lack of visible progress by this date and the information that was in the public domain through press releases, this should have been readily apparent to the applicants. The Court notes that on the applicants ' own account the third applicant had by 1996 been so disappointed by the lack of information held on her brother by the CMP that she started her own investigation; it is not explained why she did not at that stage introduce her application with the Court. As regards the reference to the Court ' s ruling in the inter-State case in 2001 as to the ineffectiveness of the CMP procedure, this was in the context of Article 2; compliance with the six-month rule was not under examination, nor the point up until which applicants could reasonably rely on that mechanism in contributing in a meaningful way to uncovering the fate of their relatives.

Insofar as the applicants argued that there were intervening circumstances which affected the running of the six-month time-limit, the Court notes, firstly, that while there is some evidence that Christos Karefyllides was captured by Turkish forces in early August 1974, there is no evidence that he was still in detention after 28 January 1987, some thirteen years later, when Turkey ratified the right of individual petition (see Cyprus v. Turkey , cited above, § 151, where the Court found that it had not been established in the inter-State proceedings that any of the missing persons were actually being detained during the period under consideration). To the extent that any continuing procedural obligation to account for his fate in detention could arise under Article 5 of the Convention, it falls subject to the same requirements of expedition and due diligence as do the complaints about the disappearance itself. Secondly, as regards the statement issued in 1997 under UN auspices as to future co-operation in the process of locating bodies, the Court does not consider that at this late stage a mere public assertion of intent and goodwill was sufficient to offset the complete lack of concrete progress in any investigative measures over the preceding decades.

Thirdly, and lastly, the Court notes that the applicants relied on information obtained following inquiries carried out at the initiative of the third applicant in the course of 1997. While the Court ' s case-law indicates that where new evidence or information arises concerning an unlawful killing (and, impliedly, a life-threatening disappearance) fresh obligations may arise for the authorities to take further investigative measures ( Brecknell v. the United Kingdom , no. 32457/04, § 71 , 27 November 2007 ), it is not apparent that this assists the applicants ' case as regards the six-month rule. The relevance and significance of the information aside, it is not evident that this information gave the applicants any prospect of obtaining any investigative measures, given the moribund state of the CMP at the time. Additionally, as the Government pointed out, the applicants did not explain why they did not then introduce their application within six months of acquiring this information rather than more than a year later on 7 January 1999.

In light of the above, the Court considers that in the present case the applicants failed to comply with the requirements of Article 35 § 1 of the Convention and that this part of the application must be rejected pursuant to Article 35 § 4.

2. The second and third applicants further complained under Article 8 that they had been deprived of access to their home in Kyrenia following the events in 1974. The Court observes that these applicants have lodged a second application, no. 66141/01, in which they raise property complaints under Article 1 of Protocol No.1 as well as reiterating the second applicant ' s complaints under Article 8. It considers in these circumstances that it is appropriate to sever this part of the application and join it to application no. 66141/01 in order that all the complaints raised concerning property and home issues may be examined together.

For these reasons, the Court unanimously

Decides to sever the second and third applicants ' complaints concerning lack of access to their home and join them to application no. 66141/01;

Declares the remainder of the application inadmissible .

Fatoş Aracı Nicolas Bratza Deputy Registrar President

[1] This information appears to be derived from a statement dated 1 March 1998 from the first applicant’s uncle who last s aw him on 24 July 1974.