Communicated on 21 November 2017

THIRD SECTION

Application no. 58699/15 Georgia VASSILIOU and others against Cyprus lodged on 24 November 2015

STATEMENT OF FACTS

The four applicants are Georgia Vassiliou , Maria Vassiliou , Vassilis Vassiliou , and Antonia Kyriakou . The applicants are Cypriot nationals and were born in 1945, 1967, 1968 and 1973 respectively. The third applicant lives in Vrysoules and the rest of the applicants live in Xylofagou .

The applicants were represented before the Court by Mr A. Demetriades , a lawyer practising in Nicosia.

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

1. Background to the case

The applicants are the relatives of Mr Christofi Vassiliou Mr Pashias (hereinafter “Mr Pashias ”). The first applicant is his wife and the remaining applicants his children.

Upon the invasion of northern Cyprus by Turkish armed forces on 20 July 1974, Mr Pashias enlisted as a reservist with the National Guard. He was twenty-nine years old at the time and married to the first applicant. The second and third applicants were seven and six years old and the fourth applicant ten months old.

Between 14 and 17 August 1974 his unit was fighting against the Turkish armed forces in Ayios Pavlos in the Nicosia airport area.

On 17 August 1974, following a cease-fire, the National Guard collected the dead under the supervision of the United Nations from, inter alia , the area of Ayios Pavlos that had been taken over by the Turkish forces.

At the end of the hostilities Mr Pashias did not return to his village. His relatives searched for him in various National Guard camps but to no avail. An investigation was carried out by the authorities and from the evidence collected at the time it transpired that Mr Pashias ’ position had been taken by the Turkish armed forces and that he had been arrested.

Mr Pashias was then listed as a missing person.

An investigation took place in 1992 following a request by the Greek-Cypriot representative on the United Nations Committee on Missing Persons (“the CMP”) concerning the collection of bodies that had taken place in August 1974. This led to a confidential note dated 26 November 1993 in which the collection of the dead on 17 and 18 August 1974 was confirmed with information given by soldiers involved. According to the note, inter alia , in the Lakatamia military cemetery there were forty-one graves of Greek-Cypriot soldiers of the National Guard which had been buried as “unknown”, twenty four of whom had as dates of death 15, 16 and 17 August 1974. There was a list of twenty-three soldiers who had been in the area of Ayios Pavlos and who had possibly been imprisoned or killed by the Turks in the second phase of the invasion and were missing. From these, twenty-one had been listed as missing and the majority of them had been injured or trapped in the area which had been taken over by the Turkish armed forces. They were divided into categories: those in respect of whom there was evidence that they had been buried in the government-controlled areas, those who had disappeared during battle and lastly, those who had been seen arrested by Turkish soldiers. Mr Pashias was included in the latter category.

The note concluded that a search should be made for persons who went missing at the time from the areas concerned, including Ayios Pavlos , at the Lakatamia military cemetery where they had been buried as “unknown”.

The applicants were not informed of this development. The above-mentioned note remained confidential.

In 1996 a bank with genetic material from the relatives of missing persons was created. The applicants gave DNA samples.

In 1999 excavations and exhumations took place at the Lakatamia Military cemetery for the purpose of identifying the remains through DNA tests.

On 10 July 2000 the respondent Government published in the Official Gazette of the Republic the list of missing persons in which Mr Pashias was included as number 132.

Mr Pashias ’ s remains were identified. A number of his personal assets were also recovered during his exhumation, including his cross and watch.

In September 2000 Mr Pashias ’ s death was certified. The applicants were informed that Mr Pashias had been killed in August 1974; an examination of his remains showed evidence of torture and that he had been executed - a gun had been shot in his mouth.

On 15 October 2000 the applicants were given his remains and personal effects.

2. The first instance proceedings

On 31 December 2002 the applicants lodged a civil action before the Nicosia District Court against the Government (civil action no.13863/2002).

On 5 November 2010 the Nicosia District Court gave judgment in favour of the applicants. It held that the procedural obligation of the Government under Article 2 was engaged in the circumstances of the case – notwithstanding the obligations of Turkey- as they had access to witnesses and evidence concerning Mr Pashias and that they had failed to carry out an effective investigation as required by that provision. The Nicosia District Court held that as a result of the authorities ’ failure to carry out an effective investigation, the applicants had lived in a state of prolonged uncertainty in respect of their relative ’ s fate and had endured psychological suffering. This amounted to inhuman and degrading treatment contrary to Article 3 of the Convention and the equivalent Article 8 of the Constitution.

The court examined the case by dividing it into two separate periods. The first period covered the collection and burial of the deceased in the area of Ayios Pavlos in August 1974 without identification. The court found that there had been serious omissions on the part of the authorities in this respect which had resulted in Mr Pashias ’ s death not being ascertained at the time and the non-discovery of his remains. The second period covered the period from the burial in 1974 until the excavations and exhumations in 1999. The court ruled that there had been an obligation on the Government, in the circumstances to proceed with exhumations soon after 1974, as there was a reasonable chance that certain of the deceased could be identified. The authorities had known that there had been graves of unknown persons in the Lakatamia military cemetery but despite this did not take any steps.

The court dismissed the applicants ’ claim in respect of negligence under the Civil Wrongs Law, Cap. 148 and their complaint under Article 9 of the Convention concerning Mr Pashias ’ s burial in August 1974.

The court awarded the applicants damages: 50,000 euros (EUR) to the first applicant and 25,000 euros to each of the remaining applicants. It also awarded costs.

3. The appeal proceedings

On 17 December 2010 the respondent Government lodged an appeal against the first instance judgment before the Supreme Court (appeal no. 381/2010).

On 26 January 2011 the applicants filed a counter-appeal.

On 26 May 2015 the Supreme Court gave judgment upholding the appeal, dismissing the counter-appeal and setting aside the first instance judgment.

The Supreme Court, referring to the Court ’ s case-law, held that Article 2 was applicable in its procedural limb. It found, however, that the Government had in the specific facts of the case fulfilled their obligation under this provision.

The Supreme Court disagreed with the findings of the first instance court with regard to the first period, in particular, regarding the prevailing situation in August 1974. It held that the situation was such that in certain cases it had been impossible or that it could not have been reasonably expected that all the procedures could be followed. On the basis of the evidence Mr Pashias had last been seen alive in the hands of Turkish soldiers and this had led to the authorities to conclude that he had disappeared while in their custody. With no evidence confirming his death he was listed as a missing person.

With regard to the second period, the Supreme Court relied, mutandis mutandis , on the Court ’ s decision in Tzilivaki and others v. Cyprus (( dec. ), no. 23082/07, 14 October 2014). It ruled, that even if the appropriate investigations had been carried out and evidence had been collected so as to identify Mr Pashias ’ s burial grounds earlier, Article 2 could not impose a positive obligation on the Government for the excavation and exhumation of remains. In 1974 it had not been possible to carry out DNA tests. Identification of a body in an advanced state of decomposition could not have been made with certainty just on the basis of personal effects; a watch or a cross. The Government had never stopped looking for evidence in respect of Mr Pashias . This was not affected by the fact that in 1993 it transpired that there was a possibility that he had been buried in the Lakatamia military cemetery. In the Supreme Court ’ s view the Government ’ s obligation to investigate under Article 2 had begun with the locating of the place of burial, the excavation, the exhumation of the remains and their identification with the DNA method. The Government, when it had become possible, promptly excavated and exhumed the remains and identified them and thus informed his relatives of his fate. They had therefore fulfilled their procedural obligation under Article 2.

The Supreme Court did not award costs against the applicants in view of the novel issues put before it.

COMPLAINTS

1. The applicants complain that there has been a breach of the procedural obligation under Article 2 of the Convention by reason of the failure of the respondent Government to carry out an effective investigation into the fate of their relative. In this respect, they alleged that although the authorities knew or should have known that the bodies of soldiers who had been killed fighting in the area of Ayios Pavlos were buried in unmarked graves in the Lakatamia military cemetery, they failed to promptly take reasonable steps to excavate and exhume the remains with a view to their identification; they only did so twenty-six years later. Their relative could have been identified by his personal effects and/or methods other than DNA. Until 2000, the applicants had never been informed of any investigation into the fate of their relative, including the one carried out in 1993.

2. Invoking Article 3 and, in the alternative, Article 8, the applicants complain about that the failure of the authorities to investigate the fate of their relative, to excavate the graves and exhume the remains with a view to their identification, and the failure to provide them with any information caused them prolonged agony, unjustified suffering, false hope, humiliation and, in the end, disappointment. It also deprived them of the right to rebuild their life.

3. Lastly, the applicants complain under Article 13 about the lack of a domestic remedy for the violations of their Convention rights.

QUESTIONS TO THE PARTIES

1. Was there a procedural obligation on the part of the respondent Government from 1 January 1989 (the date of the effective recognition of the right of individual petition by Cyprus) onwards to investigate the fate of the applicants ’ relative and, to this end, excavate and exhume the bodies buried in the unnamed graves in the Lakatamia military cemetery with a view to their identification?

2. If yes, in view of the applicants ’ complaints, did they comply with that obligation?

3. Has there been a violation of the applicants ’ rights in breach of Articles 3 and/or 8 of the Convention in view of the applicants ’ complaints concerning:

(a) the alleged delay in the excavation of the graves and exhumation of the remains with a view to their identification and the lack of information in this respect;

(b) the consequent alleged suffering the applicants endured until 2000 of not knowing whether their relative was still alive or whether he had been killed.

4. Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 2, 3 and 8 of the Convention, as required under Article 13 of the Convention?