7 May 2009

FIRST SECTION

Application no. 23082/07 by Maria TZILIVAKI and Others against Cyprus lodged on 23 May 2007

STATEMENT OF FACTS

THE FACTS

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 .

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

A. The background facts

On 22 July 1974, during the Turkish invasion, a Nortalas military transport 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.

On an unspecified date the first applicant ’ s father along with members of the family of the second and third applicants, and the families of other victims, went to Cyprus to collect their relatives ’ bodies. They were, however, sent away by the authorities.

In the beginning of 1975 an investigation into the causes of the accident was ordered by the Headquarters of Cypriot National Guard. In the concluding report it was stated that some of the victims had been buried in Lakatamia cemetery and the rest at the point where the aircraft had come down.

It appears from the documents in the file that certain exhumations of bodies took place between 1979 and 1981. In 1979 the first applicant ’ s family received the supposed remains of Stefanos Tzilivakis.

In 2001 the families of the victims were visited by experts involved in the exhumation of the remains of the victims and were asked to give blood.

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

Until the present day the bodies of the applicants ’ relatives have not been exhumed.

B . Steps taken by the applicants

The applicants submitted that they had contacted the Cypriot authorities on numerous occasions , directly and also through the Greek authorities, requesting the excavation of the site and the exhumation of remains of the bodies with a view to their identification and burial, but to no avail. They had also contacted the Diplomatic Office of the President of the Republic

The applicants submitted a number of documents to the Court, including c opies of letters they sent to and received from the authorities between 2003 and 2005.

The substance of the most relevant letters is set out below.

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 plannin g 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 b uried 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.”

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 .

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

In a letter dated 2 March 2004 the Ombudsman informed the first applicant that the Director General of the M inistry of F oreign Affairs ha d informed her that they were doing all they could to excavate 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.

COMPLAINTS

1. The applicants complain under Article 2 of the Convention invoking both the substantive and procedural limbs of this provision. In particular, the applicants complain 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.

2. Furthermore, the applicants complain 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.

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

4. Finally, the applicants complain under Article s 6 § 1 and 13 of the Convention about a lack of an effective remedy.

QUESTIONS TO THE PARTIES

1. Have the applicants complied with the six-month time-limit laid down in Article 35 § 1 of the Convention?

2 . Has there been a violation of the applicants ’ right to respect for their private and family life, contrary to Article 8 of the Convention in view of the applicants ’ complaints concerning :

(a) the delay in the excavation of the site of the crash and exhumation of the remains of their relatives with a view to their identification and burial by their families and the lack of information in this respect; and

(b) the consequent suffering the applicants have endured over a very long period time?

3. Do the applicants have at their disposal an effective domestic remedy for their Convention complaints, as required by Article 13 of the Convention?