Cyprus News Agency: News in English, 08-01-10

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From: The Cyprus News Agency at <http://www.cyna.org.cy>

CONTENTS

[01] ECHR:��SSING

[02] CYPRUS GOVERNMENT - ECHR JUDGMENT - SATISFACTION

[03] LAWYERS - ECHR DECISION

[04] �RITISH ENVOY - TURKEY - CYPRUS

[01] ECHR:��SSING

In its judgment the Court said Turkey is guilty of the continuing violation of Article 2 of the European Convention on Human Rights on account of failure of the authorities of the respondent state (Turkey) to conduct an effective investigation into the whereabouts and fate of the nine first applicants who disappeared in life threatening circumstances.

The decision, in the case of Varnava and Others v. Turkey, was taken by six votes in favour and one against, that of Turkish Cypriot judge Gonul Eronen, representing Turkey.

The Court also announced that there was violation of Article 3 which prohibits inhuman treatment and Article 5 (right to liberty and security).

The case originated in nine applications against the Republic of Turkey (the Government) lodged with the European Commission of Human Rights (the Commission) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) by Cypriot nationals, Andreas and Giorghoulla Varnava, Andreas and Loizos Loizides, Philippos Constantinou and Demetris K. Peyiotis, Demetris Theocharides and Elli Theocharidou, Panicos and Chrysoula Charalambous, Eleftherios and Christos Thoma, Savvas and Androula Hadjipanteli, Savvas and Georghios Apostolides and Leontis Demetriou and Yianoulla Leonti Sarma on 25 January 1990.

The applicants were represented by Greek Cypriot lawyers Achilleas Demetriades and Dr Kypros Chrysostomides. The Turkish government were represented by their agent.

In its ruling, the ECHR dismissed by six votes to one the Turkish governments preliminary objections. It held by six votes to one that there has been a continuing violation of Article 2 of the Convention on account of the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts and fate of the nine first applicants who disappeared in life-threatening circumstances.

It also held by six votes to one that there has been a continuing violation of Article 3 of the Convention in respect of the second applicants, the relatives of the nine missing men.

Furthermore, it held by six votes to one that there has been a continuing violation of Article 5 of the Convention by virtue of the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts and fate of the nine first applicants in respect of whom there is an arguable claim that they had been deprived of their liberty at the time of their disappearance and it further held unanimously that no breach of Article 5 of the Convention has been established by virtue of the alleged detention of the nine first applicants.

The Court also ruled unanimously that it is not necessary to examine the complaints under Articles 4, 6, 8, 10, 12, 13 and 14 of the Convention and by six votes to one held that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants.

In addition, it held by six votes to one that the respondent State is to pay the applicants within three months from the date on which the judgment becomes final in accordance with Article 44 - 2 of the Convention, EUR 4,000 (four thousand euros) per application in respect of costs and expenses, plus any tax that may be chargeable and that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

It also dismissed unanimously the remainder of the applicants claim for just satisfaction.

Stating the procedure, the ECHR said the applicants alleged that the first applicants in the above applications had been detained by Turkish military forces from 1974 and that the Turkish authorities had not accounted for them since. They invoked Articles 2, 3, 4, 5, 6, 8, 10, 12, 13 and 14 of the Convention.

The applications were joined by the Commission on 2 July 1991 and declared admissible on 14 April 1998.

On 17 February 2000 the Cypriot Government informed the Court that they wished to participate in the proceedings. They submitted observations on the merits.

Referring to the facts of the case, the judgment said that the complaints raised in the application arise out of the Turkish military operations in northern Cyprus in July and August 1974 and the continuing division of the territory of Cyprus. At the time of the Courts consideration of the merits of the Loizidou v. Turkey case in 1996, there was a Turkish military presence of more than 30,000 personnel throughout the whole of the occupied area of northern Cyprus which was constantly patrolled and had checkpoints on all main lines of communication.

The Court said that according to Turkey, the TRNC in the Turkish occupied north of Cyprus is a democratic and constitutional state which is politically independent of all other sovereign states including Turkey, and the administration in northern Cyprus has been set up by the Turkish-Cypriot people in the exercise of its right to self-determination and not by Turkey.

However, the Court noted that notwithstanding this view, it is only the Cypriot government which is recognised internationally as the government of the Republic of Cyprus in the context of diplomatic and treaty relations and the working of international organizations.

Furthermore, it said that the United Nations peacekeeping forces (UNFICYP) maintain a buffer-zone while a number of political initiatives have been taken at the level of the United Nations aimed at settling the Cyprus problem on the basis of institutional arrangements acceptable to both sides.

Furthermore, in 1981 the United Nations Committee on Missing Persons (CMP) was set up to look into cases of persons reported missing in the inter-communal fighting as well as in the events of July 1974 and afterwards and to draw up comprehensive lists of missing persons of both communities, specifying as appropriate whether they are still alive or dead, and in the latter case approximate times of death. The CMP has not yet completed its investigations.

Outlining the objections of the Turkish government, the Court noted that Turkey submitted that it had recognised the competence of the Commission to receive individual petitions as from 28 January 1987.

Turkey also submitted that the complaints in these applications were in essence related to spontaneous acts which had occurred more than 15 years before their acceptance of jurisdiction, in particular the deaths of eight of the nine alleged missing persons in military action in July-August 1974.

The ninth applicant, a non-combatant, had lost his life as a result of the intercommunal hostilities and reprisals which reached their peak during that period, and in which the Turkey had been in no way involved, it maintained.

Turkey alleged that there was no question of a continuing violation and it was illogical and unrealistic to base such claims on imaginary suppositions concerning continuing captivity for which there was no concrete proof and in respect of which the applicants accounts were flagrantly contradictory.

The Court recalled that, in declaring these applications admissible on 14 April 1998, the Commission reserved the final determination of the question of whether the applications relate to facts covered by the temporal limitation in the Turkish declaration under former Article 25 of the Convention for a later stage in the proceedings.

The Court accepted that it is not competent to examine applications alleging violations which are based on facts having occurred before the critical date and that where killings of persons occur before the date of ratification it had no competence ratione temporis to examine those deaths.

However, it said, the question arises in the present applications whether the alleged violations are of a continuing nature and thus have subsisted, and continue to subsist, since the date of ratification by Turkey of the right of individual petition on 28 January 1987.

Accordingly, the Court found no reason to differ from the conclusions reached in the inter-State case as concerns the present applications. To the extent therefore that the facts of these cases disclose a continuing obligation under Article 2, it has competence ratione temporis. It therefore rejected Turkeys preliminary objection on this ground.

The Courts assessment regarding violation of Article 2 of the Convention is that there has been a continuing violation of Article 2 on account of the failure of the authorities of the respondent state to conduct an effective investigation aimed at clarifying the whereabouts and fate of the nine men who went missing in 1974.

It noted that the fate of the nine missing men, and whether they have been unlawfully killed, is largely unknown. While the remains of Savvas Hadjipanteli have been found very recently, the circumstances surrounding the death remain unclarified. Nonetheless, it added, a procedural obligation arises upon proof of an arguable claim that an individual, who was last seen in the custody of agents of the state, subsequently disappeared in a context which may be considered life-threatening.

The Court recalled that it was established in the inter-State case that the evidence bore out the applicant Governments claim that many persons who went missing in 1974 were detained either by Turkish or Turkish-Cypriot forces.

Their detention occurred at a time when the conduct of military operations was accompanied by arrests and killings on a large scale. This was found to disclose a life-threatening situation. The clear indications of the climate of risk and fear obtaining at the material time, and of the real dangers to which detainees were exposed, was found to disclose a life-threatening situation.

The ECHR rejected the applicants request for application of Article 41 of the Convention which provides that if the Court finds that there has been a violation of the Convention or the Protocols, it should, if necessary, afford just satisfaction to the injured party.

The Courts assessment was that in light of the breaches of the procedural aspects of Articles 2 and 5, it finds no basis for any pecuniary award.

As concerns non-pecuniary damages for these breaches and that under Article 3 as concerned the second applicants, the amounts claimed are very high, it said. Furthermore it said it does not find it appropriate or constructive, or even just, to make additional specific awards or recommendations in regard to individual applicants.

It said that in the unique circumstances of these cases therefore, the Court finds that the finding of violations constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants.

As regards costs and expenses, the Court it awards the applicants representatives EUR 4,000 in respect of each application.

Turkish Cypriot judge, Gonul Basaran Eronen, representing Turkey, said she voted against the finding of the majority in the Chamber rejecting the respondent Governments preliminary objection that the Court did not have jurisdiction ratione temporis to entertain the case.

She said that she also voted against the majoritys rejection of the respondent Governments preliminary objection under the six-month rule, saying that in her view, the Court does not have competence to adjudicate on the merits of the present case.

She expressed the view that the best course would have been to declare the application inadmissible under Article 35 of the Convention.

[02] CYPRUS GOVERNMENT - ECHR JUDGMENT - SATISFACTION

In statements to the press, Government Spokesman Vasilis Palmas said that this is a positive development and the government expresses its satisfaction.

Palmas described the issue of missing persons as sensitive and humanitarian, adding that the European Court of Human Rights (ECHR) is an autonomous European instrument which takes its decisions independently.

Asked weather the government intends to apply the ruling in the political arena, Palmas noted that Court judgments are of great significance.

Responding to questions, the spokesman said that all indications are that other similar cases could be brought up before the Court, in which similar decisions could be taken.

[03] LAWYERS - ECHR DECISION

Achilleas Demetriades and Kypros Chrysostomides have said the judgment is significant in that it establishes continuous violation of human rights by Turkey with regard to the missing as well as their relatives. In addition to that the Court, they pointed out, rejects the notion of presumed dead in the case of Greek Cypriot missing, as Turkey had claimed before the Court.

The lawyers also believe that the Court ruling does not absolve Turkey of blame as far a effective investigation of the fate of missing persons is concerned in spite of the work carried out by the Committee of Missing Persons (CMP), which has exhumed and identified remains of missing Greek Cypriots and Turkish Cypriots.

The President of the Committee of Relatives of Missing Persons Nicos Theodosiou expressed hope that todays decision will exert pressure on Turkey to allow access to the archives of its military and its jails in order to obtain information that would establish the fate of those missing.

The decision is not final and can be appealed against within three months to the plenary of the European Court. The decision is set to be discussed at the Committee of Ministers of the Council of Europe, which monitors the execution of Court judgments.

[04] �RITISH ENVOY - TURKEY - CYPRUS

British High Commission in Nicosia told CNA that Ryan, accompanied by head of the Cyprus Department at the Foreign Office Simon Horner visited Ankara to listen and learn as well as to stress the importance of the implementation of the 8th July Agreement for the Cyprus issue.

Ryan had talks with the Turkish Foreign Ministry officials and members of Parliament`s foreign Affairs Committee ahead of a new possible initiative for a Cyprus solution after the presidential elections in Cyprus, the Turkish media noted.

According to Turkish diplomatic sources, during a meeting with the President of the Foreign Affairs Committee, Murat Mercan, Ryan said that Turkey must show good will and open at least one of its ports to ships under Cyprus flag so Britain in turn can use this fact to put pressure on the Greek Cypriot side for a Cyprus settlement.

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