TZILIVAKI AND OTHERS v. CYPRUS
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
1. 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. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 22 July 1974, during the Turkish invasion, a military 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. 4. According to army records, Stefanos Tzilivakis and Kosmas Gianakakis were buried in individual and marked plots in Lakatamia Cemetery on 22 July 1974. Not all the bodies of the victims of the crash had been recovered and buried separately. The crash site had been covered over and converted into a Memorial for all Greek soldiers killed in the conflict; some unidentified remains from the crash had been buried in an unnamed mass grave, due to the small size of the bones, at the Memorial itself. At the site, there was built a memorial as well as a military cemetery with a church. The site was regarded altogether as a monument for honouring and commemorating those who fell. 5. In 1979, the army authorities exhumed and returned the bodies of 44 Greek soldiers killed in 1974 and buried in graves at Lakatamia Cemetery, including 16 victims of the crash. The remains from the grave bearing the name of Stefanos Tzilivakis were exhumed in the presence of his father and returned to the family in Greece on 3 September 1979. The grave bearing the name of Kosmas Gianakkis was exhumed in the presence of two of his brothers and returned to his relatives in Greece on 10 November 1979. 6. Sometime later a doubt arose as to the correct identification of remains. Beginning in 1999, an organization PHR (“Physicians for Human Rights”) in agreement with the authorities conducted exhumations at Lakatamia and other cemeteries, in particular of unidentified remains. In a 2000 report, PHR stated that burials in 1974 had taken place “under confusing circumstances” and that it appeared that the identifications had not been objectively verified, resulting in many mistaken attributions of identity and that due to lack of expertise, incomplete skeletons had been removed and parts of several individuals had been mixed together. 7. In 2001 the families of the victims, including the applicants’ families, were visited by experts involved in the exhumation of the remains of the victims and were asked to give blood with a view to proceeding to proper identifications. 8. In June 2003 the first applicant’s family handed over to the Cypriot authorities for DNA tests the remains which they had been given in 1979. Following such tests, the first applicant and her family were informed that these remains received in 1979 had not been those of Stefanos Tzilivakis. 9. In 2005, following testing of the remains given to the family of the second and third applicants and sent back to Cyprus, the family were informed that the remains contained parts of several other individuals. 10. In February 2005, DNA tests disclosed that the remains buried under the name of S.Y. had included part of the remains of Stefanos Tzilivakis. The family was so informed. The applicant was informed in 2006 that further remnants of Stefanos Tzilivakis had been discovered. 11. In 2006, it became apparent that the 22 remains returned to families represented at least 42 different individuals. 12. The first applicant applied to the authorities in 2003 and 2004, urging that the crash site be excavated in order to find the remains of her brother that she thought must still be at that location. It is not apparent that the second or third applicants approached the authorities on this matter. 13. 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 planning 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 buried 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.” 14. 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. 15. On 16 September 2003 the first applicant filed a complaint with the Commissioner of Administration (“Ombudsman”) against the Ministry of Foreign Affairs (complaint 1205/2003). 16. In a letter dated 2 March 2004 the Ombudsman informed the first applicant that the Director General of the Ministry of Foreign Affairs had informed her that they were taking the necessary measures towards excavating 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. 17. The Government submitted that work was undertaken to identify all the available remains in order to clarify the situation before proceeding to any large-scale excavations at the Memorial site. They also stated that they were hampered in identifications by the decisions of some families not to participate in the return of remains for identification; it also appears that one family had destroyed the remains. They stated that a large part of the remains of Stefanos Tsilivakis were recuperated; as his commando badge and ID tags had been found at Lakatamia Cemetery, there were no strong grounds for assessing that his body had been left at the site and that it was more likely that his remains were with all those transferred to Lakatamia. 18. Meanwhile several surveys and exploratory excavations were carried out at the Memorial site. This culminated in a PHR report of 22 July 2008 which stated that the unnamed remains stored at the Memorial site had been removed but their state was such that current DNA analysis methods had not been able to yield reliable results. It appears that there was a decision by the authorities not to proceed to excavate the site at this time due to Unreliable evidence as to whether there were any bodies or remains buried under the Memorial site without being marked; No indication from surveys and excavations that any remains were present at the site; The incomplete DNA samples from families and return of remains which meant that there was no comprehensive identification of those who had been buried at Lakatamia Cemetery; Concerns that the excavation would require the dismantling of the memorial erected on the site as well as disturbing existing graves at the cemetery on the site; Lack of certainty as to where on the site the aircraft was located. 19. On 2 April 2009, the PHR issued a report, stating inter alia, that some victims of the crash remained unaccounted for and that there was a possibility that remains had been buried along with the aircraft on the site and urged that an investigation be launched to put an end to the uncertainty of the relatives. 20. On 26 February 2014 the Council of Ministers approved the Ministry of Foreign Affairs proposal no. E268/2014 for the excavation of the air crash site. The excavation was to take place under the supervision of the Ministry of Foreign Affairs and will be conducted by the scientific staff of PHR in co-operation with the Cypriot archeologists, the Ministry of Defence and the National Guard. The proposal included an analysis of the costs to be incurred in the total amount of 90,000 euros.