CAKICISOY AND OTHERS v. CYPRUS
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
1. A list of the applicants is set out in the appendix. 2. The Cypriot Government (“the Government”) were represented by their Agent 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicants are 247 Turkish Cypriots relatives of 84 men who were killed during the conflict in Cyprus in 1974. 5. The applicants and their relatives were living in or about the area of Tochni (Taşkent) village. On 14 August 1974 armed Greek Cypriots who were mostly from the locality arrived at the village and collected the male Turkish-Cypriot population of the village and marched them to a Greek elementary school in the Greek Cypriot sector. Among the abductors were named villagers under the command of a named Greek Cypriot man, A.D., from the village, along with two Greek soldiers in uniform with a mainland Greek accent. 6. Some fifty Turkish-Cypriot men, including children as young as 12 years, were kept overnight at the school. Fifteen Turkish-Cypriot men from two other villages were also brought to the school. Two Greek officers from the mainland told them they were prisoners of war and led them to believe that they would be taken to a prison camp at Limassol. Next morning, the Turkish-Cypriot men and boys were loaded on two buses under armed guard. They were taken away to an unknown destination. 7. A statement by Suat Huseyin, reported in newspapers shortly afterwards and later included in a book on the conflict, gave the following account of the fate of the men. Suat Huseyin, his father and brother were amongst the men loaded on the buses. Their bus drove past Limassol and stopped at a junction. The armed men ordered the prisoners to march into the countryside. They were ordered to stop at a hollow and allowed to smoke. Almost immediately, shooting began. Suat Huseyin was hit in the stomach and legs and fell down pretending to be dead. He heard the four armed guards speaking in a mainland Greek accent, saying “That is the end of them, let’s go now and bring a bulldozer and bury them.” Suat Huseyin’s cousin was also still alive but badly wounded but Suat was unable to help him due to his own injuries. He fled the scene, hiding out in the hills for six days. He was eventually picked up by a UN ambulance and taken to a British base. He later went to the north in a helicopter. 8. In June 1989, the stories of various villagers, naming Greek Cypriots involved in the incident, were published in a booklet “The Tragedy of Turkish Cypriot missing persons in Cyprus – Third decade” 9. The applicants provided information that on 21 November 2004, the alleged perpetrator, A.D., made a statement to the newspaper “Alithia”, stating inter alia that he and others had acted together with the government forces and had done what the government forces ordered them to do. He confirmed the gathering of the Turkish Cypriot men and that they had been loaded onto buses by soldiers from Hirokitia. 10. No information about the applicants’ missing relatives was given nor any investigative measure taken until, on 14 June 2003, the Ministry of Foreign Affairs made a statement in newspapers published in northern Cyprus inviting the families of missing persons to give blood samples to the Cyprus Institute of Neurology and Genetics to aid in the identification of remains. The applicants came south and gave blood samples between 16 and 23 July 2003. 11. No news was forthcoming for some time so in 2005 the applicants contacted both the Ministry of Foreign Affairs and the Attorney- General of Cyprus asking for information. On receiving no reply within thirty days, some of the applicants filed five cases in the Supreme Court on 25 and 26 March 2006 against the Attorney General, Council of Ministers, Ministry of Foreign Affairs and Ministry of Home Affairs claiming that the authorities had failed to initiate all relevant procedures to ascertain the fate of the disappeared men during the three elapsed years and that the authorities should be ordered to conduct an effective investigation to locate and identify the remains and to identify and prosecute the perpetrators. 12. The United Nations Committee on Missing Persons (“the UNCMP”) had meanwhile commenced exhumations. On 29 May 2007, excavation began in a mountain region in Yerasa village and soon after remains of 43 missing men from the three villages were found. The remains of 3 of the remaining 18 missing men were later found at another location. A newspaper account dated 22 July 2011 explained that the remains of this group of victims had been transferred by Greek Cypriots from one burial spot to another unknown location due to a minefield – the remains of three-four men had been left behind. The DNA analysis of the remains has not yet been issued by the CMP. 13. On 29 May 2008, the Supreme Court rejected the claims finding that the subject-matter constituted an “act of State”, with which the courts could not interfere. The plaintiffs appealed. The decision was upheld on 18 May 2011 (see Relevant domestic law and practice below). 14. According to information submitted by the Government, the Attorney General ordered an investigation into the death of 84 missing persons from Tochni on 27 October 2005. Steps taken included as follows. 15. The police took statements from four out of the five relatives of missing persons who had written to the Attorney General naming seven persons as implicated in the events leading to their relatives’ deaths and requesting an investigation. These four witnesses named six persons, including three brothers, as arresting the missing men and confining them at the elementary school. The men had been boarded on a bus next day. One witness stated that it was four Greek Cypriots in uniform whom he did not know who put the men on the bus. The witness who had survived the incident stated that it was the Greek Cypriots who put the men on the bus who later killed them but he did not know their identities. 16. Of the six persons named as arresting the missing men (including the individuals referred to in paragraph 9 above), the police found that two had died. Statements were taken from the remaining four. Three denied any involvement; the fourth admitted taking Turkish Cypriots to be confined at the school. He had left at that stage but named three men who remained to guard the prisoners. On investigation the police found these three men had since died. A statement was also taken from a former policeman who had visited the elementary school at the time; while he named a man guarding the prisoners, it transpired that this man had died. The police officer also confirmed that orders had been given to confine the Turkish Cypriots but did not remember the source of the orders – with some doubt, he thought they might have come from the national guard general staff. A former Mari army officer named by a witness as passing on orders to confine Turkish Cypriots was located; he claimed not to remember whether the orders came from or whether it was his own initiative; he only recalled confining Turkish Cypriot males from Mari in the village coffee shop. 17. Police made efforts to track the source of the orders. A search of the national guard records yielded no results. 18. On 13 January 2011, the Attorney-General gave instructions to the police for further investigative steps. Following the Court’s decision in the case of Emin and Others v Cyprus, he took further steps to ensure the transmission of information about the finding of bodies of missing persons. On 30 May 2012, he was then informed by the CMP of the discovery of the remains of 47 unidentified remains from Tochni village. He in turn informed the chief of police, noting that an investigation was already pending. 19. On 11 April 2013, the Attorney General was informed of the identification of the bodies of three of the missing men from Tochni. On 22 April 2013 he ordered a specific investigation into their deaths. 20. In March 2013, the police submitted the Tochni investigation file to the Attorney General. He gave instructions on 5 June 2013 for further investigation, inter alia to investigate the historical background of the 1974 events, to explore the possibility that some of those known to be implicated in the 1963-1964 events might have been involved in Tochni killings, to broaden the temporal scope of the investigation so as not to be restricted to orders given on the day of the second invasion (14 August 1974) and to investigate further the allegation of the witness survivor that the bus had been stopped at a police checkpoint on the route to Limassol. He ordered that the investigation should not be closed without the discovery and identification of all the missing men and joined all relevant investigations. 21. According to the Government, which found difficulty in reconciling names of applicants with those included in official records, DNA samples were taken from 91 villagers in order to assist in the identification of remains. 38 of these were applicants in this case. These samples were taken in 2003 from the villagers who gave them voluntarily after signing a consent form in the Turkish language. The consent form stated that the DNA would be isolated from the sample and stored and registered at CING (the DNA Identification Laboratory) and that the DNA would be used in tests and identification studies for the identification of the remains of their missing relatives. The results would be communicated to any Cypriot person or institution as authorised by the President of the Republic and to the donor after approval by the Government. 22. CING processed the samples, isolating the DNA which was stored. In 2005-7, during negotiations with the UNCMP, it was clear that the Turkish Cypriot member wanted fresh samples to be taken. This was reflected in the UN agreement with CING for provision of funds. Fresh samples of blood were accordingly obtained from Turkish-Cypriot relatives under the auspices of the Turkish-Cypriot member who verified that all had signed, and understood, a fresh consent form indicating that the DNA isolated from the sample would be transmitted by the Turkish-Cypriot member of the UNCMP to CING to be genotyped and only to be used in the framework of the UNCMP programme of identifying remains. The form stated that previous consent forms were revoked. It was stated that at the end of the UNCMP project copies of all available data would be transferred to the Turkish-Cypriot member of the UNCMP. 23. It appears that CING holds DNA samples from 108 applicants, transferred to them in 2007 by the Turkish-Cypriot member of the UNCMP. At this stage, the previous samples from 2003 were destroyed for 57 out of the 91 villagers. This was in accordance with the revocation of the former forms of consent and new arrangements. Copies of official records of destruction of the material have been provided. 24. The DNA samples of those individuals who only donated blood in 2003 are still stored and no analysis has yet been made. No Turkish Cypriot who gave a sample in 2003 has approached CING requesting any information about the fate of their sample. 25. On 12 June 2012, the Turkish-Cypriot member of the CMP requested a digital copy of all the data related to the Turkish-Cypriot relatives of missing persons. CING transmitted the data on 25 June 2012. 26. According to the Government, the destruction of samples given by any of the 34 remaining villagers or applicants who only gave samples in 2003 is subject to the procedure set out in Standard Operating Procedures of the CING laboratory – a form existed whereby requests for destruction could be lodged. 27. According to the applicants, CING was no longer involved in identification of remains. Their role has been superceded by an agreement in 2012 between the UNCMP and the International Committee on Missing Persons in Sarajevo to which organisation all blood samples are now sent for testing. The applicants pointed out that they were not sent copies of the destruction records and had not been informed that their samples had been destroyed at the time. For those who had given samples not yet destroyed, they had not been given any information about their use or fate. 28. In these cases lodged in 2006, the relatives of five Turkish-Cypriot men who went missing on 14 August 1974 after they had been taken from their homes by armed Greek Cypriots, lodged applications under Article 146 of the Constitution, claiming that the Republic of Cyprus had known of the deaths of the missing persons but had not searched for the corpses or brought the guilty persons to justice and that the Republic had not taken the necessary actions to pursue an effective investigation to determine the whereabouts and fate of the missing persons. In their response, the Republic of Cyprus stated that they had not been passive but had been unable to pursue their intentions to exhume and identify corpses due to the agreement between the United Nations, the Turkish-Cypriot side and themselves that exhumations would be conducted by a common programme of the Committee of Missing Persons. They also pointed out that exhumations had begun in 2004 and the programme indicated the likelihood of the exhumation of the graves in the relevant area would commence in August 2008. They disputed that the matter fell within the jurisdiction of the courts but fell rather under the supervision of the United Nations and the authority and initiative of the President of the Republic. 29. In its decision dated 29 May 2008, the Supreme Court in its appellate capacity held that the fate of missing persons fell under the authority of the President of the Republic as it had an international aspect; the cases therefore concerned an act of government which did not fall within the jurisdiction to annul of the Supreme Court.