The Supreme Court's judgment in Civil Appeal 31/2017 is one of the most important judgments regarding the government's obligation to effectively investigate and ascertain the fate of the missing persons of the 1974 Turkish invasion. In addition to the particular humanitarian dimension of the case, the judgment redefines the government's obligations under Articles 2 and 3 of the European Convention on Human Rights (ECHR), in light of relevant case law.
The background of the case
The Appellants' claims concerned, inter alia, the alleged breach, on the part of the Republic of Cyprus, of its obligation, under Article 2 of the ECHR, to investigate the circumstances of the disappearance of two of their missing relatives (Loizos and Giorgos Hadjigeorgiou), who disappeared on 15/08/1974, after their abduction by armed Turkish Cypriots in the village of Strongylos. The court of first instance dismissed the action, holding that no violation of a provision of law or failure to perform a duty on the part of the Republic of Cyprus was proven. The Appellants appealed the first instance judgment with Civil Appeal No. 31/2017.
Supreme Court Decision
The Supreme Court, finding that there was a breach of Articles 2 and 3 of the ECHR on the part of the Republic of Cyprus, set aside the first instance judgment, awarding the total amount of €100,000, plus costs, as compensation to the relatives of the two missing persons. The Supreme Court's reasoning is analysed below.
A. Procedural obligation of the State to conduct due diligence
According to the Supreme Court, the conclusion of the first instance court, with reference to the case of the Republic of Cyprus N. Vassos Vassiliou as Administrator of the property of the deceased Christofis V. Ppasias et al. (2015) 1 A.A.D. 1169, that, in the case of the missing relatives of the Appellants, persons under the jurisdiction of the Republic, who were kidnapped on 15/8/1974 and have been missing since then, no procedural obligation was created because their remains have been located so far, is erroneous. In particular, the Supreme Court, with reference to the case law of the ECtHR (see Varnava v. Turkey (Applications nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90), date. 18/9/2009 para. 184), held that the approach of the first instance court weakens the very function of the procedural obligation of Article 2 of the ECHR, which requires a proper and effective investigation to ascertain the circumstances of the death or disappearance of a person, especially when the death or disappearance occurred under suspicious circumstances. Furthermore, the Supreme Court stressed that the conclusion of the first instance court, according to which the creation of the obligation of the state to investigate the circumstances of the disappearance of a specific person presupposes the finding of his body, in essence results in the disappeared being denied the status of a separately protected category of victims, which contradicts the purpose and spirit of Article 2 of the ECHR.
B. Whether the disappearance of the missing persons fell under the control of the Republic of Cyprus
The basis for the dismissal of the claim was the conclusion of the first instance court that the Republic of Cyprus could not be held liable, under Article 2 of the ECHR, as "at the last minute before the disappearance of […] the missing persons, the Republic of Cyprus did not have control or custody of them or their responsibility since the incident of the abduction of the relatives of the missing persons unfolded while war conditions [1]prevailed...". The Supreme Court held that this conclusion of the first instance court was erroneous for the following reasons. First, according to the case law of the ECtHR, the disappearance of a person in suspicious circumstances must be investigated by the State under whose jurisdiction the missing person falls. In the present case, the missing relatives of the Appellants were persons subject to the jurisdiction of the Republic of Cyprus. Second, in the case under consideration, the facts clearly highlight the disappearance/abduction of unarmed Greek Cypriot citizens of the Republic of Cyprus and not military personnel, who were forcibly detached, from other citizens of the Republic of Cyprus, Turkish Cypriots, their fellow villagers, not members of any military faction "who acted in the midst of an unsettled situation, i.e. during the second phase of the Turkish invasion of 1974, and not in the context of the battlefield or military operations as soldiers".
C. The conduct of an investigation by the CMP does not amount to the fulfilment of the obligation under Article 2 of the ECHR
According to the Supreme Court, the differentiation of the facts of the present case from other cases of missing persons dating back to the events of the Turkish invasion of 1974, establishes an increased obligation of the competent authorities to conduct a specialized and intensive investigation, including the search for any criminal responsibilities at the internal level to ensure the effective administration of justice in a state governed by the rule of law. The Supreme Court, considered that the approach of the competent authorities, according to which the present case was dealt with within the same framework as the other cases of missing persons (e.g. preparation of files and limited investigation by the CMP), demonstrates that the proper and effective investigation required by Article 2 of the ECHR was not carried out.
D. Erroneous conclusion of the Court of First Instance regarding Article 3 of the ECHR
The Supreme Court also disagreed with the conclusion of the first instance court that the Republic of Cyprus did not violate Article 3 of the ECHR. In particular, the Supreme Court referred to Article 3 of the ECHR, stating that it imposes not only a negative obligation to refrain from torture but also a positive obligation to take measures to prevent and investigate all forms of inhuman and degrading treatment. According to the Supreme Court, in the case of a person's disappearance, there is inhuman or degrading treatment of his relatives when the state does not respond adequately to their request for information, with the result that they bear the burden of investigating the circumstances of the victim's disappearance (see Varnava and Others n. Turkey (Applications nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, 18/9/2009 - par. 200). Therefore, the Supreme Court ruled that the authorities of the Republic of Cyprus violated Article 3 of the ECHR on the basis that "The failure of the Government to investigate effectively and within a reasonable time the fate of the missing relatives of the Appellants deprived the latter, for decades, of the possibility of knowing the truth and trapped them in a constant state of anxiety and mental distress".
Conclusion
In light of all the above, the Supreme Court held that the Republic of Cyprus had demonstrated substantial inaction in fulfilling its procedural obligation under Article 2 of the ECHR, and therefore, the required effectiveness of the investigation remained unfulfilled. The judgment establishes three fundamental principles. First, the procedural obligation is automatically triggered by disappearance in suspicious circumstances, regardless of locating the remains. Second, humanitarian action through the CMP is not a substitute for the required criminally oriented investigation, and third, neither political expediency nor practical difficulties constitute a legitimate justification for failing to comply with it.
[1] Article 2 does not allow any exception "except in the case of death as a consequence of lawful acts of war".
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