DENIZCI and others - Cyprus (Nº 25316-21/94 and 27207/95)

*Judgment 23.5.2001 [Section IV]

Facts: The applicants, who are Turkish Cypriots, allege that in 1994 they (or in the case of the ninth applicant, Mrs Tufansoy, her son) were arrested and ill-treated by the Cypriot authorities – and in particular officers of the Central Intelligence Service – before being expelled to the northern part of Cyprus. They were told that they would be shot if they returned. The ninth applicant's son did return and was later shot and killed by unidentified assailants. Others who returned claim they were forced to give statements that they had been ill-treated on the north. The Government maintain that the applicants left voluntarily. A report by the United Nations Force in Cyprus was transmitted to the Cypriot Government and an investigation was carried out jointly by a police officer and a forensic pathologist, who did not examine the applicants himself but concluded on the basis of photographs that there was no evidence of beating or torture. He carried out an autopsy on the ninth applicant's son but a criminal investigation failed to disclose incriminating evidence against anyone. An inquest was held and a verdict of death by premeditated criminal acts by unknown persons was returned. A delegation of the European Commission of Human Rights heard a number of witnesses.

Law: As the Commission had not completed its examination of the case by 31 October 1999, the Court was required to assess the evidence and establish the facts in the light of all the materials before it. It based its findings on the oral and written evidence, but noted that several witnesses had failed to appear and that it had not been provided with the case file of any detailed investigation on the domestic level. It noted that all the applicants had provided the same account of events during the hearing and considered that there were serious doubts about the credibility of the statements they had given to the Cypriot authorities. The Court found that the arrests and expulsions appeared to have been carried out according to a similar plan.

Ill-treatment: The Court noted that the medical evidence revealed that the applicants presented a number of injuries of various degrees. It relied mainly on the findings of the UN doctors and to a lesser extent on the medical examinations which some applicants underwent in the northern part of Cyprus. It took into account that the forensic pathologist had not personally examined the applicants but had been dependent on photographs, so that his findings inevitably carried less weight. Moreover, he had rejected the applicants' allegations in an over-assertive and dogmatic manner, making a number of comments which were not of a medical nature. His evidence therefore had to be treated with caution. In the light of these considerations, the Court found it established or reasonable to conclude that the applicants had been beaten or assaulted in detention, although the precise manner could not be determined.

Confiscation of belongings: The Court found no evidence to support the contention of one of the applicants that the police had taken money from him. It did find it established, however, that another applicant had been deprived of the use and enjoyment of his property due to his forcible expulsion.

Control of movement: The Court was not convinced that the CIS officers had acted only as social workers in relation to Turkish Cypriots and found no evidence to support the assertion that surveillance had been for the purpose of protecting the applicants. It appeared that the Cypriot authorities closely monitored the applicants' movements.

Killing of the ninth applicant's son: There was no evidence from the investigation file allowing any finding as to the identify of the killers. On the other hand, there was no significant omission or lack of care in the conduct of the investigation, which was followed by an inquest.

Government's preliminary objection – Despite the conclusions of the UN report that there was adequate material to support the plausibility of the allegations, the Attorney General had not at any time enquired into them and it could not be considered important that the applicants had not formally addressed a complaint to him. Moreover, the Government's argument that proceedings would have been doomed to failure in the absence of the applicants' cooperation lacked substantiation. As to a civil action, against the background of a lack of prosecution against any State official the prospects of success had to be considered negligible. Finally, a complaint to the Ombudsman, who has no power to order any measures or impose any sanctions, could not be regarded as an effective remedy either. Consequently, there were no effective remedies in respect of the Article 3 complaints. As for the complaint under Article 2, an investigation had been opened at the authorities' initiative, but no incriminating evidence had been found against any person and the ninth applicant was not therefore required to pursue any domestic remedies in that respect.

As far as one of the applicants was concerned, in view of his failure to appear before the delegates and the time which had elapsed since then without any further information being forthcoming, it could be concluded that he did not intend to pursue his application, which was therefore struck out.

Article 2 – While it had not been possible to establish who killed the ninth applicant's son, it had to be determined whether the State had complied with its positive obligations. Firstly, as far as protective measures were concerned, there was nothing to suggest that he had feared for his life or had reported such fears to the police, nor was there anything to indicate that the Cypriot authorities ought to have known he was at risk. There was therefore no violation on that account. As to the effectiveness of the investigation, various steps had been taken by the authorities, including an examination of the scene and an autopsy, and there was no element to allow the Court to conclude that the investigation was inadequate.

Conclusion: no violation (unanimously).

Article 3 – The Court found that police officers had intentionally subjected the applicants to ill-treatment of varying degrees of severity, but it had not been established that their aim was to extract confessions. Moreover, the precise manner of infliction could not be determined, there was uncertainty as to the severity of the injuries sustained by some of the applicants and no evidence had been adduced to show any long-term consequences. The ill-treatment could not be qualified as torture but was nonetheless serious enough to be considered inhuman.

Conclusion: violation (unanimously).

Article 5 – The Government had not advanced any lawful basis for the applicants' arrest and detention.

Conclusion: violation (unanimously).

Article 8 – The Court found it unnecessary to examine this complaint (physical and moral integrity).

Conclusion: not necessary to examine (unanimously).

Article 1 of Protocol No. 1 – The Court found the factual basis for one applicant's complaint to be insufficient to reach the conclusion that this provision had been violated, and with regard to another applicant it considered that the deprivation of property was a consequence of his expulsion and did not require separate examination from the complaint under Article 2 of Protocol No. 4.

Conclusion: not necessary to examination (unanimously).

Article 2 of Protocol No. 4 – The Cypriot authorities had closely monitored the applicants' movements between the north and south and within the south and the applicants were not allowed to move freely in the south. The restrictions on their movement fell under this provision and constituted an interference. No lawful basis had been advanced by the Government and it was not claimed that the measures were necessary to achieve one of the legitimate aims in paragraphs 3 and 4.

Conclusion: violation (unanimously).

Article 3 of Protocol No. 4 – The applicants had not claimed that they were expelled to another State and the Republic of Cyprus, sole legitimate government of Cyprus, was itself bound to respect international standards in the field of human and minority rights. In the circumstances, it was unnecessary to determine whether this provision applied and, if so, whether it had been complied with.

Conclusion: not necessary to examine (unanimously).

Article 34 (former Article 25) – As far as the ninth applicant's son was concerned, he had not lodged an application with the Commission when he made a statement to the Cypriot authorities. As for another of the applicants, no evidence had been adduced to support his allegation that he had made his statements under pressure from the Cypriot police or that any of the applicants had been threatened in relation to his application. It had not been sufficiently established that they were subjected to improper pressure to withdraw their allegations.

Conclusion: no failure to comply with obligations (unanimously).

Article 41 – The Court awarded each of the applicants 20,000 Cypriot pounds (CYP) in respect of non-pecuniary damage and also made an award in respect of costs and expenses.