The European Convention

1

THE EUROPEAN CONVENTION

ON HUMAN RIGHTS

APPLICATION NO. 25781/94

CYPRUS

v.

TURKEY

OBSERVATIONS IN REPLY (MERITS)

OF THE GOVERNMENT OF CYPRUS

REGARDING THE ISSUE OF

MISSING PERSONS

NICOSIA

1 JUNE 1998

1

CHAPTER 6

GREEKCYPRIOTMISSINGPERSONS

I.EARLIER PLEADINGS IN APPLICATION NO. 25781/94 AND RELEVANT REFERENCES

Respondent Government`s Various Pleadings

194.TheRespondentGovernment haspleadedtothemerits on the missing persons issueinher

(i)Observations(Merits)atpp.78etseq,PARAS.257-266.

(ii)Appendices2(Chapter2, pp. 33-41,ofMr.Necatigil’sbookonTheCyprus Questionetc.,1996edition),15B,16,17and18.[1]

(ii)Observations(Admissibility),pp.72-84etseq,paras.191-222.

Applicant Government`s Pleadings

195.TheApplicantGovernmenthasearlierpleadedorsubmittedwrittenevidenceinrespectofmissingpersonsin:

(i)LetterofApplication,22November1994,para.4(a).

(ii)Particulars,2March1995,pp.68-71,paras.94-101.

(iii)ObservationsinReply(Admissibility),19December1995,pp.20-21andDocumentary Exhibit inVol.2,atp.91.

(iv)AdditionalDocumentaryMaterial,10June1996, pp.87-88,andUNdocumentssettingoutthetermsofreferenceandproceduralrulesoftheCommitteeonMissingPersonsinCyprus (separately submitted).

(v)VerbatimRecordoftheHearing,28June1996,VR25781/94,pp.35-36,57-59and64-65.

(vi)Observations(Merits),7February1997,pp.57-65,177-179;

Annex4, pp. 275-280;

Appendices,Vol.1,WitnessStatements,pp.29-92;

Vol.IV,pp.2-81;Vol.V,pp.31-162;and

Vol.V,relevantparasintheCommission’sReportonApplicationsNos.6780/78and6950/75 and 8007/77 and pleadings thereto with attached statements.

196.CYPRUS PARTICULARLY RELIES ON HER OBSERVATIONS (MERITS) AND THE ASSOCIATED ITEMS LISTED IN (vi)ABOVE,ANDREQUESTSTHECOMMISSIONTOPERUSETHEM,READINGTHEMINCONJUNCTIONWITHTHEPARAGRAPHSBELOW.

II.GENERAL COMMENTS ON THE RESPONDENT GOVERNMENT`S ASSERTED «DEFENCE» OR JUSTIFICATIONS

197.Turkey’sObservations(Merits)November1997,(henceforthO(M))dropmuchscandalousmaterialsetoutinherObservations(Admissibility),July1995,(henceforthOA),obviouslybecausethiswasshowntobefalsee.g.OAparas.198and218,whichwererebuttedbyaffidavitsbytheMayorofNicosia,Mr.Demetriades, andbyPresidentVassiliou(containedinCyprus’sObservationsinReply(Merits),Vol.I,pp.88-92).

198.Again, TurkeyclaimedinherOAthat«almostall»[2]themissingpersonswereeitherallkilledinaction (paras. 212-213) or in the coup by the Greek Junta(paras.214-217). NotonlywasthefalsityofthisdeliberatelydiversionaryallegationrebuttedbyCyprus’sAnnex4toherObservationsinReply(Merits),atpp.275-280,butTurkeyrealisedthatshecouldnotcontinuetopleadinthatfashiononceMr.Denktashmadeapublicstatement,transmittedon1March1996bySigmaTV. (ThatstatementwassubmittedtotheCommissionon10June1996inAdditionalDocumentaryMaterial,pp.87-88).

(i)New evidence requiring Turkey to investigate

199.In his interviewtransmittedon1March1996,Mr.Denktash claimedthatnumbersofGreekCypriotmissingpersonshadbeentakenbytheTurkishArmyasprisonersofwarorhad,ascivilians,beenroundedupbythatArmy. SuchpersonshadthenbeenhandedtoTurkishCypriotFighters(whowerecommandedbyTurkishofficers). AccordingtoMr.Denktash,suchpersonswerekilledbytheircustodians. ItshouldbepointedoutthatallcaptivesandcivilianswereentitledtothebenefitsoftherelevantGeneva Conventions. TurkeyhadratifiedthefourGenevaConventionsof12August1949in1954 and in1962Cyprushadratifiedthem.Inanyevent,on21July1974 TurkeynotifiedtheUNSecretaryGeneralthatshewouldbeapplyingtheGenevaConventionsinCyprus.[3]

200.Itisappropriateheretore-quoteMr.Denktash’sinterview:

«Sideras[interviewer]:...Ihaveapersonalexperience,lliketherestofthepeoplein1974andasfarasIamconcernedIfound myself in a position to have to fight for my life, formy family,formycountry,formydignity. Onthe8thofAugustIwasinLapithoswhenLapithoswastaken. Iwaswith49boys,Icamebackwithseven. Iwastherewhentherestoftheboyssurrendered,thenamesexist. Isawitwithmyowneyes. Theseboyswerecaptured. InsofarasIamconcernedtherearetwowayswecango. OnethattheTurks,theTurkishinvadingarmy,massacredtheseboysincoldblood. Theotheristhattheyweretakentoprison,whathappened?

Denktash: Whathappenedisthis. AstheTurkisharmymovedandtheycapturedGreekCypriots,unfortunatelytheyhandedthemovertofighters,ourfighters;amongstwhomtherewerepeoplewhohadtheirfamilieslost,thevillageslostovertheyearsandmassacres,ifhappened,theyhappenedlikethis. InsteadoftakingthemtoPolicestationsortoprisoncamps,theywerekilled. AssoonastheTurkisharmyrealisedwhatwashappening,thatiswhyandthatiswhentherestofthemweretransportedtoTurkey.»

201.Itissubmittedthatthisinterview,givenworld-widepublicity,imposedonTurkeyadutytoinvestigate,or,ifshehadearlierinvestigated,tore-openherinvestigation. TheTurkishArmy,asthearmyofamodernStateandaNATOPower,presumablyappliesinternationalhumanitarianlaw,and,whenittakesprisoners,employstherequiredproceduresi.e.takingnamesofmembersofthearmedforcesofpartiesto theconflict. Inaddition,dateofbirth, regimental, personalorserialnumberor,failingthis,equivalentinformationwouldhavebeensuppliedunderArticle17 of the Prisoners of War Convention. TheTurkishArmyshouldthereforebewell-placedtoenquireintotheresponsibilityofthoseofitsforceswhotransferredprisonersoftheDetainingPowertoinsurgentforces,liketheTMT,and when, and preciselytowhom. Sincethe TurkishArmyisinCyprus,itiseasilyabletoconductsuchaninvestigation. Thereisnoindicationatallthatithasdoneso - certainly not in Turkey`s O(M) which are silent as to this statement by Mr. Denktash and as to any investigation by Turkey. That duty of Turkey to investigate was, it will be submitted below, a continuing obligation.

202.ItshouldofcoursebeaddedthatinanyeventTurkey has been aware of the problem of missing persons since 1974, when, initially, the Turkish Army co-operated with the ICRC in searching for persons hiding in the occupied area and when lists of missing persons were given to Mr. Denktash (see S/11468, Add. 4, 17 October 1974, para. 18, and Add. 1, 10 September 1974, para.18(d) - reproduced in Appendices to Cyprus’s Observations (Merits) Vol. VI, pp. 31 and 26 respectively).

203.Turkeymusthavebeenalerted to the need to investigatebyasimilar widely publicised statementmade by Professor Yalcin Kucukaboutthekillingof many Greek Cypriot civilians, including a Mongol woman, and about villages being «cleaned» in «TEMIZLIK» operations. Immediately after Turkey`s second invasion phase in August 1974 Professor Kucuk, a former Turkish Army officer, and now a French professor, was a witness to these events. His statement was retransmitted in Cyprus after being transmitted on 14, 15, 16 and 17 February by Antenna Television in Greece. During his interview, when asked about missing persons he asserted that,

«the way... that the Turkish soldier does his mission, if these died in one week, or in ten days, or within the war... it is not by feeling that anybody should be alive... I repeat to you. If there are missing, its a good hypothesis to think that they are not alive.»

Asked whether he knew of any massive graves, Professor Kucuk replied

«Massive! No. As I told you, I know massive deaths. I don`t know massive graves. I know there are in the fields. I`ve seen them. I don`t know how many.»

Professor Kucuk claimed that on five occasions he stopped his men from killing, in one case telling them that a soldier (in civilian clothes) and an eleven or twelve year old child should be kept for a prisoner-exchange.[4]

(ii)Respondent Government`s claim that investigation should be by the Committee on Missing Persons (CMP)

204.So far as concerns the appropriate mode of investigation, theRespondentGovernmenthassubmittedinPARAS.263and264O(M)thattheCommissionisnotthemostappropriateinvestigatorybody,butthattheCommitteeonMissingPersons(hereinafterCMP)isthemostappropriatebodytodealwith thequestionofmissingpersons. Itwillbeobservedthattheargumentisnot,asitwasattheadmissibilityphase,that there was allegedly a special agreement to settle their dispute (all issues) by intercommunal talks and also the issue of missing persons by means of the CMP. The argument in O(M) is that the Commission should, as a matter of prudence, defer to the CMP and its competence.

205.Theinitialpointmustbemadethatthedutytoinvestigaterestsuponthe relevantPartytothe EuropeanConvention on Human Rights,aviewstrengthenedbyArticle13,whichrequiresaneffectiveremedybefore«anationalauthority». TheCMPisnota«nationalauthority» ofTurkey,anditdoesnotapplytheConvention. SofarasconcernsTurkey’sdutytoinvestigate, the CMPisirrelevant.

206.EvenwhentheCMPultimatelyreports,allitcandoistosaythat,onthepreponderanceoftheevidencesubmittedtoit,personsaredead,oralive,orthat,ifthereisanabsenceofanyevidence,direct,indirectorcircumstantial,thecasewillconcludedsofarastheCMPisconcerned(seeProposedCriteriaforConcludingtheInvestigationoftheCommitteeonMissingPersons,17May1995,reproducedinAppendix16toTurkey’sO(M)). Manycaseswillthereforebe«concluded» andtheCommitteewillenditsexistenceandabilitytoinvestigate.[5]

207.Turkeyis,moreover,notapartytotheworkoftheCMP.[6] ThosewhoparticipateintheCMParethetwocommunitiesofCyprus. Neither the Republic ofCyprusnortheRepublicofTurkeyarepartiestotheworkoftheCommittee.

208.As was indicated during the admissibility phase of this Application, theCMPhasaverynarrowmandate,namelytomakelimitedfindingsandtothennotifyfamilies.

209.TheCMPcannotdealwithquestionsofresponsibility,letaloneresponsibilityunderandapplicabilityoftheEuropeanConventiononHumanRights.

210.Moreover,noremedycanbeaffordedbytheCMP,unlikethepossiblefinaloutcomeofproceedingsundertheConvention.

211.Similarly,norecommendationscanbemadebythe CMP.

212.NotonlyistheCMP`scompetencelimited,butits investigative capacity and its procedureininvestigatingareverylimited. ItcannotoperateinTurkey,butonlyinCyprus. Moreover,thereisnopowertoorderexhumations,eitherasamodeofinvestigationor asaremedy. If death is the conclusion, such outcome will not beafindingastothecauseofdeath.[7]

213.Initstypicallydiversionaryfashion,theRespondentGovernmentinPARA.264invokestheviewoftheUNWorkingGrouponEnforcedandInvoluntaryDisappearances(towhosehumanrightsstandardstherewillbereferenceinsection(III)below)toclaimthattheCMPisthemostappropriateinvestigatorybody. Ofcourse,theCMPismorelikelytobeeffectivethantheUNWorkingGroup-butthatisirrelevantvis-a-vistheappropriatenessoftheEuropeanCommissionofHumanRightssittingundertheConvention. Sofarasconcerns a comparison between theCMPandtheUNWorkingGroup,thereasonsfortheCMPbeingmore appropriateare

(i)theUNWorkingGroupconsistsof5part-timevolunteerexperts,sittingforverybriefperiods,andcoveringdisappearancesthroughouttheworld. Itcannotdevotetimetoone-countrysituationsastheCMPcan;

(ii)theUNWorkingGrouphastoworkwiththehighestdegreeofdiscretionandwasatthattimeunderattackbyStatesforbeingtooactivist,itsmandate(variable byitspoliticalparent,theUNCommissiononHumanRights),soonthereafterbeingmodified;

(iii)theUNWorkingGroupwillnotdealwithdisappearancesarisingintimeofarmedconflict. Itcouldthereforenotlookatthe1974eventsandassociateddisappearances; and

(iv)theUNWorkingGroupwillnotdeal withdisappearancescausedby non-governmentalgroupse.g.byunlawfulpara-militaries and terrorists.

Theneteffectisthatthemassivenumberofcasesin1974wereoutside theUNWorkingGroup’smandate. Henceitsviewthatthespecially- createdCMPwasamoreappropriatebodythanitself.

214.Incontrasttothe CMP(andafortioritheUNWorkingGroup),itisrespectfullysubmittedthattheCommissionistheonlyappropriatebodytoembarkondecidingthequestionofmissingpersonsinrelationtotheinterpretationandapplicationoftheConvention. Notonlyhasitthemonopolyofjurisdiction,asindicatedabove,but:

(i)TheCommissionhasdevelopedinvestigativeprocedures,actingthroughDelegates,overtheyears;

(ii)Itorganisesanonymouswitnesshearingstoprotectwitnessesfromreprisals;

(iii)Itiswell-equippedwithexpertmembersabletoassessscientificevidenceastoidentificationofremains,shouldthisbepresented,oritcanmakerecommendationsonthismatter;

(iv)TheCommission as a judicial bodyisexperiencedinevaluatingevidenceandinapplyingevidentialpresumptionsastothecontinuanceoflifeandinwhatcircumstancespresumptionscanbetakentoberebutted;

(v)TheCommissionisexperiencedinmakingfindingsastoStateresponsibility;and

(vi)TheCommissionisexperiencedinawardingappropriateremedies;

(iii)Respondent Government`s assertion that Cyprus has «no legal interest»

215.TheRespondentGovernmentthenraisesinO(M)PARA.265(earlierraisedinOAparas.4etseqandparas.220 - 222)theproceduralcontentionthatCyprushas

«nolegalinteresttoproceedwiththeissueof«missingpersons» inCyprusastheCommissionandtheCommitteeofMinister[sic]oftheCouncilofEuropehavealreadydealtwiththematterinApplicationNo.8007/77».

216.TheApplicantGovernmentrespectfullyrecollectstheCommissionAdmissibilityDecision,28June1996,atp.29. Thisreads:

«Inanyevent,theCommission,havingregardtothespecifictextoftheCommitteeofMinisters’ResolutionDH(79)1concerningApplicationsNos.6780/74and6950/75,didnotacceptasimilarargumentpresentedbytherespondentGovernmentinrelationtoApplicationNo.8007/77andconfirmedtheapplicantGovernment’slegalinterestinthedeterminationofallegedcontinuingviolations(Reports4/10/83,D.R.72,p.15,para.62). ThesamemustapplyinthepresentcaseinsofarasaprecludingeffectofthesameCommitteeofMinisters’Resolutionisinvoked. AstoanyprecludingeffectattributedbytherespondentGovernmenttotheCommitteeofMinistersResolutionDH(92)12concerningApplicationNo.8007/77,theCommissionnotesthatthisresolutionmerelyauthorisedthepublicationoftheCommission’sReport,withoutcontaininganyfindingsastoviolationsoftheConvention. Forthisveryreasontherecan beno«resjudicata» effectofthisdecision.»

217.Inaddition,theApplicantGovernmentrefersto

(i)itsObservationsinReply(Admissibility),Chapter2,atpp.42-45;

(ii)itsObservations(Merits),Chapter7,pp.183-202;and

218.Thelastproceduralcontention,setoutinPARA.266O(M),addsaslightspintothepreviousclaimthatCyprushasnolegalinterest. The Respondent Government asserts that Cyprus has no legal interesttopursuetheclaimbeforetheCommissionbecausethereisalreadyaninvestigatorybody,theCMP,andbothsideshavesubmittedlistsofmissingpersonsto thatbody«forinvestigationandsettlement». Theimplicationisthat anequivalentruleto that in Article27(b),whichappliesonlytoArticle25,appliestoArticle24.

219.Itshouldbeobservedthatthe«settlement» bytheCMPrelatesonlytodetermininglistsofpersonsbeingaliveordeadortheircasesbeingconcludedbyabsenceofevidenceeitherway. ItisNOTaquestionoftheCMPsettlinganyissuesofviolationsorclaimsthatexistconsequentialuponhumanrightsviolations. ItshouldbeaddedthattheCMPproceduresareresinteraliosactai.e.betweenthetwosides(theCyprusmajorcommunities),andnotbetweenthetwoHighContractingPartiestothisApplication.

220.Thereisnoquestion hereoftherebeinganyelectionbetweenmodesofproceedinginrespectofclaimsregardinghumanrightsviolations. TheCMPhasnothingtodowithsuchclaims. Asexplainedabove, the CMPisnotcompetenttoapplyorinterprettheConvention;itdealswithdifferentparties; anditdealswithdifferentissues-notwithresponsibilityandremedies.

221.Moreover,thereisaprinciplethatConventioninstitutionshaveamonopolyofdecidingdisputesarisingoutoftheinterpretationandapplicationoftheConvention. ItissubmittedthatthejurisdictionandcompetenceoftheCommissioncannotlightlybeexcluded. Indeed,this isapparentfromtheCommission’sinterpretationofArticle62initsAdmissibilityDecision,atp.32. TherelevantpartoftheDecisionreads:

«TheprinciplestipulatedinArticle62isthemonopolyoftheConventioninstitutionsfordecidingdisputesarisingoutoftheinterpretationandapplicationoftheConvention. TheHighContractingPartiesagreenottoavailthemselvesofothertreaties,conventionsanddeclarationsinforcebetweenthemforthepurposeofsubmittingsuchdisputestoothermeansofsettlement. Onlyexceptionallyisadeparturefromthisprinciplepermitted,subjecttotheexistenceofa«specialagreement» betweentheHighContractingPartiesconcerned,permittingthesubmissionofthedispute-concerning«theinterpretationorapplicationoftheConvention» -toanalternativemeansofsettlement«bywayofpetition».

TheCommissionconsidersthattheconditionsforinvokingsuchaspecialagreementarenotfulfilledinthepresentcase. Aprimarycondition,namelytheconsentofbothHighContractingPartiesconcernedtowithdrawtheparticulardisputefromthejurisdictionofthe Conventionorgans,islacking,theapplicantGovernmentclearlyopposingsuchawayofproceeding. EvenassumingthatbothTurkeyandCyprusareboundbyinternationalobligationsconcerningtheintercommunaltalksandtheCommitteeonMissingPersons,itisdifficulttoseehowthiscouldamounttoa«specialagreement» betweenthemtoresortexclusivelytothesemeansofsettlementprecludingtheConventionorgansfromperformingtheirnormalfunctions. ThepartiestotheagreementsestablishingtheintercommunaltalksandtheCommitteeonMissingPersonsareformallydifferentfromthepartiestothepresentproceedings. Moreover,neitheragreementrelatesspecificallytothesettlementofadisputeontheinterpretationorapplicationoftheConvention,letalonetheparticulardisputenowsubmittedtothe Commission. NorisitprovidedintheseagreementsthatanysuchdisputecanbesubmittedtotheintercommunaltalksortheCommitteeonMissingPersons«bywayofpetition».

TheCommissionconcludesthatitisnotpreventedfromexaminingthepresentapplicationonthegroundthatthereexistsa«specialagreement» tothiseffectbetweenthetwoHighContractingPartiesconcerned. TheCommissionwouldaddthat,generallyspeaking,theperformanceofitsfunctionsunderArticle19oftheConventioncannotinanywaybeimpededbythefactthatcertainaspectsofthesituationunderlyinganapplicationfiledwithitarebeingdealtwith,from adifferentangle,byotherinternationalbodies.

TherespondentGovernment’saboveobjectiontotheadmissibilityoftheapplicationmustaccordinglyberejected.» (Emphasis added.)

222.Itissubmittedthattheprinciplesetoutinthe Admissibility DecisionappliesafortioritoanallegedestoppelwhentheCommissionhasalreadyheldthatanexpressagreementcannotexcludeitsjurisdiction.

223.It is further submitted that the Admissibility Decision in Varnava and Others v. Turkey, Applications Nos. 16064-6 and 16068-72/90, 14 April 1998, at p. 27, disposes of this contention by the Respondent Government. In Varnava the Commission held that the CMP was not a procedure of «international investigation or settlement» in respect of Applications against Turkey by certain missing persons and their families.

(iv)The Respondent Government`s Propaganda and Gross Exaggeration of certain Tragic Events

224.AlastsetofobservationsmustbemadebytheApplicantGovernmentregardingoftenfalse,veryofteninaccurate,andalwayspropagandisticmaterialincludedintheRespondentGovernment’sO(M)andearlierOA. Thispropagandisticattitudeisexhibited,evenwhensomeofthematerialisnowintheformofAppendicesinO(M). Forexample,theRespondentGovernmentcannotdesist,inPARAS.257-261,fromattemptingtoblametheGreekCypriotsidefordelayintheworkoftheCMP. Infact,theinitialdelay,fornearly8years,wasbyTurkey,whichrefusedtocountenancetheUNsettingupahumanitarianCommittee. Thereafter,bothsidesinterpretedtheCMPtermsofreferencedifferently. The Turkish Cypriot interpretation was designed to close all cases summarily and in a superficial way and to end any investigation, while the Greek Cypriot interpretation was designed to discover the whereabouts of any victims` corpses and to continue investigation until a definite conclusion could be reached without merely, virtually automatically, presuming persons to be dead and concluding matters in that fashion.

225.AsecondcompletelywrongconclusionappearsinO(M)PARA.262, namely,thatpresscommentbetween22July1995and12December1995ledtoreductioninthenumberof persons claimed to bemissing. ThetruthofthematteristhatoncetheCMPbegantofunctionagaininmid-1995,theUnitedNationsrequestedtheGreekCypriotsidetoget its filesinfinalorderand then presentallitscases. Inordertodothis, the Greek Cypriot sideconductedacarefulinquiryintoeachcaseduringAugust,SeptemberandOctober1995,startingtonotifytheCMPasandwheniteliminatedfromits previouscaselist120persons. (Seeletterdated10October1995totheCMP,reproducedasDocumentaryExhibitNo.5inCyprus’sObservationsinReply(Admissibility),Vol.2,atp.91.) Shortlythereafter,thenumberwasreducedbyafurther6to1493. ThiswasexplainedtotheCommissioninCyprus’sObservationsinReply(Admissibility),atp.20,andrepeatedinherObservations(Merits),atp.124. ApplicantGovernment’scarefulinvestigationofcasesmustbecontrastedwithRespondentGovernment’sfailuretoinvestigateatall. It should be added that in earlier phases of the work of the CMP, as more knowledge came to light, the list of missing persons, was from time to time revised downwards. At one time it was over 2,000 persons. Indeed, shortly before the ICRC concluded its work it recorded that there were over 2,000 missing persons.[8]

226.The Respondent Government`smostinsidiouspropaganda,isnowcontainedintwoAppendices,namelyTurkishO(M),Appendix2,being anextractfromthe1996editionofMr.Necatigil’sTheCyprusQuestionandtheTurkishPositioninInternationalLaw,andAppendix15B[sic],FactNoteonMissingPersonsinCyprus,TurkishCypriotHumanRightsCommittee,1996. ThelatterCommitteeiscloselyassociatedwiththe«TRNC» PressInformationOffice,the«P.R.»institutionofTurkey’ssubordinatelocaladministration. TheApplicantGovernmentwillnotwastetheCommission’stimebyseriatimdissectionofthedistortionsand,indeed,liesinthelatterdocumentandthesuppressio veri suggestio falsiapproachastothealleged«history» in Mr.Necatigil’sbook.Somebriefpointsmust,however,bemade

(i)The1963attackswerestartedbyTurkishCypriotsonAnkara’sinstructionsandwerenotstartedbyGreekCypriots.[9]

(ii)PresidentMakariosnevermade a statementthattheTurkishcommunityshouldbeexpelled,andsuccessfullysuedforlibelanauthorwhopublishedsuch an allegation.[10]

(iii)SirAlecDouglasHomeandMr.GeorgeBall,USUnderSecretaryofState,arequotedascriticisingPresidentMakarios. Theirviewsare inevitably partisan, because they were politically obsessed with the danger of an Eastern Mediterranean Cuba and their consequent determination to affect change in the government of Cyprus.[11]

(iv)During the 1963/1964 fighting therewerekidnappingsandhostage-takingbybothsides. However,Mr.Necatigil`scitationofUNSecretary-General’sReports, arehighlyselectivelyeditedandoftenquotedoutofcontext. OnthemissingTurkishCypriots,hecites,forexampleS/5950,10September1964,para.142,onabductions,claimingthat483Turksweremissing. Paragraphs142and143 of the Secretary-General’s Report actuallyread:

«D.MissingPersons

142. Inmyreportof15June1964,Iindicatedthatasof8June,atotalof483TurkishCypriotsand52GreekCypriotswerereportedasmissing. Asaresultofintensivesearcheseffectedsincethen,carriedoutwiththeassistanceofUNFICYPandtheInternationalCommitteeoftheRedCross,251 TurkishCypriotsand9GreekCypriotshavebeenfound. Itmaybenotedthatamongthesepersonsanumberhadneverbeenabducted,buthadsimplylefttheirnormalplacesofresidencetolivewithrelativesorfriendselsewhere. AmongthosewhoremainmissingaremanypersonswhodisappearedduringtheDecember1963events,andthereseemslittlehopeoffindingthemalive. ThesamemaybesaidofallthosewhowereabductedaftertheFamagustaincidentof11May1964.

143. TheabovefigurescoincidewiththelistsofmissingpersonsrecentlygivenbytheCyprusGovernmentandtheTurkishCypriotleaders. AccordingtotheGovernment,therewereasof1September43missingpersonsofwhom38wereGreekCypriots,4BritishnationalsandoneGerman. Thelistestablishedbythe TurkishCypriotsputsthenumberofTurkishCypriotsstillmissingat232.»(Emphasisadded.)

Thus,intheReportcitedbyMr. Necatigil,therewere232andnot483missingTurksandtherewerealso43othermissingpersons38ofwhomwereGreekCypriots whom he ignored.[12] ItshouldbeaddedthatboththeGovernmentandtheTurkishCypriotleadershipgavelistsofmissingpersonstoUNFICYPandco-operatedwithUNFICYPintheirbeingtraced.[13]

(v)In Appendix 16 Turkey presents the picture thatduring her «intervention», there was onlyjustifiablekilling in action of GreekCypriotandGreekmilitarypersonnel. In contrast, shepresentsTurkishCypriotvictimsasall beingcivilians. The truth is that many of the GreekCypriotmissingpersonswerecivilians,and they included women and children.[14] Conversely,oftheTurkishCypriotmissingpersonsin1963/1964,theTurkishCypriotsinvolvedwereFighters, as were those killed in a criminal incident in 1974 at Tokhni(whichisnottojustifythecrimeswhichwerecommitted by individuals against them).

(vi)Therearegrosslyexaggeratedassertionsthat«hundredsofTurkishCypriotshavebeenabducted,massacredandburnedinmass graves»:TurkishO(M),Appendix15Batp.3. IntheallegedlyprobativeAppendixII thereto,afakephotographisenclosedand alsoamisleadinglycaptionedschoolphotographofknownmassacrevictims,longagodisclosedto theCouncilofEuropeinCM(77)117,AnnexI,pp.162-3. Even evil events can be exaggerated and distorted for propaganda effect. It must be emphasised that investigation into atrocities was requested by UNFICYP. Their request was refused by the Turkish authorities, as was a request by the Government of the Republic. The Government asked for all alleged atrocities in the island reciprocally to be investigated. David Lancaster`s contemporary account in Associated Press Report, 3 September 1974, reveals a claim that some of the bodies found at Maratha were those of Greek Cypriots (at least one was wearing a Greek neck medallion) and the international press, who had been invited to the scene by Turkey, were then kept away from the exhibited corpses, which had only been found some 18 days after the Turkish Army had occupied the area in question.[15]

III.THE PROVISIONS OF THE CONVENTION

227.It is necessary for Cyprus considerably to supplement its O(M) in relation to the law and the evidence concerning missing persons. This is due to recent developments.

228.As to facts, the Respondent Government has failed to investigate the facts alleged in Mr. Denktash`s statement transmitted by television on 1 March 1996 and given world-wide publicity. More than ample time has elapsed since the Applicant Government submitted a transcript of Mr. Denktash`s interview in Additional Documentary Material, 10 June 1996, pp. 87-88, for Turkey to respond to his claim that prisoners of the Turkish Army were handed over and killed. (See paras. 5-8 above where Mr. Denktash`s statement is again reproduced.) However, the Respondent Government`s O(M) is silent about this statement and about any investigation. That statement calls out for an explanation by Turkey.

229.Furthermore, equal publicity was given to the television interview by Professor Yalcin Kucuk transmitted on 14, 15, 16 and 17 February 1998. (See Appendix 44) Professor Kucuk had not made his revelations when Cyprus was proposing witnesses to the Commission, otherwise he would have been proposed to testify. His statement about the modus operandi of the Turkish Army in killing civilians in «cleaning» operations demands investigation.

230.The legal developments making comment necessary were publication of the Commission`s Report of Kurt v. Turkey, Application No. 24276/94, Report of the Commission, 5 December 1996. That case was argued before the Court on 26th January 1998 - See no. 74251, Cour/Misc(98)23, case of Kurt v. Turkey (15/1997/799/1002), and Judgment is awaited. There has also been the Admissibility Decision of 14 April 1998 in Varnava and Others v. Turkey, Applications Nos. 16064/66 and 16068/72-90.

1.The state of Convention jurisprudence on missing persons or «involuntary disappearances»

231.In order to understand the present Application in the light of Convention jurisprudence, which has only recently gone beyond the embryonic stage, due to the important decision in Kurt v. Turkey, supra, it is necessary to look sequentially at the earlier Cyprus Applications against Turkey. It is also necessary to look briefly at the current admissibility proceedings, Kurt v. Turkey, and the admissibility proceedings in Varnava and Others v. Turkey. Only then can it be seen in relation to this Application in which direction further explication is necessary in relation to the current Application, aspects of the facts of which have, from time to time, since 1974 been subject to some consideration by the Commission.

(a)Cyprus v. Turkey, Applications Nos. 6780/74 and 6950/75, Report, 10 July 1976

232.The Applicant Government made claims under two Articles, namely Articles 2 and 5. Cyprus`s Article 5 claim concerned deprivation of liberty of prisoners and detainees. In para. 292 it was stated that there was evidence that a number of missing persons were among those who had been expatriated to Turkey and she invited the Commission to investigate whether the missing persons were still detained in Turkey. In addition, in para. 301, it was shown that the Applicant Government had submitted evidence relating to undeclared Greek Cypriot prisoners of war and missing persons. However, the Commission, in para. 306, felt that it had not been able to find out whether undeclared Greek Cypriot prisoners were still in Turkish custody. The Commission also decided to deal separately with the question of missing persons and to do so under Article 2, Deprivation of Life.

233.The Commission then examined the question of missing persons in conjunction with alleged mass killings of civilians who were unconnected with any war activities, which killings constituted a systematic course of action followed by the Turkish Army in respect not only of unarmed soldiers who had surrendered but also in respect of civilians, including children, women and old men as well as cripples, mentally retarded and blind people. Also killed, were persons who had attempted to visit areas under Turkish military control in order to collect their belongings. In para. 316, the Government referred to its fear that a large proportion of Greek Cypriots

«who had last been seen in the Turkish-occupied area and were still unaccounted for (at least 3,000, a considerable number being civilians) were victims of such killings».

234.The Respondent Government did not participate in the proceedings on the Merits and did not make any statement with regard to the above allegations. (See para. 317.) It is significant to note in the current case that in her OA paras. 215-217, the Respondent Government claimed that the missing persons were killed in the coup by the Greek Junta[16]. As to killing, the Commission in Cyprus v. Turkey, Applications Nos. 6780/74 and 6950/75, Report, para. 354, had detailed material before it in regard to specific killings. It drew the conclusion that the whole evidence indicated that «killings happened on a larger scale than in Elia» (a location where Turkish soldiers, acting under the order of an officer, shot twelve civilians - para. 343 and 350). However,

«no express finding was made in respect of the disappearances of missing persons, though in view of the detailed evidence before it the Commission concluded that killings had happened on a larger scale that at Elia» (Kurt, at para. 187, commenting on Cyprus v. Turkey, but giving a reference to Application No. 8007/77).

When it came to Turkey`s O(M), it did not repeat the false allegation about the missing persons being killed in the coup. Indeed, no explanation at all was given as to the fate of missing persons, although, as indicated above, Mr. Denktash's statement had been transmitted on 1 March 1996, and that statement cried out to heaven for an explanation. The only reaction by the Respondent Government, in an Application in which she purports fully to be participating, is to say that the Committee of Missing Persons is a more appropriate investigatory body than the Commission and that the Applicant Government has no legal interest to pursue the question of missing persons.

235.In Applications Nos. 6780/74 and 6950/75, at para. 351, the Commission considered that

"There is a presumption of Turkish responsibility for the fate of persons shown to have been in Turkish custody."

The Commission then continued:

"However, on the basis of the material before it, the Commission has been unable to ascertain whether and under what circumstances, Greek Cypriot prisoners declared to be missing have been deprived of their lives."

This paragraph of Cyprus v. Turkey, Report, 10 July 1976, was relied upon in Kurt at para. 282. Kurt, taking account of the UN treaty jurisprudence on the International Covenant on Civil and Political Rights and on the regional jurisprudence of the Inter-American Court of Human Rights, built on para. 351, ruling that

"in order to discharge this responsibility, the Government must provide a credible and substantiated explanation of what has happened and show that they have taken effective steps to investigate the occurrence and ascertain the fate of the individual concerned" (ibid., para. 202).

236.The net effect of the first two Applications in Cyprus v. Turkey was thus to:

(a)Establish that there is a presumption of responsibility by a State for the fate of persons shown to have been in its custody; and

(b)Establish that in some cases there were killings on the basis of evidence of specific incidents, which led to the conclusion from the whole evidence that killings happened on a larger scale than in those specific incidents.[17]

(b)Cyprus v. Turkey, Application No. 8007/77, Report, 4 October 1983

237.The next developments in the jurisprudence were in Cyprus v. Turkey, Application No. 8007/77. In that case, the Applicant Government relied only on Article 5. At the hearing, it renounced its invocation in its Observations on the Merits of Article 2 of the Convention. In those Observations it had argued