General comments on the issue of missing persons

The tragic issue of missing persons is a humanitarian problem with human rights and international humanitarian law implications. It should be depoliticized and consequently should not be dependent on the political settlements of the conflicts concerned.
The clarification of the fate of missing persons requires the establishment of various mechanisms at various levels. Mechanisms should benefit from all relevant information and the cooperation of all involved should be ensured in this regard. Moreover, they should have access to archives of national and international organizations, including military contingents.
The right of family members to know the fate of their missing relatives, including their whereabouts and the circumstances and causes of their disappearance, and the correlative obligation to carry out an effective investigation into the circumstances surrounding a disappearance is provided by both international human rights law and international humanitarian law.
While focusing on the humanitarian dimension of missing persons in armed conflict, it is also necessary to bear in mind that cases of missing persons can sometimes constitute criminal offences, including war crimes or crimes against humanity. States should ensure effective investigation and prosecution of all human rights violations linked to missing persons.

Cyprus v. Turkey (Articles 2: right to life, Article 5: right to liberty and security and Article 3: prohibition of torture)
In the judgment of the ECHR Cyprus v. Turkey (10.5.2001) the Court examined the obligation of Turkey to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”. As the Court stated, this “requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by agents of the State...”.

“The Court cannot but note that the authorities of the respondent State have never undertaken any investigation into the claims made by the relatives of the missing persons that the latter had disappeared after being detained in circumstances in which there was real cause to fear for their welfare... No attempt was made to identify the names of the persons who were reportedly released from Turkish custody into the hands of Turkish-Cypriot paramilitaries or to inquire into the whereabouts of the places where the bodies were disposed of. It does not appear either that any official inquiry was made into the claim that Greek-Cypriot prisoners were transferred to Turkey.

The Court concludes that there has been a continuing violation of Article 2 on account of the failure of the authorities of the respondent State to conduct an effective investigation aimed at clarifying the whereabouts and fate of Greek-Cypriot missing persons who disappeared in life-threatening circumstances. “
“The Court stresses at the outset that the unacknowledged detention of an individual is a complete negation of the guarantees of liberty and security of the person contained in Article 5 of the Convention and a most grave violation of that Article. Having assumed control over a given individual, it is incumbent on the authorities to account for his or her whereabouts. It is for this reason that Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt and effective investigation into an arguable claim that a person has been taken into custody and has not been seen since...”

The Court refers to the irrefutable evidence that Greek Cypriots were held by Turkish or Turkish-Cypriot forces. There is no indication of any records having been kept of either the identities of those detained or the dates or location of their detention. From a humanitarian point of view, this failing cannot be excused with reference either to the fighting which took place at the relevant time or to the overall confused and tense state of affairs. Seen in terms of Article 5 of the Convention, the absence of such information has made it impossible to allay the concerns of the relatives of the missing persons about the latter’s fate. Notwithstanding the impossibility of naming those who were taken into custody, the respondent State should have made other inquiries with a view to accounting for the disappearances. As noted earlier, there has been no official reaction to new evidence that Greek-Cypriot missing persons were taken into Turkish custody.

The Court has addressed this allegation from the angle of the procedural requirements of Article 5 of the Convention and the obligations devolving on the respondent State as a Contracting Party to the Convention. The Court reiterated that those obligations cannot be discharged with reference to the nature of the CMP’s investigation.

The Court concluded that… …there has been a continuing violation of Article 5 of the Convention by virtue of the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts and fate of the missing Greek-Cypriot persons in respect of whom there is an arguable claim that they were in custody at the time they disappeared.
The Court observes that the Turkish authorities have failed to undertake any investigation into the circumstances surrounding the disappearance of the missing persons. In the absence of any information about their fate, the relatives of persons who went missing during the events of July and August 1974 were condemned to live in a prolonged state of acute anxiety which cannot be said to have been erased with the passage of time. The Court does not consider, in the circumstances of this case, that the fact that certain relatives may not have actually witnessed the detention of family members or complained about such to the authorities of the respondent State deprives them of victim status under Article 3. It recalls that the military operation resulted in a considerable loss of life, large-scale arrests and detentions and enforced separation of families. The overall context must still be vivid in the minds of the relatives of persons whose fate has never been accounted for by the authorities. They endure the agony of not knowing whether family members were killed in the conflict or are still in detention or, if detained, have since died. The fact that a very substantial number of Greek Cypriots had to seek refuge in the south coupled with the continuing division of Cyprus must be considered to constitute very serious obstacles to their quest for information. The provision of such information is the responsibility of the authorities of the respondent State. This responsibility has not been discharged. For the Court, the silence of the authorities of the respondent State in the face of the real concerns of the relatives of the missing persons attains a level of severity which can only be categorised as inhuman treatment within the meaning of Article 3.

Varnava and others v. Turkey
Irrespective of the reactivation of the CMP and while fully acknowledging its importance, the ECHR in the abovementioned decision (18.9.2009) upheld the findings of the interstate judgment, as concerns the limitations of the CMP and the continuous responsibility of Turkey to take the necessary steps towards effective investigations.
As the Court acknowledged in its judgment, … “it appears that on identification of remains the procedure is to issue a medical certificate of death, which in brief terms indicates the injuries noted as causing death… …There is however no report analysing the circumstances or even the dating of death. Nor have any investigative measures been taken to locate or question any witnesses in the area who could give information as to how Savvas Hadjipanteli and the others found with him in the mass grave came to meet their end and at whose hands. Thus, even though the location of the body of Savvas Hadjipanteli has been established it cannot be said, putting supposition and speculation aside, that any clear light has been shed as to how he met his fate.

The Court's case-law on the ambit of effective investigations is unambiguous. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. Even where there may be obstacles which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.

The Court found no indication that the CMP is going beyond its limited terms of reference to play any role in determining the facts surrounding the deaths of the missing persons who have been identified or in collecting or assessing evidence with a view to holding any perpetrators of unlawful violence to account in a criminal prosecution.
By way of example, the Court recalled that in the context of Northern Ireland the authorities have provided for investigative bodies (variously, the Serious Crimes Review Team and Historical Enquiry Team) to review the files on past sectarian murders and unsolved killings and to assess the availability of any new evidence and the feasibility of further investigative measures… …It cannot therefore be said that there is nothing further that could be done.

The Court concluded that there has been a continuing violation of Article 2 on account of the failure of the respondent State to provide for an effective investigation aimed at clarifying the fate of the nine men who went missing in 1974.

As regards the particular burden on the relatives of missing persons who are kept in ignorance of the fate of their loved ones and suffer the anguish of uncertainty, the Court recognized once again that the situation of the relatives discloses inhuman and degrading treatment contrary to Article 3 of the Convention. Hence, the Court found no basis on which it could differ from the findings of the interstate in the present case. “The length of time over which the ordeal of the relatives has been dragged out and the attitude of official indifference in face of their acute anxiety to know the fate of their close family members discloses a situation attaining the requisite level of severity. There has, accordingly, been a breach of Article 3 in respect of the applicants.”