Varnava and Others v. Turkey
Key Judgment
Legal Relevance
Keywords: Burden of Proof | Admissibility | Statute of Limitations | Relatives as Victims | Right to Know the Truth | State/Non-State Agents | Effective Remedy | Duty to Investigate | Duty to Prosecute | Extraterritorial Jurisdiction | Reparations | Evidence
Themes: Justice and Truth | Related Crimes | Characteristics of the Crime
The Court confirmed that the procedural obligation to investigate under Article 2 has a distinct scope of application from its substantive limb. The Court emphasized the difference between killings and disappearances in relation to the procedural obligation to investigate violations of the right to life, finding that a disappearance is characterised by an ongoing situation of uncertainty and unaccountability in which there is a lack of information or even a deliberate concealment of what has occurred, resulting in a continuing violation which is prolonging the torment of the victim’s relatives. For this reason, the Court held that the procedural obligation to investigate remains even in cases where the long time elapsed without any news of the missing persons provides strong evidence that they can be deemed dead. It added that the obligation to account for the disappearance and death, and to identify and prosecute the perpetrators remains even after the discovery of the body or the presumption of death.
The Court also found that, because of the serious nature of disappearances, the standard for how quickly the relatives of disappeared persons are expected to bring a complaint before the Court cannot be too rigorous. It found that allowances must be made for the uncertainty and confusion which frequently mark the aftermath of a disappearance, especially in situations of international conflict where no normal investigative procedures are available. The Court added that in a situation of international armed conflict the right to life must be interpreted in light of the rules of international humanitarian law. The Court also made a finding of inhuman treatment of the relatives of the disappeared persons due to length of time during which they were met with an attitude of official indifference, which meant their situation attained the requisite level of severity. Finally, the Court made a finding of a continuing violation of the right to liberty and security with respect only to the victims who were last seen in the control of the Turkish or Turkish Cypriot forces, finding no sufficient evidence to establish the same in relation to the other victims.
Judgment Date
September 18, 2009
Country
Turkey
Judicial Body
European Court of Human Rights
Articles violated
Article 2 (procedural) [ECHR], Article 3 [ECHR], Article 5 [ECHR]
Articles not violated / not dealt with
Article 4 [ECHR]
Facts of the Case
At the time of their disappearance, in 1974, eight of the nine victims were serving in the Cypriot military forces. They went missing in July and August 1974, in the context of a number of attacks launched by Turkish military forces against the areas controlled by Cypriot forces, which resulted in the occupation of such areas. According to several witnesses, many of them were then detained in prisons in Turkey. Some of them were also recognised by family members in photographs showing Cypriot prisoners being held in Turkey. Two of the victims were registered in ICRC's documents as having been seen in the hands of Turkish soldiers. The ninth victim was driven out of his village by Turkish soldiers in August 1974. In the following days, he was reportedly seen by ICRC delegates in a Turkish-occupied area of Nicosia. His remains were discovered in 2007 in a mass grave within the area of the “Turkish Republic of Northern Cyprus”.