1. Mr. President and members of the Court, I will now present the submissions of the Government on the issue of the Greek Cypriot missing persons. This complaint was considered by the Commission in Part Two, Chapter 1 of its Report, and, subject to the points which I shall seek to develop before the Court in due course, the Government respectfully endorses the findings of the Commission.

2. Our complaint concerns both the rights of the missing persons themselves and their families. As far as the second leg of the complaint, namely the continuing abuse of the rights of the families is concerned, I am sure that the Court shares the sentiments of the Commission which expressed itself at paragraph 233 of its Report as follows:

“In the present case, the relatives of the missing persons have been left without any information about the latter’s fate for a period of 25 years. In view of the circumstances in which these persons disappeared following a military intervention during which many persons were killed or taken prisoner and where the area on which the disappearances took place was subsequently sealed off and became inaccessible to the relatives, the latter must no doubt have suffered the most painful uncertainty and anxiety. While their state of distress was most acute in the first period after the 1974 events, it has not vanished with the passing of time.”

3. This complaint concerns facts which it is hard to believe would have occurred within Europe in the late twentieth century, namely the wholly unaccounted disappearance of hundreds of human beings 1486 to be exact from an area subject to the supervision of the Council of Europe. This is the number of Greek Cypriots, seen alive either in Turkish custody or in the Turkish-occupied area after Turkey invaded Cyprus on 20 July 1974. These people are still missing and, despite the repeated Reports of the Commission on this issue, Turkey has still failed to conduct any form of inquiry or investigation as to the fate of these persons.

4. Briefly, the events established by the evidence show that:

(a) in various villages, for example, Ashia, Voni/Neo Chorio Kythreas, Komi Kepir/Livadi/Ghalatia, Vitsada/Gypsou, Eptakomi/Ghalatia, Gypsou again, Ayia Trias (Karpas area), Turkey’s systematic practice was to separate women and children from men. Many of the men thus separated from the women and children disappeared following such separations.

(b) The evidence, at the same time, establishes the active involvement in these practices of Turkish soldiers, and I refer the Court to the following evidence in Volume 1 of the Appendices to Cyprus’s 1997 Observations, namely, the statements of Zachariadou [pp.61-63], Demou [pp.72-74], Pavlou Solomi [pp.45-56], Loizou [pp.57-60], Yiannakka [pp.78-79] and Karayianni [pp.75-77]. In respect of Ayia Trias (Karpas area), we have the statement of witness Kaoudjani in the same Volume [pp.66-69]. In accordance with her evidence, many of the men were transported to Pavlides garage (known from the Dillon Report, see para.10.(c) below) in Nicosia. It is a well-known fact that many of those gathered from various parts of occupied Cyprus at Pavlides garage eventually disappeared.

5. These incidents prove by themselves the involvement of Turkey. Her soldiers and those under her orders were involved in the gathering, the taking and the separation of the prisoners. At the time these events occurred, the whole area, as the Loizidou case pronounces, was in Turkey’s jurisdiction. Further, it is a well-known fact that many of the people at Pavlides garage were shipped to and detained in Turkey - another factor that militates against the latter.

6. But there are also other categories of missing persons to which I would like to draw your attention:

(a) Many were prisoners of war or rounded up younger civilians, seen alive in Turkish custody, but not released in prisoner exchanges.

(b) Another category was soldiers last seen as their comrades retreated. They were in areas where the Turkish mainland army was advancing or which it quickly encircled.

(c) The last category is civilians who stayed to care for their properties.

7. Our Memorial, with its map and tables [see pages 72 and 145-150] shows that the disappearances of the missing persons are related to Turkey?s expanding control in northern Cyprus.

8. I shall now briefly summarise the previous decisions of the Commission on missing persons:

(a) In 1976 and 1983 the Commission investigated this matter. Its 1976 Report [paras. 353 to 4] concluded that killings had happened on a large scale, finding specifically that at Elia 12 civilians were killed by Turkish soldiers commanded by an officer. The Commission accepted that:

"’a considerable number of Cypriots’ were still ‘missing as a result of armed conflict in Cyprus’ and that ‘a number of persons declared to be missing, have been identified as Greek Cypriots taken prisoner by the Turkish army’." [1976 Report, § 349].

(b) In 1983, the Commission held that, in an indefinite number of cases, missing Greek Cypriots had been in Turkish custody in 1974, creating a presumption of Turkish responsibility for their fate. [1983 Report, §117]

9. Since those earlier decisions, crucial new facts have emerged from 4 sources. Two are from the Turkish side, the third from an independent authoritative source (the Dillon Commission) and the fourth is witness testimony.

10. I summarise these new facts as follows:

First, on 1 March 1996, the head of Turkey’s subordinate local administration, Mr. Denktash, broadcast a statement admitting that the Turkish Army handed over Greek Cypriot prisoners to Turkish Cypriot fighters [under Turkish officers’ command] "who killed them" [Cyprus’s 1998 Observations, pages 95 to 96]. The number and identity of these prisoners were never revealed.

Following that statement, once again complete silence and inactivity ensued. There was never any inquiry. Questions that were naturally asked remained unanswered. How many were those actually killed, as stated by Mr. Denktash? Who exactly were the persons killed? Now, let us attempt to put ourselves in the shoes of the close relatives of the missing. Now, they realise that some of the missing, if Mr. Denktash was telling the truth, have been killed. But each one of them is not in a position to know whether his own relative is among those who had been killed. Therefore, the effect of this statement was to aggravate the suffering of the relatives of these prisoners rather than alleviate such suffering.

Second, in February 1998, a Turkish officer in 1974, Professor Kucuk, asserted that the Turkish Army engaged in wide-spread killings of civilians in so-called cleansing-up operations [1998 Observations, pages 97 to 98].

Third, in June 1998, the Dillon Report to the United States Congress reported that the Turkish Army and Turkish Cypriot paramilitaries were co-operating in detaining Greek Cypriots, whether civilians or members of the National Guard. The paramilitaries then killed them. The Turkish Army, in command, took no investigatory action. When the Dillon Commission enquired, Turkey’s local administration (in the Commission’s own words) pretended that the identities of local commanders in the Asha area, where there were killings, were unknown [Dillon Report, § 157].

Fourth, new witness statements about Turkish rounding up of Greek Cypriot civilians and soldiers were submitted. [These are summarised in our Memorial §§ 358-363, and appear in Vol. I, pp. 30 to 86 of the Appendices to our February 1997 Observations.]

B. RESPONSIBILITY

11. Turning now to the question of Turkey’s responsibility under the Convention, I submit that substantial evidence clearly establishes that the missing persons were either detained by, or in custody, or under the actual authority and responsibility of the Turkish Army, the areas where they were last seen being under the effective control of Turkey. [Observations on the Merits, February 1997, pages 60 to 64 and Memorial, pp. 71 to 73 and 145 to 150.]

12. All of the individuals who went missing did so in areas where there was an established pattern of extensive killings and ill-treatment by the Turkish Army and militias. The disappearances are so wide-spread that it is clear there was a practice of "disappearances". It is beyond question that whether persons were detained or not, the circumstances were such as to create a positive duty to take (and I quote) "preventive operational measures" to protect individuals whose lives were at risk. I use here the words of this Court in the case of Osman § 115. All were in life-threatening circumstances known to, indeed created by, Turkey.

13. The violations of which complaint is made were not fixed in time in 1974. That is when they began, but they continue to this day. In interpreting the Convention, we submit that the principles of international law give important guidance. International law is violated if a State practices or condones the murder or the causing of disappearances of individuals. The United Nations Declaration on the Protection of All Persons from Enforced Disappearances [GA Resolution 47/133, Articles 13 and 17] is specially relevant to the continuing breaches involved. [See also our Memorial §§ 350-354.]

14. So long as the fate of the missing persons is uncertain and not investigated, the violations [both of Articles 2 and 5] are continuing. In this regard, Cyprus adopts § 207 and § 223 of the Report of the Commission [and refers the Court to our 1998 Observations, pp. 140-148.]

15. Aside from this violation, Turkey also has a continuing duty to protect the lives of such persons as are not dead and are known to have been subject, when last seen, to life-threatening circumstances. Greek Cypriots in the occupied area, unless detained and put on official lists, were clearly in such circumstances. In this regard, I remind the Court that the Dillon Report quotes the International Committee of the Red Cross as saying "they were never given an official or complete list of prisoners by Turkish authorities". [Dillon Report, Annex C, p. 26]. Only those on official lists were relatively safe.

16. I shall now turn briefly to summarise the Government’s position in relation to the individual Articles which we contend have been violated.

ARTICLE 2

17. Under Article 2 there are both procedural and substantive duties:

(a) Turning to the procedural aspect. The procedural duty of prompt and effective investigation is beyond doubt in the jurisprudence of this Court. That duty applies not only where a body is found or complaint of a killing is made, but [according to the Commission Report § 218] where a person’s life might have been interfered with. Moreover, the duty to investigate is not confined to cases of killing or attacks by agents of the State. The State cannot acquiesce in or tolerate enforced disappearances. [The full argument is in our 1998 Observations, pages 129-137.] Thus, the Commission rightly concluded that there was a continuing obligation to investigate

"since the missing persons might have lost their lives as a result of unprescribable crimes". [Report § 223]

Turkey has not conducted either a prompt, or an efficient, investigation. Turkey’s duty cannot be discharged through the Committee on Missing Persons, a body which in any event does not function due to a pre-condition imposed by her local administration. In any event, the Committee’s scope of investigation is too limited to satisfy Article 2?s requirement of effectiveness [Report § 234].

(b) In respect of other procedural aspects of Turkey’s duties under the Convention, the Geneva Conventions, now customary international law, are important guides. There is no evidence of searching for wounded and dead; of obtaining information about the dead; of burial; of giving notification of detention of all prisoners and detainees; and of a prohibition on transfer to insurgent forces. Indeed, there is evidence to the contrary. The Court’s judgments [Kilic § 17 and § 31 and Kaya § 89] suggest that, at minimum, operational mechanisms of protection and the obtaining of details in investigation, similar to the requirements of the Prisoners of War Convention, ought to have been in place to accord protection.

(c) As to the substantive aspect, the case against Turkey is simple and irrefutable: Turkey has failed to observe the substantive duty to protect life by applying the necessary, indeed internationally required, operational protective measures.

ARTICLE 3

18 . As regards Article 3 and the missing persons’ relatives, Cyprus adopts the Commission’s reasoning [at §§ 230-234]. I add, that the anguish and suffering of missing persons’ relatives is made even more intense by their being aware that there are people who do know what has happened to their missing husbands, sons and brothers or sisters. They realise such persons will not reveal what they know, whether from fear of self-incrimination or out of contempt or hatred for Greek Cypriots. Turkey’s local administration officials were even "pretending" to the Dillon Commission that identities of the Asha area TMT commanders were unknown. Moreover, the Commission

"was not able to secure the co-operation of either the Turkish military in Cyprus or former elements of the TMT" [p. 18, 2nd para.]

Provoking such desperate frustration and helplessness in relatives by way of total refusal of information makes this continuing treatment inhuman.

ARTICLE 5

19. Cyprus submits [as the Commission found in 1983, at §117] that a large but indefinite number of missing Greek Cypriots were detained and Turkey remains presumptively responsible for their fate. Two categories of Article 5 violations result from this responsibility.

First, her procedural obligation to conduct a prompt effective investigation has not been met [as explained, mutatis mutandis, in relation to Article 2 in my earlier submissions].

Second, Turkey had and has obligations to take effective measures to safeguard against the risk of disappearances [?akici § 104]. There is no evidence that accurate holding data was recorded. This is necessary for detention to be compatible with Article 5?s requirement of lawfulness. Nor did she comply with the relevant binding provisions of the Geneva Conventions.

20. Thus, Turkey has, as a matter of practice, violated Article 5 by

(a) lack of a prompt, effective investigation into arguable claims that missing persons were detained, and

(b) by unlawful detention due to failure to keep accurate and reliable records of detention, which are a necessary pre-condition to lawful detention.

ARTICLE 4

21. I turn now to Article 4 affecting the missing persons themselves on which the Commission in 1999 did not find violations.

22. As already emphasised, in 1983 the Commission held there was a presumption of Turkish responsibility for the fate of the indefinite number of missing persons who had been in Turkish custody in 1974.

23. The Commission not having found them dead, Turkey had a continuing responsibility to secure their rights. Any persons alive (and many would only be in their mid-forties) would be being kept in conditions of servitude. We submit that unless disproved by Turkey, prevailing administrative practices are presumed to have continued. She has adduced no evidence of safeguarding operational practices. To hold persons for so long must be detention in conditions of servitude.

24. Only if the Court finds such proven missing persons are dead (so are not in detention and servitude) is Article 4 inapplicable. However, it should then inevitably find a fundamental violation of Article 2 for the continuing failure to protect the lives of such missing persons until the time of their deaths. There is an "either or situation". Either Articles 5 and 4 are violated if the missing persons are alive. Or Article 2 has been violated if they are dead.

25. I have confined my remarks to Articles 2, 3, 4 and 5, violations of two non-derogable and two fundamental Articles. Of course, other important Articles were also necessarily violated on the facts and issues brought at the outset before the Commission, [conclusions summarised on pp. 159 to 160 of our 1998 Observations]. At all events, I submit that the continuing violation of the Convention in respect of missing persons, and the continuing suffering of their families, requires the strongest of pronouncements by the European Court of Human Rights to ensure that measures are taken to resolve this tragic situation.

For further reading: