Preliminary objections dismissed (substantially the same, disappearance of object of proceedings, ratione temporis, six month period);Violation of Art. 2 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5;No violation of Art. 5;Non-pecuniary damage - award

Anatoly Kovler;Dean Spielmann;Françoise Tulkens;Gönül Erönen;Ineta Ziemele;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Päivi Hirvelä;Sverre Erik Jebens;Vladimiro Zagrebelsky;Zdravka Kalaydjieva

The complaints raised in this application arise out of the Turkish military operations in northern Cyprus in July and August 1974 and the continuing division of the territory of Cyprus. These events gave rise to four applications by the Government of Cyprus against the respondent State, which have led to various findings of violations of the Convention. The history is set out in the Court’s judgment in Cyprus v. Turkey ([GC], no. 25781/94, §§ 13-18, ECHR 2001IV; hereinafter “the fourth inter-State case”) and the Court sees no reason for repetition.

The facts are disputed by the parties. The Court notes that the summary of their versions of events given in the Chamber judgment have not been; these are in large part reproduced below, with the addition of some new information submitted by the parties and identified as such in the text.

The first applicant, an ironmonger, was born in 1947; he has been considered missing since 1974. His wife, the second applicant, was born in 1949 and resided in Lymbia.

In July 1974 the first applicant, responding to the declared general mobilisation, enlisted as a reservist in the 305 Reservists Battalion which had its headquarters in Dhali village. On 8 to 9 August 1974 the reserve soldiers of the 305 Reservists Battalion, among them the applicant, took up the manning of Cypriot outposts along the front line opposite the Turkish military forces which extended between Mia Milia and Koutsovendis.

On the morning of 14 August 1974, Turkish military forces, supported by tanks and air cover, launched an attack against the Cypriot area where the applicant and his battalion were serving. The Cypriot line of defence was broken and the Turkish military forces began advancing towards the area of Mia Milia; the Cypriot forces began retreating and dispersed in all directions. After a while the area was captured by the Turkish military forces and the applicant was trapped within. There has been no trace of the applicant since.

Mr Christakis Ioannou of Pano Dhikomo and now of Stavros Refugee Camp Strovolos, who had been a prisoner of the Turkish military forces and/or the Turkish authorities, stated that at Adana Prison in Turkey, where he had been taken on 31 August 1974, there were another forty persons in the same room for three to four days. Among them was the applicant. After the said period they were split up and he had not seen the applicant since.

The first applicant, a student, was born in 1954; he has been considered missing since 1974. His father, the second applicant, was born in 1907 and resided in Nicosia.

In July 1974 the first applicant was serving as a second lieutenant in the 1st Company of the 256 Infantry Battalion stationed at Xeros. On about 30 July 1974 the battalion moved to the Lapithos area. The soldiers were split up into various groups; the applicant’s group, consisting of ten men, was ordered to take up positions on the Lapithos heights.

On 5 August 1974 Turkish forces launched a strong attack from all sides against the Cypriot forces’ positions while other Turkish troops managed to encircle Lapithos. Owing to the Turkish superiority in men and weapons the Cypriot forces were ordered to retreat towards the centre of the village to the company base. The applicant arrived there with his men and was informed by the inhabitants that Lapithos was surrounded by Turkish troops. They hid their weapons in an orchard and put on civilian clothing. The same afternoon the applicant and others attempted unsuccessfully to break through the Turkish lines. They then returned to Lapithos where they spent the night. At about 9 a.m. on 6 August 1974 Turkish troops entered Lapithos and started extensive house-to-house searches. The applicant and his comrades were warned by the villagers and they dispersed in order to avoid capture. Since then, none of the members of the group has seen the applicant.

Nicos Th. Tampas of the 256 Infantry Battalion, also on the Lapithos heights on 5 August 1974, mentioned in a statement that at approximately 9 p.m. on 6 August 1974 he entered a warehouse in the village where he found the applicant looking after a wounded man. After talking with the applicant, he left. That was the last time that he saw the applicant. He was himself arrested by the Turks on 9 August 1974 in Lapithos, detained in various prisons in Cyprus and Turkey and released on 22 October 1974.

Christodoulos Panyi of Vatyli, now of Strovolos, in his statement declared that while he was a prisoner in Adana Prison he saw and recognised the applicant, whom he had previously met.

The first applicant, a student, was born in 1954; he has been considered missing since 1974. His father, the second applicant, was born in 1929 and resided in Nicosia.

In July 1973 the first applicant enlisted to do his national service. He was posted to the 70 Engineers Battalion. On 5 August 1974, a section of the battalion, including the applicant, was sent on a mission in the Lapithos and Karavas area (Kyrenia district). The men spent the night at Lapithos and intended to complete the mission the following morning.

At about 4.30 a.m. on 6 August 1974 the Turkish Army launched a fullscale attack from all sides in the Karavas and Lapithos area. The applicant’s group leader ordered his men to split up into three groups and to withdraw towards Vasilia (also in the Kyrenia district). The applicant was in one of the groups which intended to withdraw by following a route along the coast.

The men first reached the main NicosiaKyrenia road near the “Airkotissa” restaurant. While resting, they heard shouting and the group leader sent the applicant and another soldier to investigate. As they had not returned after about fifteen minutes the remainder of the group left for Panagra (also in the Kyrenia district). On their way, they were ambushed by Turkish soldiers and the remaining group dispersed.

Costas A. Sophocleous, of Nicosia, stated that, when he was a prisoner in Turkey from 30 July until 28 October 1974, he had met the applicant. They were in the same prison in Turkey and were subsequently transferred to Cyprus, at which point he had been released but not the applicant.

Alexandros Papamichael, of Limassol, stated that he recognised the first applicant from a photograph that was shown to him by the second applicant and he had been with him in Adana Prison.

Finally, the second applicant mentioned in a signed statement that he identified his missing son in a photograph published in Athinaiki, a Greek newspaper, on 28 September 1974. In this photograph Greek Cypriot prisoners were shown on a boat en route to Turkey.

The first applicant, a photographer, was born in 1953; he has been considered missing since 1974. His mother, the second applicant, was born in 1914 and resided in Nicosia.

On 20 July 1974 the first applicant enlisted as a reservist. He was posted to the 1st Company of the 301 Infantry Battalion. On 22 July the whole battalion was ordered to move on the following day to the area of Ayios Ermolaos. The 1st Company took up defensive positions at a height called “Kalambaki”, near the Turkish Cypriot village of Pileri.

At about 4.30 a.m. on 26 July 1974 the 1st Company came under attack from the Turkish Cypriot villages of KriniPileri. The Turkish military forces consisted of a paratroop battalion, twenty tanks and high-angle guns. They succeeded in breaking through the Cypriot lines and infiltrated the right flank of the 1st Company in order to encircle it. The commander ordered the company to regroup at the village of Sysklepos; from there they were ordered to regroup at Kontemenos, where they arrived at about 3 p.m. After a roll call they found out that six soldiers of the 1st Company were absent, including the applicant. The area in which the 1st Company had been initially stationed was captured by the Turkish military forces.

Mr Nicos Nicolaou of Strovolos, who was a prisoner at Adana in September 1974, stated that one day he heard a Turk calling the applicant’s name. He also saw the applicant whom he happened to know previously and noticed that he was lame in one leg. On 11 September 1974 Mr Nicolaou was taken to Antiyama Prison in Turkey and he had not seen the applicant since.

The first applicant, a student, was born in 1955; he has been considered missing since 1974. His mother, the second applicant, was born in 1935 and resided in Limassol.

In 1972 the first applicant enlisted in the National Guard to do his military service.

On 23 July 1974 the applicant’s father was informed by Andreas Komodromos that the applicant had left Synchari with the men of the Headquarters Company and had gone to Aglandjia.

On 24 July 1974 Nikiforos Kominis with seventeen soldiers, including the applicant, set out from Aglandjia in two vehicles to reconnoitre the ground of the Koutsovendis-Vounos area. Three buses were seen driving along a street from the direction of Vounos village. An officer by the name of Votas ordered three or four soldiers to search the buses. The buses were full of Turkish soldiers who started firing at the Greek Cypriot men. The applicant was wounded in the right hand and on the left side of his ribs. Mr Andreas Komodromos cleaned his wounds with water, loaded his gun and told him to go back. After that the applicant was not seen again by his unit.

According to the statement of Yiannis Melissis, who had been a prisoner of the Turks at Adana and Amasia in September 1974, he happened to meet the applicant during his captivity. They both stayed with others in cell no. 9 until 18 September. They had chatted together every day and became friends. On 18 September Yiannis Melissis was brought back to Cyprus and was released on 21 September 1974. The applicant had given him a letter to pass on to his father but he left it in his pocket when he changed his clothes. All the clothes belonging to the prisoners were burned.

The second applicant in her statement mentioned that she had recognised her son in a photograph that was published in the Greek newspaper Athinaiki on 28 September 1974 and showed Cypriot prisoners being transported to Turkey on a Turkish destroyer in July 1974.

The first applicant, a car mechanic, was born in 1951; he has been considered missing since 1974. His father, the second applicant, was born in 1921 and resided in Strovolos.

In July 1974, in response to the general mobilisation, the first applicant enlisted as a reserve sergeant in the Headquarters Company of the 251 Infantry Battalion.

On 20 July 1974, all the men of the Headquarters Company, including the applicant, were trying to prevent the Turkish landing which was taking place in the area of “Pikro Nero”, Kyrenia. At around 12 noon on 21 July the Turkish military forces which had landed, supported by tanks and air cover, attacked the Cypriot forces that were defending the area. Owing to the superiority of the Turkish military forces in men and weapons the 251 Infantry Battalion was ordered to retreat towards Trimithi village. The applicant was present during the regrouping of the battalion. Two hours after the regrouping the commander of the battalion led his men out of Trimithi village, reaching a ravine between the villages of Ayios Georghios and Templos where they took up battle positions. A number of commandos of the 33rd Battalion arrived in the same ravine. At around 3 p.m. on 22 July 1974, Turkish military forces surrounded the Cypriot forces in the ravine and opened fire. The commander ordered a counterattack intending to break the Turkish military forces’ lines and retreat towards Kyrenia. No trace of the applicant was found during the counter-attack and retreat.

On 4 September 1974 the Special News Bulletin – a daily communication by the Turkish Cypriot administration – published a photograph of Greek Cypriot prisoners of war under the caption “Greek Cypriot prisoners of war having their lunch. Yesterday they were visited by a representative of the Turkish Red Crescent”. In that photograph the first applicant was identified by the second applicant.

A former prisoner, Mr Efstathios Selefcou, of Elio, now at Eylenja, in a signed statement to the Cypriot police said that during his transportation from Cyprus to Turkey he saw and talked to the first applicant, whom he knew very well since they had attended the same secondary school.

The first applicant, a bank employee, was born in 1938 and lived at Yialousa; he has been considered missing since 1974. His wife, the second applicant, was born in 1938 and resided in Nicosia.

On 18 August 1974 about three or four saloon cars, a bus and two tanks, all full of Turkish and Turkish Cypriot soldiers, turned up at Yialousa and stopped near the police station. The soldiers got out and ordered everyone to assemble at the nearby coffee house. About thirty-five persons gathered there. A Turkish officer told them that from that time they would be under Turkish administration and ordered them to make a census of the Greek Cypriot inhabitants of the village from the age of 7 to 70 and that he would be back on the following day to collect the lists. On the following day, the same civilian and military vehicles (tanks) returned. A number of Turks got out, marched to the coffee house and asked for the lists. Another group of Turkish soldiers was carrying out a house-to-house search. They imposed a curfew and, having taken the lists, they took with them for questioning nine persons, including the first applicant. They put them on a bus and drove them outside the village in the direction of Famagusta.

On the same day, Yialousa was visited by United Nations men to whom the arrest of the nine Greek Cypriots was reported by their co-villagers.

According to the applicants, representatives of the International Committee of the Red Cross (“the ICRC”) in Cyprus visited Pavlides Garage in the Turkish-occupied sector of Nicosia and on 28 August 1974 recorded the names of twenty Greek Cypriots held there, including the nine persons from Yialousa (they cited document EZY284D). Costas M. Kaniou, Sofronios Mantis and Ioannis D. Constantis also saw the said detainees at the Pavlides Garage, during the same period that they were detained there; they were released later.

On 27 August 1974 a group of Turkish Cypriot civilians came to Yialousa looking for Pentelis Pantelides, Loizos Pallaris, Michael Sergides and Christakis Panayides. Having found them, they led them to the Savings Bank. After having emptied two safes they ordered that the third one should be opened, but they were told that the keys were with the applicant. Subsequently they left, having shut and sealed the outside door. After ten to twelve days the same group looked for the same persons and went again to the bank building. They had the two keys for the safe, which the applicant always carried with him. Loizos Pallaris opened the safe. The keys were in a leather case which the applicant used to carry, but his personal keys had been removed. The Turkish Cypriots took the contents of the safe, sealed the gate and left.

The first applicant, a moulder, was born in 1955; he has been considered missing since 1974. His father, the second applicant, was born in 1928 and resided in Strovolos.

In 1974 the first applicant was doing his national service in the 70 Engineers Battalion stationed in Nicosia. On 5 August 1974 a section of the battalion, including the applicant, was sent on a mission in the Karavas and Lapithos area. The men spent the night at Lapithos and intended to complete their mission the following morning. At about 4.30 a.m. on 6 August 1974 the Turkish military forces launched a fullscale attack from all sides in the area of Karavas and Lapithos. The commander ordered his men to split up into three groups, withdraw towards Vasilia and meet there. On their way they were ambushed by the Turkish military forces and in the confusion dispersed.

Later Mr Costas Themistocleous of Omorphita, now of Nicosia, who was a prisoner at Adana Prison, saw there the applicant, whom he had known from his childhood; this was on or about 17 October 1974, while he was about to return to Cyprus. They did not speak to each other but waved.

The first applicant was born in 1947; he has been considered missing since 1974. His wife, the second applicant, was born in 1949 and resided in Limassol.

On 20 July 1974, following the general mobilisation, the first applicant enlisted as a reservist in the 399 Infantry Battalion. He was put in the Support Company. On 22 July the battalion moved to the Mia Milia area to reinforce the Greek Cypriot forces and to man outposts on the front line.

On the morning of 14 August 1974 Turkish military forces, supported by tanks and air cover, launched a heavy attack against the Greek Cypriot forces in the area, where the applicant was with his battalion. Owing to the superiority of the Turkish military forces the Greek Cypriot defence line was broken, the Turkish military forces advanced towards the Mia Milia area, and the Greek Cypriot forces began to retreat. The area was, in a short period of time, occupied by the Turkish military forces and the applicant was trapped within. No trace of the applicant has been found since.

An ex-prisoner of war, Mr Costas Mena of Palaekythro, now at Korakou, stated that during his detention at Antiyama Prison in Turkey he had seen the applicant, who was detained in cell no. 9. On 18 October 1974 all the prisoners at Antiyama Prison were taken to Adana Prison. There they were all lined up in four rows. A Turkish military officer picked out some of the prisoners, including the applicant, who were taken away. Mr Mena had not seen the applicant since.

The respondent Government disputed that the applicants had been taken into captivity by the Turkish army during the military action in Cyprus in 1974. They considered that the inevitable conclusion from the information provided in the application forms was that all the alleged “missing persons”, except Savvas Hadjipanteli, were military personnel who died in action during the period July to August 1974.

The respondent Government noted that, since the introduction of these applications, files relating to the same “missing persons” had been submitted by the Government of Cyprus to the United Nations Committee on Missing Persons (“the CMP”) in Cyprus during 1994 and 1995. In these files there were no assertions that these people had been seen in any of the prisons in Turkey. The names of the alleged witnesses listed in applications nos. 16064/90 (Christakis Ioannou), 16065/90 (Christodoulos Panyi), 16066/90 (Costas A. Sophocleous), 16068/90 (Nicos Nicolaou), 16069/90 (Yiannis Melissis), 16070/90 (Efstathios Selefcou), 16072/90 (Costas Themistocleous) and 16073/90 (Costas Mena) were not cited in support. The alleged sightings were therefore without foundation.

As regards Savvas Hadjipanteli (no. 16071/90), who was a civilian, the respondent Government noted that the ICRC had visited the Pavlides Garage where he had allegedly been held but his name, contrary to the applicants’ assertion, did not appear in the list of Greek Cypriots held. In any event, it was a transit centre where people were not held for more than a few days before being released or moved elsewhere. In the file submitted to the CMP, there was only a reference to witnesses seeing the key case which he was alleged to always carry on his person. The materials of the ICRC, who paid regular visits to prisoners and internees in Turkey, also showed that none of the alleged missing persons had been brought to Turkey or detained. All prisoners that had been taken to Turkey were repatriated between 16 September 1974 and 28 October 1974 and lists of those concerned had been handed over to the Greek Cypriot authorities.

As concerned the alleged identification of the missing persons in photographs, the Government pointed out that a scientific investigation of certain published photographs and documentary film had been carried out by Professor Pierre A. Margot of the Institute of Forensic Science and Criminology of the Law Faculty of the University of Lausanne at the request of the third member of the CMP. This had shown that it was extremely dubious that anyone could be identified from these documents and that any alleged identification by relatives was unreliable given the quality of the material and their emotional feelings.

The Government of Cyprus submitted that the first applicants went missing in areas under the control of the Turkish forces.

These two applicants had been brought with their units to the area of Mia Milia to man Cypriot outposts along the front line. On 14 August 1974 Turkish armed forces launched the attack which gained them control over the whole of northern and eastern Cyprus by 16 August 1974. When the Turkish forces broke through the Cypriot line of defence and advanced on Mia Milia, the Cypriot forces retreated and dispersed in all directions. The Turkish forces rapidly gained control of the entire surrounding area. Many Greek Cypriot soldiers, including the two applicants, were hemmed in and completely surrounded. They could not have escaped as the intervening Government would have known of their fate.

This applicant was in charge of the soldiers who were defending Lapithos. After the Turkish forces encircled Lapithos, the Greek Cypriot forces were ordered to retreat. The applicant’s group put on civilian clothing and unsuccessfully tried to break out of the village. When the Turkish forces entered the village the next morning, the applicant’s group dispersed to avoid capture. At about 9 p.m. on 6 August 1974, the applicant was seen by Nicos Th. Tampas in a warehouse tending a soldier with a head injury. Mr Tampas was later captured and detained. His was the last reported sighting of the first applicant. It was most likely that the first applicant had remained with the injured man and was taken into detention by the Turkish forces who were in control of the entire area. Only one man was known to have escaped from the village and he, unlike the first applicant, had local knowledge of the terrain.

Under attack from the Turkish army, the first applicant’s unit was ordered to split into three groups and withdraw westwards. The applicant’s group reached the Nicosia-Kyrenia road, 200 metres from the “Airkotissa” restaurant. The applicant and another man were sent to investigate shouting coming from the restaurant. After fifteen minutes when they did not return, the group left for Panagra. At the time that the applicant and the other soldier were sent to the restaurant, there were Turkish forces in the area. The most plausible explanation for the two men not returning, in the absence of any sound of fighting or shooting, was that they had been detained, either to prevent them giving away the Turkish positions, for information or as prisoners of war.

On 26 July 1974 the first applicant was discovered to be missing from his unit at roll call after they had broken through encircling Turkish forces. The area in which his unit had been stationed was captured by Turkish forces. Whatever happened to the applicant afterwards occurred in an area controlled by the Turkish forces.

This applicant was seen wounded in his right hand and on the left side of his ribcage after a clash between Greek Cypriot forces and three buses full of Turkish soldiers coming from Vounos village. His wounds were cleaned by a witness named Komodromos and he was told to make his way uphill with two other men, one of whom was also injured, to the monastery where the Greek Cypriot forces were. The other two men were discovered dead two days later when the Turkish forces withdrew. It was clear that the applicant had either been found dead by the Turkish forces or, as was more likely, found and detained in an injured condition.

This applicant was among those attempting to prevent the invasion of Kyrenia. Some individuals were identified as killed in the operation; the applicant was not among them. The intervening Government had no evidence that this applicant was dead. It had to be assumed that the applicant had been detained alive.

This was further corroborated by the photograph published in the Special News Bulletin, issued daily by the Turkish Cypriot administration, on 4 September 1974, of Greek Cypriot prisoners of war having their lunch. The first applicant was identified at the time by his father, the second applicant.

In their observations before the Grand Chamber, the intervening Government provided a copy of a statement dated 31 July 1976 by Efstathios Selefcou taken by a police officer which stated that while being carried as a prisoner on a ship from Cyprus to Turkey he had seen and spoken briefly to Eleftherios Thoma, whom he knew from school. They also provided a copy of the ICRC Central Tracing Agency sheet (ref. no. EZG 14023/2) according to which Thoma had been sighted in a Turkish army hospital in Mintzeli in mid-October 1974. The intervening Government explained that they had not provided this information to the CMP as it had no mandate to investigate outside the territory of Cyprus and a policy decision had been taken when submitting documents to the CMP on 7 June 1994 not to antagonise Turkey whose cooperation was necessary if the CMP was to begin effective operation.

By 16 August 1974 Turkish forces were in control of northern and eastern Cyprus, including the Karpas peninsula where the first applicant worked as general cashier in the Savings Bank in Yialousa. On 18 August Turkish and Turkish Cypriot soldiers arrived in the village and a Turkish officer ordered a census of the Greek Cypriots between 7 and 70 years of age. The next day, the lists were handed over and Turkish soldiers carried out searches. They left, taking with them on a bus, nine individuals, including the first applicant. This was reported by fellow villagers.

Turkish Cypriots came to the village in the circumstances reported by the applicants (see paragraphs 54-57 above). They had the two keys for a safe, which the first applicant always carried with him. It was highly probable that the Turkish Cypriots had obtained the keys by informing those holding the first applicant, showing that he was alive and in detention for at least nine days. There was some evidence that he was detained after those nine days, at least until 28 August 1974, at Pavlides Garage.

The list of persons seen by the ICRC detained at Pavlides Garage on 28 August 1974 included Savvis Kalli, which was the name under which this first applicant had been recorded (the first name being misspelled and the surname of his father (Kallis), as appearing on the first applicant’s identity card, also being misspelled).

An affidavit dated 6 November 2007 by Lakis N. Christolou, a lawyer of the firm representing the applicants in this application, was submitted to the Grand Chamber. It stated that the son of the missing man, Mr Georgios Hadjipanteli, recounted that at the end of 2005 he had met a Turkish Cypriot writer who had informed him that, while investigating disappearances, she had discovered evidence indicating that the nine missing persons from Yialousa had been buried near the Turkish Cypriot village of Galatia. When the son conveyed this information to the CMP he was informed that the inhabitants of Galatia had already given information to the CMP about the execution and burial of Greek Cypriot prisoners near their village.

This first applicant withdrew with his section from Lapithos towards Vasilia. They were ambushed by Turkish military forces and dispersed. There has been no news of the applicant since. The intervening Government had no knowledge of the first applicant, which meant that he had not escaped. Nor was there any evidence that he was killed in the ambush. It was more than likely that he had been detained by the Turkish armed forces.

In 2007, in the context of the activity of the CMP (see paragraphs 86-88 below), human remains were exhumed from a mass grave near the Turkish Cypriot village of Galatia in the Karpas area. After anthropological and genetic analyses, the remains of Savvas Hadjipanteli (named as the first applicant in application no. 16071/90) were identified, along with the remains of the other eight missing persons from Yialousa village and two other missing Greek Cypriots. The bodies of the nine missing persons from Yialousa were lined up next to each other in the grave, with two other bodies on top close to the ground surface. The forensic report dated 13 November 2007 detailed the process of exhumation and noted that it appeared to be a primary and synchronous burial site as the condition of the bodies indicated that they were buried while soft tissue was still present and placed in direct contact with each other. According to the report, the main object of the analysis of the human remains was their identification.

Several bullets from firearms were found in the grave. In regard to Savvas Hadjipanteli, the medical certificate for the cause of death, signed by a doctor on 12 July 2007, indicated bullet wounds to the skull and right arm and a wound to the right thigh. His family was notified and a religious funeral took place on 14 July 2007.

The CMP was officially set up in 1981. The following paragraphs are taken from the Commission’s Report in the fourth inter-State case (paragraphs 181-91):

“181. ... According to its terms of reference, it ‘shall only look into cases of persons reported missing in the intercommunal fighting as well as in the events of July 1974 and afterwards’. Its tasks have been circumscribed as follows: ‘to draw up comprehensive lists of missing persons of both communities, specifying as appropriate whether they are alive or dead, and in the latter case approximate time of the deaths’. It was further specified that ‘the committee will not attempt to attribute responsibility for the deaths of any missing persons or make findings as to the cause of such deaths’ and that ‘no disinterment will take place under the aegis of this committee. The committee may refer requests for disinterment to the ICRC for processing under its customary procedures’. ‘All parties concerned’ are required to cooperate with the committee to ensure access throughout the island for its investigative work. Nothing is provided as regards investigations in mainland Turkey or concerning the Turkish armed forces in Cyprus.

The CMP consists of three members, one ‘humanitarian person’ being appointed by the Greek Cypriot side and one by the Turkish Cypriot side and the third member being an ‘official selected by the ICRC ... with the agreement of both sides and appointed by the Secretary-General of the United Nations’.

The CMP has no permanent chairman, the presidency rotating on a monthly basis between all three members. Decisions are to be taken by consensus to the extent possible. According to the procedural rules agreed upon in 1984, the procedure is to be conducted as follows:

‘1. Individual or collective cases will be presented to the CMP with all possible information. The CMP will refer each case to the side on whose territory the missing person disappeared; this side will undertake a complete research and present to the CMP a written report. It is the duty of the CMP members appointed by each side, or their assistants, to follow the enquiries undertaken on the territory of their side; the third member and/or his assistants will be fully admitted to participate in the enquiries.

The CMP will make case decisions on the basis of the elements furnished by both sides and by the Central Tracing Agency of the ICRC: presumed alive, dead, disappeared without visible or other traceable signs.

If the CMP is unable to reach a conclusion on the basis of the information presented, a supplementary investigation will be undertaken at the request of a CMP member. The third CMP member and/or his assistants will participate in each supplementary investigation, or, as the case may be, investigators recruited by the CMP with the agreement of both sides.’

The 1984 rules state as ‘guiding principles’ that ‘investigations will be conducted in the sole interest of the families concerned and must therefore convince them. Every possible means will be used to trace the fate of the missing persons’. The families of missing persons may address communications to the committee which will be passed on to its appropriate member. That member will eventually provide the family with ‘final information as to the fate of a particular missing person’, but no interim information must be given by any member of the committee to the family of a missing person during the discussion of a particular case.

The committee’s entire proceedings and findings are strictly confidential, but it can issue public statements or reports without prejudice to this rule. According to the 1984 procedural rules, a press release will be issued at the close of a meeting or series of meetings and occasional progress reports will also be published. Individual members may make additional statements to the press or the media, provided they comply with the rule of confidentiality, avoid criticism or contradiction to the joint statement and any kind of propaganda.

Due to the strict confidentiality of the CMP’s procedure, no detailed information about the progress and results of its work is available. However, from the relevant sections of the regular progress reports on the UN Operation in Cyprus submitted by the UN Secretary-General to the Security Council it appears that the committee’s work started in May 1984 with a limited, equal number of cases on both sides (Doc. S/16596, of 1.6.1984, para. 51); that by 1986 an advanced stage had been reached in the investigation of the initial 168 individual cases, supplementary investigations being started in 40 cases in which reports had been submitted (Doc. S/18102/Add. 1, of 11 June 1986, para. 15); and that, while no difficulties were encountered as regards the organisation of interviews or visits in the field, real difficulties then arose by the lapse of time and, even more importantly, lack of cooperation by the witnesses.

This prompted the committee to issue a lengthy press release on 11 April 1990 (Doc. S/21340/Annex). There the committee stated that it considered the cooperation of the witnesses as absolutely fundamental, but that the witnesses were often reluctant, unwilling or unable to give full information as to their knowledge about the disappearance of a missing person. However, the committee could not compel a witness to talk. The explanation of the witnesses’ reluctance to testify was that they were afraid of incriminating themselves or others in disappearances, and this despite the witnesses being told by the committee that the information given would be kept strictly confidential and being reassured that they would ‘not be subject to any form of police or judicial prosecution’. The committee appealed to the parties concerned to encourage the witnesses to give the very fullest information in their knowledge. It further stated:

‘In order to further allay the fears of the witnesses, the committee, so as to give the strongest guarantees to the witnesses, is examining measures that could be taken to ensure that they would be immune from possible judicial and/or police proceedings solely in connection with the issue of missing persons and for any statement, written or oral, made for the committee in the pursuit of activities within its mandate.’

In the same press release, the committee pointed out that it considered as legitimate the desire of the families to obtain identifiable remains of missing persons. However, despite systematic enquiries on burial places of missing persons, on both sides, it had not been successful in this respect. It recalled that according to its terms of reference it could not itself order disinterments. Moreover, while there was access to all evidence available, the committee had not reached the stage of finding a common denominator for the appreciation of the value of this evidence. Finally, the committee stated that it was considering the possibility of requesting that the two sides furnish it with basic information concerning the files of all missing persons, so as to allow it to have a global view of the whole problem.

In December 1990, the UN Secretary-General wrote a letter to the leaders of both sides observing that so far the committee had been given details on only about 15% of the cases and urging them to submit all cases. He further emphasised the importance of reaching consensus on the criteria that both sides would be ready to apply in their respective investigations. Moreover, the committee should consider modalities for sharing with affected families any meaningful information available (Doc. S/24050, of 31 May 1992, para. 38). On 4 October 1993, in a further letter to the leaders of both communities the UN Secretary-General noted that no improvement had been made and that the international community would not understand that the committee, nine years after it had become operational, remained unable to function effectively. Only 210 cases had been submitted by the Greek Cypriot side and only 318 by the Turkish Cypriot side. He again urged both sides to submit all cases without further delay and the committee to reach a consensus on the criteria for concluding its investigations (Doc. S/26777, of 22 November 1993, paras. 88-90).

On 17 May 1995 the UN Secretary-General, on the basis of a report of the CMP’s third member and proposals by both sides, put forward compromise proposals on criteria for concluding the investigations (Doc. S/1995/488, of 15 June 1995, para. 47), which were subsequently accepted by both sides (Doc. S/1995/1020, of 10 December 1995, para. 33). By December 1995, the Greek Cypriot side submitted all their case files (1493). However, the committee’s third member withdrew in March 1996 and the UN Secretary-General made it a condition for appointing a new one that certain outstanding questions, including classification of cases, sequence of investigations, priorities and expeditious collection of information on cases without known witnesses, be settled beforehand (Doc. S/1996/411, of 7 June 1996, para. 31). After being repeatedly urged to resolve these issues (Doc. S/1997/437, of 5 June 1997, paras. 24-25), both parties eventually came to an agreement on 31 July 1997 on the exchange of information on the location of graves of missing persons and return of their remains. They also requested the appointment of a new third member of the CMP (Doc. S/1997/962, of 4 December 1997, paras. 21 and 29-31). However, by June 1998, no progress had been made towards the implementation of this agreement. The UN Secretary-General noted in this context that the Turkish Cypriot side had claimed that victims of the coup d’état against Archbishop Makarios in 1974 were among the persons listed as missing and that this position deviated from the agreement (Doc. S/1998/488, of 10 June 1998, para. 23).

A new third member of the CMP had, by the time of the Commission’s report, been appointed (ibid. para. 24). The committee has not completed its investigations and accordingly the families of the missing persons have not been informed of the latter’s fate.”

From August 2006 the CMP began a substantial exhumation project on identified burial sites with a view to identifying the remains of bodies and ensuring their return to their families. A special unit to provide information to families was also set up.

According to the information provided by the respondent Government, 430 sets of remains had been located; 275 remains had been submitted for analysis and identification by the anthropological laboratory; since June 2007, 105 bodies had been identified (76 Greek Cypriots, 29 Turkish Cypriots); by 13 March 2008, 84 files of missing persons had been closed; by the date of the hearing, 5% of missing persons had been identified and their remains returned to their relatives for burial; by 10 September 2008, 180 sites had been visited by bi-communal teams (155 in the north, 25 in the south).

In the ongoing monitoring process concerning Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001IV), the Committee of Ministers looked at the question of missing persons and, inter alia:

“2. considered that it was crucial that the current work of the CMP be carried out under the best possible conditions and without delay;

in consequence, while reaffirming that the execution of the judgment requires effective investigations, notes that these should not jeopardise the CMP’s mission;

considered that the sequence of measures to be taken within the framework of the effective investigations, and carrying out of the work of the CMP should take into consideration these two essential aims;

underlined in any event the urgent need for Turkish authorities to take concrete measures having in mind the effective investigations required by the judgment, in particular relating to the CMP’s access to all relevant information and places;

in that context, underlined, moreover the importance of preserving all the information obtained during the Programme of Exhumation and Identification carried out by the CMP; ...”

The Declaration provides, inter alia:

“1. An act of enforced disappearance is an offence to human dignity. It is condemned as a denial of the purposes of the Charter of the United Nations and as a grave and flagrant violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in international instruments in this field.

Any act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families. It constitutes a violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to the right to life.”

“1. No State shall practise, permit or tolerate enforced disappearances.

States shall act at the national and regional levels and in cooperation with the United Nations to contribute by all means to the prevention and eradication of enforced disappearance.”

“Each State shall take effective legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance in any territory under its jurisdiction.”

“1. Acts constituting enforced disappearance shall be considered a continuing offence as long as the perpetrators continue to conceal the fate and the whereabouts of persons who have disappeared and these facts remained unclarified.

When the remedies provided for in Article 2 of the International Covenant on Civil and Political Rights are no longer effective, the statute of limitations relating to acts of enforced disappearance shall be suspended until these remedies are re-established.

Statutes of limitations, where they exist, relating to acts of disappearance shall be substantial and commensurate with the extreme seriousness of the offence.”

“The victims of acts of enforced disappearance and their family shall obtain redress and shall have the right to adequate compensation, including the means for as complete a rehabilitation as possible. In the event of the death of the victim as a result of an act of enforced disappearance, their dependents shall also be entitled to compensation.”

The United Nations Working Group on Enforced or Involuntary Disappearance has issued, inter alia, the following General Comments on the above Declaration:

“General Comment on Article 17 of the Declaration (E/CN.4/2001/68/18 December 2000)

Article 17 establishes fundamental principles intended to clarify the nature of enforced disappearances and their criminal consequences. The sense and general purpose of the Article is to ensure conditions such that those responsible for acts constituting enforced disappearance are brought to justice within a restrictive approach to statutory limitations. ...

The definition of ‘continuing offence’ (para. 1) is of crucial importance for establishing the responsibilities of the State authorities. Moreover, this Article imposes very restrictive conditions. The Article is intended to prevent perpetrators of those criminal acts from taking advantage of statutes of limitations. ...”

“General Comment on Article 19 of the Declaration (5/CN.4/1998/43, 12 January 1998)

Article 19 also explicitly mentions the right of victims and their family to ‘adequate compensation’. States are, therefore, under an obligation to adopt legislative and other measures in order to enable the victims to claim compensation before the courts or special administrative bodies empowered to grant compensation. In addition to the victims who survived the disappearance, their families are also entitled to compensation for the suffering during the time of disappearance and in the event of the death of the victim, his or her dependants are entitled to compensation.

Compensation shall be ‘adequate’ i.e. proportionate to the gravity of the human rights violation (e.g. the period of disappearance, the conditions of detention, etc.) and to the suffering of the victim and the family. Monetary compensation shall be granted for any damage resulting from an enforced disappearance such as physical or mental harm, lost opportunities, material damages and loss of earnings, harm to reputation and costs required for legal or expert assistance. Civil claims for compensation shall not be limited by amnesty laws, made subject to statutes of limitation or made dependent on penal sanctions imposed on the perpetrators.

The right to adequate compensation for acts of enforced disappearance under Article 19 shall be distinguished from the right to compensation for arbitrary executions. In other words, the right of compensation in relation to an act of enforced disappearance shall not be made conditional on the death of the victim. ‘In the event of the death of the victim as a result of an act of enforced disappearance’, the dependants are, however, entitled to additional compensation by virtue of the last sentence of Article 19. If the death of the victim cannot be established by means of exhumation or similar forms of evidence, States have an obligation to provide for appropriate legal procedures leading to the presumption of death or a similar legal status of the victim which entitles the dependants to exercise their right to compensation. ... As a general principle, no victim of enforced disappearance shall be presumed dead over the objections of the family.”

This Convention provides, inter alia:

“1. No one shall be subjected to enforced disappearance.

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.”

“For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”

“Each State Party shall take appropriate measures to investigate acts defined in Article 2 committed by persons or groups of persons acting without the authorisation, support or acquiescence of the State and to bring those responsible to justice.”

“Each State Party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law.”

“The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.”

“Without prejudice to Article 5,

A State Party which applies a statute of limitations in respect of enforced disappearance shall take the necessary measures to ensure that the term of limitation for criminal proceedings:

(a) Is of long duration and is proportionate to the extreme seriousness of this offence;

(b) Commences from the moment when the offence of enforced disappearance ceases, taking into account its continuous nature.

Each State Party shall guarantee the right of victims of enforced disappearance to an effective remedy during the term of limitation.”

This Convention provides, inter alia:

“The States Parties to this Convention undertake:

a. Not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees;

b. To punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories;

c. To cooperate with one another in helping to prevent, punish, and eliminate the forced disappearance of persons;

d. To take legislative, administrative, judicial, and any other measures necessary to comply with the commitments undertaken in this Convention.”

“For the purposes of this Convention, forced disappearance is considered to be the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the State or by persons or groups of persons acting with the authorisation, support, or acquiescence of the State, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees.”

“The States Parties undertake to adopt, in accordance with their constitutional procedures, the legislative measures that may be needed to define the forced disappearance of persons as an offense and to impose an appropriate punishment commensurate with its extreme gravity. This offense shall be deemed continuous or permanent as long as the fate or whereabouts of the victim has not been determined ...”

In Blake v. Guatemala, the IACHR had to deal with the ratione temporis exception raised by the government in that case, since the disappearance itself had taken place before the critical date (acceptance of the compulsory jurisdiction in 1987). The court considered that forced disappearances implied the violation of various human rights and that the effects of such infringements – even though some may have been completed – “may be prolonged continuously or permanently until such time as the victim’s fate or whereabouts are established” (see Blake, 2 July 1996, preliminary objections, § 39).

Mr Blake’s fate or whereabouts were not known to his family until 14 June 1992, after the date on which Guatemala accepted the jurisdiction of the court. This led to the IACHR declaring itself competent ratione temporis to examine the “effects and actions” subsequent to the critical date. However, it accepted the government’s preliminary objection as regards the deprivation of Mr Blake’s liberty and his murder, which had been completed before the critical date and could not be considered per se to be continuous.

In its judgment on the merits (24 January 1998, p. 54), the IACHR considered the disappearance as marking the beginning of a “continuing situation”. It proceeded to examine the complaint under Article 8 in relation to Article 1 § 1 and declared that Guatemala had violated the right of Mr Blake’s relatives to have his disappearance and death effectively investigated, to have those responsible prosecuted and punished where appropriate, and to be compensated, notwithstanding the lack of temporal competence to deal with the substantive complaints.

The IACHR came to a similar conclusion in cases of disappearances in which the victim’s whereabouts had never been established. In Serrano- Cruz Sisters v. El Salvador (judgment of 23 November 2004, preliminary objections), the court found that it had no competence to examine, under Articles 4, 5 and 7 (right to personal liberty), the disappearances of the sisters as such, since they had allegedly taken place thirteen years before El Salvador had accepted the contentious jurisdiction of the court. It came to the same conclusion as regards the procedural violations invoked under Article 4 by the Inter-American Commission, since they were linked to the alleged forced disappearance (§ 95). However, the IACHR considered that all the facts that occurred following the critical date and which referred to Articles 8 and 25 of the Convention (filing of a petition for habeas corpus, criminal proceedings), were not excluded by the temporal limitation established by the State, since they constituted “independent facts” or “specific and autonomous violations concerning denial of justice” (§ 85). On the merits, it declared that the State had violated Articles 8 and 25 of the Convention, to the detriment of both sisters and their next of kin (judgment of 1 March 2005).

In a more recent judgment, Heliodoro Portugal v. Panama of 12 August 2008, the San José Court made a clear distinction between forced disappearances and extrajudicial killings for the purposes of its jurisdiction ratione temporis. The case concerned the forced disappearance in 1970 (twenty years before Panama accepted the compulsory jurisdiction of the court) of Heliodoro Portugal, whose remains were found in 2000. It considered that the victim should be presumed dead before the date of acceptance of the court’s jurisdiction (9 May 1990), with regard to the fact that twenty years had elapsed since his disappearance. It characterised the extrajudicial killing as an instantaneous act and accepted the government’s preliminary exception as regards the right to life (Article 4). However, with regard to the forced disappearance as such, it applied its previous case-law and found that it was a permanent or continuous violation, since it had been prolonged after the critical date until the victim’s remains were found in 2000. It was competent to examine the following violations arising out of the disappearance: the deprivation of liberty of the victim (Article 7), the violation of the relatives’ right to humane treatment (Article 5), the non-compliance with the obligation to investigate into the alleged disappearance, the failure to incriminate forced disappearances and tortures in domestic law and the failure to investigate and punish acts of torture. On the merits, the IACHR went on to find a violation of the right to liberty (Article 7) and a violation of Articles 1 and 2 of the Inter-American Convention on Forced Disappearance of Persons with regard to the deceased. It further found a breach of Articles 5 (right to humane treatment), 8 and 25 in respect of his relatives.

As regards forced disappearances, the HRC recognised “the degree of suffering involved in being held indefinitely without contact with the outside world” and held that they constituted “cruel and inhuman treatment” contrary to Article 7 of the International Covenant on Civil and Political Rights (“the Covenant”) with regard to the disappeared. Disappearances often resulted in breaches of the right to life, embodied in Article 6 of the Covenant. In General Comment No. 6 on the right to life, the HRC stated:

“States Parties should also take specific and effective measures to prevent the disappearance of individuals, something which unfortunately has become all too frequent and leads too often to arbitrary deprivation of life. Furthermore, States should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life.”

In a number of cases, the HRC has found that a breach of Article 6 of the Covenant has occurred, but has been unable to make a final decision in that regard in the absence of confirmation of death. Disappearances may also lead to violations of Articles 9 (right to liberty and security of person), 10 (right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person) and 7 with regard to the relatives of the disappeared, in view of the stress, anguish and uncertainty caused by the disappearance.

The positive obligation to investigate disappearances (mentioned in the General Comment on the right to life) may also be breached in this type of case; in these situations there may be a breach of Article 2 § 3 (which enshrines the right to an effective remedy) in conjunction with Article 6. The HRC, in General Comment No. 31 on Article 2 §§ 2 and 3 of the Covenant, emphasised that the failure to investigate in respect of grave violations such as enforced disappearances or torture, as well as the failure to bring to justice perpetrators of such violations, could give rise to a separate breach of the Covenant. The Committee was thus empowered to find a violation of Articles 6, 7 and 9 read in conjunction with Article 2 § 3 of the Covenant.

However, when the disappearance occurred before the date that the Covenant or the Optional Protocol entered into force for a State, the approach of the HRC to whether it has temporal jurisdiction has evolved over recent years.

In the cases of missing persons in Argentina (S.E. v. Argentina, 4 April 1990), the Committee had found that Article 2 § 3 of the Covenant could not be violated by a State Party in the absence of jurisdiction over a substantive violation. In Maria Otilia Vargas v. Chile, 26 July 1999, the HRC declared the communication inadmissible ratione temporis in respect of the author’s son, whose body had never been recovered since his death in 1973. The Committee held that the Supreme Court’s judgment of 1995 rejecting the author’s complaint as regards the application of the 1978 amnesty decree could not be regarded as a new event that could affect the rights of a person who was killed in 1973, prior to the international entry into force of the Covenant and the entry into force of the Optional Protocol for Chile.

In Sarma v. Sri Lanka, 16 July 2003, the author alleged that his son had been removed by members of the military in June 1990 and was last seen in October 1991. Sri Lanka became a party to the Optional Protocol in October 1997 with a declaration limiting the Committee’s competence to facts arising after this date. The Committee found that although the initial abduction occurred outside their temporal jurisdiction “the alleged violations of the Covenant, if confirmed on the merits, may have occurred or continued after the entry into force of the Optional Protocol”. The Committee went on to find a violation of Articles 7 and 9 with regard to the son and Article 7 with regard to the author and his wife due to their anguish and stress at not knowing their son’s whereabouts. The HRC also emphasised that the State had a duty under Article 2 § 3 “to provide the author and his family with an effective remedy, including a thorough and effective investigation into the disappearance and fate of the author’s son ...” which implied that the State might have an obligation to investigate matters which had occurred before the entry into force of the Optional Protocol. Finally, it refrained from finding a violation of Article 6, since the author had not abandoned hope for his son’s reappearance.

However, in Yurich v. Chile, 2 November 2005, the Committee, although describing enforced disappearance as a continuing act, noted that the original acts of arrest and abduction, as well as the refusal to give information about the deprivation of freedom, had occurred before the entry into force of the Covenant for Chile. The HRC further considered that the author had made no reference to any action of the State after the crucial date (entry into force of the Optional Protocol) that would constitute “a confirmation of the enforced disappearance”. For these reasons, it declared the application inadmissible.

More recently in Mariam Sankara et al. v. Burkina Faso, 28 March 2006 (see Appendix III, p. 52), the HRC applied this act of confirmation approach, and also changed its analysis in considering a failure to investigate a death which had taken place prior to the critical date. Although it found that it had no jurisdiction ratione temporis over the death of Mr Sankara, it went on to consider the subsequent proceedings and failure to correct his death warrant (which stated the cause of death as natural) and their effect on Mr Sankara’s wife and two children. It found that there had been a failure to conduct an inquiry into Mr Sankara’s death, to prosecute those responsible and to conclude legal proceedings begun by the author to remedy this situation. It concluded that the proceedings had been prolonged at the fault of the authorities, the delay continuing after the entry into force of the Covenant and Optional Protocol. The authors were therefore affected by the authorities’ failures after this entry into force, and that gave the Committee with jurisdiction ratione temporis over the Article 7 claim.

On the merits, the Committee went on to find that “the refusal to conduct an investigation into the death of Thomas Sankara, the lack of official recognition of his place of burial and the failure to correct the death certificate constitute inhuman treatment of Ms. Sankara and her sons, in breach of Article 7 of the Covenant”.


Violation of P1-1;Pecuniary damage - financial award

The applicant, Bimer S.A., is a company incorporated in the Republic of Moldova. From the moment of incorporation its shares were owned by Moldovan, American and Bahamian investors, it therefore qualified as a company owned by foreign investors and thus benefited from special incentives and guarantees under the Law on Foreign Investments (see paragraph 24 below).

On 10 June 1994 Presidential Decree No. 195 (“the Decree”) was promulgated. It made possible the creation and operation of duty free shops at land, water and air-border crossings. According to the Decree, the duty free shops were entitled to sell imported goods without having to pay customs tax (see paragraph 23 below).

On 12 June 1997 the applicant company signed a contract with the Leuşeni Customs Office, at the border between Moldova and Romania, providing for the opening of duty free shops on the territory of the customs zone. The contract did not contain any provisions as to its duration. It was approved by the Head of the Customs Department of the Government and by the Minister of National Security.

On 3 July 1998 and on 2 December 1998 the company obtained two licences to operate a duty free shop and a duty free bar, within the shop, at the Leuşeni Customs Office. The licences were issued in accordance with the Decree and they did not contain any provisions as to their duration. Subsequently, the applicant company bought the necessary equipment, built the premises of the shop and bar and started operating them.

On 24 April 2002 the Moldovan Parliament made an amendment to the Customs Code by which duty free sales outlets were thenceforward restricted to international airports and on board aircraft flying international routes (see paragraph 25 below).

On 18 May 2002 the Customs Department ordered the closure of all duty free outlets which were not located in international airports or on board aircraft flying international routes (“the order”).

On 12 June 2002 the applicant company, together with other companies similarly affected, lodged a court action against the order with the Court of Appeal of the Republic of Moldova.

The applicant argued inter alia that the grounds relied on by the Customs Department in closing down its duty free shop and bar were not enumerated in the exhaustive list of grounds for closing down such shops provided for in section 56 of the Customs Code.

Moreover, in the light of section 46 of Law No. 780 (see paragraph 26 below), the new amendments to the Customs Code could not have retroactive effect and could be interpreted only as limiting the opening of duty free shops in the future, and not as closing down those already open.

According to the applicant, the order conflicted with section 40 of the Law on Foreign Investments (see paragraph 24 below), which stipulated that the activity of a company owned by foreign investors could be terminated only by a governmental decision or a court order, and only when the company had seriously breached Moldovan legislation and its articles of incorporation.

The applicant further argued that according to section 43 of the Law on Foreign Investments (see paragraph 24 below), in the event of the adoption of new, less favourable legislation, companies owned by foreign investors were entitled to rely on the old legislation for a period of ten years. The ten-year period began to run from the date of enactment of the new legislation. Moreover, the second paragraph of the same section specifically provided that foreign-owned companies which enjoyed customs incentives in accordance with the former legislation of the Republic of Moldova had the right to enjoy those incentives after new legislation came into effect.

On 26 June 2002 the Court of Appeal of the Republic of Moldova ruled in favour of the applicant company and quashed the order, relying inter alia on the following reasons:

“...The court considers that the order of the Customs Department No. 127 of 18 May 2002, issued for the purpose of applying Law No. 1022 of 25 April 2002 [concerning the modification of the Customs Code], by which the activity of duty free shops was terminated starting with 18 May 2002... is illegal because it is contrary to the legislation in force.

Law No. 1022 of 25 April 2002, by which Article 51 of the Customs Code was modified ... does not provide for the termination of the activity of the duty free shops already open in places other than airports and on board aeroplanes.

Moreover, the above mentioned Order [of the Customs Department] runs contrary to Article 56 of the Customs Code which does not provide among the reasons for liquidating a duty free shop the reason provided for in the Order – a change in the legislation.

The Court considers that the modified text of Article 51 of the Customs Code cannot have a bearing on the duty free shops already open and in operation, because this would also run contrary to Article 46 (1) of the Law on the Normative Acts, which stipulates that a law cannot be retroactive or ultra active.

Since the applicants are enterprises with foreign investments, the Court considers that the Order runs contrary to Article 39 (1) of the Law on Foreign Investments, which provides that the foreign investments are guaranteed full security and protection in the Republic of Moldova.

Moreover, according to Article 40 of the Law on Foreign Investment, the applicants' activity ...can be terminated only by means of a Government Decision or a court judgment and only if they have seriously breached the legislation or their statute of incorporation. However, the Order in question does not contain any reference to any breaches committed by the applicant and is not based on a Government Decision or a court judgment.

It is necessary to indicate that in accordance with Article 43 (1) of the Law on Foreign Investment, in case of enactment of new laws which change the conditions of a company with foreign investment created before the enactment of such laws, the company in question has the right to guide itself by the old legislation for a period of 10 years calculated from the date of enactment of the new legislation.

According to the second paragraph of section 43 of the Law on Foreign Investments, foreign investors and enterprises with foreign capital which enjoyed customs, tax and other incentives in accordance with the legislation of the Republic of Moldova formerly in force, have the right to enjoy these incentives after the new legislation comes into effect.

The court considers that the Order violated the applicants' right to property guaranteed by Article 46 of the Constitution, Sections 1, 40 and 41 of the Law on Property and by Article 1 of Protocol No. 1 to the Convention.”

The Customs Department appealed against this judgment to the Supreme Court of Justice.

On 11 September 2002 the Supreme Court of Justice allowed the Customs Department's appeal, quashed the judgment of the Court of Appeal and dismissed the applicant's action. The grounds relied on by the Supreme Court were as follows:

“The first instance court, in finding for the applicants, reached conclusions which are based on a wrong interpretation of the law because the Order in question does not provide for a total termination of the activity of duty free shops but only for the termination of their activity in certain places.

Therefore the first instance court's conclusion that the Order had as effect the termination of the entire activity of the foreign investors who had opened these shops and that thus their right to total security and protection provided for by Article 31 of the Law on Foreign Investment was violated is incorrect.

Article 51 of the Customs Code, as modified by Law No. 1022 of 25 April 2002, defines the duty free as a customs regime which consists of sale of goods under customs supervision in especially dedicated places in international airports and onboard aeroplanes.

Accordingly, through this provision the legislators regulate and limit the places in which such shops can be located but they do not create any interdiction in so far as their activity is concerned. Therefore the arguments of the first instance court that the right to activity of the foreign investors has been violated, is devoid of legal support. The applicants are not prohibited to place their shops in the places provided for by law, i.e. in airports and onboard aeroplanes.

According to the documents of incorporation of these companies, they practice different kinds of activities, including the sale of goods in the Duty Free regime.

The conclusion of the first instance court that the Order violated the right to property guaranteed by the Constitution and the international law is incorrect because the companies in question have the right to open duty free shops in other places, as provided by Article 51 of the Customs Code. The activity of the companies is not totally stopped and nothing is taken away from them.

The first instance court's reference to Article 40 of the Law on Foreign Investment which says that the activity of a company with foreign investment can only be terminated by a Government Decision or a court judgment is wrong because the Order did not totally terminate the applicants' activity but only the sale of goods in the Duty Free regime. They can do other activities which are provided in their documents of incorporation.”

The Supreme Court of Justice did not express any view on the applicant's argument or the ruling of the Court of Appeal concerning the applicability of the second paragraph of section 43 (2) of the Law on Foreign Investment to the case. Its judgment was final.

The relevant extracts from the Constitution of the Republic of Moldova read as follows:

“Article 46. The right to private property and its protection

(1) The right to possess private property ... [is] guaranteed.

(2) No one may have his property expropriated except for reasons dictated by public necessity, as established by law, and subject to the payment of just and appropriate compensation made in advance.

(3) No assets legally acquired may be confiscated. The effective presumption is that of legal acquirement.

Presidential Decree No. 195 of 10 June 1994, in so far as relevant, reads:

Section 3. Imported goods which are to be sold at “duty free” shops... shall be exempted from customs tax;

“Duty free” shops may be operated at the road, naval and air border crossing points....”

The Law on Foreign Investments of 1 April 1992, in so far as relevant, reads:

“Section 1. The applicable law

3.... Laws which contradict the present law in the part concerning foreign investments shall not be applicable.

Section 35. Customs incentives for goods brought into the country

The goods referred to in section 3 of the present law [cars, equipment, office equipment, row material...], which are brought into the country as a contribution to the statutory capital shall be exempted from customs tax.

Section 36. Customs incentives for import and export

A company owned by foreign investors shall be exempt from customs tax for merchandise (raw materials...), imported for the purpose of producing goods to be exported.

Section 39. Guarantees concerning nationalisation or expropriation of foreign capital investments

Foreign investments in the Republic of Moldova are granted complete security and protection.

Foreign investments cannot be expropriated, nationalised or subjected to any other similar measures in any way other than according to the law, on the basis of a law serving the national interest and against the payment of appropriate compensation.

Compensation shall correspond to the value of investment assessed immediately before the moment of expropriation, nationalisation or other similar measure. It must be paid not later than three months from the moment the above measures are taken, with an appropriate bank interest rate calculated before the date of payment. The compensation has to be paid in the currency in which the investment was made and it may be transferred abroad without any restrictions.

The payment of compensation is ensured by the State body entitled to carry out the expropriation, nationalisation or any other similar measures. The State body must determine the value of investment and pay the compensation not later than the day of the expropriation, nationalisation or other similar measure. If the State body does not have sufficient funds, the compensation shall be paid from the State budget.

The affected investor is entitled to request verification of the legality of the expropriation, nationalisation or other similar measure and of the amount of the compensation in the manner provided for by law.”

Section 40. Guarantees concerning forcible suspension and cessation of activity

The activity of an enterprise with foreign investors can be forcibly suspended only in accordance with a decision of the Government of the Republic of Moldova or a competent court, when the enterprise has seriously violated the terms of the legislation of the Republic of Moldova or the provisions of its articles of incorporation...

If the activity of an enterprise with foreign investors is suspended on the initiative of a body of State control, and no violations of legislation or of the constitutive documents are found, the above body shall compensate the enterprise for any damage including lost profit. If the State body does not have sufficient money, the payment is made from the State budget.

The assets of a foreign investor whose enterprise is liquidated or who withdraws from the enterprise may be taken abroad by him without any licence.”

“Section 43. Guarantees concerning changes of legislation

In the event of the adoption of new legislative acts changing the conditions of activity of an enterprise with foreign capital created before the adoption of such acts, that enterprise shall have the right to have applied to it the legislation of the Republic of Moldova operating on the day of its creation for a period of ten years calculated from the day of the entry into force of the new legislative act.

The provisions of paragraph 1 do not extend to legislation related to tax, customs, finance, monetary, credit, currency or anti-trust measures, or to legislation regulating State security, protection of the environment, social order, morals or the health of the population.

Foreign investors and enterprises with foreign investors which enjoyed customs, tax and other incentives in accordance with the former legislation of the Republic of Moldova shall enjoy those incentives after the new legislation comes into effect....”

The Customs Code of the Republic of Moldova as amended on 24 April 2002 reads:

“Section 51. The duty free outlet – a customs regime (regim vamal) which consists of the sale of goods under customs supervision in specially designed places situated in international airports and on board aircraft.

Section 56. A duty free outlet may be closed down if the licence expires or if it is annulled or withdrawn in accordance with the law.”

The relevant provisions of Law No. 780 of 27 December 2001 read as follows:

“Section 46 § 1. A law may have effect only during the period of its validity and may not have retroactive or prospective effect.”

The treaty between the United States of America and the Republic of Moldova concerning the encouragement and reciprocal protection of investment, signed at Washington on 21 April 1993, in so far as relevant, reads as follows:

Article II. 3. (a) Investment shall at all times be accorded fair and equitable treatment, shall enjoy full protection and security and shall in no case be accorded treatment less than that required by international law.

(b) Neither Party shall in any way impair by arbitrary or discriminatory measures the management, operation, maintenance, use, enjoyment, acquisition, expansion, or disposal of investments. For purposes of dispute resolution under Articles VI and VII, a measure may be arbitrary or discriminatory notwithstanding the fact that a Party has had or has exercised the opportunity to review such measure in the courts or administrative tribunals of a Party.

(c) Each Party shall observe any obligation it may have entered into with regard to investments.

Article III. 1. Investments shall not be expropriated or nationalized either directly or indirectly through measures tantamount to expropriation or nationalization ("expropriation") except: for public purpose; in a nondiscriminatory manner; upon payment of prompt, adequate and effective compensation; and in accordance with due process of law and the general principles of treatment provided for in Article II(3). Compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriatory action was taken or became known, whichever is earlier; be calculated in a freely usable currency on the basis of the prevailing market rate of exchange at that time; be paid without delay; include interest at a commercially reasonable rate from the date of expropriation; be fully realizable; and be freely transferable.”

On 31 July 2001 the Commission on the Economy, Industry, Budget and Finance of the Parliament of the Republic of Moldova replied to an enquiry made by the applicant concerning the interpretation of Section 43 of the Law on Foreign Investment. In a letter signed by the Chairman of the Commission, Mr. N. B., it stated the following:

“Subsection 1 of Section 43 provides that in the event of new legislation, changing the conditions of activity of a company with foreign investors which was created before the adoption of such new legislation, that company has the right to rely on the legislation in force on the day of its creation for a period of ten years calculated from the day of the entry into force of the new legislation.

The above is a general rule, which refers to any legislation changing the general conditions of activity of a company owned by foreign investors.

Paragraph 1 of Subsection 2 states the type of legislation not covered by the rule in Subsection 1, and which is applicable from the very moment of its entering into force.

Paragraph 2 of Subsection 2 states the exceptions to Paragraph 1 of Subsection 2. These exceptions refer only to privileges (facilităţi), incentives (înlesniri), exemption of payments (scutiri de plăţi), etc., which were provided for in law when the company was set up.

Accordingly, Paragraph 2 of Subsection 2 does not contradict the provisions of Paragraph 1 of Subsection 2, but makes clear that companies with foreign investors, which enjoyed customs, tax or other forms of privileges in accordance with the legislation of the Republic of Moldova formerly in force, have the right to enjoy those privileges for ten years after the entry into force of new legislation.”

In their observations of October 2005 the Government argued that the above letter had not been signed by the Chairman of the Commission on the Economy, Industry, Budget and Finance of the Parliament, but by an ordinary member of that Commission and that in any event, according to Moldovan legislation, it could not be considered an official interpretation of section 43 of the Law on Foreign Investment but merely an explanation. They requested the Court not to admit the letter as evidence.

The applicant company submitted for the Court's attention a judgment of the Court of Appeal of the Republic of Moldova in the case of Bimer S.A. versus the Ungheni Customs Office in which a similar matter had been decided. In that case the applicant had successfully challenged the closure of another duty free shop operated by it at the Ungheni customs point on the same grounds as in the present case. By its final judgment of 9 July 2002 the Court of Appeal found inter alia that the applicant company had been entitled to rely on the second paragraph of section 43 (2) of the Law on Foreign Investments and that the amended section 51 of the Customs Code could not have any bearing on the applicant company since according to section 46 of Law No. 780 it could not have retroactive effect on the duty free shops opened prior to its enactment.


Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in 1973 and lives in Moscow.

Between July and September 2000 the Nikulinskiy District Court of Moscow (“the Nikulinskiy District Court”), composed of one professional judge, Mr Bobkov, and two lay judges, Ms Matuzova and Mr Rubtsov, examined the charges brought against the applicant in connection with a drug-related offence.

On 4 September 2000 the Nikulinskiy District Court found the applicant guilty of illegal acquisition and storage of narcotics on a particularly large scale for the purpose of sale and of illegal sale of drugs and sentenced him to eight years’ imprisonment.

The applicant and his counsel appealed against the judgment of 4 September 2000 to the Moscow City Court (“the City Court”). They complained, in particular, that lay judge Rubtsov had not been appointed in accordance with the law and had not been independent because he worked as a clerk (секретарь суда) at the Nikulinskiy District Court.

On 5 October 2000 the City Court returned the case to the first-instance court and ordered it to look into the applicant’s complaints about the competency of lay judge Rubtsov.

The results of the inquiry carried out by the Supreme Court Justice Department in respect of the competency of lay judge Rubtsov to sit in the case were summarised in a report of 17 January 2001, which stated as follows:

“...The inquiry established that the Nikulinskiy District Court had at its disposal a copy of the decision of 24 October 1991 of the Gagarinskiy District Council of People’s Deputies of Moscow confirming the results of the additional selection of lay judges of the Gagarinskiy District Court of Moscow as well as a copy of the list of lay judges elected by the staff of the Gagarinskiy District Court, which comprised two persons (Mrs Asharova and Mr Rubtsov) and which had not been properly certified.

According to information obtained from the Administration of Moscow and from the Moscow Archives, the originals of the documents on the election of lay judges of the Gagarinskiy District Court had not been kept.

Nevertheless, lay judge Rubtsov had been in possession of the card [identifying him as a] lay judge of the Gagarinskiy District Court of Moscow, which had been valid until May 1995.

The presidential decrees of 22.03.95 No. 299 and 23.01.97 No. 41, 12.12.98 No. 64, 02.01.00 No.37, and 25.01.00 No.103 extended the terms of office of previously selected lay judges until the adoption of the Federal Law on the selection of lay judges and the compilation of general lists of lay judges.”

On 3 April 2001 the City Court examined the case on appeal. It held that the applicant’s guilt of acquisition of drugs for the purpose of sale and the sale of drugs had been proved by the evidence examined during the trial. Regarding the allegedly unlawful composition of the trial court, the appeal court held that the term of office of lay judge Rubtsov had been extended in accordance with the Presidential decrees. The court also noted that the fact that lay judge Rubtsov worked for the court as a clerk did not preclude him from being elected as a lay judge. The City Court reduced the applicant’s sentence to five years’ imprisonment and upheld the remainder of the judgment.

On 13 February 2002 the Supreme Court of the Russian Federation (“the Supreme Court”) reviewed the case under the supervisory review procedure. The Supreme Court held that the applicant’s guilt of acquisition and storage of drugs on a large scale had been established. However, the materials of the criminal case file had not contained any evidence which would allow it to establish with sufficient credibility that the applicant had acquired the drugs for the purpose of sale and that he had sold them. In those circumstances, the applicant’s actions should have been classified as illicit procurement and storage of drugs without intent to sell.

The Supreme Court amended the judgment of 4 September 2000 and the decision of 3 April 2001, convicted the applicant of illicit procurement and storage of drugs without intent to sell and sentenced him to three years’ imprisonment. With reference to the Amnesty Act of 26 May 2000, the court ordered that the applicant be released from serving his sentence and, consequently, from custody.

Article 15 of the Code provided that hearings in first-instance courts dealing with criminal cases should, subject to certain exceptions, be conducted by a single professional judge or by one professional and two lay judges. In their judicial capacity, lay judges enjoyed the same rights as professional judges.

Part III of the Law set out the procedure for the election of lay judges. Elections of lay judges of district (town) courts were called by the Presidium of the RSFSR Supreme Council and were carried out by the executive committees of the district or town Councils of Peoples’ Deputies (Articles 56 and 57). Lay judges were elected during general staff meetings, general meetings and gatherings of citizens at their places of residence. A separate, open vote was held in respect of each candidate. Persons who received more than fifty percent of the votes were elected (Article 58). The results of the elections had to be recorded in the minutes of the meetings (Article 59). The relevant executive committee determined the results of the elections, compiled the list of elected lay judges, approved that list, published the information on the results of the elections and sent the list of lay judges to the district court (Articles 57 and 60).

Article 90 of the Constitution provides that the President of the Russian Federation shall issue decrees and orders which shall have binding force on the entire territory of the Russian Federation and which should not run contrary to the Constitution of the Russian Federation and federal laws.

The Decree of 22 March 1995 provided that lay judges of district (town) courts had to continue their service until the adoption of the respective federal law. Executive authorities of the constituent elements of the Russian Federation had, if necessary, to organise by-elections of lay judges of district (town) courts at general staff meetings, general meetings and gatherings of citizens at their places of residence.

The Decree of 23 January 1997 provided, among other things, that lay judges of district courts had to continue their service until the adoption of the federal law on the procedure for appointment (election) of lay judges.

The Decree of 25 January 2000 provided that lay judges serving in the courts of general jurisdiction were authorised to remain in office until the courts received new lists of lay judges confirmed by a regional legislative body.

The Act provided in section 1 that citizens of the Russian Federation had a right to take part in the administration of justice in the quality of lay judges. Lay judges were persons empowered by law to hear civil and criminal cases as part of the court panel and carry out their judicial duties on a non-professional basis.

Section 2 provided that lists of lay judges for every district court had to be compiled by respective local self-government bodies on the basis of lists of voters in the district. Such lists had to be validated by regional legislative assembly and submitted to the district court. The term of office of lay judges on the list was five years.

Section 3 provided that the following persons could not be selected as lay judges: persons who had convictions which had not been quashed, persons fully or partially deprived of their legal capacity by a competent court, civil servants of category “A” and persons occupying elective posts in local government bodies, prosecutors, investigators and persons registered with either drugs counsellors or psychiatrists.

Sections 5 and 6 provided that the president of the respective court had to draw a certain number of lay judges by lot from the list. Lay judges to sit in a particular case were to be drawn by lot by the professional judge who would hear the case from those drawn by lot by the president of the court.

Section 9 provided that lay judges could be called to sit in cases heard by a district court for a period of fourteen days, or as long as the proceedings in a particular case lasted. Lay judges could not be called on more than once a year.

The ruling provided that the president of a given court had to draw by lot from the list of lay judges, 156 names for each judge of the court. The lay judges for a particular case had to be drawn by lot by the professional judge to whom the case had been assigned. The sitting lay judges had to remain in office until new lists of lay judges arrived at the court. The regulation also provided that each court had to keep a record of the results of the selection at random of lay judges.