AS TO THE ADMISSIBILITY OF
Application no. 54591/00
by Andreas MANITARAS and Others
The European Court of Human Rights (Fourth Section), sitting on 3 June 2008 as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 1 October 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
1. The applicants (first applicant: Mr Andreas Manitaras; second applicant: Mr Elias Elia; third applicant: Mr Panayiotis Elia; fourth applicant: Mrs Anna Manitara; fifth applicant: Mrs Evangelia Manitara; sixth applicant: John Manitaras) are six Cypriot nationals of Greek Cypriot origin who were born in 1939, 1955, 1956, 1957, 1959 and 1964 respectively. The second applicant is living in Meneou and the third, fourth and fifth applicants are living in Paralimni. The first and sixth applicants have dual Cypriot and British nationality and live in the United Kingdom.
2. The applicants brought their application on their own behalf and on behalf of Ioannis Manitaras, a Cypriot national of Greek Cypriot origin who was born in 1914 and died on 4 April 1999. The first, second, third, fourth and fifth applicants are the children of Ioannis Manitaras, and the sixth applicant is his grandson.
3. The applicants are represented before the Court by Mr Z. Koulias, a lawyer practising in Larnaca. The Turkish Government (“the Government”) are represented by their Agent, Mr Z.M. Necatigil.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The death of Ioannis Manitaras
5. Ioannis Manitaras was born and raised in the village of Rizokarpaso in the Karpas peninsula, district of Famagusta, in northern Cyprus. He worked there as a farmer and owned a house with some land.
6. Following the Turkish intervention of 1974, Ioannis Manitaras remained in Rizokarpaso as one of the “enclaved”, that is, a small remaining group of Greek Cypriot residents of the Karpas peninsula who continue to live there under Turkish occupation. In February 1998 he gave evidence to the delegation of the European Commission of Human Rights in the course of the Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001-IV) proceedings at a hearing held at the Ledra Palace Hotel in Nicosia.
7. On 4 April 1999 Ioannis Manitaras was found dead in his house in Rizokarpaso.
8. On 5 April 1999 a post-mortem examination was carried out by Dr Horoz, a general practitioner authorised by the local authorities. He concluded that Ioannis Manitaras had died of a myocardial infection. Consequently, a press statement was issued by the Ministry of Foreign Affairs of the Turkish Republic of Northern Cyprus (“the TRNC”) confirming the findings of this report. A medical officer from the United Nations Peacekeeping Forces in Cyprus (UNFICYP) was present at the post-mortem examination. He also prepared a brief report, without referring to the cause of death.
9. The applicants allege that they were unable to bury the deceased in his home village because of restrictions on freedom of worship and repeated vandalism of Greek Cypriot graves. Thus they arranged for him to be buried in the southern part of Cyprus. They allege that the body was handed over to them in a particularly distressing and disrespectful manner and that the Turkish authorities showed a total lack of regard for the grieving family. In particular, they state that when it was delivered to them, the deceased’s body was partially covered in an old sheet and was not in a temporary coffin or body bag. Further, the sixth applicant, the grandson of the deceased, was refused permission to accompany the first, second and third applicants (that is, his father and two uncles) to Rizokarpaso village on 5 April 1999 for a brief visit to retrieve the clothes of Ioannis Manitaras and other things necessary for the funeral and burial.
2. The post-mortem examination conducted in the General Hospital in Nicosia
10. On 7 April 1999 a second post-mortem examination was conducted in the General Hospital in Nicosia by two specialists, Dr Sofocleous and Dr Matsakis (one appointed by the family of Ioannis Manitaras and one by the Government of the Republic of Cyprus), in the presence of United Nations observers. A video and photographs were taken during the autopsy. The conclusions of these examinations were that there was “no evidence of coronary artery thrombosis, myocardial infarction or significant previous ischemic episodes” and that the cause of death was “severe trauma in the cervical vertebra due to the application of excessive force”.
11. At the request of the Attorney General of the Republic of Cyprus, the reports of both post-mortem examinations were reviewed by Professor Jorgen L. Thomsen, State Forensic Pathologist at the Institute of Forensic Medicine at the University of Southern Denmark. He agreed with the conclusions of the second post-mortem report and criticised the first as not living up to international standards.
12. On 20 May 1999 the file was referred to the “TRNC” Attorney-General, who recommended a coroner’s inquest. The coroner examined the file and came to the conclusion that the deceased had died a natural death due to myocardial infarction and that there was no indication that he had been the victim of an act of violence. In view of the above, the coroner decided that it was not necessary to carry out an inquest.
3. The report by Dr Cassidy
13. Before the Court, the Government produced a report from Dr M.T. Cassidy, Deputy State Pathologist and Senior Lecturer at the Forensic Medicine Department of Dublin Trinity College. At the request of the UNFICYP, Dr Cassidy examined various documents, scientific reports, videos and photographs concerning the death of Ioannis Manitaras. She also interviewed all persons who could give information about the case, including the members of the deceased’s family.
14. Paragraphs 3, 4 and 5 of Dr Cassidy’s report read as follows:
3.1 Mr Ioannis Manitaras was an elderly Greek Cypriot, residing alone in the Turkish region.
3.2 He was receiving treatment for heart disease and had been hospitalised for a “heart attack” and for treatment of an arrhythmia.
3.3 He was at his neighbour’s home on the night of 3rd April 1999 and was said to have been seen and spoken to early on Sunday 4th April 1999.
3.4 In the mid Sunday morning Mr Manitaras was found dead lying on the floor of his bedroom.
3.5 He was fully clothed, including jacket, apart from his shoes. He was lying face down and on his right side. There was a pool of fluid and blood at his head. There were a few injuries on the right side of head.
3.6 His body was removed to the local hospital and a post-mortem examination was carried out on 5th April. This was limited to removal of the cerebral hemispheres, the lungs and the heart. The latter only was dissected.
3.7 External examination showed bruising around both eyes and two injuries to the right side of the head. Post mortem staining was noted over the back and multiple “bruises” over the upper chest.
3.8 An area of discoloration on the heart was interpreted as an infarct, and the cause of death was determined as due to a heart attack.
3.9 The body was transported to the Greek region and a second post-mortem examination was carried out.
3.10 This described additional injuries including superficial flapped injury to the left side of the scalp, marks on the cheeks and lips as well as minor injuries on the hands. Petechial haemorrhage was noted in the eyes.
3.11 Internally the most significant finding was of bruising in the soft tissues of the neck and a fracture of the spine.
3.12 These injuries were interpreted as indicating an assault, death being due to a broken neck, caused in an arm lock, which was thought to have caused asphyxia. Other explanations were dismissed.
3.13 The photographs of the scene and the body pre-autopsy, after the first autopsy and during the second autopsy were taken.
3.14 The body is seen fully clothed, apart from shoes lying on his right side, face down on a stone floor. A few minor injuries were noted on the right side of the head and there was fluid and blood under the head apparently from the injuries.
3.15 Photographs after the first post mortem confirm the paucity of injuries.
3.16 Photographs of the second post mortem now show well developed bruising of the eyes and petechiae are now prominent around the eyes, the neck and over the upper chest. A post mortem injury is now apparent on the left side of the scalp and some other indistinct marks are shown. There was definite bruising under the injuries on the right side of the scalp but no skull or brain injury.
3.17 Internally a fracture of the cervical vertebra is demonstrated.
4.1 This elderly man was found dead in his home.
4.2 The position of the body at the scene is consistent with slumping forward onto the ground from a sitting position on the bed, no attempt being made to save himself, as determined by the position of the hands.
4.3 The injuries apparent were to the right side of face and head, consistent with impact with the stone ground.
4.4 Despite lying in this position after death, when the body is examined later, at the second post-mortem, lividity is on the back of the body, therefore he had not been lying long after death. This would be consistent with him dying on Sunday morning and therefore he could have been seen alive at 6.50 a.m. that morning.
4.5 The position of the body also suggests sudden collapse.
4.6 Petechial haemorrhage are seen around the eyes, on the face, neck and upper chest. The presence of petechial haemorrhages indicates hypoxia/asphyxia, and obvious causes of mechanical asphyxia must be excluded, particularly strangulation. However, petechial haemorrhage around the eyes are commonly seen in deaths from natural causes, particularly if due to heart disease which causes hypoxia. Petechial/purpuric haemorrhage are also commonly found within areas of post-mortem lividity and as Mr Manitaras was found lying “face down” this is one possibility which must be considered.
The pattern of distribution of the haemorrhage may give some indication of their cause. In strangulation the haemorrhages are above the level of compression of the neck.
As the distribution of the haemorrhages continues below the neck, a cause other than compression of the neck must be considered.
In cases of suspected neck compression, the neck is always examined last, first draining the area of blood by opening and removing the organs from the cranial and chest and abdominal cavities. This is done as artefactual haemorrhages can be produced in the neck area during manipulation and dissection of the neck organs. Therefore the interpretation of bruising in the anterior compartment of the neck, on the surface of the strap muscles, is fraught with potential difficulties. A post-mortem examination had been performed, the blood vessels in that area are seen to be congested, the neck was said to have been manipulated before the second post mortem and at the second post mortem the neck was dissected with the chest organs in situ. In view of this the bruising cannot be unequivocally attributed to pre-mortem compression of the neck.
4.7 The injuries to the face are concentrated on the right side, as illustrated in photograph 5. This was the side of the face in contact with the ground, and therefore all of these injuries could be caused by one impact with the ground. The soft tissues of the face were not dissected and therefore the other injuries described were not proven to be associated with subcutaneous bruising.
The pattern of bruising under the eye is of bruising related to the injury below the outer corner, which is an abrasion injury, more likely due to contact with the ground rather than a punch.
While one can never totally exclude that each and every injury is due to a separate impact, the pattern of injuries is the key factor.
4.8 One positive finding was fracture of the first cervical vertebra. There was haemorrhage over the front of the upper cervical spine indicating bleeding from this injury. Bodies can bruise and bleed after death, while the blood is still fluid within the vessels. This injury can therefore be interpreted as a pre or peri-mortem injury. This type of injury is due to compression of the head on the neck splitting the vertebra, +/- hyperextension. The mechanism of causation is a force transmitted through the head to the neck.
It is unlikely to be caused by a force from the front of the neck as such a force would be expected to be associated with more severe injury to the structures at the front of the neck.
If such an injury was the cause of death, damage to the upper cervical cord/brain stem would be expected. Firstly this area was damaged during the first post-mortem. Secondly there is no evidence of bleeding around the site in the photographs and no demonstrable damage. Microscopy may show haemorrhage into the tissue, which must be differentiated from congested vessels which can be misinterpreted as petechial haemorrhage. There is no evidence that the spine fracture had caused damage to the spinal cord nor that it caused his death.
4.9 The injuries to the hands are minor injuries, described as, and with the appearance in the photographs of, abrasions and lacerations. There are quite different injuries to those on the head area. These injuries are caused by contact with something rough or sharp, and while from their position they could be interpreted as defence injuries, as they are different and caused in a different manner from other injuries, they are not defence injuries caused by attempting to ward off blows of his head. One explanation is that these injuries could be inflicted by handling branches with rough or sharp edges.
4.10 Examination of the heart was incomplete at both post-mortems. Weighing the heart would have given an indication as to whether or not the heart was enlarged. However Mr Maniataras had a well documented history of heart problems including arithymia and cardiac failure, and was prescribed treatment for this.
Whether or not he was taking his medication, he was still at risk from collapsing and dying from his heart disease, despite no obstruction of the vessels being found at the second post-mortem.
Again the post-mortem findings must be interpreted in light of his medical history. Again histological examination of the tissues may show myocyte damage and fibrosis not obvious with the naked eye. In particular the area of discoloration described at the first post-mortem could have been proved or disproved as an infarct. The lack of acute findings in the heart does not negate the conclusion that death was due to heart disease.
4.11 Although he may have collapsed suddenly, Mr Manitaras may not have died instantly and may have survived unconscious for a few minutes.
After examination of the statements, reports, photographs and post-mortem reports I am of the opinion that Mr Manitaras appears to have been sitting on the edge of his bed when he suddenly keeled over, with a “heart attack”, falling heavily to the floor, the impact site, to the head and right side of the face. The force from the impact was transmitted across the head to the top of the spine, crushing and splitting the first cervical vertebra. He appears to have made no attempt to save himself as implied by the position of the hands and arms, suggesting that he was either dead or unconscious when he pitched forward to the ground. The injuries to the hands could have occurred separately during the course of his work. Death appears to be due to natural causes.”
15. In a letter of 8 August 1999, Inspector Liam Hogan from the United Nations Civilian Police (UNCIVPOL) forwarded Dr Cassidy’s report to the competent authorities. This letter reads as follows:
“Please find enclosed a copy of the report prepared for UNFICYP by an independent Forensic Pathologist.
We are in agreement with the conclusions reached by Dr Cassidy.”
16. Invoking Article 2 of the Convention, the applicants complained about the killing of Ioannis Manitaras.
17. Invoking Article 13 of the Convention, the applicants complained of the absence of any proper investigation into the death of Ioannis Manitaras.
18. The applicants complained that the killing of Ioannis Manitaras and the subsequent treatment of his body and his family constituted inhuman and/or degrading treatment contrary to Article 3 of the Convention as well as a violation of their right to respect for their family life and home under Article 8.
19. Invoking Article 14 of the Convention, the applicants considered that the violations of their fundamental rights were due to their Greek Cypriot origins.
20. The applicants alleged that Ioannis Manitaras had been killed by or with the connivance of the Turkish authorities in northern Cyprus.
They invoked Article 2 of the Convention, which reads as follows:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
21. The Government disputed this claim
A. The Government’s preliminary objections
1. Objection concerning Turkey’s lack of jurisdiction
(a) The Government’s objection
22. Relying on the principles laid down by the Court in the decision Bankovic and Others v. Belgium and Other States (no. 52207/99, ECHR 2001-XII), the Government disputed Turkey’s liability under the Convention for the violations alleged in the application. In particular, they contended that, notwithstanding the presence in Cyprus of a large number of Turkish troops engaging in active duties, Turkey had no actual “jurisdiction” and/or control over northern Cyprus, where the acts complained of by the applicants had occurred. In particular, Turkey had no jurisdiction over the Karpas area, which was under the administration and exclusive control of the “TRNC”. The latter was an independent de facto State exercising effective control over its people and territory. Therefore, Turkey could not be held responsible under the Convention for any act allegedly attributable to the “TRNC” authorities. Moreover, Turkey had no legal relationship with any of the applicants.
(b) The applicants’ reply
23. The applicants submitted that the Government’s objection amounted to an attempt to reopen questions which had been decided in the cases of Loizidou v. Turkey (judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, §§ 52-57) and Cyprus v. Turkey ([GC] no. 25781/94, §§ 75-78, ECHR 2001-IV). That approach should be confirmed in the present case, as the decision taken by the Court in the case of Bankovic and Others (cited above; see, in particular, §§ 70-71) did not suggest any reconsideration of the principles laid down in the previous case-law.
24. The applicants challenged the Government’s allegations concerning the independence of the “TRNC”. They pointed out that the “TRNC” was nothing more than a subordinate local administration and that its existence had not been recognised by any State other than Turkey.
(c) The Court’s assessment
25. The Court reiterates that, under Article 1 of the Convention, Contracting States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “jurisdiction”. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu and Others v. Moldova and Russia, [GC], no. 48787/99, § 311, ECHR 2004-VII). Furthermore, the words “within their jurisdiction” in Article 1 of the Convention must be understood to mean that a State’s jurisdictional competence is primarily territorial (see Banković and Others, decision cited above, § 59).
26. In exceptional circumstances the acts of Contracting States performed outside their territory or which produce effects there (“extra-territorial act”) may amount to exercise by them of their jurisdiction within the meaning of Article 1 of the Convention (see Loizidou, cited above, § 52, and Issa and Others v. Turkey, no. 31821/96, §§ 68 and 71, 16 November 2004). According to the relevant principles of international law, a State’s responsibility may be engaged where, as a consequence of military action – whether lawful or unlawful – that State in practice exercises effective control of an area situated outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control, whether it be exercised directly, through its armed forces, or through a subordinate local administration (see Loizidou, cited above, § 52).
27. In the particular situation concerning Cyprus, the Court found in the case of Cyprus v. Turkey (cited above) that having effective overall control over northern Cyprus, Turkey’s responsibility could not be confined to the acts of its own soldiers or officials in northern Cyprus but had also to be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support. It follows that, in terms of Article 1 of the Convention, Turkey’s jurisdiction must be considered to extend to securing the entire range of substantive rights set out in the Convention and those additional Protocols which she has ratified, and that violations of those rights are imputable to Turkey (see Cyprus v. Turkey, cited above, § 77).
28. At the outset the Court notes that the area in which the alleged acts complained of took place belonged to the territory of the “TRNC”. Therefore, Ioannis Manitaras came under the authority and/or effective control, and therefore within the jurisdiction, of the respondent State through its agents (see, mutatis mutandis, Isaak and Others v. Turkey (dec.), no. 44587/98, 28 September 2006).
29. The Court concludes, accordingly, that the matters complained of in the present application fall within the “jurisdiction” of Turkey within the meaning of Article 1 of the Convention and therefore entail the respondent State’s responsibility under the Convention.
30. It follows that the Governement’s objection should be dismissed.
2. Objection that the application is out of time
(a) The Government’s objection
31. The Government observed that Ioannis Manitaras had died on 4 April 1999 and that the second post-mortem examination had been carried out at Nicosia General Hospital on 6 April 1999. As the present application was based on the findings of that examination, and as the applicants had not used any domestic remedies, the six-month time-limit provided for in Article 35 § 1 of the Convention had expired on 6 October 1999 at the latest.
32. Having regard to the fact that the application was “dated 27 January 2000” the Government considered that it should be dismissed as being out of time.
(b) The applicants’ reply
33. The applicants noted that they had introduced their application on 1 October 1999, which was less than six months after the death of Ioannis Manitaras. That letter set out the summary of the complaints and explained that the formal application would be submitted once the accompanying evidence had been compiled and translated.
(c) The Court’s assessment
34. The Court reiterates that the running of the six-month time-limit imposed by Article 35 § 1 of the Convention is, as a general rule, interrupted by the first letter from the applicants indicating an intention to lodge an application and giving some indication of the nature of the complaints made (see Allan v. the United Kingdom (dec.), no. 48539/99, 8 August 2001).
35. In the present case the applicants’ representative had stated the substance of his clients’ complaints in a fax received by the registry on 1 October 1999. Therefore, even assuming that the starting point of the six-month time-limit should be fixed at 6 April 1999, it was interrupted five days before it expired.
36. It follows that the Government’s objection should be dismissed.
3. Objection that domestic remedies have not been exhausted
(a) The Government’s objection
37. The Government observed that the applicants had access to “all effective domestic remedies within the judicial and administrative system of the TRNC”. However, they had not used any of them. They pointed out that in the case of Cyprus v. Turkey (cited above, §§ 89-102) the Court concluded that, for the purposes of Article 35 § 1 of the Convention, remedies available in the “TRNC” should be regarded as “domestic remedies” of the respondent State and that the question of their effectiveness was to be considered in the specific circumstances where it arose. Articles 136 to 155 of the “TRNC” Constitution showed that an effective and independent judicial system existed in the “TRNC” and that its courts were the guardians of the rights of individuals.
38. The applicants could have lodged a complaint with the “TRNC” Attorney-General, an independent officer who could even have ordered an independent inquiry.
(b) The applicants’ reply
39. The applicants disputed the respondent Government’s submissions and claimed that there had been no failure on their part to comply with the requirements of Article 35 of the Convention.
40. They stressed that the “TRNC” courts had not been properly established under the law applicable in the Republic of Cyprus but had been set up by the “TRNC” in the part of Cyprus which was under illegal Turkish occupation. Moreover, the claim of the “TRNC” to statehood had been rejected not only by the UN Security Council but by every State in the world with the exception of Turkey. That being so, institution of proceedings in the “TRNC” courts would inevitably have involved a degree of recognition by the applicants of the legitimacy of those courts and thus of the “TRNC” itself, which would amount to a denial of the sovereignty of the Republic of Cyprus over northern Cyprus. Any such action would also have been in direct conflict with the applicants’ status and duties as citizens of the Republic of Cyprus. Moreover, it would have been contrary to international law. In this context, the applicants asked the Court to reconsider its conclusions in the case of Cyprus v. Turkey, cited above. They underlined that “TRNC” tribunals could not be considered as “Turkish courts”.
41. The applicants further asserted that, even if there was in principle a duty to make use of any remedies which might exist in the “TRNC”, the courts there did not offer a remedy which was effective and available to them. The Government overlooked the fact that Greek Cypriots who lived in the unoccupied parts of the island were not permitted to travel to the territory of the “TRNC” and that none of the surviving applicants was an inhabitant of that territory. The treatment of the sixth applicant vividly illustrated the difficulties faced by anyone of Greek Cypriot origin seeking to gain access to northern Cyprus. The applicants concluded that the remedies which might exist in the “TRNC” were not accessible to them.
42. Lastly, the Court had stated that the exhaustion rule did not apply where the violations of the Convention stemmed from a legislative or administrative practice. The facts of the present case were in large part the product of the systematic discrimination against the Greek Cypriot inhabitants of the Karpas peninsula.
(c) The Court’s assessment
43. In its judgment in the case of Cyprus v. Turkey (cited above, §§ 14, 16, 90 and 102) the Court held that for the purposes of Article 35 § 1, remedies available in the “TRNC” may be regarded as “domestic remedies” of the respondent State and that the question of their effectiveness is to be considered in the specific circumstances where it arises. However, this conclusion is not to be seen as in any way casting doubt on the view of the international community regarding the establishment of the “TRNC” or the fact that the Government of the Republic of Cyprus remains the sole legitimate government of Cyprus.
44. The Court does not see any reason to depart from its previous findings, which are based on its well-established case-law.
45. It further notes that the Government failed to indicate precisely which remedies were available to the applicants, confining themselves to invoking the existence of judicial and administrative remedies, including the possibility of lodging a complaint with the “TRNC” Attorney-General, who could have ordered an independent inquiry. In principle, legal systems provide two avenues of recourse for the victims of illegal and criminal acts: civil and criminal remedies. However, the Court does not consider it necessary to establish whether, in the particular circumstances of the present case, these remedies were effective and accessible to the applicants, the application being in any event inadmissible, for the following reasons.
B. The merits of the applicants’ complaint
1. Arguments of the parties
(a) The Government
46. The Government submitted that Ioannis Manitaras had died a natural death. He had been 85 years old and had had a history of heart problems. He had been living alone and had been hospitalised for heart failure. However, in his autopsy report Dr Sofocleous wrote “no evidence of old or recent infarction is found” and Dr Matsakis said “the cardiac valves are unremarkable” and “there is no evidence of coronary artery thrombosis, myocardial infarction or significant previous ischemic episodes”. As to the report of Professor Thomsen, which concluded that there were indications that death was the result of “violence from other persons”, it contained some critical remarks about Dr Horoz’s report. It said that the latter did not “state the name of the deceased” and did not “make any conclusions with reference to the cause of death or manner of death”. The Government considered that Professor Thomsen could have been sent only part of Dr Horoz’s report, which, on the contrary, indicated clearly the name of the deceased and mentioned “myocardial infarction” as the cause of death.
47. The Government also pointed out that Dr Matsakis was very well known for his “anti-Turkish tendencies”. He was a member of the Greek Cypriot Parliament and, as such, he should not have carried out any autopsy. He had most probably influenced the conclusions of Dr Sofocleous, creating a scenario of “murder”. The Greek Cypriot authorities had then used the case as propaganda against Turkey and the “TRNC”.
48. Dr Matsakis had also written a report in the case of Denizci and Others v. Cyprus (nos. 25316-25321/94 and 27207/95); in its judgment of 23 May 2001 (§§ 325-326), the Court concluded that the evidence given by him should be treated with caution.
49. There was no basis for the allegation that Ioannis Manitaras had been murdered because he had given evidence against Turkey in the case of Cyprus v. Turkey or that he might have been killed by a settler with the purpose of usurping his house and property.
50. The Turkish Cypriot police had carried out a prompt and extensive inquiry into his death. It had visited the house, examined the location, looked at photographs and had the body examined by a doctor. A post-mortem examination, authorised by the competent tribunal, had been performed by Dr Horoz on 5 April 1999 in the presence of UN medical officers. The Turkish Cypriot police had also taken the necessary measures for the transfer of the personal belongings of the deceased to the south. It had subsequently taken statements from thirteen persons who could give information about the circumstances of the death.
51. On 20 May 1999 the file had been referred to the “TRNC” Attorney-General, who had recommended a coroner’s inquest. The coroner had examined the file and come to the conclusion that the deceased had died a natural death due to myocardial infarction and that there was no indication that he had been the victim of an act of violence. In view of the above, the coroner had decided that it was not necessary to carry out an inquest.
52. The Turkish Cypriot authorities had also cooperated fully with UNCIVPOL. The Government referred, on that point, to the conclusions reached by Dr Cassidy.
(b) The applicants
53. The applicants emphasised that the present case should be seen against the background of the findings reached by the Court as to the living conditions of the “enclaved” Greek Cypriots.
54. Ioannis Manitaras had been subject to extensive restrictions on his movements by the Turkish Cypriot authorities and his situation had been such that Turkey had had a special responsibility for his protection and a reinforced duty to investigate his suspicious death. The evidence before the Court strongly suggested that this duty had not been discharged, notwithstanding the activities of the “Grey Wolves” in the area and the fact that numerous Turkish settlers had expressed an interest in being allocated Ioannis Manitaras’s house.
55. The investigation conducted by the “TRNC” authorities had not satisfied the requirements of Article 2. No policeman seemed to have noticed the bloodstain on the floor of the room where Ioannis Manitaras had died until it had been pointed out by the members of his family. The bloodstain had not been examined, but cleaned up at once. No forensic investigation had taken place at the house, little attempt had been made to question witnesses “in anything other than an entirely routine way” and the post-mortem examination had been conducted in a “perfunctory fashion”. The police had taken statements with a view to supporting the a priori conclusion that death had been due to natural causes.
56. In the applicants’ view, the attack on the independence, reliability and qualifications of Dr Matsakis was wholly unwarranted. The video and the photographs of the second post-mortem examination, conducted jointly with Dr Sofocleous, demonstrated that it had been performed with care.
57. Furthermore, the Government did not contest the fact that, unlike Dr Matsakis and Dr Sofocleous, Dr Horoz, who performed the first autopsy, was a general practitioner and not a specialist. Turkey had failed to respond to the criticism of Professor Thomsen, who stated that Dr Horoz’s report did not in any way live up to international standards.
58. The report by Dr Cassidy had been compiled on the basis of secondary evidence. She had not seen the body and had failed to comment on the brevity of Dr Horoz’s report or his lack of specialist qualifications. The only specialist forensic pathologists who had examined the body had concluded that death had resulted from injuries inflicted by another person. The conclusions of Dr Cassidy had not reduced the need for a more rigorous inquiry in April 1999.
2. The Court’s assessment
(a) General principles
59. The Court reiterates that Article 2, which safeguards the right to life and sets out those circumstances in which deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which deprivation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, §§ 146-147).
60. The exceptions delineated in paragraph 2 indicate that this provision extends to, but is not concerned exclusively with, intentional killing. The text of Article 2, read as a whole, demonstrates that paragraph 2 does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than “absolutely necessary” for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c) (see McCann and Others, cited above, § 148).
61. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, Avşar v. Turkey, no. 25657/94, § 391, ECHR 2001-VII, and Musayev and Others, cited above, § 142).
62. The first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports 1998-III, § 36). The State’s obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Osman v. the United Kingdom, judgment of 8 October 1998, Reports 1998-VIII, § 115).
63. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt”. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. In this context, the conduct of the parties when evidence is being obtained has to be taken into account. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see, among others, the following judgments: Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, § 161; Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, § 32; Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, § 68; Tanlı v. Turkey, no. 26129/95, § 111, ECHR 2001-III; and Ilaşcu and Others, cited above, § 26).
64. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention the Court must apply a particularly thorough scrutiny even if certain domestic proceedings and investigations have already taken place (see Ribitsch, cited above, § 32, and Avşar, cited above, § 283).
65. Finally, the Court has on many occasions stated that the obligation to protect the right to life under Article 2 of the Convention also requires by implication that there should be some form of effective official investigation when it is alleged that individuals have been killed as a result of the use of force. It has developed a number of guiding principles to be followed for an investigation to comply with the Convention’s requirements (see, amongst many other authorities, Bazorkina v. Russia, no. 69481/01, §§ 117-19, 27 July 2006).
(b) Application of the above principles to the present case
66. In the present case the Court should first determine whether Ioannis Manitaras was deprived of his life. In this connection it notes that two post-mortem examinations were performed on the body of the deceased. The first, carried out by a general practitioner authorised by the “TRNC” authorities, reached the conclusion that Mr Manitaras had died of a myocardial infection. However, the two specialists appointed by the deceased’s family and by the Government of Cyprus who conducted the second autopsy identified the cause of death as “severe trauma in the cervical vertebra due to the application of excessive force”.
67. The Court has no reason to doubt the professional skills of the practitioners who performed the post-mortem examinations. In the light of the opposite conclusions reached in their reports, it cannot but attribute decisive weight to the subsequent analysis performed by independent experts. In this connection it observes that Professor Thomsen, a Danish State forensic pathologist acting upon the request of the Attorney General of the Republic of Cyprus, reviewed both post-mortem reports; he agreed with the conclusions of the second and criticised the first as not living up to international standards. On the other hand, Dr Cassidy, an Irish Deputy State forensic pathologist acting upon the request of the UNFICYP, concluded that death appeared “to be due to natural causes”. UNCIVPOL agreed with the conclusions in her report, which appears to be detailed and thouroughly reasoned. In particular, it takes into account the deceased’s history of heart disease and the position of the body and gives a plausible explanation for the injuries found during the second post-mortem examination.
68. Under these circumstances, and given the contradictory conclusions reached by the experts who examined the body and/or the photographic evidence pertaining to the autopsies, the Court cannot but reach the conclusion that the more likely cause of Ioannis Manitaras’s death was myocardial infarction. Moreover, it has to be taken into account that the deceased was an elderly man, who had a history of heart disease. No signs of trespass were found on his property and nothing proves that he had received threats and/or that the “TRNC” authorities had hidden elements pertaining to the circumstances of his death.
69. In view of the above, the Court considers that it is not established that Ioannis Manitaras was “deprived of his life” within the meaning of Article 2 of the Convention and that therefore there is no appearance of a violation of the substantive limb of this provision.
70. It remains to be ascertained whether the respondent Government had an obligation to safeguard Ioannis Manitaras’s life and whether the investigation into his death met the requirements of the procedural limb of Article 2.
71. In the Court’s view, nothing indicated that Ioannis Manitaras’s life was in danger. It is true that he had a history of heart disease; however, he had been receiving treatment for this and had not alerted the medical services to an aggravation of his condition. The Court also considers that the fact that Mr Manitaras had given evidence to a delegation of the Commission in the case of Cyprus v. Turkey does not in itself suggest that he might have been subjected to assaults and/or to acts of revenge. Furthermore, neither the deceased nor his family had informed the authorities about any fear of potential illegal acts.
72. Under these circumstances, the Court considers that the respondent Government had no positive obligation to take preventive operational measures to protect Ioannis Manitaras’s life.
73. As concerns the effectiveness of the investigation carried out into the circumstances of the death, it is to be noted that Ioannis Manitaras was an elderly man living alone in his house in Rizokarpaso. He had been seen and spoken to early on Sunday 4 April 1999. In the middle of Sunday morning he was found dead lying on the floor of his bedroom. As noted above, it has not been alleged that there were signs of trespass into Mr Manitaras’s property. It appears that the police questioned some thirteen witnesses, visited the house where the body was found and took some photographs.
74. In the Court’s view, under these circumstances and taking into account the fact that the deceased was receiving treatment for heart disease and had been hospitalised for a heart attack, the local authorities’ assumption that death was likely to be due to natural causes cannot be considered unreasonable. The presence of a bloodstain on the floor of the deceased’s room was not, as such, an element showing that a murder had occurred.
75. On 5 April 1999, the day after Ioannis Manitaras’s death, a post-mortem examination was performed at the local hospital. The cerebral hemispheres, the lungs and the heart were removed. The latter was dissected and an area of discoloration was interpreted as an infarct. It was therefore concluded that Ioannis Manitaras had died of a myocardial infarction. As the result of the autopsy was that death was due to natural causes, no further investigation was recommended by the coroner.
76. The Court considers that the steps taken by the local authorities in order to ascertain the cause of death satisfied the requirements of Article 2 of the Convention. In this context, it observes that the fact that the doctor who performed the post-mortem examination was not a specialist but a general practitioner does not, in itself, undermine the reliability of his report. It is true that the latter has been criticised by Professor Thomsen; however, similar criticism is not contained in Dr Cassidy’s report. Lastly, the Court attaches a certain weight to the fact that, as alleged by the Government and not contested by the applicants, UN medical officers were present during the post-mortem examination performed by Dr Horoz.
77. In the light of the above and all the material in its possession, the Court does not discern an appearance of a violation of Article 2 of the Convention.
78. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
79. The applicants complained of the failure by Turkey to conduct any proper investigation into Ioannis Manitaras’s death or to provide them with any legal means for accusing the authorities of his death or for challenging the lack of an investigation.
80. They invoked Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
81. The Government disputed this claim, as being based on the wrong assumption that there had been no proper inquiry into Ioannis Manitaras’s death. In reality, proper inquiries had been carried out by the “TRNC” authorities and by the UNCIVPOL.
82. According to the Court’s case-law, Article 13 cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be: the grievance must be an arguable one in terms of the Convention (see Boyle and Rice v. the United Kingdom, judgment of 24 April 1988, Series A no. 131, p. 23, § 52).
83. In the present case the Court has concluded that the applicants’ substantive claims under Article 2 of the Convention were manifestly ill-founded. The rejection of a complaint as “manifestly ill-founded” amounts to a decision that “there is not even a prima facie case against the respondent State” (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, p. 10, § 18, and Walter v. Italy (dec.), no. 18059/06, 11 July 2006). The Court is therefore of the opinion that in the circumstances of the present case, the applicants did not have any arguable grievance in terms of the Convention and that Article 13 does not apply.
84. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
85. The applicants alleged that the killing of Ioannis Manitaras and the subsequent treatment of his body and his family constituted inhuman and/or degrading treatment contrary to Article 3 of the Convention as well as a violation of their right to respect for their family life and home under Article 8.
86. These provisions read as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
87. The Government disputed this claim.
A. Arguments of the parties
1. The Government
88. The Government reiterated their allegation that Ioannis Manitaras had died a natural death. They further noted that his body had been transported to Magosa Hospital in a jeep driven by one of his relatives and escorted by the police. After the autopsy the body had been transferred to the Nicosia General Hospital in a UN ambulance.
89. The deceased had not been buried in his native village because his family had decided to have him buried at Paralimni in South Cyprus. The allegation, based upon hearsay, that some graves in the Karpas region had been violated was unsubstantiated. Under these circumstances, no question of inhuman or degrading treatment could arise as far as the transportation and burial of the body were concerned.
90. The fact that the sixth applicant had not been allowed to cross to the north in order to visit his grandfather’s house on 5 April 1999 could not fall within the ambit of Article 3 of the Convention and Turkey had not ratified Protocol No. 4 on freedom of movement.
91. The Government observed, lastly, that Ioannis Manitaras’s family did not have a “home” in the Karpas region.
2. The applicants
92. Under Article 3, the applicants referred, in particular, to the distressing and disrespectful way in which the authorities had handed Ioannis Manitaras’s body over to them and their subsequent refusal to allow the sixth applicant to accompany his father and uncles (the first, second and third applicants) to Rizokarpaso to retrieve the deceased’s clothes and other necessary things for the funeral and burial. This restriction had been based on the “ludicrous ground” that he was only a grandchild and not a child of the deceased.
93. The applicants also stressed that, at the time of his death, Ioannis Manitaras had been the victim of a continuing violation of Articles 3 and 8 as clearly stated by the Court in the case of Cyprus v. Turkey, cited above.
94. In the applicants’ view, these same facts also amounted to a violation of Article 8. Under that provision, they also complained about the vandalism of Christian graves and churches in the Karpas and the refusal to allow Greek Cypriots to visit the graves of their relatives in Karpas. These facts had deprived the applicants of the possibility of grieving for Ioannis Manitaras and of burying him in his village in a dignified manner.
95. Contrary to the Government’s assertions, the first, second, third, fourth and fifth applicants, as the children of Ioannis Manitaras, had been born in the Karpas region and the house in Rizokarpaso was the family home in which they had grown up. The fact that they had later moved elsewhere should not deprive them of their Article 8 rights in respect of that house.
B. The Court’s assessment
96. The Court first refers to its conclusion under Article 2 of the Convention that the elements contained in the file cannot support the theory that Ioannis Manitaras was murdered. It follows that the complaints relating to his “killing” cannot, as such, be taken into consideration.
97. The Court is equally unable to find any appearance of a violation of Article 3 and 8 in respect of Ioannis Manitaras’s living conditions in the “enclaved” region of the Karpas. Those living conditions have not been brought to the attention of the Court within the ambit of the present application, which focused on Mr Manitaras’s death and the events subsequent thereto.
98. As to the conditions in which Ioannis Manitaras’s body was handed over to the applicants – notably, the fact that it was covered in an old sheet and not in a temporary coffin or body bag – the Court refers to the case of Akpınar and Altun v. Turkey (no. 56760/00, §§ 84-87, 27 February 2007) in which it found that the mutilation of the applicants’ relative’s body amounted to degrading treatment.
99. However, the present case is clearly distinguishable from that of Akpınar and Altun, cited above. Indeed, it has not been alleged that the body of Mr Manitaras suffered any mutilation. Even if the sight of their relative’s body covered by an inappropriate item could have provoked some psychological suffering, the Court is of the opinion the distress and anguish which the applicants could have felt did not attain the minimum level of severity to fall within the scope of Article 3 of the Convention. The same applies to the refusal to allow the sixth applicant to accompany his father and uncles to Rizokarpaso to retrieve the things necessary for the funeral and burial.
100. In so far as the applicants invoke Article 8 of the Convention, the Court refers to the case of Płoski v. Poland (no. 26761/95, §§ 32-39, 12 November 2002) in which it held that the refusal to allow a prisoner to attend the funerals of his parents constituted a disproportionate interference with his right to respect for his private and family life and to the case of Hadri-Vionnet v. Switzerland (no. 55525/00, §§ 51-57, 14 February 2008), in which it considered hat this provision included the right of a mother to attend the burial of her son. However, in the present case it has not been argued that the applicants were in any way prevented from participating in the burial of Ioannis Manitaras. Their claims concerning the vandalism of Christian graves in the Karpas region or the impossibility for Greek Cypriots to visit the graves of their relatives are not supported by factual evidence and, in any event, it is not established that these circumstances would have had a direct impact on the applicants. The Court is therefore not convinced that, had the applicants chosen to celebrate the funerals in Rizokarpaso, their right to attend Ioannis Manitaras’s burial would have been interfered with. Furthermore, it is to be noted that the applicants’ visit to Ioannis Manitaras’s house was motivated exclusively by the aim of retrieving the deceased’s clothes and the other things necessary for the burial. There is nothing to show that this task requested the presence of all the applicants or that the refusal to allow the sixth applicant access to the said house created serious difficulties in the organisation of the funeral.
101. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
102. The applicants considered that the violations of their fundamental rights were motivated by their Greek Cypriot origins and that this amounted to discrimination contrary to Article 14 of the Convention.
103. This provision reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
104. The Government disputed this claim, submitting that the facts complained of in the present application did not fall within the ambit of one or more of the substantive provisions of the Convention. Therefore, there would be no room for the application of Article 14.
The applicants observed that the systematic discrimination of the “enclaved” Greek Cypriots had already been acknowledged by the Court. The interferences with the applicants’ rights were solely due to their Greek Cypriot origins.
105. The Court’s case-law establishes that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). However, not every difference in treatment will amount to a violation of Article 14. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory (see Unal Tekeli v. Turkey, no. 29865/96, § 49, 16 November 2004).
106. In the present case the applicants failed to prove that they had been treated differently from other persons – namely, from Cypriots of Turkish origin – who were in a comparable situation. The Court also refers to its conclusion that the applicants’ fundamental rights under Articles 2, 3 and 8 of the Convention have not been infringed.
107. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş Aracı Nicolas
Deputy Registrar President
MANITARAS AND OTHERS v. TURKEY DECISION
MANITARAS AND OTHERS v. TURKEY DECISION