38
CYPRUS v. TURKEY JUDGMENT
an arguable claim that Greek-Cypriot persons who were detained by Turkish
forces or their agents in 1974 disappeared thereafter. For the Commission, a
breach of the Article 5 obligation had to be construed as a continuing
violation, given that the Commission had already found in its 1983 report on
application no. 8007/77 that no information had been provided by the
respondent Government on the fate of missing Greek Cypriots who had
disappeared in Turkish custody. The Commission stressed that there could
be no limitation in time as regards the duty to investigate and inform,
especially as it could not be ruled out that the detained persons who had
disappeared might have been the victims of the most serious crimes,
including war crimes or crimes against humanity.
146. The Commission, on the other hand, found there had been no
violation of Article 5 by virtue of actual detention of Greek-Cypriot missing
persons. It noted in this regard that there was no evidence to support the
assumption that during the period under consideration any missing Greek
Cypriots were still detained by the Turkish or Turkish-Cypriot authorities.
147. The Court stresses at the outset that the unacknowledged detention
of an individual is a complete negation of the guarantees of liberty and
security of the person contained in Article 5 of the Convention and a most
grave violation of that Article. Having assumed control over a given
individual, it is incumbent on the authorities to account for his or her
whereabouts. It is for this reason that Article 5 must be seen as requiring the
authorities to take effective measures to safeguard against the risk of
disappearance and to conduct a prompt and effective investigation into an
arguable claim that a person has been taken into custody and has not been
seen since (see the Kurt v. Turkey judgment of 25 May 1998, Reports 1998III, p. 1185, § 124).
148. The Court refers to the irrefutable evidence that Greek Cypriots
were held by Turkish or Turkish-Cypriot forces. There is no indication of
any records having been kept of either the identities of those detained or the
dates or location of their detention. From a humanitarian point of view, this
failing cannot be excused with reference either to the fighting which took
place at the relevant time or to the overall confused and tense state of
affairs. Seen in terms of Article 5 of the Convention, the absence of such
information has made it impossible to allay the concerns of the relatives of
the missing persons about the latter's fate. Notwithstanding the impossibility
of naming those who were taken into custody, the respondent State should
have made other inquiries with a view to accounting for the disappearances.
As noted earlier, there has been no official reaction to new evidence that
Greek-Cypriot missing persons were taken into Turkish custody (see
paragraph 134 above).
149. The Court has addressed this allegation from the angle of the
procedural requirements of Article 5 of the Convention and the obligations
devolving on the respondent State as a Contracting Party to the Convention.