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Publication:2001-IV
Title:Cyprus v. Turkey
Application No:25781/94
Respondent:Turkey
Referred by:Commission; Government of Cyprus (30-08-99)
Date of reference by Commission:11-09-1999
Date of reference by State:
Date of Judgment:10-05-2001
Articles:2
3
4
5
6
8
9
10
11
13
P1-1
P1-2
14
17
18
Conclusion:Violation of article 2
Violation of article 3
No violation of article 4
Violation of article 5
Violation of article 6
Violation of article 8
Violation of article 9
Violation of article 10
No violation of article 11
Violation of article 13
Violation of article P1-1
Violation of article P1-2
No violation of article 14
No violation of article 17
No violation of article 18
Question under article 41 reserved
Keywords:LIFE / INHUMAN TREATMENT OR PUNISHMENT / SECURITY OF PERSON / PROPERTY / RESPECT FOR HOME / EFFECTIVE REMEDY / RELIGIOUS FREEDOM / CENSORSHIP / FAIR TRIAL

Summary:
Article 1 ECHR: National jurisdiction; Article 2(1) ECHR: Right to life; Article 3 ECHR: Prohibition of torure and inhuman treatment; Article 5(1) ECHR: Right to liberty and security of person; Article 6(1) ECHR: Right to a fair trial; Article 8(1) ECHR: Right to respect for private and family life; Article 8(1) ECHR: Right to respect for correspondence; Article 8(1) ECHR: Right to respect for home; Article 9 ECHR: Right to freedom of religion; Article 10(1) ECHR: Right to freedom of expression; Article 11(1) ECHR: Right to freedom of association; Article 13 ECHR: Right to an effective remedy; Article 35(1) ECHR: Exhaustion of domestic remedies; Protocol No. 1 Article 1 ECHR: Right to property; Protocol No. 1 Article 2 ECHR: Right to education

Facts:
The case relates to the situation that has existed in northern Cyprus since the conduct of military operations there by Turkey in July and August 1974 and the continuing division of the territory of Cyprus. In connection with that situation, Cyprus maintained that Turkey had continued to violate the Convention in northern Cyprus after the adoption of two earlier reports by the European Commission of Human Rights, which were drawn up following previous applications brought by Cyprus against Turkey. In the Convention proceedings, Cyprus contended that Turkey was accountable under the Convention for the violations alleged notwithstanding the proclamation of the "Turkish Republic of Northern Cyprus" in November 1983 and the subsequent enactment of the "TRNC Constitution" in May 1985. Cyprus maintained that the "TRNC" was an illegal entity from the standpoint of international law and pointed to the international community's condemnation of the establishment of the "TRNC". Turkey, on the other hand, maintained that the "TRNC" was a democratic and constitutional state, which was politically independent of all other sovereign states, including Turkey. For that reason, Turkey stressed that the allegations made by Cyprus were imputable exclusively to the "TRNC" and that Turkey could not be held accountable under the Convention for the acts or omissions on which those allegations were based.

Complaints:
Cyprus alleged violations of the Convention under articles 1 (obligation to respect human rights), 2, 3, 5, 6, 8, 9, 10, 11, 13, articles 1 and 2 of Protocol No. 1, and articles 14, 17, and 18. According to Cyprus, these articles were violated as a matter of administrative practice by the respondent state.

Legal considerations:
The Court considered that, notwithstanding Turkey's failure either to submit a memorial to the Court or to attend the oral hearing held on 20 September 2000 and to plead these issues afresh, it had jurisdiction to examine those preliminary issues raised by Turkey in the proceedings before the Commission which the Commission reserved for the merits stage. The Court held that the applicant government had both locus standi to bring the application, given that the Republic of Cyprus was the sole legitimate government of Cyprus, and a legitimate legal interest in having the merits of the application examined, since neither of the resolutions adopted by the Committee of Ministers of the Council of Europe on the Commission's previous reports had resulted in a decision which could be said to be dispositive of the issues raised in the application. Furthermore, the Cour confirmed the Commission's conclusion that situations which ended more than six months before the date of introduction of the application (22 May 1994), fell outside the scope of its examination.

Article 1
As to Turkey's denial of liability under the Convention for the allegations made against it, the Court held that the facts complained of in the application fell within the "jurisdiction" of Turkey within the meaning of article 1 and therefore entailed the respondent state's responsibility under the Convention. In reaching this conclusion, the Court noted that such a finding was consistent with its earlier statements in its Loizidou v. Cyprus (merits) judgment. In that judgment, the Court had noted that Turkey exercised effective overall control of northern Cyprus through its military presence there, with the result that its responsibility under the Convention was engaged for the policies and actions of the "TRNC" authorities. In the instant case, the Court stressed that Turkey's responsibility under the Convention could not be confined to the acts of its own soldiers and officials operating in northern Cyprus, but was also engaged by virtue of the acts of the local administration ("the TRNC"), which survived by virtue of Turkish military and other support.

Article 35(1)
The Court further held, by ten votes to seven, that, for the purposes of the exhaustion requirements under the former article 26 (current article 35(1), remedies available in the "TRNC" may be regarded as "domestic remedies" of the respondent state and that the question of the effectiveness of these remedies had to be considered in the specific circumstances where it arose, on a case by case basis. The majority of the Court, in line with the majority viewpoint of the Commission, considered, among other things, and with reference to the Advisory Opinion of the International Court of Justice in the Namibia case, that in situations similar to those arising in the present case, the obligation to disregard acts of de facto entities, like the "TRNC", was far from absolute. For the Court, life went on in the territory concerned, for its inhabitants, and that life must be made tolerable and be protected by the de facto authorities, including their courts. It considered that, in the interests of the inhabitants, the acts of those authorities could not simply be ignored by third states or by international institutions, especially courts. To hold otherwise would amount to stripping the inhabitants of the territory of all their rights whenever they were discussed in an international context, something that would amount to depriving them even of the minimum standard of rights to which they were entitled. In reaching this conclusion, the Court's majority stressed that its reasoning did not in any way legitimise the "TRNC" and reaffirmed the view that the government of the Republic of Cyprus remained the sole legitimate government of Cyprus.

Article 2
The Court found that there had been no violation of article 2 by reason of an alleged violation of a substantive obligation under that article in respect of any of the missing persons. The evidence before it did not substantiate to the required standard that any of the missing persons were killed in circumstances engaging the respondent state's liability. On the other hand, the Court found that there had been a continuing violation of article 2 on account of the failure of the authorities of the respondent state to conduct an effective investigation into the whereabouts and fate of Greek-Cypriot missing persons who disappeared in life-threatening circumstances. The Court held that no violation of article 2 had been established by reason of an alleged practice of denying access to medical services to Greek Cypriots and Maronites living in northern Cyprus.

Article 5(1)
The Court concluded that no violation of article 4 had been established. Although it found that it had not been established that, during the period under consideration, any of the missing persons were actually in detention, the Court ruled, by sixteen votes to one, that there had been a continuing violation of article 5, by virtue of the failure of the authorities of the respondent state to conduct an effective investigation into the whereabouts and fate of the Greek-Cypriot missing persons, in respect of whom there was an arguable claim that they were in Turkish custody at the time of their disappearance.

Article 3
As to the relatives of the Greek-Cypriot missing persons, the Court held that there had been a continuing violation of article 3. In the Court's opinion, the silence of the authorities of the respondent state in the face of the real concerns of the relatives attained a level of severity which could only be categorised as inhuman treatment. In addition, the Court found that there had been a violation of article 3 in that the Greek Cypriots living in the Karpas area of northern Cyprus had been subjected to discrimination amounting to degrading treatment. It observed in this connection that the Karpas Greek-Cypriot population was compelled to live in a situation of isolation and that its members were controlled and restricted in their movements and had no prospect of renewing or developing their community. For the Court, the conditions under which the population was condemned to live were debasing and violated the very notion of respect for the human dignity of its members. The discriminatory treatment attained a level of severity which amounted to degrading treatment.

Article 8(1)
The Court held that there had been a continuing violation of article 8 by reason of the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus. Having regard to that conclusion, the Court found that it was not necessary to examine whether there had been a further violation of that article by reason of the alleged manipulation of the demographic and cultural environment of the Greek-Cypriot displaced persons' homes in northern Cyprus. As to the applicant government's complaint under article 8 concerning the interference with the right to respect for family life on account of the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus, the Court held that this complaint fell to be considered in the context of their allegations in respect of the living conditions of the Karpas Greek Cypriots. The Court further held that, from an overall standpoint, there had been a violation of article 8 concerning the right of Greek Cypriots living in northern Cyprus to respect for their private and family life and to respect for their home. In this connection the Court noted that the population concerned was subjected to serious restrictions on the exercise of these rights, including monitoring of its members' movements and contacts. The surveillance effected by the authorities even extended to the physical presence of state agents in the homes of Greek Cypriots on the occasion of social or other visits paid by third parties, including family members. Having regard to that conclusion, the Court found that it was not necessary to examine separately the applicant government's complaint under article 8 concerning the effect of the respondent state's alleged colonisation policy on the demographic and cultural environment of the Greek Cypriots' homes. The Court further found no violation of article 8 concerning the right to respect for correspondence by reason of an alleged practice of interference with the right of Greek Cypriots living in northern Cyprus to respect for their correspondence.

Article 1 Protocol No. 1
Furthermore, the Court held that there had been a continuing violation of article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus were being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights. The Court further held that there had been a continuing violation of article 1 of Protocol No. 1 in respect of Greek Cypriots living in northern Cyprus, in that their right to the peaceful enjoyment of their possessions was not secured in case of their permanent departure from that territory and in that, in case of death, inheritance rights of relatives living in southern Cyprus were not recognised. It held that no violation of article 1 of Protocol No. 1 had been established by virtue of an alleged practice of failing to protect the property of Greek Cypriots living in northern Cyprus against interferences by private persons.

Article 13
The Court also held that there had been a violation of article 13 by reason of the failure to provide to Greek Cypriots not residing in northern Cyprus any remedies to contest interferences with their rights under article 8 and article 1 of Protocol No. 1. The Court found that there had been a violation of article 13 by reason of the absence, as a matter of practice, of remedies in respect of interferences by the authorities with the rights of Greek Cypriots living in northern Cyprus under articles 3, 8, 9 and 10 of the Convention and articles 1 and 2 of Protocol No. 1. On the other hand, it held that no violation of article 13 had been established by reason of the alleged absence of remedies in respect of interferences by private persons with the rights of Greek Cypriots living in northern Cyprus under article 8 and article 1 of Protocol No. 1.

Article 9(1)
The Court held that there had been a violation of article 9 in respect of Greek Cypriots living in northern Cyprus. As regards Maronites living in northern Cyprus it found, unanimously, no violation of article 9.

Article 10(1)
The Court also held that there had been a violation of article 10 in respect of Greek Cypriots living in northern Cyprus in so far as school-books destined for use in their primary school were subject to excessive measures of censorship.

Article 2 Protocol No. 1
The Court also ruled that there had been a violation of article 2 of Protocol No. 1 in respect of Greek Cypriots living in northern Cyprus in so far as no appropriate secondary-school facilities were available to them.

Article 6(1)
Furthermore it held that no violation of article 6 had been established in respect of Greek Cypriots living in northern Cyprus by reason of an alleged practice of denying them a fair hearing by an independent and impartial tribunal in the determination of their civil rights and obligations. The Court found that there had been a violation of article 6 on account of the legislative practice of authorising the trial of civilians by military courts.

Article 11(1)
The Court also held that no violation of article 11 had been established by reason of an alleged practice of denying Greek Cypriots living in northern Cyprus the right to freedom of association.

With respect to the rights of Turkish Cypriots, including members of the Gypsy community living in northern Cyprus, the Court declined jurisdiction to examine those aspects of the applicant government's complaints under articles 6, 8, 10 and 11 in respect of political opponents of the regime in the "TRNC" as well as their complaints under articles 1 and 2 of Protocol No. 1 in respect of the Turkish-Cypriot Gypsy community, which were held by the Commission not to be within the scope of the case as declared admissible.

The Court further held that there had been no violation of articles 3, 5, 8, 10 and 11 concerning the rights of Turkish Cypriot opponents of the regime in northern Cyprus by reason of an alleged administrative practice, including an alleged practice of failing to protect their rights under these articles. The Court found no violation of articles 3, 5, 8 and 14 concerning the rights of members of the Turkish-Cypriot Gypsy community by reason of an alleged administrative practice, including an alleged practice of failing to protect this group's rights under these articles. It held that: no violation of article 10 had been established by reason of an alleged practice of restricting the right of Turkish Cypriots living in northern Cyprus to receive information from the Greek-language press; no violation of article 11 had been established by reason of an alleged practice of interference with the right to freedom of association or assembly of Turkish Cypriots living in northern Cyprus; no violation of article 1 of Protocol No. 1 had been established by reason of an alleged administrative practice, including an alleged practice of failing to secure enjoyment of their possessions in southern Cyprus to Turkish Cypriots living in northern Cyprus. By eleven votes to six, the Court found that no violation of article 13 had been established by reason of an alleged practice of failing to secure effective remedies to Turkish Cypriots living in northern Cyprus.

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Last Modified: 13-01-2014 16:18:19 (Documentation SIM)