Cyprus v. Turkey (1982) 4 E.H.R.R. 482
Before the European Commission of Human Rights
10 July 1976
*482 Cyprus v. Turkey
Applications 6780/74 and 6950/75
Before the European Commission of Human Rights
Eur Comm HR
10 July 1976
1. Procedure. Effect of refusal of respondent State to co-operate in proceedings before the Commission.
The refusal of a respondent State to co-operate in proceedings under Article 28 did not prevent the Commission from completing, as far as possible, its examination of the application and from making a Report to the Committee of Ministers under Article 31 of the Convention .
2. Procedure. Difficulties in establishing the facts.
The large number of alleged violations caused the Commission to restrict its investigation to a limited number of representative cases. In the absence of any submissions by the non-participating respondent State, the Commission proceeded with its examination of the facts on the basis of the materials before it. The Commission distinguished in its Report between matters of common knowledge, facts established to the Commission's satisfaction, allegations for which evidence existed (ranging from prima facie to strong) and allegations for which no relevant evidence had been found [76-82].
3. State responsibility under the Convention.
State jurisdiction, in the meaning of Article 1 of the Convention, existed in so far as a respondent State exercised control over persons or property .
4. Right to respect for home (Art. 8). Displacement of persons.
The displacement of persons from their homes raised issues under Article 8 . Preventing Greek Cypriot refugees from returning to their homes in the north of Cyprus constituted an infringement of Article 8 which was imputable to the respondent State . The eviction of Greek Cypriots from their homes was not in conformity with Article 8 . The respondent State did not act in accordance with Article 8 when it refused to allow several thousand Greek Cypriots to return to their homes in the north after they had been transferred to the South under intercommunal agreements . The separation of families brought about by measures of displacement was not in conformity with Article 8 .
Right to liberty (Art. 5). Freedom of Movement (Prot. 4 Art. 2). Deprivation of liberty.
(a) The curfew imposed at night on 'enclaved' Greek Cypriots in the north of Cyprus, whilst a restriction of liberty, was not a deprivation of liberty within the meaning of Article 5 (1) .
(b) The alleged restrictions of movement outside the built up area of villages in the north of Cyprus would have fallen within the scope of Article 2 of Protocol No. 4 which had not been ratified by either Cyprus or Turkey . *483
(c) The confinement of more than 2,000 Greek Cypriots in detention centres, which was imputable to Turkey, amounted to a deprivation of liberty within the meaning of Article 5 (1) of the Convention. The detention was not justified under any of the subparagraphs of Article 5 (1) .
(d) The detention in Turkey of Greek Cypriot military personnel and of Greek Cypriot civilians was a deprivation of liberty under Article 5 (1) and was not justified by any of the subparagraphs of the article .
(e) The Commission did not examine the application of Article 5 to persons accorded the status of prisoners of war because such persons had been visited by delegates of the International Committee of the Red Cross and were subject to the Geneva Protocols .
6. Right to life (Art. 2).
There were strong indications of violations of Article 2 (1) of the Convention by the respondent State in a substantial number of cases .
Inhuman treatment (Art. 3). Rape. Conditions of detention. Physical assaults on persons not in detention.
(a) There was strong evidence of many rapes by Turkish soldiers . It was not shown that the Turkish authorities had taken adequate measures to prevent rapes or that they generally took any disciplinary measures following such incidents. The failure to prevent rapes was imputable to Turkey . The incidents of rape constituted 'inhuman treatment' in the sense of Article 3 of the Convention .
(b) There was evidence of physical ill treatment of detainees by Turkish soldiers. The ill treatment was of sufficient severity to have amounted to 'inhuman treatment' in the sense of Article 3 of the Convention .
(c) The withholding from prisoners of an adequate supply of food and drinking water and of adequate medical treatment constituted 'inhuman treatment' in the sense of Article 3 .
(d) There were indications of ill treatment by Turkish soldiers of persons not in detention .
8. Right to property (Prot. 1 Art. 1). Deprivation of possessions.
There had been deprivations of possessions of Greek Cypriots on a large scale, the exact scope of which could not be determined. The deprivation of possessions was imputable to the respondent State and not justifiable under Article 1 of Protocol No. 1 .
9. Forced labour (Art. 4).
The incompleteness of the investigation did not allow any conclusions to be made on the allegations of forced labour .
Obligation to secure the Convention rights (Art. 1). Right to an effective remedy before a national authority (Art. 13). Non discrimination (Art. 14). Articles 17 and 18.
(a) Article 1 of the Convention did not confer any rights in addition to those mentioned in Section 1 of the Convention. It could not be the subject of a separate breach . (b) The Commission found no evidence that effective remedies before a national authority had been available .
(c) The acts violating the Convention had been exclusively directed against members of one of the two communities in *484 Cyprus, namely the Greek Cypriot community. The respondent State had thus failed to secure the rights and freedoms in these articles without discrimination on grounds of ethnic origin, race and religion as required by Article 14 .
(d) No separate issues were found under Articles 17 and 18 .
Derogation in time of war or other public emergency threatening the life of the nation (Art. 15). Competence to derogate. Communication under Article 15 (3). Requirement of some formal and public act of derogation.
(a) When the Commission had found that the respondent State was responsible under the Convention to the extent that it exercised control over persons and property, it followed that to the same extent the State was the High Contracting Party competent ratione loci for any measures of derogation under Article 15 of the Convention .
(b) The Commission reserved the question whether measures of derogation are null under the Convention when a State has failed to notify the Secretary General of the Council of Europe as required under Article 15 (3) .
(c) Article 15 required some formal and public act of derogation such as a declaration of martial law or a state of emergency. When no such act had been proclaimed by the High Contracting Party concerned, Article 15 could not apply .
(d) The declaration of martial law in certain provinces of Turkey did not extend to cover the treatment of persons brought into Turkey from the northern area of Cyprus .
The following cases are referred to in the Commission's Report:
1. Australia v. France (Nuclear Tests)  I.C.J. Rep. 253.
2. Austria v. Italy (App. No. 788/60) 4 Yearbook 116.
3. Federal Republic of Germany v. Iceland (Fisheries Jurisdiction)  I.C.J. Rep. 175.
4. First Greek Case (App. Nos. 3321-3323/67 and 3344/67) 12 Yearbook passim.
5. Greece v. United Kingdom (App. No. 156/56) 1 Yearbook 128.
6. Greece v. United Kingdom (App. No. 299/57) 2 Yearbook 274.
7. Ireland v. United Kingdom (Commission's Report) Series B.
8. Lawless v. Ireland (Commission's Report) Series B. 1960-1961.
9. New Zealand v. France (Nuclear Tests)  I.C.J. Rep. 457.
10. United Kingdom v. Iceland (Fisheries Jurisdiction)  I.C.J. Rep. 3.
The following additional cases are referred to in the Commision's Admissibility Decision:
11. First Greek Case (New Allegations) 11 Yearbook 730.
12. Retimag v. Germany (App. No. 712/60) 4 Yearbook 384.
13. X v. Germany (App. No. 1611/62) 8 Yearbook 158.
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
REPORT OF THE COMMISSION
1. The following is an outline of the two applications as submitted by the Republic of Cyprus to the European Commission of Human Rights under Article 24 of the European Convention on Human Rights. In their first application (No. 6780/74) the applicant Government stated that Turkey had on 20 July 1974 invaded Cyprus, until 30 July occupied a sizeable area in the north of the island and on 14 August 1974 extended their occupation to about 40 per cent. of the territory of the Republic. The applicant Government alleged violations of Articles 1, 2, 3, 4, 5, 6, 8, 13 and 17 of the Convention and Article 1 of Protocol No. 1 and of Article 14 of the Convention in conjunction with the aforementioned Articles. In their second application (No. 6950/75) the applicant Government contended that, by acts unconnected with any military operation, Turkey had, since the introduction of the first application, committed, and continued to commit, further violations of the above Articles in the occupied territory.
2. The respondent Government argued that the applications were inadmissible on the following grounds: the applicants were not *486 entitled to represent the Republic of Cyprus and accordingly had no standing before the Commission as applicants under Article 24 of the Convention; domestic remedies had not been exhausted as required by Article 26 of the Convention; the respondent Government had no jurisdiction in the area of Cyprus where most of the alleged acts were claimed to have occurred; and the applications constituted an abuse of the right of petition.
3. The two applications were joined by the Commission on 21 May 1975. Having received the Parties' written observations on the admissibility of the applications the Commission, on 22 and 23 May 1975, heard their oral submissions on this issue. On 26 May 1975 the Commission declared the applications admissible. [FN1]
FN1 The Admissibility Decision is published infra, 4 E.H.R.R. 583.
4. For the purpose of carrying out its double task under Article 28 of the Convention of establishing the facts of the case and being at the Parties' disposal with a view to securing a friendly settlement, the Commission set up a Delegation which, in the course of its investigation, held a hearing of witnesses and obtained further evidence in Cyprus in September 1975. Both the Commission and the Delegation also put themselves at the Parties' disposal with a view to securing a friendly settlement.
The respondent Government, for reasons stated in their communication of 27 November 1975, [FN2] did not participate in the proceedings on the merits and were not prepared to enter into negotiations with the applicant Government with a view to reaching a friendly settlement of the case. The legal problems arising as a result of this non-participation are dealt with in Part I, Chapter 4, of the Report.
FN2 Infra, para. 23.
5. The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention after deliberation in plenary session. The Report was adopted on 10 July 1976 and is now transmitted to the Committee of Ministers in accordance with paragraph (2) of Article 31. A friendly settlement of the case has not in the circumstances been possible and the purpose of the Commission in this Report, as provided in paragraph (1) of Article 31, is accordingly:
(1) to establish the facts, and
(2) to state an opinion as to whether the facts found disclose a breach by the respondent Government of its obligations under the Convention.
PART I --GENERAL
Chapter 1 --Background of Events
6. Cyprus was under Turkish rule from 1571, when it was conquered by the Turks from the Venetians, until 1878, when it came under British administration. It was annexed to the British Crown *487 in 1914 and, after Turkey had under the Treaty of Lausanne of 24 July 1923 [FN3] recognised this annexation, made a Crown colony in 1925.
FN3 League of Nations Treaty Series, Vol. 28, p. 12 (No. 701). Article 20 of the Treaty stated: 'Turkey hereby recognises the annexation of Cyprus proclaimed by the British Government on the 5th November 1914.'
7. In 1931 serious disturbances arose in Cyprus in connection with the demand for union with Greece (enosis) put forward by the Greek Cypriots (about 80 per cent. of the population). After World War II the enosis movement was resumed by the Greek Cypriots under the leadership of Archbishop Makarios, but the Turkish Cypriots (about 18 per cent. of the population) rejected a union with Greece and proposed the continuation of British rule or the island's partition.
In 1955 the London Conference of the Foreign Ministers of Greece, Turkey and the United Kingdom failed to produce a solution. In Cyprus emergency measures [FN4] were introduced by the British authorities in order to suppress the guerilla activities of EOKA (National Organisation of Cypriot Struggle) headed by Colonel Grivas, a former officer of the Greek army.
FN4 These measures were the subject of Application No. 176/56--Greece v. United Kingdom: 1 Yearbook 128, 130.
The United Nations General Assembly, seized of the Cyprus question as an issue of self-determinatation since 1955, repeatedly urged the parties concerned to find a solution through negotiation.
8. The proposal, accepted by Archbishop Makarios, that Cyprus should become an independent state eventually led to negotiations and, at the Zurich Conference (1959), to an agreement between Greece and Turkey, subsequently accepted by the United Kingdom and the leaders of the Greek and Turkish Cypriot communities (London agreement). [FN5]
FN5 Following this agreement proceedings in Application No. 176/56, and in a further application brought by Greece against the United Kingdom (No. 299/57), were terminated: 2 Yearbook 174 et seq.
The following instruments resulted from the agreements:
-- the Treaty of Establishment of 16 August 1960 [FN6] setting up the Republic of Cyprus and providing that its territory shall comprise the island of Cyprus with the exception of the military bases of Dhekhelia and Akrotiri (which remained under British sovereignty);
-- the Treaty of Alliance of 16 August 1960, [FN7] in which Cyprus, Greece and Turkey undertook to resist any attack or aggression directed against the independence or territorial integrity of Cyprus; it further provided that a tripartite headquarters should be established and that military contingents should be stationed on the territory of the Republic, the Greek and Turkish contingents to consist of 950 and 650 officers and men respectively; *488
-- the Treaty of Guarantee of 16 August 1960, [FN8] in which Cyprus undertook to maintain the constitutional order created, and in which Greece, Turkey and the United Kingdom guaranteed this order and the independence and integrity of Cyprus.
FN6 United Nations Treaty Series, Vol. 382, p. 10 (I No. 5476).
FN7 United Nations Treaty Series, Vol. 397, p. 289 (I No. 5712).
FN8 United Nations Treaty Series, Vol. 382, p. 4 (I No. 5475).
9. Under the Constitution of Cyprus of 1960, provided for in the above agreements, executive power was vested in a Greek Cypriot President (since 1960 Archbishop Makarios) and a Turkish Cypriot Vice-President (Mr. Kütchük, succeeded by Mr. Denktash). Decisions of the Council of Ministers, composed of seven Greek and three Turkish Cypriots, were binding on the President and Vice- President who could, however, exercise a veto in matters relating to security, defence and foreign affairs. Of the members of the House of Representatives 70 per cent. were to be elected from the Greek and 30 per cent. from the Turkish Cypriot community, and the civil service was to consist of 70 per cent. Greek and 30 per cent. Turkish Cypriots.
10. In 1963 violent disturbances broke out between the two communities in Cyprus resulting in losses of life and property on both sides. The administration ceased to function on a bicommunal basis. There were further outbreaks of intercommunal violence in 1964, 1965 and 1967.
A United Nations peace-keeping force (United Nations Force in Cyprus-- UNFICYP) was sent to the island in 1964 and attempts were made by United Nations representatives to mediate (Plaza Report of 1965). These attempts having failed, intercommunal talks under the auspices of the United Nations Secretary General began in 1968 and continued until July 1974. These talks brought progress in some respect but no final agreement was reached.
11. On 6 July 1974 President Makarios made public a letter he had sent on 2 July to General Ghizikis, head of the new regime in Greece since November 1973. In this letter he charged EOKA-B, an illegal organisation which since 1972 had been conducting a terrorist campaign against his Government, and officers of Greek nationality in the Cypriot National Guard with an attempt on his life, instigated by Greek Government agencies. General Denissis, commanding officer of the Cypriot National Guard, having been called to Athens on 13 July, a coup d'état took place in Cyprus under the leadership of other Greek officers on 15 July 1974 and, as a result, President Makarios had to leave the island on 16 July.
12. In Turkey the National Security Council met on 15 July 1974. The Council of Ministers decided on the following day to convene both Houses of the National Assembly on 19 July. In a note to the United Kingdom Turkey called for joint British-Turkish action under the Treaty of Guarantee to protect the independence of Cyprus and announced that, if this did not take place, she would proceed *489 unilaterally as provided for by the Treaty. Conversations followed in London on 18 July between the Turkish Prime Minister Ecevit and Foreign Minister ad interim Isik and United Kingdom Foreign Minister Callaghan, but no agreement on a joint action was reached. Large troop movements began towards the south and west of Turkey. On 19 July the Grand National Assembly (Chamber and Senate) met in closed session in Ankara, it alone having authority under the Turkish Constitution (Article 66) to order dispatch of armed forces abroad.
On 20 July 1974 Turkish army units were landed in the Kyrenia area of Cyprus with naval and air support. The purpose of this operation was stated in a Government communiqué of the same day [FN9] in the following words:
A coup d'état has been carried out in Cyprus by both the Greek contingent stationed in the Island and the unconstitutional Greek National Guard which is under the complete command and control of officers from the mainland Greece. Since the forces involved in the coup are the military units under the direct command of a foreign State, the independence and the territorial integrity of Cyprus have been seriously impaired as a result of this action. The present situation in the Island, as has emerged from the coup, has completely darkened the future of the independent State of Cyprus. In these circumstances it is hoped that all States which are favouring the independence and the territorial integrity of Cyprus will support Turkey in her action aimed at restoring the legitimate order in the Island, undertaken in her capacity as a State which guaranteed the independence of Cyprus under international treaties. After having fully evaluated the recent events which took place in the Island and in view of the failure of the consultations and efforts it undertook in accordance with the Treaty of Guarantee of 1960 as one of the guarantor powers, the Government of the Republic of Turkey had decided to carry out its obligations under Article 4/2 of the said Treaty, with a view to enable Cyprus to survive as an independent State and to safeguard its territorial integrity and the security of life and property of the Turkish community and even that of many Greek Cypriots who are faced with all sorts of dangers and pressures under the new Administration. The purpose of our peaceful action is to eliminate the danger directed against the very existence of the Republic of Cyprus and the rights of all Cypriots as a whole and to restore the independence, territorial integrity and security and the order established by the basic Articles of the Constitution. Turkey, in the action she undertook as the Guarantor Power shall act with the sincere desire of cooperation with the United Nations Peace-keeping Force in the Island in the restoration of conditions of security. On the other hand, because of the above- mentioned aim of the action, those Greek Cypriots who are wholeheartedly attached to the independence of Cyprus and to the rule of democracy in the Island, need not be concerned. Turkey's aim is to restore security and human rights without any discrimination whatsoever among the communities. Our purpose in Cyprus, a bicommunal State, is to get the intercommunal talks to start as rapidly as possible in order to restore the situation prior to the coup and the legitimate order. But it is natural that we cannot consider as *490 interlocutor the present de facto Administration which seized power by the use of brutal force and which is not representative of the Greek Cypriot community. Following the restoration of constitutional order, Turkey will strictly abide by what is required from a guarantor power which fulfilled its treaty obligations.
FN9 Published in the special issue 'Cyprus' of the Turkish quarterly review Foreign Policy (Ankara, 1974/75), pp. 224-225.
By 22 July 1974 the Turkish army units landed in the Kyrenia area had joined up with Turkish military units already posted or dropped by parachute in the northern part of Nicosia.
13. Following Resolution 353 of the United Nations Security Council of 20 July 1974 [FN10] a cease-fire was agreed for 16.00 hours on 22 July, but the area of Turkish military action continued to be extended up to 30 July 1974, when it formed a rough triangle between the northern part of Nicosia and pointed approximately six miles west, and six miles east of Kyrenia.
FN10 The UN Resolutions are conveniently collected together and commented on by Professor Rosalyn Higgins in United Nations Peacekeeping: Documents and Commentary, Volume 4 Europe 1946-1979 (1981 Oxford). Security Council Resolution 353 is reported at p. 109.
The coup d'état having failed, Assembly President Clerides took office as acting President of Cyprus on 23 July 1974.
The First Geneva Conference of the Foreign Ministers of Greece, Turkey and the United Kingdom, meeting as Guarantors under the Treaty of Guarantee, opened on 25 July 1974 and on 30 July issued a declaration [FN11] convening a second conference on 8 August.
FN11 Higgins op. cit., p. 282.
14. The Second Geneva Conference was abortive and the Turkish forces on 14 August 1974 resumed their armed action with, according to their general Staff, over 20,000 men and 200 tanks. At 17.00 hours on 16 August a cease-fire was declared. The Turkish forces had by then reached a line which runs from Morphou through Nicosia to the south of Famagusta; in two areas, Louroujina and west of Famagusta, they advanced beyond this line.
On 7 December 1974 President Makarios returned to Cyprus.
15. The Parliamentary Assembly of the Council of Europe established a working group on Cyprus on 5 September and adopted Resolutions 736 and 737 on 15 September 1974. The working group visited Cyprus from 12 to 14 December. On 27 January 1975 the Parliamentary Assembly adopted Recommendation 756, related to matters dealt with in the report made on Cyprus by the Committee on Population and Refugees. [FN12] From 10 to 13 March the working group visited Ankara and Athens and on 10 April the Political Affairs Committee submitted a Report on Cyprus and a draft Recommendation, [FN13] which was unanimously adopted by the Parliamentary Assembly on 24 April 1975. On 9 January 1976 the Political Affairs Committee submitted a Report on the situation in the Eastern Mediterranean with a draft Resolution on the situation in *491 Cyprus, [FN14] which was adopted by the Parliamentary Assembly on 30 January.
FN12 Council of Europe Doc. 3566 (Rapporteur Forni).
FN13 Council of Europe Doc. 3600 (Rapporteur Karasek).
FN14 Council of Europe Doc. 3708 (Rapporteur Karasek).
16. The Security Council of the United Nations from the very beginning of the "explosive situation" in Cyprus in July 1974 acted continuously. Hundreds of letters of the responsible leaders of the two communities were sent to the Security Council, written communications of concerned member States of the United Nations dealt with the situation and Special Reports of the Secretary General on developments in Cyprus were submitted to the Security Council.
Action of the United Nations comprised:
-- Security Council Resolutions 353, [FN15] 360, [FN16] 361 [FN17] and further resolutions (concerning inter alia the extension of UNFICYP);
-- General Assembly Resolutions 3212--XXIX, [FN18] 3395--XXX [FN19] and 3450--XXX; [FN20]
-- Resolutions 4 (XXXI) [FN21] and 4 (XXXII) [FN22] of the Commission on Human Rights;
-- intercommunal talks held under the auspices of the Secretary General.
FN15 Higgins op. cit. p. 109.
FN16 Higgins op. cit. p. 112.
FN17 Higgins op. cit. p. 113.
FN18 Higgins op. cit. p. 114.
FN19 Higgins op. cit. p. 117.
FN20 Adopted on 9 December 1979.
FN21 Adopted on 13 February 1975.
FN22 Adopted on 27 February 1976.
17. Intercommunal talks led by Mr. Clerides and Mr. Denktash, took place intermittently between September 1974 and February 1975. On 20 September 1974 agreement was reached on exchange of prisoners and detainees, completed on 31 October. Following an agreement of 11 November 1974 the evacuation to the south of Cyprus of persons held in the remaining two detention centres of Voni and Gypsou was completed by the Turkish authorities on 28 November. On 17 January 1975 a sub-committee on humanitarian issues was established.
On 13 February 1975 a constituent assembly set up by the Turkish Cypriot community declared the area north of the demarcation line [FN23] to constitute a Turkish Federated State of Cyprus and on 8 June a constitution for it was promulgated.
FN23 Supra, para. 14.
Further intercommunal talks were held in Vienna in April, June and July/August 1975. They led to an agreement allowing all Turkish Cypriots in the south of the island to move to the north, permitting Greek Cypriots in the north to stay or go to the south and, in this connection, providing for Greek Cypriot priests and teachers to come to the north and for 800 Greek Cypriot families to be reunited there. The following intercommunal talks in New York were adjourned in September 1975 without result and sine die, but further *492 talks were held in Vienna from 17 to 21 February 1976. In April 1976 written proposals on the various aspects of the Cyprus problem were exchanged between the two communities. Since then no further meeting has taken place between the two representatives of the communities in the talks, who are now Mr. Papadopoullos and Mr. Onan.
18. The Cyprus problem has many facets and elements--international and national, political, social, psychological, economic, humanitarian. Therefore the problem of human rights protection raised by the present applications is only one element amongst a complexity of elements.
Chapter 2 --Substance of the Applications
(a) Application No. 6780/74
19. On 19 September 1974 the applicant Government submitted this application to the Commission in the following terms:
1. The Republic of Cyprus contends that the Republic of Turkey has committed and continues to commit, in the course of the events outlined hereinafter, both in Cyprus and Turkey, breaches of Articles 1, 2, 3, 4, 5, 6, 8, 13 and 17 of the Convention and Article 1 of the First Protocol and of Article 14 of the Convention in conjunction with all the aforementioned Articles.
2. On 20 July 1974 Turkey, without prior declaration of war, has invaded Cyprus and commenced military operations in its territory, by means of land, sea and air forces, and until 30 July 1974 has occupied a sizeable area in the northern part of Cyprus.
3. On 14 August 1974 by further military operations Turkey extended its occupation to about 40 per cent. of the territory of the Republic of Cyprus, and continues to remain in occupation of such territory.
4. In the course of the said military operations and occupation, Turkish armed forces have, by way of systematic conduct and adopted practice, caused deprivation of life, including indiscriminate killing of civilians, have subjected persons of both sexes and all ages to torture, inhuman and degrading treatment and punishment, including commission of rapes and detention under inhuman conditions, have arrested and are detaining in Cyprus and Turkey hundreds of persons arbitrarily and with no lawful authority, are subjecting the said persons to forced labour under conditions amounting to slavery or servitude, have caused through the aforesaid detention, as well as by deplacement of thousands of persons from their places of residence and refusal to all of them to return thereto, separations of families and other interferences with private life, have caused destruction of property and obstruction of free enjoyment of property, and all the above acts have been directed against Greek Cypriots only, due, inter alia, to their national origin, race and religion ...
20. The applicant Government gave further particulars of the above allegations in their written submission of 15 November 1974 (entitled ' Particulars of the Application'), at the hearing on 22 and 23 May 1975 and in the subsequent proceedings before the Commission and its Delegation.
*493 (b) Application No. 6950/75
21. On 21 March 1975 the applicant Government submitted this application to the Commission in the following terms:
1. The Republic of Cyprus contends that the Republic of Turkey has committed and continues to commit, since 19 September 1974 when Application No. 6780/74 was filed, in the areas occupied by the Turkish army in Cyprus, under the actual and exclusive authority and control of Turkey (as per paragraphs 12, 18 and 19 of the Particulars of Application No. 6780/74 pending before the Commission of Human Rights) breaches of Articles 1, 2, 3, 4, 5, 6, 8, 13 and 17 of the Convention and Article 1 of the First Protocol and of Article 14 of the Convention in conjunction with all the aforementioned Articles. 2. Turkey, since 19 September 1974, continues to occupy 40 per cent. of the Territory of the Republic of Cyprus, seized as described in the Particulars of the said Application ...
3. In the said Turkish occupied areas the following atrocities and crimes were committed by way of systematic conduct by Turkey's state organs in flagrant violation of the obligations of Turkey under the European Convention on Human Rights during the period from 19 September 1974 until the filing of the present Application:
(a) Murders in cold blood of civilians including women and old men. Also about 3,000 persons (many of them civilians), who were in the Turkish occupied areas, are still missing and it is feared that they were murdered by the Turkish army.
(b) Wholesale and repeated rapes. Even women of ages up to 80 were savagely raped by members of the Turkish forces. In some areas forced prostitution of Greek Cypriot girls continues to be practised. Many women who remained in the Turkish occupied areas became pregnant as a result of the rapes committed by the Turkish troops.
(c) Forcible eviction from homes and land. The Greek Cypriots who were forcibly expelled by the Turkish army from their homes (about 200,000) as per paragraph 20C of (the Particulars of) Application No. 6780/74, are still being prevented by the Turkish army to return to their homes in the Turkish occupied areas and are refugees in their own country living in open camps under inhuman conditions. Moreover, the Turkish military authorities continue to expel forcibly from their homes the remaining Greek Cypriot inhabitants in the Turkish occupied areas most of whom are forcibly transferred to concentration camps. They are not even allowed to take with them their basic belongings. Their homes and properties have been distributed amongst the Turkish Cypriots who were shifted from the southern part of Cyprus into the Turkish occupied areas as well as amongst many Turks who were illegally brought from Turkey in an attempt to change the demographic pattern on the Island.
(d) Looting by members of the Turkish army of houses and business premises belonging to Greek Cypriots continues to be extensively practised.
(e) Robbery of the agricultural produce and livestock, housing units, stocks in stores, in factories and shops owned by Greek Cypriots and of jewellery and other valuables found on Greek Cypriots arrested by the Turkish army continues uninterrupted. The agricultural produce belonging to Greek Cypriots continues to be collected and exported directly or indirectly to markets in several European countries. Nothing belonging to the Greek Cypriots in the Turkish occupied areas has been returned and no compensation was paid or offered in respect thereof.
(f) The seizure, appropriation, exploitation and distribution of land, *494 houses, enterprises and industries belonging to Greek Cypriots, as described in paragraph 20F of the Particulars of Application No. 6780/74 continues.
(g) Thousands of Greek Cypriot civilians of all ages and both sexes are arbitrarily detained by the Turkish military authorities in the Turkish occupied areas under miserable conditions. For this purpose additional concentration camps were established. The report mentioned in ... the observations of the Cyprus Government on the admissibility of Application No. 6780/74 describes the conditions of some cases of such detention. The situation of most of the detainees is desperate.
(h) Greek Cypriot detainees and inhabitants of the Turkish occupied areas, including children, women and elderly people, continue to be the victims of systematic tortures and of other inhuman and degrading treatment, e.g. wounding, beating, electric shocks, lack of food and medical treatment, etc.
(i) Forced labour. A great number of persons detained by the Turkish army, including women, were and still are made, during their detention, to perform forced and compulsory labour.
(j) Wanton destruction of properties belonging to Greek Cypriots including religious items found in the Greek Orthodox Churches.
(k) Forced expatriation of a number of Greek Cypriots living in the Turkish occupied areas, to Turkey.
(l) Separation of families. Many families are still separated as a result of some of the crimes described above such as detention and forcible eviction.
4. All the above atrocities were entirely unconnected with any military operations. They were all committed at a time when no military operations or any fighting whatsoever was taking place.
5. The aforementioned atrocities and criminal acts were directed against Greek Cypriots because of their ethnic origin, race and religion. The object was to destroy and eradicate the Greek population of the Turkish occupied areas so as to move therein Turks, thus creating by artificial means a Turkish populated area in furtherance of Turkey's policy for the formation of the so-called 'Turkish Cypriot Federated State'. In pursuance of this policy the members of the Turkish army who took part in the invasion (about 40,000) and their families have been recently declared as subjects of the illegally and unilaterally proclaimed 'Turkish Cypriot Federated State', i.e. the Turkish occupied areas of Cyprus, with the official blessing of Turkey and have occupied the properties belonging to the Greek Cypriots.
6. No remedy in the Turkish Courts was under the circumstances likely to be effective and adequate for the atrocities and crimes in question. In any case all the above atrocities and crimes were committed under such circumstances which excuse the failure to resort to any domestic remedy for the purposes of Article 26 of the Convention.
7. The situation resulting from Turkey's occupation of the areas in question affected also the rights and freedoms of the Turkish Cypriots in those areas including those who, in furtherance of Turkey's political aims, were shifted thereto from the southern part of Cyprus where they have their homes and properties.
8. All the above atrocities and criminal acts can be proved by evidence including evidence of eye witnesses. Other sources of evidence as to the above matters are international organisations like the United Nations and the International Red Cross.
9. Further particulars of the above violations of human rights, including statements by witnesses, will be made available as soon as possible.
*495 10. It should be mentioned that it was not possible until now to ascertain in full the magnitude of the savage crimes perpetrated by Turkey in the Turkish-controlled areas as these areas are still sealed off and the Turkish military authorities do not allow free access to them even by UNFICYP and humanitarian organisations ...
22. The applicant Government gave further particulars of the above allegations at the hearing on 22 and 23 May 1975, in their written submissions of 14 July 1975 (entitled 'Particulars of the Application') and in the subsequent proceedings before the Commission and its Delegation.
(c) Statement of the respondent Government
23. The respondent Government, in a letter of 27 November 1975, declared that 'Turkey cannot be required to accept the Greek Cypriot administration as applicant, since there is no authority which can properly require the Turkish Government to recognise against its will the legitimacy of a government which has usurped the powers of the State in violation of the Constitution of which Turkey is a guarantor'. It followed in the Government's view 'that the function which is the Commission's principal task under Article 28 of the Convention on Human Rights, namely of placing itself at the disposal of the parties with a view to securing a friendly settlement, cannot be discharged, for the simple reason that the Turkish Government cannot agree to enter into talks with the representatives of an administration which it is entirely unable to recognise as a legal authority empowered to represent the Republic of Cyprus.' The Government stated that they were therefore 'unable to take part in the proceedings on the merits before the Commission. Since the press communiqué publishing the Commission's decision on admissibility was issued, the Turkish Government has in fact categorically refrained from participating in any of the Commission's activities. In this connection, it should be emphasised that the remarks made by Ambassador Günver, the new Permanent Representative of Turkey to the Council of Europe, during a courtesy call which he paid to the President of the Commission, although they were included in the case file in the form of a note drafted by the Commission, can in no way be interpreted as participation by my Government in the Commission's examination of the merits of the case.'
Chapter 3 --Proceedings before the Commission
24. The following is an outline of the proceedings.
(a) Proceedings on admissibility
25. Application No. 6780/74 was introduced on 19 September 1974 and on the President's instructions communicated on the following day to the respondent Government for observations on admissibility. The Commission considered the application on 30 September and on 1 October 1974 decided that the applicant Government should be invited to submit further details.
*496 26. The applicant Government's 'Particulars of the Application' of 15 November and the respondent Government's observations of 21 November on the admissibility of the application were examined by the Commission on 13 and 14 December 1974. The Commission decided that the respondent Government, and subsequently the applicant Government, should be invited to submit such further observations in writing as they might wish to make.
27. On 20 March 1975 the Commission, having regard to the respondent Government's further observations of 22 January and the applicant Government's reply of 27 February, decided to hold a hearing on the admissibility of the application on 22 and 23 May 1975.
28. Application No. 6950/75 was introduced on 21 March 1975 and on the Commission's instructions communicated on 25 March to the respondent Government for observations on admissibility.
On 21 May 1975 the Commission considered the application, the respondent Government's observations of 24 April and the applicant Government's reply of 10 May 1975. The Commission decided that the two applications should be joined and that the Parties should be invited at the hearing to make oral submissions on the admissibility of both applications.
29. The Commission heard the Parties' oral submissions on both applications on 22 and 23 May and deliberated on 23, 24 and 26 May 1975. On 26 May it declared the applications admissible.
The Parties were informed of this decision on the same day. The full text of the decision was approved by the Commission on 12 July and communicated to the Parties on 16 July 1975.
(b) Proceedings on the merits
30. For the purpose of carrying out its tasks under Article 28 of the Convention the Commission on 28 May 1975 set up a Delegation composed of the President, Mr. Fawcett, and five other members, Messrs. Ermacora, Busuttil, Frowein, Jörundsson and Trechsel.
On 30 May 1975 the Delegation adopted a provisional programme for ascertaining the facts of the case and conducting any necessary investigations under Article 28 (a). This was communicated to the Parties who were invited to meet the Delegation in June 1975.
31. In a press communiqué of 30 May 1975 [FN24] the respondent Government, reiterating their view that 'the Greek Cypriot Administration cannot by itself represent the Republic of Cyprus', declared that the Commission's decision on the admissibility of the applications would not influence this attitude. Accordingly 'the Turkish Government will not accept the Greek Cypriot Administration as the Government of Cyprus (and) as a party in the application(s)'.
FN24 Issued by the Permanent Representative of Turkey to the Council of Europe. (The Commission's press communiqué stating that the applications had been declared admissible was released on the same day.)
*497 In a communication of 6 June 1975 the respondent Government, referring to the above declaration, submitted that proceedings (under Article 28) could not start until they had received the final text of the Commission's decision on the admissibility.
32. The President, having consulted the other members of the Delegation, decided on 10 June 1975 that the meeting with the Parties should be maintained on the ground that the reasoning of the Commission's decision on admissibility was not relevant for the purpose of the meeting.
The respondent Government in a communication of 16 June 1975 invoking Rule 42 (4) of the Commission's Rules of Procedure, [FN25] maintained their position.
FN25 'The decision of the Commission shall be accompanied by reasons. It shall be communicated by the Secretary of the Commission to the applicant and, except for the case provided for in paragraph 1 of this Rule or where information has been obtained from the applicant only, to the High Contracting Party concerned.'
33. At the Delegation's meeting on 19 June 1975 the applicant Government's representatives submitted suggestions concerning the Delegation's provisional programme. [FN26] The respondent Government were not represented.
FN26 Supra, para. 30.
The Delegation decided to visit Cyprus in September in order to begin its investigation. Details of this decision were communicated to the Parties who were also informed that the full text of the Comission's decision on admissibility, drafted on the basis of its deliberations in May, would be approved at the Commission's July session and communicated to the Parties immediately thereafter. In accordance with the Commission's practice, however, proceedings under Article 28 could be started before this communication had taken place; this was not excluded by the Convention nor by Rule 42 (4) of the Rules of Procedure.
34. In a telex communication of 26 June 1975 the applicant Government contended that Turkey had, in disregard of the Commission's pending proceedings, committed further violations of the Convention, in particular in Famagusta. In a communication of 2 July the applicant Government complained inter alia of expulsions of Greek Cypriots from the north of Cyprus by Turkish military authorities.
35. The full text of the decision on the admissibility of the applications [FN27] was approved by the Commission on 12 July and communicated to the Parties on 16 July 1975.
FN27 Infra, 4 E.H.R.R., p. 583.
On the Delegation's proposal the Commission at the same time suggested to the respondent Government that a meeting for the discussion of procedural questions be held before 16 August 1975 between representatives of the Government and members of the Delegation; the applicant Government would also be invited to take part.
*498 The respondent Government did not reply to this invitation and the meeting did therefore not take place.
36. The Particulars of Application No. 6950/75 were filed by the applicant Government on 1 August 1975.
37. On 1 September 1975 the Delegation [FN28] met in Nicosia. Between 2 and 6 September 1975 it heard seventeen witnesses, visited two refugee camps and obtained further evidence. Details of this investigation are given in Chapter 5 below.
FN28 Mr. Frowein did not participate in this investigation.
The respondent Government did not participate in the above investigation and the Delegation therefore decided to hear all witnesses in the absence also of the applicant Government's representatives.
The applicant Government furnished facilities for the investigation, in accordance with Article 28 paragraph (a) in fine of the Convention. The respondent Government, although requested to do so, did not offer or provide any facilities.
38. Details of this development were as follows: On 1 September 1975 the President and Principal Delegate rang the Turkish Embassy in Nicosia and asked whether the respondent Government would send a representative and whether the Delegates could enter the northern area of Cyprus if they desired to do so. The acting head of mission replied that the Turkish Government maintained their attitude that the taking of evidence by the Delegation was ultra vires given the Government's objections to the Commission's decision on admissibility; and that only the authorities of the Turkish Federated State were competent to authorise taking of evidence in or visits to that area. He advised approach to Mr. Unel or Mr. Orek, the latter designated as acting President of the Federated State, in the absence abroad of Mr. Denktash.
Mr. Orek made a broadcast on 1 September 1975 criticising the one-sided character of the Commission's investigation. After a telephone call by the Principal Delegate he agreed to a meeting. On 4 September Messrs. Fawcett and Ermacora, with the approval of the Delegation, visited Mr. Orek in the northern sector of Nicosia. It was made clear to him, and in a subsequent broadcast he confirmed it, that the Delegates were visiting him, not in his capacity as designated acting President, but to invite him, as a leading Turkish Cypriot, to give evidence to the Delegation or to indicate persons who could give evidence or places that could be usefully visited, in particular Famagusta, in relation to the present applications. His response was that he was not prepared to do or authorise any of these things unless the Commission's investigation were extended to cover complaints by Turkish Cypriots against the regime in Cyprus, since 1963, and in particular in respect of certain incidents at Tokhm and Maratha in 1974. It was pointed out to him that, for various reasons explained, these complaints were outside the competence of *499 the Commission and its Delegation, unless they were relevant to matters raised in the present applications to the Commission or made the subject of distinct applications under Article 24 of the Convention.
39. The Principal Delegate also visited Mr. Gorgé, Senior Legal and Political Adviser to UNFICYP, in particular to see whether it or the United Nations could assist the Commission's investigation by provision of evidence or otherwise, and in particular reports of U.N. inquiries into alleged atrocities both on the Greek Cypriot and Turkish Cypriot side. In a long conversation, in which Mr. Gorgé surveyed the whole situation in the light of his long experience in Cyprus, he explained that it was essential that the absolute impartiality of UNFICYP be secured and that it should therefore not even appear to be assisting an investigation tending against one side or the other in the island. He regretfully said that he could not therefore offer evidence or propose witnesses to the Delegation.
40. On 11 September 1975 the Delegation communicated to the respondent Government the evidence of one of the witnesses heard in Cyprus who, according to his statements, had together with other Greek Cypriots been deported by the Turkish armed forces to a prison in Adana in Turkey. The Government were invited to furnish facilities for a visit by the Delegation to that prison for the purpose of hearing witnesses and to name any witnesses which they wished to call.
On 6 October 1975 the Permanent Representative of Turkey informed the President of the Commission that his Government could not accept any procedure which implied recognition of the 'Greek Cypriot Administration'. He added that the testimony received was false and that the Government would not provide facilities for an enquiry at Adana.
41. Further particulars of the applications were filed by the applicant Government on 17 September and 3 October 1975.
42. On 6 and 8 October 1975 the Commission considered the applications in the light of the evidence obtained in Cyprus. The Commission decided to invite the Parties' comments on that evidence and to request them to indicate whether they wished to propose further evidence and to make final submissions on the merits of the applications at a hearing before the Commission.
43. The applicant Government, in a telex message of 22 October 1975, complained that a large number of Turks from Turkey were being moved into the northern area of Cyprus.
On 10 November 1975 the Government stated that they did not want to make any further submissions.
44. The respondent Government, in their letter of 27 November 1975, [FN29] declared that Turkey 'cannot be required to accept the Greek Cypriot Administration as applicant' and that the Turkish Government *500 were consequently unable to participate in any proceedings under Article 28 of the Convention in the present case.
FN29 Supra, para. 23.
45. The applicant Government replied on 10 December 1975 that the views advanced by the respondent Government had already been dealt with in the Commission's decision on the admissibility of the applications. The applicant Government considered that legal proceedings such as the present ones, 'whose object is to bring before the Commission alleged violations of the public order of Europe and to ensure the observance of the legal engagements undertaken under the European Convention on Human Rights, cannot depend in any way on whether the State Party against which the charges of violations of human rights are brought before the Commission, does or does not recognise the Government which brings such charges'.
46. On 18 and 19 December 1975 the Commission continued its examination of the applications in the light of the Parties' above communications. It decided to terminate its investigation and, for reasons set out in the following Chapter, to draft a Report under Article 31 of the Convention.
47. On 10, 11 and 12 March 1976 the Commission considered parts of its draft Report. It decided to invite the Parties to submit such observations as they might wish to make on the applicability of the Convention to a situation of military action as in the present case, bearing in mind Article 15.
48. On 14, 15, 17 and 18 May 1976 the Commission continued its examination of the draft Report in the light of the applicant Government's communications of 15 April and 10 May and the respondent Government's communication of 15 April 1976. It decided not to hold a hearing on the applicability of the Convention to a situation of military action as in the present case, as requested by the applicant Government.
49. On 8, 9 and 10 July 1976 the Commission further continued its consideration of the draft Report. It adopted the present Report on 10 July.
Chapter 4 --Application of Articles 28 and 31 of the Convention in the circumstances of the present case
50. The Commission, noting the respondent Government's refusal to participate in the proceedings provided for by Article 28 of the Convention, has considered the procedure to be followed in the circumstances of the present case.
51. Following its decision on the admissibility of the applications, the Commission had a double task under Article 28:
-- under paragraph (a), with a view to ascertaining the facts, it had to 'undertake together with the representatives of the parties an examination of the petition(s) and, if need be, an investigation, for the effective conduct of which the States *501 concerned shall furnish all necessary facilities, after an exchange of views with the Commission'.; -- under paragraph (b), it had to 'place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for Human Rights as defined in this Convention'.
52. Where proceedings in an admitted application are not terminated by such a friendly settlement, or by a Commission decision under Article 29 of the Convention or Rule 49 of its Rules of Procedure, the Commission further, under Article 31 of the Convention, has to 'draw up a Report on the facts and state its opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention'. [FN30]
FN30 12 Yearbook passim.
53. Neither the Convention nor the Commission's Rules of Procedure contain an express provision for the case where a respondent party, as in the present applications, fails to co-operate in the Commission's proceedings under Article 28. In dealing with this situation under Article 28 the Commission has therefore had regard to its practice in previous cases and, in particular, to the procedure followed in the First Greek Case. Moreover, although their functions under the Convention differ in some respects, the Commission has also noted Rule 49 of the Rules of the European Court of Human Rights. [FN31]
FN31 'Where a Party fails to appear or to present its case, the Chamber shall ... give a decision in the case'. Cf. also Article 53 of the Statute of the International Court of Justice which states as follows: 1. Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim. 2. The Court must, before doing so, satisfy itself, not only that it has jurisdiction ... but also that the claim is well founded in fact and law.
54. The Commission first observes that, in carrying out its task of establishing the facts of a case, it has to seek the parties' co-operation. This is clear from the terms of Article 28 (a) which provides that the Commission shall undertake an examination of the petition 'together with the representatives of the parties' and further states that the States concerned shall, after an exchange of views with the Commission, furnish all necessary facilities for any necessary investigation. Article 28 (b) further obliges the Commission to place itself at the parties' disposal with a view to securing a settlement.
55. It does not follow from either of these provisions, however, that a respondent party's failure to co-operate in proceedings under Article 28 could prevent the Commission from completing, as far as possible, its examination of the application and from making a *502 Report to the Committee of Ministers under Article 31 of the Convention. [FN32]
FN32 In four recent cases before the International Court of Justice the respondent Government failed to appear and the Court decided on the merits: Fisheries Jurisdiction Cases (United Kingdom v. Iceland, (1974) I.C.J. Rep., p. 3; Federal Republic of Germany v. Iceland, ibid. p. 175) and Nuclear Tests Cases (Australia v. France, ibid. p. 253; New Zealand v. France, ibid. p. 457). Paragraph 15 of the two latter judgments (at pp. 257 and 461) reads as follows: It is to be regretted that the French Government has failed to appear in order to put forward its arguments on the issues arising in the present phase of the proceedings, and the Court has thus not had the assistance it might have derived from such arguments or from any evidence adduced in support of them. The Court nevertheless has to proceed and reach a conclusion, and in doing so must have regard not only to the evidence brought before it and the arguments addressed to it by the Applicant, but also to any documentary or other evidence which may be relevant. It must on this basis satisfy itself, first that there exists no bar to the exercise of its judicial function, and secondly, if no such bar exists, that the Application is well founded in fact and in law.
56. The above considerations are in conformity with the procedure adopted by the Commission in the First Greek Case and the Commission has followed the same procedure in the present applications, noting that the following elements are common to both cases:
-- the respondent Government fully co-operated at the admissibility stage;
-- an investigation under Article 28 (a) of the Convention, though incomplete, was carried out. The Commission recalls in this connection that, in the First Greek Case, the Sub-Commission decided to terminate its visit to Greece on the ground that it had been prevented from hearing certain further witnesses and from inspecting a detention camp and a prison [FN33]; during the subsequent proceedings the respondent Government refrained from submitting oral or written conclusions to the Sub-Commission. [FN34]
FN33 Paragraph 23 of the Commission's Report, 12 Yearbook, p. 14.
FN34 Paragraphs 29-31 and 34-35 of the Report, ibid. pp. 16-17.
57. The Commission has also had regard to the procedure which it adopted in the Second Greek Case, in its 'Report on the Present State of the Proceedings' of 5 October 1970. Paragraphs 18 to 20 of that Report read as follows:
18. It is a general principle of judicial procedure in national legal systems, as well as before international tribunals, that a respondent party cannot evade the jurisdiction of a competent tribunal simply by refusing to take part in the proceedings instituted against it. It is a general principle of judicial procedure that a competent tribunal may give judgment by default. The Commission is of the opinion that this principle should also apply to its own proceedings in appropriate circumstances. If this were not so, a respondent party might find it too easy, and might even feel encouraged, to evade its obligations under the Convention simply by not entering an appearance before the Commission. To that extent, it may therefore be necessary to depart from the strict adherence to the above-mentioned principle, according to which the findings of the Commission should be based on submissions and evidence presented by both parties. The Commission would, however, even in such circumstances have to satisfy itself that the information before it is sufficient to express a well-founded opinion. *503 There could be no question of automatically finding in favour of the applicant, irrespective of the circumstances of the case.
19. In the present case the circumstances are of a very particular nature. The Commission finds it necessary to recall that the denunciation of the Convention by the respondent Government and its withdrawal from the Council of Europe took place at a time when the Committee of Ministers had before it a proposal for the suspension of Greece from membership in the Council. After the Greek Government had announced its decision to withdraw, the Committee of Ministers on 12 December 1969 adopted Resolution (69) 51 in which it expressed its understanding that this Government would abstain from any further participation in the activities of the Council of Europe as from the same day, and concluded that on this understanding there was no need to pursue the procedure for suspension. Moreover, the Chairman of the Committee of Ministers reported to the Consultative Assembly of the Council of Europe on 29 January 1970 that it was the opinion of the majority of the Ministers' Deputies at their 186th Session that, from the date on which the above Resolution was adopted, 'Greece, while formally remaining a member of the Council of Europe until 31 December 1970, must be considered as being suspended de facto from its rights of representation, so that it can no longer take part in the work of the Council of Europe'.
20. Against this background, the refusal of the Greek Government to take part in the proceedings instituted before the Commission by the applicant Governments in the present case appears in a different light from the situation which might typically be expected to exist when a respondent Government fails to appear before the Commission. The general reasons which would normally prompt the Commission to 'give judgment by default', as indicated in paragraph 18 above, do not carry the same weight in the present circumstances, where the refusal of the respondent Government to appear before the Commission may in some way be connected with the general relationship between the Council of Europe and Greece.
58. The Commission considers that the circumstances described in the above Report are substantially different from the procedural situation in the present applications. It notes in this respect that Turkey, the respondent Party in these applications, is a member State of the Council of Europe and a High Contracting Party to the Convention on Human Rights, which continues to co- operate in the Committee of Ministers in matters relating to the application of this Convention.
59. The Commission therefore does not find it appropriate in the present applications to address an interim report to the Committee of Ministers. It concludes that it has the task to draw up a Report under Article 31 of the Convention on the basis of the material now before it.
Chapter 5 --Evidence obtained
60. The Commission was faced with special difficulties in its investigation which are described in Chapter 6 below.
*504 61. The Commission's Delegation, in its provisional programme, [FN35] considered that investigations should be carried out in such parts of Cyprus as might be necessary with a view to:
-- finding out the best way of obtaining relevant evidence concerning the alleged violations, and
-- hearing witnesses and visiting localities which might be useful for this purpose.
FN35 Supra, para. 30.
The Delegation therefore proposed to interview first a number of community leaders, e.g. mayors of localities in which violations of the Convention were alleged to have taken place, and to that effect:
-- to invite the applicant Government to indicate a limited number of such persons and the alleged violations with which they were concerned, and
-- subsequently to invite the respondent Government to propose relevant witnesses concerning the same allegations.
On the basis of the information so obtained the Delegation intended to fix the programme for its further proceedings.
62. At the Delegation's meeting on 19 June 1975 the applicant Government submitted a list of community leaders and other representative witnesses who, in the Government's view, could testify on the alleged violations in view of their capacity; the Government also made certain proposals as to localities to be visited by the Delegation.
63. During its visit to Cyprus from 2 to 6 September 1975 the Delegation heard 14 of the 29 witnesses proposed by the applicant Government. It also heard three further witnesses, who were refugees from the Kyrenia area, and members of the Delegation interviewed eleven refugees in refugee camps.
64. The respondent Government, although invited to do so, did not propose any witnesses or file other evidence. [FN36]
FN36 Supra, paras. 40, 42 and 44.
65. The Commission's establishment of the facts in the present Report is based on submissions made and evidence received up to 18 May 1976.
I. WITNESSES AND PERSONS INTERVIEWED
66. During its visit to Cyprus the Delegation heard the following witnesses who had been proposed by the applicant Government in view of their capacity:
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
67. The Delegation also heard as witnesses the following refugees from the Kyrenia area:
Mrs. M. Kyprianou, Nicosia, formerly Elia.
Mr. V. Efthymiou, Nicosia, formerly Karavas.
Mrs. S. Efthymiou, Nicosia, formerly Karavas.
68. All the above witnesses, with the exception of Mrs. Kyprianou, gave their testimony in English. A full verbatim record of the hearing of these witnesses has been produced as a separate document.
*506 2. Persons interviewed
69. Members of the Commission's Delegation, through interpreters, interviewed eleven refugees in the camps at the orphanage school of Nicosia and at Stavros on 5 September 1975. The interviews are recorded in a separate document.
II. OTHER EVIDENCE
1. Inspection of localities.
70. Members of the Delegation visited in Nicosia:
-- the demarcation ("green line") separating the area controlled by the applicant Government from the north of the city;
-- the refugee camps mentioned in paragraph 66 above.
71. On 4 September 1975 the Delegation saw a set of short news films compiled and presented by the Cyprus Broadcasting Corporation, the subjects and sources of which were:
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
3. Reports, statements and other documents
(a) Reports of other international bodies
72. The Commission has taken note of various reports on the events in Cyprus in 1974 and 1975 by the Secretary General of the United Nations and the Consultative Assembly of the Council of Europe which were publicly available.
73. Numerous statements by individuals were submitted by the applicant Government as evidence of the violations of the Convention alleged in the present applications. The names of the authors of these statements were omitted for security reasons but the Government offered to indicate them should the Commission so require, and three authors of such statements have in fact been heard as witnesses by the Delegation.
(c) Other documents
74. Further documents have been received from:
-- the applicant Government in support of their submissions, and
-- witnesses giving evidence before the Delegation.
75. Mr. Orek and the Turkish Information Office also gave the Delegates collections of reports and other publications on events in, and aspects of the administration of, Cyprus since 1963. These were received by the Principal Delegate who explained to the donors that they could not form part of the Commission's case-file unless they were submitted by the respondent Government and shown to be relevant to the present applications. [FN37]
FN37 Supra, para. 38.
Chapter 6 --Difficulties arising in the establishment of the facts in the present case
76. Before examining the applicant Government's allegations, the Commission would draw attention to certain difficulties which, in the special circumstances of the present case, have arisen in the establishment of the facts, and to the solutions adopted to meet these difficulties.
I. SCOPE OF THE ALLEGATIONS
77. One of the characteristics of the present case is the sheer number of alleged violations of the Convention.
The Commission therefore had to restrict its investigation of alleged violations and has tested only a limited number of cases selected as representative.
*508 II. NON-PARTICIPATION OF THE RESPONDENT GOVERNMENT IN THE PROCEEDINGS ON THE MERITS
78. The respondent Government, as already stated, did not participate in the Commission's proceedings under Article 28 (a) of the Convention: apart from the statement mentioned above, [FN38] they did not make any submissions, or propose evidence, on the alleged violations, nor offer facilities for the Commission's investigation, as provided for in Article 28 (a) in fine: the Commission's Delegation was refused entry into Turkey and any co-operation by Turkish or Turkish Cypriot authorities for an investigation in the north of Cyprus.
FN38 Supra, para 40.
79. In the absence of any submissions by the respondent Government the Commission, for the reasons stated above, [FN39] proceeded with its establishment of the facts on the basis of the material before it.
FN39 Supra, chapter 4.
III. CHARACTER OF THE EVIDENCE
80. Evidence relating to the applicant Government's allegations has to a great extent been provided in the testimony of witnesses named and in documents, including written statements, submitted by this Government. Moreover, all witnesses heard, including those selected by the Delegation were Greek Cypriots.
81. Nevertheless, the evidence before the Commission, and the facts established on the basis of this evidence, cannot be seen as presenting a view of the events and incidents complained of mainly from the Greek Cypriot side. The Commission observes in this connection that:
-- certain events and incidents referred to in the applications are in great part a matter of public knowledge. In particular the massive movement of population from the northern to the southern part of Cyprus after 20 July 1974 is an undisputable fact which, as such, calls for no particular investigation;
-- the Commission has based its findings in part on reports of other international organisations, in particular the United Nations;
-- the witnesses heard by the Commission's Delegation in Cyprus testified, with little exception, with a restraint and objectivity that gave credibility to their testimony; some of them confirmed a number of statements in the Particulars of the Applications about which they could not have had any direct knowledge;
-- in the evaluation of the evidence before it, the Commission has refrained from drawing any conclusions from the fact that the respondent Government, despite every opportunity being offered to them, failed to make any statements, or to propose counter-evidence, on the applicant Government's allegations. *509
82. The Commission further observes in this connection that, as a full investigation of all the facts has not been possible, it will in its establishment of the facts distinguish between:
-- matters of common knowledge;
-- facts established to the satisfaction of the Commission;
-- evidence which ranges from bare indications, the establishment of a prima facie case to strong indications; [FN40]
-- allegations for which no relevant evidence has been found.
FN40 The First Greek case, Commission's Report, 12 Yearbook, 504.
IV. RESPONSIBILITY OF TURKEY UNDER THE CONVENTION
83. In its decision on the admissibility of the present applications, the Commission found that the Turkish armed forces in Cyprus brought any persons or property there 'within the jurisdiction' of Turkey, in the sense of Article 1 of the Convention, 'to the extent that they exercise control over such persons or property'.
84. In the light of its above decision, the Commission has examined, with regard to each of the complaints considered, whether or not the acts committed were imputable to Turkey under the Convention.
85. The Commission finally observes that the substance of the present applications required it to confine its investigation essentially to acts and incidents for which Turkey, as a High Contracting Party, might be held responsible. Alleged violations of the Convention by Cyprus could be taken into account as such only if Turkey or another High Contracting Party had raised them in an application to the Commission under Article 24 of the Convention. [FN41]
FN41 Supra, para. 38.
PART II --EXAMINATION OF THE ALLEGATIONS IN THE TWO APPLICATIONS
86. The Commission will examine the applicant Government's allegations in the following order:
-- displacement of persons (Article 8 of the Convention)--Chapter 1;
-- deprivation of liberty (Article 5)--Chapter 2;
-- deprivation of life (Article 2)--Chapter 3;
-- ill-treatment (Article 3)--Chapter 4;
-- deprivation of possessions (Article 1 of Protocol No. 1)--Chapter 5;
-- forced labour (Article 4 of the Convention)--Chapter 6. *510
87. With regard to each item the Report will set out:
-- the relevant submissions of the Parties;
-- the relevant Article of the Convention;
-- the evidence obtained;
-- an evaluation of the said evidence;
-- the Commission's opinion as to the responsibility of Turkey under the Convention for the acts complained of;
-- the Commission's conclusion as to the alleged violation.
88. The Commission, for the reason stated above, [FN42] had to restrict its investigation of the violations alleged in the present case. It therefore has not considered as separate issues the applicant Government's complaints concerning:
-- searches of homes (Article 8 of the Convention);
-- interference with correspondence (Article 8);
-- detention of Greek Cypriots arrested at the demarcation line (Article 5).
FN42 Supra, para. 77.
Chapter 1 --Displacement of persons
89. Many of the applicant Government's allegations of violations of human rights by the Turkish armed forces in the Northern part of Cyprus are closely related to the displacement, on a massive scale, of the Greek Cypriot population of that area. The Commission has therefore first considered whether the alleged expulsion of some 200,000 Greek Cypriot citizens and/or the alleged refusal to allow their return to their homes in the northern area, constitute, if established, in themselves violations of the Convention.
90. Further alleged violations of the Convention arising out, not of the displacement as such, but of particular circumstances of alleged measures of expulsion in individual cases, such as ill-treatment, detention, loss of property, etc., must be distinguished from the displacement itself and will be dealt with in the relevant context in subsequent chapters.
91. Finally, as regards the displacement, the Commission considers that a distinction should be made between:
-- the movement of persons provoked by the military action of Turkey;
-- measures of displacement not directly connected with the said military action (e.g. eviction from homes, expulsions and transfers across the demarcation line);
-- the refusal to allow the return of refugees and expellees, and
-- the separation of families brought about by measures of displacement.
This distinction, which is not to be found in the applicant Government's submissions, will be observed by the Commission in its *511 presentation and evaluation of the evidence obtained, and in its opinion on the legal issues.
A. SUBMISSIONS OF THE PARTIES
I. Applicant Government
92. The applicant Government submitted that, as far ago as 1964 Turkey had pursued a policy with regard to Cyprus which envisaged a compulsory exchange of population between the Greek and Turkish Cypriot communities in order to bring about a state of affairs in which each of the two communities would occupy a separate part of the island. This policy became publicly known as the so-called Attila plan.
93. The military action of 1974, and in particular its second phase between 14 and 16 August 1974, was designed to implement this plan by the use of force. The atrocities committed in the course of this action constituted part of the tactics to bring about the geographical partition of Cyprus with the object of destroying and eradicating the Greek population of the occupied areas and creating a Turkish populated area.
94. The actions of the Turkish armed forces included:
-- the deportation to Turkey of men who were taken prisoners;
-- the transport of persons (mostly women, children and old men) to the demarcation line and their expulsion to areas controlled by the applicant Government. The Government specially mentioned the expulsion in this manner of about 600 persons from the villages of Karmi, Trimithi, Thermia, Kazaphani and Ayios Georgios on 2 August 1974, and of 778 persons, mostly from the Karpasia area, between 27 and 30 June 1975 (among whom were the last inhabitants of the villages Ayios Serghios, Gerani, Akhna, Engomi, Kalopsida, Davlos, Ayios Georgios and Spatharikon). Further cases of expulsion allegedly happened in 1976, affecting 1,051 persons including children and elderly people from Kyrenia and Karpasia area between January and May 1976;
-- the detention of persons who had stayed in the areas controlled by the Turkish armed forces in "concentration camps" where they were forced to live under such miserable conditions that they reached a stage of complete despair, and had to apply to move to the areas controlled by the applicant Government in order to alleviate their condition;
-- the forcing of persons either by the threat of arms, or by inhuman conditions of life imposed on them by the Turkish military authorities, to sign applications for their transportation to areas controlled by the applicant Government;
-- the creation of such conditions in the north of Cyprus that Greek Cypriots would not wish to return there even if they were allowed to do so. The applicant Government complained *512 in particular of faits accomplis such as the allocation of Greek Cypriot homes and properties to Turkish Cypriots and Turkish settlers;
-- the continued refusal to allow the return of Greek Cypriots to their homes in the area controlled by the Turkish forces;
95. The result of these measures was that out of a total population of about 200,000 Greek Cypriots in the north there remained only about 14,000 in September 1974, and about 8,000 in July 1975. The applicant Government stressed that the remainder (about 40 per cent. of the island's Greek population) did not move to the south of their own volition, in the exercise of the "freedom to move to the south" proclaimed by the Turkish side, but were all expelled by the Turkish army and not allowed to return.
96. The applicant Government also referred to certain statements which were said to have been made by Turkish officials. Thus the Chief Spokesman of the Turkish Foreign Ministry, Mr. Semi Akbil, was reported to have stated that the remaining 8,000 Greek Cypriots in the north might also have to be moved. Mr. Barutcu, Head of the Cyprus and Greek Department of the same Ministry, had modified this statement by saying that only those Greek Cypriots who had applied for permission to leave were being moved, and that this was not expulsion.
97. According to the applicant Government, however, some of the persons concerned were forced to sign applications for their transportation to the Government controlled areas; the majority did not even sign such applications and persistently refused to abandon their homes. In fact, all of them were displaced by force.
II. Respondent Government
98. The respondent Government who, for the reasons stated above, [FN43] did not take part in the proceedings on the merits, have not made any statements with regard to these allegations.
FN43 Supra, para. 23.
B. RELEVANT ARTICLE OF THE CONVENTION
99. The Commission considers that the displacement of persons from their homes, as complained of in the present applications, raises issues under Article 8 of the Convention (interference with their homes and their private and family life). It notes in this connection the applicant Government's view that the 'displacement of thousands of persons from their places of residence and refusal to all of them to return thereto' caused 'separations of families and other interferences with private life'.
100. Article 8 of the Convention reads as follows:
1. Everyone has the right to respect for his private and family life, his home and correspondence.
*513 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.
C. EVIDENCE OBTAINED
This section of the Commission's Report (paragraphs 101-184) is omitted.
D. EVALUATION OF THE EVIDENCE OBTAINED
185. Since it is common knowledge that the overwhelming majority of the Greek Cypriot population from the northern area has been displaced as a consequence of the Turkish military action in 1974 the Commission does not consider that specific evidence corroborating this is needed. As regards the number of persons affected, the Commission accepts as credible the figures mentioned by witness Iacovou, i.e. about 182,000 displaced Greek Cypriots in September 1975.
II. Movement of persons provoked by the military action of Turkey
186. The Commission considers that the evidence before it shows that the vast majority of displaced Greek Cypriots left the north of Cyprus as a direct consequence of the military action of Turkey.
Many fled during the first phase of this operation from the areas where actual fighting took place, or from areas considered to be in danger of becoming the theatre of military operations. There then developed in the Greek Cypriot population a sentiment of fear and horror about the reported conduct of the Turkish troops--a sentiment convincingly described by witnesses Odysseos and Kaniklides who came from places as far apart as Morphou and Famagusta--and, during the second phase of the military action, whole areas were evacuated by their Greek Cypriot residents before the Turkish army reached them.
187. The Commission has not included in its examination those some 20,000 refugees who only temporarily left their homes in the south near the demarcation line.
188. The Commission was not able to establish the exact figure of persons who fled. It assumed, however, that they were more than 170,000 since all other categories of displaced persons together make up only a few thousand out of the above-mentioned total of 182,000.
III. Measures of displacement not directly connected with the Turkish military action in the phases of actual fighting
189. The Commission considers that the evidence before it establishes that a large number of Greek Cypriots who remained in the *514 north of Cyprus after the arrival of the Turkish troops were uprooted from their normal surroundings and temporarily subjected to various measures of displacement.
(a) Eviction from houses and transportation to other places within the north of Cyprus
190. The range of these measures included the eviction of Greek Cypriots from houses including their own houses, the assembling of them at certain places, forcible excursions to other places where they were held for periods ranging from several hours to several days, and their transfer to prisons, detention centres or other detention places.
Such measures were not only described in a considerable number of individual statements, some of them corroborating each other, including statements made orally to the Commission's Delegation in Cyprus. They were also confirmed in reports of the United Nations and of the International Committee of the Red Cross which leave no doubt as to their correctness.
(b) Expulsion across the demarcation line
191. The Commission finds it established that there was an organised operation for the expulsion of the remaining civilian population of some villages in the Kyrenia district (Trimithi, Ayios Georgios, Karmi) to the south of Cyprus by driving them in buses to the green line at the Ledra Palace Hotel in Nicosia on 2 August 1974. Several persons gave the Commission's Delegation a detailed description of these events, which were also confirmed in written statements submitted to the Commission. Moreover, witness Soulioti saw the arrival of these expellees and arranged their accommodation, and a UN report based on UNFICYP sources apparently concerns the same events although no places or names are mentioned.
192. Taking into account its above finding, the Commission finds strong indications that the other group expulsions mentioned by witness Soulioti also happened in the way described. This concerns, in particular, the alleged expulsion of persons from the Karpasia area in June 1975, which was also mentioned by a number of other witnesses. The Commission's Delegation saw a film of persons who stated that they were expelled in June 1975, and they were also given a copy of an official letter to the ICRC in Nicosia protesting against these expulsions. However, the Commission has been unable to establish whether applications for transfer to the south were made by a number of these persons and, if so, whether such applications were made voluntarily.
193. With regard to other group expulsions, especially those during the second phase of the Turkish military operation, the Commission disposes only of hearsay evidence.
*515 (c) Negotiated transfer of prisoners and detainees, including those detained in Turkey
194. The fact that several thousand Greek Cypriot prisoners and detainees, including those detained in Turkey, became displaced as a consequence of their transfer and release to the south of Cyprus under the provisions of the Geneva Declaration and various intercommunal agreements is common knowledge.
195. The Commission has not fully investigated to which extent these persons had an option to return to their homes in the north of Cyprus. It observes that the permission for the return of 20 per cent. of the prisoners from Turkey to their homes in the north of Cyprus could only be achieved with difficulty, but one could assume in the circumstances that the remainder of this group of prisoners were persons who had actually opted for their release to the south. On the other hand it appears from the testimony of witness Perkettis that prisoners were not asked where they wanted to be released.
196. With regard to persons who had been detained in detention centres in the north of Cyprus, the Commission finds it established that they were virtually barred from returning to their homes in the north of Cyprus. Only very few of them were released in the north. This is recorded in public documents of the United Nations. Moreover, the statements made by the UNHCR and ICRC representatives at the intercommunal meeting of 7 February 1975, the record of which the Commission accepts as correct, indicate that the will of these persons to remain in the areas under Turkish control was broken by the conditions imposed on them. Mr Zuger expressly stated, 'They want to go south because they are not allowed to go back to their homes'. In addition, some witnesses conveyed their impression that the detention centres were a special device for the evacuation of the Greek Cypriot population from the north of Cyprus. As a result of the non-participation by the respondent Government in the proceedings on the merits, the Commission has been unable further to investigate the purposes of those centres. It notes, however, that the detainees were eventually moved to the south on the basis of agreements concluded by the applicant Government with the Turkish Cypriot administration. In the light of the above the Commission finds a strong indication that evacuation of the Greek Cypriot population was a purpose of the detention centres.
197. The evidence before the Commission is clear as regards the circumstances of the displacement to the south of persons confined to the Kyrenia Dome Hotel. The Commission finds it established that the great majority of these persons were not allowed to return to their homes in Kyrenia. In this respect it accepts as credible the testimony of witness Charalambides, which is supported by UN documents. However, the UN reports do not state on what basis these persons were transferred to the south. The treatment of Dr. *516 Charalambides may be due to his prominent role as the only Greek Cypriot physician in the area and as former Deputy Mayor of Kyrenia. It cannot, therefore, be considered as representative.
(d) Negotiated transfer of medical cases and other persons on humanitarian grounds
198. Finally, the transfer to the south of medical cases and other persons for humanitarian reasons, whether on the basis of intercommunal agreements or individual arrangements, would appear to have been in the own interest of the persons concerned; indeed, it often happened upon their own request. The evidence before the Commission tends to show that the particular difficulty experienced by this category of persons was the removal of obstacles preventing their speedy transfer. The Commission, therefore, was unable to establish that their transfer, as such, was a forcible measure.
IV. The refusal to allow the return of refugees and expellees
199. It is common knowledge that the vast majority of Greek Cypriot displaced persons in the south of Cyprus have not returned to their homes in the north. While it may be that a number of these persons do not want to return to an area at present under Turkish Cypriot administration, the fact remains that they are physically prevented from even visiting their houses in the north, and that they are not allowed to return there permanently. This has been established by the relevant UN documents, including reports on the implementation of resolutions of the General Assembly and the Security Council calling for such return, and is confirmed by the direct evidence obtained by the Commission's Delegation in Cyprus.
V. Separation of Greek Cypriot families brought about by their displacement
200. The Commission finds it established that, by the measures of displacement affecting a large number of Greek Cypriots, a substantial number of families were separated for considerable periods of time ranging from several days to more than a year. The refusal to allow the return of Greek Cypriot refugees to their homes in the north of Cyprus prolonged this situation and the intercommunal agreement of August 1975 did not completely solve the problem. The Commission has not been able, in the course of its limited investigation (3), to establish the exact numbers of persons and families affected.
*517 E. RESPONSIBILITY OF TURKEY UNDER THE CONVENTION
I. Movement of persons provoked by the military action of Turkey in the phases of actual fighting, and refusal to allow the return of refugees to the north of Cyprus
201. In its decision on the admissibility of the present applications the Commission examined the question whether the responsibility of Turkey was engaged because 'persons or property in Cyprus have in the course of her military action come under her actual authority and responsibility at the material times'. The Commission concluded that the armed forces of Turkey brought any other persons or property in Cyprus 'within the jurisdiction' of Turkey, in the sense of Article 1 of the Convention, 'to the extent that they exercise control over such persons or property'.
202. The Commission has considered the question of the imputability to Turkey, under the Convention, of the movement of persons provoked by her military action. However it does not think it necessary or useful to answer this question, having regard to its finding, set out in the following paragraph, as to the refusal to allow refugees to return to their homes in the northern area of Cyprus.
203. As regards this refusal, the evidence before the Commission shows that Turkey encouraged and actively supported the policy of the Turkish Cypriot administration not to allow the return of Greek Cypriot refugees to their homes in the north of Cyprus. This support was not limited to diplomatic action such as declarations against the return of Greek Cypriots to the north of Cyprus in the General Assembly of the United Nations, votes cast against resolutions calling for such return, and transmission of statements by representatives of the Turkish Cypriot community opposing such return. It also included the prevention, by the presence of her army in the north of Cyprus and the sealing off of the demarcation line by fortifications and minefields, of the physical possibility of the return of Greek Cypriot refugees to their homes in the north. The Commission considers that by these measures preventing their return to the north, Turkey exercised in effect a control which in this respect bought the said persons under her jurisdiction within the meaning of Article 1 of the Convention as interpreted in the Commission's decision on admissibility. The refusal to allow the return of Greek Cypriot refugees to their homes in the north of Cyprus must therefore be imputed to Turkey under the Convention.
II. Measures of displacement not directly connected with the Turkish military action in the phases of actual fighting
(a) Measures of displacement within the northern area of Cyprus and expulsion across the demarcation line
204. The Commission finds it established that Turkish troops actively participated in the following measures of displacement: *518
-- eviction of Greek Cypriots from houses including their own homes in the north of Cyprus;
-- transportation of Greek Cypriots to other places within the territory controlled by the Turkish army, including various detention places;
-- expulsion of Greek Cypriots across the demarcation line; and
-- removal to the south brought about by living conditions in the north.
These measures were carried out while the persons concerned were under the actual control of the Turkish armed forces and hence within the jurisdiction of Turkey in the meaning of Article 1 of the Convention as interpreted in the Commission's above decision. The displacement of Greek Cypriots from their homes, which was the result of these measures, must therefore be imputed to Turkey under the Convention.
(b) Negotiated transfer of persons to the area controlled by the applicant Government, and refusal to allow their return to the north of Cyprus
205. The Commission has considered the question of the imputability to Turkey of the negotiated transfer of persons to the south of Cyprus. [FN44] However, it does not think it necessary or useful to answer this question, having regard to its finding as to the refusal to allow transferred persons to return to their homes in the northern area.
FN44 Supra, paras. 194-197.
As regards this refusal, the situation of persons transferred to the south of Cyprus under the various intercommunal agreements is the same as that of refugees; the refusal to allow the return of transferred persons to their homes in the north of Cyprus must be imputed to Turkey on the same grounds as the refusal to allow the return of refugees. [FN45]
FN45 Supra, para. 203.
III. Separation of families
206. The separation of Greek Cypriot families resulting from measures of displacement imputable to Turkey under the Convention, for the reasons set out above, must be imputed to Turkey on the same grounds. It follows that the continued separation of families resulting from the refusal to allow the return of Greek Cypriot refugees to their homes and family members in the north must be imputed to Turkey as well as the separation of families brought about by expulsions of certain family members across the demarcation line or by transfers of members of the same family to different places of detention. [FN46]
FN46 Supra, para. 200.
*519 F. CONCLUSIONS
207. The Commission has examined the complaints concerning the displacement of Greek Cypriots under Article 8 of the Convention. It notes that Protocol No. 4 concerning such rights as inter alia the right to liberty of movement and choice of residence has not been ratified by the Parties. In any case, Article 8 is not affected by the Protocol.
II. Movement of persons provoked by the military action of Turkey in the phases of actual fighting and refusal to allow the return of refugees
208. As stated above, [FN47] the Commission did not express an opinion as to the imputability to Turkey under the Convention of the refugee movement of Greek Cypriots caused by the Turkish military action in the phases of actual fighting. Since in any case the refusal to allow the return of those refugees to their homes in the north of Cyprus must be imputed to Turkey, the Commission also limits its conclusion to this aspect of the matter.
FN47 Supra, para. 202.
The Commission considers that the prevention of the physical possibility of the return of Greek Cypriot refugees to their homes in the north of Cyprus amounts to an infringement, imputable to Turkey, of their right to respect for their homes as guaranteed in Article 8 (1) of the Convention. This infringement cannot be justified on any ground under paragraph (2) of this Article.
The Commission concludes by 13 votes against one that, by the refusal to allow the return of more than 170,000 Greek Cypriot refugees to their homes in the north of Cyprus, Turkey did not act, and was continuing not to act, [FN48] in conformity with Article 8 of the Convention in all these cases.
FN48 As of 18 May 1976.
III. Measures of displacement not directly connected with the Turkish military action in the phases of actual fighting
(a) Measures of displacement within the north of Cyprus and expulsions across the demarcation line
209. The Commission considers that the evictions of Greek Cypriots from houses, including their own homes, which are imputable to Turkey under the Convention, amount to an interference with rights guaranteed under Article 8, paragraph (1) of the Convention, namely the right of these persons to respect for their home, and/or their right to respect for private life. The Commission further considers that the transportation of Greek Cypriots to other places, in particular the forcible excursions within the territory controlled by the Turkish army, and the deportation of Greek Cypriots to the *520 demarcation line, which are equally imputable to Turkey under the Convention, also constitute an interference with their private life. However, in so far as the displacement of Greek Cypriots within the north of Cyprus was a necessary corollary of their detention, it must, together with that detention, be examined in Chapter 2 (deprivation of liberty).
The above interferences by the Turkish army in the north of Cyprus with rights guaranteed under Article 8, paragraph (1) cannot be justified on any ground under paragraph (2) of Article 8.
The Commission concludes, by 12 votes against one, that by the eviction of Greek Cypriots from houses, including their own homes, by their transportation to other places within the north of Cyprus, or by their deportation across the demarcation line, Turkey has committed acts not in conformity with the right to respect for the home guaranteed in Article 8 of the Convention.
(b) Negotiated transfer of persons to the area controlled by the applicant Government, and refusal to allow their return to their homes in the north of Cyprus
210. As stated above, [FN49] the Commission did not express an opinion as to the imputability to Turkey under the Convention of the transfers of Greek Cypriots to the south of Cyprus under various intercommunal agreements. Since in any case the refusal to allow the return of these persons to their homes in the north of Cyprus must be imputed to Turkey, the Commission limits its conclusion to this aspect of the matter.
FN49 Supra, para. 205.
The Commission considers that the prevention of the physical possibility of the return of these Greek Cypriots to their homes in the north of Cyprus amounts to an infringement of their right to respect for their homes as guaranteed in Article 8 (1) of the Convention. This infringement cannot be justified on any ground under paragraph (2) of this Article.
The Commission concludes, by 13 votes against one, that by the refusal to allow the return to their homes in the north of Cyprus to several thousand Greek Cypriots who had been transferred to the south under intercommunal agreements, Turkey did not act, and was continuing not to act, [FN50] in conformity with Article 8 of the Convention in all these cases.
FN50 As of 18 May 1976.
IV. Separation of families
211. The Commission finds that the separation of families brought about by measures of displacement imputable to Turkey under the Convention are interferences with the right of the persons concerned to respect for their family life as guaranteed by Article 8 (1) of the *521 Convention. These interferences cannot be justified on any ground under paragraph (2) of this Article.
The Commission concludes by 14 votes against one with one abstention that, by the separation of Greek Cypriot families brought about by measures of displacement in a substantial number of cases, Turkey has again not acted in conformity with her obligations under Article 8 of the Convention.
V. Reservation concerning Article 15 of the Convention
212. The Commission reserves for consideration in Part III of this Report the question whether any of the above interferences with rights protected by Article 8 were justified as emergency measures under Article 15 of the Convention.
Chapter 2 --Deprivation of Liberty
213. The Commission will deal with the allegations in the two applications concerning the deprivation of liberty of Greek Cypriots by the Turkish armed forces in Cyprus in the following order:
-- the alleged general deprivation of liberty of that part of the Greek Cypriot population which remained in the north of Cyprus after the military action of Turkey ('Enclaved persons');
-- the alleged deprivation of liberty of Greek Cypriot civilians who, according to the applicant Government were concentrated in certain villages in the north, in particular Gypsou, Marathovouno, Morphou, Vitsada and Voni, or in the Dome Hotel at Kyrenia ('Detention centres');
-- the deprivation of liberty of persons referred to as 'prisoners and detainees' in the intercommunal agreements, including persons detained in the mainland of Turkey or at Pavlides Garage and Saray Prison in the Turkish sector of Nicosia ('Prisoners and detainees').
214. As stated above [FN51] the Commission will not consider as separate issues the applicant Government's allegations concerning deprivation of liberty of Greek Cypriots arrested at the demarcation line.
FN51 Supra, para. 88.
A. 'ENCLAVED PERSONS'
I. Submissions of the Parties
(1) Applicant Government
215. The applicant government alleged generally that the Turkish armed forces were arbitrarily detaining a great number of Greek Cypriot civilians of all ages and both sexes in the north of Cyprus.
*522 216. They described the enclaved population as a whole as being at the mercy of the Turkish forces, as hostages not allowed to move from their ' places of detention'.
217. In the Government's view the remaining enclaved Greek Cypriot inhabitants in the north of Cyprus (about 9,000) were virtually under detention because, though allowed to move to the south, they were not allowed freedom of movement in the north. They were subjected to a curfew between 9.00 p.m. and 6.00 a.m., were not allowed to go to their fields unless they obtained special permission and, in any case, they were not allowed to move from one village to another. The enclaved persons were under the continuous supervision of the Turkish authorities. In particular the ex-prisoners who had been detained in Turkey and were now residing in the Turkish-occupied areas were forced to present themselves to the police twice a day. Many of them were arrested for interrogation or put in prison for reasons such as failure to salute members of the Turkish army.
(2) Respondent Government
218. The respondent Government who, for the reasons stated above, [FN52] did not take part in the proceedings on the merits, have not made any statements with regard to these allegations.
FN52 Supra, para. 23.
II. Relevant Article of the Convention
219. The Commission considers that the restrictions imposed on the liberty of the so-called enclaved persons in the north of Cyprus, as complained of in the present applications, may raise issues under Article 5 of the Convention. It notes in this connection the applicant Government's view that the enclaved persons 'could virtually be described as being under detention'.
220. Article 5 of the Convention reads as follows:
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; *523
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
III. Evidence obtained
This section of the Commission's Report (paragraphs 221-229) is omitted.
IV. Evaluation of the evidence
230. The Commission has not been able, on the basis of the evidence before it, to establish a clear picture of the living conditions of the so-called enclaved Greek Cypriots in the north of Cyprus in so far as they were not subjected to special measures of detention. The evidence obtained from witnesses is fragmentary and partly contradictory, in particular with regard to the hours and other conditions of the curfew. Moreover, it is almost exclusively hearsay evidence with the exception of the evidence of Dr. Charalambides in respect of conditions in Upper Kyrenia. The sparse information contained in UN documents and written statements submitted is not sufficient to complete the picture. The only findings which can be arrived at with some degree of certainty are:
(a) that there has been a curfew involving confinement to houses, as a rule during the night hours, for the Greek Cypriot population in the north of Cyprus;
(b) that restrictions have been imposed on the freedom of movement of Greek Cypriots in the north of Cyprus outside their villages.
231. The exact conditions of the curfew and its application as well as the scope and application of the restrictions on the movement of persons outside villages have not been further investigated. The Commission observes in this connection that investigations would have had to be carried out in the north of Cyprus to which access has not been granted to its Delegation.
*524 V. Responsibility of Turkey under the Convention
232. Since the Commission has not been able to establish all the relevant facts with regard to the present allegations, it is also unable to determine to what extent the treatment of the enclaved Greek Cypriot population is imputable to Turkey under the Convention. In particular it has not established whether the curfew and restrictions of movement were proclaimed by the Turkish military authorities, or by the Turkish Cypriot Administration--either on their own initiative or on instructions of the Turkish authorities.
233. However, on the basis of the evidence before it, the Commission finds indications that the restrictions of movement and, to a lesser degree, the curfew, were enforced with the assistance of the Turkish army: while references to members of the Turkish Cypriot police are frequent in statements concerning searches and controls which were carried out during night-time, it seems that the movement of persons between villages was more closely controlled by the Turkish armed forces. Such control confirms that the persons concerned were under the jurisdiction of Turkey within the meaning of Article 1 of the Convention.
234. The Commission has examined the general restrictions imposed on the liberty of Greek Cypriots in the north of Cyprus in the light of the provisions of Article 5 of the Convention. In this connection it has also noted the provisions of Article 2 of Protocol No 4 to the Convention according to which everybody lawfully within the territory of a State has the right to liberty of movement within that territory.
235. The Commission, by eight votes against five votes and with two abstentions, first considers that, on the basis of the evidence before it, it is sufficiently informed to draw the conclusion that the curfew imposed at night on enclaved Greek Cypriots in the north of Cyprus, while a restriction of liberty is not a deprivation of liberty, within the meaning of Article 5 (1) of the Convention.
236. The Commission, by twelve votes with two abstentions, further considers that, on the basis of the evidence before it, it is sufficiently informed to draw the conclusion that the alleged restrictions of movement outside the built-up area of villages in the north of Cyprus would fall within the scope of Article 2 of Protocol No 4, which has not been ratified by either Cyprus or Turkey, rather than within the scope of Article 5 of the Convention. The Commission is therefore unable to find a violation of Article 5 of the Convention in so far as the restrictions imposed on Greek Cypriots in order to prevent them from moving freely outside villages in the north of Cyprus are imputable to Turkey.
*525 B. 'DETENTION CENTRES'
I. Submissions of the Parties
(1) Applicant Government
237. The applicant Government submitted that in the north of Cyprus the Turkish armed forces detained thousands of persons arbitrarily and with no lawful authority; they stated that this detention occurred essentially in certain 'concentration camps', the worst of which were Voni, Marathovouno, Vitsada and Gypsou.
238. The Government first alleged that, on entering any inhabited area, the Turkish forces at once arrested the Greek Cypriot inhabitants and detained them because they were Greeks: the same course was followed in respect of any Greek Cypriot met on the way of the invading army.
According to the Government, those who were not detained as prisoners-of-war [FN53]; i.e. women, children and old men, were put in 'concentration camps', if they were not expelled. In those camps hundreds of persons from small babies to old people of 90 were kept in small spaces under bad conditions without sanitary facilities [FN54] and were not allowed to move out. Detainees were often moved from one concentration area to another and regrouped.
FN53 For detention of persons classified as 'prisoners and detainees' who were sometimes designated as 'prisoners of war', cf. sub-section C, infra.
FN54 For conditions of detention see Chapter 4 B, infra.
239. The applicant Government also complained of the detention by the Turkish authorities of some 3,000 inhabitants of the Kyrenia district in the Kyrenia Dome Hotel and in Bellapais village. They stated that most of these persons were arrested in their houses by the Turkish army and transported to the said places of detention. The rest were forced during the first days of the invasion to take refuge there. In November 1974 the Turkish military authorities continued to detain about 450 of those persons at the Dome Hotel and 1,000 at Bellapais. The detainees were not allowed to move from their places of detention to their nearby houses.
240. In their second application the applicant Government submitted that additional concentration camps had been established for the purpose of the detention of Greek Cypriot civilians in the north of Cyprus.
They distinguished between the additional 'concentration camp' at Morphou established after the filing of the first application, and other places of detention including:
-- the Dome Hotel in Kyrenia--53 detainees;
-- Lapithos (Kyrenia)--about 150 detainees;
-- Larnaca of Lapithos (Kyrenia)--about 30 detainees;
-- Trikomo (Famagusta)--about 120 detainees;
-- Kondemenos (Kyrenia)--about 8 detainees;
-- Kalopsida (Famagusta)--about 10 detainees; *526
-- Spathariko (Famagusta)--about 9 detainees.
It was further stated that the Morphou concentration camp was gradually evacuated so that there remained only about 30 detainees by March 1975, and only 12 by July 1975, and that the detainees in the last three of the detention places above were expelled to the Government controlled areas in the summer of 1975.
(2) Respondent Government
241. The respondent Government who, for the reasons stated above, [FN55] did not take part in the proceedings on the merits, have not made any statements with regard to the above allegations.
FN55 Supra, para. 23.
II. Relevant Articles of the Convention
242. The Commission considers that the above allegations concerning the concentration of Greek Cypriots in the north of Cyprus in certain detention centres raise issues under Article 5 of the Convention. [FN56] The question whether the conditions of this confinement raise issues under Article 3 of the Convention will be dealt with separately.
FN56 Infra, Chapter 4 B.
III. Evidence obtained
This section of the Commission's Report (paragraphs 243-273) is omitted.
IV. Evaluation of evidence obtained
274. The Commission considers that the evidence obtained establishes that Greek Cypriots in the north of Cyprus were confined for considerable periods of time at certain locations, including detention centres, private houses, and the Dome Hotel in Kyrenia.
275. As regards detention centres, it has been established that such centres existed in schools and churches at Voni, Gypsou and Morphou. There is also evidence concerning the existence of similar centres at Marathovouno and Vitsada but the Commission is unable, on the basis of the material before it, fully to determine the conditions which existed there. It appears from written and oral statements that the detention centres in these two villages were evacuated to Gypsou before the intercommunal arrangements for the transfer to the south of Cyprus of persons subjected to such measures of confinement were concluded in November 1974. This would explain why the relevant intercommunal agreement mentions only Gypsou and Voni. The evidence also shows that the centre at Morphou was not fully established until a later stage.
276. The Commission finds it proved that more than 2,000 Greek Cypriots, mainly civilians, including old people and children, were *527 transferred to the centres, and that their freedom of movement was consequently restricted to the respective premises where they were kept under guard in miserable conditions. Apart from the written and oral evidence of persons who stated that they had themselves been kept in one or several of the centres, this was also confirmed by independent sources such as the statements of UNHCR and ICRC officials at an intercommunal meeting, the record of which the Commission accepts as correct, and in the report of a journalist describing the conditions in Gypsou. Although the relevant UN documents do not contain details about conditions in the centres, they do not in any way contradict the above findings but rather tend to confirm them. The period of confinement in these centres was in most cases two to three months.
277. As regards confinement in private houses the Commission considers that a distinction should be made between houses used in connection with detention centres, and other houses.
(a) There is evidence showing that at least at Gypsou and Morphou some private residences were used as annexes of the detention centres established there. The Greek Cypriots confined to these houses lived in the same, if not worse, conditions as those in the school and church, and were guarded together with them.
(b) There is also evidence that elsewhere, too, e.g. in Lapithos, Greek Cypriots were confined to private houses either their own ones or houses to which they were transferred. There are strong indications that conditions in these houses were some-times similar to those in the detention centres, but the Commission has been unable, on the basis of the evidence before it, to establish a clear picture of all the relevant circumstances, e.g. as to the duration of the confinement, the number of persons concerned, whether they were continuously guarded, etc.
278. Finally, as regards the confinement of Greek Cypriots in the Dome Hotel the Commission finds that it developed from an original situation of UN protective custody, such as also existed in the village of Bellapais. Although it has been established to the Commission's satisfaction that some Greek Cypriots from Kyrenia and the surrounding villages were brought to the Hotel by Turkish troops while it was still under UN control, it is not clear whether this happened against their will. In addition to them there were no doubt many, including the Commission's main witness in this matter, Dr. Charalambides, who went to the Hotel of their own volition, some on the advice of UNFICYP, in order to take refuge there. However, the Commission finds it established that the persons in the Hotel were soon subjected to restrictions of their freedom of movement. They could only leave the Hotel under escort after having obtained permission, which was given on a restrictive basis for reasons such *528 as shopping, visits to church, walks for exercise twice a week, and apparently once early in October 1974 in order to inspect their houses. With this exception the persons confined to the Hotel were not allowed to go to their
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