Before the European Commission of Human Rights
1997
*244 Cyprus v. Turkey
Application No. 25781/94
(Alleged violations of human rights in northern Cyprus)
Before the European Commission of Human Rights
Eur Comm HR
(The President, Mr Trechsel; Judges Danelius, Rozakis, Busuttil, Jörundsson,
Weitzel, Soyer, Liddy, Pellonpää, Marxer, Nowicki, Cabral Barreto, Conforti,
Békés, Mucha, Ress, Perenic, Lorenzen, Herndl)
1997
The applicant Government complained of systematic violations of human rights in
northern Cyprus by Turkish State organs and other persons acting with the
support and knowledge of Turkey. In particular, it alleged violations of
Articles 1 to 6, 8 to 11 and 13 of the Convention, Articles 1 to 3 of Protocol
No. 1, and Articles 14 and 17 of the Convention in conjunction with the above
Articles. The respondent Government raised a number of objections to the
admissibility of the application.
Held, unanimously, without prejudging the merits of the case, that the
application was admissible.
Jurisdiction and responsibility of respondent Government: scope of
Commission's examination at admissibility stage (Art. 1).
1.
(a) The question of Turkey's "jurisdiction" in northern Cyprus and its
responsibility under the Convention for the acts complained of must be
determined at the merits stage of the proceedings. [12]
(b) Article 27(2) of the Convention does not apply in respect of applications
submitted under Article 24 and therefore cannot be applied in such applications
where the respondent Government objects that particular complaints are
incompatible with the Convention ratio loci or ratione personae.
However, this cannot prevent the Commission from establishing at the
admissibility stage, under general principles governing the exercise of
jurisdiction by international tribunals, whether it has any competence at all to
deal with the matter laid before it. [12]
(c) Following the approach adopted by the Court in Loizidou
v. Turkey (Preliminary Objections), the
Commission will limit the examination to the question whether its competence to
examine the applicant Government's complaints is excluded on the grounds that
they concern matters which cannot fall within the "jurisdiction" of
the respondent Government, leaving open, at this stage, the question whether the
latter is actually responsible under the Convention for the acts which form the
basis of the complaints and the further question as to which principles govern
State responsibility under the Convention in a situation like that obtaining in
northern Cyprus. The Commission's examination will thus be limited to
determining whether the matters complained of *245
are capable of falling within the "jurisdiction" of Turkey even though
they occur outside her national territory. [13]
Jurisdiction and responsibility of respondent Government in respect of
applicant Government's complaints (Art. 1).
2.
(a) Although Article 1 sets limits on the reach of the Convention, the concept
of "jurisdiction" is not restricted to the national territory of the
High Contracting Parties. [14]
(b) Certain of the complaints relate to the loss of control of property by Greek
Cypriots due to the presence of Turkish troops in northern Cyprus and the
establishment there of the Turkish Republic of Northern Cyprus (the
"TRNC"), it being claimed that access to the property concerned is
being prevented by Turkish troops. This situation is similar to that in Loizidou
v. Turkey, where the Court held that the acts complained of were capable
of falling within Turkish "jurisdiction" within the meaning of Article
1. The Commission reaches the same conclusion concerning the above complaints.
[15]
(c) Whilst a definitive answer cannot be given regarding each of the other
complaints, generally speaking the applicant Government has sufficiently
demonstrated the possibility of a direct or indirect involvement of Turkish
authorities. At this stage, therefore, there is no reason to exclude any part of
the application on the ground that the acts complained of are prima facie
incapable of falling within Turkish jurisdiction within the meaning of Article
1. [16]
(d) This finding does not in any way prejudge the questions to be determined at
the merits stage of the proceedings, namely whether the matters complained of
are actually imputable to Turkey and give rise to her responsibility under the
Convention. [17]
Alleged identity of present inter-State application with previous one: scope
of Commission's examination at admissibility stage (Arts. 24 and 27(1)(b)).
3.
(a) Having regard to Article 27(1)(b) of the Convention, the Commission cannot
declare inadmissible an application filed under Article 24 on the ground that it
is substantially the same as a previous inter-State application. To do so would
imply an examination, though preliminary, of the merits of the application--an
examination which in inter-State cases must be entirely reserved for the post-
admissibility stage. However, this does not exclude the fact that the Commission
will have to consider at the merits stage whether and, if so, to what extent the
present inter-State application is substantially the same as a previous one.
[26]
(b) Article 27(1)(b) reflects a basic legal principle of procedure which in
inter-State cases arises during the examination of the merits. It cannot be the
Commission's task again to investigate complaints already examined in a previous
case, and therefore a State cannot, except in specific circumstances, claim an
interest to have new findings made where the Commission has already adopted a
Report under Article 31 of the Convention concerning the same matter. [26]
(c) The Commission therefore reserves the question whether and, if so, to what
extent, the applicant Government can have a valid legal *246
interest in the determination of the alleged continuing violations of the
Convention insofar as they have already been dealt with in previous Reports.
[27]
Alleged abuse of Convention procedure; effect of Committee of Ministers'
resolutions (Arts. 24 and 27(2)).
4.
(a) As to the further argument that the Commission is precluded from examining
the present application by virtue of an alleged res judicata effect of
the Committee of Ministers' decisions concerning the previous inter-State
applications, this could only apply to the extent that the subject matter of the
application is the same as that of the previous cases. That is a question which
can only be determined at the merits stage. [28]
(b) In any event, the Commission, having regard to the specific text of the
Committee of Ministers' Resolution DH (79) 1, did not accept a similar argument
by the respondent Government in relation to Application No. 8007/77, and
confirmed the applicant Government's legal interest in the determination of
alleged continuing violations. The same must apply in the present case insofar
as a precluding effect of the same Resolution is invoked. [29]
(c) As to any precluding effect of the Committee of Ministers' Resolution DH
(92) 12 concerning Application No. 8007/77, this resolution merely authorized
the publication of the Commission's Report, without containing any findings as
to violations of the Convention. For this reason there can be no res judicata
effect of this decision. [29]
(d) Similarly, insofar as the respondent Government claims that the applicant
Government, by raising the same complaints again, wants to bring the matter
before the Court, thereby abusing the Convention procedure in a manner
incompatible with the structure of the Convention, this argument presupposes a
pronouncement on the question of whether the present application is identical to
the previous ones, a matter which can only be decided at the merits stage. [30]
(e) It is not appropriate to speculate about the intentions of the parties
concerning their further conduct of the proceedings. If the applicant Government
should decide in the future to bring the case before the Court, it would be for
the latter to decide whether it was precluded from examining the application on
the grounds invoked by the respondent Government. [30]
(f) The Convention does not empower the Commission to reject an application
introduced under Article 24 as constituting an "abuse of the right of
petition", Article 27(2) of the Convention being applicable only to
applications lodged under Article 25. Even if there should exist a general
principle of law allowing the Commission to reject an inter-State application as
inadmissible on the ground that it is manifestly abusive, the Commission does
not find this to be the case in the present application. [31]
Exclusion of other means of dispute settlement (Art. 62).
5.
(a) Having regard to the wording of Article 62 and the aim and purpose of the
Convention, the possibility for a High Contracting Party of withdrawing a case
from the jurisdiction of the Convention organs on the ground that it has entered
into a special agreement with the other High Contracting Party concerned is
given only in exceptional circumstances. [41] *247
(b) The principle stipulated in Article 62 is the monopoly of the Convention
institutions to decide disputes arising out of the interpretation and
application of the Convention. Only exceptionally is a departure from this
principle permitted, subject to the existence of a special agreement between the
High Contracting Parties concerned, permitting the submission of the
dispute--concerning the interpretation or application of the Convention--to an
alternative means of settlement by way of petition. [42]
(c) The conditions for invoking such a special agreement are not fulfilled in
the present case. A primary condition, namely the consent of both High
Contracting Parties concerned to withdraw the particular dispute from
jurisdiction of the Convention organs, is lacking. Even assuming that both
Turkey and Cyprus are bound by international obligations concerning the
intercommunal talks and the Committee on Missing Persons, it is difficult to see
how this could amount to a "special agreement" between them to resort
exclusively to these means of settlement precluding the Convention organs from
performing their normal functions. The parties to the agreements establishing
the intercommunal talks and the Committee on Missing Persons are formally
different from the parties to the present proceedings. In particular, Turkey is
not a formal party to those agreements. Moreover, neither agreement relates
specifically to the settlement of a dispute on the interpretation or application
of the Convention, let alone the particular dispute now submitted to the
Commission. Nor is it provided in these agreements that any such dispute can be
submitted to the intercommunal talks or the Committee on Missing Persons by way
of petition. [43]
(d) Generally speaking, the performance by the Commission of its functions under
Article 19 of the Convention cannot be impeded by the fact that certain aspects
of the situation underlying an application are being dealt with from a different
angle by other international bodies. [44]
Exhaustion of domestic remedies; six month rule (Art. 26).
6.
(a) The rule in Article 26 of the Convention requiring the exhaustion of
domestic remedies applies not only in individual applications lodged under
Article 25 but also in cases brought by States under Article 24. The rule means
in principle that remedies which are shown to exist within the legal system of
the responsible State must be used and exhausted in the normal way before the
Commission is seized of a case. However, remedies which do not offer a
possibility of redressing the alleged injury or damage cannot be regarded as
effective or sufficient and need not be exhausted. [47]
(b) Some of the complaints, in particular those concerning property rights,
relate to the implementation of purported legislative acts of the TRNC. The rule
requiring the exhaustion of domestic remedies does not apply to complaints the
object of which is to determine the compatibility with the Convention of
legislative measures and administrative practices, except where specific and
effective remedies against legislation exist. Whilst in the TRNC the judicial
review of legislation as to its constitutionality is provided for, in the
particular circumstances of the present case this is of no avail because the
measures complained of are essentially stipulated in the TRNC Constitution
itself. [52] *248
(c) As for the alleged existence of effective remedies in the TRNC, the
overwhelming majority of Greek Cypriots, whose rights and freedoms under the
Convention are alleged to have been violated, are at present resident in the
southern part of Cyprus controlled by the applicant Government and are not
permitted by the Turkish authorities to enter the northern part of the island.
In these circumstances, any remedies which might be said to be available to such
Greek Cypriots in the northern area cannot on principle be considered as
"practicable". Furthermore, from the cases referred to by the
respondent Government it does not appear that the proceedings concerned
interferences with property rights as alleged in the present application.
[53]-[54]
(d) It follows that the remedies indicated by the respondent Government cannot,
for the purposes of the present application, be considered as relevant and
sufficient and that they need not be exhausted. [55]
(e) It is also relevant to observe that, in distinction from the previous
applications, in the present case the respondent Government relies exclusively
on remedies which are claimed to be available before Turkish Cypriot
authorities, whereas the applicant Government claims that these authorities are de
facto under the control of Turkey. The Commission notes the applicant
Government's submission that these remedies are generally ineffective for Greek
Cypriots, and also the related complaints under Article 13 of the Convention. In
the light of the Court's Loizidou judgment,
according to which Turkish responsibility under the Convention may also arise
where it exercises control over an area outside its national territory
"through a subordinate local administration", it appears that the
question of exhaustion of domestic remedies before TRNC courts is closely
related to the issue of Turkish jurisdiction which can only be determined at the
merits stage of the proceedings. To this extent the Commission must accordingly
reserve the final determination to the merits stage. [56]
(f) In the absence of remedies, the six month period must be counted as from the
act or decision which is alleged to be in violation of the Convention. However,
it does not apply to a permanent state of affairs which is still continuing. As
the present application alleges for the most part continuing violations of the
Convention, in respect of which the Commission cannot at the present stage of
the proceedings examine whether or not they are well-founded, it must reserve
this question for later consideration. [60]
Representation
Mr A. Markides, Attorney-General of the Republic (Agent), Mr I. Brownlie ,Q.C.,
Professor M. Shaw , Barrister-at-Law, Mr P. Poliviou , Barrister-at-Law
(Counsel), Mrs S. Joannides , Council of the Republic, Dr C. Palley , Consultant
to the Ministry of Foreign Affairs, Mr N. Emiliou , Consultant to the Ministry
of Foreign Affairs, for the applicant Government.
Professor Dr B. Çaglar (Agent), Professor Dr H. Golsong , Mr Z. Necatigil , Mrs
D. Akcay , Mr Ö. Koray , Mr E. Apakan , Mr T. Özkarol , Mr A. Akay for the
respondent Government.
The following cases are referred to in the Decision:
1. Drozd and Janousek v. France and Spain (A/240): (1992)
14 E.H.R.R. 745. *249
2. Loizidou v. Turkey (A/310): (1995) 20 E.H.R.R. 99.
3. Application No. 16137/90, Bui Van Thanh v. United Kingdom, Dec. 12.3.90, D.R.
65, p. 330.
4. Application Nos. 15299/89 and 15300/89, Chrysostomos and Papachrysostomou v.
Turkey, Comm. Rep. 8.7.93.
5. Application Nos. 6780/74 and 6950/75, Cyprus v. Turkey, Dec. 26.5.75, D.R. 2,
p. 125.
6. Application No. 8007/77, Cyprus v. Turkey, Dec. 10.7.78, D.R. 13, p. 85.
7. Application No. 8007/77, Cyprus v. Turkey, Comm. Rep. 4.10.83, D.R. 72, p. 5.
8. Case C-432/92, R. v. Minister of Agriculture, Fisheries and Food, Ex parte s
p Anastasiou (Pissouri) Ltd and Others [1994] I E.C.R. 3087.
The Facts
1. Original submissions
On 22 November 1994 the applicant Government submitted the application to the
Commission in the following terms:
1. The Republic of Cyprus, a Member State of the Council of Europe and High
Contracting Party to the European Convention on Human Rights and the Additional
Protocols thereto requests under Article 24 of the European Convention on Human
Rights the Secretary General of the Council of Europe to refer to the European
Commission of Human Rights the following breaches of provisions of the
Convention and its First Protocol committed by the Republic of Turkey, a Member
state of the Council of Europe and High Contracting Party to the European
Convention on Human Rights and Additional Protocols thereto.
2. The Republic of Cyprus contends that the Republic of Turkey since 4 October
1983, when the European Commission of Human Rights adopted its Report in respect
of Application No. 8007/77, for violations of human rights by Turkey in the
areas occupied by the Turkish army in Cyprus, continues to commit breaches of
Articles 1, 2, 3, 4, 5, 6, 8, 9, 11, 13 of the Convention and of Articles 1, 2,
3 of the First Protocol and of Articles 14 and 17 of the Convention in
conjunction with all the above mentioned Articles.
3. Turkey continues to occupy about 40 per cent of the territory of the Republic
of Cyprus seized in consequence of the invasion of Cyprus by Turkish troops on
20 July 1974.
4. In the Turkish occupied area of Cyprus in question, and ever since the
adoption of the aforesaid Report by the Commission, the following violations of
human rights continue to be committed, by way of systematic conduct, by Turkish
state organs and other persons acting with the support and knowledge of Turkey,
in utter disregard of the obligations of Turkey under the European Convention on
Human Rights:
(a) Unlawful detention of at least 1,619 missing Greek-Cypriots (a considerable
number of them being civilians) who were unlawfully deprived of their liberty,
in Turkish custody in 1974, Turkey having failed until now to account for the
fate of these persons.
(b) Refusal to allow over 170,000 Greek-Cypriots to return to their homes in the
Turkish occupied area of Cyprus.
(c) During the last six months Turkey continued by inhuman methods to *250
force Greek-Cypriots living in the occupied area in question to leave their
homes and seek refuge in the Government-controlled area of Cyprus and they are
being prevented by Turkey from returning to their homes.
(d) The homes and properties of the Greek-Cypriots mentioned in paragaphs (b)
and (c) above continue to be the object of de facto expropriation and
illegal possession and exploitation contrary to Article 1 of the First Protocol
and the general principles of International Law. These continuing violations
have been intensified through the increased and systematic settlement of
settlers from Turkey, with the encouragement and assistance of Turkey, against
the will of the lawful Government of Cyprus. Also, the agricultural produce of
the Greek- Cypriot properties continues to be collected and exported to markets
in several European and other countries against the will of the lawful owners
thereof.
(e) Families were and are still separated as a result of the aforesaid continued
refusal of Turkey to allow the displaced Greek-Cypriots to return to their homes
in the Turkish occupied area of Cyprus.
(f) Through the continued and organized settlement of settlers from Turkey in
the occupied area of Cyprus violations of the rights of the Greek-Cypriots under
Article 8 of the Convention and Article 1 of the First Protocol have been
continuously taking place.
(g) In verifiable cases inhuman treatment of Greek-Cypriots still living in the
occupied part of Cyprus has taken place contrary to Articles 3, 5, 6, 8 and 9 of
the Convention and Article 2 of the First Protocol. Particulars of such
treatment will be made available in due course.
(h) The above displacement of Greek-Cypriots and the carrying out of elections
by the illegal regime operating in the Turkish occupied area of Cyprus with the
support of Turkey has resulted in violations of the rights of the displaced
Greek-Cypriots under Article 3 of the First Protocol.
5. The situation resulting from the Turkish occupation of the area of Cyprus in
question also continues to affect the rights and freedoms of Turkish-Cypriots
living there, particularly of those who in furtherance of Turkey's political
aims were forced and induced to move from the southern part of Cyprus where they
had their homes and properties. More specifically there have been and continue
to be violations of the rights of Turkish- Cypriots to return to their homes and
properties and to associate freely with Greek-Cypriots living in the
Government-controlled area.
6. No military operations or any fighting whatsoever has taken place during the
period to which the present application relates.
7. The violations in question were directed against Greek-Cypriots because of
their ethnic origin and religion.
8. The victims of the above violations have no effective remedy as provided
under Article 13 of the Convention.
9. Under the circumstances no remedy in Turkish courts was likely to be
effective and adequate for the violations in question. In any case, all the
above violations were committed and continue to be committed under circumstances
which excuse the failure to resort to any domestic remedy for the purposes of
Article 26 of the Convention.
10. All the above violations will be proved by concrete and positive evidence.
Full particulars regarding these violations will be made available in due
course.
11. The Turkish occupied area is still sealed off and the Turkish Military
Authorities do not allow free access to it.
12. The Government of the Republic of Cyprus requests the Commission *251
to give precedence to the present application in view of the extent and
continuing nature of the violations complained of.
13. This application is made without prejudice to individual applications
against Turkey under Article 25 of the Convention which have already been made
or which will be made in future.
2. Particulars submitted by the applicant Government
On 3 March 1995 the applicant Government submitted particulars of the
application, supported by documentary evidence included in Annexes, which were
later supplemented by further material. These particulars may be summarized as
follows:
(a) As to the scope of Turkey's control over northern Cyprus
The applicant Government contends that notwithstanding the creation of local
administrative structures (the TRNC), Turkey continues to be exclusively
responsible under international law for events in northern Cyprus, including any
violations of the Convention, because it exercises exclusive de facto
actual authority and effective control and thus jurisdiction within the meaning
of Article 1 of the Convention over all persons and property in this area which
in the applicant Government's submission continues to be under the military
occupation of Turkey.
The applicant Government claims that, apart from Turkey's legal responsibility
for northern Cyprus under the general principles of international law, Turkey's
actual overall control is pervasive and has been unaffected by her establishment
and/or sponsorship of illegal local administrative structures. It is claimed
that the local administrative apparatus is in fact subject at all times to
Turkey's informal direction. It is financially and physically dependent on and
directed by Turkey. In short, Turkey has unfettered and unimpeded power to
enforce obedience to her behests, despite any appearance of puppet institutions.
If violations of human rights are effected by such institutions and persons
acting under their purported authority, Turkey has both the duty and the actual
power to act to prevent, stop and remedy such violations: it is Turkey's support
to the illegal local administrative apparatus which keeps it in being; Turkey
has full knowledge of decisions and conduct by so-called "officials"
of that apparatus; and, from behind the scenes, Turkey directs it.
In support of these allegations, the applicant Government submits the following:
-- The presence of over 30,000 members of the armed forces of Turkey in northern
Cyprus make it one of the most highly militarized areas in the world in terms of
the ratio between numbers of troops and civilian population. Allegedly, there
has been a recent increase in the numbers of troops and upgrading of their
equipment. The troops are stationed throughout the occupied area and not only in
the area adjacent *252 to the
buffer zone. Turkish military courts exercise jurisdiction not only over members
of the Turkish armed forces, but also over civilians entering military areas.
Allegedly 90 per cent of the occupied territory are military areas of various
categories, leaving only 10 per cent as "Free Tourist Areas", and even
the latter are not excluded from military enforcement action. [FN1]
-- Fortifications and minefields are maintained by the Turkish armed forces
along the cease-fire lines (which the applicant Government refers to as
"forward defence lines"). The applicant Government contests that the
so- called "buffer zone" is a term of art reflecting the result of
international agreements; however, UN documents confirm that there are no
agreements concerning the "buffer zone" by which powers were conferred
on Turkish Cypriot authorities. Rather, it is the Turkish armed forces who seal
off the occupied area along the contact line, permitting no movement either by
Greek or Turkish Cypriots to or from the occupied area. Entry into the First
Prohibited Military Area (within a distance of 500m from the contact line)
requires military authorization. Movement across the lines is only exceptionally
allowed, subject to grant of prior permission by the Turkish armed forces. Also
Turkish Cypriots who work in the area controlled by the Cypriot Government or at
the British Sovereign Base Area of Dhekelia and even United Nations Forces in
Cyprus ("UNFICYP") members need the Turkish military authorities'
permission for crossing. Allegedly, the crossing points have been arbitrarily
closed by the Turkish armed forces on certain occasions. [FN2]
-- As to the status of the Turkish Cypriot administration in northern Cyprus,
the applicant Government submit that the proclamation of both the "Turkish
Federated State of Cyprus" [FN3] (TFSC) and of the "Turkish Republic
of Northern Cyprus" [FN4] (TRNC) were effected with the collaboration and
under the responsibility of the Turkish mainland authorities. The creation of
these local administrative structures and the purported establishment of
diplomatic relations between Turkey and the TRNC [FN5] have been condemned and
declared legally invalid by the UN Security Council. The UN consider that the
Turkish Forces are the party to the cease-fire established in 1974 and cannot
abrogate their responsibility in *253
that regard. The TRNC has not been recognized by the international community.
FN1 Prohibited Military Areas Decree 1979.
FN2 e.g. on 11 July 1994 following a judgment of the European Court of
Justice relating to the importation of goods from northern Cyprus into States
members of the European Union. See Case C-432/92, R v. Minister of Agriculture,
Fisheries and Food, Ex parte S. P. Anastasiou (Pissouri) Ltd and Others [1994] I
E.C.R. 3087.
FN3 13 February 1975.
FN4 18 November 1983.
FN5 17 April 1984.
The applicant Government claims that the Government of the TRNC is subject to
the authority and directions of the Government of Turkey and merely a product of
Turkey's military occupation: "Turkish State organs are systematically
involved in the governance of the occupied area and no decisions can be taken
without Turkish knowledge and approval or acquiescence". Reference is made
in this context to the creation of special bodies in the Republic of Turkey for
dealing with Cyprus issues, and to the manner in which the co-ordination between
these bodies and the Turkish Cypriot administration is effected.
Until 1986, the major administrative mechanism to exercise political control was
the Cyprus Coordination Council composed of Turkish Ministers. Decisions were
made in Ankara, submitted to the Turkish Cypriot Government for approval, and
finally adopted and implemented by that Council. The present structures include
the existence, in Turkey, of a special State Minister for Co-ordination of
Cyprus Issues, and of a Council for Aid, under the direct supervision of the
Turkish Deputy Minister for Cypriot Affairs, which plans and co-ordinates the
application of all funds emanating from Turkey to northern Cyprus. Officials of
that Council are present in many departments of the TRNC administration.
Political decisions regarding the TRNC are co-ordinated between the Cyprus Desk
of the Turkish Foreign Ministry and the Special War Department of the Turkish
General Staff. Allegedly, the Turkish Ambassador to the TRNC from time to time
gives explicit instructions and informal directions to the TRNC Government and
keeps close surveillance on its decision-making, the Embassy being represented
at cabinet meetings. The applicant Government claims that, de facto,
northern Cyprus is administered by a committee which meets regularly every week
in Nicosia, and which consists of (i) the Commander of the Turkish Forces in the
occupied area, (ii) the Commander of the Turkish Cypriot Security Forces, (iii)
the Ambassador of Turkey and (iv) Mr Denktash.
-- As regards the Turkish Cypriot Security Forces, the applicant Government
claims that they are under the authority and subject to the orders of the
Turkish Army's General Staff. Their Commander is a Turkish national on active
duty with the Turkish Army. The expenses for maintaining these Security Forces
are provided by Turkey.
-- Turkish control of the economy of the occupied area has been formalized by a
series of Economic Co-operation Protocols. The first Protocol, signed on 5
December 1986, established a technical committee composed of Turkish Civil
Servants and Turkish Cypriots to direct finance and economic policy. A *254
further document signed on 25 July 1990 was designed to integrate the economy of
the TRNC with that of Turkey. The Turkish lira was introduced as the currency in
the occupied area. Another document signed on 6 March 1992 purported to create
an Economic Co-operation Area between Turkey and the TRNC. Turkey pledged
contributions to the TRNC budget, the financing of investment projects and
technical assistance for drawing up a development plan. According to Turkish
Cypriot press reports, the Central Bank of the TRNC was integrated with the
Central Bank of Turkey in August 1994. The applicant Government also refers to
the substantial size of direct financial payments by Turkey to the TRNC without
which the administration of the occupied area could not function.
-- Finally, the applicant Government observed that Turkish State organs and the
leadership of the TRNC cannot be expected to proclaim the reality of Turkey's
control over the area. Allegedly, they pursue a deliberate policy of
dissimulating this reality. Thus it is claimed that Turkish Cypriot political
leaders and the press were warned not to provide information which could be used
by the applicant Government as evidence of Turkish control in northern Cyprus.
However, the applicant Government quotes a number of revealing statements of
politicians published in the Turkish or Turkish Cypriot press which in their
submission show that Turkey is determined, on grounds of national ideology and
strategic military interests, to uphold its control of northern Cyprus and not
to allow any change of the present situation.
(b) As to the alleged violations of the Convention
The applicant Government refers to the findings in the Commission's Reports on
Application Nos. 6780/74 and 6950/75 and No. 8007/77 and observes that no
measures were taken by Turkey since the adoption of those Reports to end the
violations of the Convention established by the Commission. It claims in
particular that there are continuing violations concerning the Greek Cypriot
missing and displaced persons. Also new facts have emerged involving, in
particular, the process of settlement of mainland Turks in the northern part of
Cyprus, the deterioration of the conditions of life of the people of the Karpas
peninsula, and the coercive displacement of Greek Cypriots from the northern
area. The applicant Government submits that there is a continuation of
systematic measures and conduct aimed at the eventual extinction of the Greek
Cypriot community in the Karpas peninsula. They claim that the cumulative effect
of politically *255 induced
changes in the demographic make-up of the Turkish-controlled area, including the
coercive displacement of Greek Cypriots, the refusal to allow Greek Cypriots to
return to their homes and properties, and the separation of families amounts in
effect to ethnic cleansing. It leads to continued suffering and frustration to
the victims and their families and to the people of Cyprus as a whole.
Greek Cypriot missing personsThe applicant Government submits that at least
1,619 Greek Cypriots, many of them civilians, who were last seen alive in the
occupied area of Cyprus after the Turkish invasion, or in Turkey in the custody
of the Turkish armed forces, are still missing. The applicant Government refers
to the Commission's findings in this respect in the Report on Application No.
8007/77. It points out that since 1975 the UN General Assembly has called for
the tracing and accounting for these persons, that a Special Committee on
Missing Persons has been set up in 1981, consisting of a Greek Cypriot member, a
Turkish Cypriot member and a Red Cross representative appointed by the UN
Secretary General. The arrangement is between the two Cypriot communities and
does not involve Turkey. However, due to procedural difficulties, the Committee
achieved no progress in its investigative work. After a call by the U.N. General
Assembly in December 1982, it resumed work in March 1984, but soon its
activities again came to a standstill. Informal work started after a letter from
the UN Secretary General of October 1993, but certain procedural matters have
not been agreed upon. In any event, even if it begins formal work, the Committee
cannot deal with Turkey's responsibility or give any remedy against Turkey or
any other bodies or persons. Turkey herself has not provided any relevant
information about the fate of the missing persons, and the resulting uncertainty
has caused severe suffering to their families.
Greek Cypriot displaced personsThe applicant Government submits that Turkey, as
a matter of policy, continues to refuse to allow over 170,000 Greek Cypriots
(211,000 including children) to return to their homes in northern Cyprus. This
is effected by the sealing off of the whole northern area by the Turkish armed
forces. Turkey ignores the resolutions of the UN General Assembly and Security
Council calling for urgent measures to facilitate the voluntary return of all
refugees to their homes in safety. Turkey has consistently supported the view
that in the Island of Cyprus there are and must remain two separate
demographically homogeneous States. The applicant Government describes this as
"apartheid ŕ la Turque" and "Turkish racialism".
As a particular example of this policy, the applicant Government refers to the
situation in the Varosha suburb of Famagusta. A large *256
part of the suburb, the so-called "fenced area", remains under the
overt control of the Turkish armed forces despite Turkey professing to have
handed over control to Turkish Cypriots. The applicant Government refers to
repeated calls of the UN Security Council since 1984 to hand over this area to
the UN for administration prior to Greek Cypriot settlement, the Security
Council considering attempts to settle any part of Varosha by people other than
its inhabitants as inadmissible. It further points out that the UN Security
Council and Secretary General holds the Government of Turkey responsible for
maintaining the status quo in the fenced area and that, despite this, in 1994
Turkey sought unilaterally to change long-standing procedures for access to the fenced
area, the Turkish forces refusing to treat with UNFICYP on this issue and
referring them to Turkish Cypriot authorities. Except for a Turkish army club,
the use of two hotels as recreational facilities for the Turkish armed forces
and a limited amount of settlement in hostels by students of the
Turkish-sponsored Eastern Mediterranean University, Varosha has remained
uninhabited for 20 years. Turkish Prime Ministers have since 1977 repeatedly
declared that they refuse to hand over Varosha to Greek Cypriots.
Enclaved Greek Cypriots in the Karpas area Before 1974, the Karpas peninsula was
predominantly inhabited by Greek Cypriots. Their number fell from 22,000 in 1974
to only 506 in 1994. They are mostly old people (45 per cent over 70 and half of
these over 80) and there is no renewal of population. There is a clear danger of
the Greek Cypriot population in that area becoming extinct within a few years.
The applicant Government has provided the following population statistics:
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
It claims that whereas physical methods of expulsion were prevalent from 1976 to
1979, they had become unnecessary for Turkey by 1980. Since then, the Turkish
forces have delegated their functions to Turkish Cypriot police elements, a
special plain-clothes police unit being responsible for surveillance of Greek
Cypriots. Allegedly, many of the methods of harassment employed earlier
continue. The applicant Government requests the Commission to make a special
finding concerning the inhuman methods used to force the remaining Greek Cypriot
inhabitants to leave their homes and seek refuge in the area controlled by the
Government of Cyprus, and which are described as "ethnic cleansing".
These practices include the following measures:
-- Enclaved Greek Cypriots are not allowed to leave their *257
villages without special permission from the local police elements. Such
permission is rarely given and only subject to restrictive conditions such as
reporting to the police. For example, permission to visit Famagusta is only
given for purposes of receiving medical attention; it involves four attendances
at police stations on the day of the visit (in addition to two earlier visits
for applying and receiving permission to travel). Similarly, persons granted
special permission to visit the Government-controlled area are required to
notify the police at their home villages on leaving and on re-arrival. Such
temporary transfer requires giving 15 days notice in writing to the local police
elements. Travel can only occur once weekly in a specially designated bus. Apart
from that both Greek Cypriot and Turkish Cypriot residents of the occupied area
may apply for "family meetings" in the presence of UNFICYP in the
Ledra Palace Hotel, a crossing point in Nicosia. They can also receive short
daily visits from Greek Cypriots residing abroad. Permission is not given for
transfer from one village to another, thus preventing the small numbers of
isolated Greek Cypriots from forming larger communities and supporting each
other. Moreover, enclaved Greek Cypriots are not freely permitted to visit their
fields and graze their animals. They are confined to a very small area in the
immediate vicinity of their particular villages.
-- Greek Cypriot doctors are not allowed to visit enclaved Greek Cypriots, and
the local medical facilities are poor; sometimes the police refuse UNFICYP
permission to evacuate Greek Cypriots for urgent specialist medical treatment in
the Government-controlled area. This is particularly grave having regard to the
advanced age of many ill persons.
-- Greek Cypriots are forbidden to communicate with UNFICYP except in the
presence of Turks. UNFICYP Humanitarian Branch personnel visiting Greek Cypriots
are escorted by Turkish Cypriot police. UNFICYP must itself obtain prior
permission for visits. Visits are closely watched by Turkish Cypriot police and
speech in the presence of such police is constrained. Failure to observe these
restrictions results in arrest and sometimes beating. Communications between
enclaved Greek Cypriots and their relatives in the Government-controlled area
are permitted only by means of messages censored by Turkish military authorities
and then delivered by UNFICYP. Such messages are often destroyed and not handed
to UNFICYP for delivery. Telephones are available to Greek Cypriots only in
Turkish Cypriot local police stations and calls are only possible with police
permission and police presence. Persons who have exceptionally obtained
permission for a temporary transfer to *258
visit the Government-controlled area are searched and letters carried by them
for relatives or other enclaved persons are seized. Greek Cypriot newspapers in
Greek language are not permitted to circulate in the Turkish-occupied area and
copies brought back by visitors of the Government- controlled area are
confiscated. Books are also confiscated.
-- Greek Cypriots are not permitted freely to transact commercial transactions
or to carry on any profession, trade or business in the occupied area and thus
to earn a living. They have to rely mainly on charity and food and financial
support sent to them by the Cyprus Government through UNFICYP. Fishermen are
only permitted to line-fish from the shore and may not use their boats.
-- As to educational facilities for Greek Cypriots in northern Cyprus, the
situation is particularly grave. There remain only two elementary schools and
only three Greek Cypriot teachers. All Greek Cypriot secondary schools had to be
closed. Teachers from the Government-controlled area are not permitted to render
services in the occupied area. Much of the equipment of the remaining elementary
schools has been confiscated, school books are censored or banned. Children at
the age of 12 have to make the choice whether to leave northern Cyprus in order
to obtain secondary education or stay with their parents without receiving
secondary education. Forty per cent of the parents opt for the latter solution
because the Turkish authorities permit secondary school children to return to
visit their parents only in the Christmas, Easter and summer vacations. Once
boys reach the age of 16 and girls that of 18, they are not allowed at all to
return to the occupied area or to visit their parents.
-- The manifestation of their religion by enclaved Greek Cypriots is restricted
by the prohibition on replacement of Greek Cypriot priests of whom only two
remain in the occupied area. Services at the major church and shrine of
pilgrimage in the Karpas peninsula are prohibited except on 15 August and 30
November of each year. Attendance of funeral services is restricted to close
relatives living in the Government-controlled area, remoter relatives and
friends not being given permission.
-- Cases continue of direct physical violence or death threats against Greek
Cypriots. Breaking into houses and damage to property occur on such a scale that
people fear leaving their homes unattended. Cases of psychological pressure are
frequent, such as repeated knocking on doors and stoning of houses at night
time. The fear of harassment suffered by Greek Cypriots has been intensified by
the large-scale systematic settlement of colonists from the Turkish mainland *259
which has created an alien, often hostile and threatening environment. In the
remaining six villages where Greek Cypriots still live, Turkish settlers greatly
outnumber the Greek Cypriot residents. It is alleged that no effective remedy
exists for Greek Cypriots who wish to complain about assaults and robberies.
Fears of victimization prevent such complaints and the naming of witnesses. The
applicant Government refers in particular to a report of 8 April 1994 by the
UNFICYP Chief Humanitarian Officer which explains the reasons why Greek Cypriots
are reluctant to report crimes committed against them.
-- The far-reaching restrictions which affect most aspects of the daily life and
civil rights of Greek Cypriots in northern Cyprus are arbitrary and not
established or regulated by law or controlled by the courts. The applicant
Government again refers to the above report by the UNFICYP Chief Humanitarian
Officer.
-- Greek Cypriots who succumb to the fierce pressures to leave the occupied area
include persons of both sexes and all ages. When they leave, their homes are
allocated to settlers from Turkey. Once they have left, they may not change
their minds and are prevented by the Turkish forces from returning to their
homes. There are some limited exceptions for temporary reunion of families, but
permanent reunion by way of return of Greek Cypriot family members to their
parents in the Karpas or by regular or even intermittent visits is denied. Greek
Cypriots who have once left the Karpas are under no circumstances permitted to
return to reside there.
Turkish settlers The applicant Government submits that the grave situation in
Cyprus has been intensified by the increased and systematic settlement of
colonists from the Turkish mainland. They refer to a Report on the Demographic
Structure of the Cypriot Communities, by Mr A. Cuco, Rapporteur to the Committee
on Migration, Refugees and Demography of the Parliamentary Assembly of the
Council of Europe, published on 27 April 1992, in which it was inter alia
stated that "most of the settlers were transferred to Cyprus as the result
of a decision of the Turkish authorities" and that "the aim of the
Turkish- Cypriot administration's policy regarding the Turkish migrants has been
to encourage their permanent settlement on the island". The applicant
Government submits that since the compilation of the Cuco Report, Turkish
settlement has continued, the process being accelerated in 1991, to a degree
that even Turkish Cypriot politicians took exception. They refer to statements
of the Secretary *260 General of
the Republican Turkish Party, Mr Soyer, who declared in May 1993 that
"Turkish Cypriots are face to face with annihilation" and that
"when the occupied area opened to the settlers without any control, the
Turkish Cypriots started feeling aliens in their own country". A similar
statement was also made by the leader of the same party, Mr Özgür, in August
1993. Reference has further been made to a number of critical comments in the
Turkish Cypriot press.
The new measures adopted since 1991 were the following:
-- After 2 September 1991, no passports were demanded to be shown for entry by
Turkish citizens to the TRNC. They could enter with Turkish identity cards only.
From October 1992 no entry cards were required for Turkish citizens.
-- By a Turkish law of 17 November 1992 persons with a work permit in the TRNC
were exempted from the military draft in Turkey, and this despite the armed
conflict in South East Turkey and Turkey's need of army personnel for this
purpose. In the applicant Government's view this indicates the high priority
which Turkey gives to the settler programme.
Turkey's direct involvement is also shown by Turkey's declared policy to
"balance", i.e. to achieve the parity of population numbers of
Turks and Greek Cypriots in the island of Cyprus. The applicant Government
refers to statements in this sense made by Turkey's State Minister for Cyprus
Affairs, Mr Kilercioglu, in August 1992, by TRNC Prime Minister, Mr Eroglu, in
September 1993, and by the compulsorily retired Director of Registration, Mr
Adali, in December 1994. In this context, it is also alleged that Turkey refused
to allow the TRNC to import 5,000 Romanian and Bulgarian migratory workers,
instead insisting on the importation of Anatolians. Newspaper articles revealed
that 5,000 were recruited by the Employment Agency of Konya in December 1992,
and that an agreement was reached between Turkey and the TRNC in January 1993 to
meet an immediate demand for 2,000 Turkish guest workers.
It is further alleged that Turkey is directly involved in the grant of TRNC
citizenship to settlers. Turkish citizens need permission of the Turkish
Ministry of the Interior to acquire foreign citizenship. According to an article
of the Turkish Cypriot newspaper "Yenicag" of 20 September 1993
Turkey ordered the TRNC administration not to grant citizenship to anybody
without such permission, and to exclude Kurds. Reference was also made to a
practice of substitution in the official TRNC papers of a northern Cypriot
birthplace for that in mainland Turkey. Other newspaper articles reported about
the large numbers of settlers who were granted citizenship: during an election
period in 1993, 5,000 citizenships were offered by a change in the citizenship
law, apparently to illegal workers; 250 new identity cards were being issued
every day; voter registration continued rapidly to expand also in 1994, the
number of voters increased by 4,800 in five *261
months; 2,281 Turkish settlers were granted citizenship in 1994 according to the
TRNC Minister of the Interior.
According to the applicant Government, Turkey and the TRNC conceal the number of
settlers and refuse to conduct a census as requested by the Turkish Cypriot
political opposition, the Parliamentary Assembly of the Council of Europe and
the UN Security Council. For this reason it is difficult to provide statistics.
According to estimates prepared by the Republic of Cyprus Department of
Statistics and Research, the number of settlers ranged between 65,500 and 70,600
at the end of 1990, between 69,000 and 87,000 at the end of 1992, and between
73,700 and 92,100 at the end of 1993. Some sources speak of 100,000 settlers. To
these must be added 30,000 or more Turkish army personnel and their families and
12,000 illegal Turkish workers, so that the total number of mainland Turks
(between 115,000 and 135,000) already outnumbers that of Turkish Cypriots
(between 60,000 and 100,000). There is a strong emigration of Turkish Cypriots
to the United Kingdom, according to one source a total of 57,000 having left the
island in the period between 1974 and 1993.
The applicant Government alleges that in connection with the settlement policy
the nature of Greek Cypriot homes is changed. Measures to "turkicise"
the area include the change of all place names and public signs from Greek to
Turkish to eliminate evidence of Greek culture and language and the deliberate
turning of churches into mosques. In addition, these measures also adversely
affect Turkish Cypriots, as evidenced by the Turkish Cypriot press. The
demographic changes are intensified by measures for the allocation of Greek
Cypriot property to the settlers.
The treatment of the possessions of displaced Greek CypriotsThe applicant
Government submits that the situation concerning the property of the 170,000
Greek Cypriots displaced from the north remains the same as before, they
continue to be prevented from returning to their possessions and getting access
to it for any purpose, their titles being denied. This applies to both movable
and immovable property.
As regards movable property, the applicant Government refers to the severing and
harvesting of agricultural produce from the land belonging to Greek Cypriots by
labourers sent from Turkey to northern Cyprus, and its commercialization by
Turkish companies, in particular those of Mr Asil Nadir, which, acting on
invitation in the early 1980s from the Turkish Government, became responsible
for most of the exploitation of citrus orchards in the areas of Morphou and
Lefka. Following a judgment of the European Court of Justice in July 1994, [FN6]
holding that lemons and potatoes cannot be imported from the *262
TRNC into the European Community because they are not supported by lawful
movement and phytosanitary certificates, Turkey in January 1995 decided to
remove all restrictions on import from northern Cyprus and to use Mersin as the
export gate for this area. In this way agricultural produce from northern Cyprus
is since November 1994 being exported to third countries accompanied by Turkish
certificates.
FN6 Loc. cit.
Other movable property was also taken into official Turkish custody. Thus 70
tons of Greek and English books, magazines and brochures collected from
Famagusta were stored in a warehouse. An attempt to dispose of this material by
auction in October 1994 was stopped by some Turkish Cypriot politicians.
Furthermore, there has been interference with movable property of the Church of
Cyprus, such as relics, icons, church furniture and mosaics severable from the
fabric left behind in northern Cyprus. The Church has not been permitted to
safeguard its treasures by having access to guard, remove to restore them. There
continues to be wanton destruction, theft by individuals, and official
connivance in the export for the international sale of such items. The applicant
Government has submitted documentation of such acts covering a period of three
years preceding September 1994. It also refers to an incident concerning the
sixth century mosaics from the apsis of the church of Kanakaria. By coincidence,
the Church of Cyprus learnt in November 1979 that the mosaics had been removed.
The Cypriot Government sought the assistance of UNESCO and in the late 1980s it
was discovered that Turkish, Dutch and American dealers were selling four of
these mosaics, valued at 1.5 million US$. They were ultimately restored to the
Church of Cyprus by a judgment of 8 August 1989 given by the US District Court
(Indianapolis Division). The Turkish dealer returned two more of the mosaics,
but 10 remain missing. The applicant Government describes this incident as
symptomatic. It also mentions another recent incident where a German tourist to
northern Cyprus brought to light the theft of an icon.
As to the immovable property left behind by Greek Cypriots in northern Cyprus,
the applicant Government describes the Turkish authorities' policy as a
systematic and continuing process effected in various stages: (i) unlawful
dispossession of the Greek Cypriot owners by their eviction from the occupied
area; (ii) de facto exclusion of the owners by the Turkish forces
preventing them from returning to their homes and properties; (iii) reduction
into Turkish possession, effected by Turkish State personnel or subsequently authorized
bodies, or toleration of individuals' unlawful occupation and possession without
the Turkish authorities taking counter-action; (iv) purported enactment of law
by the administrative apparatus operating in the Turkish occupied area in order
to legalize takings and to facilitate land allocation; (v) amendments to the law
to enable grant of title especially to Turkish settlers, and (vi) continuing
implementation of such laws by land allocation and grant of title.
*263 The so-called "legalization
process" started in 1975 when the Assembly of the Turkish Federated State
of Cyprus purported to enact a Law to consolidate and amend the Law in respect
of the Control, Custody and Administration of Immovable Properties belonging to
Aliens and Abandoned in the Turkish Federated State of Cyprus. [FN7] This law
qualified the Greek Cypriot displaced persons as aliens.
FN7 No. 32/1975.
It was followed in 1977 by a Law for Rehabilitation, Land Allocation and
Equivalent Property [FN8] with two main policy objectives: (i) to concentrate
ownership of all Greek Cypriot property in northern Cyprus in the hands of the
Federated State, a large area being kept as State land, part of it being
allocated to Turkish Cypriots displaced from the south of Cyprus, and the last
part being reserved for allocation to settlers from Anatolia; (ii) to
concentrate in the hands of the Federated State all Turkish-Cypriot owned land
in the Government-controlled area, this being effected by establishing a value-
points system by which Turkish Cypriots surrendered their land there to the
Federated State by signing a renunciation certificate upon obtaining Greek-
Cypriot-owned land in the occupied area. Allegedly, this law was also used to
benefit members of the Turkish Cypriot political hierarchy. It was administered
corruptly and used as a vehicle for rich Turks and protégées of the Turkish
Government, including 11 Turkish Generals, to buy value points from Turkish
Cypriot displaced persons.
FN8 No. 41/1977.
Subsequently, there was a continuing process of amending the law in order to be
able to grant title, rather than mere physical possession, to Turkish settlers.
[FN9] According to the applicant Government, these amendments pursued fresh
policy aims, namely (i) to clarify (and extend) the categories of persons
entitled; (ii) to enable tourist development (by leasing areas for this purpose,
in particular to Mr Asil Nadir's company); (iii) to make it feasible for
mortgages to be obtainable by certificate holders; (iv) to allow land to be
bought by Turkish settlers and persons who did not surrender their property in
the Government-controlled area, and (iv) to allow the grant of title rather than
infinitive possession as earlier provided.
FN9 Amending laws 5/1981, 27/1982, 23/1985, 3/1988, 12/1989--changing the title
of the law into "Law for Settlement and Distribution of Land and Property
of Equivalent Value"--44/1990 and 24/1991.
The law now accords a claim to be issued deeds of title to the following
categories of persons: (i) Turkish Cypriots who have left property in the
Government-controlled area; (ii) War veterans (Turkish army officers illegally
seconded to Cyprus in 1958-59 or 1963-67); (iii) Members of the Turkish Peace
Force (the 1974 Turkish army of invasion); (iv) Turkish army personnel who
served in Cyprus after the 1974 invasion, and (v) persons who had settled by May
1983 in the occupied area. Post-May 1983 Turkish settlers may be allocated
custody of land on different criteria and conditions.
*264 On the pretext that there
had been a population exchange which ought to be followed by a property
exchange, certificates of definite possession started to be issued to Turkish
Cypriots as from 20 December 1982. The holders of such certificates were
permitted to burden the property with mortgage. However, further implementation
of the law was not pursued at that time, due to the introduction of the last
inter-State application by Cyprus against Turkey. However, by mid-1986
international pressures on Turkey regarding Cyprus had eased and Turkey required
full implementation of the law in order to satisfy the promises which had been
made in Turkey to intending settlers that they would be given ownership of land
in the occupied area. Thus the Economic Co- operation Protocol of 1986 provided
that the laws for the distribution of equivalent property shall be reviewed so
that a just distribution shall be provided and the criteria for the allocation
of property shall be reviewed.
Nevertheless, because of international pressure the law had still not been fully
implemented by 1990. In particular, Turkish settlers, war veterans and persons
who had participated in the Peace Operation were not given titles. A document of
principles signed by the Prime Minister of Turkey on 25 July 1990 stipulated
that taking into consideration the importance and the value of the right to
property, the Turkish Republic shall provide all necessary support to speed up
the application of the Settlement, Rehabilitation and Equivalent Property Law
and to complete the necessary legal arrangements in 1990. The subsequent 1991
amendment of the law distinguished between compensation rights for land vacated
in the Government-controlled area, such rights going to Turkish Cypriots, and
allotment rights for Turkish settlers. According to a statement of the TRNC
Housing Minister, Mr Yumuk, of February 1991, title deeds would be issued to all
entitled to them and all TRNC citizens would become legal owners of such
property. According to a further statement by Mr Yumuk of March 1992, all land
not kept by the TRNC State for its own purposes was to be disposed of by grant
of these rights, 53 per cent being allocated to persons who had left property in
the south and 47 per cent to settlers.
Nevertheless, the law was still only partly implemented, most of the issued
deeds going to Turkish Cypriots. The Economic Co-operation Protocol of 1992
therefore again provided that the TRNC authorities will try to complete
implementation of the law concerned and that the Republic of Turkey will provide
necessary assistance and support. However, due to international pressure and
alleged legal difficulties, title deeds were still not issued to Turkish war
veterans and settlers. According to the Turkish Cypriot press it was reported in
February 1994 that Turkey, as an aspect of the support mentioned in the 1992
Protocol, would now provide money to Turkish war veterans and settlers in order
to enable them to purchase land. TRNC Prime *265
Minister Atun then explained that Turkey had only discussed the question of
title deeds being used for mortgages to secure bank loans.
The applicant Government also refers to provisions of the TRNC Constitution of
1985 [FN10] according to which Greek Cypriot property was expropriated on the
ground that it had been found abandoned on 13 February 1975 in the Turkish
Federated State of Cyprus, that it was described by law as abandoned, or that
the title deeds belong to non-citizens of the TRNC. It submits that the acts
concerned were declared illegal and invalid by the UN Security Council and that
accordingly the purported expropriation is void in international law and in the
municipal law of the Republic of Cyprus. Although Turkey and her local
administrative apparatus have sought to throw a cloak of legality over the
process of de facto expropriation, they have not achieved their objective
of obtaining legality. It is contended that there has not yet been a final
taking of most Greek Cypriot property by way of lawful issue of new title deeds,
despite repeated threats to do so. The international community was even from
time to time assured that Greek Cypriot ownership rights remained, e.g.
in a statement of Mr Denktash to the UN Secretary General in 1987 according to
which no actual transfer of ownership had taken place. Nevertheless, TRNC Prime
Minister Eroglu stated in 1993 that in his administration 10,000 title deeds had
been issued and a UN Report of December 1994 mentions that 17,000 title deeds
were about to be issued. As the Turkish Cypriot press reported in February 1995,
a new amendment bill was being prepared which would allow the grant of clean
title deeds, i.e. unrestricted ownership, to 17,000 families. The
President of the Republic of Cyprus on 27 February 1995 addressed the UN
Secretary General informing him of the threat of this system being introduced in
northern Cyprus.
FN10 Art. 159 read in conjunction with Arts. 36(5) and 164.
The applicant Government refer to a number of examples of Greek Cypriot property
affected by specific measures. They include:
-- the situation in Varosha where the property of 15,130 Greek Cypriots has been
left uninhabited for 20 years [FN11];
-- the transfer of all Church-owned land to Evkaf, the Moslem religious trust,
by a decision of the Government of the Turkish Federated State of Cyprus in
1975;
-- the subdivision of land at Ayios
Epiktitos and its advertisement for sale in plots;
-- the development of land for commercial profit, in particular for touristic
purposes, including the construction of hotel apartments offered for sale to
foreigners; exploitation of hotels by a tourism organization controlled by
mainland Turkish companies; licensing of the repair and alteration of hotels;
licensing of the construction of a touristic village on *266
hitherto unconstructed land; leasing of land for development; and exploitation
of properties by Turkish business establishment and persons closely associated
with Turkey's political and banking hierarchy.
FN11 See above.
The applicant Government submits that the Greek Cypriot owners are not given any
compensation or remedy for the continuing deprivation of their property.
Turkish CypriotsThe applicant Government submits that the Turkish armed forces
also restrict the freedom of movement of Turkish Cypriots. It is contended that
no such restrictions are being applied by the authorities of the Republic of
Cyprus. As a consequence, Turkish Cypriots are denied access to the property
which they have left behind in the Government-controlled area, nor can they
attend meetings with Greek Cypriots in the occupied area, in the buffer zone, or
in the Government-controlled area, all this requiring permission which is often
refused and sometimes withdrawn after permission has been granted. The case of
Dr Ahmed Cavit An has been mentioned. He was on 107 occasions refused permission
to leave northern Cyprus for the Government-controlled area. Dr Cavit has
introduced an individual application to the Commission complaining of these
restrictions. Allegedly, he was told that he could never again leave the
northern area and his social contacts there were strangled.
Turkish Cypriots are also affected by the prohibition on the circulation of
Greek language newspapers in northern Cyprus and by the fact that Article 156 of
the TRNC Constitution confers extensive jurisdiction over civilians on military
courts.
The Turkish Cypriot gypsy community is allegedly discriminated against. Some 70
gypsy families (over 300 persons) sought asylum in the United Kingdom in 1994,
alleging that they had no human rights in the occupied area and were treated as
second class citizens. They embarked on a Turkish Airlines flight to London, but
the flight stopped at Istanbul. The gypsies were severely beaten by the Turkish
police and returned to northern Cyprus. They eventually managed to leave and
arrived in London in September 1994, where they sought asylum.
Complaints
The applicant Government alleges violations of Articles 1, 2, 3, 4, 5, 6, 8, 9,
10, 11 and 13 of the Convention, of Articles 1, 2 and 3 of Protocol No. 1 to the
Convention, and of Articles 14 and 17 of the Convention in conjunction with all
these Articles.
*267 As to Article 1, it is
submitted that Turkey fails to secure Convention rights by its agents
participating in, assenting to, acquiescing in, or tolerating the violation of
these rights, and by lack of diligence in taking action to prevent, stop or
remedy such violations.
The applicant Government also alleges a violation of Article 32(4) of the
Convention by Turkey's failure to put an end to the violations of the Convention
established in the Commission's Report on Application Nos. 6780/74 and 6950/75,
as requested in the Committee of Ministers' decision in that case. In the
applicant Government's submission this decision is binding on Turkey, the only
State which the Commission had found to have committed violations of the
Convention.
As to the violation of specific Convention guarantees, the applicant Government
invokes the following provisions:
1. Regarding the Greek Cypriot missing persons, it is submitted that if they
should still be in Turkish custody 20 years after the cessation of hostilities,
this would be a grave breach of Article 5 of the Convention and also a form of
slavery or servitude contrary to Article 4 of the Convention. The consistent
failure of Turkey to provide information on the fate of these persons to their
relatives allegedly constitutes a grave breach of Articles 3 (inhuman
treatment), 8 (respect for family life) and 10 of the Convention (right to
receive information).
2. Regarding the Greek Cypriot displaced persons, the applicant Government,
relying on the Commission's Reports concerning the earlier inter-State cases,
submits that there is now a gravely aggravated violation of the right to respect
for family life under Article 8 of the Convention by the continued and
consistent refusal to allow displaced Greek Cypriots to return to their families
in northern Cyprus. The continued refusal to allow the return to their homes
allegedly constitutes a further violation of Article 8, the concept of
"home" in that provision extending to the human and natural
environment and conditions of life surrounding the buildings and localities
concerned. In this context the applicant Government refers to the measures to
change the nature of Greek Cypriot homes in northern Cyprus by the organized
settlement of mainland Turks, the "turkification" of the area and the
elimination of all traces of Greek culture. The continuing refusal to allow the
return of displaced Greek Cypriots to the northern area is not just a question
of the right to liberty of movement as guaranteed by Protocol No. 4 (which
Turkey has not ratified). As it is specifically designed to prevent Greek
Cypriot owners from having access to, from using and from enjoying their
property in the northern area, it also amounts to continuing violations of
Article 1 of Protocol No. 1, intensified by the consistent pattern of
interferences carried out by stages, the allocation of the property in question
to Turkish Cypriots and settlers, the attempts for the legalization of the de
facto expropriation and for the eventual deprivation of Greek Cypriot
titles. The applicant Government also emphasizes that the Greek Cypriot *268
owners were given no compensation and no remedies against the deprivation of
their possessions and their exploitation under Turkish authority. Any remedies
which may be available in domestic courts in Turkey or in northern Cyprus cannot
be considered as practicable and normally functioning in respect of displaced
Greek Cypriots who are denied entry to that area and are treated as aliens under
the TRNC Constitution, which further regards their properties as abandoned. The
courts, being policy-bound to implement measures by the Turkish authorities, or
working under the TRNC Constitution, cannot be impartial or provide an effective
remedy under such circumstances. The applicant Government therefore also alleges
a violation of Article 13 of the Convention.
It further submits that the continued refusal to allow displaced Greek Cypriots
to return to their homes and families in the northern part of Cyprus, and the
continued deprivation of their possessions located in this area, are
discriminatory and contrary to Article 14 of the Convention.
It is finally alleged that displaced Greek Cypriots are deprived of their right
under Article 3 of Protocol No. 1 to be able to vote in free elections under
conditions which will ensure the free expression of the will of the people in
the choice of the legislature. While they can vote in the Republic of Cyprus,
they are being prevented from effectively enjoying freely elected
representatives in the Cyprus legislature in respect of the northern territory.
The deputies elected in the Republic of Cyprus in respect of this territory
cannot get access to it and are prevented from legislating effectively in
respect of that area.
3. As regards enclaved Greek Cypriots in the Karpas area, the applicant
Government submits in the first place that the combination of restrictions and
fierce pressures placed on them, having regard to the advanced age of many of
the victims and the consistent pattern of action against them, amounts to
inhuman and degrading treatment within the meaning of Article 3 of the
Convention. It contends that this treatment is deliberately inflicted on the
persons in question with a view to making them leave the area. The Commission is
specifically asked to make a finding on the inhuman methods of coercion used for
this purpose. The Turkish conduct in its totality should be examined under
Article 3 notwithstanding that various aspects of it also fall to be considered
under other provisions of the Convention.
In this respect, the applicant Government further alleges breaches of the
following Convention articles: Article 2 (denying the protection of life to
enclaved persons in urgent need of medical treatment); Article 5 (threat to
individual Greek Cypriots' security of person and absence of official Turkish
action to prevent this); Article 8 (interference with the right to respect for
private life, family life, home and correspondence); Article 9 (freedom of
religion); Article 10 (freedom to receive and impart information and ideas);
Article 11 (restrictions on freedom of association, in particular between the *269
various groups of enclaved persons and between enclaved persons and Greek
Cypriots in the Government-controlled area); Article 13 (failure to provide
effective remedies); Article 14 (Convention rights not being secured to Greek
Cypriots without discrimination, the violation of their rights occurring on
grounds of their race, language, religion, national origin or status as Greek
Cypriots or Maronites, the latter being subjected to somewhat less harsh
treatment); Article 1 of Protocol No. 1 (deprivation of possessions and
interference with peaceful enjoyment of possessions); Article 2 of Protocol No.
1 (denial of secondary education and disrespect for parents' right to ensure
education in conformity with their religious and philosophical convictions).
Also alleged is a breach of Article 6 of the Convention by virtue of withholding
a fair and public hearing by an independent and impartial tribunal to Greek
Cypriots whose civil rights have been infringed.
4. As regards Turkish Cypriots, the applicant Government submits that they are
also victims of violations of their right to the peaceful enjoyment of their
possessions under Article 1 of Protocol No. 1, since the Turkish authorities do
not allow their return to their properties in the Government- controlled area;
of Article 11 of the Convention, because they are denied the right to freely
associate with Greek Cypriots either in the occupied area, the buffer zone or
the Government-controlled area; of Article 10 of the Convention, because they
too may be affected by the prohibition on the circulation of Greek language
newspapers in northern Cyprus; of Article 6 of the Convention, by virtue of
their being subjected to "military courts" which do not ensure that
charges against them are heard by an independent and impartial tribunal; and of
Article 5 of the Convention, because the security of person of Turkish Cypriots
is not ensured. Concerning the particular incident involving the Turkish Cypriot
gypsies who sought asylum in the United Kingdom, the applicant Government
invokes Articles 3, 5 and 8 of the Convention. It is also submitted that there
are no relevant or sufficient remedies available to the Turkish Cypriots
concerned as the interferences with their rights have been effected by Turkish
State policy, administrative practices and law incompatible with the Convention.
Therefore it is claimed that Article 13 is violated also in this respect.
The Law
1. [FN12] In their written and oral submissions the respondent Government has
raised a number of objections to the admissibility of *270
the application. The Commission will examine these objections under the
following headings:
I. Alleged lack of jurisdiction and responsibility of the respondent Government
in respect of the acts complained of by the applicant Government;
II. Alleged identity of the present application with the previous applications
introduced by the applicant Government against the respondent Government, and
alleged abuse of the Convention procedure by the applicant Government;
III. Alleged special agreement to settle the dispute by means of other
international procedures;
IV. Alleged failure to exhaust domestic remedies and to comply with the six
month rule.
FN12 The original text of the Commission's Decision did not contain numbered
paragraphs. The paragraph numbering in bold from here onwards has been inserted
in order to assist the reader.--Ed.
I. Alleged lack of jurisdiction and responsibility of the respondent
Government in respect of the acts complained of by the applicant Government
2. The respondent Government claims that the facts alleged do not fall within
its jurisdiction within the meaning of Article 1 of the Convention. They deny
their responsibility for the alleged violations, due to the absence of Turkish
authority in northern Cyprus and the omnipresence of Turkish Cypriot authority.
3. The respondent Government argues that the questions of jurisdiction and
imputability belong in principle to the merits stage of the procedure.
Nevertheless it has submitted a number of arguments concerning these questions
already at the admissibility stage.
4. In the respondent Government's submission, the concept of jurisdiction within
the meaning of Article 1 of the Convention does not necessarily coincide with
the notion of international State responsibility. In its submission a
distinction must be made in this respect between the exercise of territorial
jurisdiction and personal jurisdiction. International responsibility coincides
with territorial jurisdiction where it is exercised on a State's own national
territory. Responsibility under the Convention for exercise of territorial
jurisdiction outside the national territory is exhaustively regulated in Article
63 of the Convention. It presupposes a situation where the State concerned is
responsible for the international relations of the territory in question and
requires a special declaration to be made at the time of ratification or later.
This will circumscribe the applicability of the Convention ratione loci.
The respondent Government refers by way of example to the Commission's decision
concerning an application against the United Kingdom which was rejected on the
ground that the facts complained of had occurred in Hong Kong for which no
declaration had been made under Article 63. [FN13]
FN13 App. No. 16137/90, Bui Van Thanh v. United Kingdom, Dec. 12.3.90, D.R. 65,
p. 330.
5. Also in the decision on the admissibility of Application Nos. *271
6780/74 and 6950/75 introduced by Cyprus against Turkey, [FN14] the Commission
did not state that northern Cyprus was within the territorial jurisdiction of
Turkey. Rather, Turkey was held to be responsible on the basis of personal
jurisdiction exercised by her agents outside the national territory over the
alleged victims of violations of the Convention. Quoting this decision, the same
approach was adopted by the Court in its Drozd and
Janousek v. France and Spain judgment of 26 June 1992. [FN15] The
respondent Government submits that in the case of exercise of such personal
jurisdiction it is necessary in each case to prove the causal link between the
action of a State official and the alleged facts. It must be shown that at the
time of the incriminated acts the State authorities exercised effective control
over the victims, this being a question of fact. In the respondent Government's
submission the applicant Government wrongly seek to be relieved from having to
demonstrate on a case by case basis the imputability to Turkey of the various
acts complained of, relying only on the allegedly illegal presence of Turkish
troops along the cease-fire line and disregarding the fact that there is no
global territorial jurisdiction of Turkey in northern Cyprus.
FN14 Dec. 26.5.75, D.R. 2, p. 125.
FN15 (A/240): (1992) 14 E.H.R.R. 745.
6. The respondent Government contends that there is no military occupation of
northern Cyprus by Turkey, but rather that there has been an evolution towards
the creation of their own independent State by the Turkish Cypriot community in
exercise of their right to self-determination. In this respect, the respondent
Government refers in detail to the history of Cyprus since 1960 emphasizing in
particular:
(i) the bi-communal character of the 1960 Constitution and the obligation of
Cyprus, under international treaty obligations guaranteed by the signatories of
the 1960 Treaty of Guarantee, to maintain her independence, territorial
integrity and the fundamental principles of the Constitution;
(ii) the alleged responsibility of the Greek Cypriot side for the breakdown of
the 1960 constitutional arrangements in 1963 and the subsequent changing of
basic principles of the Constitution;
(iii) the allegedly intolerable situation of enclaved Turkish Cypriots in the
period between 1964 and 1974, which caused them to set up their own
administration as from December 1967;
(iv) the fact that the Turkish intervention in July 1974 was preceded by a coup
d'Etat of Greek officers of the National Guard who pursued the aim of
unification of Cyprus with Greece (Enosis);
(v) the contention that the Turkish military operation in 1974 *272
was carried out in conformity with Article IV of the Treaty of Guarantee to
protect the right of Turkish Cypriots;
(vi) the contention that the subsequent relocation of both the Turkish Cypriot
and the Greek Cypriot communities in separate parts of the island was the result
of agreements achieved in intercommunal talks held in Vienna in July/August
1975, these agreements being fully implemented on a voluntary basis under UN
auspices, UN troops moving into the newly established buffer zone;
(vii) the alleged agreement achieved in 1977 and 1979 between the Turkish
Cypriot and Greek Cypriot leaders for seeking a federal solution on the basis of
a bi-communal and bi-zonal federation, a concept which it is contended is still
valid as a basic guideline for the intercommunal talks;
(viii) the contention that the establishment of the TRNC as an independent State
on 15 November 1983 was declared by the legitimate representative body of the
Turkish Cypriots in exercise of their right to self-determination, and that it
was not secession, as the bi- communal Republic of Cyprus had ceased to function
due to the actions of the Greek Cypriot side since 1963;
(ix) the contention that the subsequent development of TRNC institutions was
legitimate and in line with democratic principles and that it consolidated the
statehood of the TRNC according to criteria accepted in international law;
(x) that despite the fact that it has not been recognized de iure by any
other State than Turkey, the TRNC exists de facto as an independent State
exercising all branches of State power on its territory--the respondent
Government invokes de facto recognition of the TRNC by the courts of
several States and the fact that Turkey has recognized the TRNC de iure
and does not claim for herself to exercise power in that area;
(xi) finally as regards the role of the Turkish forces in northern Cyprus, the
respondent Government claims that they are there in a peace-keeping role at the
request and with the consent of the TRNC, that they act under the latter's
authority and do not themselves exercise governmental power. It is claimed that
their status is not essentially different from that of Greek military forces in
southern Cyprus.
7. The respondent Government therefore refutes the applicant Government's
submission that Turkey exercises overall control and jurisdiction in northern
Cyprus and that this creates an irrebuttable presumption of Turkish control and
responsibility. The respondent Government claims that already in its Reports
concerning the earlier inter-state cases the Commission qualified the finding as
to Turkish *273 jurisdiction in
northern Cyprus by limiting it to the border area. It further observes that the
alleged assumption of responsibility cannot be irrebuttable because the
Commission examined whether the particular acts complained of were in fact
imputable to Turkey.
8. This approach was also followed by the Commission in applications Nos.
15299/89 and 15300/89, Chrysostomos and Papachrysostomou v. Turkey. In its
Report of 8 July 1993 the Commission again limited its finding of Turkish
responsibility to the border area due to "overall control exercised by
Turkish forces in that area". However, the Commission also found that the
applicants' subsequent detention and trial were not imputable to Turkey, thus
accepting that there was no control by Turkey over the prison administration or
the administration of justice by Turkish Cypriot authorities, and furthermore
taking cognisance of the law in force in the TRNC by finding that the detention
had been lawful and in accordance with a procedure prescribed by law.
The applicant Government refutes all these arguments.
9. In its submission, the provisions of the Convention must be applied, having
regard to the general principles of international law concerning State
responsibility. Under these principles it is a sufficient condition for holding
a State responsible under international law if it exercises effective control
over a given territory. In the applicant Government's view Turkey, as the State
in exclusive occupation and control of northern Cyprus, is the only
international person legally accountable in international law for events in the
entire occupied area, including any violations of the Convention. Because of its
overall control it has the physical ability to impose its will on the area and
its residents, and thus exercises jurisdiction within the meaning of Article 1
of the Convention over all persons and property in that area. The exercise of
jurisdiction creates an irrebuttable presumption of control and responsibility.
The concept of control must be understood in a legal context and it does not
require the actual presence of Turkish armed forces at the scene of a violation.
10. In the applicant Government's submission Turkey cannot avoid her legal
responsibility by claiming that the acts complained of are imputable to the
TRNC. The creation of local administrative structures or puppet institutions in
northern Cyprus has been sponsored by the Turkish mainland authorities which in
fact continue to control and direct these institutions. Their establishment has
been declared illegal and invalid by the UN Security Council, and States have
not recognized, and are obliged not to recognize, the TRNC, which thus is not
capable of exercising any jurisdiction of its own. Moreover, it is claimed that
Turkish armed forces are stationed throughout the occupied area and that Turkish
military courts exercise effective authority over civilians.
11. In support of its argument, the applicant Government relies in particular on
the European Court of Human Rights Loizidou v.
Turkey (Preliminary Objections) *274 judgment of 23 March 1995 [FN16] which in its
submission confirms the view that Turkey must be considered as exercising
effective control and thus jurisdiction within the meaning of Article 1 of the
Convention, over the entire area of northern Cyprus. At the same time the
applicant Government criticizes the approach adopted by the Commission in its
Report concerning the Chrysostomos and Papachrysostomou case, where Turkey was
not held responsible for certain acts of the TRNC authorities. It claims that
the Commission's approach in that case was based on wrong assumptions concerning
the legal status of the so-called "buffer zone" and the relationship
between the Turkish and the Turkish Cypriot authorities.
FN16 (A/310): (1995) 20 E.H.R.R. 99.
12. The Commission agrees with the respondent Government that the question as to
Turkey's jurisdiction in northern Cyprus and its responsibility under the
Convention for the acts complained of must in principle be determined at the
merits stage of the proceedings. Article 27(2) of the Convention, which permits
the Commission to reject applications inter alia on the ground that they
are incompatible with the provisions of the Convention, does not apply in
respect of applications submitted under Article 24 of the Convention and
accordingly cannot be applied either in such applications where the respondent
Government raises the objection that particular complaints are incompatible with
the Convention ratione loci or ratione personae. However, this
cannot prevent the Commission from establishing already at this preliminary
stage, under general principles governing the exercise of jurisdiction by
international tribunals, whether it has any competence at all to deal with the
matter laid before it.
13. In this respect, the Commission follows the approach adopted by the Court in
the Loizidou v. Turkey (Preliminary Objections)
judgment of 23 March 1995: It will limit the examination to the question whether
its competence to examine the applicant Government's complaints is excluded on
the grounds that they concern matters which cannot fall within the jurisdiction
of the respondent Government, [FN17] leaving open, at this stage, the question
of whether the respondent Government is actually responsible under the
Convention for the acts which form the basis of the applicant Government's
complaints and the further question as to which are the principles that govern
State responsibility under the Convention in a situation like that obtaining in
the northern part of Cyprus. The Commission's examination will thus be limited
to determining whether the matters complained of by the applicant Government are
capable of falling within the jurisdiction of Turkey even though they occur
outside her national territory. [FN18]
FN17 Loc. cit., Para. 60.
FN18 ibid., Para. 61.
*275 14. The Commission recalls
that, although Article 1 sets limits on the reach of the Convention, the concept
of "jurisdiction" under this provision is not restricted to the
national territory of the High Contracting Parties. In its above judgment, the
Court quoted a number of examples from its case law and then continued, with
regard to the particular situation in the northern part of Cyprus:
Bearing in mind the object and purpose of the Convention, the responsibility of
a Contracting Party may also arise when as a consequence of military
action--whether lawful or unlawful--it exercises effective control of an area
outside its national territory. The obligation to secure, in such an area, the
rights and freedoms set out in the Convention derives from the fact of such
control whether it be exercised directly, through its armed forces, or through a
subordinate local administration. [FN19]
FN19 ibid., Para. 62.
15. The Commission notes that certain of the complaints submitted by the
applicant Government in the present case relate to the loss of control of
property by Greek Cypriots due to the presence of Turkish troops in the northern
part of Cyprus and the establishment there of the TRNC, it being claimed that
access to the property concerned is being prevented by Turkish troops. This
situation is similar to that in the Loizidou
application where the Court held that the acts complained of were capable of
falling within Turkish jurisdiction within the meaning of Article 1. [FN20] The
Commission reaches the same conclusion concerning the above complaints.
FN20 ibid., pares. 63-64.
16. The Commission has examined whether the various other complaints submitted
by the applicant Government in the present application are also capable of
falling within Turkey's jurisdiction in this sense. While a definitive answer
cannot be given regarding each particular complaint at this stage, the
Commission considers that, generally speaking, the applicant Government has
sufficiently demonstrated the possibility of a direct or indirect involvement of
Turkish authorities. The Commission therefore does not find reasons to exclude
at this stage any part of the application on the ground that the acts complained
of are prima facie incapable of falling within Turkish jurisdiction
within the meaning of Article 1.
17. This finding does not in any way prejudge the questions to be determined at
the merits stage of the proceedings, namely whether the matters complained of
are actually imputable to Turkey and give rise to her responsibility under the
Convention.
II. Alleged identity of the present application with the previous
applications introduced by the applicant Government against the respondent
Government, and alleged abuse of the Convention procedure by the applicant
Government
18. The respondent Government claims the present application is essentially a
repetition of the previous Application Nos. 6780/74, *276
6950/75 [FN21] and 8007/77. [FN22] Claimant and respondent are identical and the
alleged violations of the Convention are essentially the same as those covered
by Application No. 8007/77. The respondent Government contests that there are
"continuing violations" and claims that in reality the applicant
Government complains of the lasting consequences of instantaneous acts which
occurred a long time ago and which under the Commission's case law cannot as
such give rise to new complaints. The acts or omissions complained of do not
relate to new victims (e.g. no further persons went missing, and the
170,000 displaced Greek Cypriots and the separated families are the same as
before) nor do they disclose new information (e.g. the problem of Turkish
settlers, the alleged inhuman treatment of enclaved Greek Cypriots and the
alleged violations of the rights of Turkish Cypriots had all been included in
the previous application). The Convention articles invoked are the same as in
Application No. 8007/77, except for Articles 9, 10 and 11 which were not cited
in that case while the facts raised under those articles had indeed been
mentioned. The only apparently new allegation concerns the alleged violation of
Article 3 of Protocol No. 1, but in substance also this complaint had been
contained in the previous application when the applicant Government complained
of the autonomous State structure in northern Cyprus. The respondent Government
moreover considers this apparent new allegation as wholly misconceived and
unsubstantiated, lacking the requirement of a genuine allegation in the sense of
Article 24 of the Convention.
FN21 App. Nos. 6780/74 and 6950/75, Cyprus v. Turkey, Dec. 26.5.75, D.R. 2, p.
125.
FN22 App. No. 8007/77, Cyprus v. Turkey, Dec. 10.7.78, D.R. 13, p. 85; Comm.
Rep. 4.10.83, D.R. 72, p. 5.
19. The respondent Government recalls that an argument based on the principle
"ne bis in idem" had been submitted by it already in
Application No. 8007/77, but had been rejected by the Commission. It
nevertheless maintains that there should be a limit to repetitive applications
and, even allowing for a different treatment of State applications in this
respect, the Convention cannot be interpreted in such a way as to make it
possible for inter-State applications to be brought ad infinitum. In its view
the limit was exhausted with Application No. 8007/77.
20. The respondent Government further submits that, since the consideration of
that case by the Commission, the situation has changed in that Turkey has in the
meantime accepted the compulsory jurisdiction of the Court by making a
declaration to that effect under Article 46 of the Convention. In this context,
it submits that it is inadmissible and contrary to basic principles of the
administration of justice that an attempt is now apparently being made by the
applicant Government to raise the same matters again with a view to eventually
bringing the case before the Court. This, it is claimed, violates not only *277
a general principle of law to be found in all developed national legal systems,
but also the basic concept of the Convention itself.
21. The principle in question is reflected in the Roman law adage "electa
una via non datur recursus ad alteram", in the French concept of
procedural foreclosure, in the German and U.S. concepts of claims preclusion and
in the common law principle of procedural preclusion or collateral estoppel. The
respondent Government submits that similarly the Convention system provides for
two separate and mutually exclusive channels for the final decision of any
application under Article 24 or 25 of the Convention, one before the Committee
of Ministers and the other before the Court. There is no link allowed between
the two channels and their respective final decision-making body. Each decision
made by either of these bodies is a matter of res iudicata within the
legal framework of the Convention to the effect that neither body may reopen
matters decided upon by the other body. The one cannot act as a court of appeal
or revision over the decisions of the other.
22. In the present case, this must lead to the conclusion that the application
is incompatible with the supervisory system of the Convention because the
matters raised have already been dealt with in the previous inter- State
applications and are res iudicata after the relevant decisions of the
Committee of Ministers. [FN23] The respondent Government considers that these
resolutions made under Article 32 of the Convention have settled finally and
with binding effect with respect to other bodies within the Convention system,
the earlier cases introduced by the applicant Government, the Committee of
Ministers not agreeing with the Commission's opinion and finding no violation by
Turkey of any provisions of the Convention.
FN23 Res. DH (79) 1 of 19 January 1979 concerning App. Nos. 6870/74 and 6950/75,
and Res. DH (92) 12 of 2 April 1992 concerning App. No. 8007/77.
23. In the respondent Government's opinion the applicant Government's apparent
attempt to have the above rulings of the Committee of Ministers revised by the
Court also amounts to an abuse of the Convention procedure.
24. The applicant Government refutes these arguments and claims that it is
entitled to complain of continuing violations in respect of situations which
have already been dealt with in the Commission's earlier reports. The continuing
violations in question relate to a different period not covered by these
reports, and it is supported by new facts which have occurred since the adoption
of the last report and which have led to an intensification and aggravation of
the violations in question. It is further claimed that certain of the complaints
raised in the present application are entirely new.
25. In the applicant Government's view there can be no question of res
iudicata as the alleged violations are continuing and the decisions
concerning the earlier cases produce no forward effect. In any event it *278
claims that the Committee of Ministers' resolutions in these earlier cases were
not sufficiently specific to constitute decisions with res iudicata
effect; rather, these resolutions must be regarded as non-decisions.
26. The Commission recalls its decision on the admissibility of the previous
inter-State application between the same parties [FN24] where it was confronted
with similar arguments of the respondent Government. The Commission reiterates
that, having regard to the clear terms of Article 27(1)(b) of the Convention, it
cannot find that it is authorized under the Convention to declare inadmissible
an application filed under Article 24 by a High Contracting Party on the ground
that it is substantially the same as a previous inter-State application. For so
doing would, in the Commission's view, imply an examination, though preliminary,
of the merits of the application--an examination which in inter-State cases must
be entirely reserved for the post- admissibility stage. [FN25] This does not
exclude, however, that the Commission will have to consider at the merits stage
whether and, if so, to which extent the present inter-State application is
substantially the same as a previous one. As the Commission observed in its
Report on the above application, [FN26] Article 27(1)(b) of the Convention
reflects a basic legal principle of procedure which in inter-State cases arises
during the examination of the merits. It cannot be the Commission's task again
to investigate complaints already examined in a previous case, and a State
cannot therefore, except in specific circumstances, claim an interest to have
new findings made where the Commission has already adopted a Report under
Article 31 of the Convention concerning the same matter. [FN27]
FN24 App. No. 8007/77, Cyprus v. Turkey, Dec. 26.5.75, D.R. 2, p. 125.
FN25 ibid., p. 155, para. 49.
FN26 App. No. 8007/77, Cyprus v. Turkey, Comm. Rep. 4.10.83, D.R. 72, p. 5.
FN27 ibid., p. 22, para. 56.
27. The Commission therefore reserves the question whether and, if so, to which
extent the applicant Government can have a valid legal interest in the
determination of the alleged continuing violations of the Convention insofar as
they have already been dealt with in previous Reports of the Commission. The
Commission notes, in this context, that at least some of the complaints raised
do not seem to be covered by definitive findings in earlier Reports, and some
others seem to concern entirely new facts.
28. As to the further argument of the respondent Government that the Commission
is precluded from examining the present application by virtue of an alleged res
iudicata effect of the Committee of Ministers' decisions concerning the
previous inter-State applications, this could apply only to the extent that the
subject matter of the application is the same as that of the previous cases. As
stated above, this is a question which can only be determined at the merits
stage of the proceedings.
*279 29. In any event, the
Commission, having regard to the specific text of the Committee of Ministers'
Resolution DH (79) 1 concerning Application Nos. 6780/74 and 6950/75, did not
accept a similar argument presented by the respondent Government in relation to
Application No. 8007/77, and confirmed the applicant Government's legal interest
in the determination of alleged continuing violations. [FN28] The same must
apply in the present case insofar as a precluding effect of the same Committee
of Ministers' Resolution is invoked. As to any precluding effect attributed by
the respondent Government to the Committee of Ministers Resolution DH (92) 12
concerning Application No. 8007/77, the Commission notes that this resolution
merely authorized the publication of the Commission's Report, without containing
any findings as to violations of the Convention. For this very reason there can
be no res iudicata effect of this decision.
FN28 ibid., p. 23, para. 62.
30. Insofar as the respondent Government claims that the applicant Government,
by raising the same complaints again, apparently wants to bring the matter
before the European Court of Human Rights, thereby abusing the Convention
procedure in a manner incompatible with the structure of the Convention
(collateral estoppel), the Commission observes that this argument again
presupposes a pronouncement on the question of whether the present application
is identical to the previous ones, a matter which can only be decided at the
merits stage. Apart from that, the Commission does not find it appropriate to
speculate about the intentions of the parties concerning their further conduct
of the proceedings. If in fact the applicant Government should decide in the
future to bring the case before the Court, it would be for the latter to decide
the question of whether or not it is precluded from examining the application on
the grounds invoked by the respondent Government.
31. The Commission also recalls that the Convention itself does not empower it
to reject an application introduced under Article 24 of the Convention as
constituting an abuse of the right of petition, Article 27(2) of the Convention
being applicable only to applications lodged under Article 25. Even if there
should exist a general principle of law allowing the Commission to reject an
inter-State application as inadmissible on the ground that it is manifestly
abusive, [FN29] the Commission does not find this to be the case in the present
application.
FN29 cf. App. No. 8007/77, Dec. 10.7.78, D.R. 13, p. 85, at p. 156, para.
56.
32. For all these reasons, the respondent Government's above objections to the
admissibility of the application must be dismissed.
III. Alleged special agreement to settle the dispute by means of other
international procedures
33. The respondent Government invokes Article 62 of the Convention and claims
that there exists a special agreement within the *280
meaning of this provision by which the parties undertook to settle their dispute
within the framework of the United Nations. In this respect it is claimed that,
in fact, all the matters raised by the present application are directly or
indirectly handled within the United Nations, by the Secretary General acting
under the direction of the Security Council. The Secretary General's mission of
good offices established by a Security Council resolution of March 1975 involved
the convening of the parties under new agreed procedures. The 1977 and 1979
high-level agreements between the leaders of the two communities laid the common
ground for the subsequent intercommunal talks, the Secretary General stating in
his inaugural address of August 1980 that both parties supported a federal
solution of the constitutional aspect and a bi-zonal solution of the territorial
aspect of the Cyprus problem. The intercommunal talks are being conducted on an
equal footing between the two communities with the objective of elaborating a
new constitution for the state of Cyprus on a federal, bi- communal and bi-zonal
basis. The Secretary General of the United Nations has repeatedly stressed the
importance of the intercommunal talks as the best available method for pursuing
the negotiating process, and the basic principles proposed by the Secretary
General as the basis for these negotiations, have been accepted by the parties.
34. The respondent Government further observes that both parties are members of
the United Nations Security Council and that they have consistently voted since
1974 for the involvement of the United Nations in finding a peaceful solution.
The Security Council acts under Chapter VI of the UN Charter, which implies as
an essential ingredient the agreement of all parties concerned, i.e. no
decision can be imposed on any of the parties against its will. It is further
submitted that while the UN efforts are directed immediately to an understanding
between the Greek Cypriot and Turkish Cypriot communities, they are also labeled
to include three other concerned parties, namely Greece, the United Kingdom and
Turkey. Thus, all steps taken within the United Nations have the agreement of
the five concerned parties, including the applicant Government.
35. In the respondent Government's submission the procedures laid out by the
Security Council for the intercommunal talks amount to a special agreement as
provided for in Article 62 of the Convention. There is a mutual binding
commitment within the meaning of this provision--if not in the shape of a formal
agreement then at least in that of an implied agreement or a set of concordant
unilateral declarations having the effect of a mutual agreement.
36. The relevance of the United Nations Security Council's efforts was
sufficiently underscored, for identical issues of alleged human rights
violations, by the Council of Europe's Committee of Ministers in its resolutions
on the previous inter-State cases. The Committee of Ministers was fully aware of
the relevance of the intercommunal talks when it expressed the conviction that
the enduring protection of *281
human rights in Cyprus can only be brought about through the re-establishment of
peace and confidence between the two communities and that intercommunal talks
constitute the appropriate framework for reaching a solution of the dispute.
[FN30] The respondent Government points out that the Committee of Ministers
strongly urged the parties to resume intercommunal talks under the auspices of
the UN Secretary General and that more recently the Parliamentary Assembly of
the Council of Europe also urged the political leaders of both communities to
accept the proposals of the Secretary General, proposals which include
regulation of fundamental rights such as freedom of movement, freedom of
settlement and rights of property.
FN30 Res. DH (79) 1.
37. The respondent Government states that it encourages an early negotiated
settlement on this basis. It considers that any attempt by the Greek Cypriot
side to resort to international and regional forums is bound to prejudice the
intercommunal talks and that therefore the applicant Government should be
estopped from reneging on the agreed principles that form the basis of these
talks.
38. As regards the activities of the Committee on Missing Persons, the
respondent Government recalls the agreement on the terms of reference for the
establishment of this Committee (1981), on the rules of procedure (1984), on the
guidelines for investigations (1995) and the criteria of the United Nations
Secretary General which have been accepted by both sides. It claims that the
activities of the Committee were delayed by procedural difficulties for which
the Greek Cypriot side was responsible, because until 1994 it submitted only 548
cases for investigation and refused to submit further cases. These difficulties
have now been overcome, the Greek Cypriot side having submitted all its cases by
December 1995, the number of these cases now being reduced to 1,493. The
respondent Government submits that therefore an adequate and exclusive agreed
forum exists to examine the question of missing persons, and that the mechanism
established in this context also amounts to a special agreement under Article 62
of the Convention.
39. The applicant Government denies that there is a special agreement under
Article 62 of the Convention by which it undertook to deal with the matters
raised in the application exclusively within the framework of the United
Nations. In its submission the respondent Government distorts the meaning of
Article 62. This provision has no application to procedures which are not by way
of petition, such as political negotiations (the intercommunal talks) or
humanitarian activities (the Committee on Missing Persons). Also, the parties to
the intercommunal talks and to the Committee on Missing Persons are different
from the parties to the present application: they only concern the two Cypriot
communities and do not involve Turkey. Moreover, neither the intercommunal
talks, with the objective of reaching a *282
political settlement of the Cyprus problem, nor the activities of the Committee
on Missing Persons, with the objective of ascertaining the fate of missing
persons, concern a dispute arising out of the interpretation or application of
the Convention. Finally, the applicant Government submits that Article 62 is
designed to secure the autonomy of the Convention system by preventing States
involved in such a dispute from using means of settlement other than those set
out in the Convention. Its function cannot be to stop States from coming to
Strasbourg to ensure collective enforcement of the European public order, in
particular where, as in the present case, the complaints relate to alleged
massive violations of human rights protected in the Convention. The applicant
Government also relies on case law of the International Court of Justice according
to which a judicial body which as such is competent to deal with a dispute is
not deprived of its jurisdiction by ongoing settlement negotiations concerning
the same matter.
40. Article 62 of the Convention reads as follows:
The High Contracting Parties agree that, except by special agreement, they will
not avail themselves of treaties, conventions or declarations in force between
them for the purpose of submitting, by way of petition, a dispute arising out of
the interpretation or application of this Convention to a means of settlement
other than those provided for in this Convention.
41. The Commission has never before been called upon to examine the meaning of
this provision, nor is there any relevant case law of the Court in this respect.
However, the Commission considers that, having regard to the wording of Article
62 itself and the aim and purpose of the Convention as a whole, the possibility
for a High Contracting Party of withdrawing a case from the jurisdiction of the
Convention organs on the ground that it has entered into a special agreement
with the other High Contracting Party concerned is given only in exceptional
circumstances.
42. The principle stipulated in Article 62 is the monopoly of the Convention
institutions for deciding disputes arising out of the interpretation and
application of the Convention. The High Contracting Parties agree not to avail
themselves of other treaties, conventions and declarations in force between them
for the purpose of submitting such disputes to other means of settlement. Only
exceptionally is a departure from this principle permitted, subject to the
existence of a special agreement between the High Contracting Parties concerned,
permitting the submission of the dispute--concerning the interpretation or
application of the Convention--to an alternative means of settlement by way of
petition.
43. The Commission considers that the conditions for invoking such a special
agreement are not fulfilled in the present case. A primary condition, namely the
consent of both High Contracting Parties concerned to withdraw the particular
dispute from the jurisdiction of the Convention organs, is lacking, the
applicant Government clearly *283
opposing such a way of proceeding. Even assuming that both Turkey and Cyprus are
bound by international obligations concerning the intercommunal talks and the
Committee on Missing Persons, it is difficult to see how this could amount to a
special agreement between them to resort exclusively to these means of
settlement precluding the Convention organs from performing their normal
functions. The parties to the agreements establishing the intercommunal talks
and the Committee on Missing Persons are formally different from the parties to
the present proceedings. In particular, Turkey is not a formal party to these
agreements. Moreover, neither agreement relates specifically to the settlement
of a dispute on the interpretation or application of the Convention, let alone
the particular dispute now submitted to the Commission. Nor is it provided in
these agreements that any such dispute can be submitted to the intercommunal
talks or the Committee on Missing Persons by way of petition.
44. The Commission concludes that it is not prevented from examining the present
application on the ground that a special agreement exists to this effect between
the two High Contracting Parties concerned. The Commission would add that,
generally speaking, the performance of its functions under Article 19 of the
Convention cannot in any way be impeded by the fact that certain aspects of the
situation underlying an application filed with it are being dealt with, from a
different angle, by other international bodies.
45. The respondent Government's above objection to the admissibility of the
application must accordingly be rejected.
IV. Alleged failure to exhaust domestic remedies and to comply with the six
month rule
46. Under Article 26 of the Convention the Commission may only deal with a case
after all domestic remedies have been exhausted, according to the generally recognized
rules of international law, and within a period of six months from the date on
which the final decision was taken.
47. The Commission has in the previous cases between the same parties confirmed
its case law according to which the rule requiring the exhaustion of domestic
remedies applies not only in individual applications lodged under Article 25 but
also in cases brought by States under Article 24 of the Convention. This rule
means in principle that remedies which are shown to exist within the legal
system of the responsible State must be used and exhausted in the normal way
before the Commission is seized of a case; on the other hand remedies which do
not offer a possibility of redressing the alleged injury or damage cannot be
regarded as effective or sufficient and need not, therefore, be exhausted.
48. The respondent Government submits that the alleged victims of *284
violations of the Convention have made no use of the judicial system set up by
the TRNC, which comprises effective and adequate institutional guarantees. The
TRNC Constitution is based on the principles of the rule of law and supremacy of
the Constitution. [FN31] It provides for an independent judiciary [FN32] and for
effective judicial control of executive and legislative activity. [FN33] Article
17 relating to fair and public hearing is similar to Article 6 of the Convention
and prohibits the establishment of judicial committees or special courts under
any name whatsoever. No one is denied the right to have any criminal charge
brought against him to be heard by an independent and impartial tribunal. No act
of the administration can be excluded from judicial review. Article 152 provides
for judicial review of administrative action on the grounds of excess and/or
abuse of power, illegality and unconstitutionality. Military courts function
under Articles 156 and 157 and have competence to try only military offences
defined in special laws. It is only in rare cases, as when an offence has been
committed in a military area, that civilians may be tried by military courts.
There is also provision for judicial review of legislation by way of reference
to the Supreme Constitutional Court [FN34] and institution of proceedings for
annulment of legislation and subsidiary legislation. [FN35]
FN31 Arts. 1 and 7.
FN32 Arts. 136, 137, 141 and 150.
FN33 Arts. 146-148 and 152.
FN34 Art. 148.
FN35 Art. 147.
49. The respondent Government claims that the existence of an effective and
independent judicial system in the TRNC has also been recognized in the
Commission's own case law. It refers to the Commission's Report of 8 July 1993
on Application Nos. 15299/89 and 15300/89, Chrysostomos and Papachrysostomou v.
Turkey. In paragraph 169 of that Report the Commission found that there was no
indication of control exercised by Turkish authorities over the administration
of justice by Turkish Cypriot authorities. In paragraph 174 the Commission recognized
the existence of an effective remedy before the national authority in northern
Cyprus when it noted that the applicants in that case had been brought before
judicial authorities which they refused to recognize, and that they had not
wished to avail themselves of such remedies as might have been available to them
with regard to the circumstances of their arrest by Turkish Cypriot police. The
Commission concluded that in the circumstances there was no breach of Article 13
of the Convention.
50. The respondent Government further submits that the question of exhaustion of
domestic remedies must be approached on a case by case basis having regard to
the particular violations of the Convention alleged by the applicant Government.
It points out in particular that the alleged Turkish Cypriot victims and the
Greek Cypriot victims *285 from
the Karpas area did not make use of the remedies available to them in the TRNC.
In this respect the respondent Government has submitted a list of cases brought
by Greek Cypriots in Turkish Cypriot courts which includes inter alia
cases relating to trespass by other persons and unlawful cultivation of land
belonging to Greek Cypriot plaintiffs in the Karpas areas and in which the
claims of the plaintiffs were accepted by the competent TRNC courts.
51. The applicant Government refutes these arguments. It claims that any
remedies which may exist in Turkey or in the TRNC are not practical and
effective for Greek Cypriots living in the Government-controlled area; and that
they are ineffective for enclaved Greek Cypriots or Turkish Cypriots having
regard to the particular nature of the complaints and the legal and
administrative framework set up in the north of Cyprus: As regards the case law
of TRNC courts referred to by the respondent Government, the applicant
Government claims that it relates to situations different from those complained
of in the present application, i.e. to disputes between private parties
and not to challenges to legislation and administrative action.
52. With regard to the question of whether the remedies indicated by the
respondent Government can in the circumstances of the present case be considered
as effective, the Commission first observes that some of the complaints, in
particular those concerning property rights, relate to the implementation of
purported legislative acts of the TRNC and that, according to the Commission's
case law, the rule requiring the exhaustion of domestic remedies does not apply
to complaints the object of which is to determine the compatibility with the
Convention of legislative measures and administrative practices, except where
specific and effective remedies against legislation exist. It is true that in
the TRNC the judicial review of legislation as to its constitutionality is
provided for, but in the particular circumstances of the present case this is of
no avail because the measures complained of are essentially stipulated in the
TRNC Constitution itself.
53. The Commission has noted the respondent Government's reference to the
existence of effective remedies in the TRNC and the survey of case law which has
been presented to it on the occasion of the oral hearing. In this respect the
Commission recalls its findings in the decision on the admissibility of
Application No. 8007/77 [FN36] according to which the overwhelming majority of
Greek Cypriots, whose rights and freedoms under the Convention are alleged to
have been violated, are at present resident in the southern part of Cyprus
controlled by the applicant Government and are not permitted by the Turkish
authorities to enter the northern part of the island. In these circumstances,
any remedies which might be said to be available to such Greek Cypriots in the
northern area cannot on principle be considered as practicable.
FN36 Loc. cit., paras. 36-37.
*286 54. The Commission has
further noted, in particular as to the alleged violation of property rights of
Greek Cypriots still resident in the north of the island, that it does not
appear from the cases referred to in the above material submitted by the
respondent Government that the proceedings concerned interferences with property
rights as alleged in the present application-- namely, interferences by a public
authority or by private persons acting with the consent of such an authority, as
described in the Particulars of the application.
55. It follows that the remedies indicated by the respondent Government cannot,
for the purposes of the present application, be considered as relevant and
sufficient and that they need not, therefore, be exhausted.
56. Apart from these considerations, the Commission considers it relevant to
observe that, in distinction from the previous applications, the respondent
Government in the present case relies exclusively on remedies which are claimed
to be available before Turkish Cypriot authorities whereas the applicant
Government claims that these authorities are de facto under the control
of Turkey. The Commission also notes the applicant Government's submission
according to which these remedies are generally ineffective for Greek Cypriots,
and the related complaints submitted under Article 13 of the Convention. In the
light of the Court's Loizidou (Preliminary Objections) judgment according to
which Turkish responsibility under the Convention may arise also where it
exercises control over an area outside its national territory through a
subordinate local administration, [FN37] it appears that the question of the
exhaustion of domestic remedies before TRNC courts is closely related to the
issue of Turkish jurisdiction which can only be determined at the merits stage
of the proceedings. To this extent the Commission must accordingly reserve the
final determination to the later stage of the proceedings.
FN37 Loc. cit., para. 62.
57. The Commission concludes that the application cannot be rejected under
Articles 26 and 27(3) of the Convention for non-exhaustion of domestic remedies.
58. The respondent Government also submits that at least part of the application
is inadmissible for non-observance of the six months rule laid down in Article
26. It claims that the applicant Government's complaints, in particular those
relating to missing and displaced persons, do not concern continuing violations,
but instantaneous acts which occurred a long time ago and which are therefore
time-barred.
59. The applicant Government maintains that the application concerns continuing
violations within the meaning of the Commission's case law to which the six
month rule is not applicable.
60. In this respect, the Commission reiterates its findings in the decision on
the admissibility of Application No. 8007/77 according to which, on the one
hand, in the absence of remedies, the six month *287
period must be counted as from the act or decision which is alleged to be in
violation of the Convention, but on the other hand, it does not apply to a
permanent state of affairs which is still continuing. As the present application
alleges for the most part continuing violations of the Convention, in respect of
which the Commission cannot at the present stage of the proceedings examine
whether or not they are well-founded because this would imply a preliminary
examination of the merits of the case, it must reserve this question for later
consideration. [FN38]
FN38 Loc. cit., pp. 153-154, paras. 43-45.
61. The Commission concludes that the application cannot be rejected under
Articles 26 and 27(3) of the Convention for non-observance of the six month
rule.
Held, unanimously, application admissible.
(c) Sweet & Maxwell Limited
(1997) 23 E.H.R.R. 244
END OF DOCUMENT
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