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10.5.2001
Press release issued by the Registrar
JUDGMENT IN THE CASE OF CYPRUS v. TURKEY
In a Grand Chamber
judgment delivered at Strasbourg on 10 May 2001 in the case of Cyprus
v. Turkey (application no. 25781/94), the European Court of Human
Rights held, by sixteen votes to one, that the matters complained of by
Cyprus in its application entailed Turkey’s responsibility under the
European Convention on Human Rights.
The Court held that
there had been the following 14 violations of the Convention (see Decision
of the Court for details):
Greek-Cypriot
missing persons and their relatives
- a continuing violation
of Article 2 (right to life) of the Convention concerning the
failure of the authorities of the respondent State to conduct an effective
investigation into the whereabouts and fate of Greek-Cypriot missing
persons who disappeared in life-threatening circumstances;
- a continuing violation
of Article 5 (right to liberty and security) concerning the
failure of the Turkish authorities to conduct an effective
investigation into the whereabouts and fate of the Greek-Cypriot
missing persons in respect of whom there was an arguable claim that
they were in Turkish custody at the time of their disappearance;
- a continuing violation
of Article 3 (prohibition of inhuman or degrading treatment) in
that the silence of the Turkish authorities in the face of the real
concerns of the relatives attained a level of severity which could
only be categorised as inhuman treatment.
Home and property of
displaced persons
- a continuing violation
of Article 8 (right to respect for private and family life, home
and correspondence) concerning the refusal to allow the return of any
Greek-Cypriot displaced persons to their homes in northern Cyprus;
- a continuing violation
of Article 1 of Protocol No. 1 (protection of property) concerning
the fact that Greek-Cypriot owners of property in northern Cyprus were
being denied access to and control, use and enjoyment of their
property as well as any compensation for the interference with their
property rights;
- a violation of Article
13 (right to an effective remedy) concerning the failure to
provide to Greek Cypriots not residing in northern Cyprus any remedies
to contest interferences with their rights under Article 8 and Article
1 of Protocol No. 1.
Living conditions of
Greek Cypriots in Karpas region of northern Cyprus
- a violation of Article 9
(freedom of thought, conscience and religion) in respect of Greek
Cypriots living in northern Cyprus, concerning the effects of restrictions
on freedom of movement which limited access to places of worship and
participation in other aspects of religious life;
- a violation of Article
10 (freedom of expression) in respect of Greek Cypriots living in
northern Cyprus in so far as school-books destined for use in their
primary school were subject to excessive measures of censorship;
- a continuing violation
of Article 1 of Protocol No. 1 in respect of Greek Cypriots
living in northern Cyprus in that their right to the peaceful
enjoyment of their possessions was not secured in case of their
permanent departure from that territory and in that, in case of death,
inheritance rights of relatives living in southern Cyprus were not
recognised;
- a violation of Article 2
of Protocol No. 1 (right to education) in respect of Greek
Cypriots living in northern Cyprus in so far as no appropriate
secondary-school facilities were available to them;
- a violation of Article 3
in that the Greek Cypriots living in the Karpas area of northern
Cyprus had been subjected to discrimination amounting to degrading
treatment;
- a violation of Article 8
concerning the right of Greek Cypriots living in northern Cyprus to
respect for their private and family life and to respect for their
home;
- a violation of Article
13 by reason of the absence, as a matter of practice, of remedies
in respect of interferences by the authorities with the rights of
Greek Cypriots living in northern Cyprus under Articles 3, 8, 9 and 10
of the Convention and Articles 1 and 2 of Protocol No. 1.
Rights of Turkish
Cypriots living in northern Cyprus
- a violation of Article 6
(right to a fair trial) on account of the legislative practice of
authorising the trial of civilians by military courts.
The Court further held
that there had been no violation concerning a number of complaints,
including all those raised under: Article 4 (prohibition of slavery and
forced labour), Article 11 (freedom of assembly and association), Articles
14 (prohibition of discrimination), Article 17 (prohibition of abuse of rights)
and Article 18 (limitation on use of restrictions on rights) read in
conjunction with all those provisions. As regards a number of other
allegations, the Court held that it was not necessary to consider the
issues raised.
The Court also decided,
unanimously, that the question of the possible application of Article 41
(just satisfaction) of the Convention was not ready for decision.
1. Principal
facts
The case relates to the
situation that has existed in northern Cyprus since the conduct of military
operations there by Turkey in July and August 1974 and the continuing
division of the territory of Cyprus. In connection with that situation,
Cyprus maintained that Turkey had continued to violate the Convention in
northern Cyprus after the adoption of two earlier reports by the European
Commission of Human Rights, which were drawn up following previous
applications brought by Cyprus against Turkey.
In the Convention
proceedings, Cyprus contended that Turkey was accountable under the
Convention for the violations alleged notwithstanding the proclamation of
the "Turkish Republic of Northern Cyprus" in November 1983 and
the subsequent enactment of the "TRNC Constitution" in May 1985.
Cyprus maintained that the "TRNC" was an illegal entity from the
standpoint of international law and pointed to the international
community’s condemnation of the establishment of the "TRNC".
Turkey, on the other hand, maintained that the "TRNC" was a
democratic and constitutional State, which was politically independent of
all other sovereign States, including Turkey. For that reason, Turkey
stressed that the allegations made by Cyprus were imputable exclusively to
the "TRNC" and that Turkey could not be held accountable under
the Convention for the acts or omissions on which those allegations were
based.
2. Procedure
The application was
lodged with the European Commission of Human Rights on 22 November
1994. Having declared the application admissible on 28 June 1996, the
Commission appointed Delegates who took evidence in respect of various
matters raised by the application in Strasbourg (27-28 November 1997),
Cyprus (21-24 February 1998) and London (22 April 1998). Having concluded
that there was no basis on which a friendly settlement could be secured,
the Commission, following an oral hearing, adopted a report on 4 June 1999
in which it established the facts and expressed an opinion as to whether
the facts disclosed the alleged breaches by Turkey of its obligations under
the Convention.
The case was referred
to the Court by the Government of the Republic of Cyprus on 30 August
1999 and by the Commission on 11 September 1999. The panel of the Grand
Chamber of the Court decided that the case should be examined by the Grand
Chamber.
3. Composition
of the Court
Judgment was given by the
Grand Chamber of seventeen judges, composed as follows:
Luzius Wildhaber (Swiss),
President,
Elisabeth Palm (Swedish),
Jean-Paul Costa (French),
Luigi Ferrari Bravo (Italian),
Lucius Caflisch (Swiss),
Willi Fuhrmann (Austrian),
Karel Jungwiert (Czech),
Marc Fischbach (Luxemburger),
Boštjan Zupancic (Slovenian),
Nina Vajic (Croatian),
John Hedigan (Irish),
Margarita Tsatsa-Nikolovska (FYROMacedonia),
Tudor Pantīru (Moldovan),
Egils Levits (Latvian),
Anatoly Kovler (Russian), judges,
Kutlu Tekin Fuad, ad hoc judge in respect of Turkey,
Silvio Marcus-Helmons, ad hoc judge in respect of
Cyprus,
and also Michele de
Salvia, Registrar.
4.
Complaints
Before the Court,
Cyprus alleged violations of the Convention under Articles 1 (obligation to
respect human rights), 2, 3, 4, 5, 6, 8, 9, 10, 11, 13, Articles 1 and 2 of
Protocol No. 1, and Articles 14, 17, and 18. According to Cyprus, these
Articles were violated as a matter of administrative practice by the
respondent State.
The allegations
concerned the following issues:
(a) Greek-Cypriot
missing persons and their relatives
In respect of
Greek-Cypriot missing persons, it was alleged that, if any were still in
Turkish custody, this would constitute a form of slavery or servitude contrary
to Article 4 and a grave breach of their right to liberty under Article 5.
In addition, Cyprus maintained that there had been a violation of Articles
2 and 5 on account of Turkey’s failure to carry out an investigation into
the disappearance of these persons in life-threatening circumstances and to
account for their whereabouts.
In respect of the
relatives of missing persons, Cyprus alleged violations of Articles 3,
8 and 10 on account of the Turkish authorities’ consistent and continuing
failure to provide information on the fate of the missing persons.
(b) Home and
property of displaced persons
Cyprus complained,
among other things, under Article 8 (the continuing refusal to allow Greek
Cypriots to return to their homes and families in northern Cyprus;
implantation of Turkish settlers in northern Cyprus to the detriment of the
demographic and cultural environment of northern Cyprus), Article 1 of
Protocol No. 1 (denial of access to and enjoyment of property,
re-assignment of property, withholding of compensation and deprivation of
title), Article 13 of the Convention (failure to provide any remedy to
displaced persons in respect of the alleged violations of Article 8 and
Article 1 of Protocol No. 1) and Article 14 taken in conjunction with the
preceding Articles (discrimination against Greeks and Greek Cypriots as
regards, among other things, enjoyment of their property). Cyprus further
invoked Article 3 (discrimination against displaced persons amounting to
ill-treatment), and Articles 17 (abuse of rights) and 18 (impermissible use
of restrictions on rights).
(c) Living
conditions of Greek Cypriots in the Karpas region of northern Cyprus
As regards the Karpas
Greek Cypriots, Cyprus relied on, among other things, Articles 2 (denial of
adequate medical treatment and services), 3 (discriminatory treatment; in
particular in view of their advanced age, the restrictions placed on them
and methods of coercion used were said to amount to inhuman and degrading
treatment), 5 (threat to security of person and absence of official action
to prevent this), 6 (lack of a fair hearing before an independent and
impartial tribunal established by law for the determination of their civil
rights), 8 (interference with their right to respect for their private and
family life, home and correspondence), 9 (interference with their right to
manifest their religion on account of restrictions on their freedom of
movement and access to places of worship), 10 (excessive censorship of
school-books and restrictions on importation of Greek-language newspapers
and books), 11 (impediments to their participation in bi or inter-communal
events or gatherings), 13 (denial of an effective remedy in respect of
their complaints) and 14 (discrimination on racial, religious and
linguistic grounds), and Articles 1 (interference with the property of
deceased Greek Cypriots as well as with the property of such persons who
permanently leave northern Cyprus) and 2 (denial of secondary-education
facilities to Greek-Cypriot children) of Protocol No. 1.
(d) Complaints
relating to Turkish Cypriots, including members of the Gypsy community,
living in northern Cyprus
Cyprus alleged, among
other things, violations in relation to Turkish Cypriots who are opponents
of the "TRNC" régime of Articles 5 (arbitrary arrest and
detention), 6 (trial by "military courts"), 8 (assaults and
harassment by third parties), 10 (prohibition of Greek-language newspapers
and interference with the right to freedom of expression), 11 (denial of the
right to associate freely with Greek Cypriots), Article 1 of Protocol No.1
(failure to allow Turkish Cypriots to return to their properties in
southern Cyprus). Violations were also alleged of Articles 3, 5, 8 and 13
and Article 2 of Protocol No. 1 in relation to the treatment of
Turkish-Cypriot Gypsies living in northern Cyprus.
5. Decision
of the Court
Preliminary issues
The Court considered,
unanimously, that, notwithstanding Turkey’s failure either to submit a
memorial to the Court or to attend the oral hearing held on 20 September
2000 and to plead these issues afresh, it had jurisdiction to examine those
preliminary issues raised by Turkey in the proceedings before the
Commission which the Commission reserved for the merits stage.
The Court held,
unanimously, that the applicant Government had both locus standi
to bring the application, given that the Republic of Cyprus was the sole
legitimate government of Cyprus, and a legitimate legal interest in having
the merits of the application examined since neither of the resolutions
adopted by the Committee of Ministers of the Council of Europe on the
Commission’s previous reports had resulted in a decision which could be
said to be dispositive of the issues raised in the application.
Furthermore, the Court, unanimously, confirmed the Commission’s conclusion
that situations which ended more than six months before the date of
introduction of the application (22 May 1994) fell outside the scope of its
examination.
As to Turkey’s denial
of liability under the Convention for the allegations made against it, the
Court held, by sixteen votes to one, that the facts complained of in
the application fell within the "jurisdiction" of Turkey within
the meaning of Article 1 of the Convention and therefore entailed the
respondent State’s responsibility under the Convention. In reaching this
conclusion, the Court noted that such a finding was consistent with its
earlier statements in its Loizidou v. Cyprus (merits)
judgment [fn]. In
that judgment, the Court had noted that Turkey exercised effective overall
control of northern Cyprus through its military presence there, with the
result that its responsibility under the Convention was engaged for the
policies and actions of the "TRNC" authorities. In the instant
case, the Court stressed that Turkey’s responsibility under the Convention
could not be confined to the acts of its own soldiers and officials
operating in northern Cyprus but was also engaged by virtue of the acts of
the local administration ("the TRNC"), which survived by virtue
of Turkish military and other support.
The Court further held,
by ten votes to seven, that, for the purposes of the exhaustion
requirements under the former Article 26 (current Article 35 § 1), remedies
available in the "TRNC" may be regarded as "domestic
remedies" of the respondent State and that the question of the
effectiveness of these remedies had to be considered in the specific
circumstances where it arose, on a case-by case basis. The majority of the
Court, in line with the majority viewpoint of the Commission, considered,
among other things, and with reference to the Advisory Opinion of the
International Court of Justice in the Namibia case, that in situations
similar to those arising in the present case, the obligation to disregard
acts of de facto entities, like the "TRNC", was far from
absolute. For the Court, life went on in the territory concerned for its
inhabitants and that life must be made tolerable and be protected by the de
facto authorities, including their courts. It considered that, and in
the interests of the inhabitants, the acts of those authorities could not
simply be ignored by third States or by international institutions,
especially courts. To hold otherwise would amount to stripping the
inhabitants of the territory of all their rights whenever they were
discussed in an international context, which would amount to depriving them
even of the minimum standard of rights to which they were entitled. In
reaching this conclusion, the Court’s majority stressed that its reasoning
did not in any way legitimise the "TRNC" and reaffirmed the view
that the government of the Republic of Cyprus remained the sole legitimate
government of Cyprus.
(a) Greek-Cypriot
missing persons and their relatives
The Court, unanimously,
found that there had been no violation of Article 2 by reason of an
alleged violation of a substantive obligation under that Article in respect
of any of the missing persons. The evidence before it did not substantiate
to the required standard that any of the missing persons were killed in
circumstances engaging the respondent State’s liability.
On the other hand, the
Court found, by sixteen votes to one, that there had been a continuing
violation of Article 2 on account of the failure of the authorities of
the respondent State to conduct an effective investigation into the
whereabouts and fate of Greek-Cypriot missing persons who disappeared in
life-threatening circumstances.
The Court concluded,
unanimously, that no violation of Article 4 had been established.
Although it found,
unanimously, that it had not been established that, during the period under
consideration, any of the missing persons were actually in detention, the
Court ruled, by sixteen votes to one, that there had been a continuing
violation of Article 5 by virtue of the failure of the authorities of
the respondent State to conduct an effective investigation into the
whereabouts and fate of the Greek-Cypriot missing persons in respect of
whom there was an arguable claim that they were in Turkish custody at the
time of their disappearance.
As to the relatives of
the Greek-Cypriot missing persons, the Court held, by sixteen votes to one,
that there had been a continuing violation of Article 3. In the
Court’s opinion, the silence of the authorities of the respondent State in
the face of the real concerns of the relatives attained a level of severity
which could only be categorised as inhuman treatment.
Having regard to that
conclusion, the Court held, unanimously, that it was not necessary to
examine whether Articles 8 and 10 of the Convention had been violated
in respect of the relatives of the Greek-Cypriot missing persons.
(b) Home and
property of displaced persons
The Court held, by
sixteen votes to one, that there had been a continuing violation
of Article 8 by reason of the refusal to allow the return of any
Greek-Cypriot displaced persons to their homes in northern Cyprus. Having
regard to that conclusion, the Court found, unanimously, that it was not
necessary to examine whether there had been a further violation of that
Article by reason of the alleged manipulation of the demographic and
cultural environment of the Greek-Cypriot displaced persons’ homes in
northern Cyprus. As to the applicant Government’s complaint under Article 8
concerning the interference with the right to respect for family life on
account of the refusal to allow the return of any Greek-Cypriot displaced
persons to their homes in northern Cyprus, the Court held, unanimously,
that this complaint fell to be considered in the context of their
allegations in respect of the living conditions of the Karpas Greek
Cypriots.
Furthermore, the Court
held, by sixteen votes to one, that there had been a continuing
violation of Article 1 of Protocol No. 1 by virtue of the fact that
Greek-Cypriot owners of property in northern Cyprus were being denied
access to and control, use and enjoyment of their property as well as any
compensation for the interference with their property rights.
The Court also held, by
sixteen votes to one, that there had been a violation of Article 13
by reason of the failure to provide to Greek Cypriots not residing in
northern Cyprus any remedies to contest interferences with their rights
under Article 8 and Article 1 of Protocol No. 1. It did not find it necessary
(unanimously) to examine whether in this case there had been a violation of
Article 14 taken in conjunction with Articles 8 and 13 and Article 1 of
Protocol No. 1, or whether the alleged discriminatory treatment of
Greek-Cypriot displaced persons also gave rise to a breach of Article 3. It
was also of the unanimous view that it was not necessary to examine
separately the applicant Government’s complaints under Articles 17 and 18,
having regard to its findings under Articles 8 and 13 and Article 1 of
Protocol No. 1.
(c) Living
conditions of Greek Cypriots in Karpas region of northern Cyprus
The Court held, by
sixteen votes to one, that there had been a violation of Article 9
in respect of Greek Cypriots living in northern Cyprus. As regards
Maronites living in northern Cyprus it found, unanimously, no violation
of Article 9. The Court also held, by sixteen votes to one, that there
had been a violation of Article 10 in respect of Greek Cypriots
living in northern Cyprus in so far as school-books destined for use in
their primary school were subject to excessive measures of censorship.
The Court further held,
by sixteen votes to one, that there had been a continuing violation of
Article 1 of Protocol No. 1 in respect of Greek Cypriots living in
northern Cyprus in that their right to the peaceful enjoyment of their
possessions was not secured in case of their permanent departure from that
territory and in that, in case of death, inheritance rights of relatives
living in southern Cyprus were not recognised.
The Court also ruled,
by sixteen votes to one, that there had been a violation of Article 2 of
Protocol No. 1 in respect of Greek Cypriots living in northern Cyprus
in so far as no appropriate secondary-school facilities were available to
them.
In addition, the Court
found, by sixteen votes to one, that there had been a violation
of Article 3 in that the Greek Cypriots living in the Karpas area of
northern Cyprus had been subjected to discrimination amounting to degrading
treatment. It observed in this connection that the Karpas Greek-Cypriot
population was compelled to live in a situation of isolation and that its
members were controlled and restricted in their movements and had no
prospect of renewing or developing their community. For the Court, the
conditions under which the population was condemned to live were debasing
and violated the very notion of respect for the human dignity of its
members. The discriminatory treatment attained a level of severity which
amounted to degrading treatment.
The Court further held,
by sixteen votes to one, that, from an overall standpoint, there had been a
violation of Article 8 concerning the right of Greek Cypriots living
in northern Cyprus to respect for their private and family life and to
respect for their home. In this connection the Court noted that the
population concerned was subjected to serious restrictions on the exercise
of these rights, including monitoring of its members’ movements and
contacts. The surveillance effected by the authorities even extended to the
physical presence of State agents in the homes of Greek Cypriots on the
occasion of social or other visits paid by third parties, including family
members. Having regard to that conclusion, the Court found, unanimously,
that it was not necessary to examine separately the applicant Government’s
complaint under Article 8 concerning the effect of the respondent State’s
alleged colonisation policy on the demographic and cultural environment of
the Greek Cypriots’ homes. The Court further found, unanimously, no
violation of Article 8 concerning the right to respect for
correspondence by reason of an alleged practice of interference with the
right of Greek Cypriots living in northern Cyprus to respect for their
correspondence.
The Court found, by sixteen
votes to one, that there had been a violation of Article 13 by
reason of the absence, as a matter of practice, of remedies in respect of
interferences by the authorities with the rights of Greek Cypriots living
in northern Cyprus under Articles 3, 8, 9 and 10 of the Convention and
Articles 1 and 2 of Protocol No. 1. On the other hand, it held, by eleven
votes to six, that no violation of Article 13 had been established
by reason of the alleged absence of remedies in respect of interferences by
private persons with the rights of Greek Cypriots living in northern
Cyprus.
(f) Alleged
violations of Articles 1, 17, 18 and former Article 32 § 4
The Court held
unanimously that it was not necessary to examine separately the applicant
Government’s complaints under these Articles.
Judges Palm, Costa,
Jungwiert, Panţīru, Levits, Kovler, Fuad and Marcus-Helmons expressed
partly dissenting opinions, which are annexed to the judgment.
***
The Court’s judgments
are accessible on its Internet site (http://www.echr.coe.int).
Registry of the
European Court of Human Rights
F – 67075 Strasbourg Cedex
Contacts: Roderick Liddell (telephone: (0)3 88 41 24 92)
Emma Hellyer (telephone: (0)3 90 21 42 15)
Fax: (0)3 88 41 27 91
The European
Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged
violations of the 1950 European Convention on Human Rights. On 1 November
1998 a full-time Court was established, replacing the original two-tier
system of a part-time Commission and Court.
[fn] Judgment
of 18 December 1996, Reports of Judgments and Decisions 1996-VI, §§ 52-56.
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