Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 15299/89 Application No. 15300/89

Metropolitan Chrysostomos, Archimandrite Georgios

Bishop of Kitium Papachrysostomou

against Turkey against Turkey

REPORT OF THE COMMISSION

(adopted on 8 July 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 27) . . . . . . . . . . . . . . . . . . . . . . . 1

A. The applications

(paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5 - 22). . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 23 - 27) . . . . . . . . . . . . . . . . . . . . 3

II. ESTABLISHMENT OF THE FACTS

(paras. 28 - 86) . . . . . . . . . . . . . . . . . . . . . . 5

A. The particular circumstances of the case

(paras. 28 - 41) . . . . . . . . . . . . . . . . . . . . 5

1. The demonstration of 19 July 1989

(paras. 28 - 32) . . . . . . . . . . . . . . . . . 5

2. The applicants' detention and the proceedings

against them

(paras. 33 - 41) . . . . . . . . . . . . . . . . . 6

B. The evidence before the Commission

(paras. 42 - 81) . . . . . . . . . . . . . . . . . . . . 8

1. Evidence concerning the demonstration on

19 July 1989 (paras. 42 - 69). . . . . . . . . . . 8

a) Report of the Secretary-General of the

United Nations (para. 42) . . . . . . . . . . 8

b) Witnesses (paras. 43 - 68). . . . . . . . . . 9

aa First applicant (para. 44). . . . . . . 9

bb Second applicant (para. 45) . . . . . .10

cc Witnesses proposed by the

applicants (paras. 46 - 54) . . . . . .10

dd Witnesses proposed by the respondent

Government (paras. 55 - 68) . . . . . .12

c) Other evidence (para. 69) . . . . . . . . . .15

2. Evidence concerning the applicants'

detention and the proceedings against

them (paras. 70 - 81) . . . . . . . . . . . . . .15

a) Witnesses (paras. 70 - 80). . . . . . . . . .15

aa The first applicant (para. 71). . . . .15

bb The second applicant (para. 72) . . . .15

cc Witnesses proposed by the

applicants (paras. 73 - 74) . . . . . .15

dd Witnesses proposed by the

respondent Government

(paras. 75 - 80). . . . . . . . . . . .15

b) Other evidence (para. 81) . . . . . . . . . .16

C. The relevant domestic law

(paras. 82 - 84) . . . . . . . . . . . . . . . . . . . .16

1. Procedural law (para. 82) . . . . . . . . . . . .16

2. Substantive law (paras. 83 - 84) . . . . . . . . .17

D. Agreement on Unmanning of Positions in Sensitive

Areas in Nicosia (1989)

(paras. 85 - 86) . . . . . . . . . . . . . . . . . . . .17

III. OPINION OF THE COMMISSION

(paras. 87 - 183) . . . . . . . . . . . . . . . . . . . . .19

A. Complaints declared admissible

(para. 87) . . . . . . . . . . . . . . . . . . . . . . .19

B. Points at issue

(paras. 88 - 89) . . . . . . . . . . . . . . . . . . . .19

C. The arrest of the applicants

(paras. 90 - 159) . . . . . . . . . . . . . . . . . . .20

1. Imputability (paras. 90 - 102) . . . . . . . . . .20

2. Articles 3 and 8 of the Convention

(paras. 103 - 142) . . . . . . . . . . . . . . . .22

a) The character of the

demonstration (paras. 109 - 110) . . . . . .23

b) The situation at the place of

the applicants' arrest

(paras. 111 - 115) . . . . . . . . . . . . .23

c) The treatment of the applicants during

their arrest - evaluation of the

evidence

(paras. 116 - 125) . . . . . . . . . . . . .24

aa General (paras. 116 - 118) . . . . . .24

bb The first applicant

(paras. 119 - 120) . . . . . . . . . .24

cc The second applicant

(paras. 121 - 125) . . . . . . . . . .24

d) Application of Article 3 of the

Convention to the facts established

(paras. 126 - 131) . . . . . . . . . . . . .25

aa General (para. 126) . . . . . . . . . .25

bb The first applicant

(paras. 127 - 128) . . . . . . . . . .25

Conclusion (para. 129) . . . . . . . . . . .25

cc The second applicant

(para. 130) . . . . . . . . . . . . . .26

Conclusion (para. 131) . . . . . . . . . . .26

e) Application of Article 8 of the

Convention to the facts established

(paras. 132 - 142) . . . . . . . . . . . . .26

aa The first applicant

(paras. 132 - 136 ) . . . . . . . . . .26

Conclusion (para. 137) . . . . . . . . . . .27

bb The second applicant

(paras. 138 - 141) . . . . . . . . . .27

Conclusion (para. 142) . . . . . . . . . . .27

3. Article 5 para. 1 of the Convention

(paras. 143 - 159) . . . . . . . . . . . . . . . .27

a) Deprivation of liberty "in accordance

with a procedure prescribed by law"

(paras. 146 - 149) . . . . . . . . . . . . .28

b) Justification of the arrest under

Article 5 para. 1 (c) of the

Convention

(paras. 150 - 156) . . . . . . . . . . . . .29

c) Other issues under Article 5 para. 1

(paras. 157 - 158) . . . . . . . . . . . . .30

d) Conclusion (para. 159) . . . . . . . . . . .30

D. The applicants' detention and the proceedings

against them after their arrest

on 19 July 1989 (paras. 160 - 171) . . . . . . . . . . .30

1. Imputability (paras. 160 - 170) . . . . . . . . .30

2. Conclusion (para. 171) . . . . . . . . . . . . . .32

E. Article 13 of the Convention

(paras. 172 - 175) . . . . . . . . . . . . . . . . . . .33

Conclusion (para. 175) . . . . . . . . . . . . . . . . .33

F. Recapitulation

(paras. 176 - 183) . . . . . . . . . . . . . . . . . . .33

PARTLY CONCURRING, PARTLY DISSENTING OPINION OF

MM. NØRGAARD, JÖRUNDSSON, GÖZÜBÜYÜK, SOYER AND

DANELIUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35

PARTIALLY DISSENTING OPINION OF

SIR BASIL HALL . . . . . . . . . . . . . . . . . . . . . . . . . .36

PARTIALLY CONCURRING AND PARTIALLY DISSENTING OPINION OF

MR. C.L. ROZAKIS. . . . . . . . . . . . . . . . . . . . . . . . . .37

PARTIALLY CONCURRING, PARTIALLY DISSENTING OPINION OF

MR. M.P. PELLONPÄÄ. . . . . . . . . . . . . . . . . . . . . . . . .42

DISSENTING OPINION OF MR. E. BUSUTTIL . . . . . . . . . . . . . . .44

APPENDIX I: HISTORY OF PROCEEDINGS . . . . . . . . . . . . . . . .46

APPENDIX II: DECISION ON THE ADMISSIBILITY . . . . . . . . . . . .49

I. INTRODUCTION

1. The following is an outline of the case, as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The applications

2. The first applicant, Metropolitan Chrysostomos, Bishop of Kitium,

was born in 1938 and resides at Larnaka. The second applicant,

Archimandrite Georgios Papachrysostomou, was born in 1949 and resides

at Nicosia. Both applicants are Cypriot citizens. They are represented

by Dr. K. Chrysostomides, a lawyer practising in Nicosia.

3. The applications are directed against Turkey. The respondent

Government were initially represented by their Agent, Prof. S. Bilge,

and subsequently by their Acting Agent, Mr. S. Özmen, both of the

Ministry of Foreign Affairs. They are now represented by their Agent,

Prof. B. Çaglar.

4. The applications concern the applicants' deprivation of liberty

and their subsequent conditions of detention and proceedings against

them in the northern part of Cyprus in July 1989. The applicants allege

violations of Articles 1, 3, 5, 6, 7, 9 and 13 of the Convention. They

claim that their detention and all other acts complained of were

carried out by Turkish military forces stationed in the northern part

of Cyprus or by forces acting under their authority.

B. The proceedings

5. The applications were introduced on 21 July and registered on

25 July 1989.

6. On 9 November 1989 the Commission ordered the joinder of the

present applications and of Application No. 15318/89 (Titina Loizidou

v. Turkey). It further decided to bring the applications to the notice

of the respondent Government and to invite them to submit written

observations on the applications. The Government's observations were

filed on 28 February 1990. The applicants' observations in reply were

filed on 6 May 1990.

7. On 5 October 1990 the Commission decided to invite the parties

to a hearing.

8. The applicants filed further written submissions on

18 December 1990.

9. At the hearing on 11 January 1991 the respondent Government were

represented by Prof. S. Bilge as Agent, Prof. H. Golsong and

Prof. E. Lauterpacht as Counsel and by Mr. M. Özmen and Dr. D. Akçay,

both of the Ministry of Foreign Affairs, and Mr. D. Bethlehem,

Barrister, as Experts. The applicants were represented by

Dr. K. Chrysostomides and Prof. I. Brownlie, Q.C. and

Mrs. C. Pitsilli-Dekatris, Barrister, as Counsel. The first applicant

was also present.

10. On 4 March 1991 the Commission declared the applications

admissible.

11. The respondent Government were then invited to submit their

observations on the merits of the applications. Under cover of a letter

of 7 May 1991 they submitted a memorandum requesting the Commission "to

re-open the proceedings on the admissibility" of the applications and

"to find that each of them is inadmissible". The applicants' comments

on this request were filed on 24 May 1991.

12. On 30 May 1991 the Commission found no legal basis for the

respondent Government's request. It invited the Government to submit

their observations on the merits, including their evidence, no later

than 29 July 1991. At the Government's request this time-limit was

subsequently extended to 30 September 1991.

13. In a letter transmitted on 25 September 1991, the respondent

Government informed the Commission that they would not participate in

any further proceedings concerning the present applications.

14. On 16 October 1991 the Commission adopted an Interim Report on

the present state of the proceedings in which it requested the

Committee of Ministers to urge Turkey, as a High Contracting Party to

the Convention, to meet its obligations and accordingly to participate

in the Commission's examination of the merits of the present

applications, as required by Article 28 para. 1.

15. On 19 December 1991 the Committee of Ministers adopted Resolution

DH (91) 41, in which it urged Turkey, as a High Contracting Party to

the Convention, to meet its obligations and accordingly to participate

in the Commission's examination of the merits of the present

applications as required by Article 28, para. 1.

16. On 14 January 1992 the Commission decided to take oral evidence

of the applicants, and of the witnesses proposed by them, at a hearing

before delegated members of the Commission in the presence of the

parties in Strasbourg; and to invite the parties to file, within a

time-limit of six weeks, such further observations as they wished to

make.

17. On 9 April 1992 the Commission appointed its Delegation for the

hearing of witnesses. It decided to include in the list of witnesses

to be examined the persons proposed in the respondent Government's

submissions of 28 February 1992. Two further witnesses, one proposed

by the respondent Government in a letter of 29 April and one proposed

by the applicants in a letter of 30 April 1992, were added to the list

on 19 May 1992. Further submissions in writing were filed by the

respondent Government on 20 May and by the applicants on 5 June 1992.

18. At the hearing on 9 and 10 June 1992 the Delegation (MM. Frowein,

Busuttil and Pellonpää) heard the applicants, nine witnesses proposed

by the applicants and eleven witnesses proposed by the respondent

Government.

19. On 7 July 1992 the Commission decided to hold a hearing on the

merits of the applications. Further submissions in writing were filed

by the applicants on 21 September and by the respondent Government on

1 October 1992.

20. At the hearing on 4 December 1992 the applicants were represented

by Dr. Chrysostomides, Prof. Brownlie and Mrs. Pitsilli-Dekatris. The

respondent Government were represented by Prof. B. Çaglar as Agent,

Mr. Özmen, Dr. Akçay, Prof. Golsong and Mr. A. Sait as Counsel, and

Mrs. G. Erönen, Mr. O. Örek and Mrs. I. Tokcan as Experts. During the

hearing the parties were given the opportunity to make supplementary

submissions under Article 8 of the Convention with regard to the

applicants' complaint concerning their arrest. A video film submitted

by the applicants and a video film submitted by the respondent

Government were shown. At the end of the hearing the Commission

accepted, as further written submission, a "Note d'Audience" filed by

the respondent Government shortly before the hearing and invited the

parties to file, before 31 January 1993, such final submissions in

writing as they might wish to make.

21. On 7 December 1992 the Commission decided to disjoin the present

applications from Application No. 15318/89 (cf. para. 6 above) and to

invite the respondent Government to provide further information

concerning the alleged legal basis for the applicants' arrest and

conviction. The applicants' final submissions were dated 27 January and

those of the Government 29 January 1993.

22. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

23. The present Report has been drawn up by the Commission in

pursuance of Article 31 para. 1 of the Convention and after

deliberations and votes in plenary session, the following members being

present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Sir Basil HALL

MM. C.L. ROZAKIS

M.P. PELLONPÄÄ

24. The text of this Report was adopted on 8 July 1993 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

25. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

26. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the applications as Appendix II.

27. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

1. The demonstration on 19 July 1989

28. The applicants participated as clergymen in a demonstration of

some 1.000 Greek Cypriots, mostly women, which took place in the Saint

(Ayios) Kassianos area of Nicosia/Cyprus on 19 July 1989. The

demonstration, details of which are in dispute between the parties, has

been the subject of a report by the Secretary-General, and of a

declaration by the President of the Security Council, of the United

Nations (see below para. 42).

29. The applicants state that the demonstration was organised by the

"Women's Pancyprian Movement 'Epistrophe' ('Return')". It aimed at

proclaiming the refugees' right to return to their homes in the

northern part of Cyprus. GODEK, the women's organisation of the

Democratic Party, organised a memorial service in the Church of Saint

Kassianos which lies in the area controlled by the Republic of Cyprus

but which is within walking distance from the United Nations buffer-

zone. The two applicants held the religious service. The demonstration

then proceeded peacefully to conduct prayers in the derelict Church of

Saint George which is situated in the buffer-zone, in a former school

complex of the Saint Kassianos area.

30. The respondent Government state that the demonstration was

designed as an attack against the buffer-zone and the territory of the

"Turkish Republic of Northern Cyprus". The demonstrators broke through

barbed wire and through the defence line of the United Nations Force

in Cyprus (UNFICYP). They entered the territory of the "Turkish

Republic of Northern Cyprus" carrying a Greek and a Cypriot flag.

31. The applicants further state that Turkish military personnel in

camouflage uniforms and blue berets and policemen wearing riot gear

appeared on the scene. The personnel in police uniforms carried anti-

riot gear, electrically charged clubs and perspex shields and wore

helmets. The personnel in camouflage uniforms carried sub-machine-guns

and pistols. Members of the Turkish Security Forces were also on the

scene, wearing camouflage uniforms and green berets and carrying

bayonets. The Turkish military and other personnel broke through the

UN soldiers line that had been formed in front of the women and drove

the UN soldiers away. They "cleared" the area in front of the school

buildings and moved into the yard and chapel of Saint George, rounding

up and cornering the women and the applicants inside the ruins of the

chapel. The Turkish forces fell upon the applicants pulling them by

their robes, their beards, hitting them, kicking them, spitting on

them, swearing at them and dragging them on the ground. The applicants

and many women were led by force into the Turkish occupied area of

Nicosia through a hostile mob that inflicted further blows and insults

upon them.

32. The respondent Government state that the Turkish Cypriot Police

intervened in the face of the manifest inability of the Greek Cypriot

authorities and of UNFICYP to contain the intrusion and its possible

consequences. No Turkish forces were involved. The demonstrators were

warned in Greek and English that unless they dispersed they would be

arrested. The applicants were lawfully arrested in accordance with the

law of the "Turkish Republic of Northern Cyprus", which is in relevant

parts based on legislation enacted under British rule. The arrest took

place on the territory of the "Turkish Republic of Northern Cyprus",

not in the buffer-zone. This status of the area in question was

recognised in the Unmanning Agreement of 1989. During the arrest

operation only the necessary force was used. No one was ill-treated.

2. The applicants' detention and the proceedings against them

33. The applicants state that they were transported by buses to a

hall made of corrugated iron known as "Pavlides Garage". During their

journey, they were subjected to further abuse by the persons who had

detained them and by the civilian mob that had gathered and threatened

to lynch them. They were sworn at and their rank was abased. Whilst

detained at the Pavlides Garage, the prisoners were kept waiting for

long hours into the night and some of them until the following morning,

without any food or water. They were made to sit and sleep on the

ground, they were not offered any medical attention and they were

prohibited from talking among themselves. The Turkish forces did

nothing to protect the detainees from the hostile mob that had gathered

outside threatening the detainees, throwing stones on the corrugated

iron roof (some of which broke through and fell into the garage on to

the persons detained). At one stage the mob even pushed its way

forcibly into the garage before being pushed back by the Turkish forces

in charge.

34. The respondent Government state that the applicants were taken

to a place formerly known as "Pavlides Garage" which has been

reconstructed, is used for sports activities and now known as "Basaran

Sports Hall". All the arrested people were treated properly. They were

not subjected to any force, torture or ill-treatment. Members of

UNFICYP were present. Nobody tried to lynch the applicants, cursed or

spat at them.

35. The applicants further state that, from Pavlides Garage, they

were transported to a Police Station where they spent the rest of the

night hours after being subjected to further humiliating treatment from

their captors. They were then presented to a "Court", transported to

a prison and put into tiny cells that could not accommodate all

prisoners. The detainees were locked up in cells together with Turkish

prisoners serving long sentences for murder and manslaughter. The

prison cells were extremely dirty, the conveniences provided were

filthy and no toilet paper was provided. Whilst in prison, the

applicants were harassed by their guards who would wake them up in the

middle of the night or during their afternoon rest to take their

photographs, to count them, to take their fingerprints or to open files

for them.

36. The respondent Government state that the applicants were brought

before the District Court, remanded in custody and taken to the State

prison, accompanied by members of UNFICYP. The State prison was

constructed in 1982, with up to date facilities and accommodation.

During their stay in the State prison the prisoners were provided with

all their requirements and necessities, including toilet papers,

sanitary-towels etc. UNFICYP were constantly in touch with them and

free to supply them with additional requirements, if needed.

The applicants were constantly under medical control of both the United

Nations and Local Medical Officers and all their requirements in this

connection were met. They were never kept with other criminals and

definitely not with those serving long sentences for murder or

manslaughter.

37. The applicants further state that they were not allowed to pray

in prison. The prison authorities did not allow the objects and wares

used in the conduct of mass or the robes that were sent to the first

applicant to be handed over to him so that he could conduct holy

service and take holy communion. They did not allow the first applicant

to conduct service for the benefit of the women detainees. The

applicants' private prayers were disrupted by the prison guards who

would put on loud music through the loudspeakers or would turn on the

T.V. On days of regular fasting under the Greek Orthodox religion the

applicants were provided with meat and other food that they could not

take. Their religion and rank were ridiculed and affronted by their

captors. The applicants went on a hunger strike as from 24 July 1989

until the time of their release. During this period they were provoked

and filmed or photographed with food on their bed side tables which had

been placed there by their prison guards.

38. The respondent Government state that, during their detention, the

applicants could exercise their religion individually, but under the

1959 Prison Rules they were not entitled to conduct mass. The rules are

applied in the same way in Southern Cyprus and to Muslim clerics in

Northern Cyprus.

39. The applicants finally state that they were forced to appear

before a "Court" where they were charged with "illegal entry" into the

Turkish occupied areas of Cyprus. They were "tried" and "sentenced" by

a "Court" which had no legitimate existence or jurisdiction over them.

The proceedings were held in Turkish with a scanty translation into

Greek. The interpreter told the prisoners "I translate whatever I

like". The persons who "testified" were replaying a rehearsed scenario

in order to prove the detainees' alleged guilt.

40. The respondent Government state that the applicants were tried

by the Nicosia District Court on 21 July 1989. At the trial two

interpreters were present, who translated all proceedings into Greek.

The United Nations observers were also present throughout the trial.

The applicants refused the services of a lawyer registered in the

"Turkish Republic of Northern Cyprus". They were convicted on the

charge of unauthorised entry into the territory of the "Turkish

Republic of Northern Cyprus", contrary to section 20 of the Criminal

Code, chapter 154 and sections 2, 8 and 9 of Act No. 5/72, as amended

by Act No. 14/73 and Regulation No. 119, issued in March 1989 under

section 11 of the Act and the Prohibited Military Areas Decree of 1979;

and on the charge of entry into the territory of the "Turkish Republic

of Northern Cyprus" at an unauthorised crossing point, contrary to

section 20 of the Criminal Code, chapter 105 and section 12 (1) (5) of

the Aliens and Immigration Act, as amended by Act No. 21/82 and the

"Notification" No. 267/49 under sections 3 and 21 of the same Act. The

applicants were sentenced to three days imprisonment and to a fine of

100 Cyprus pounds, to be replaced by ten days in prison if the fine

were not paid within 24 hours.

41. The applicants were released on 30 July 1989.

B. The evidence before the Commission

1. Evidence concerning the demonstration on 19 July 1989

a) The report of the Secretary-General of the United Nations

42. In his report of 7 December 1989 - Security Council document

S/21010 - on the United Nations Operation in Cyprus (for the period

1 June - 4 December 1989) the Secretary-General of the United Nations

referred to the demonstration on 19 July 1989 in the following terms

(at paras. 10-13):

"10. During the period under review, the number of cease-fire

violations remained at a low level. In Nicosia, the unmanning of

positions implemented in May 1989 (S/20663, para. 14) had a

positive effect and the number of incidents was the lowest since

1974. UNFICYP pursued its efforts to extend the unmanning to

other positions.

11. A serious situation, however, arose in July as a result of

a demonstration by Greek Cypriots in Nicosia. The details are as

follows:

(a) In the evening of 19 July , some 1,000 Greek Cypriot

demonstrators, mostly women, forced their way into the

United Nations buffer zone in the Ayios Kassianos area of

Nicosia. The demonstrators broke through a wire barrier

maintained by UNFICYP and destroyed an UNFICYP observation

post. They then broke through the line formed by UNFICYP

soldiers and entered a former school complex where UNFICYP

reinforcements regrouped to prevent them from proceeding

further. A short while later, Turkish Cypriot police and

security forces elements forced their way into the area and

apprehended 111 persons, 101 of them women;

(b) The Ayios Kassianos school complex is situated in the

United Nations buffer zone. However, the Turkish forces

claim it to be on their side of the cease-fire line. Under

working arrangements with UNFICYP, the Turkish Cypriot

security forces have patrolled the school grounds for

several years within specific restrictions. This patrolling

ceased altogether as part of the unmanning agreement

implemented last May;

(c) In the afternoon of 21 July, some 300 Greek Cypriots

gathered at the main entrance to the United Nations

protected area in Nicosia, in which the United Nations

headquarters is located, to protest the continuing

detention by the Turkish Cypriot authorities of those

apprehended at Ayios Kassianos. The demonstrators, whose

number fluctuated between 200 and 2,000, blocked all United

Nations traffic through this entrance until 30 July, when

the Turkish Cypriot authorities released the last two

detainees;

(d) The events described above created considerable

tension in the island and intensive efforts were made, both

at United Nations Headquarters and at Nicosia, to contain

and resolve the situation. On 21 July, I expressed my

concern at the events that had taken place and stressed

that it was vital that all parties keep in mind the purpose

of the United Nations buffer zone as well as their

responsibility to ensure that that area was not violated.

I also urged the Turkish Cypriot authorities to release

without delay all those who had been detained. On 24 July,

the President of the Security Council announced that he had

conveyed to the representatives of all the parties, on

behalf of the members of the Council, the Council's deep

concern at the tense situation created by the incidents of

19 July. He also stressed the need strictly to respect the

United Nations buffer zone and appealed for the immediate

release of all persons still detained. He asked all

concerned to show maximum restraint and to take urgent

steps that would bring about a relaxation of tension and

contribute to the creation of an atmosphere favourable to

the negotiations.

12. During the period under review, there were three other

occasions on which Greek Cypriot demonstrators entered the United

Nations buffer zone.

...

13. The problem posed by demonstrators who violate the United

Nations buffer zone has been the subject of numerous contacts at

all levels between the United Nations and the Government of

Cyprus ... In those contacts the United Nations made clear that

it was obliged, under the UNFICYP mandate, to oppose activities

in the buffer zone that were bound to provoke the other side and

that entailed the risk of incidents. The Untied Nations pointed

out that UNFICYP was neither mandated nor organized to assume

responsibilities that fell within the competence of the civilian

authorities. Accordingly, the United Nations expected the

Government to give clear guidance to the population and to ensure

that the police took effective measures to prevent demonstrators

from entering the United Nations buffer zone."

b) Witnesses

43. The evidence of the persons heard as witnesses by three Delegates

of the Commission (cf. para. 18 above) may be summarised as follows:

aa The first applicant

44. The first applicant, when heard as a witness, stated that, when

proceeding to the derelict church of Saint George in the neutral zone,

he saw that the barbed wire had been removed. He was greeted by two

UNFICYP soldiers and entered the church through a breach in the ruins

next to the main door which was sealed. The congregation in the church

was attacked by armed forces, speaking Turkish and bearing the insignia

of the Turkish army, and by Turkish Cypriot police speaking Turkish and

Greek. The second applicant was hit with clubs. They pulled at his

beard and kicked him on the legs. The first applicant was hit at his

headdress, which fell on the floor. When he bent to pick it up they

kicked him with their knees and hit him with their clubs. That left

marks on him which disappeared. His spectacles fell off. A policemen

twisted his hand, forcing him to advance to the bus. On his way he was

insulted and spat at by civilians. One civilian gave him a punch on the

right ear, causing an injury later seen by a Turkish doctor in the

prison; his spectacles fell off. The wound, which he showed to a doctor

in prison, closed after about five days. When interviewed on television

while in prison he declared: "They grossly ill-treated us when we were

arrested, so we can't complain of our treatment in prison."

bb The second applicant

45. The second applicant, when heard as a witness, stated that the

congregation was attacked by police forces followed by soldiers wearing

camouflage uniforms which had no distinctive insignia showing whether

they came from Turkey. While people were arrested outside the church

the first applicant said to the women in the church they should not be

afraid, no arrests would be made in the church. The second applicant

stood with outstretched arms in front of the women in the church in

order to give them a chance to leave. He was beaten with electrified

clubs and insulted. They pulled his beard and tore out hairs, threw him

to the floor, kicked him and tore his outer robe and trampled on his

hat. After about ten minutes they managed to tear him away from the

women and to break his resistance. On his way to the bus he was

insulted and spat at by civilians. A dark-skinned soldier wearing

camouflage uniform punched him in the face and his spectacles fell off.

His feet were swollen from the kicks received and he could neither wear

shoes nor walk nor lie down in bed. For a long time thereafter he had

a lump on his left leg. He complained to the Turkish interrogator and

to UNFICYP of the treatment received and asked the doctor for medicine.

cc Witnesses proposed by the applicants

(1) Witness A. Moysseos

46. The witness, referring to photographs he had taken of the

incident on 19 July 1989, stated that Turkish soldiers and police

intervened. The soldiers were in camouflage uniforms like those worn

by UNFICYP. The police wore khaki uniforms like those worn by the Greek

Cypriot police.

(2) Witness A. Panayotou

47. The witness, Chief Inspector of the Cypriot Police, identified

several persons in camouflage uniforms, appearing on photographs of the

incident on 19 July 1989, as members of the Turkish army. He referred

to a badge on the side of their berets and to paratroopers' insignia

worn by one of these persons. He stated that the control posts on the

northern side of the demarcation line in Nicosia were manned by Turkish

Cypriots.

(3) Witness M. Papadopoulou

48. The witness, President of GODEK (cf. para. 29 above), stated that

the demonstration on 19 July 1989 was peaceful. The demonstrators were

unarmed. Their only weapons were a Cypriot flag symbolising their state

and a Greek flag symbolising their identity. The witness could not say

whether those arresting her were Turkish Cypriots or Turks from Turkey.

She was hit with electrified clubs. They were still hitting the second

applicant when they put him on the bus.

(4) Witness P. Constantinou

49. The witness, a journalist, stated that Turkish soldiers, and

Turkish Cypriot police intervened on 19 July 1989. They were wearing

different uniforms and he could not tell exactly what they were. Inside

the derelict church everyone was trying to avoid the blows of the Turks

and there was a dense crush. Turks grabbed the second applicant, cursed

him, spat at him, pulled him by the beard, tore his robes and dragged

him along. The first applicant was treated in the same way. The witness

received a blow with an electrically charged club. At the back of the

church there was a door which was boarded up. The women who were behind

the church managed to break down the door and to make an opening in it

through which some women in the church managed to escape.

(5) Witness Dr. A. Constantinides

50. The witness, a surgeon, stated that he was present on

19 July 1989 to provide medical assistance. Soldiers in camouflage

uniform and policemen intervened. He was ill-treated. He later saw the

applicants in prison. The first applicant had a haematoma and a crushed

injury to his right temple region coming down to his right ear. The

second applicant had obvious injuries inside his beard caused by two

types of violence: one was the haemorrhages in the roots of the hair,

small haemorrhages and small reaction of the hair; this could have been

caused only by pulling of the beard. The second type of injury was wide

bruises, which could have been caused by hitting with blunt

instruments. He also had a large haematoma over his left tibia which

could have been caused by kicking or hitting with a blunt instrument.

(6) Witness A. Panayi

51. The witness, a worker, stated that Turkish Cypriot police

addressing her in Greek and soldiers in camouflage uniform speaking

Turkish intervened on 19 July 1989. She was hit with an electrically

charged club. The second applicant was hit and spat at. They pulled his

beard, threw him to the ground and kicked him.

(7) Witness C. Souglidou

52. The witness stated that, during the peaceful demonstration on

19 July 1989, Turkish soldiers and policemen intervened when the United

Nations forces withdrew. They used electrified clubs. The second

applicant stretched out his arms to protect the women. The Turks hit

him, pulled his beard and threw him to the floor. When the

demonstrators were taken to the bus the security forces neither

restrained nor encouraged the aggressive crowd.

(8) Witness K. Filaniotou

53. The witness stated that the second applicant was beaten and his

robes were torn by the soldiers and police forces who intervened during

the peaceful demonstration on 19 July 1989. She later saw the

Archimandrite holding a tuft of hair from his beard.

(9) Witness E. Tryphonos

54. The witness stated that no United Nations forces were present

when she arrived at the area of the demonstration. The intervening

forces used electrified clubs. They hit the witness and the second

applicant.

dd Witnesses proposed by the respondent Government

(1) Witness H. Yücelen

55. The witness, a retired police officer, stated that he was on duty

on 19 July 1989, wearing a normal police uniform without weapons or

clubs. Police forces in riot gear, police forces of the mobile unit and

soldiers of the commando unit of the Security Forces of Northern Cyprus

in camouflage uniforms as well as infantry of the Security Forces were

also present. Turkish Cypriot soldiers are posted in the inhabited

areas, Turkish soldiers in the uninhabited areas. Army commandos from

Northern Cyprus and from Turkey wear the same camouflage uniform.

56. The witness further stated that he proceeded with his team of

20 unarmed policemen towards the demonstrators, an angry crowd

assembled in the courtyard under a big Greek flag and a Cypriot flag.

Ten or twelve Canadian UNFICYP soldiers, linking arms and facing the

witness, were swaying, trying to hold back that crowd. The witness said

to one of the Canadians that the demonstrators should withdraw. The

Canadian replied "Give me a minute's chance". The witness warned the

demonstrators to leave the area. A United Nations speaker told the

UNFICYP soldiers "Let the police do their job". About twenty men of the

police mobile unit intervened, followed by other forces. Some of the

UNFICYP soldiers could get away, others came into conflict with the

advancing police. About 40 demonstrators were then arrested by the

police and many fled. The arrest operation was interrupted to give

those retreating a chance to leave. Half an hour later the witnesses

ordered the arrest of those persons - between 100 and 150 - who were

still in the courtyard or the church and who refused to comply with his

order to leave. In the tightly packed church no clubs could be used.

The applicants were not beaten. The witness was present at the first

applicant's arrest and saw the second applicant being taken away. Many

of the demonstrators escaped through a hole in the church wall.

(2) Witness E. Çetinsel

57. The witness, a Land Register Official, produced a map of the site

of the incident of 19 July 1989.

(3) Witness E. Merttürk

58. The witness, Chief Police Inspector in Northern Cyprus, stated

that 98 women and ten men were arrested on 19 July 1989. The following

objects were found in bags of the demonstrators: five wire-cutters,

four pairs of gloves, two bread knives, two iron saw blades, a screw-

driver, a hammer and a chisel. He referred to a photograph showing the

cutting of a barbed wire and stated that it had not been possible to

determine whether any of the arrested persons had used these

instruments in getting through the barbed wire.

(4) Witness R. Cantas

59. The witness, Chief Police Inspector in Northern Cyprus at the

relevant time, stated that the Director General of Police is under the

authority of the Prime Minister. For certain activities the police

force receives instructions from the Commander of the Security Forces

who is also under the authority of the Prime Minister. At Basaran

Sports Hall (cf. para. 34 above) the handbags of arrested demonstrators

were searched in front of UNFICYP. They contained wire-cutters, knives,

special gloves, batteries and other objects. He noticed no injuries on

the arrested persons.

(5) Witness E. Nasit

60. The witness, a Captain of the Turkish Cypriot Security Forces who

graduated from the Military College in Turkey, produced a maquette of

the site of the incident of 19 July 1989. He stated that the Turkish

Cypriot Security Forces are on duty in all inhabited areas. They are

under the command of a General detached from Turkey under contract -

the same system is practised in southern Cyprus. Under the unmanning

agreement the Turkish Cypriot soldiers were withdrawn but their flags

and guard posts were to stay in position. Army commandos from Northern

Cyprus and from Turkey wear the same camouflage uniform for

intelligence purposes so that their respective locations are not known.

61. The witness further stated that on 19 July 1989 the Turkish

Cypriot police dealt with the Greek Cypriot demonstrators, who had

entered the buffer-zone and the demilitarised part of the Turkish

sector. The demonstrators overturned barbed wire barriers, passed the

UNFICYP barricade and attacked the sentry boxes. They broke down gates

and cut railings and barbed wire. UNFICYP - altogether about 30 people

in the area - were unable to evacuate the Greek Cypriot demonstrators.

The Turkish Cypriot soldiers controlled the Turkish crowd that came

from the other side and assisted in keeping the area secure. The

witness protected the applicants against the Turkish crowd. He saw no

injuries on the applicants. There were no Turkish armed forces in the

area of the incident; some may have been elsewhere in or near Nicosia.

On photographs of soldiers in camouflage uniforms, he could recognise

Turkish Cypriots whom he knew.

(6) Witness V. Karabudak

62. The witness, Chief Inspector and Commander of the mobile forces

of the Turkish Cypriot police, stated that he is under the authority

of the Director General of Police. The Director General comes under the

authority of the Prime Minister or, for joint activities, under the

authority of the Commander of the Security Forces. The mobile forces

of the police and a special unit of the Security Forces do joint

training and exercises. Where necessary the mobile forces receive

support from the special unit.

63. The witness further stated that on 19 July 1989 he acted under

the order of the Director General. He and his team of 20 men were

wearing camouflage uniforms. They had infantry rifles, bayonets and

sub-machine guns and intervened jointly with Mr. Yücelen's police team

(cf. para. 56 above), which made the arrest. The Turkish Cypriot

soldiers stood in reserve, no Turkish soldiers were present. Army

commandos from Northern Cyprus and from Turkey wear the same camouflage

uniform. The witness saw the applicants' arrest in the derelict church.

There was a tremendous confusion. People were pushing and shoving, some

were injured in the crush. A number of demonstrators resisted their

arrest. They sat on the ground and kicked and hit out at police

officers. The only force used was what was needed to break this

resistance. As far as the witness could see, no clubs were used. The

witness ordered members of his team to protect the applicants; no

violence was used against them.

(7) Witness A. Sait

64. The witness, Chief Public Prosecutor, stated that he received no

complaint of ill-treatment from the applicants. He further stated that

an offence committed by a member of the Turkish armed forces in Cyprus

against a citizen of the Turkish Republic of Northern Cyprus on its

territory would be prosecuted in the courts of this republic.

(8) Witness H. Önen

65. The witness, a Senior Prosecutor at the relevant time and in

charge of the applicants' trial, stated that he saw no injuries on the

first applicant, who was wearing his headdress, nor on the second

applicant. No complaint was made. The first applicant declared in

court: "We have nothing to say to the court of a state we do not

recognise."

(9) Witness G. Erönen

66. The witness, President of the District Court, stated that the

judicial system in the "Turkish Republic of Northern Cyprus" is based

on the English system of procedure and evidence as it stood in 1963.

The applicants looked reasonably healthy and did not mention any injury

when she saw them in court. They did not invoke the Convention. The

courts do not apply the Convention as such, but most of its articles

are embodied in the constitution of the "Turkish Republic of Northern

Cyprus".

(10) Witness K. Demir

67. The witness, Director of the Central Prison, stated that he did

not notice any injuries on the applicants and they did not complain of

any. The applicants arrived in the afternoon of 20 July 1989 and were

examined by a doctor the following day. No injuries were recorded. The

applicants were visited by UNFICYP every day and by the Red Cross. A

doctor came to the prison every day. The witness submitted the prison

records.

(11) Witness Y. Özkum

68. The witness, an officer of the "Police General Directorate of the

Turkish Republic of Northern Cyprus", stated that he saw no signs of

any injury when he saw the applicants in court. They were in very good

health.

c) Other evidence

69. The parties have submitted video films (cf. para. 20 above) and

photographs of the incident on 19 July 1989 (cf. paras. 44, 46, 47, 58

and 61 above and Appendix III to this Report), a maquette (cf. para. 60

above) and maps of the site (cf. para. 57 above) and further documents.

2. Evidence concerning the applicants' detention and the

proceedings against them

a) Witnesses

70. The evidence of the persons heard as witnesses (cf. para. 18

above) may be summarised as follows:

aa The first applicant

71. The first applicant, when heard as a witness, confirmed the

submissions made in his application (see paras. 33, 35, 37, 39 and 40

above).

bb The second applicant

72. The second applicant, when heard as a witness, confirmed the

submissions made in his application (see paras. 33, 35, 37, 39 and 40

above).

cc Witnesses proposed by the applicants

(1) Witness Dr. A. Constantinides

73. The witness (cf. para. 50 above) stated that no medical

assistance was provided at Pavlides Garage.

(2) Witness E. Tryphonos

74. The witness (cf. para. 54 above) stated that, during her

detention, her request for permission to attend a mass to be held by

the first applicant was refused by the prison authorities. She could

hear the voice of the first applicant until the guards turned on the

radios.

dd Witnesses proposed by the respondent Government

(1) Witness E. Merttürk

75. The witness (cf. para. 58 above) stated that, on 19 July 1989 at

"Basaran Sports Hall", he interrogated the arrested demonstrators.

(2) Witness R. Cantas

76. The witness (cf. para. 59 above) stated that members of UNFICYP

were present when the interrogations were carried out by the Police at

"Basaran Sports Hall".

(3) Witness A. Sait

77. The witness (cf. para. 64 above) stated that he ordered the

investigation and the proceedings against the applicants. Most of the

time the applicants were under observance by UNFICYP. The courts of the

"Turkish Republic of Northern Cyprus" are also competent to try Turkish

soldiers who commit crimes in Northern Cyprus.

(4) Witness H. Önen

78. The witness (cf. para. 65 above) stated that he was in charge of

the proceedings against the applicants. He applied for their detention

on remand for three days, but the judge authorised such detention only

for two days.

(5) Witness G. Erönen

79. The witness (cf. para. 66 above) described the system of criminal

procedure in the "Turkish Republic of Northern Cyprus" and stated that,

at their trial, the applicants were granted the rights of defence.

(6) Witness K. Demir

80. The witness (cf. para. 67 above) gave evidence as to the

applicants' detention in prison and submitted a copy of the prison

register. He stated that the applicants could exercise their religion

individually. However, like all other detainees, they were not entitled

to conduct religious services. They were seen by a doctor every day and

granted a number of privileges, e.g. concerning visits, prison uniforms

and prison discipline.

b) Other evidence

81. The respondent Government have submitted photographs and further

documents (cf. para. 80 above).

C. The relevant domestic law

1. Procedural law

82. Criminal Procedure Law, Chapter 155, Section 14 (legislation

enacted in Cyprus under British rule and still in force today) states:

"(1) Any officer may, without warrant, arrest any

person -

...

(b) who commits in his presence any offence

punishable with imprisonment;

(c) who obstructs a police officer, while in the

execution of his duty ..."

2. Substantive law relied on by the respondent Government

83. Aliens and Immigration Law (1952), Section 12

"(1) No person shall enter or leave the Colony except

through an approved port.

(2) A person entering the Colony by sea shall not disembark

without the consent of the immigration officer ...

(3) Every person entering the Colony as a passenger by air

shall forthwith present himself in person to the nearest

immigration officer.

...

(5) Any person who contravenes or fails to observe any of

the provisions of subsections (1), (2), (3) or (4) of this

section shall be guilty of an offence and shall be liable

to imprisonment for a term not exceeding six months or to

a fine not exceeding one hundred pounds or to both such

imprisonment and fine."

84. Prohibited Military Areas Decree of 1979

(translation)

"Section 3: Definitions

a. Prohibited military areas:

(1) Military area No. 1:

This area is situated between the frontier (contact line)

and the line picked out by the markings placed at a

distance of 500 metres from the frontier (contact line).

..."

"Section 9

... Any person who enters a prohibited military area without

authorization, or by stealth, or fraudulently, shall be tried by

a military court in accordance with the Military Offences Act;

those found guilty shall be punished."

D. Agreement on Unmanning of Positions in Sensitive Areas

in Nicosia (1989)

85. The origin of this agreement has been described in the following

terms (report of the Secretary-General of the United Nations of

31 May 1989 - Security Council document S/20663 - on the United Nations

Operation in Cyprus, for the period 1 December 1988 - 31 May 1989, at

para. 14):

"14. In Nicosia, where the troops of both sides are in close

proximity to each other, UNFICYP continued its efforts to reduce

the dangers inherent in this situation. Following the shooting

of a Turkish Cypriot soldier on 11 December 1988 ..., UNFICYP

proposed to both sides that they unman their forward military

positions and cease patrolling in three sensitive areas in

Nicosia, with a view to keeping their troops further apart and

thereby reducing the risk of incidents. After a series of

discussions between UNFICYP and each of the two sides, the

proposal was accepted by both. It was subsequently implemented

on 17 May 1989."

86. The text of the agreement is as follows:

"1. The military forces in Nicosia will move further apart in

sensitive areas by unmanning the positions and ceasing patrolling

in the areas shown on the two attached maps. There will be no

change to the current cease-fire lines and the existing positions

need not be dismantled.

2. All personnel, military equipment, weapons and ammunition will

be removed.

3. Flags will remain in their current positions.

4. Maintenance work and maintenance checks of the unmanned

positions by the respective Force will take place using the

current access points and routes. Under normal circumstances,

maintenance in the vacated areas will be conducted during seven

consecutive days within a three month period. Maintenance checks

to identify the maintenance requirement may be carried out by two

officers once every three weeks. These checks will last no longer

than half a day. To ensure proper co-ordination, each Force will

provide at local level relevant details to UNFICYP, at least

24 hours in advance, in accordance with the current procedures.

Emergency maintenance, including replacing damaged flags, can be

conducted as necessary with one hour's notice to UNFICYP.

5. UNFICYP will observe the unmanned areas from the present UN

observation posts and patrol routes in the Buffer Zone. UNFICYP

will advise both Forces of new observation posts, patrol routes

and additional lighting which it may need to ensure adequate

observation.

6. UNFICYP will investigate complaints by either Force concerning

violations of this agreement. Both Forces will co-operate with

UNFICYP in the investigation. Should it be necessary to view the

location in question during the course of the investigation,

UNFICYP will request access to the area in accordance with

established practices. UNFICYP will convey its findings to both

Forces. In case a violation persists, the other Force will be

free to take proportionate action in the area concerned.

7. The above agreement will be adhered to by both Forces in good

faith. The agreement is without prejudice to the positions and

claims of the parties concerned regarding the areas in question."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

87. The Commission has declared admissible the applicants' complaints

concerning their arrest on 19 July 1989 and their subsequent detention

and the proceedings against them. In its decision on the admissibility

(see below p. 84, paras. 61 and 62) the Commission noted the

applicants' claim that the acts complained of "were carried out by

Turkish military forces stationed in the northern part of Cyprus, or

by forces acting under their authority", and the respondent

Government's statement "that Turkish forces did not intervene during

the events of 19 July 1989 and had nothing to do with those events".

B. Points at issue

88. The Commission considers that the issues now to be determined

are:

1. with regard to the applicants' arrest:

a) whether there has been a violation of Article 3

(Art. 3) of the Convention in respect of the first

applicant;

b) whether there has been a violation of Article 3

(Art. 3) of the Convention in respect of the second

applicant;

c) whether there has been a violation of Article 8

(Art. 8) of the Convention in respect of the first

applicant;

d) whether there has been a violation of Article 8

(Art. 8) of the Convention in respect of the second

applicant;

e) whether there has been a violation of Article 5

(Art. 5) of the Convention in respect of the first

applicant;

f) whether there has been a violation of Article 5

(Art. 5) of the Convention in respect of the second

applicant;

2. whether the applicants' detention after their arrest and

the proceedings against them were in violation of the

Convention;

3. whether there has been a violation of Article 13 (Art. 13)

of the Convention.

89. The applicants have also invoked Article 1 (Art. 1) of the

Convention, but the Commission considers that a violation of this

article cannot be alleged in proceedings under Article 25 (Art. 25)

(cf. No. 5493/72, Dec. 4.4.74, Collection 45 p. 23 at pp. 52 f.).

C. The arrest of the applicants

1. Imputability

90. The applicants submit that, given the occupation of northern

Cyprus by Turkey, the activities of the authorities in northern Cyprus

are imputable to Turkey, irrespective of whether they are Cypriot

authorities or a lawful dependency of the Government of Turkey. Turkish

involvement is not a necessary but a sufficient condition. The

applicants consider that they have submitted evidence of direct Turkish

involvement.

91. The respondent Government submit that no involvement of Turkish

military forces in the border incident on 19 July 1989 has been

established and that any act of jurisdiction exercised by the

authorities of the "Turkish Republic of Northern Cyprus" is

attributable to that de facto regime.

92. The Commission has examined whether the acts complained of are

imputable to Turkey, either on the ground that Turkish armed forces

were directly involved in the arrest of the applicants, or on the

ground that this operation was controlled by Turkey.

93. As regards direct involvement of Turkish armed forces in the

arrest of the applicants, the Commission notes that the Secretary-

General of the United Nations, in his report on the incident at

para. 11(a), stated that "Turkish Cypriot police and security forces

elements forced their way into the area", and that Turkish armed forces

are not mentioned in this context (see para. 42 above). Witnesses

proposed by the applicants (see para. 47 above) and by the respondent

Government (see para. 55 above) have indicated that Turkish Cypriot

soldiers are posted in inhabited border areas such as Nicosia.

According to a witness proposed by the respondent Government, Turkish

soldiers are stationed in the uninhabited border areas (see para. 55

above).

94. There is conflicting evidence by witnesses as to the presence of

Turkish soldiers on the site of the demonstration. Thus the first

applicant has stated that he was attacked by armed forces bearing the

insignia of the Turkish army and by Turkish Cypriot police (see

para. 44 above). The second applicant has stated that he was attacked

by police forces followed by soldiers wearing camouflage uniforms which

had no distinctive insignia showing whether they came from Turkey (see

para. 45 above). A witness, who was not present at the incident, has

identified several persons in camouflage uniforms, appearing on

photographs taken at the incident, as members of the Turkish army.

Three witnesses proposed by the respondent Government have stated that

army commandos from Northern Cyprus and from Turkey wear the same

camouflage uniforms (see paras. 55, 60 and 63 above). This is done for

intelligence purposes (see para. 60). One of these witnesses stated

that no Turkish forces were in the area of the incident on

19 July 1989; on photographs of soldiers in camouflage uniforms, taken

on that day, he could recognise Turkish Cypriots whom he knew (see

para. 61 above).

95. The Commission notes the admitted practice that for intelligence

purposes Turkish and Turkish Cypriot soldiers wear the same camouflage

uniforms. It considers that this practice constitutes a deliberate

tactic of disguise aimed at preventing the public from distinguishing

between actions by Turkish and actions by Turkish Cypriot soldiers. The

Commission must take this practice into account when determining the

responsibility of Turkey for the applicants' arrest in the light of the

above conflicting evidence as to the presence of Turkish soldiers on

the site of the demonstration, given the uncontested presence of

Turkish Cypriot soldiers in that area.

96. As regards overall control of the arrest operation by Turkey, the

Commission recalls that, in its decision on the admissibility (see

below p. ..., para. 32), it has held that the application of the

Convention extends beyond national frontiers of the Contracting States

and includes acts of State organs abroad. The term "jurisdiction" in

Article 1 (Art. 1) is not equivalent to or limited to the national

territory. The High Contracting Parties are bound to secure the rights

and freedoms defined in Section 1 to all persons under their actual

authority and responsibility, whether that authority is exercised

within their territory or abroad. Authorised agents of a State,

including armed forces, not only remain under its jurisdiction when

abroad but also bring any other persons "within the jurisdiction" of

that State to the extent that they exercise authority over such

persons.

97. The Commission notes that Turkish armed forces have entered

Cyprus and that they operate under the direction of the Turkish

Government and under established rules governing the structure and

command of these armed forces. It follows that these armed forces are

authorised agents of Turkey and that they bring any other persons in

Cyprus "within the jurisdiction" of Turkey, in the sense of Article 1

(Art. 1) of the Convention, to the extent that they exercise control

over such persons. Therefore, insofar as these armed forces, by their

acts or omissions, affect such persons' rights or freedoms under the

Convention, the responsibility of Turkey is engaged (cf. ibid.).

98. The Commission further recalls that the Government of the

Republic of Cyprus have since 1974 been prevented from exercising their

jurisdiction in the north of the island. This restriction is due to the

presence of Turkish armed forces in northern Cyprus (cf. para. 33 of

the decision on the admissibility in the present case and No. 18270/91,

Dec. 8.10.91, An v. Cyprus). The respondent Government submit that the

presence of their armed forces in the "Turkish Republic of Northern

Cyprus" is justified both under the Treaty of Guarantee of 1960 and by

the wish of the "Turkish Republic of Northern Cyprus".

99. The Commission is not called upon to pronounce on the validity

of either of these alleged justifications under general international

law. It considers that, in fact, the actual control in the border area

is exercised by Turkish armed forces. This does not mean that Turkish

armed forces are present all along the buffer-zone in Cyprus. It is

sufficient for such overall control that they are either stationed

there or capable to intervene.

100. The Commission notes in this connection that Turkish armed forces

are normally stationed in uninhabited border areas. It appears that,

in the inhabited area of Nicosia close to the site of the

demonstration, Turkish Cypriot soldiers were on guard on 19 July 1989.

Turkish armed forces, if not present in that area, were elsewhere in

or near Nicosia (cf. para. 61 above) and could thus intervene.

101. The Commission further notes that the Turkish Cypriot Security

Forces are under the command of a General detached from Turkey

(cf. para. 60 above).

102. In the light of the above elements the Commission, recalling the

tactic of disguise pursued in the use of camouflage uniforms by Turkish

and Turkish Cypriot soldiers (cf. para. 96 above) and noting the

overall control exercised by Turkey in the border area (cf. para. 100

above), finds that the applicants' arrest in the border area on

19 July 1989 is imputable to Turkey.

2. Articles 3 and 8 (Art. 3,8) of the Convention

103. With regard to their treatment during their arrest the applicants

allege breaches of Article 3 (Art. 3) of the Convention which provides

as follows:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

104. The Commission has considered the applicants' complaint

concerning their treatment during their arrest also under Article 8

(Art. 8) of the Convention (cf. para. 20 above), which provides as

follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

105. In the present case the Commission is confronted with different

versions as regards both the context and the nature of the treatment

to which the applicants were subjected in the course of their arrest.

106. The applicants claim that the demonstration on 19 July 1989 was

peaceful one and that their treatment was brutal. They submit that in

the course of their arrest Turkish forces fell upon them pulling them

by their robes, their beards, hitting them, kicking them, spitting on

them, swearing at them and dragging them on the ground. The applicants

were led by force into the Turkish occupied area of Nicosia through a

hostile mob that inflicted further blows and insults upon them.

107. The respondent Government state that the demonstration was

designed as an attack against the buffer-zone and the territory of the

"Turkish Republic of Northern Cyprus". During the arrest operation only

the necessary force was used. The applicants were treated properly.

There was no ill-treatment.

108. The Commission has considered the following elements:

a) The character of the demonstration

109. As regards the nature and scope of the demonstration, the

Commission notes the evidence contained in the report of the Secretary-

General of the United Nations, who stated that a "serious situation"

arose "as a result" of this demonstration and described its details as

follows (cf. para. 42 above):

"In the evening of 19 July, some 1,000 Greek Cypriot

demonstrators, mostly women, forced their way into the

United Nations buffer zone in the Ayios Kassianos area of

Nicosia. The demonstrators broke through a wire barrier

maintained by UNFICYP and destroyed an UNFICYP observation

post. They then broke through the line formed by UNFICYP

soldiers and entered a former school complex where UNFICYP

reinforcements regrouped to prevent them from proceeding

further. A short while later, Turkish Cypriot police and

security forces elements forced their way into the area and

apprehended 111 persons, 101 of them women;"

110. In the light of the above report, of a video film (cf. para. 20

above) and of photographs submitted by the respondent Government

(cf. para. 58 above), the Commission accepts as substantially correct

the description of the demonstration by witnesses proposed by the

respondent Government (cf. paras. 56 and 61 above). The Commission

finds that the demonstration on 19 July 1989 was violent, that it broke

through United Nations defence lines and that it constituted a serious

threat to peace and public order on the demarcation line in Cyprus.

This danger was increased by the arrival on the scene of Turkish

Cypriot counter-demonstrators coming from the north of Nicosia.

b) The situation at the place of the applicants' arrest

111. The report of the Secretary-General of the United Nations does

not describe the applicants' arrest.

112. The video films and the photographs submitted do not show the

situation in the derelict church at the time of the applicants' arrest.

Insofar as they provide evidence as to the arrest of other

demonstrators, the Commission finds no clear indication of ill-

treatment.

113. According to a witness proposed by the applicants, there was "a

dense crush" in the derelict church at the time of the applicants'

arrest (see para. 49 above). Similarly, two witnesses proposed by the

respondent Government described the place as "tightly packed" (see

para. 56 above) and stated that people were "pushing and shoving" (see

para. 63 above).

114. It further appears that a number of demonstrators, including the

second applicant (cf. his statement at para. 45 above), resisted their

arrest (cf. para. 63 above), and that the mobile police forces,

intervening in riot gear, broke their resistance (cf. paras. 45 and 63

above).

115. In this context there was in the Commission's view a high risk

that demonstrators, including the applicants, would be treated roughly,

and even suffer injuries, in the course of the arrest operation.

c) The treatment of the applicants during their arrest -

evaluation of the evidence

aa General

116. The Commission notes the conflicting evidence: on the one hand,

the applicants' own statements (at paras. 44 and 45 above), the

statement of a witness, proposed by the applicants, that he saw marks

of their injuries (at para. 50 above) and the statements of other

witnesses proposed by the applicants (at paras. 48-50, 52-54 above);

on the other hand the statements by witnesses proposed by the

respondent Government that no injuries were inflicted (at paras. 56

and 63) and that no marks were noticed or recorded (at paras. 59

and 65-68).

117. The Commission considers that the applicants, like other

demonstrators heard as witnesses, must have been so deeply affected by

their arrest that their description of the arrest operation may be

somewhat exaggerated.

118. The Commission further considers that particular weight should

be given to the medical evidence of a witness proposed by the

applicants concerning findings he made when he saw the applicants in

prison after the arrest operation (see para. 50 above).

bb The first applicant

119. The above medical witness, a Greek Gypriot surgeon, stated that

the first applicant, when the witness saw him in prison, had a

haematoma and a crushed injury to his right temple region coming down

to his right ear (see para. 50 above).

120. The Commission accepts this evidence as correct. It considers,

however, that this injury was not inflicted by the police forces who

arrested the applicant, but by a Turkish Cypriot demonstrator

(cf. paras. 44 and 61 above). It has not been established that the

infliction of this injury by the demonstrator was deliberately

tolerated by the police forces.

cc The second applicant

121. The Commission notes the statement by the Greek Cypriot surgeon

that the second applicant, when the witness saw him in prison, had

obvious injuries inside his beard caused by two types of violence: one

was the haemorrhages in the roots of the hair, small haemorrhages and

small reaction of the hair; this could have been caused only by pulling

of the beard. The second type of injury was wide bruises, which could

have been caused by hitting with blunt instruments. The second

applicant also had a large haematoma over his left tibia which could

have been caused by kicking or hitting with a blunt instrument

(cf. para. 50 above).

122. The Commission further notes the second applicant's statement (at

para. 45 above) that he resisted arrest and that his resistance was

broken after about ten minutes, and the statements of several witnesses

proposed by the second applicant, that he was pulled by his beard (cf.

paras. 49 and 51-53 above).

123. The Commission considers that the second applicant has suffered

the injuries described by the Greek Cypriot surgeon (see para. 50

above).

124. In this connection, the Commission notes in particular the

medical evidence concerning the injuries suffered by the second

applicant in his beard (see para. 121 above).

125. The Commission considers the above injuries as established, both

as regard their nature and their cause.

d) Application of Article 3 (Art. 3) of the Convention to the

facts established

aa General

126. The Commission recalls that ill-treatment must attain a minimum

level of severity if it is to fall within the scope of Article 3

(Art. 3). The assessment of this minimum is, in the nature of things,

relative; it depends on all the circumstances of the case, such as the

nature and context of the treatment, the manner and method of its

execution, its duration, its physical or mental effects and, in some

instances, the sex, age and state of health of the victim (Eur. Court

H.R., Soering judgment of 7 July 1989, Series A no. 161, p. 39,

para. 100, with further references).

bb The first applicant

127. The Commission has found above (at para. 120) that the first

applicant was injured, but it has not been established that this

particular injury was deliberately caused by the police forces.

128. The Commission further considers that, during his arrest, the

first applicant was subjected by the police forces to very rough

treatment. However, in view of the character of the demonstration (cf.

paras. 108 ff. above) and the commotion that reigned at the place of

the arrest (cf. paras. 110 f. above), the Commission does not find that

this treatment reached the level prohibited by Article 3 (Art. 3) of

the Convention.

Conclusion

129. The Commission concludes by twelve votes to one that there has

been no violation of Article 3 (Art. 3) of the Convention as regards

the first applicant.

cc The second applicant

130. The Commission considers that, during his arrest the second

applicant was subjected by the police forces to very rough treatment.

However, in view of the character of the demonstration (cf.

paras. 108 ff. above), the commotion that reigned at the place of the

arrest (cf. paras. 110 f. above), and the second applicant's resistance

as described by himself (at para. 45 above), the Commission does not

find that this treatment reached the level prohibited by Article 3

(Art. 3) of the Convention.

Conclusion

131. The Commission concludes, by twelve votes to one, that there has

been no violation of Article 3 (Art. 3) of the Convention as regards

the second applicant.

e) Application of Article 8 (Art. 8) of the Convention to the

facts established

aa The first applicant

132. The Commission recalls that a person's "private life" includes

his physical integrity (cf. e.g. Eur. Court H.R., X and Y v.

the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11,

para. 22; No. 8239/78, Dec. 4.12.78, D.R. 16 p. 184 at p. 189;

No. 8278/78, Dec. 13.12.79, D.R. 18 p. 154; No. 10435/83,

Dec. 10.12.84, D.R. 40 p. 251).

133. The Commission has therefore examined whether the treatment to

which the first applicant was subjected during his arrest constituted

an "interference" with his right, under Article 8 (Art. 8), to respect

for his private life, which was not justified under para. 2 of that

Article (Art. 8-2).

134. The Commission considers that an arrest may affect the physical

integrity, and thus the private life, of the arrested person, However,

not every act or measure which may be said to affect adversely the

physical or moral integrity of a person necessarily gives rise to an

interference with the right to respect for private life (cf. Eur. Court

H.R., Costello-Roberts v. the United Kingdom judgment of 25 March 1993,

Series A no. 247-C, para. 36).

to which the applicant was subjected during his arrest did not attain

a level of severity which was sufficient to bring it within the ambit

of Article 3 (Art. 3).

136. Assuming, under Article 8 (Art. 8), that the first applicant's

arrest interfered with his private life, the Commission does not find

it established that this interference exceeded the limits of what in

the circumstances could reasonably be considered as "necessary", in the

interest of public safety and for the prevention of disorder, within

the meaning of second paragraph of this article.

Conclusion

137. The Commission concludes by nine votes to four that there has

been no violation of Article 8 (Art. 8) of the Convention as regards

the first applicant.

bb The second applicant

138. The Commission has held above (at para. 129) that the treatment

to which the second applicant was subjected during his arrest did not

reach the level prohibited by Article 3 (Art. 3) of the Convention.

139. The Commission considers that there may be circumstances of an

arrest in which Article 8 (Art. 8) can be regarded as affording a

protection which goes beyond that given by Article 3 (Art. 3) (cf. the

case-law referred to at para. 132 above and para. 36 of the

Costello-Roberts judgment loc.cit.).

140. The Commission recalls the special nature of the injury inflicted

on the second applicant by the pulling of his beard (cf. para. 124

above). It notes in this connection that the second applicant is a

priest of the Greek Orthodox Church and that it is customary for

priests of this church to wear a beard.

141. In these circumstances the Commission finds that the treatment

to which the second applicant was subjected during his arrest

interfered with his private life. The Commission further finds that the

violent pulling of the second applicant's beard cannot be accepted as

a means for breaking his resistance during his arrest nor as an

unavoidable side-effect of the arrest. This treatment can thus not

reasonably be considered as "necessary" for any of the purposes set out

in para. 2 of Article 8 (Art. 8-2).

Conclusion

142. The Commission concludes by seven votes to six that there has

been a violation of Article 8 (Art. 8) of the Convention as regards the

second applicant.

3. Article 5 para. 1 (Art. 5-1) of the Convention

143. With regard to their arrest the applicants allege breaches of

Article 5 para. 1 (Art. 5-1) of the Convention which provides as

follows:

"1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following

cases and in accordance with a procedure prescribed by law:

...

c. the lawful arrest or detention of a person effected

for the purpose of bringing him before the competent legal

authority on reasonable suspicion of having committed an

offence or when it is reasonably considered necessary to

prevent his committing an offence or fleeing after having

done so;

...

f. the lawful arrest or detention of a person to prevent

his effecting an unauthorised entry into the country or of

a person against whom action is being taken with a view to

deportation or extradition."

144. The applicants submit that they were not arrested "in accordance

with a procedure prescribed by law" and that none of the grounds of

lawful arrest envisaged in para. 1 of Article 5 (Art. 5-1) were

present. In particular, there was no reasonable suspicion of an offence

in the normal sence having been committed nor any necessity to prevent

the commission of such an offence or to prevent subsequent flight. The

alleged offences were of an artificial character relating to the

"frontiers" of an illegal entity. In any case the Turkish armed forces

and their agents had no authority to arrest the applicants in the

buffer-zone and the brutality employed contravened the underlying

principles of "legal arrest" under Article 5 (Art. 5).

145. The respondent Government submit that Article 5 para. 1

(Art. 5-1) was complied with. When arresting the applicants on the

territory of the "Turkish Republic of Northern Cyprus", the Turkish

Cypriot Police acted under the Criminal Procedure Law in force in

Cyprus (cf. para. 82 above) and used the powers conferred on them in

the context of the peace-keeping arrangements made by international

bodies. In the respondent Government's view the Commission is not

required to examine the validity or legitimacy of the legal system of

the "Turkish Republic of Northern Cyprus" but only the question whether

an effective legal system exists in that area. The arrest of the

applicants was justified both under sub-para. (c) and sub-para. (f) of

Article 5 para. 1 (Art. 5-1).

a) Deprivation of liberty "in accordance with a

procedure prescribed by law"

146. The Commission has examined whether the applicants were deprived

of their liberty "in accordance with a procedure prescribed by law",

as required by Article 5 para. 1 (Art. 5-1). It recalls that, on the

question whether an arrest is "lawful", including whether it complies

with "a procedure prescribed by law", the Convention refers back

essentially to national law and lays down the obligation to conform to

the substantive and procedural rules thereof. However, it requires in

addition that any deprivation of liberty should be consistent with the

purpose of Article 5 (Art. 5), namely to protect individuals from

arbitrariness (see Eur. Court H.R., Wassink judgment of

27 September 1990, Series A no. 185-A, p. 11, para. 24, with further

references).

147. As regards domestic law in Cyprus, the Commission notes that,

under Chapter 155, Section 14, para. 1, sub-paras. b and c of the

Criminal Procedure Law (cf. para. 82 above), any police officer may,

without warrant, arrest any person who commits in his presence any

offence punishable with imprisonment or who obstructs a police officer,

while in the execution of his duty.

148. The Commission further notes that the applicants were committing

the offence of unlawful entry (cf. paras. 83 f. above) and were

arrested by officers of the Turkish Cypriot Police, i.e. the police

force controlling the area of northern Cyprus.

149. Having regard to the above elements, the Commission finds that

the arrest of the applicants in Cyprus, by police officers acting under

Chapter 155, Section 14 of the Criminal Procedure Law, took place "in

accordance with a procedure prescribed by law", as required by

Article 5 para. 1 (Art. 5-1) of the Convention.

b) Justification of the arrest under Article 5

para. 1 (c) (Art. 5-1-c) of the Convention

150. Article 5 para. 1 (c) (Art. 5-1-c) of the Convention permits the

lawful arrest of a person effected for the purpose of bringing him

before the competent legal authority on reasonable suspicion of having

committed an offence.

151. As regards the requirement of "reasonable suspicion of having

committed an offence", the applicants argue that the alleged offences

were of an artificial character relating to the "frontiers" of an

illegal entity. The Commission finds that it is not in this connection

required to examine the status of the "Turkish Republic of Northern

Cyprus". It recalls that the demonstration on 19 July 1989, in the

course of which the applicants were arrested, constituted a violation

of the arrangements concerning the respect of the buffer-zone in Cyprus

(cf. para. 42 above). The criminal provisions under which the

applicants were charged (see paras. 40, 83 and 84 above) served to

protect this very area. This cannot be considered as arbitrary.

152. The Commission has finally considered the requirement of "lawful"

in Article 5 para. 1 (c) (Art. 5-1-c) which, as stated above (at

para. 126), refers essentially to national law. In this connection the

Commission has also examined whether the police officers arresting the

applicants acted ultra vires under international law and whether this

rendered the arrest operation unlawful under Article 5 para. 1 (c)

(Art. 5-1-c). The Commission here refers to its observations in the

Stocké case (Stocké v. Germany, Comm. Report 12.10.89, Eur. Court H.R.,

Series A no. 199, pp. 23 ff., paras. 161 ff.).

153. In this connection the Commission does not feel called upon to

resolve the dispute between the parties as to the status of the area

in which the applicants' arrest took place. It refers in this respect

to para. 11 sub-para. (b) of the report of the Secretary-General of the

United Nations (see para. 42 above) and to para. 6 of the Unmanning

Agreement of 1989 (see para. 86 above).

154. The Commission notes, however, that the arrest took place after

the demonstrators had broken through the defence line of the United

Nations (cf. para. 11 sub-para. (a) of the above Report of the

Secretary-General).

155. Given the scope and character of the demonstration on

19 July 1989 and the persistent violation of the buffer-zone by the

demonstrators who had broken through a wire barrier and a defence line

formed by UNFICYP soldiers, the Commission finds no indication that the

agents arresting the applicants acted ultra vires as regards the place

of the arrest, and that the applicants' arrest was therefore not

"lawful", under the domestic law of Cyprus, within the meaning of

Article 5 para. 1 sub-para. (c) (Art. 5-1-c).

156. The Commission therefore finds that the applicants' arrest was

justified under Article 5 para. 1 (c) (Art. 5-1-c).

c) Other issues under Article 5 para. 1 (Art. 5-1)

157. Having found that the applicants' arrest complied with Article 5

para. 1 (c) (Art. 5-1-c), the Commission does not consider it necessary

to examine whether it was also justified under Article 5 para. 1 (f)

(Art. 5-1-f), as claimed by the respondent Government.

158. The Commission has examined the treatment of the applicants

during their arrest under Articles 3 and 8 (Art. 3,8) of the Convention

(see paras. 104 ff. and 119 ff. above).

d) Conclusion

159. The Commission concludes by eight votes to five that there has

been no violation of Article 5 para. 1 (Art. 5-1) of the Convention as

regards the first applicant.

160. The Commission concludes by seven votes to six that there has

been no violation of Article 5 para. 1 (Art. 5-1) of the Convention as

regards the second applicant.

D. The applicants' detention and the proceedings

against them after their arrest on 19 July 1989

1. Imputability

161. The applicants submit that all activities of the authorities in

northern Cyprus are attributable to Turkey (cf. para. 90 above). Prior

to 1986 Turkey's mechanism for controlling the administration of the

area was its Cyprus Co-ordination Council. In 1986 Prime Minister Özal

announced the establishment of a technical committee to periodically

assess relations between Turkey and the "Turkish Republic of Northern

Cyprus". It appears that the area is administered through a committee

consisting of Mr. Denktash and three Turkish nationals, i.e., the

Turkish Ambassador and the Commanders of the Turkish and Turkish

Cypriot armed forces in Cyprus. Turkey controls the currency of

northern Cyprus. Two Turkish nationals were appointed Ministers (of

Commerce and Agriculture) in northern Cyprus in 1989. Offices of the

administration of the "Turkish Republic of Northern Cyprus" contain

departments of the Turkish Republic.

162. The respondent Government submit that the Turkish Cypriot

community is internationally recognised as one of the two components

of the Republic of Cyprus. United Nations resolutions have endorsed the

principle of the equal status of the two communities. The presence of

two independent administrations and jurisdictions in Cyprus dates from

1963/64, i.e., before the Turkish intervention in 1974. Since 1964 the

decisions governing the administration of the Turkish Cypriots have

been taken by the governmental institutions of the Turkish Cypriot

community. Proclamation of the "Turkish Republic of Northern Cyprus"

on 15 November 1983 merely recognised a de facto situation. Non-

recognition of a regime does not exclude that the State represented by

that regime satisfies the conditions of statehood. An international

tribunal may accept the existence of a state although the other party

to the dispute, or third states, do not recognise it. Recognition or

non-recognition of a community as a State has no legal effect on the

objective situation of that community. Through its democratic

institutions the "Turkish Republic of Northern Cyprus" exercises

complete sovereignty over the whole of its territory. The exercise of

public functions by Turkish nationals in Northern Cyprus is comparable

to the exercise of such functions by Greek nationals in Southern Cyprus

or to the exercise of judicial functions by French and Spanish judges

in Andorra (cf. Eur. Court H.R., Drozd and Janousek v. France and Spain

judgment of 26 June 1992, Series A no. 240, p. 31, para. 96).

163. The Commission has stated earlier, with regard to the "Turkish

Federated State" promulgated in northern Cyprus on 13 February 1975,

that the recognition by Turkey of that entity "does not ... affect the

continuing existence of the Republic of Cyprus as a single State and

High Contracting Party to the Convention; and that, consequently, the

'Turkish Federated State of Cyprus' cannot be regarded as an entity

which exercises 'jurisdiction', within the meaning of Article 1

(Art. 1) of the Convention, over any part of Cyprus". The Commission

then concluded "that Turkey's jurisdiction in the north of the Republic

of Cyprus, existing by reason of the presence of her armed forces there

which prevents exercise of jurisdiction by the (Cyprus) Government,

cannot be excluded on the ground that jurisdiction in that area is

allegedly exercised by the 'Turkish Federated State of Cyprus'". The

Commission added that this conclusion "does not prejudge the

imputability to Turkey of any particular violation of the Convention

which may be established in an examination of the merits of this

application" (No. 8007/77, Cyprus v. Turkey, Dec. 10.7.78, D.R. 13

p. 85 at p. 150).

164. The Commission also recalls the history of Cyprus and the bi-

communal character of the Republic of Cyprus as established in 1960

(Cyprus v. Turkey, Comm. Report 10.7.76, pp. 4 ff., paras. 6 ff.). In

particular, under the Constitution of Cyprus of 1960, executive power

was vested in a Greek Cypriot President (in 1960 Archbishop Makarios)

and a Turkish Cypriot Vice-President (Mr. Kütchük, succeeded by

Mr. Denktash). Decisions of the Council of Ministers, composed of seven

Greek and three Turkish Cypriots, were binding on the President and

Vice-President who could, however, exercise a veto in matters relating

to security, defence and foreign affairs. Of the members of the House

of Representatives 70% were to be elected from the Greek and 30% from

the Turkish Cypriot community, and the civil service was to consist of

70% Greek and 30% Turkish Cypriots (ibid. p. 5., para. 9).

165. The Commission further recalls that, in 1963, the administration

in Cyprus "ceased to function on a bi-communal basis"; that inter-

communal talks between the Greek-Cypriot community and the Turkish-

Cypriot community began under the auspices of the United Nations in

1968; that a coup d'état under the leadership of Greek officers took

place in Cyprus on 15 July 1974; that Turkish armed forces intervened

on 20 July 1974 and that a cease-fire line was agreed on the same day;

that the Foreign Ministers of Greece, Turkey and the United Kingdom,

at their First Geneva Conference on 30 July 1974, "noted the existence

in practice in the Republic of Cyprus of two autonomous

administrations, that of the Greek-Cypriot community and that of the

Turkish-Cypriot community"; that, the Second Geneva Conference having

been abortive, the Turkish forces on 14 August 1974 resumed their armed

action and that on 16 August a new cease-fire line was declared; that

on 13 February 1975 a constituent assembly set up by the Turkish

Cypriot community declared the area north of this demarcation line to

constitute a Turkish Federated State of Cyprus, and that on 8 June a

constitution for it was promulgated (see ibid. pp. 5-9, paras. 10-17,

and Appendix IV); and that the "Turkish Republic of Northern Cyprus",

proclaimed on 15 November 1983, has so far only been recognised by

Turkey.

166. In the light of the above elements the Commission has examined

whether the applicants' detention, and the proceedings against them,

in northern Cyprus, following their arrest on 19 July 1989, are

imputable to Turkey, either on the ground that Turkish armed forces in

Cyprus were directly involved or on the ground that these operations

were controlled by Turkey.

167. The Commission finds no indication of direct involvement of

Turkish armed forces in the applicants' detention, or the proceedings

against them, in northern Cyprus. It has therefore examined whether

these operations were controlled by Turkey.

168. The Commission has found above (at paras. 91 ff.) that, given the

overall control exercised by Turkish forces in the border area, the

applicants' arrest in that area is imputable to Turkey.

169. The Commission considers that the factual situation is different

as regards the subsequent detention of the applicants and the

proceedings against them. The Commission has found no indication of

control exercised by Turkish authorities over the prison administration

or the administration of justice by Turkish Cypriot authorities in the

applicants' case. It further notes, as regards the legal basis of the

applicants' detention and the proceedings against them, that the Prison

Rules applied were enacted in Cyprus under British rule in 1959 (cf.

para. 38 above) and that the judicial system in northern Cyprus is

based on the English system of procedure and evidence as it stood for

the whole of Cyprus in 1963 (cf. para. 66 above).

170. The Commission, having regard to the developments described above

and finding no indication of direct involvement of Turkish authorities

in the applicants' detention, and the proceedings against them, after

their arrest on 19 July 1989, sees no basis under the Convention for

imputing these acts to Turkey.

2. Conclusion

171. The Commission concludes by eight votes to five that the

applicants' detention after their arrest and the proceedings against

them were not in violation of the Convention.

E. Article 13 (Art. 13) of the Convention

172. The applicants allege breaches of Article 13 (Art. 13) of the

Convention which provides as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

173. The Commission has found above (at para. 171) that the

applicants' detention and the proceedings against them are not

imputable to Turkey. It follows that no issue arises under Article 13

(Art. 13) with regard to these acts.

174. The Commission further recalls that the applicants' arrest, by

the Turkish Cypriot Police (cf. para. 148 above), is in the

circumstances of the present case imputable to Turkey (cf. para. 102

above). It observes in this respect that the applicants were

subsequently detained, and brought before judicial authorities, in

northern Cyprus, which they refused to recognise (cf. paras. 39 and 65

above). The Commission therefore considers that the applicants did not

wish to avail themselves of such remedies as might then have been

available to them with regard to the circumstances of their arrest by

the Turkish Cypriot Police (see also para. 77 above). In these

circumstances the Commission cannot find that Article 13 (Art. 13) has

been breached.

Conclusion

175. The Commission concludes by ten votes to three that there has

been no violation of Article 13 (Art. 13) of the Convention.

F. Recapitulation

176. The Commission concludes by twelve votes to one that there has

been no violation of Article 3 (Art. 3) of the Convention as regards

the first applicant (para. 129 above).

177. The Commission concludes, by twelve votes to one, that there has

been no violation of Article 3 (Art. 3) of the Convention as regards

the second applicant (para. 131 above).

178. The Commission concludes by nine votes to four that there has

been no violation of Article 8 (Art. 8) of the Convention as regards

the first applicant (para. 137 above).

179. The Commission concludes by seven votes to six that there has

been a violation of Article 8 (Art. 8) of the Convention as regards the

second applicant (para. 142 above).

180. The Commission concludes by eight votes to five that there has

been no violation of Article 5 para. 1 (Art. 5-1) of the Convention as

regards the first applicant (para. 159 above).

181. The Commission concludes by seven votes to six that there has

been no violation of Article 5 para. 1 (Art. 5-1) of the Convention as

regards the second applicant (para. 160 above).

182. The Commission concludes by eight votes to five that the

applicants' detention after their arrest and the proceedings against

were not in violation of the Convention (para. 171 above).

183. The Commission concludes by ten votes to three that there has

been no violation of Article 13 (Art. 13) of the Convention (para. 175

above).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

(Or. English)

PARTLY CONCURRING, PARTLY DISSENTING OPINION OF

MM. NØRGAARD, JÖRUNDSSON, GÖZÜBÜYÜK, SOYER AND DANELIUS

In their declaration deposited on 28 January 1987, the Government

of Turkey recognised the right of individual petition under Article 25

of the Convention, subject to certain conditions. One of these

conditions was that the right of petition should extend only to

allegations concerning acts and omissions of public authorities in

Turkey performed within the boundaries of the territory to which the

Constitution of Turkey is applicable. It is clear that this wording was

intended to prevent petitions from being lodged in regard to events

occurring in the northern part of Cyprus.

The question arises whether this territorial limitation in the

Turkish declaration is legally valid. If it should be considered not

to be valid, the further question arises as to whether this will affect

the validity of the Turkish declaration as a whole.

We first note that, in accordance with a constant practice, a

Contracting State is free to make a temporal limitation of its

declaration under Article 25 of the Convention, in particular by

excluding its application to acts which occurred before the declaration

was made.

Moreover, under Article 63 of the Convention, certain territorial

limitations are also expressly provided for. However, Article 63

concerns territories for whose international relations a Contracting

State is responsible, and the northern part of Cyprus cannot be

regarded as such a territory. Nevertheless, Article 63 shows that, when

making a declaration under Article 25, a Contracting State may, in some

circumstances, make a distinction between different territories.

If a State may exclude the application of Article 25 to a

territory referred to in Article 63, there would seem to be no specific

reason why it should not be allowed to exclude the application of the

right of individual petition to a territory having even looser

constitutional ties with the State's main territory. If this was not

permitted, the result might in some circumstances be that the State

would refrain altogether from recognising the right of individual

petition, which would not serve the cause of human rights.

We consider that the territorial limitation in the Turkish

declaration, insofar as it excludes the northern part of Cyprus, cannot

be considered incompatible with the object and purpose of the

Convention and that it should therefore be regarded as having legal

effect.

In these circumstances, it is not necessary to examine what the

legal consequences would have been if the territorial limitation had

been held not to be legally valid.

It follows that in our view the Commission is not competent to

deal with the applicants' complaints of violations of the Convention

in Cyprus. For these reasons, we have voted against any finding of a

violation of the Convention in the present case.

(Or. English)

PARTIALLY DISSENTING OPINION OF

SIR BASIL HALL

1. While in other respects I share the opinion of the majority of

the Commission in this case, I do not agree that there was no violation

of Article 5 para. 1 as regards the second applicant.

2. Article 5 para. 1 requires that a deprivation of liberty (which

includes an arrest) must be in accordance with a procedure prescribed

by law. I agree that that requirement essentially refers to national

law.

3. Article 5 para. 1 (c) in addition requires that an arrest shall

be "lawful". I do not consider that in this context lawfulness is to

be determined essentially by reference to national law. The majority

of the Commission indeed recognise that, whether it is lawful or not

by national law, if an arrest were an arbitrary exercise of power, it

would be unlawful for the purposes of Article 5 para. 1 (c).

4. In my view other matters may render an arrest unlawful for the

purposes of the Convention, even if it were lawful under national law

- for example the use of excessive force in effecting an arrest. This,

however, is only one instance of conduct which will take an arrest out

of the category of lawful arrest for the purposes of the Convention.

The way in which an arrest is effected must be compatible with the

presumed innocence of the individual arrested but it must too be

effected in a way which is consistent with what is justifiably expected

of the authorities in a democratic society.

5. Evidence in regard to what happened to the second applicant on

his being arrested will be found in paras. 45, 49, 50, 53, 56 and 63

of the Commission's Report. The treatment he received is also referred

to in the Commission's opinion in paras. 121 to 125 of that Report. In

my opinion it was established that the second applicant was roughly

treated by the police or by others taking advantage of his inadequate

protection furnished by the police. That treatment, and in particular

the pulling of his beard, has not been justified. It resulted in his

arrest being unlawful and consequently there was a violation of

Article 5 para. 1 (c).

(Or. English)

PARTIALLY CONCURRING AND PARTIALLY DISSENTING OPINION

OF MR. C.L. ROZAKIS

I regret that I am unable to follow the opinion of the Commission

in a number of issues which I consider of primordial importance for the

case-law of the European Convention of Human Rights.

1. The question of imputability

My first, and fundamental disagreement concerns the question of

the imputability of the acts allegedly violating specific articles of

the Convention during the events of July 1989 in Cyprus. The

Commission, in its decision on admissibility and in paragraph 96 of its

opinion, has correctly found that "the application of the Convention

extends beyond national frontiers of the Contracting States and

includes acts of State organs abroad. The term 'jurisdiction' in

Article 1 [of the Convention] is not equivalent to or limited to the

national territory. . . Authorised agents of a State, including armed

forces, not only remain under its jurisdiction when abroad, but also

bring any other persons 'within the jurisdiction' of that State to the

extent that they exercise authority over such persons".

a. My disagreement begins from the moment that the Commission

attempts to make a subtle distinction between imputability which stems

from the actual control over the 1989 events by Turks and imputability

which stems from the actual control by the other, separate authority

in the area, which is the so-called "Turkish Republic of Northern

Cyprus" (TRNC). In the first case, where direct involvement of the

Turkish authorities in the events of 1989 is found or reasonably

presumed, Turkey is responsible, and, hence, liable for the alleged

violations of the Convention. In all other instances where proof or

presumption exists that the actors of the alleged violations were

Turkish-Cypriot authorities, Turkey is exonerated from any

incrimination, and the responsibility is transferred to the local

Turkish-Cypriot authorities.

With all due respect to the Commission, it seems to me that here

it does not properly distinguish between two clearly different issues:

the issue of the responsibility of a State for acts or omissions of its

armed forces while abroad in the territory of another State, usually

under the cover of an international arrangement, and the issue of the

responsibility of a State in the event of an invasion, by the use of

force, and continuing occupation of a part of the territory of a third

State. Examples of the first category can be found in the case of the

establishment of a military base in a country (eg. American bases in

Europe or Asia), or even the stationing of military forces in a

country, after the end of a war, as a result of an international

understanding (eg. the case of stationing allied forces in the

territory of Germany after the end of the Second World War, while, at

the same time, Germany started its life as two separate States,

recognised by a great number of States of the international community,

and exercising control in their own territory). Examples of the second

category - that of an illegal occupation of a foreign territory - are

abundant and may be found in cases where a State enters the territory

of another State and remains there against the will of the latter -

controlling it partially or as a whole, and preventing the legitimate

authority of the latter from exercising its power over this territory.

As long as the former State remains in the territory, and as long as

no change in the status of the territory (and/or of the occuppying

force) occurs, the alien power remains responsible for all acts or

omissions which may be attributable to the authority of its organs,

even if the occupying power has transferred a number of competencies

to local organs, and even if the occupied territory has been organised

in the form of an autonomous or self-governing area. The fact of

continuous occupation, by the means of force, creates the irrebuttable

presumption that the will of these organs is eventually the will of the

occupying power. A presumption incarnates the position of the

international community - transformed into rules of international law -

that State accountability originates from the very occupation of the

land and its physical control. As the International Court of Justice

expounded in the 1971 Namibia case :

"By maintaining the present situation, and occupying the

territory without title, South Africa incurs international

responsibilities arising from a continuing violation of an

international obligation. It also remains accountable for any

violations of its international obligations or of the rights of

the people of Namibia" (ICJ Reports, 1971, at p. 54).

b. In the circumstances of the Turkish occupation of the

northern part of Cyprus, the illegality persists and prevents any

possible normalisation of this part of the island. The so-called "TRNC"

is not a State; it does not have any international legitimacy in

whatever form and, in the eyes of international law, it does not (and

cannot) have authority distinguishable from that of the occupying

power.

The non-existence of this entity in the international sphere is

not, of course, the result of not having been recognized by States

other than Turkey. A State may exist even without recognition, since

it has been widely accepted that recognition has basically a

declaratory nature. The non-existence of this entity is the result of

a decision of the international community not to attribute the quality

of statehood to the northern part of the island. This attitude of the

international community is manifested by two determining factors: by

the Resolutions of the United Nations, which consider that the Republic

of Cyprus remains the only legitimate international personality

representing, in international relations, the totality of the territory

of the State, and by the resolution of the same World Organisation

calling upon the States of the international community to negate the

existence of the northern part of Cyprus as a separate international

entity. The Security Council Resolution 541 (1983), adopted immediately

after the unilateral declaration of independence of the TRNC states

inter alia:

"... Considering that this declaration is incompatible with the

1960 Treaty concerning the establishment of the Republic of

Cyprus and the 1960 Treaty of Guarantee.

Considering therefore that the attempt to create a 'Turkish

Republic of Northern Cyprus' is invalid, and will contribute to

a worsening of the situation in Cyprus.

1. Deplores the Declaration ...

2. Considers the Declaration referred to above as legally

invalid and calls for its withdrawal;...

6. Calls upon all States to respect the sovereignty,

independence, territorial integrity and non-alignment of

the Republic of Cyprus;

7. Calls upon all States not to recognize any Cypriot State

other than the Republic of Cyprus".

The non-recognition, proposed here by the Security Council,

amounts virtually to a sanction inflicted by the international

community against the primary illegality of the use of force to attain

the political purpose of secession of the northern part of Cyprus from

the Republic, and the ensuing attempt to take advantage of this

military, illegal presence in the island to materialise the secession

by the unilateral declaration. In other words, the concept of non-

recognition is used here to prevent the emergence of a new State, to

prevent the attribution of statehood to an illegal entity; to reiterate

the fundamental principle of law, which has also gained support in the

international field that "ex injuria jus non oritur"; and to reject the

cynical approach that in all circumstances, regardless of the character

and the significance of a violated legal rule, "ex factis jus oritur".

The position, then, taken by the Commission in the present Report

ignores the will of the international community to consider that in the

northern part of the island an illegality persists, which is due to the

occupation of that territory by the Turkish military forces. It

therefore failed to share the consequences of the continuing violation

of the fundamental jus cogens norms. Its realistic, pragmatic approach

undermines the cohesion of the policy of the international community

to gradually establish a hierarchy of rules in international relations,

where some of them acquire an absolute, normative character; an

absolute character which tends to serve the best interests of the

community for world order, its current principles and values.

c. The theory of the Commission, that Turkey is responsible

only insofar as there is indication of direct involvement of its agents

in the July events, not only ignores the consequences of the continuing

illegality of occupation, not only ignores the reality that the

northern Cypriot authorities, both in the civilian and the military

sphere, are headed and directed by Turkish (mainland) officials and

officers, but it also legitimises the otherwise non-existant entity of

the "TRNC". The argument goes that because the "administration in

Cyprus ceased to function on a bi-communal basis", and because of the

series of events which have occurred since 1963, the factual situation

in the northern part of the island is that of a "de facto" regime (it

refers to the Turkish-Cypriot community), which exercises effective

control over the territory and its population, and which enacts and

applies laws, quite distinctively from the occupying Turkish

authorities. In other words it attributes to the community a certain

status which has a weight in the sphere of international relations, and

hence, in the application of the European Convention on Human Rights,

which operates at this level (that of international legal relations).

Again, with all due respect, I think that the Commission fails

to make a proper distinction. The fact that the international community

has accepted the existence of two communities living in the territory

of the Republic of Cyprus does not automatically mean that it accepts

their separate international nature. On the contrary, the efforts have

always been to find a viable solution for the peaceful co-existence of

these two Cypriot communities in a common, multi-ethnic State. The

relevance of the notion of the "community", during the whole period of

the internationalisation of the Cyprus crisis, is limited to the actors

of the intercommunal talks and to negotiators in the United Nations

fora for a settlement of the question. The philosophy of the

international community, in this respect, is that the longevity of the

Republic of Cyprus may only be safeguarded if the two communities,

through their representatives, agree on the terms of their co-existence

in the Republic. Thus the word "community" is a convenience in

diplomatic parlance, and it does not attribute to either people any

other international qualification.

The preceding analysis leads me to the conclusion that the only

reasonable course to follow is to consider that Turkey remains

responsible for all acts or omissions of both the Turkish military, of

its authorities, and the authorities of the so-called "TRNC", and that,

under these circumstances, the alleged violation of the Convention -

which operates in the sphere controlled by international law - must be

attributed to Turkey, which, under international law, is the only

entity exercising power in the northern part of Cyprus.

2. The question of the lawfulness of the arrest ratione loci

A second divergence of approach, which leads me to distinguish

myself from the opinion of the Commission, is the lawfulness of the

arrest of the Greek Cypriots by the Turkish authorities, from the

ratione loci point of view.

Indeed, the only objective determination of the events which

occurred on 19 July 1989 in Cyprus (assuming that both parties involved

have the legitimate interest to support their interpretation of the

events) is the Report of the Secretary General of the United Nations

(Security Council Documents S/21010 of 7 December 1989) which clearly

states that:

"(a) In the evening of 19 July, some 1000 Greek Cypriot

demonstrators, mostly women, forced their way into the United

Nations buffer zone in the Ayios Kassianos area of Nicosia ...

A short while later Turkish Cypriot police and security forces

elements forced their way into the area ...

(b) The Ayios Kassianos School complex is situated in the

United Nations buffer zone. However, the Turkish forces claim it

to be on their side of the cease-fire line. Under working

arrangements with UNFICYP, the Turkish Cypriot security forces

have patrolled the school grounds for several years within

specific restrictions. This patrolling ceased altogether as part

of the Unmanning Agreement implemented last May".

The Agreement on Unmanning of Positions in Sensitive Areas in

Nicosia (1989), to which the Report refers, provides in its relevant

clauses :

"1. The military forces in Nicosia will move further apart in

sensitive areas by unmanning the positions and ceasing patrolling

in the areas shown on the two attached maps ...

2. All personnel, military equipment, weapons and ammunition

will be removed.

3. ...

4. Maintenance work and maintenance checks ... will take place

using the current access points and routes... To ensure proper

co-ordination [of maintenance], each Force will provide at local

level relevant details to UNFICYP, at least 24 hours in advance

...

5. UNIFICYP will observe the unmanned areas from the present

UN observation posts ...

6. UNFICYP will investigate complaints by either Force

concerning violations of this agreement. Both Forces will co-

operate with UNFICYP in the investigation ... In case a violation

persists, the other Force will be free to take proportionate

action in the area concerned".

The area where the deprivation of liberty took place was,

accordingly, an area belonging to the neutral buffer zone, or, in any

event, to the zone which was unmanned, as a result of an agreement of

the respective parties and the United Nations. The purpose of the

unmanning (which is similar to the buffer zone) was to reduce the

danger of a direct implication of the two sides in incidents

threatening the peace of the island. Hence, neither the Greek Cypriot

Forces, nor the Turkish Forces were legally allowed to enter the area

or to exercise any kind of activities - including peace-time activities

- without the previous authorisation by the UNFICYP. The Unmanning

Agreement makes it clear that the control is transferred to UNFICYP

concerning the area, and that, only in case of a persistent violation,

the two Forces are allowed to take proportionate action. It goes

without saying that the exception provided for by the Agreement mainly

concerns violations directly provoked by the Forces and, in any event,

even if it covers violations coming from private manifestations (which

cannot be excluded) there is a further requirement of "persistence".

I do not think that in the circumstances of the case such an exception

may apply.

If, consequently, the Turkish authorities acted in violation of

an agreement, and proceeded to arrests in an area where their law was

not applicable, then the condition of the lawfulness of the arrest

provided for by Article 5 para. 1 is not fulfilled. The arrests in the

neutral zone (where Turkish law in the form of the law enacted by its

agents in the occupied territory does not apply) amounts to an illegal

deprivation of liberty, namely, to an abduction of Greek Cypriots and

their transfer to the occupied territory of Cyprus under their

jurisdiction.

In these circumstances, I also find that the Convention has been

violated.

(Or. English)

PARTIALLY CONCURRING, PARTIALLY DISSENTING OPINION OF

MR. M.P. PELLONPÄÄ

I agree that the applicant's arrest on 19 July 1989 is

attributable (or imputable) to Turkey. I further agree that Article 8

was violated in that connection with regard to the second applicant.

Unlike the majority, however, I consider it established that also the

first applicant's physical integrity was interfered with so as to

constitute a violation of Article 8.

I disagree with the majority of the Commission in a more profound

way in so far as it concerns the question of violation of Article 5 in

connection with the arrest, as well as in so far as it concerns the

legal evaluation of the subsequent detention and the proceedings

brought against the applicants during that detention. The majority of

the Commission has concluded that the events following the arrest

cannot be imputed to Turkey. I have reached a contrary conclusion for

reasons to be explained below.

General principles of state responsibility under international

law apply also in the application of the Convention. According to these

principles state responsibility presupposes a violation of a duty and

attributability of this violation to the State. As a point of departure

the State is responsible for all foreseeable consequences of an

unlawful act attributable to it. Conversely, there must be an unbroken

causal connection between the act attributable to the State and the

alleged injuries, in this case injuries caused by alleged violations

of human rights.

The arrest, found by the Commission to be attributable to Turkey,

was the beginning of a sequence of events leading to the applicants'

detention and proceedings brought against them. The arresting

authorities delivered the applicants to northern Cypriot authorities

who detained them and subjected them to judicial proceedings. In the

ordinary meaning there appears to be clear causal connection between

the arrest and the subsequent detention and proceedings. There is,

moreover, nothing amounting, in a legal sense, to a breach in the chain

of causation. Such a breach could exist, for example, if the applicants

had been released immediately after the arrest and only thereafter

apprehended by the other authorities.

My conclusion therefore is that there is a clear, unbroken,

causal link between the arrest on the one hand, and the detention and

the subsequent proceedings on the other. The detention and the

proceedings being foreseeable consequences of the arrest and the

handing over of the applicants to the authorities in question, the

whole sequence of events must be considered to be attributable to

Turkey on the grounds elaborated in paras. 90-102 of the Report. Under

these circumstances, I do not find it necessary to decide whether

Turkey should be regarded generally as responsible for human rights

violation in northern Cyprus.

As to the alleged breaches of the various Convention provisions,

I consider that Article 5 has been violated. I have grave doubts about

the correctness of the majority conclusion according to which the

arrest took place "in accordance with a procedure prescribed by law"

and fulfilled the other conditions of Article 5 para. 1.

The arrest took place in the area of the Agios Kassianos school

complex which, according to a UN report quoted in the Commission's

Report, "is situated in the United Nations buffer-zone" (at para. 42

above). It is very questionable whether the legal provisions cited by

the Commission guaranteed the foreseeability inherent in the

requirement of lawfulness contained in Article 5. Even if some legal

basis for the arrest could be inferred from the agreements concerning

the border area, it has nevertheless not been shown that it was

necessary to hand over the applicants to the detaining northern Cypriot

authorities and keep them in detention for more than 10 days. I

consider that the applicants' deprivation of liberty was not

"consistent with the purpose of Article 5, namely to protect

individuals from arbitrariness" (at para. 146 above). I therefore

conclude that the applicants' "right to liberty and security of

person", guaranteed by para. 1 of Article 5, was violated, without

considering it necessary to go into further aspects of that Article.

I also find a violation of Article 6. Even assuming that the

court in question could be regarded as "an independent ... tribunal

established by law", the applicants did not in the circumstances of the

case have "adequate time and facilities for the preparation of [their]

defence", as required by para. 3 (b). Furthermore, the applicants had

objectively legitimate reasons to suspect the impartiality of the

court. Keeping in mind the importance of appearances, I conclude that

Article 6 has been violated.

I, furthermore, find a violation of Article 7. The principle of

legality was, in the circumstances of the applicants' arrest in the

buffer-zone, not fulfilled by the provisions on the basis of which the

applicants were convicted of "unauthorised entry into the territory of

the Turkish Republic of Northern Cyprus".

Finally, I do not think that the restrictions on the applicants'

religious activities went beyond those inherent in deprivation of

liberty so as to a separate breach of Article 9. I also concur with the

finding that there has been no violation of Article 13.

(Or. English)

DISSENTING OPINION OF Mr. E. BUSUTTIL

I regret that I must dissociate myself from the Commission's

opinion that there has been no violation of Article 3 of the

Convention, both in regard to the assessment of the facts and in regard

to the law.

In my view, the demonstration by some 1000 Greek Cypriot

demonstrators, most of them women, which purported symbolically to re-

assert Greek Cypriot sovereignty in Northern Cyprus by crossing the

buffer zone in Nicosia did not in itself amount to a "serious

situation", as is suggested in paras. 109 and 110 of the Commission's

Report.

The majority profess to rely on the Report of the Secretary-

General of the United Nations dated 7 December 1989, but what the

Secretary-General actually states in his Report is that "a serious

situation arose as a result of a demonstration by Greek Cypriots in

Nicosia" and then proceeds to spell out this statement in sub-paras (a)

to (d) of para. 11. From sub-paras (c) and (d) it is apparent that the

serious situation arose in the days immediately following the

demonstration as a result of the continuing detention of those

apprehended by the Turkish Cypriot authorities during the

demonstration. Indeed, had the security forces across the buffer zone

not over-reacted by arresting and then detaining 111 persons (101 of

them women), no serious situation would have been created.

Nevertheless, the "serious" character of the demonstration is

relied on in the Commission's Report to justify the "very rough

treatment" to which the applicants were subjected but which, in the

view of the majority, did not attain the level prohibited by Article3

in the circumstances of the case.

While I recognize that all demonstrations are potentially

serious, I am unable to understand on what evidence the majority

reached the conclusion that this particular demonstration was actually

serious. Certainly none of the witnesses heard by the Delegates of the

Commission adverted specifically to its serious character. The

Secretary-General of the United Nations refers to the serious situation

arising as a result of the demonstration but, as I have already

attempted to demonstrate, it was the continued detention of those

arrested during the demonstration, and not the demonstration as such,

that created this serious situation. At all events, it should have been

well within the capability of the security forces of Northern Cyprus,

numbering some tens of thousands, to propel the women and the two

applicants across the buffer zone without arresting them. And even

assuming it was physically impossible to do so without effecting

arrests, a quick relaxation of tension would have been achieved if

those arrested had been released that same evening when the commotion

had subsided.

The applicants in this case were two clergymen who accompanied

the women to conduct a memorial service in the Church of Saint

Kassianos which lies in an area controlled by the Republic of Cyprus

very near the buffer zone, but later, as it would appear, broke through

the barbed wire and the defence line of UNFICYP with the demonstrators

and threatened to enter the territory of the "Turkish Republic of

Northern Cyprus". They were, however, contained in an area in and

around the derelict Chapel of St. George. No evidence was forthcoming

from any quarter that they were either armed or carrying any other

instruments that could be employed for aggressive purposes.

Initially inside the Chapel and later in the yard outside, the

security forces carrying anti-riot gear fell upon the applicants

knocking off their ecclesiastical headgear and spectacles, tugging at

their robes and their beards, hitting and kicking them, spitting on

them, swearing at them and dragging them to the ground. Thereafter they

were forcibly led into the Turkish occupied area of Nicosia where they

ran the gauntlet of a hostile crowd of counter-demonstrators who

subjected them to more of the same treatment. The first applicant was

punched on his temple and right ear causing a haematoma and a crushed

injury which took five days to heal. The second applicant had

haemorrhages in the roots of his beard caused by pulling of the beard,

a number of bruises which could have been caused by hitting with blunt

instruments, and a large haematoma over his left tibia which could have

been caused by kicking.

As is established in the case-law of the Convention organs, ill-

treatment must attain a minimum level of severity if it is to fall

within the scope of Article 3. The assessment of this minimum is

relative; it depends on all the circumstances of the case.

On the other hand, the Convention prohibits in absolute terms

inhuman or degrading treatment, irrespective of the victim's conduct.

Unlike most of the substantive Articles of the Convention, Article 3

makes no provision for exceptions and, under Article 15 para. 2 there

can be no derogation therefrom even in the event of a public emergency

threatening the life of the nation.

For the majority, the treatment of the applicants just described

constituted neither "inhuman treatment" nor "degrading treatment" in

that it did not reach the level prohibited by Article 3.

For myself, this treatment amounted, at the very least, to

"degrading treatment" within the meaning of Article 3 since it aroused

feelings of fear, anguish and inferiority in the applicants which was

capable of humiliating and debasing them.

At the same time they were being subjected to physical violence,

the applicants were vilified and maligned and their ecclesiastical

vestments desecrated. To my mind, this combination of violence and

denigration constituted not only an assault on their physical integrity

but also an affront to their personal dignity. The applicants - a

bishop and an archimandrite - were mortified and humiliated not simply

in their own eyes, but even more so lowered in the estimation of their

own parishioners. Indeed, publicity is a relevant factor in assessing

whether a particular treatment is "degrading" within the meaning of

Article 3, as the Court had occasion to point out in its Tyrer judgment

(Eur. Court H.R., judgment of 25 April 1978, Series A no. 26, p. 16,

para. 32). Nor can it be excluded that the treatment may have had

adverse psychological effects.

In the light of this, I consider that the applicants were

subjected to treatment where the element of humiliation attained the

level inherent in the notion of "degrading treatment" within the

meaning of Article 3 of the Convention and that, therefore, there has

been a violation of this Article in the instant case.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_________________________________________________________________

21 July 1989 Introduction of the applications

25 July 1989 Registration of the applications

Examination of Admissibility

8 August 1989 Information from the applicants

(concerning their release)

29 August 1989 Further submissions by the applicants

7 September 1989 Commission considers state of

proceedings

7 October 1989 Commission considers state of

proceedings

9 November 1989 Commission's decisions:

- to join the present applications and

Application No. 15318/89 (T. Loizidou

v. Turkey);

- to invite the Government to submit

observations on the admissibility and

merits of the applications

28 February 1990 Government's observations

6 May 1990 Applicants' observations in reply

5 October 1990 Commission's decision to hold an oral

hearing

18 December 1990 Further written submissions by the

applicants

11 January 1991 Oral hearing on admissibility and

merits

11 and 12 January 1991 Commission's deliberations

4 March 1991 Commission's further deliberations and

decision to declare the applications

admissible

7 March 1991 Commission approves text of decision

on admissibility

7 March 1991 Decision on admissibility communicated

to the parties

Examination of the merits

7 March 1991 Commission invites Government to

submit observations on the merits

7 May 1991 Government's requests to re-open

proceedings on admissibility and to

declare the applications inadmissible

24 May 1991 Applicants' comments on the

Government's requests

30 May 1991 Commission finds no legal basis for

the requests, invites Government

again to submit observations on

merits

6 July 1991 Commission grants Government's request

for extension of time-limit

25 September 1991 Government refuse to participate in

further proceedings

8 October 1991 Commission's deliberations

16 October 1991 Commission's further deliberations and

adoption of Interim Report to the

Committee of Ministers

17 October 1991 Commission's deliberations

19 December 1991 Committee of Ministers adopts

Resolution DH (91) 41

14 January 1992 Commission's decisions:

- to take oral evidence;

- to invite parties to file

observations

28 February 1992 Government's observations

9 April 1992 Commission's decisions:

- appointment of Delegation for

hearing of witnesses;

- list of witnesses to be examined

29 April 1992 Government propose further witness

30 April 1992 Applicants propose further witness

19 May 1992 Commission's deliberations

20 May 1992 Further submissions by Government

5 June 1992 Further submissions by applicants

9 and 10 June 1992 Hearing of witnesses by Delegation

7 July 1992 Commission's decision to hold oral

hearing on the merits of the

applications

21 September 1992 Further written submissions by the

applicants

1 October 1992 Further written submissions by the

Government

16 October 1992 Applicants submit video cassettes

20 November 1992 Government submit documentary material

1 December 1992 Communication from applicants

2 December 1992 Communication from Government

3 December 1992 Commission's deliberations

4 December 1992 Oral hearing on the merits.

Commission's deliberations

7 December 1992 Commission decides to disjoin the

present applications from Application

No. 15318/89 (Loizidou v. Turkey)

27 January 1993 Final submissions by applicants

29 January 1993 Government's final submissions

3 April 1993 Commission's consideration of the

state of proceedings

29 June 1993 Commission's deliberations on the

merits and final vote

8 July 1993 Adoption of the Report

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CHRYSOSTOMOS AND PAPACHRYSOSTOMOU v. TURKEY

CHRYSOSTOMOS AND PAPACHRYSOSTOMOU v. TURKEY