Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25781/94

introduced by CYPRUS

against TURKEY

The European Commission of Human Rights sitting in private on

28 June 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

J. MUCHA

G. RESS

A. PERENIC

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 24 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 November 1994

by the Government of Cyprus against the Government of Turkey and

registered on 24 November 1994 under file No. 25781/94;

Having regard to :

- the observations on the admissibility of the application

submitted by the respondent Government on 10 July 1995;

- the observations in reply submitted by the applicant Government

on 19 December 1995;

- the additional documentary material submitted by the applicant

Government on 11 and 13 June 1996 and by the respondent

Government on 24 and 28 June 1996;

- the parties' oral submissions at the hearing on 28 June 1996;

- the report provided for in Rule 45 para. 2 of the Commission's

Rules of Procedure;

Having deliberated;

Decides as follows:

THE FACTS

1. Original submissions

On 22 November 1994 the applicant Government submitted the

application to the Commission in the following terms:

"1. The Republic of Cyprus, a Member State of the Council

of Europe and High Contracting Party to the European

Convention on Human Rights and the Additional Protocols

thereto requests under Article 24 of the European

Convention on Human Rights the Secretary General of the

Council of Europe to refer to the European Commission of

Human Rights the following breaches of provisions of the

Convention and its First Protocol committed by the Republic

of Turkey, a Member State of the Council of Europe and High

Contracting Party to the European Convention on Human

Rights and Additional Protocols thereto.

2. The Republic of Cyprus contends that the Republic of

Turkey since 4 October 1983, when the European Commission

of Human Rights adopted its Report in respect of

Application No. 8007/77, for violations of human rights by

Turkey in the areas occupied by the Turkish army in Cyprus,

continues to commit breaches of Articles 1, 2, 3, 4, 5, 6,

8, 9, 11, 13 of the Convention and of Articles 1, 2, 3 of

the First Protocol and of Articles 14 and 17 of the

Convention in conjunction with all the above mentioned

Articles.

3. Turkey continues to occupy about 40% of the territory

of the Republic of Cyprus seized in consequence of the

invasion of Cyprus by Turkish troops on 20 July 1974.

4. In the Turkish occupied area of Cyprus in question, and

ever since the adoption of the aforesaid Report by the

Commission, the following violations of human rights

continue to be committed, by way of systematic conduct, by

Turkish state organs and other persons acting with the

support and knowledge of Turkey, in utter disregard of the

obligations of Turkey under the European Convention on

Human Rights:

(a) Unlawful detention of at least 1619 missing

Greek-Cypriots (a considerable number of them

being civilians) who were unlawfully deprived of

their liberty, in Turkish custody, in 1974,

Turkey having failed until now to account for

the fate of these persons.

(b) Refusal to allow over 170.000 Greek-Cypriots to

return to their homes in the Turkish occupied

area of Cyprus.

(c) Turkey continued, during also the last six

months, to force by inhuman methods Greek-

Cypriots living in the occupied area in question

to leave their homes and seek refuge in the

Government-controlled area of Cyprus and they

are being prevented by Turkey from returning to

their homes.

(d) The homes and properties of the Greek-Cypriots

mentioned in paragraphs (b) and (c) above

continued to be the object of de facto

expropriation and illegal possession and

exploitation contrary to Article 1 of the First

Protocol and the general principles of

International Law. These continuing violations

have been intensified through the increased and

systematic settlement of settlers from Turkey,

with the encouragement and assistance of Turkey,

against the will of the lawful Government of

Cyprus. Also, the agricultural produce of the

Greek-Cypriot properties continue to be

collected and exported to markets in several

European and other countries against the will of

the lawful owners thereof.

(e) Families were and are still separated as a

result of the aforesaid continued refusal of

Turkey to allow the displaced Greek-Cypriots to

return to their homes in the Turkish occupied

area of Cyprus.

(f) Through the continued and organised settlement

of settlers from Turkey in the occupied area of

Cyprus violations of the rights of the Greek-

Cypriots under Article 8 of the Convention and

Article 1 of the First Protocol have been

continuously taking place.

(g) In concrete cases inhuman treatment of Greek-

Cypriots still living in the occupied part of

Cyprus has taken place contrary to Articles 3,

5, 6, 8 and 9 of the Convention and Article 2 of

the First Protocol. Particulars of such

treatment will be made available in due course.

(h) The above displacement of Greek-Cypriots and the

carrying out of elections by the illegal regime

operating in the Turkish occupied area of

Cyprus, with the support of Turkey, has resulted

in violations of the rights of the displaced

Greek-Cypriots under Article 3 of the First

Protocol.

5. The situation resulting from the Turkish occupation of

the area of Cyprus in question continues to affect also the

rights and freedoms of Turkish-Cypriots living there,

particularly of those who in furtherance of Turkey's

political aims were forced and induced to move from the

southern part of Cyprus where they had their homes and

properties. More specifically there have been and continue

to be violations of the rights of Turkish-Cypriots to

return to their homes and properties and to associate

freely with Greek-Cypriots living in the Government-

controlled area.

6. No military operations or any fighting whatsoever has

taken place during the period to which the present

application relates.

7. The violations in question were directed against

Greek-Cypriots because of their ethnic origin and religion.

8. The victims of the above violations have no effective

remedy as provided under Article 13 of the Convention.

9. No remedy in Turkish Courts was under the

circumstances likely to be effective and adequate for the

violations in question. In any case, all the above

violations were committed and continue to be committed

under such circumstances which excuse the failure to resort

to any domestic remedy for the purposes of Article 26 of

the Convention.

10. All the above violations will be proved by concrete

and positive evidence. Full particulars regarding these

violations will be made available in due course.

11. The Turkish occupied area is still sealed off and the

Turkish Military Authorities do not allow free access to

it.

12. The Government of the Republic of Cyprus requests the

Commission to give precedence to the present application in

view of the extent and continuing nature of the violations

complained of.

13. This application is made without prejudice to

individual applications against Turkey under Article 25 of

the Convention which have already been made or which will

be made in future."

2. Particulars submitted by the applicant Government

On 3 March 1995 the applicant Government submitted "Particulars"

of the application, supported by documentary evidence included in

Annexes, which were later supplemented by further material. These

"Particulars" may be summarised as follows:

a) As to the scope of Turkey's control over northern Cyprus

The applicant Government contend that notwithstanding the

creation of local administrative structures ("the Turkish Republic of

Northern Cyprus" - TRNC), Turkey continues to be exclusively

responsible under international law for events in northern Cyprus,

including any violations of the Convention, because it exercises

"exclusive de facto actual authority and effective control" and thus

"jurisdiction" within the meaning of Article 1 of the Convention over

all persons and property in this area which in the applicant

Government's submission continues to be under the military occupation

of Turkey.

The applicant Government claim that, apart from Turkey's legal

responsibility for northern Cyprus under the general principles of

international law, "Turkey's actual overall control is pervasive and

has been unaffected by her establishment and/or sponsorship of illegal

local administrative structures". It is claimed that "the local

administrative apparatus is in fact subject at all times to Turkey's

informal direction. It is financially and physically dependent on and

directed by Turkey. In short, Turkey has unfettered and unimpeded

power to enforce obedience to her behests, despite any appearance of

puppet institutions. If violations of human rights are effected by

such institutions and persons acting under their purported authority,

Turkey has both the duty and the actual power to act to prevent, stop

and remedy such violations: it is Turkey's support to the illegal local

administrative apparatus which keeps it in being; Turkey has full

knowledge of decisions and conduct by so-called 'officials' of that

apparatus; and, from behind the scenes, Turkey directs it."

In support of these allegations, the applicant Government submit

the following:

- The presence of over 30.000 members of the armed forces of Turkey

in northern Cyprus make it "one of the most highly militarised areas

in the world in terms of the ratio between numbers of troops and

civilian population". Allegedly, there has been a recent increase in

the numbers of troops and upgrading of their equipment. The troops are

stationed throughout the occupied area and not only in the area

adjacent to the buffer zone. Turkish military courts exercise

jurisdiction not only over members of the Turkish armed forces, but

also over civilians entering military areas. Allegedly 90 % of the

occupied territory are military areas of various categories, leaving

only 10 % as "Free Tourist Areas", and even the latter are not excluded

from military enforcement action (Prohibited Military Areas Decree

1979).

- Fortifications and minefields are maintained by the Turkish armed

forces along the cease-fire lines (which the applicant Government refer

to as "forward defence lines"). The applicant Government contest that

the so-called "buffer zone" is a term of art reflecting the result of

international agreements; as confirmed by UN documents, there are no

agreements concerning the "buffer zone" by which powers were conferred

on Turkish Cypriot authorities. Rather, it is the Turkish armed forces

who "seal off" the occupied area along the "contact line", permitting

no movement either by Greek or Turkish Cypriots to or from the occupied

area. Entry into the First Prohibited Military Area (within a distance

of 500 m from the "contact line") requires military authorisation.

Movement across the lines is only exceptionally allowed, subject to

grant of prior permission by the Turkish armed forces. Also Turkish

Cypriots who work in the area controlled by the Cypriot Government or

at the British Sovereign Base Area of Dhekelia and even UNFICYP members

need the Turkish military authorities' permission for crossing.

Allegedly, the crossing points have been arbitrarily closed by the

Turkish armed forces on certain occasions (e.g. on 11 July 1994

following a judgment of the European Court of Justice relating to the

importation of goods from northern Cyprus into States members of the

European Union).

- As to the status of the Turkish Cypriot administration in

northern Cyprus, the applicant Government submit that the proclamation

of both the "Turkish Federated State of Cyprus" (13 February 1975) and

of the "Turkish Republic of Northern Cyprus" (18 November 1983) were

effected with the collaboration and under the responsibility of the

Turkish mainland authorities. The creation of these local

administrative structures and the purported establishment of diplomatic

relations between Turkey and the TRNC (17 April 1984) have been

condemned and declared legally invalid by the UN Security Council. The

UN consider that "the Turkish Forces are the party to the cease-fire

established in 1974 and cannot abrogate their responsibility in that

regard". The TRNC has not been recognised by the international

community.

The applicant Government claim that the Government of the TRNC

is subject to the authority and directions of the Government of Turkey

and merely a product of Turkey's military occupation: "Turkish State

organs are systematically involved in the governance of the occupied

area and no decisions can be taken without Turkish knowledge and

approval or acquiescence". Reference is made in this context to the

creation of special bodies in the Republic of Turkey for dealing with

Cyprus issues, and to the manner in which the coordination between

these bodies and the Turkish Cypriot administration is effected.

Until 1986, the major administrative mechanism to exercise

political control was the "Cyprus Coordination Council" composed of

Turkish Ministers. Decisions were made in Ankara, submitted to the

Turkish Cypriot Government for approval, and finally adopted and

implemented by that Council. The present structures include the

existence, in Turkey, of a special State Minister for Coordination of

Cyprus Issues, and of a Council for Aid, under the direct supervision

of the Turkish Deputy Minister for Cypriot Affairs, which plans and

coordinates the application of all funds emanating from Turkey to

northern Cyprus. Officials of that Council are present in many

departments of the TRNC administration. Political decisions regarding

the TRNC are coordinated between the Cyprus Desk of the Turkish Foreign

Ministry and the "Special War Department" of the Turkish General Staff.

Allegedly, the Turkish Ambassador to the TRNC from time to time gives

explicit instructions and informal directions to the TRNC Government

and keeps close surveillance on their decision-making, the Embassy

being represented at Cabinet meetings. The applicant Government claim

that, de facto, northern Cyprus is administered by a committee which

meets regularly every week in Nicosia, and which consists of (i) the

Commander of the Turkish Forces in the occupied area, (ii) the

Commander of the Turkish Cypriot Security Forces, (iii) the Ambassador

of Turkey and (iv) Mr. Denktash.

- As regards the Turkish Cypriot Security Forces, the applicant

Government claim that they are under the authority and subject to the

orders of the Turkish Army's General Staff. Their Commander is a

Turkish national on active duty with the Turkish Army. The expenses

for maintaining these Security Forces are provided by Turkey.

- Turkish control of the economy of the occupied area has been

formalised by a series of "Economic Cooperation Protocols". The first

Protocol, signed on 5 December 1986, established a technical committee

composed of Turkish Civil Servants and Turkish Cypriots to direct

finance and economic policy. A further document signed on 25 July 1990

was designed to integrate the economy of the TRNC with that of Turkey.

The Turkish lira was introduced as the currency in the occupied area.

Another document signed on 6 March 1992 purported to create an Economic

Cooperation Area between Turkey and the TRNC. Turkey pledged

contributions to the TRNC budget, the financing of investment projects

and technical assistance for drawing up a development plan. According

to Turkish Cypriot press reports, the Central Bank of the TRNC was

integrated with the Central Bank of Turkey in August 1994. The

applicant Government also refer to the substantial size of direct

financial payments by Turkey to the TRNC without which the

administration of the occupied area could not function.

- Finally, the applicant Government observe that Turkish State

organs and the leadership of the TRNC cannot be expected to proclaim

the reality of Turkey's control over the area. Allegedly, they pursue

a deliberate policy of dissimulating this reality. Thus it is claimed

that Turkish Cypriot political leaders and the press were warned not

to provide information which could be used by the applicant Government

as evidence of Turkish control in northern Cyprus. However, the

applicant Government quote a number of "revealing" statements of

politicians published in the Turkish or Turkish Cypriot press which in

their submission show that Turkey is determined, on grounds of national

ideology and strategic military interests, to uphold its control of

northern Cyprus and not to allow any change of the present situation.

b) As to the alleged violations of the Convention

The applicant Government refer to the findings in the

Commission's Reports on Applications Nos. 6780/74 and 6950/75 and

No. 8007/77 and observe that no measures were taken by Turkey since the

adoption of those Reports to end the violations of the Convention

established by the Commission. They claim in particular that there are

continuing violations concerning the Greek Cypriot missing and

displaced persons. Also new facts have emerged, involving, in

particular, the process of settlement of mainland Turks in the northern

part of Cyprus, the deterioration of the conditions of life of the

people of the Karpas peninsula, and the coercive displacement of Greek

Cypriots from the northern area. The applicant Government submit that

there is a "continuation of systematic measures and conduct aimed at

the eventual extinction of the Greek Cypriot community in the Karpas

peninsula". They claim that "the cumulative effect of politically

induced changes in the demographic make-up of the Turkish-controlled

area, including the coercive displacement of Greek Cypriots, the

refusal to allow Greek Cypriots to return to their homes and properties

and the separation of families" amounts in effect to "ethnic

cleansing". It leads to "continued suffering and frustration to the

victims and their families and to the people of Cyprus as a whole".

Greek Cypriot missing persons

The applicant Government submit that at least 1619 Greek

Cypriots, many of them civilians, who were last seen alive in the

occupied area of Cyprus after the Turkish invasion, or in Turkey in the

custody of the Turkish armed forces, are still missing. The applicant

Government refer to the Commission's findings in this respect in the

Report on Application No. 8007/77. They point out that since 1975 the

UN General Assembly has called for the tracing and accounting for these

persons, that a Special Committee on Missing Persons has been set up

in 1981, consisting of a Greek Cypriot member, a Turkish Cypriot member

and a Red Cross representative appointed by the UN Secretary General.

The arrangement is between the two Cypriot communities and does not

involve Turkey. However, due to procedural difficulties, the Committee

achieved no progress in its investigative work. After a call by the

UN General Assembly in December 1982, it resumed work in March 1984,

but soon its activities again came to a standstill. Informal work

started after a letter from the UN Secretary General of October 1993,

but certain procedural matters have not been agreed upon. In any

event, even if it begins formal work, the Committee cannot deal with

Turkey's responsibility or give any remedy against Turkey or any other

bodies or persons. Turkey herself has not provided any relevant

information about the fate of the missing persons, and the resulting

uncertainty has caused severe suffering to their families.

Greek Cypriot displaced persons

The applicant Government submit that Turkey, as a matter of

policy, continues to refuse to allow over 170,000 (with children

211,000) Greek Cypriots to return to their homes in northern Cyprus.

This is effected by the sealing off of the whole northern area by the

Turkish armed forces. Turkey ignores the resolutions of the UN General

Assembly and Security Council calling for urgent measures to facilitate

the voluntary return of all refugees to their homes in safety. Turkey

has consistently supported the view that in the Island of Cyprus there

are and must remain two separate demographically homogeneous States.

The applicant Government describe this as "apartheid à la Turque" and

"Turkish racialism".

As a particular example of this policy, the applicant Government

refer to the situation in the Varosha suburb of Famagusta. A large

part of the suburb, the so-called "fenced area", remains under the

overt control of the Turkish armed forces, despite Turkey professing

to have handed over control to Turkish Cypriots. The applicant

Government refer to repeated calls of the UN Security Council since

1984 to hand over this area to the UN for administration prior to Greek

Cypriot settlement, the Security Council considering attempts to settle

any part of Varosha by people other than its inhabitants as

inadmissible. They further point out that the UN Security Council and

Secretary General hold the Government of Turkey responsible for

maintaining the status quo in the fenced area, and that despite this

in 1994 Turkey sought unilaterally to change long-standing procedures

for access to the fenced area, the Turkish forces refusing to treat

with UNFICYP on this issue and referring them to Turkish Cypriot

authorities. Except for a Turkish army club, the use of two hotels as

recreational facilities for the Turkish armed forces and a limited

amount of settlement in hostels by students of the Turkish-sponsored

Eastern Mediterranean University, Varosha has remained uninhabited for

20 years. Turkish Prime Ministers have since 1977 repeatedly declared

that they refuse to hand over Varosha to Greek Cypriots.

Enclaved Greek Cypriots in the Karpas area

Before 1974, the Karpas peninsula was predominently inhabited by

Greek Cypriots. Their number fell from 22,000 in 1974 to only 506 in

1994. They are mostly old people (45 % over 70 and half of these over

80) and there is no renewal of population. There is a clear danger of

the Greek Cypriot population in that area becoming extinct within a few

years.

The applicant Government have provided the following statistics:

20.7.74 20.8.74 20.10.74 1975 1976 1979 1983 1993 1994

22,000 16,372 14,577 9,308 6,393 1,533 940 524

506

They claim that whereas physical methods of expulsion were

prevalent from 1976 to 1979, they had become unnecessary for Turkey by

1980. Since then, the Turkish forces have delegated their functions

to Turkish Cypriot "police" elements, a special plain-clothes "police"

unit being responsible for surveillance of Greek Cypriots. Allegedly,

many of the methods of harassment earlier employed continue. The

applicant Government request the Commission to make a special finding

concerning the inhuman methods used to force the remaining Greek

Cypriot inhabitants to leave their homes and seek refuge in the area

controlled by the Government of Cyprus, and which are described as

"ethnic cleansing". These practices include the following measures:

- Enclaved Greek Cypriots are not allowed to leave their villages

without special permission from the local "police" elements. Such

permission is rarely given and only subject to restrictive conditions

such as reporting to the "police". For example, permission to visit

Famagusta is only given for purposes of receiving medical attention;

it involves four attendances at "police stations" on the day of the

visit (in addition to two earlier visits for applying and receiving

permission to travel). Similarly, persons granted special permission

to visit the Government-controlled area are required to notify the

"police" at their home villages on leaving and on re-arrival. Such

"temporary transfer" requires giving 15 days notice in writing to the

local "police" elements. Travel can only occur once weekly in a

specially designated bus. Apart from that Greek Cypriot (and Turkish

Cypriot) residents of the occupied area may apply for "family meetings"

in the presence of UNFICYP in the Ledra Palace Hotel, a crossing point

in Nicosia. They can also receive short daily visits from Greek

Cypriots residing abroad. Permission is not given for transfer from

one village to another, thus preventing the small numbers of isolated

Greek Cypriots from forming larger communities and supporting each

other. Moreover, enclaved Greek Cypriots are not freely permitted to

visit their fields and graze their animals. They are confined to a

very small area in the immediate vicinity of their particular villages.

- Greek Cypriot doctors are not allowed to visit enclaved Greek

Cypriots, and the local medical facilities are poor; sometimes the

"police" refuse UNFICYP permission to evacuate Greek Cypriots for

urgent specialist medical treatment in the Government-controlled area.

This is particularly grave having regard to the advanced age of many

ill persons.

- Greek Cypriots are forbidden to communicate with UNFICYP except

in the presence of Turks. UNFICYP Humanitarian Branch personnel

visiting Greek Cypriots are escorted by Turkish Cypriot "police".

UNFICYP must itself obtain prior permission for visits. Visits are

closely watched by Turkish Cypriot "police" and speech in the presence

of such "police" is constrained. Failure to observe these restrictions

results in arrest and sometimes beating. Communications between

enclaved Greek Cypriots and their relatives in the Government-

controlled area are permitted only by means of messages censored by

Turkish military authorities and then delivered by UNFICYP. Such

messages are often destroyed and not handed to UNFICYP for delivery.

Telephones are available to Greek Cypriots only in Turkish Cypriot

local "police stations" and calls are only possible with "police"

permission and "police" presence. Persons who have exceptionally

obtained permission for a "temporary transfer" to visit the Government-

controlled area are searched and letters carried by them for relatives

or other enclaved persons are seized. Greek Cypriot newspapers in

Greek language are not permitted to circulate in the Turkish-occupied

area and copies brought back by visitors of the Government-controlled

area are confiscated. Books are also confiscated.

- Greek Cypriots are not permitted freely to transact commercial

transactions or to carry on any profession, trade or business in the

occupied area and thus to earn a living. They have to rely mainly on

charity and food and financial support sent to them by the Cyprus

Government through UNFICYP. Fishermen are only permitted to line-fish

from the shore and may not use their boats.

- As to educational facilities for Greek Cypriots in northern

Cyprus, the situation is particularly grave. There remain only two

elementary schools and only three Greek Cypriot teachers. All Greek

Cypriot secondary schools had to be closed. Teachers from the

Government-controlled area are not permitted to render services in the

occupied area. Much of the equipment of the remaining elementary

schools has been confiscated, school books are censored or banned.

Children at the age of 12 have to make the choice whether to leave

northern Cyprus in order to obtain secondary education or stay with

their parents without receiving secondary education. 40 % of the

parents opt for the latter solution because the Turkish authorities

permit secondary school children to return to visit their parents only

in the Christmas, Easter and summer vacations. Once boys reach the age

of 16 and girls that of 18, they are not allowed at all to return to

the occupied area or to visit their parents.

- The manifestation of their religion by enclaved Greek Cypriots

is restricted by the prohibition on replacement of Greek Cypriot

priests of whom only two remain in the occupied area. Services at the

major church and shrine of pilgrimage in the Karpas peninsula are

prohibited except on 15 August and 30 November of each year.

Attendance of funeral services is restricted to close relatives living

in the Government-controlled area, remoter relatives and friends not

being given permission.

- Cases continue of direct physical violence or death threats

against Greek Cypriots. Breaking into houses and damage to property

occur on such a scale that people fear leaving their homes unattended.

Cases of psychological pressure are frequent, such as repeated knocking

on doors and stoning of houses at night time. The fear of harassment

suffered by Greek Cypriots has been intensified by the large-scale

systematic settlement of colonists from the Turkish mainland which has

created an alien, often hostile and threatening environment. In the

remaining six villages where Greek Cypriots still live, Turkish

settlers greatly outnumber the Greek Cypriot residents. It is alleged

that no effective remedy exists for Greek Cypriots who wish to complain

about assaults and robberies. Fears of victimisation prevent such

complaints and the naming of witnesses. The applicant Government refer

in particular to a report of 8 April 1994 by the UNFICYP Chief

Humanitarian Officer which explains the reasons why Greek Cypriots are

reluctant to report crimes committed against them.

- The far-reaching restrictions which affect most aspects of the

daily life and civil rights of Greek Cypriots in northern Cyprus are

arbitrary and not established or regulated by law or controlled by the

courts. The applicant Government again refer to the above report by

the UNFICYP Chief Humanitarian Officer.

- Greek Cypriots who succumb to the fierce pressures to leave the

occupied area include persons of both sexes and all ages. When they

leave their homes are allocated to settlers from Turkey. Once they

have left, they may not change their minds and are prevented by the

Turkish forces from returning to their homes. There are some limited

exceptions for temporary reunion of families, but permanent reunion

byway of return of Greek Cypriot family members to their parents in the

Karpas or by regular or even intermittent visits is denied. Greek

Cypriots who have once left the Karpas are under no circumstances

permitted to return to reside there.

Turkish settlers

The applicant Government submit that the grave situation in

Cyprus has been intensified by the increased and systematic settlement

of colonists from the Turkish mainland. They refer to a Report on the

Demographic Structure of the Cypriot Communities, by Mr. A. Cuco,

Rapporteur to the Committee on Migration, Refugees and Demography of

the Parliamentary Assembly of the Council of Europe, published on

27 April 1992, in which it was inter alia stated that "most of the

settlers were transferred to Cyprus as the result of a decision of the

Turkish authorities" and that "the aim of the Turkish-Cypriot

administration's policy regarding the Turkish migrants has been to

encourage their permanent settlement on the island". The applicant

Government submit that since the compilation of the Cuco Report,

Turkish settlement has continued, the process being accelerated in

1991, to a degree that even Turkish Cypriot politicians took exception.

They refer to statements of the Secretary General of the Republican

Turkish Party, Mr. Soyer, who declared in May 1993 that "Turkish

Cypriots are face to face with annihilation" and that "when the

occupied area opened to the settlers without any control, the Turkish

Cypriots started feeling aliens in their own country". A similar

statement was also made by the leader of the same party, Mr. Özgür, in

August 1993. Reference has further been made to a number of critical

comments in the Turkish Cypriot press.

The new measures adopted since 1991 were the following:

- After 2 September 1991, no passports were demanded to be shown

for entry by Turkish citizens to the TRNC. They could enter with

Turkish identity cards only. From October 1992 no "entry cards" were

required for Turkish citizens.

- By a Turkish law of 17 November 1992 persons with a "work permit"

in the TRNC were exempted from the military draft in Turkey, and this

despite the armed conflict in South East Turkey and Turkey's need of

army personnel for this purpose. In the applicant Government's view

this indicates the high priority which Turkey gives to the settler

programme.

Turkey's direct involvement is also shown by Turkey's declared

policy to "balance", i.e. to achieve the parity of population numbers

of Turks and Greek Cypriots in the island of Cyprus. The applicant

Government refer to statements in this sense made by Turkey's State

Minister for Cyprus Affairs, Mr. Kilercioglu, in August 1992, by TRNC

"Prime Minister", Mr. Eroglu, in September 1993, and by "the

compulsorily retired 'Director of Registration'", Mr. Adali, in

December 1994. In this context, it is also alleged that Turkey refused

to allow the TRNC to import 5000 Romanian and Bulgarian migratory

workers, instead insisting on the importation of Anatolians. Newspaper

articles revealed that 5000 were recruited by the Employment Agency of

Konya in December 1992, and that an agreement was reached between

Turkey and the TRNC in January 1993 to meet an immediate demand for

2000 Turkish guest workers.

It is further alleged that Turkey is directly involved in the

grant of TRNC "citizenship" to settlers. Turkish citizens need

permission of the Turkish Ministry of the Interior to acquire foreign

citizenship. According to an article of the Turkish Cypriot newspaper

"Yenicag" of 20 September 1993 Turkey ordered the TRNC administration

not to grant "citizenship" to anybody without such permission, and to

exclude Kurds. Reference was also made to a practice of substitution

in the official TRNC papers of a northern Cypriot birthplace for that

in mainland Turkey. Other newspaper articles reported about the large

numbers of settlers who were granted "citizenship": during an election

period in 1993, 5000 "citizenships" were offered by a change in the

citizenship law, apparently to illegal workers; 250 new identity cards

were being issued every day; voter registration continued rapidly to

expand also in 1994, the number of voters increased by 4800 in

5 months; 2281 Turkish settlers were granted "citizenship" in 1994

according to the TRNC "Minister of the Interior".

According to the applicant Government, Turkey and the TRNC

conceal the number of settlers and refuse to conduct a census as

requested by the Turkish Cypriot political opposition, the

Parliamentary Assembly of the Council of Europe and the UN Security

Council. For this reason it is difficult to provide statistics.

According to estimates prepared by the Republic of Cyprus Department

of Statistics and Research, the number of settlers ranged between

65,500 and 70,600 at the end of 1990, between 69,000 and 87,000 at the

end of 1992, and between 73,700 and 92,100 at the end of 1993. Some

sources speak of 100,000 settlers. To these must be added 30,000 or

more Turkish army personnel and their families and 12,000 illegal

Turkish workers, so that the total number of mainland Turks (between

115,000 and 135,000) already outnumbers that of Turkish Cypriots

(between 60,000 and 100,000). There is a strong emigration of Turkish

Cypriots to the United Kingdom, according to one source a total of

57,000 having left the island in the period between 1974 and 1993.

The applicant Government allege that in connection with the

settlement policy the nature of Greek Cypriot homes is changed.

Measures to "turkicise" the area include the change of all place names

and public signs from Greek to Turkish to eliminate evidence of Greek

culture and language and the deliberate turning of churches into

mosques. In addition, these measures also adversely affect Turkish

Cypriots, as evidenced by the Turkish Cypriot press. The demographic

changes are intensified by measures for the allocation of Greek Cypriot

property to the settlers.

The treatment of the possessions of displaced Greek Cypriots

The applicant Government submit that the situation concerning the

property of the 170,000 Greek Cypriots displaced from the north remains

the same as before, they continue to be prevented from returning to

their possessions and getting access to it for any purpose, their

titles being denied. This applies to both movable and immovable

property.

As regards movable property, the applicant Government refer to

the severing and harvesting of agricultural produce from the land

belonging to Greek Cypriots by labourers sent from Turkey to northern

Cyprus, and its commercialisation by Turkish companies, in particular

those of Mr. Asil Nadir, which, "acting on invitation in the early

1980s from the Turkish Government", became responsible for most of the

exploitation of citrus orchards in the areas of Morphou and Lefka.

Following a judgment of the European Court of Justice in July 1994,

holding that lemons and potatoes cannot be imported from the TRNC into

the European Community, because they are not supported by lawful

movement and phytosanitary certificates, Turkey in January 1995 decided

to remove all restrictions on import from northern Cyprus and to use

Mersin as the export gate for this area. In this way agricultural

produce from northern Cyprus is since November 1994 being exported to

third countries accompanied by Turkish certificates.

Other movable property was also taken into official Turkish

custody. Thus 70 tons of Greek and English books, magazines and

brochures collected from Famagusta were stored in a warehouse. An

attempt to dispose of this material by auction in October 1994 was

stopped by some Turkish Cypriot politicians.

Furthermore, there has been interference with movable property

of the Church of Cyprus, such as relics, icons, church furniture and

mosaics severable from the fabric left behind in northern Cyprus. The

Church has not been permitted to safeguard its treasures, by having

access to guard, remove or restore them. There continues to be wanton

destruction, theft by individuals, and official connivance in the

export for the international sale of such items. The applicant

Government have submitted a documentation of such acts covering a

period of three years preceding September 1994. They also refer to an

incident concerning the 6th century mosaics from the apsis of the

church of Kanakaria. By coincidence, the Church of Cyprus learnt in

November 1979 that the mosaics had been removed. The Cypriot

Government sought the assistance of UNESCO and in the late 1980s it was

discovered that Turkish, Dutch and American dealers were selling four

of these mosaics, valued at 1,5 million US $. They were ultimately

restored to the Church of Cyprus by a judgment of 8 August 1989 given

by the US District Court (Indianapolis Division). The Turkish dealer

returned two more of the mosaics, but 10 remain missing. The applicant

Government describe this incident as symptomatic. They also mention

another recent incident where a German tourist to northern Cyprus

brought to light the theft of an icon.

As to the immovable property left behind by Greek Cypriots in

northern Cyprus, the applicant Government describe the Turkish

authorities' policy as a "systematic and continuing process" effected

in various stages: (i) unlawful dispossession of the Greek Cypriot

owners by their eviction from the occupied area; (ii) de facto

exclusion of the owners by the Turkish forces preventing them from

returning to their homes and properties; (iii) reduction into Turkish

possession, effected by Turkish State personnel or subsequently

authorised bodies, or toleration of individuals' unlawful occupation

and possession without the Turkish authorities taking counter-action;

(iv) purported enactment of "law" by the administrative apparatus

operating in the Turkish occupied area in order to "legalise" takings

and to facilitate "land allocation"; (v) "amendments" to the "law" to

enable grant of "title" especially to Turkish settlers, and (vi)

continuing implementation of such "laws" by land "allocation" and

"grant of title".

The so-called "legalisation process" started in 1975 when the

"Assembly of the Turkish Federated State of Cyprus" purported to enact

a "Law to consolidate and amend the Law in respect of the Control,

Custody and Administration of Immovable Properties belonging to Aliens

and Abandoned in the Turkish Federated State of Cyprus" (No. 32/1975).

This law qualified the Greek Cypriot displaced persons as "aliens".

It was followed in 1977 by a "Law for Rehabilitation, Land

Allocation and Equivalent Property" (No. 41/1977) with two main policy

objectives: (i) to concentrate ownership of all Greek Cypriot property

in northern Cyprus in the hands of the "Federated State", a large area

being kept as "State" land, part of it being allocated to Turkish

Cypriots displaced from the south of Cyprus, and the last part being

reserved for allocation to settlers from Anatolia; (ii) to concentrate

in the hands of the "Federated State" all Turkish-Cypriot owned land

in the Government-controlled area, this being effected by establishing

a value-points system by which Turkish Cypriots surrendered their land

there to the "Federated State" by signing a "renunciation certificate"

upon obtaining Greek-Cypriot owned land in the occupied area.

Allegedly, this law was also used to benefit members of the Turkish

Cypriot political hierarchy, it was administered corruptly and used as

a vehicle for rich Turks and protegees of the Turkish Government,

including even Turkish Generals, to buy "value points" from Turkish

Cypriot displaced persons.

Subsequently, there was a continuing process of "amending" the

law in order to be able to grant "title", rather than mere physical

possession, to Turkish settlers (amending laws 5/1981, 27/1982,

23/1985, 3/1988, 12/1989 - changing the title of the law into "Law for

Settlement and Distribution of Land and Property of Equivalent Value"

- 44/1990 and 24/1991). According to the applicant Government, these

amendments pursued fresh policy aims, namely (i) to clarify (and

extend) the categories of persons "entitled"; (ii) to enable tourist

development (by "leasing" areas for this purpose, in particular to Mr.

Asil Nadir's company); (iii) to make it feasible for mortgages to be

obtainable by "certificate" holders; (iv) to allow land to be bought

by Turkish settlers and persons who did not surrender their property

in the Government-controlled area, and (iv) to allow the grant of

"title" rather than "infinitive possession" as earlier provided.

The law now accords a claim to be issued "deeds of title" to the

following categories of persons: (i) Turkish Cypriots who have left

property in the Government-controlled area; (ii) "War veterans"

(Turkish army officers illegally seconded to Cyprus in 1958-59 or 1963-

67); (iii) Members of the "Turkish Peace Force" (the 1974 Turkish army

of invasion); (iv) Turkish army personnel who served in Cyprus after

the 1974 invasion and (v) persons who had settled by May 1983 in the

occupied area. Post-May 1983 Turkish settlers may be "allocated"

custody of land on different criteria and conditions.

On the pretext that there had been "a population exchange" which

ought to be followed by a "property exchange", "certificates of

definite possession" started to be issued to Turkish Cypriots as from

20 December 1982. The holders of such certificates were permitted to

burden the property with mortgage. However, further implementation of

the law was not pursued at that time, due to the introduction of the

last inter-State application by Cyprus against Turkey. However, by

mid-1986 international pressures on Turkey regarding Cyprus had eased

and Turkey required full implementation of the law in order to satisfy

the promises which had been made in Turkey to intending settlers that

they would be given ownership of land in the occupied area. Thus the

Economic Co-operation Protocol of 1986 provided that "the laws for the

distribution of equivalent property shall be reviewed so that a just

distribution shall be provided and the criteria for the allocation of

property shall be reviewed". Nevertheless, because of international

pressure the law had still not been fully implemented by 1990. In

particular, Turkish settlers, "war veterans" and persons who had

participated in the "Peace Operation" were not given "titles". A

document of principles signed by the Prime Minister of Turkey on 25

July 1990 stipulated that "taking into consideration the importance and

the value of the right to property, the Turkish Republic shall provide

all necessary support to speed up the application of the Settlement,

Rehabilitation and Equivalent Property Law and to complete the

necessary legal arrangements in 1990". The subsequent 1991 amendment

of the law distinguished between "compensation rights" for land vacated

in the Government-controlled area, such rights going to Turkish

Cypriots, and "allotment rights" for Turkish settlers. According to

a statement of the TRNC "Housing Minister", Mr. Yumuk, of February 1991

"title deeds" would be issued to all "entitled" to them and all TRNC

"citizens" would become "legal owners" of such property. According to

a further statement by Mr. Yumuk of March 1992, all land not kept by

the TRNC State for its own purposes was to be disposed of by grant of

these rights, 53 % being allocated to persons who had left property in

the south and 47 % to settlers.

Nevertheless, the law was still only partly implemented, most of

the issued deeds going to Turkish Cypriots. The Economic Co-operation

Protocol of 1992 therefore again provided that the TRNC authorities

"will try to complete implementation" of the law concerned and that the

Republic of Turkey "will provide necessary assistance and support".

However, due to international pressure and alleged "legal

difficulties", "title deeds" were still not issued to Turkish "war

veterans" and settlers. According to the Turkish Cypriot press it was

reported in February 1994 that Turkey, as an aspect of the "support"

mentioned in the 1992 Protocol, would now provide money to Turkish "war

veterans" and settlers in order to enable them to purchase land. TRNC

"Prime Minister" Atun then explained that Turkey had only discussed the

question of "title deeds" being used for mortgages to secure bank

loans.

The applicant Government also refer to provisions of the TRNC

"Constitution" of 1985 (Article 159 read in conjunction with Articles

36(5) and 164) according to which Greek Cypriot property was

expropriated on the ground that it had been found "abandoned" on

13 February 1975 in the "Turkish Federated State of Cyprus", that it

was "described by law" as "abandoned", or that the title deeds belong

to "non-citizens" of the TRNC. They submit that the acts concerned

were declared illegal and invalid by the UN Security Council and that

accordingly the purported "expropriation" is void in international law

and in the municipal law of the Republic of Cyprus. Although Turkey

and her local administrative apparatus have sought to throw a cloak of

legality over the process of de facto expropriation, they have not

achieved their objective of obtaining "legality". It is contended that

there has not yet been a "final taking" of most Greek Cypriot property

by way of lawful issue of new "title deeds", despite repeated threats

to do so. The international community was even from time to time

assured that Greek Cypriot ownership rights remained, e.g. in a

statement of Mr. Denktash to the UN Secretary General in 1987 according

to which "no actual transfer of ownership had taken place".

Nevertheless, TRNC "Prime Minister" Eroglu stated in 1993 that in his

administration 10,000 "title deeds" had been issued and a UN Report of

December 1994 mentions that 17,000 "title deeds" were about to be

issued. As the Turkish Cypriot press reported in February 1995, a new

amendment bill was being prepared which would allow the grant of "clean

title deeds", i.e. unrestricted ownership, to 17,000 families. The

President of the Republic of Cyprus on 27 February 1995 addressed the

UN Secretary General informing him of the threat of this system being

introduced in northern Cyprus.

The applicant Government refer to a number of examples of Greek

Cypriot property affected by specific measures. They include

- the situation in Varosha where the property of 15,130 Greek

Cypriots has been left uninhabited for 20 years (see above);

- the transfer of all Church-owned land to Evkaf, the Moslem

religious trust, by a decision of the "Government of the Turkish

Federated State of Cyprus" in 1975;

- the subdivision of land at Ayios Epiktitos and its advertisement

for sale in plots;

- the development of land for commercial profit, in particular for

touristic purposes, including the construction of hotel

apartments offered for sale to foreigners; exploitation of hotels

by a tourism organisation controlled by mainland Turkish

companies; licencing of the repair and alteration of hotels;

licencing of the construction of a touristic village on hitherto

unconstructed land; leasing of land for development; and

exploitation of properties by Turkish business establishment and

persons closely associated with Turkey's political and banking

hierarchy.

The applicant Government submit that the Greek Cypriot owners are

not given any compensation or remedy for the continuing deprivation of

their property.

Turkish Cypriots

The applicant Government submit that the Turkish armed forces

also restrict the freedom of movement of Turkish Cypriots. It is

contended that no such restrictions are being applied by the

authorities of the Republic of Cyprus. As a consequence, Turkish

Cypriots are denied access to the property which they have left behind

in the Government-controlled area, nor can they attend meetings with

Greek Cypriots in the occupied area, in the buffer zone, or in the

Government-controlled area, all this requiring permission which is

often refused and sometimes withdrawn after permission has been

granted. The case of Dr. Ahmed Cavit An has been mentioned. He was on

107 occasions refused permission to leave northern Cyprus for the

Government-controlled area. Dr. Cavit has introduced an individual

application to the Commission complaining of these restrictions.

Allegedly, he was told that he could never again leave the northern

area and his social contacts there were strangled.

Turkish Cypriots are also affected by the prohibition on the

circulation of Greek language newspapers in northern Cyprus and by the

fact that Article 156 of the TRNC "Constitution" confers extensive

jurisdiction over civilians on "military courts".

The Turkish Cypriot gypsy community is allegedly discriminated

against. Some 70 gypsy families (over 300 persons) sought asylum in

the United Kingdom in 1994, alleging that they had no human rights in

the occupied area and were treated as second class citizens. They

embarked on a Turkish Airlines flight to London, but the flight stopped

at Istanbul. The gypsies were severely beaten by the Turkish police and

returned to northern Cyprus. They eventually managed to leave and

arrived in London in September 1994, where they sought asylum.

COMPLAINTS

The applicant Government allege violations of Articles 1, 2, 3,

4, 5, 6, 8, 9, 10, 11 and 13 of the Convention, of Articles 1, 2 and

3 of Protocol No. 1 to the Convention, and of Articles 14 and 17 of the

Convention in conjunction with all these Articles.

As to Article 1, it is submitted that Turkey fails to secure

Convention rights by its agents participating in, assenting to,

acquiescing in, or tolerating the violation of these rights, and by

lack of diligence in taking action to prevent, stop or remedy such

violations.

The applicant Government also allege a violation of Article 32

para. 4 of the Convention by Turkey's failure to put an end to the

violations of the Convention established in the Commission's Report on

Applications Nos. 6780/74 and 6950/75, as requested in the Committee

of Ministers decision in that case. In the applicant Government's

submission this decision is binding on Turkey, the only State which the

Commission had found to have committed violations of the Convention.

As to the violation of specific Convention guarantees, the

applicant Government invoke the following provisions:

1. Regarding the Greek Cypriot missing persons, it is submitted that

if they should still be in Turkish custody 20 years after the cessation

of hostilities, this would be a grave breach of Article 5 of the

Convention and also a form of slavery or servitude contrary to Article

4 of the Convention. The consistent failure of Turkey to provide

information on the fate of these persons to their relatives allegedly

constitutes a grave breach of Articles 3 (inhuman treatment), 8

(respect for family life) and 10 of the Convention (right to receive

information).

2. Regarding the Greek Cypriot displaced persons, the applicant

Government, relying on the Commission's Reports concerning the earlier

inter-State cases, submit that there is now a gravely aggravated

violation of the right to respect for family life under Article 8 of

the Convention by the continued and consistent refusal to allow

displaced Greek Cypriots to return to their families in northern

Cyprus. The continued refusal to allow the return to their homes

allegedly constitutes a further violation of Article 8, the concept of

"home" in that provision extending to the human and natural

environment and conditions of life surrounding the buildings and

localities concerned. In this context the applicant Government refer

to the measures to change the nature of Greek Cypriot homes in northern

Cyprus by the organised settlement of mainland Turks, the "turcisation"

of the area and the elimination of all traces of Greek culture. The

continuing refusal to allow the return of displaced Greek Cypriots to

the northern area is not just a question of the right to liberty of

movement as guaranteed by Protocol No. 4 (which Turkey has not

ratified). As it is specifically designed to prevent Greek Cypriot

owners from having access to, from using and from enjoying their

property in the northern area, it also amounts to continuing violations

of Article 1 of Protocol No. 1, intensified by the consistent pattern

of interferences carried out by stages, the allocation of the property

in question to Turkish Cypriots and settlers, the attempts for the

legalisation of the de facto expropriation and for the eventual

deprivation of Greek Cypriot titles. The applicant Government also

emphasise that the Greek Cypriot owners were not given any compensation

and no remedies against the deprivation of their possessions and their

exploitation under Turkish authority. Any remedies which may be

available in domestic courts in Turkey or in northern Cyprus cannot be

considered as practicable and normally functioning in respect of

displaced Greek Cypriots who are denied entry to that area and are

treated as "aliens" under the TRNC "Constitution", which further

regards their properties as "abandoned". The courts, being policy-

bound to implement measures by the Turkish authorities, or working

under the TRNC "Constitution", cannot be impartial or provide an

effective remedy under such circumstances. The applicant Government

therefore also allege a violation of Article 13 of the Convention.

They further submit that the continued refusal to allow displaced

Greek Cypriots to return to their homes and families in the northern

part of Cyprus, and the continued deprivation of their possessions

located in this area are discriminatory and contrary to Article 14 of

the Convention.

It is finally alleged that displaced Greek Cypriots are deprived

of their right under Article 3 of Protocol No. 1 to be able to vote in

free elections under conditions which will ensure the free expression

of the will of the people in the choice of the legislature. While they

can vote in the Republic of Cyprus, they are being prevented from

effectively enjoying freely elected representatives in the Cyprus

legislature in respect of the northern territory. The deputies elected

in the Republic of Cyprus in respect of this territory cannot get

access to it and are prevented from legislating effectively in respect

of that area.

3. As regards enclaved Greek Cypriots in the Karpas area, the

applicant Government submit in the first place that the combination of

restrictions and fierce pressures placed on them, having regard to the

advanced age of many of the victims and the consistent pattern of

action against them, amounts to inhuman and degrading treatment within

the meaning of Article 3 of the Convention. They contend that this

treatment is deliberately inflicted on the persons in question with a

view to making them leave the area. The Commission is specifically

asked to make a finding on the inhuman methods of coercion used for

this purpose. The Turkish conduct in its totality should be examined

under Article 3 notwithstanding that various aspects of it also fall

to be considered under other provisions of the Convention.

In this respect, the applicant Government further allege breaches

of the following Convention articles : Article 2 (denying the protection

of life to enclaved persons in urgent need of medical treatment);

Article 5 (threat to individual Greek Cypriots' security of person and

absence of official Turkish action to prevent this); Article 8

(interference with the right to respect for private life, family life,

home and correspondence); Article 9 (freedom of religion); Article 10

(freedom to receive and impart information and ideas); Article 11

(restrictions on freedom of association, in particular between the

various groups of enclaved persons and between enclaved persons and

Greek Cypriots in the Government-controlled area); Article 13 (failure

to provide effective remedies); Article 14 (Convention rights not being

secured to Greek Cypriots without discrimination, the violation of

their rights occurring on grounds of their race, language, religion,

national origin or status as Greek Cypriots or Maronites, the latter

being subjected to somewhat less harsh treatment); Article 1 of

Protocol No. 1 (deprivation of possessions and interference with

peaceful enjoyment of possessions); Article 2 of Protocol No. 1 (denial

of secondary education and disrespect for parents' right to ensure

education in conformity with their religious and philosophical

convictions). Also alleged is a breach of Article 6 of the Convention

by virtue of withholding a fair and public hearing by an independent

and impartial tribunal to Greek Cypriots whose civil rights have been

infringed.

4. As regards Turkish Cypriots, the applicant Government submit that

they are also victims of violations of their right to the peaceful

enjoyment of their possessions under Article 1 of Protocol No. 1, since

the Turkish authorities do not allow their return to their properties

in the Government-controlled area; of Article 11 of the Convention,

because they are denied the right to freely associate with Greek

Cypriots either in the occupied area, the buffer zone or the

Government-controlled area; of Article 10 of the Convention, because

they too may be affected by the prohibition on the circulation of Greek

language newspapers in northern Cyprus; of Article 6 of the Convention,

by virtue of their being subjected to "military courts" which do not

ensure that charges against them are heard by an independent and

impartial tribunal; and of Article 5 of the Convention, because the

security of person of Turkish Cypriots is not ensured. Concerning the

particular incident involving the Turkish Cypriot gypsies who sought

asylum in the United Kingdom, the applicant Government invoke Articles

3, 5 and 8 of the Convention. It is also submitted that there are no

relevant or sufficient remedies available to the Turkish Cypriots

concerned as the interferences with their rights have been effected by

Turkish State policy, administrative practices and "law" incompatible

with the Convention. Therefore it is claimed that Article 13 is

violated also in this respect.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced by the applicant Government on

22 November 1994 and registered on 24 November 1994.

On 24 November 1994, the President of the Commission decided,

pursuant to Rule 45 para. 1 of the Commission's Rules of Procedure,

that notice should be given to the respondent Government. A time-limit

was fixed for the submission of written observations on the

admissibility of the application by the respondent Government, but this

time-limit subsequently became obsolete due to the delay in the

submission of the "Particulars" announced by the applicant Government

in the initial application.

The Commission considered the state of proceedings on 28 November

1994. On 5 December 1994 it agreed to fix 9 January 1995 as the time-

limit for the submission by the applicant Government of the

"Particulars" announced in the initial application. The "Particulars"

with appendices were submitted by the applicant Government, after two

extensions of the time-limit, on 3 March 1995.

On 8 March 1995, the "Particulars" were transmitted to the

respondent Government who were invited to submit observations in

writing on the admissibility of the application before 5 June 1995.

After two extensions of this time-limit, the respondent Government

submitted their observations, with appendices, on 10 July 1995.

On 17 July 1995, the applicant Government were invited to submit

observations in reply before 16 October 1995. After two extensions of

this time-limit, the applicant Government submitted observations,

together with extensive annexes, documentary exhibits, legal and other

appendices, on 19 December 1995. They were received by the Commission

and transmitted to the respondent Government for information, on

3 January 1996.

On 23 January 1996, the Commission considered the state of the

proceedings and decided to invite the parties to submit oral argument

at a hearing to be held at its session in June 1996. Specific

questions were put to the parties to be dealt with at the hearing.

In preparation of the hearing, the applicant Government submitted

additional documentary material on 11 and 13 June 1996. The respondent

Government submitted a brief on 24 June and further documents on the

day of the hearing, 28 June 1996.

At the hearing, the parties were represented as follows:

- the applicant Government:

Mr. Alecos MARKIDES, Attorney General of the Republic, Agent of

the Government, assisted by the following Counsel: Mr. Ian

BROWNLIE, Q.C., Member of the English Bar; Prof. Malcolm SHAW,

University of Leicester, Barrister-at-Law; Mr. Polyvios POLIVIOU,

Barrister-at-Law; Mrs. Stella Mary JOANNIDES, Council of the

Republic; Dr. Claire PALLEY, Consultant to the Ministry of

Foreign Affairs; and Mr. Nicos EMILIOU, Consultant to the

Ministry of Foreign Affairs;

- the respondent Government:

Prof. Dr. Bakir ÇAGLAR, Agent of the Government, assisted by the

following Counsel: Prof. Dr. Heribert GOLSONG, Mr. Zaim

NECATIGIL, Mrs. Denis AKÇAY, Mr. Özer KORAY, Mr. Ertugrul APAKAN,

Mr. Türel ÖZKAROL and Mr. Aydin AKAY.

THE LAW

In their written and oral submissions the respondent Government

have raised a number of objections to the admissibility of the

application. The Commission will examine these objections under the

following headings:

I. Alleged lack of jurisdiction and responsibility of the respondent

Government in respect of the acts complained of by the applicant

Government;

II. Alleged identity of the present application with the previous

applications introduced by the applicant Government against the

respondent Government, and alleged abuse of the Convention

procedure by the applicant Government;

III. Alleged special agreement to settle the dispute by means of other

international procedures;

IV. Alleged failure to exhaust domestic remedies and to comply with

the six months rule.

I. Alleged lack of jurisdiction and responsibility of the respondent

Government in respect of the acts complained of by the applicant

Government

The respondent Government claim that the facts alleged do not

fall within their "jurisdiction" within the meaning of Article 1

(Art. 1) of the Convention. They deny their responsibility for the

alleged violations, due to the absence of Turkish authority in northern

Cyprus and the omnipresence of Turkish Cypriot authority.

The respondent Government argue that the questions of

"jurisdiction" and "imputability" belong in principle to the merits

stage of the procedure. Nevertheless they have submitted a number of

arguments concerning these questions already at the admissibility

stage.

In the respondent Government's submission, the concept of

"jurisdiction" within the meaning of Article 1 (Art. 1) of the

Convention does not necessarily coincide with the notion of

international State responsibility. In their submission a distinction

must be made in this respect between the exercise of "territorial

jurisdiction" and "personal jurisdiction". International

responsibility coincides with territorial jurisdiction where it is

exercised on a State's own national territory. Responsibility under

the Convention for exercise of territorial jurisdiction outside the

national territory is exhaustively regulated in Article 63 (Art. 63)

of the Convention. It presupposes a situation where the State

concerned is responsible for the international relations of the

territory in question and requires a special declaration to be made at

the time of ratification or later. This will circumscribe the

applicability of the Convention ratione loci. The respondent

Government refer by way of example to the Commission's decision

concerning an application against the United Kingdom which was rejected

on the ground that the facts complained of had occurred in Hong Kong

for which no declaration had been made under Article 63 (Art. 63)

(No. 16137/90, Dec. 12.3.90, D.R. 65 p. 330).

Also in the decision on the admissibility of applications

Nos. 6780/74 and 6950/75 introduced by Cyprus against Turkey

(Dec. 26.5.75, D.R. 2 p. 125), the Commission did not state that

northern Cyprus was within the territorial jurisdiction of Turkey.

Rather, Turkey was held to be responsible on the basis of personal

jurisdiction exercised by her agents outside the national territory

over the alleged victims of violations of the Convention. Quoting this

decision, the same approach was adopted by the Court in its Drozd and

Janousek v. France and Spain judgment of 26 June 1992 (Series A

no. 240). The respondent Government submit that in the case of

exercise of such personal jurisdiction it is necessary in each case to

prove the causal link between the action of a State official and the

alleged facts. It must be shown that at the time of the incriminated

acts the State authorities exercised effective control over the

victims, this being a question of fact. In the respondent Government's

submission the applicant Government wrongly seek to be relieved from

having to demonstrate on a case by case basis the imputability to

Turkey of the various acts complained of, relying only on the allegedly

illegal presence of Turkish troops along the cease-fire line and

disregarding the fact that there is no global territorial jurisdiction

of Turkey in northern Cyprus.

The respondent Government contend that there is no military

occupation of northern Cyprus by Turkey, but rather that there has been

an evolution towards the creation of their own independent State by the

Turkish Cypriot community in exercise of their right to self-

determination. In this respect, the respondent Government refer in

detail to the history of Cyprus since 1960 emphasising in particular:

(i) the bi-communal character of the 1960 Constitution and the

obligation of Cyprus, under international treaty obligations guaranteed

by the signatories of the 1960 Treaty of Guarantee, to maintain her

independence, territorial integrity and the fundamental principles of

the Constitution;

(ii) the alleged responsibility of the Greek Cypriot side for the

breakdown of the 1960 constitutional arrangements in 1963 and the

subsequent changing of basic principles of the Constitution;

(iii) the allegedly intolerable situation of enclaved Turkish

Cypriots in the period between 1964 and 1974, which caused them to set

up their own administration as from December 1967;

(iv) the fact that the Turkish intervention in July 1974 was

preceded by a coup d'Etat of Greek officers of the National Guard who

pursued the aim of unification of Cyprus with Greece (Enosis);

(v) the contention that the Turkish military operation in 1974

was carried out in conformity with Article IV of the Treaty of

Guarantee to protect the right of Turkish Cypriots;

(vi) the contention that the subsequent relocation of both the

Turkish Cypriot and the Greek Cypriot communities in separate parts of

the island was the result of agreements achieved in intercommunal talks

held in Vienna in July/August 1975, these agreements being fully

implemented on a voluntary basis under UN auspices, UN troops moving

into the newly established buffer zone;

(vii) the alleged agreement achieved in 1977 and 1979 between the

Turkish Cypriot and Greek Cypriot leaders for seeking a federal

solution on the basis of a bi-communal and bi-zonal federation, a

concept which it is contended is still valid as a basic guideline for

the intercommunal talks;

(viii) the contention that the establishment of the TRNC as an

independent State on 15 November 1983 was declared by the legitimate

representative body of the Turkish Cypriots in exercise of their right

to self-determination, and that it was not secession as the bi-communal

Republic of Cyprus had ceased to function due to the actions of the

Greek Cypriot side since 1963;

(ix) the contention that the subsequent development of TRNC

institutions was legitimate and in line with democratic principles and

that it consolidated the statehood of the TRNC according to criteria

accepted in international law;

(x) that despite the fact that it has not been recognised de iure

by any other State than Turkey, the TRNC exists de facto as an

independent State exercising all branches of State power on its

territory - the respondent Government invoke de facto recognition of

the TRNC by the courts of several States and the fact that Turkey has

recognised the TRNC de iure and does not claim for herself to exercise

power in that area;

(xi) finally as regards the role of the Turkish forces in

northern Cyprus, the respondent Government claim that they are there

in a peace-keeping function at the request and with the consent of the

TRNC, that they act under the latter's authority and do not themselves

exercise governmental power. It is claimed that their status is not

essentially different from that of Greek military forces in southern

Cyprus.

The respondent Government therefore refute the applicant

Government's submission that Turkey exercises overall control and

jurisdiction in northern Cyprus and that this creates an "irrebuttable

presumption of Turkish control and responsibility". The respondent

Government claim that already in its Reports concerning the earlier

inter-state cases the Commission qualified the finding as to Turkish

jurisdiction in northern Cyprus by limiting it to the border area.

They further observe that the alleged assumption of responsibility

cannot be irrebuttable, because the Commission examined whether the

particular acts complained of were in fact imputable to Turkey.

This approach was also followed by the Commission in applications

Nos. 15299/89 and 15300/89, Chrysostomos and Papachrysostomou v.

Turkey. In its Report of 8 July 1993 the Commission again limited its

finding of Turkish responsibility to the border area due to "overall

control exercised by Turkish forces in that area". However, the

Commission also found that the applicants' subsequent detention and

trial were not imputable to Turkey, thus accepting that there was no

control by Turkey over the prison administration or the administration

of justice by Turkish Cypriot authorities, and furthermore taking

cognizance of the law in force in the TRNC by finding that the

detention had been "lawful" and "in accordance with a procedure

prescribed by law".

The applicant Government refute all these arguments.

In their submission, the provisions of the Convention must be

applied having regard to the general principles of international law

concerning State responsibility. Under these principles, it is a

sufficient condition for holding a State responsible under

international law if it exercises effective control over a given

territory. In the applicant Government's view Turkey, as the State in

exclusive occupation and control of northern Cyprus, therefore is the

only international person legally accountable in international law for

events in the entire occupied area, including any violations of the

Convention. Because of its overall control it has the physical ability

to impose its will on the area and its residents, and thus exercises

"jurisdiction" within the meaning of Article 1 (Art. 1) of the

Convention over all persons and property in that area. The exercise

of jurisdiction creates an irrebuttable presumption of control and

responsibility. The concept of "control" must be understood in a legal

context and it does not require the actual presence of Turkish armed

forces at the scene of a violation.

In the applicant Government's submission Turkey cannot avoid her

legal responsibility by claiming that the acts complained of are

imputable to the TRNC. The creation of local administrative structures

or "puppet institutions" in northern Cyprus has been sponsored by the

Turkish mainland authorities which in fact continue to control and

direct these institutions. Their establishment has been declared

illegal and invalid by the UN Security Council and States have not

recognised, and are obliged not to recognise, the TRNC, which thus is

not capable of exercising any jurisdiction of its own. Moreover, it

is claimed that Turkish armed forces are stationed throughout the

occupied area and that Turkish military courts exercise effective

authority over civilians.

In support of their argument, the applicant Government rely in

particular on the Eur. Court HR Loizidou v. Turkey (Preliminary

Objections) judgment of 23 March 1995 (Series A no. 310) which in their

submission confirms the view that Turkey must be considered as

exercising effective control and thus jurisdiction within the meaning

of Article 1 (Art. 1) of the Convention, over the entire area of

northern Cyprus. At the same time the applicant Government criticise

the approach adopted by the Commission in its Report concerning the

Chrysostomos and Papachrysostomou case, where Turkey was not held

responsible for certain acts of the TRNC authorities. They claim that

the Commission's approach in that case was based on wrong assumptions

concerning the legal status of the so-called "buffer zone" and the

relationship between the Turkish and the Turkish Cypriot authorities.

The Commission agrees with the respondent Government that the

question as to Turkey's "jurisdiction" in northern Cyprus and its

responsibility under the Convention for the acts complained of must in

principle be determined at the merits stage of the proceedings.

Article 27 para. 2 (Art. 27-2) of the Convention, which permits the

Commission to reject applications inter alia on the ground that they

are incompatible with the provisions of the Convention, does not apply

in respect of applications submitted under Article 24 (Art. 24) of the

Convention and accordingly cannot be applied either in such

applications where the respondent Government raise the objection that

particular complaints are incompatible with the Convention ratione loci

or ratione personae. However, this cannot prevent the Commission from

establishing already at this preliminary stage, under general

principles governing the exercise of jurisdiction by international

tribunals, whether it has any competence at all to deal with the matter

laid before it.

In this respect, the Commission follows the approach adopted by

the Court in the Loizidou v. Turkey (Preliminary Objections) judgment

of 23 March 1995. It will limit the examination to the question whether

its competence to examine the applicant Government's complaints is

excluded on the grounds that they concern matters which cannot fall

within the "jurisdiction" of the respondent Government (loc. cit., p.

23, para. 60), leaving open, at this stage, the question whether the

respondent Government is actually responsible under the Convention for

the acts which form the basis of the applicant Government's complaints

and the further question as to which are the principles that govern

State responsibility under the Convention in a situation like that

obtaining in the northern part of Cyprus. The Commission's examination

will thus be limited to determining whether the matters complained of

by the applicant Government are capable of falling within the

"jurisdiction" of Turkey even though they occur outside her national

territory (ibid, para. 61).

The Commission recalls that, although Article 1 (Art. 1) sets

limits on the reach of the Convention, the concept of "jurisdiction"

under this provision is not restricted to the national territory of the

High Contracting Parties. In its above judgment, the Court quoted a

number of examples from its case-law and then continued, with regard

to the particular situation in the northern part of Cyprus:

"Bearing in mind the object and purpose of the Convention,

the responsibility of a Contracting Party may also arise

when as a consequence of military action - whether lawful

or unlawful - it exercises effective control of an area

outside its national territory. The obligation to secure,

in such an area, the rights and freedoms set out in the

Convention derives from the fact of such control whether it

be exercised directly, through its armed forces, or through

a subordinate local administration." (loc. cit., p. 24,

para. 62)

The Commission notes that certain of the complaints submitted by

the applicant Government in the present case relate to the loss of

control of property by Greek Cypriots due to the presence of Turkish

troops in the northern part of Cyprus and the establishment there of

the TRNC, it being claimed that access to the property concerned is

being prevented by Turkish troops. This situation is similar to that

in the Loizidou application where the Court held that the acts

complained of were capable of falling within Turkish "jurisdiction"

within the meaning of Article 1 (Art. 1) (loc. cit., p. 24, paras. 63-

64). The Commission reaches the same conclusion concerning the above

complaints.

The Commission has examined whether the various other complaints

submitted by the applicant Government in the present application are

also capable of falling within Turkey's jurisdiction in this sense.

While a definitive answer cannot be given regarding each particular

complaint at this stage, the Commission considers that, generally

speaking, the applicant Government have sufficiently demonstrated the

possibility of a direct or indirect involvement of Turkish authorities.

The Commission therefore does not find reasons to exclude at this stage

any part of the application on the ground that the acts complained of

are prima facie incapable of falling within Turkish jurisdiction within

the meaning of Article 1 (Art. 1).

This finding does not in any way prejudge the questions to be

determined at the merits stage of the proceedings, namely whether the

matters complained of are actually imputable to Turkey and give rise

to her responsibility under the Convention.

II. Alleged identity of the present application with the previous

applications introduced by the applicant Government against the

respondent Government, and alleged abuse of the Convention

procedure by the applicant Government

The respondent Government claim that the present application is

essentially a repetition of the previous applications Nos. 6780/74,

6950/75 and 8007/77. Claimant and respondent are identical and the

alleged violations of the Convention are essentially the same as those

covered by application No. 8007/77. The respondent Government contest

that there are "continuing violations " and claim that in reality the

applicant Government complain of the lasting consequences of

instantaneous acts which occurred a long time ago and which under the

Commission's case-law cannot as such give rise to new complaints. The

acts or omissions complained of do not relate to new victims (e.g. no

further persons went missing, and the 170,000 displaced Greek Cypriots

and the separated families are the same as before) nor do they disclose

new information (e.g. the problem of Turkish settlers, the alleged

inhuman treatment of enclaved Greek Cypriots and the alleged violations

of the rights of Turkish Cypriots had all been included in the previous

application). The Convention articles invoked are the same as in

application No. 8007/77, except for Articles 9, 10 and 11

(Art. 9, 10, 11) which were not cited in that case while the facts

raised under those articles had indeed been mentioned. The only

apparently new allegation concerns the alleged violation of Article 3

of Protocol No. 1 (P1-3), but in substance also this complaint had been

contained in the previous application when the applicant Government

complained of the autonomous State structure in northern Cyprus. The

respondent Government moreover consider this apparent new allegation

as wholly misconceived and unsubstantiated, lacking the requirement of

a genuine allegation in the sense of Article 24 (Art. 24) of the

Convention.

The respondent Government recall that an argument based on the

principle "ne bis in idem" had been submitted by them already in

application No. 8007/77, but had been rejected by the Commission. They

nevertheless maintain that there should be a limit to repetitive

applications and, even allowing for a different treatment of State

applications in this respect, the Convention cannot be interpreted in

such a way as to make it possible for inter-State applications to be

brought ad infinitum. In their view the limit was exhausted with

application No. 8007/77.

The respondent Government further submit that since the

consideration of that case by the Commission the situation has changed

in that Turkey has in the meantime accepted the compulsory jurisdiction

of the Court by making a declaration to that effect under Article 46

(Art. 46) of the Convention. In this context, they submit that it is

inadmissible and contrary to basic principles of the administration of

justice that an attempt is now apparently being made by the applicant

Government to raise the same matters again with a view to eventually

bringing the case before the Court. This, it is claimed, violates not

only a general principle of law to be found in all developed national

legal systems, but also the basic concept of the Convention itself.

The principle in question is reflected in the Roman law adage

"electa una via non datur recursus ad alteram", in the French concept

of "procedural foreclosure", in the German and U.S. concepts of "claims

preclusion" and in the common law principle of "procedural preclusion"

or "collateral estoppel". The respondent Government submit that

similarly the Convention system provides for two separate and mutually

exclusive channels for the final decision of any application under

Article 24 or 25 (Art. 24, 25) of the Convention, one before the

Committee of Ministers and the other before the Court. There is no

link allowed between the two channels and their respective final

decision-making body. Each decision made by either of these bodies is

a matter of "res iudicata" within the legal framework of the Convention

to the effect that neither body may reopen matters decided upon by the

other body. The one cannot act as a court of appeal or revision over

the decisions of the other.

In the present case, this must lead to the conclusion that the

application is incompatible with the supervisory system of the

Convention because the matters raised have already been dealt with in

the previous inter-State applications and are "res iudicata" after the

relevant decisions of the Committee of Ministers, Res. DH (79) 1 of 19

January 1979 concerning applications Nos. 6870/74 and 6950/75, and Res.

DH (92) 12 of 2 April 1992 concerning application No. 8007/77. The

respondent Government consider that these resolutions made under

Article 32 (Art. 32) of the Convention have settled finally and with

binding effect with respect to other bodies within the Convention

system, the earlier cases introduced by the applicant Government, the

Committee of Ministers not agreeing with the Commission's opinion and

finding no violation by Turkey of any provisions of the Convention.

In the respondent Government's opinion the applicant Government's

apparent attempt to have the above rulings of the Committee of

Ministers "revised" by the Court, also amounts to an abuse of the

Convention procedure.

The applicant Government refute these arguments and claim that

they are entitled to complain of continuing violations in respect of

situations which have already been dealt with in the Commission's

earlier reports. The continuing violations in question relate to a

different period not covered by these reports, and they are supported

by new facts which have occurred since the adoption of the last report

and which have led to an intensification and aggravation of the

violations in question. It is further claimed that certain of the

complaints raised in the present application are entirely new.

In the applicant Government's view there can be no question of

"res iudicata" as the alleged violations are continuing and the

decisions concerning the earlier cases produce no forward effect. In

any event they claim that the Committee of Ministers' resolutions in

these earlier cases were not sufficiently specific to constitute

decisions with "res iudicata" effect; rather these resolutions must be

regarded as non-decisions.

The Commission recalls its decision on the admissibility of the

previous inter-State application between the same parties (No. 8007/77,

Dec. 10.7.78, D.R. 13, p. 85) where it was confronted with similar

arguments of the respondent Government. The Commission reiterates

that, having regard to the clear terms of Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention, it cannot find that it is authorised

under the Convention to declare inadmissible an application filed under

Article 24 (Art. 24) by a High Contracting Party on the ground that it

is substantially the same as a previous inter-State application. For

so doing would, in the Commission's view, imply an examination, though

preliminary, of the merits of the application - an examination which

in inter-State cases must be entirely reserved for the post-

admissibility stage (loc. cit., p. 155, para. 49). This does not

exclude, however, that the Commission will have to consider at the

merits stage whether and, if so, to which extent the present inter-

State application is substantially the same as a previous one. As the

Commission observed in its Report on the above application (No.

8007/77, Comm. Report 4.10.83, D.R. 72, p. 5), Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention reflects a basic legal principle of

procedure which in inter-State cases arises during the examination of

the merits. It cannot be the Commission's task again to investigate

complaints already examined in a previous case, and a State cannot

therefore, except in specific circumstances, claim an interest to have

new findings made where the Commission has already adopted a Report

under Article 31 (Art. 31) of the Convention concerning the same matter

(loc. cit., p. 22, para. 56).

The Commission therefore reserves the question whether and, if

so, to which extent the applicant Government can have a valid legal

interest in the determination of the alleged continuing violations of

the Convention insofar as they have already been dealt with in previous

Reports of the Commission. The Commission notes, in this context, that

at least some of the complaints raised do not seem to be covered by

definitive findings in earlier Reports, and some others seem to concern

entirely new facts.

As to the further argument of the respondent Government that the

Commission is precluded from examining the present application by

virtue of an alleged "res iudicata" effect of the Committee of

Ministers' decisions concerning the previous inter-State applications,

this could apply only to the extent that the subject matter of the

application is the same as that of the previous cases. As stated

above, this is a question which can only be determined at the merits

stage of the proceedings.

In any event, the Commission, having regard to the specific text

of the Committee of Ministers' Resolution DH (79) 1 concerning

Applications Nos. 6780/74 and 6950/75, did not accept a similar

argument presented by the respondent Government in relation to

Application No. 8007/77 and confirmed the applicant Government's legal

interest in the determination of alleged continuing violations (Report

4.10.83, D.R. 72, p. 23, para. 62). The same must apply in the present

case insofar as a precluding effect of the same Committee of Ministers'

Resolution is invoked. As to any precluding effect attributed by the

respondent Government to the Committee of Ministers Resolution DH (92)

12 concerning Application No. 8007/77, the Commission notes that this

resolution merely authorised the publication of the Commission's

Report, without containing any findings as to violations of the

Convention. For this very reason there can be no "res iudicata" effect

of this decision.

Insofar as the respondent Government claim that the applicant

Government, by raising the same complaints again, apparently want to

bring the matter before the European Court of Human Rights thereby

abusing the Convention procedure in a manner incompatible with the

structure of the Convention ("collateral estoppel"), the Commission

observes that this argument, again, presupposes a pronouncement on the

question whether the present application is identical to the previous

ones, a matter which can only be decided at the merits stage. Apart

from that, the Commission does not find it appropriate to speculate

about the intentions of the parties concerning their further conduct

of the proceedings. If in fact the applicant Government should decide

in the future to bring the case before the Court, it would be for the

latter to decide the question whether or not it is precluded from

examining the application on the grounds invoked by the respondent

Government.

The Commission also recalls that the Convention itself does not

empower it to reject an application introduced under Article 24

(Art. 24) of the Convention as constituting an "abuse of the right of

petition", Article 27 para. 2 (Art. 27-2) of the Convention being

applicable only to applications lodged under Article 25 (Art. 25).

Even if there should exist a general principle of law allowing the

Commission to reject an inter-State application as inadmissible on the

ground that it is manifestly abusive (cf. No. 8007/77, Dec. 3.10.78,

D.R. 13 p. 78, para. 56 at p. 156), the Commission does not find this

to be the case in the present application.

For all these reasons, the respondent Government's above

objections to the admissibility of the application must be dismissed.

III. Alleged special agreement to settle the dispute by means of other

international procedures

The respondent Government invoke Article 62 (Art. 62) of the

Convention and claim that there exists a "special agreement" within the

meaning of this provision by which the parties undertook to settle

their dispute within the framework of the United Nations. In this

respect it is claimed that, in fact, all the matters raised by the

present application are directly or indirectly handled within the

United Nations, by the Secretary General acting under the direction of

the Security Council. The Secretary General's mission of good offices

established by a Security Council resolution of March 1975 involved the

convening of the parties under new agreed procedures. The 1977 and

1979 high-level agreements between the leaders of the two communities

laid the "common ground" for the subsequent intercommunal talks, the

Secretary General stating in his inaugural address of August 1980 that

both parties supported a federal solution of the constitutional aspect

and a bi-zonal solution of the territorial aspect of the Cyprus

problem. The intercommunal talks are being conducted on an "equal

footing" between the two communities with the objective of elaborating

a new constitution for the state of Cyprus on a federal, bi-communal

and bi-zonal basis. The Secretary General of the United Nations has

repeatedly stressed the importance of the intercommunal talks as the

best available method for pursuing the negotiating process, and the

basic principles proposed by the Secretary General as the basis for

these negotiations have been accepted by the parties.

The respondent Government further observe that both parties are

members of the UN Security Council and that they have consistently

voted since 1974 for the involvement of the United Nations in finding

a peaceful solution. The Security Council acts under Chapter VI of the

UN Charter, which implies as an essential ingredient the agreement of

all parties concerned, i.e. no decision can be imposed on any of the

parties against its will. It is further submitted that while the UN

efforts are directed immediately to an understanding between the Greek

Cypriot and Turkish Cypriot communities, they are also labelled to

include three other concerned parties, namely Greece, the United

Kingdom and Turkey. Thus, all steps taken within the United Nations

have the agreement of the five concerned parties, including the

applicant Government.

In the respondent Government's submission the procedures laid out

by the Security Council for the intercommunal talks amount to a

"special agreement" as provided for in Article 62 (Art. 62) of the

Convention. There is a mutual binding commitment within the meaning

of this provision, if not in the shape of a formal agreement then at

least in that of an implied agreement or a set of concordant unilateral

declarations having the effect of a mutual agreement.

The relevance of the UN Security Council's efforts was

sufficiently underscored, for identical issues of alleged human rights

violations, by the Council of Europe's Committee of Ministers in its

resolutions on the previous inter-State cases. The Committee of

Ministers was fully aware of the relevance of the intercommunal talks

when it expressed the conviction "that the enduring protection of human

rights in Cyprus can only be brought about through the re-establishment

of peace and confidence between the two communities and that

intercommunal talks constitute the appropriate framework for reaching

a solution of the dispute" (Res. DH(79)1, loc.cit.). The respondent

Government point out that the Committee of Ministers strongly urged the

parties to resume intercommunal talks under the auspices of the UN

Secretary General and that more recently the Parliamentary Assembly of

the Council of Europe also urged the political leaders of both

communities to accept the proposals of the Secretary General, proposals

which include regulation of fundamental rights such as freedom of

movement, freedom of settlement and rights of property.

The respondent Government state that they encourage an early

negotiated settlement on this basis. They consider that any attempt

by the Greek Cypriot side to resort to international and regional

forums is bound to prejudice the intercommunal talks and that therefore

the applicant Government should be estopped from reneging on the agreed

principles that form the basis of these talks.

As regards the activities of the Committee on Missing Persons,

the respondent Government recall the agreement on the terms of

reference for the establishment of this Committee (1981), on the rules

of procedure (1984), on the guidelines for investigations (1995) and

the criteria of the UN Secretary General which have been accepted by

both sides. They claim that the activities of the Committee were

delayed by procedural difficulties for which the Greek Cypriot side was

responsible, because until 1994 they submitted only 548 cases for

investigation and refused to submit further cases. These difficulties

have now been overcome, the Greek Cypriot side having submitted all

their cases by December 1995, the number of these cases now being

reduced to 1493. The respondent Government submit that therefore an

adequate and exclusive agreed forum exists to examine the question of

missing persons, and that the mechanism established in this context

also amounts to a special agreement under Article 62 (Art. 62) of the

Convention.

The applicant Government deny that there is a special agreement

under Article 62 (Art. 62) of the Convention by which they undertook

to deal with the matters raised in the application exclusively within

the framework of the United Nations. In their submission the respondent

Government distort the meaning of Article 62 (Art. 62). This provision

has no application to procedures which are not by way of petition, such

as political negotiations (the intercommunal talks) or humanitarian

activities (the Committee on Missing Persons). Also, the parties to the

intercommunal talks and to the Committee on Missing Persons are

different from the parties to the present application: they only

concern the two Cypriot communities and do not involve Turkey.

Moreover, neither the intercommunal talks, with the objective of

reaching a political settlement of the Cyprus problem, nor the

activities of the Committee on Missing Persons, with the objective of

ascertaining the fate of missing persons, concern a dispute arising out

of the interpretation or application of the Convention. Finally, the

applicant Government submit that Article 62 (Art. 62) is designed to

secure the autonomy of the Convention system by preventing States

involved in such a dispute from using means of settlement other than

those set out in the Convention. Its function cannot be to stop States

from coming to Strasbourg to ensure collective enforcement of the

European public order, in particular where, as in the present case, the

complaints relate to alleged massive violations of human rights

protected in the Convention. The applicant Government also rely on

case-law of the International Court of Justice according to which a

judicial body which as such is competent to deal with a dispute is not

deprived of its jurisdiction by ongoing settlement negotiations

concerning the same matter.

Article 62 (Art. 62) of the Convention reads as follows:

"The High Contracting Parties agree that, except by special

agreement, they will not avail themselves of treaties,

conventions or declarations in force between them for the purpose

of submitting, by way of petition, a dispute arising out of the

interpretation or application of this Convention to a means of

settlement other than those provided for in this Convention."

The Commission has never before been called upon to examine the

meaning of this provision, nor is there any relevant case-law of the

Court in this respect. However, the Commission considers that, having

regard to the wording of Article 62 (Art. 62) itself and the aim and

purpose of the Convention as a whole, the possibility for a High

Contracting Party of withdrawing a case from the jurisdiction of the

Convention organs on the ground that it has entered into a special

agreement with the other High Contracting Party concerned, is given

only in exceptional circumstances.

The principle stipulated in Article 62 (Art. 62) is the monopoly

of the Convention institutions for deciding disputes arising out of the

interpretation and application of the Convention. The High Contracting

Parties agree not to avail themselves of other treaties, conventions

and declarations in force between them for the purpose of submitting

such disputes to other means of settlement. Only exceptionally is a

departure from this principle permitted, subject to the existence of

a "special agreement" between the High Contracting Parties concerned,

permitting the submission of the dispute - concerning "the

interpretation or application of the Convention" - to an alternative

means of settlement "by way of petition".

The Commission considers that the conditions for invoking such

a special agreement are not fulfilled in the present case. A primary

condition, namely the consent of both High Contracting Parties

concerned to withdraw the particular dispute from the jurisdiction of

the Convention organs, is lacking, the applicant Government clearly

opposing such a way of proceeding. Even assuming that both Turkey and

Cyprus are bound by international obligations concerning the

intercommunal talks and the Committee on Missing Persons, it is

difficult to see how this could amount to a "special agreement" between

them to resort exclusively to these means of settlement precluding the

Convention organs from performing their normal functions. The parties

to the agreements establishing the intercommunal talks and the

Committee on Missing Persons are formally different from the parties

to the present proceedings. In particular, Turkey is not a formal

party to these agreements. Moreover, neither agreement relates

specifically to the settlement of a dispute on the interpretation or

application of the Convention, let alone the particular dispute now

submitted to the Commission. Nor is it provided in these agreements

that any such dispute can be submitted to the intercommunal talks or

the Committee on Missing Persons "by way of petition".

The Commission concludes that it is not prevented from examining

the present application on the ground that there exists a "special

agreement" to this effect between the two High Contracting Parties

concerned. The Commission would add that, generally speaking, the

performance of its functions under Article 19 (Art. 19) of the

Convention cannot in any way be impeded by the fact that certain

aspects of the situation underlying an application filed with it are

being dealt with, from a different angle, by other international

bodies.

The respondent Government's above objection to the admissibility

of the application must accordingly be rejected.

IV. Alleged failure to exhaust domestic remedies and to comply with

the six months rule

Under Article 26 (Art. 26) of the Convention the Commission may

only deal with a case after all domestic remedies have been exhausted,

according to the generally recognised rules of international law, and

within a period of six months from the date on which the final decision

was taken.

The Commission has in the previous cases between the same parties

confirmed its case-law according to which the rule requiring the

exhaustion of domestic remedies applies not only in individual

applications lodged under Article 25 (Art. 25) but also in cases

brought by States under Article 24 (Art. 24) of the Convention. This

rule means in principle that remedies, which are shown to exist within

the legal system of the responsible State, must be used and exhausted

in the normal way before the Commission is seized of a case; on the

other hand remedies which do not offer a possibility of redressing the

alleged injury or damage cannot be regarded as effective or sufficient

and need not, therefore, be exhausted.

The respondent Government submit that the alleged victims of

violations of the Convention have made no use of the judicial system

set up by the TRNC, which comprises effective and adequate

institutional guarantees. The TRNC Constitution is based on the

principles of the rule of law and supremacy of the Constitution

(Articles 1 and 7), it provides for an independent judiciary (Articles

136, 137, 141 and 150) and for effective judicial control of executive

and legislative activity (Articles 146-148 and 152). Article 17

(Art. 17) relating to fair and public hearing is similar to Article 6

(Art. 6) of the Convention and prohibits the establishment of judicial

committees or special courts under any name whatsoever. No one is

denied the right to have any criminal charge brought against him to be

heard by an independent and impartial tribunal. No act of the

administration can be excluded from judicial review. Article 152

provides for judicial review of administrative action on the grounds

of excess and/or abuse of power, illegality and unconstitutionality.

Military courts function under Articles 156 and 157 and have competence

to try only military offences defined in special laws. It is only in

rare cases, as when an offence has been committed in a military area,

that civilians may be tried by military courts. There is also

provision for judicial review of legislation by way of reference to the

Supreme Constitutional Court (Article 148) and institution of

proceedings for annulment of legislation and subsidiary legislation

(Article 147).

The respondent Government claim that the existence of an

effective and independent judicial system in the TRNC has also been

recognised in the Commission's own case-law. They refer to the

Commission's Report of 8 July 1993 on applications Nos. 15299/89 and

15300/89, Chrysostomos and Papachrysostomou v. Turkey. In paragraph

169 of that Report, the Commission found that there was no indication

of control exercised by Turkish authorities over the administration of

justice by Turkish Cypriot authorities. In paragraph 174 the Commission

recognised the existence of an effective remedy before the national

authority in northern Cyprus when it noted that the applicants in that

case had been brought before judicial authorities which they refused

to recognise, and that they had not wished to avail themselves of such

remedies as might have been available to them with regard to the

circumstances of their arrest by Turkish Cypriot police. The

Commission concluded that in the circumstances there was no breach of

Article 13 (Art. 13) of the Convention.

The respondent Government further submit that the question of

exhaustion of domestic remedies must be approached on a case by case

basis having regard to the particular violations of the Convention

alleged by the applicant Government. They point out in particular that

the alleged Turkish Cypriot victims and the Greek Cypriot victims from

the Karpas area did not make use of the remedies available to them in

the TRNC. In this respect the respondent Government have submitted a

list of cases brought by Greek Cypriots in Turkish Cypriot courts and

which includes inter alia cases relating to trespass by other persons

and unlawful cultivation of land belonging to Greek Cypriot plaintiffs

in the Karpas area and where the claims of the plaintiffs were accepted

by the competent TRNC courts.

The applicant Government refute these arguments. They claim that

any remedies which may exist in Turkey or in the TRNC are not practical

and effective for Greek Cypriots living in the Government-controlled

area; and that they are ineffective for enclaved Greek Cypriots or

Turkish Cypriots having regard to the particular nature of the

complaints and the legal and administrative framework set up in the

north of Cyprus; as regards the case-law of TRNC "courts" referred to

by the respondent Government, the applicant Government claim that it

relates to situations different from those complained of in the present

application, i.e. to disputes between private parties and not to

challenges to legislation and administrative action.

With regard to the question whether the remedies indicated by the

respondent Government can in the circumstances of the present case be

considered as effective, the Commission first observes that some of the

complaints, in particular those concerning property rights, relate to

the implementation of purported legislative acts of the TRNC, and that,

according to the Commission's case-law, the rule requiring the

exhaustion of domestic remedies does not apply to complaints the object

of which is to determine the compatibility with the Convention of

legislative measures and administrative practices, except where

specific and effective remedies against legislation exist. It is true

that in the TRNC the judicial review of "legislation" as to its

"constitutionality" is provided for, but in the particular

circumstances of the present case this is of no avail because the

measures complained of are essentially stipulated in the TRNC

"Constitution" itself.

The Commission has noted the respondent Government's reference

to the existence of effective remedies in the TRNC and the survey of

case-law which has been presented to it on the occasion of the oral

hearing. In this respect the Commission recalls its findings in the

decision on the admissibility of Application No. 8007/77 (D.R. 13,

p. 152, paras. 36-37) according to which the overwhelming majority of

Greek Cypriots, whose rights and freedoms under the Convention are

alleged to have been violated, are at present resident in the southern

part of Cyprus controlled by the applicant Government and are not

permitted by the Turkish authorities to enter the northern part of the

island. In these circumstances, any remedies which might be said to

be available to such Greek Cypriots in the northern area cannot on

principle be considered as "practicable".

The Commission has further noted, in particular as to the alleged

violation of property rights of Greek Cypriots still resident in the

north of the island, that it does not appear from the cases referred

to in the above material submitted by the respondent Government that

the proceedings concerned interferences with property rights as alleged

in the present application - namely, interferences by a public

authority or by private persons acting with the consent of such an

authority, as described in the "Particulars of the application".

It follows that the remedies indicated by the respondent

Government cannot, for the purposes of the present application, be

considered as relevant and sufficient and that they need not,

therefore, be exhausted.

Apart from these considerations, the Commission considers it

relevant to observe that, in distinction from the previous

applications, the respondent Government in the present case rely

exclusively on remedies which are claimed to be available before

Turkish Cypriot authorities whereas the applicant Government claim that

these authorities are de facto under the control of Turkey. The

Commission also notes the applicant Government's submission according

to which these remedies are generally ineffective for Greek Cypriots,

and the related complaints submitted under Article 13 (Art. 13) of the

Convention. In the light of the Court's Loizidou (Preliminary

Objections) judgment according to which Turkish responsibility under

the Convention may arise also where it exercises control over an area

outside its national territory "through a subordinate local

administration" (loc. cit. p. 24, para. 62), it appears that the

question of the exhaustion of domestic remedies before TRNC courts is

closely related to the issue of Turkish "jurisdiction" which can only

be determined at the merits stage of the proceedings. To this extent

the Commission must accordingly reserve the final determination to the

later stage of the proceedings.

The Commission concludes that the application cannot be rejected

under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention for

non-exhaustion of domestic remedies.

The respondent Government also submit that at least part of the

application is inadmissible for non-observance of the six months rule

laid down in Article 26 (Art. 26). They claim that the applicant

Government's complaints, in particular those relating to missing and

displaced persons, do not concern continuing violations, but

instantaneous acts which occurred a long time ago and which are

therefore time-barred.

The applicant Government maintain that the application concerns

"continuing violations" within the meaning of the Commission's case-law

to which the six months rule is not applicable.

In this respect, the Commission reiterates its findings in the

decision on the admissibility of Application No. 8007/77 according to

which, on the one hand, in the absence of remedies, the six months

period must be counted as from the act or decision which is alleged to

be in violation of the Convention, but on the other hand, it does not

apply to a permanent state of affairs which is still continuing. As

the present application alleges for the most part continuing violations

of the Convention, in respect of which the Commission cannot at the

present stage of the proceedings examine whether or not they are well-

founded, because this would imply a preliminary examination of the

merits of the case, it must reserve this question for later

consideraton (loc. cit., pp. 153-154, paras. 43-45).

The Commission concludes that the application cannot be rejected

under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention for

non-observance of the six months rule.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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CYPRUS v. TURKEY

CYPRUS v. TURKEY

LEXI