FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45653/99 by Georgia ANDREOU against Turkey

The European Court of Human Rights ( Fourth Section ), sitting on 3 June 2008 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , David Thór Björgvinsson , Işıl Karakaş , Mihai Poalelungi , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 12 February 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Georgia Andreou , is a British national who was born in 1936 and lives in Larn a ca . She is represented before the Court by Mr A. Demetriades and Ms V. Loizides, lawyers practising in Nicosia . The Turkish Government (“the Government”) are represented by their Agent, Mr Z.M. Necatigil .

The facts of the case, as submitted by the parties, may be summarised as follows.

1. The death of Anastasios Isaak

In 1996 t he Cyprus Motorcycle Federation (CMF) organised a demonstration aimed at protesting against the Turkish occupation of the northern part of Cyprus . On 2 August 1996 a group of over one hundred Cypriot and other European motorcyclists set off from Berlin and made their way through Europe to Cyprus . Tensions arose when the authorities of the “ Turkish Republic of Northern C yprus ” (“TRNC”) announced that in the event that the demonstration took place, they would be organising “counter-rallies” . The President of the Republic of Cyprus made a special plea to the motorcyclists to disperse peacefully.

Notwithstanding this, on 11 August 1996, a group of motorcyclists and other civilians proceeded to various points along the United Nations (UN) buffer zone. Violent clashes took place between the demonstrators, the counter-demonstrators and the “TRNC” forces. One of the Greek-Cypriot demonstrators, Anastasios Isaak , was beaten to death in Dherynia . The events concerning the killing of Mr Isaak have been brought to the attention of the Court in the context of application no. 44587/98 ( Isaak v. Turkey , declared admissible on 28 September 2006).

2. The funeral of Anastasios Isaak and the shooting of the applicant

On 14 August 1996 the applicant attended the funeral of Anastasios Isaak , who was a friend of her son, in Paralimini .

After the funeral, a number of people went to the vicinity of the site where the events took place to pay their respects. The applicant ’ s son, daughter and son-in-law were among those persons. The applicant remained outside the United Nations (UN) buffer zone near Dherynia , close to the Greek-Cypriot National Guard checkpoint, and was observing the events.

Tension arose between the Greek-Cypriot demonstrators and the “TRNC” authorities. One of the demonstrators, Solomos Solomou , crossed the Turkish-Cypriot ceasefire line and started to climb a flagpole. He was shot and later died from his injuries. The events concerning the killing of Mr Solomou have been brought to the attention of the Court in the context of application no. 36832 /9 7 ( Solomou v. Turkey , declared admissible on 18 May 1999 ).

At a certain moment the applicant saw soldiers in the area under the control of the Turkish armed forces firing their weapons. As a result, a number of people were wounded, including two British soldiers from the UN Forces in Cyprus ( UNFICY P ) and the applicant. The latter was hit by one bullet in the abdomen. She collapsed and was taken to Larnaca hospital in a critical condition. She was operated on but lost one of her kidneys.

The applicant claimed that her life had been put in serious danger and had been saved only because of prompt medical attention. She is still suffering from her injuries, as a result of which she cannot obtain employment and is under great psychological stress.

3. UNFICYP ’ s press release and the UN Secretary-General ’ s report on the events of 14 August 1996

The applicant underlined the following passages of UNFICYP ’ s press release on the events surrounding the demonstration of 14 August 1996:

“By 14.20 hours, some 200 Greek Cypriots were inside the UN buffer zone, but UNFICYP was in control of the situation. The demonstrators were being rounded up and moved out of the UN buffer zone. The main group of Greek Cypriots were no closer than about 30 metres from the Turkish forces ceasefire line. ...

At about that time, a Greek-Cypriot male, later identified as Solomos Spyrou Solomou , broke free from the main group [of demonstrators] and ran towards the Turkish-Cypriot checkpoint. He was chased by two UNFICYP soldiers, who caught up with him at the guard post, but the demonstrator broke free again and began to climb the flagpole which was flying the Turkish flag just inside the Turkish-Cypriot checkpoint. The UNFICYP soldiers were pursuing him a few feet behind.

Solomou was some 3 metres off the ground ... when he was shot by a Turkish or Turkish-Cypriot soldier and fell to the ground with blood flowing profusely from his neck (the autopsy later revealed that Solomou was hit by five bullets). Turkish or Turkish-Cypriot soldiers then proceeded to fire some 25 to 50 rounds indiscriminately into the crowd inside the buffer zone. The whole incident was witnessed by the UNFICYP Force Commander and the Commanding Officer of the Austrian Battalion who were in the UN buffer zone some 35 metres from the Turkish forces ceasefire line. They observed uniformed Turkish or Turkish-Cypriot military personnel kneeling down and firing in the direction of the demonstrators inside the UN buffer zone.

As a result of the indiscriminate shooting by Turkish or Turkish-Cypriot soldiers, two British UNFICYP soldiers were shot from behind and two Greek-Cypriot civilians were also hit by gunfire. Three were inside the buffer zone and one of the civilians, who sustained a serious gunshot wound to the abdomen, was standing outside the UN buffer zone close to the National Guard checkpoint. ....

The Force Commander of the UNFICYP accompanied by the Chief of Staff met with the Commander of the Turkish forces in Cyprus late in the afternoon of 14 August to strongly protest the totally unwarranted use of force by Turkish or Turkish-Cypriot military personnel which resulted in the killing of Solomou and in injuries to two peacekeepers and two civilians.”

In his report on the same events, the UN Secretary-General stated, inter alia :

“On 14 August ... some 200 Greek Cypriots entered the buffer zone at Dherynia and approached the Turkish forces ’ ceasefire line. Most were stopped by UNFICYP and were about to be moved out of the buffer zone when one demonstrator broke free from the main group [of demonstrators] and ran towards a Turkish-Cypriot checkpoint closely pursued by UNFICYP soldiers. While attempting to climb a flagpole flying a Turkish flag just behind the Turkish forces ’ ceasefire line, he was shot five times from the Turkish/Turkish-Cypriot side. In addition, Turkish and/or Turkish-Cypriot uniformed personnel proceeded to fire some 25 to 50 rounds indiscriminately into the crowd inside the buffer zone. As a result, two British UNFICYP soldiers and two Greek Cypriots were wounded ... The situation in Cyprus deteriorated in the last six months. There was violence along the ceasefire lines, including unnecessary and disproportionate use of lethal force by the Turkish/Turkish-Cypriot side, to an extent not seen since 1974.”

COMPLAINTS

The applicant complained that her shooting amounted to a violation of Articles 2, 3 and 8 of the Convention.

THE LAW

The applicant alleged that her shooting, although not fatal, was nevertheless a violation of her right to life. She further claimed that the use of excessive force against her had reached the level of severity necessary to constitute inhuman treatment.

The applicant lastly alleged that the permanent effects of the shooting and injuries upon her health, employment prospects and enjoyment of her life constituted a serious intrusion upon her physical and mental integrity and thus a violation of her right to respect for her private life.

The applicant relied on Articles 2, 3 and 8 of the Convention.

These provisions read as follows:

Article 2

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government disputed these claims.

A. The Government ’ s preliminary objections

1. Objection that the application was out of time

(a) The Government ’ s objection

The Government observed that the incident complained of had occurred on 14 August 1996. As the applicant had not availed herself of any domestic remedies, the six-month period provided for in Article 35 § 1 of the Convention had expired on 14 February 1997. The application was “dated 29 October 1998”. It was true that in a letter of 19 April 2002, the Registry of the Court had informed the Government that the application had been lodged on 12 February 1997. However, the application number suggested that it had been lodged in 1999, “giving the impression that it was probably renumbered that year”.

Under these circumstances, the Government submitted that the application should be dismissed as being out of time.

(b) The applicant ’ s reply

The applicant noted that her lawyer had submitted her application on 12 February 1997 by fax and by letter forwarded to the European Commission of Human Rights. The Secretariat of the Commission acknowledged receipt of her correspondence by a letter of 26 March 1997. Even though full details and arguments supporting her claims had been submitted at a later stage (on 29 October 1998), the application should be considered to have been lodged on 12 February 1997, two days before the expiry of the six-month time-limit provided for in Article 35 § 1 of the Convention.

(c) The Court ’ s assessment

The Court reiterates that the running of the six-month time-limit imposed by Article 35 § 1 of the Convention is, as a general rule, interrupted by the first letter from the applicant indicating an intention to lodge an application and giving some indication of the nature of the complaints made (see Allan v. the United Kingdom ( dec .), no. 48539/99 , 8 August 2001).

In the present case, the applicant ’ s representatives stated the substance of their complaints in a fax which was received by the Secretariat of the Commission on 12 February 1997. Therefore, even assuming that the starting-point of the six-month time-limit should be fixed at 14 August 1996, its running was interrupted two days before its expiry.

It follows that the Government ’ s objection should be dismissed.

2. Objection that the domestic remedies have not been exhausted

(a) The Government ’ s objection

The Government observed that the applicant had access to “all effective domestic remedies within the judicial and administrative system of the ‘ TRNC ’ ”. However, she had not attempted any of them. Articles 136 to 155 of the “TRNC” Constitution” showed that an effective and independent judicial system existed in the “TRNC” and that its courts were the guardians of the rights of the individuals.

Under these circumstances, the Government considered that the application should be dismissed for non-exhaustion of domestic remedies.

(b) The applicant ’ s reply

The applicant alleged that the Court had avoided attributing universal effectiveness to remedies available in the “TRNC”. A “remedy” in the “TRNC” could be recognised as such only if it had the purpose of serving the best interests of the inhabitants of the territories controlled by the respondent Government. In any event, the applicant had no access to the area under the control of the “TRNC” because of her Greek-Cypriot origin and her Greek name.

In view of the above, the applicant submitted that there were no effective remedies available to her. The Government ’ s observations did not contain any hint of what specific remedy might have been open to her.

(c) The Court ’ s assessment

In its judgment in the case of Cyprus v. Turkey ([GC] no. 25781/94 , § § 14, 16, 90 and 102 , ECHR 2001-IV) the Court held that for the purposes of Article 35 § 1, remedies available in the “ TRNC ” could be regarded as “domestic remedies” of the respondent State and that the question of their effectiveness was to be considered in the specific circumstances where it arose . However, this conclusion was not to be seen as in any way putting in doubt the view of the international community regarding the establishment of the “ TRNC ” or the fact that the G overnment of the Republic of Cyprus remain ed the sole legiti mate government of Cyprus . The Court does not see any reason to depart from its previous finding on this point, which was based on its well-established case-law.

The Court further notes that the Government failed to precisely indicate the remedies which were available to the applicant, confining themselves to mentioning the existence of judicial and administrative remedies. In principle, legal system s provide two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies.

As regards criminal-law remedi es, the Court observes that the Government have not provided any information about an investigation carried out by the “TRNC” authorities into the circumstances which led to the shooting on 14 August 1996. No documents from any such inquiry have been produced before the Court. Moreover, even assuming that an investigation had been started, in the context of which the applicant could have claimed her rights as a victim, it would have been pending since August 1996 without achieving any substantial results.

The Court considers that these circumstances cast doubt as to the effectiveness of the above-mentioned inquiry and that the applicant is not obliged to await its conclusion before having the merits of her case examined by the Convention institutions. The preliminary objection in this regard is thus dismissed.

As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, it has not been shown that, without the benefit of the conclusions of a n effective criminal inquiry, the civil court s in the “TRNC” would have been able to pursue any independent investigation and would have been capable of making any meaningful findings regarding the identity of the perpetrators of assaults, even less to establish their responsibility (see Khashiyev and Akayeva v. Russia , nos. 57942/00 and 57945/00, § § 119-121, 24 February 2005 ; Estamirov and Others v. Russia , no. 60272/00, § 7 7 , 12 October 2006 ; and Musayev and Others v. Russia , nos. 57941/00, 58699/00 and 60403/00, § 135 , 26 July 2007 ). In the light of the above, the Court considers that the applicant was not obliged to pursue civil remedies.

It follows that the Government ’ s objection should be dismissed.

3. Objection concerning the respondent Government ’ s lack of jurisdiction

(a) The Government ’ s objection

Relying on the principles laid down by the Court in the decision in Banković and Others v. Belgium and 16 Other Contracting States ([GC], no. 52207/99, ECHR 2001-XII), the Government dispute d Turkey ’ s liability under the Convention for the violati ons alleged in the application. In particular, they contended that, notwithstanding the presence in Cyprus of a large number of Turkish troops engaging in active duties, Turkey had no actual “jurisdiction” and/or control over northern Cyprus, the UN-controlled buffer zone or the Greek-Cypriot National Guard ceasefire line where the act complained of by the applicant had occurred. There was no indication that at the material time, or at any time thereafter, the applicant had been in the territory of Turkey or of the “TRNC”.

In any event, even assuming that the acts complained of were imputable to the “ TRNC ” , the latter was an independent and sovereign State , with its own police and security forces, established by the Turkish - Cypriot community in the exercise of its right to self ‑ determination.

The Government also maintained that Turkey ’ s responsibility could not be engaged in respect of violations of the Convention which had occurred in the UN buffer zone. They noted that the buffer zone was under the control of UNFICYP. All parties were bound to respect this demarcation line that had been established by an international agreement. The UN Secretary-General ’ s report S/12253 of 9 December 1976 to the Security Council noted that it was an essential element of the ceasefire that neither side could exercise authority or jurisdiction beyond its own military lines or make any moves beyond these lines. Furthermore, in 1989 an agreement en titled “Agreement on Unmanning of Positions in Sensitive Areas in Nicosia ” had been concluded between the UN and the two sides in order to reduce tension and prevent incidents along the buffer zone. The UN Secretary-General ’ s report S/21981 of 7 December 1990 on preserving the integrity of the buffer zone in Cyprus stated that this zone had been set up between the two communities to preserve the military status quo and that the UN peacekeeping force had a duty to prevent all unauthorised intrusions and civilian activities. The position of the UN was that the buffer zone was an element of the ceasefire arrangement and that the cooperation of the two sides was essential in order to enable UNFICYP to carry out its mandate, especially on occasions where, as in the present case, Greek Cypriots took part in violent demonstrations .

(b) The applicant ’ s reply

The applicant submitted that the Government ’ s objection amounted to an attempt to reopen questions which had been decided in the cases of Loizidou v. Turkey (judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, §§ 52-57) and Cyprus v. Turkey (cited above, §§ 75-78). The decision taken by the Court in the case of Bankovi ć and Others (cited above, in particular §§ 70-71 and 80) did not suggest any reconsideration of the principles laid down in the case-law cited above.

The Government had suggested that as the applicant had been standing outside the “TRNC” territory when she was hit by the bullet, she had not been within the jurisdiction of Turkey at the material time. In the applicant ’ s view, that argument was based on an unduly formalistic interpretation of the decision in Banković and Others . The present case concerned a situation in which a State exercised effective control over part of the territory and population of another State. There was only one State in the island of Cyprus and the buffer zone was not a border but a ceasefire line. On many occasions, Turkey had sought to exercise powers of government in and beyond the buffer zone. Consequently, it had exercised jurisdiction over persons directly affected by its actions.

In the present case, the Turkish forces had been involved in what the Government had described as “mob control”. They had considered the applicant to be part of that mob. Furthermore, the soldiers who had fired the rounds into the crowd had been in the area controlled by the Turkish armed forces. Therefore, they had been within the jurisdiction of the respondent Government. The fact that the direct consequence of their acts had taken effect a few metres away, in the area controlled by the Republic of Cyprus , could not alter that conclusion. The applicant relied, on this point, on the decision adopted by the Court on 4 September 2001 in the case of Kakoulli and Others v. Turkey (no. 38595/97) .

The applicant lastly challenged the Government ’ s allegations concerning the independence of the “TRNC” and the status of the buffer line. She pointed out that the “TRNC” was nothing more than a subordinate local administration.

(c) The Court ’ s assessment

The Court reiterates that in accordance with Article 1 of the Convention, Contracting States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “jurisdiction”. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see IlaÅŸcu and Others v. Moldova and Russia , [GC], no. 48787/99, § 311, ECHR 2004 ‑ VII ). Furthermore, the words “within their jurisdiction” in Article 1 of the Convention must be understood to mean that a State ’ s jurisdictional competence is primarily territorial (see Banković and Others , cited above, § 59).

In exceptional circumstances the acts of Contracting States performed outside their territory or which produce effects there (“extra-territorial act s ”) may amount to the exercise by them of their jurisdiction within the meaning of Article 1 of the Convention (see Loizidou , cited above, § 52 , and Issa and Others v. Turkey , no. 31821/96, §§ 68 and 71 , 16 November 2004 ). According to the relevant principles of international law, a State ’ s responsibility may be engaged where, as a consequence of military action – whether lawful or unlawful – that State in practice exercises effective control of an area situated 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 ( see Loizidou , cited above , § 52 ).

Moreover, a State may also be held accountable for a violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State ’ s authority and control through its agents operating – whether lawfully or unlawfully – in the latter State (see, mutatis mutandis , W. M. v. Denmark, no. 17392/90, Commission decision of 14 October 1992, Decisions and Reports ( DR ) 73, p. 193 , and Illich Sanchez Ramirez v. France , no. 28780/95, Commission decision of 24 June 1996, DR 86, p. 155 ). Accountability in such situations stems from the fact that Article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State which it could not perpetrate on its own territory.

In addition, the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage that State ’ s responsibility under the Convention. Any different conclusion would be at variance with the obligation contained in Article 1 of the Convention (see Cyprus v. Turkey , cited above, § 81). This is particularly true in the case of recognition by the State in question of the acts of self-proclaimed authorities which are not recognised by the international community (see Ilaşcu and Others , cited above , § 318).

Finally, in the particular situation concerning Cyprus, the Court found in the case of Cyprus v. Turkey (cited above) that since it had effective overall control over northern Cyprus, Turkey ’ s responsibility could not be confined to the acts of its own soldiers or officials in northern Cyprus but had also to be engaged by virtue of the acts of the local administration which survive d by virtue of Turkish military and other support. It follows that, in terms of Article 1 of the Convention, Turkey ’ s jurisdiction must be considered to extend to securing the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified, and that violations of those rights are imputable to Turkey ( see Cyprus v. Turkey , cited above, § 77) .

The Government argued that there was no indication that at the time when she was struck by the bullet the applicant had been in the territory of Turkey or of the “TRNC”. It was contended that Turkey had no “jurisdiction” and/or control over the UN-controlled buffer zone or the Greek-Cypriot National Guard ceasefire line where the act complained of by the applicant had occurred.

The Court reiterates that, in exceptional circumstances, the acts of Contracting States which produce effects outside their territory and over which they exercise no control or authority may amount to the exercise by them of jurisdiction within the meaning of Article 1 of the Convention. The Court notes that, according to UNFICYP ’ s press release and the UN Secretary-General ’ s report on the events of 14 August 1996, the applicant ’ s injuries were caused by Turkish and/or Turkish Cypriot uniformed personnel, who fired some 25 to 30 rounds into the crowd. These agents of the State were at the time of opening fire in the territory of the “TRNC”. The Court further notes that, when she was hit by the bullet, the applicant was standing outside the neutral UN buffer zone and in close vicinity to the Greek-Cypriot National Guard checkpoint. Unlike the applicants in the Bankovic and Others case (cited above) she was accordingly within territory covered by the Convention.

In these circumstances, even though the applicant sustained her injuries in territory over which Turkey exercised no control, the opening of fire on the crowd from close range, which was the direct and immediate cause of those injuries, was such that the applicant must be regarded as “within [the] jurisdiction” of Turkey within the meaning of Article 1 and that the responsibility of the respondent State under the Convention is in consequence engaged.

It follows that the Government ’ s objection should be dismissed.

B. The merits of the applicant ’ s complaints

1. Arguments of the parties

(a) The Government

The Government alleged that the responsibility for the incidents which led to the applicant being shot lay with the Greek-Cypriot administration and the Greek Orthodox Church, which had deliberately encouraged the Greek-Cypriot demonstrators to violate the UN buffer zone. It was clear that such an action would have inevitably incited hatred and hostility and would have become out of control.

The Greek-Cypriot authorities had been irresponsible in encouraging the violent demonstrations of the Greek-Cypriot motorcyclists. This was confirmed by the fact that the then Greek-Cypriot President, Mr Clerides , was photographed on a motorcycle, flanked by the then Archbishop of Cyprus , and by the wide media coverage of the demonstration of 11 August 1996. The Government emphasised that the existence of the UN-controlled buffer zone separating the parts of Cyprus had been internationally recognised. UNFICYP had asked the Greek-Cypriot authorities to take effective actions to prevent any demonstrators from entering the buffer zone area. Notwithstanding this, the Greek-Cypriot police had escorted hundreds of motorcyclists to the ceasefire line and had then deliberately left the checkpoint unmanned in order to allow demonstrators to enter the buffer zone, knowing that there were an insufficient number of UN personnel to keep the crowd under control. Had they acted differently, the violence in the area could have been avoided.

The sole intention of the “TRNC” authorities had been to prevent demonstrators from making incursions into their territory and to deter violent acts, thus exercising a right secured to them in international law. They had been fully justified under paragraph 2 of Article 2 of the Convention to take all necessary precautions and to use necessary force in order to abate the danger and to protect the lives of others.

On 14 August 1996 the Greek-Cypriot demonstration had developed into a riot and the demonstrators had started rushing towards the Turkish-Cypriot ceasefire line. One of them ( Solomos Solomou ) had unsuccessfully tried to run towards a sentry post, and had then started to climb the flagpole marking the Turkish-Cypriot ceasefire line. The other demonstrators had thrown stones, bottles, iron rods and other missiles. According to eyewitnesses, shots had also been fired from the Greek-Cypriot side and at least one demonstrator posing as a cameraman had been seen with an automatic pistol firing shots. At this stage, the Turkish-Cypriot police team had come out from their position and fired in the air in order to stop the advance of the demonstrators and to prevent the situation getting out of control. There had then been a crossfire as shots were fired from the Greek-Cypriot side.

Mr Solomou had been injured during the crossfire and had been immediately picked up by UN personnel. Greek-Cypriot demonstrators had prevented the UN from bringing an ambulance to the scene, thus hindering any chance of his survival. After having waited in the buffer zone, Mr Solomou had eventually been picked up by a jeep and taken across to the Greek-Cypriot side. He had later died from his injuries.

The Turkish-Cypriot authorities claimed that they were unaware as to how and under what circumstances the applicant had been hit by a stray missile during the riot of 14 August 1996. Even if it was regrettable that the applicant had suffered injuries, she could not be regarded as an “innocent bystander”. She should have known that attending or watching such a violent demonstration near the Greek-Cypriot National Guard positions would have inevitably carried some risk. If the purpose of the demonstration had been merely commemorative, it could have taken place in a church or somewhere else. There had been no justification for the demonstrators to commemorate or protest “in the forbidden zone”.

As no death had occurred in the present case, there could be no question of a violation of Article 2. The positive obligations arising from this provision entailed protecting “by law” the right to life, and there was no allegation that the laws of the “TRNC” failed to afford such protection. In any event, an assembly of 150 persons throwing missiles at a patrol of soldiers to the point that they risked serious injury had been considered a “riot” by the Commission in the case of Stewart v. the United Kingdom (no. 10044/82, Commission decision of 10 July 1984, DR 39, p. 162). In that case, the Commission had also pointed out that the authorities had no obligation to retreat when quelling a riot.

The Government further submitted that “torture” or “ill-treatment” necessitated an element of deliberate action, which was clearly lacking in the present case. For the same reasons, no violation of Article 8 could be found.

(b) The applicant

The applicant submitted that the Government ’ s version of the facts was not accurate. In any event, even if that inaccurate account were to be accepted, there would be no doubt that the Turkish forces had overreacted in a violent and lethal manner, displaying a complete disregard for life, safety and the principles of the Convention.

The applicant noted that the photograph showing the President of Cyprus on a motorbike had been taken at a State Fair in May 1996 at the Harley Davidson stand. Moreover, the “near-apocalyptic” version of the Government, who had described the demonstration as a riot, was contradicted both by UNFICYP ’ s press release and by the UN Secretary-General ’ s report, which stated that UNFICYP had been in control of the situation, that the main group of demonstrators had been positioned 30 metres from the Turkish forces ’ ceasefire line and that they had been about to be transferred out of the buffer zone. Under these circumstances, it could not be argued that a riot was taking place. Moreover, prior to the shooting, UNFICYP had contacted the Turkish armed forces and had requested them “to exercise restraint and not overreact”.

UNFICYP ’ s press release and the UN Secretary-General ’ s report also contradicted the Government ’ s assertion that at the material time, shots had been fired from the Greek-Cypriot side and that this had resulted in a crossfire which had led to the death of Solomos Solomou and injuries to four others. These documents clearly showed that there had been deliberate and indiscriminate firing by the members of the Turkish armed forces into a small crowd of unarmed civilians.

As the applicant had been watching the demonstration outside the buffer zone, she was the quintessential “innocent bystander”. At the material time, no riot had been taking place and there had been no reasonable grounds to believe that it was necessary to protect any person from unlawful violence. In any event, the Turkish armed forces or the forces under their control could not take “lawful” actions in Cyprus without the permission of the Republic of Cyprus and their reaction could not be regarded as “absolutely necessary” within the meaning of the Court ’ s case-law. The firing had been totally unwarranted; it had been so unnecessary and disproportionate that neither the demonstrators nor the appl icant could have foreseen it.

The applicant also noted that according to the Court ’ s case-law (she cited, in particular, L.C.B. v. the United Kingdom , judgment of 9 June 1998, Reports 1998-III), there might be a question of violation of Article 2 even when no death occurred. She pointed out that none of those directly or indirectly involved in the “outrage of 14 August 1996” had been punished by the respondent Government. Furthermore, even assuming that the shooting had not been planned in advance, the development of fully armed military personnel trained to shoot and “trigger-happy” had created a “real and immediate risk” to the life and physical integrity of the persons present in the area.

The applicant lastly pointed out that her complaint under Article 3 was not one of torture but of inhuman treatment. The intentional firing into the crowd should be interpreted at least as having been intended to cause intense physical suffering to anyone who might be caught in the bullets ’ way.

2. The Court ’ s assessment

The Court considers, in the light of the parties ’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Fatoş Aracı Nicolas Bratza Deputy Registrar President