SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 69949/01 by Ibrahim AZIZ against Cyprus

The European Court of Human Rights (Second Section) , sitting on 8 April 2003 as a Chamber composed of

Mr J.-P. Costa , President ,

Mr A.B. Baka ,

Mr L. Loucaides ,

Mr C. Bîrsan ,

Mr K. Jungwiert ,

Mr V. Butkevych ,

M rs A. Mularoni, Judges ,

et M rs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 25 May 2001,

Having regard to the partial decision of 23 April 2002,

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, Mr Ibrahim Aziz, is a Cypriot national, who was born in 1938 and lives in Nicosia. He is represented before the Court by Mr S. Drakos, a lawyer practising in Nicosia.

A. The circumstances of the case

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

On 30 January 2001 the applicant applied to the Minister of Interior requesting to be registered in the electoral role in order to exercise his voting rights in the parliamentary elections on 27 May 2001.

On 8 February 2001 the Ministry of the Interior refused to enrol the applicant. The Ministry specified that, by virtue of Article 63 of the Constitution, members of the Turkish Cypriot community could not be registered in the Greek Cypriot electoral role. Furthermore, the Ministry informed the applicant that the matter was under consideration by the Attorney General of the Republic and that he would be informed of any evolution of the situation.

On 27 April 2001 the applicant lodged with the Supreme Court an application against the decision of the Ministry of the Interior. He invoked Article 3 of Protocol No. 1 and submitted that, after the dissolution of the Communal Chambers, the Cypriot Government failed to set up two electoral lists in order to protect the electoral rights of members of both communities.

On 23 May 2001 the Supreme Court dismissed the application with the following reasons:

“... The right to vote is directly linked to the communal checks and balances which provide for the compilation of separate electoral lists and for separate elections of the representatives of each community. The ideal of democracy, one person one vote in the person’s place of residence, does not provide any grounds for the Court to assume the power to reform the Constitution. Such competence is not vested upon us, nor can the judicial authorities claim such power. This would be against the principle of the separation of powers on which the Constitution is based...

Article 63 is contained in Part IV of the Constitution, which governs the matters pertaining to the House of Representatives and provides for the compilation of separate electoral lists in which the members of each community are included. The applicant belongs to the Turkish community and is one of the small number of Turkish Cypriots residing in the part of the territory of Cyprus under the control of the Cyprus Republic. The denunciation by the applicant of the Turkish invasion and his faith in the law does not alter the outcome of the Constitution with respect to the election of the members of the legislative body.

Article 5 of the Law makes the right to vote conditional on the provisions of Article 63 of the Constitution. The applicant admits, as it transpires from his counsel’s address, that the proviso to which the right to vote is subject under Article 5, if construed literally, excludes the inclusion in the electoral list of any person other than the members of the Greek community in Cyprus. Nevertheless, he suggested that this reservation must be interpreted in the light of the realities in Cyprus, which render the compilation of an electoral list of the members of the Turkish community impossible. Given this fact, it has to be surmised that when the House of Representatives enacted Article 5 of the Law it had these realities in mind and the inability to compile an electoral list of the members of the Turkish community. Hence, this justifies the interpretation of the reservation contained in Article 5 as referring only to those provisions of Article 63 of the Constitution which were rendered inactive.

Adopting the interpretation of Article 5 as proposed by the applicant, would amount to a reshaping of its wording. The fact that the legislator was apprised of all the facts relating to the realities in Cyprus and chose to place the right safeguarded by Article 5 under the reservation of Article 63, supports the opposite of what the applicant is suggesting; it indicates an intention by the legislator to subject the compilation of the electoral list to the statutory provisions of Article 63. From the wording of Article 5 we conclude that the legislator’s intention was to place the right to vote under the reservation of all provisions of Article 63. This conclusion refutes the allegation of the illegality of the administrative decision under appeal.

The second ground on which the applicant’s appeal is based, is the law of necessity. The necessity of his inclusion in the electoral list... is derived from the inability to compile an electoral list of the members of the Turkish community. Given this state of affairs, Mr Drakos submitted that the inclusion of the applicant in the electoral list of electors of the Greek community is justified and gives him the right to participate as an elector in the upcoming parliamentary elections. This is justified by the fact that the applicant stayed in the areas controlled by the Cyprus Republic where he operates, having the same rights and obligations as every other citizen.   ...

The ascertainment of the law of necessity invoked by the applicant and the establishment of measures to deal with it ... is a duty that falls upon the legislator. The competence of the judiciary is limited, provided the matter is submitted before or arises in a case brought before it, to ascertain the constitutionality of the law ... It is not for the judiciary to ascertain the need to fill in gaps in the function of the constitutional statutes nor to establish measures to tackle them, which is basically what the applicant pursues with his application.”

B. Relevant domestic law

Articles 31, 62 and 63 of the Cypriot Constitution provide as follows:

Article 31

“Every citizen has, subject to the provisions of this Constitution and any electoral law of the Republic or of the relevant Communal Chamber made thereunder, the right to vote in any election held under this Constitution or any such law.”

Article 62

“1. The number of Representatives shall be fifty:

Provided that such number may be altered by a resolution of the House of Representatives carried by a majority comprising two-thirds of the Representatives elected by the Greek Community and two-thirds of the Representatives elected by the Turkish Community.

2. Out of the number of Representatives provided in paragraph 1 of this Article seventy per cent shall be elected by the Greek Community and thirty per cent by the Turkish Community separately from amongst their members respectively, and in the case of a contested election, by universal suffrage and by direct and secret ballot held on the same day. ...”

Article 63

“1. Subject to paragraph 2 of this Article every citizen of the Republic who has attained the age of twenty-one years, and has such residential qualifications as may be prescribed by the Electoral Law, shall have the right to be registered as an elector in either the Greek or the Turkish electoral list:

Provided that the members of the Greek Community shall only be registered in the Greek electoral list and the members of the Turkish Community shall only be registered in the Turkish electoral list.

2. No person shall be qualified to be registered as an elector who is disqualified for such registration by virtue of the Electoral Law.”

Article 5 of the Election of Members of the House of Representatives Law 1979 (Law 72/79) provides as follows:

“The right to elect belongs to those who have the qualifications provided for under Article 63 of the Constitution, that is to say the citizens of the republic who have attained the age of twenty-one, those who have their ordinary residence in Cyprus for a period of six months immediately before the date fixed by the Minister, by publication in the Official Gazette of the Republic, as the date of acquisition of the electoral qualifications”.

Article 146 of the Cypriot Constitution grants the Supreme Court exclusive jurisdiction to adjudicate finally on applications made to it complaining, inter alia , that a decision, act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of the Constitution or any law, or is made in excess or in abuse of powers vested in such organ, authority or person.

COMPLAINT

The applicant complained under Article 3 of Protocol No. 1, taken alone or in conjunction with Article 14 of the Convention, that he was prevented from exercising his voting rights on the grounds of national origin and /or association with a national minority.

THE LAW

The applicant submits that, according to Cypriot law, he could exercise his voting rights, but unfortunately the Supreme Court did not apply the law of necessity in his case, as it has done in many other similar instances, because the applicant is a Turkish Cypriot. The applicant alleges a violation of Article 3 of Protocol No. 1, taken alone or in conjunction with Article 14 of the Convention, which read as follows:

Article 3 of Protocol No. 1

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

Article 14 of the Convention

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government stress that Article 3 of Protocol No. 1 does not create any obligation to introduce a specific system for appointing the legislature and that Contracting States have a wide margin of appreciation. The system set by Article 62 of the Constitution has as its rationale in a totality of Constitutional provisions, by virtue of which the citizens of the Republic must belong to either one of two communities, each of which, as such, will be participating and exercising functions in the organs of State, through its own representatives, in prescribed percentages allotted to the community under the Constitution, that is through representatives from among its members, elected or appointed as the case may be, by its own members.

With regard to elections, Article 62 of the Constitution does not allow members of the Turkish community to vote for members of the Greek community who stand as candidates for election to fill the prescribed 70% of seats of the House allotted to the Greek community, as such, and does not allow members of the Greek community to vote for members of the Turkish community who stand as candidates for election to fill the prescribed 30% seats of the House allotted to the Turkish community. Individual members of each of the two communities vote and elect representatives from their own community in their capacity as members of that community. It is for the above reasons, that Article 63 § 1 makes the right of registration as an elector subject to the qualification that such registration must be either in the Greek or the Turkish electoral list, and does not allow members of either community to be registered as electors in the other community’s electoral list.

The Turkish community to which the applicant belongs, has withdrawn from the Constitutional organs of the State and, following the occupation of the northern part of the island, members of the two communities live separately. The applicant is one of a very small number (about 1,089) of the members of the Turkish community who live in the non-occupied territory of Cyprus, but in the absence of one of the two communities, the Government of the Republic and the House of Representatives are not bi ‑ communally composed in practice. It is not the electoral system as such which curtails the applicant from voting for the legislature, but the absence of the majority of the Turkish community, which prevents him from voting, in his capacity as a member of the Turkish community, for candidates who are members of that community.

Any action of the Government to enable members of the Turkish community living in the non-occupied part to participate in some form of election would be a departure from a constitutional system devised for the purpose of granting special political rights to the Turkish community and might be misunderstood as an attempt to impose a new system at the expense of that community, at a time when the whole political situation can be described as delicate. The applicant’s case does not concern the subjection of the right to vote to conditions, but the electoral system as a whole under Article 62 § 2 of the Constitution.

The Government rely on the case of Mathieu- Mohin and Clerfayt v. Belgium ( judgment of 2 March 1987, Series A no. 113), in which the Court stressed that an electoral system must be assessed in the light of the political evolution of the country concerned, and that the general context must not be forgotten (ibid. §§ 54 and 57).

The Government maintain that, owing to the deliberate non-participation in elections of the Turkish community, under Article 62 § 2 the applicant cannot vote for the House with its present composition in practice. The system of legislative elections in Article 62 § 2 is one that fits into the general institutional system of the State, as a bi -communal system, embracing all the administrative and political institutions and the distribution of their powers. In the particular circumstances, it is not unreasonable to have presently, a system of election securing the Turkish community’s parliamentary representation, even though, owing to the deliberate abstention of that community, a very small number of its members cannot vote for candidates from that community. If this were otherwise, a very insignificant part of the whole population (less than 2%) would have controlled 30 % of the House, a fact that would have been intolerably undemocratic.

Finally, the Government submit that no issue arises under Article 14 of the Convention, because the applicant is not placed in a comparable situation to voters who are members of the Greek community and vote in this capacity for candidates from their community.

The applicant stresses that Article 31 of the Constitution guarantees for every citizen, including himself, the right to vote. He recalls that the Turkish Communal Chamber ceased to operate in 1963 and the Greek Communal Chamber was abolished in 1965. The Supreme Court reasoned as if the applicant was a member of the Turkish community which no longer exists in the free Government controlled area. There are no longer any communities in that part of Cyprus but only citizens of the Republic of various ethnic origins. It was open to the Supreme Court to rule that the provisions of Law 72/79 were unconstitutional and an obstacle to the applicant’s right to vote. After the constitutional breakdown in 1964, the authorities of the Republic passed different laws to uphold the human rights of citizens. However, these laws were conceived for the Greek Cypriots; no provisions were made for the Turkish Cypriots. The applicant and over a thousand Turkish Cypriots living in the free area have been unable to exercise their fundamental right to vote in the parliamentary elections since 1964 and, although the Cypriot authorities were aware of the disenfranchisement of that part of the population, they did nothing to put an end to that situation.

The applicant maintains that his case is clearly distinguishable from that in the above-mentioned case of Mathieu- Mohin and Clerfayt v. Belgium . In the latter, there was in practice a mechanism for a person to exercise his voting rights and the impugned measure was temporary in the continuing evolution of the legislative functions of the Belgium State. By contrast, the applicant has only a theoretical right to vote under the Constitution and is debarred from participating in the political life of the State in which he has chosen to live.

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

For these reasons, the Court unanimously

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

S. Dollé J.-P. Costa Registrar President