PARTLY DISSENTING OPINION OF MR S. TRECHSEL

ON ARTICLE 14 OF THE CONVENTION

(In relation to para. 336 of the Report)

Contrary to the opinion of the majority of the Commission I am of the opinion that Article 14 does not apply at all in a case where a violation of the Convention has already been found.  In fact, the Commission is called upon to make a choice between two alternatives: either a particular guarantee of the Convention has been violated or not.  If one of the guarantees set out in the substantive provisions of the Convention or the Protocols is found to have been violated, there is no room for an additional finding according to which the violation is aggravated by an element of discrimination.

I concede that discrimination in itself could constitute a wrong, amounting to the violation of a human right.  As the Commission held in the present case, the pattern of behaviour of the Turkish Cypriot authorities in Cyprus, by discrimination, violated the right under Article 3 of the Convention of the whole Greek Cypriot community in the northern area of the country.  However, Article 14 prohibits discrimination only in connection with “the enjoyment of the rights and freedoms set forth” in the Convention.  This wording is to be read in the sense that only where an unreasonable differentiation is made between individuals both enjoying, though to a varying degree, the rights and freedoms set forth in the Convention, can there be discrimination.  Such might be the case, for instance, in a discriminate interference with one of the rights set forth in Articles 8-11 in circumstances covered by paragraph 2 of these Articles.  As soon as there has been a violation of the Convention, however, the very concept of discrimination/reasonable differentiation becomes meaningless.

PARTLY DISSENTING OPINION OF MR E. BUSUTTIL

I demur from the conclusion reached by the majority in paragraph 448 of the Report that there has been no violation of Article 6 of the Convention in respect of Greek Cypriots living in northern Cyprus.

Article 6 demands that courts be “established by law” in order to satisfy the requirements of the Convention.  The crucial question here, therefore, is whether the courts in northern Cyprus are courts “established by law”, having regard to the precarious international law status of the TRNC.

To my mind, the reference to law in the phrase “established by law” cannot be simply a reference to domestic law, particularly in an inter-State application of this type.  The lawfulness of the judicial system in question must necessarily be compatible with the principles of general international law as also, in the instant case, with the specific treaty obligations incurred by Turkey at the time of the creation of the independent State of Cyprus in 1960.

The term “law” in Article 6 must be read in conjunction with the bold affirmation of the Contracting States in the Preamble that the Rule of law is part and parcel of their common heritage.  And if this is so, it appears to me impossible to distinguish between the Rule of law as a domestic concept and the Rule of law as a common international concept in a European setting.  The two merge inevitably into one indivisible concept.

The majority in paragraph 444 place reliance on the Constitution of the TRNC as the established law in northern Cyprus, but the European Court in its Merits judgment in the Loizidou Case has stated that “the international community considers that the Republic of Cyprus is the sole legitimate Government of the island and has consistently refused to accept the legitimacy of the TRNC as a State within the meaning of International law” (para. 56).

To me this can only mean that the legal and judicial systems established by the TRNC, and presently in force in northern Cyprus, emanate from an unlawful regime which is incapable of generating legality.  While taking into account the view expressed by the I.C.J. in its Advisory Opinion in the Namibia case to the effect that International law recognises the legitimacy of certain legal requirements and transactions, for instance, the registration of births, deaths and marriages the effects of which can be ignored only to the detriment of the inhabitants of the territory concerned, it is a matter of considerable doubt if this limited exception can apply generally to the establishment in such territory of a judiciary which is called upon to operate in a “legal” environment which is itself detrimental to the inhabitants in that a number of their fundamental rights have already been found by the majority in the present Report to have been violated.