PARTLY DISSENTING OPINION OF MR C.L. ROZAKIS

While I agree with most of the findings and conclusions of the Commission with regard to the complaints of the applicant Government, I find myself unable to agree with five of its conclusions; namely a) that during the period under consideration there has been no violation of Article 6 of the Convention in respect of Greek Cypriots living in northern Cyprus; b) that there has been no violation of Article 13 of the Convention in respect of interferences by private persons with the rights under Article 8 of the Convention and Article 1 of Protocol No. 1 of Greek Cypriots living in northern Cyprus; c) that there has been no violation of the rights under Articles 3, 5, 8, 10 and 11 of the Convention of Turkish Cypriots who are opponents of the regime in northern Cyprus by reason of failure to protect their rights under those provisions; d) that there has been no violation of Article 13 of the Convention by reason of failure to secure effective remedies to Turkish Cypriots living in northern Cyprus; and e) finally, that there has been no violation of the rights of the Turkish Cypriot gypsy community under Article 8 of the Convention by reason of failure to protect their rights under that Article.  With regard to the last complaint I have joined in the dissenting opinion of Mrs J. Liddy, with whose reasoning I fully agree.

The point of departure for my dissent with regard to the first four conclusions reached by the Commission and referred to above is that I am unable to agree that the means of recourse offered by Turkey can be considered effective for Greek Cypriots living in the northern part of Cyprus or Turkish Cypriots living in the same area who oppose the regime; they are ineffective because in the eyes of those two categories of the local population they lack independence and impartiality.

In explaining my preference for a finding of violation with regard to the above-mentioned complaints, I would start by acknowledging my agreement with the Commission (which has in this respect followed the case-law of the European Court of Human Rights, engendered by the Loizidou case) that Turkey is responsible under the Convention for all the matters complained of in this interstate application, since they all fall within its jurisdiction within the meaning of Article 1 of the Convention.  I also agree with its finding that “the Convention is an instrument which is intended to protect rights that are practical and effective...” and that it “must in principle take into account, for the purposes of former Article 26, any effective remedies which Turkey’s subordinate local administration in northern Cyprus holds available for victims of alleged violations of the Convention” (para. 125 of the Report).  My interpretation of that sentence, and the reason which led me to vote for the finding in question, is that in circumstances of military occupation which lasts for a considerable period of time the occupying power has the obligation either to allow the unimpeded operation of the existing institutions serving the population of the occupied territory or to take measures, in situations where the normal functioning of such bodies cannot practically be assured, to establish similar institutions to serve the interests of the people living there.  It goes without saying that, regardless of whether the occupying State opts for the first or the second alternative – according to the circumstances – it remains, in the eyes of international law and the European Convention on Human Rights, responsible for the acts or omissions of such authorities.  It must also be added that the fact that a State occupying the territory of another State establishes a local administration to deal with the exercise of power in that territory may by no means lead to a legitimisation, under international law, of the act of forcible retention of the territory of another State.

Hence, I accept that the authorities in the northern part of Cyprus (what the Commission calls “the subordinate local administration of Turkey”) are, as a fictio juris , Turkish authorities.  No distinction may be made between the Turkish authorities operating on the Turkish mainland and those operating in the occupied territory of the Republic of Cyprus.  For this reason the means of recourse provided by the latter may be considered, for the purposes of Articles 6 and 13 of the Convention, as “local remedies” of Turkey.

Yet the fact that the Commission has accepted that the means of recourse offered by the subordinate local authorities in northern Cyprus are Turkish domestic remedies does not make them automatically effective or – as a consequence – subject to exhaustion before an application is placed in the Strasbourg system.  A number of preconditions must be satisfied before a local remedy reaches the level of being assessed as effective.  The requirement that the remedy must be established by law is one of them; another, on which I rely to found my dissent , is the requirement of independence and objective impartiality – mainly on the part of the judiciary, in the circumstances of the case.

The Commission, in dealing (paras. 439 onwards) with the applicant Government’s complaint under Article 6 of the Convention, the omnibus provision regarding the issue of recourse, examined both whether the tribunals in the northern part of Cyprus, when dealing with the civil rights of Greek Cypriots, were “established by law” and whether they could be considered as independent and impartial.  On both counts the Commission found that the requirements of Article 6 were satisfied.

I have my doubts whether in the circumstances of this case we may accept that the requirement of Article 6 to secure that a tribunal be established by law is satisfied, and I share these doubts with my other dissenting colleagues; however, I consider that – despite the Commission’s downgrading of this issue – the main problem here is whether we may conclude that the local tribunals can be regarded as independent and objectively impartial.

Indeed, if one reads the Commission’s Report in its entirety, one realises that the Commission itself concludes, on the basis of forceful reasoning, that there have been violations of Convention rights which are closely intertwined with the essence of the independence and impartiality of the courts.  The Commission, concludes, for instance, that there have been violations of Article 1 of Protocol No. 1 by virtue of the fact that Greek Cypriot owners of property in northern Cyprus are being denied access to and control, use and enjoyment of their property (para. 322); of Article 13 by reason of the failure to provide Greek Cypriots not residing in northern Cyprus with any means of challenging interferences with their rights under Article 8 and Article 1 of Protocol No. 1 (para. 328); of Article 8 and Article 1 of Protocol No. 1 by virtue of discrimination against Greek Cypriots not living in northern Cyprus as regards their right to respect for their homes and to the peaceful enjoyment of their possessions (para. 336); of Article 9 in respect of Greek Cypriots living in northern Cyprus (para. 454); of Article 10 in respect of Greek Cypriots living in northern Cyprus in that schoolbooks for use in their primary schools were subjected to excessive censorship measures (para. 460); of Article 1 of Protocol No. 1 in respect of Greek Cypriots living in northern Cyprus in that their right to the peaceful enjoyment of their possessions was not secured in the case of their permanent departure from that territory and that in the case of their death, inheritance rights of persons living in southern Cyprus were not recognised (para. 472); of Article 8 in respect of the same group with regard to respect for their private life and their home (para. 490); and, finally, of Article 3 in that the Greek Cypriots living in northern Cyprus have been subjected to discrimination amounting to degrading treatment (para. 499).

The Commission’s reasoning in finding violations is specifically developed, in respect of each complaint, in the respective paragraphs that I have referred to. The passages on the violation of Article 3, however, summarise with admirable precision the grounds upon which that finding rests:

“497. With regard to the facts of the present case, the Commission has found above that during the period under consideration there has been interference with the rights of Greek Cypriots living in northern Cyprus under several provisions of the Convention. In particular it has found (para. 489 above) that the general living conditions of Greek Cypriots living in northern Cyprus are such that there is an aggravated interference with their right to respect for their private and family life and for their home. The Commission notes that also during the period under consideration in the present case all these interferences concerned exclusively Greek Cypriots living in northern Cyprus and were imposed on them for the very reason that they belonged to this class of persons. In these circumstances the treatment complained of was clearly discriminatory against them on the basis of their “ethnic origin, race and religion”. While  the predominant factor here is ethnic discrimination, the Commission considers that the principle stated in the East African Asians’ case in relation to racial discrimination based on colour is applicable in the same manner.

498. ... In the present case the Commission notes that the general living conditions of Greek Cypriots resident in northern Cyprus were imposed on them in pursuit of an acknowledged policy aiming at the separation of the ethnic groups in the island in the framework of a bi-communal and bi-zonal arrangement.  This policy has led to the confinement of the Greek Cypriot population still living in northern Cyprus (other than Maronites) within a small area of the Karpas peninsula. There is a steady decrease of their numbers as a result of specific measures which prevent the renewal of the population.  Moreover, their property is confiscated if they die or leave the area.  As it was noted in the UN humanitarian review (cf. para. 387 above), the restrictions imposed on them have the effect of ensuring that ‘inexorably with the passage of time, those communities (will) cease to exist in the northern part of the island’. The Commission considers that despite recent improvements in certain respects the hardships to which the Greek Cypriots living in the Karpas area of northern Cyprus were subjected during the period under consideration still affected their daily life to such an extent that it is justified to conclude that the discriminatory treatment complained of attained a level of severity which constitutes an affront to their human dignity.”

I wonder whether the position taken by the Commission in finding violations on all the grounds I have referred to, and which are recapitulated in its reasoning concerning the violation of Article 3, can be easily reconciled with the view that, despite those findings, the courts in northern Cyprus are independent and objectively impartial when they deal with the cases of Greek Cypriots.  In other words, the question arises to what extent Greek Cypriots can really believe that, in the hostile environment in which they live, under a policy tending towards complete national separation, the only authority which remains outside this well-orchestrated policy is the judiciary.  The legislative authority is discriminating, the executive authority is discriminating; and yet the judicial authority, composed of persons from the same national bodies, remains the sole guarantor of the protection of a small minority threatened with extinction.  I think that such a proposition is unrealistic and not at all consonant with the other findings of the Commission.  For these reasons, I believe that the courts in northern Cyprus cannot be considered independent from the other authorities there and that they lack objective impartiality insofar as Greek Cypriots are concerned – a belief which, after all, seems to be shared by the individuals concerned, who do not make real use of the remedies provided by those courts.

For the same reasons, I believe that Article 13 has been violated in respect of interferences by private persons with the rights under Article 8 of the Convention and Article 1 of Protocol No. 1 of Greek Cypriots living in northern Cyprus.

With regard to the Turkish Cypriot opponents of the regime, I have the same misgivings concerning the protection of their rights by the local administration, in view of the particular political situation prevailing in northern Cyprus and the desire of the current regime to achieve its goal of ethnic separation in the area.  It seems that views opposing that aim are not very welcome to the regime.  Hence, since the Commission’s findings of non-violation of the substantive Articles relied on are based mainly on the argument that the opponents of the regime could have aired their grievances through the remedies available to them in northern Cyprus, I am also obliged to dissent from those findings. The same, of course, applies with regard to Article 13 in respect of Turkish Cypriots who oppose the regime.