DISSENTING OPINION OF Mr. E. BUSUTTIL

      I regret that I must dissociate myself from the Commission's

opinion that there has been no violation of Article 3 of the

Convention, both in regard to the assessment of the facts and in regard

to the law.

      In my view, the demonstration by some 1000 Greek Cypriot

demonstrators, most of them women, which purported symbolically to re-

assert Greek Cypriot sovereignty in Northern Cyprus by crossing the

buffer zone in Nicosia did not in itself amount to a "serious

situation", as is suggested in paras. 109 and 110 of the Commission's

Report.

      The majority profess to rely on the Report of the Secretary-

General of the United Nations dated 7 December 1989, but what the

Secretary-General actually states in his Report is that "a serious

situation arose as a result of a demonstration by Greek Cypriots in

Nicosia" and then proceeds to spell out this statement in sub-paras (a)

to (d) of para. 11.  From sub-paras (c) and (d) it is apparent that the

serious situation arose in the days immediately following the

demonstration as a result of the continuing detention of those

apprehended by the Turkish Cypriot authorities during the

demonstration.  Indeed, had the security forces across the buffer zone

not over-reacted by arresting and then detaining 111 persons (101 of

them women), no serious situation would have been created.

      Nevertheless, the "serious" character of the demonstration is

relied on in the Commission's Report to justify the "very rough

treatment" to which the applicants were subjected but which, in the

view of the majority, did not attain the level prohibited by Article3

in the circumstances of the case.

      While I recognize that all demonstrations are potentially

serious, I am unable to understand on what evidence the majority

reached the conclusion that this particular demonstration was actually

serious.  Certainly none of the witnesses heard by the Delegates of the

Commission adverted specifically to its serious character. The

Secretary-General of the United Nations refers to the serious situation

arising as a result of the demonstration but, as I have already

attempted to demonstrate, it was the continued detention of those

arrested during the demonstration, and not the demonstration as such,

that created this serious situation. At all events, it should have been

well within the capability of the security forces of Northern Cyprus,

numbering some tens of thousands, to propel the women and the two

applicants across the buffer zone without arresting them. And even

assuming it was physically impossible to do so without effecting

arrests, a quick relaxation of tension would have been achieved if

those arrested had been released that same evening when the commotion

had subsided.

      The applicants in this case were two clergymen who accompanied

the women to conduct a memorial service in the Church of Saint

Kassianos which lies in an area controlled by the Republic of Cyprus

very near the buffer zone, but later, as it would appear, broke through

the barbed wire and the defence line of UNFICYP with the demonstrators

and threatened to enter the territory of the "Turkish Republic of

Northern Cyprus".  They were, however, contained in an area in and

around the derelict Chapel of St. George. No evidence was forthcoming

from any quarter that they were either armed or carrying any other

instruments that could be employed for aggressive purposes.

      Initially inside the Chapel and later in the yard outside, the

security forces carrying anti-riot gear fell upon the applicants

knocking off their ecclesiastical headgear and spectacles, tugging at

their robes and their beards, hitting and kicking them, spitting on

them, swearing at them and dragging them to the ground. Thereafter they

were forcibly led into the Turkish occupied area of Nicosia where they

ran the gauntlet of a hostile crowd of counter-demonstrators who

subjected them to more of the same treatment.  The first applicant was

punched on his temple and right ear causing a haematoma and a crushed

injury which took five days to heal.  The second applicant had

haemorrhages in the roots of his beard caused by pulling of the beard,

a number of bruises which could have been caused by hitting with blunt

instruments, and a large haematoma over his left tibia which could have

been caused by kicking.

      As is established in the case-law of the Convention organs, ill-

treatment must attain a minimum level of severity if it is to fall

within the scope of Article 3.  The assessment of this minimum is

relative; it depends on all the circumstances of the case.

      On the other hand, the Convention prohibits in absolute terms

inhuman or degrading treatment, irrespective of the victim's conduct.

Unlike most of the substantive Articles of the Convention, Article 3

makes no provision for exceptions and, under Article 15 para. 2 there

can be no derogation therefrom even in the event of a public emergency

threatening the life of the nation.

      For the majority, the treatment of the applicants just described

constituted neither "inhuman treatment" nor "degrading treatment" in

that it did not reach the level prohibited by Article 3.

      For myself, this treatment amounted, at the very least, to

"degrading treatment" within the meaning of Article 3 since it aroused

feelings of fear, anguish and inferiority in the applicants which was

capable of humiliating and debasing them.

      At the same time they were being subjected to physical violence,

the applicants were vilified and maligned and their ecclesiastical

vestments desecrated.  To my mind, this combination of violence and

denigration constituted not only an assault on their physical integrity

but also an affront to their personal dignity.  The applicants - a

bishop and an archimandrite - were mortified and humiliated not simply

in their own eyes, but even more so lowered in the estimation of  their

own parishioners. Indeed, publicity is a relevant factor in assessing

whether a particular treatment is "degrading" within the meaning of

Article 3, as the Court had occasion to point out in its Tyrer judgment

(Eur. Court H.R., judgment of 25 April 1978, Series A no. 26, p. 16,

para. 32). Nor can it be excluded that the treatment may have had

adverse psychological effects.

      In the light of this, I consider that the applicants were

subjected to treatment where the element of humiliation attained the

level inherent in the notion of "degrading treatment" within the

meaning of Article 3 of the Convention and that, therefore, there has

been a violation of this Article in the instant case.

                              APPENDIX I

                        HISTORY OF PROCEEDINGS

Date                             Item

_________________________________________________________________

21 July 1989                     Introduction of the applications

25 July 1989                     Registration of the applications

Examination of Admissibility

8 August 1989                    Information from the applicants

                                 (concerning their release)

29 August 1989                   Further submissions by the applicants

7 September 1989                 Commission considers state of

                                 proceedings

7 October 1989                   Commission considers state of

                                 proceedings

9 November 1989                  Commission's decisions:

                                 - to join the present applications and

                                 Application No. 15318/89 (T. Loizidou

                                 v. Turkey);

                                 - to invite the Government to submit

                                 observations on the admissibility and

                                 merits of the applications

28 February 1990                 Government's observations

6 May 1990                       Applicants' observations in reply

5 October 1990                   Commission's decision to hold an oral

                                 hearing

18 December 1990                 Further written submissions by the

                                 applicants

11 January 1991                  Oral hearing on admissibility and

                                 merits

11 and 12 January 1991           Commission's deliberations

4 March 1991                     Commission's further deliberations and

                                 decision to declare the applications

                                 admissible

7 March 1991                     Commission approves text of decision

                                 on admissibility

7 March 1991                     Decision on admissibility communicated

                                 to the parties

Examination of the merits

7 March 1991                     Commission invites Government to

                                 submit observations on the merits

7 May 1991                       Government's requests to re-open

                                 proceedings on admissibility and to

                                 declare the applications inadmissible

24 May 1991                      Applicants' comments on the

                                 Government's requests

30 May 1991                      Commission finds no legal basis for

                                 the requests, invites Government

                                 again to submit observations on

                                 merits

6 July 1991                      Commission grants Government's request

                                 for extension of time-limit

25 September 1991                Government refuse to participate in

                                 further proceedings

8 October 1991                   Commission's deliberations

16 October 1991                  Commission's further deliberations and

                                 adoption of Interim Report to the

                                 Committee of Ministers

17 October 1991                  Commission's deliberations

19 December 1991                 Committee of Ministers adopts

                                 Resolution DH (91) 41

14 January 1992                  Commission's decisions:

                                 - to take oral evidence;

                                 - to invite parties to file

                                 observations

28 February 1992                 Government's observations

9 April 1992                     Commission's decisions:

                                 - appointment of Delegation for

                                 hearing of witnesses;

                                 - list of witnesses to be examined

29 April 1992                    Government propose further witness

30 April 1992                    Applicants propose further witness

19 May 1992                      Commission's deliberations

20 May 1992                      Further submissions by Government

5 June 1992                      Further submissions by applicants

9 and 10 June 1992               Hearing of witnesses by Delegation

7 July 1992                      Commission's decision to hold oral

                                 hearing on the merits of the

                                 applications

21 September 1992                Further written submissions by the

                                 applicants

1 October 1992                   Further written submissions by the

                                 Government

16 October 1992                  Applicants submit video cassettes

20 November 1992                 Government submit documentary material

1 December 1992                  Communication from applicants

2 December 1992                  Communication from Government

3 December 1992                  Commission's deliberations

4 December 1992                  Oral hearing on the merits.

                                 Commission's deliberations

7 December 1992                  Commission decides to disjoin the

                                 present applications from Application

                                 No. 15318/89 (Loizidou v. Turkey)

27 January 1993                  Final submissions by applicants

29 January 1993                  Government's final submissions

3 April 1993                     Commission's consideration of the

                                 state of proceedings

29 June 1993                     Commission's deliberations on the

                                 merits and final vote

8 July 1993                      Adoption of the Report