PARTLY DISSENTING OPINION OF JUDGE MARCUS-HELMONS

(Translation)

I share the opinion of the majority of the judges of the Court on most of the decisions in this case. There are, however, aspects of this judgment with which I do not agree and for that reason I wish to make the following remarks.

To my mind, the fundamental problem lies in the interpretation of Article 35 of the Convention (former Article 26) and in the issue whether the “courts” established by the “TRNC” in northern Cyprus may be regarded as domestic remedies that must be exhausted (to the extent that the remedies concerned are effective in each individual case). A majority of the judges said that they could and referred in particular to the Advisory Opinion of the International Court of Justice (“ICJ”) on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (1971 ICJ Reports, vol. 16, p. 56, § 125).

I consider that the majority of the judges of the Court has erred in that interpretation and that a serious point of principle is at stake.

Advisory Opinion in the Namibia case

1. Paragraph 125 of the Advisory Opinion, which is cited by the Commission and relied on by the Court, recognises to a limited degree the effects of certain acts performed before the illegal authorities, such as declarations of birth, marriage or death, so as to avoid seriously disrupting the communal life of the local populations. Nevertheless, paragraph 125 must first be put back into context: in paragraphs 117 to 124, the ICJ repeatedly reminded all States that South Africa's presence in Namibia was illegal and warned of the danger of drawing conclusions from that presence. In conclusion, so as clearly to attenuate and limit the effect of its comments in paragraph 125, the ICJ clearly stated in paragraph 126 that “... the declaration of the illegality of South Africa's presence in Namibia [is] opposable to all States in the sense of barring erga omnes the legality of a situation which is maintained in violation of international law: in particular, no State which enters into relations with South Africa concerning Namibia may expect the United Nations or its Members to recognise the validity or effects of any such relationship or the consequences thereof .” (emphasis added)

Although the ICJ accepted the validity of certain illegal acts by the South African government, such as the registration of births, deaths and marriages, it did so solely because “[their] effects can be ignored only to

the detriment of the inhabitants of the territory ”. The ICJ thus accepted that those acts were valid because it was beneficial to the inhabitants of the territory to do so and so as not to make their position worse. Conversely, it would never have occurred to the ICJ to recognise any validity for acts that were illegal under international law if they necessarily operated to the detriment of the inhabitants of the territory.

The ICJ clearly regarded paragraph 125 as the exception, not the rule!

Accordingly, if the Court were to apply the ICJ's reasoning by analogy to Article 35 of the Convention (former Article 26), it would be guilty of misinterpretation, since requiring the inhabitants of Cyprus to exhaust domestic remedies before the “TNRC” before applying to the European Court of Human Rights when, moreover, those remedies are known to be ineffective obviously constitutes an additional obstacle for the inhabitants to surmount in their legitimate desire to secure an end to the violation of a fundamental right by applying to Strasbourg.

2. Nor is there any justification for relying on the Advisory Opinion in the Namibia case as a guide to the interpretation of former Article 26 of the Convention. The Opinion did not in any way concern the exhaustion of domestic remedies or the validity of courts established by an illegal government. It served merely as a means of preserving the rights of the inhabitants in a situation of total illegality.

3. The situations in Namibia and northern Cyprus are completely different. The authorities exercising power in the territory of South West Africa were initially legal by virtue of a mandate granted to South Africa by the League of Nations, which was later converted into a “trusteeship” by the United Nations. It was only subsequently, with the declaration of independence by Namibia, that they became illegal. In northern Cyprus courts established by law existed before the Turkish invasion of 1974. It was only after that invasion that the – clearly illegal – courts were set up.

4. Moreover, in the Loizidou v. Turkey judgment of 18 December 1996 ( merits ), Reports of Judgments and Decisions 1996-VI, the European Court of Human Rights made no reference to the Opinion in the case of Namibia when considering the issue of exhaustion of domestic remedies under former Article 26 of the Convention. It only did so when considering in general terms the possibility that operations affecting individuals in a de facto regime might be recognised as having some validity.

5. By using it with reference to former Article 26 of the Convention, the Court gives the Opinion in the case of Namibia an unduly wide interpretation for which there is no basis and which the ICJ never intended. The consequence of such a wide interpretation would be that: (a) the European Court of Human Rights could not refuse to recognise the courts established by the “TRNC”, (b) it would be in the interest of all the inhabitants of northern Cyprus, including Greek Cypriots, to seek the protection of those courts, (c) had the “TRNC” not established those courts, it would have violated the European Convention and (d) as a result, the inhabitants of the “TRNC” would have been under an obligation to exhaust the remedies provided by those courts.

6. Paragraphs 95 and 96 of the judgment are to my mind inopportune, as in its Opinion in the case of Namibia the ICJ was clear and deliberately succinct. There appears to be no need to “add to” the text of the majority of the ICJ by referring to individual opinions expressed by some of the judges and to arguments made during the pleadings, especially if the result is to give paragraph 125 of the Opinion greater scope than that intended by the majority in the ICJ.

7. Lastly, in paragraph 97 of the judgment the Court seems to jump to hasty and ill-advised conclusions which it considers to be a widely held opinion on this subject. As evidence of this, one need only examine, among other sources, the case-law of the Supreme Court of the United States on the validity of the confederate acts of the South during the Civil War. It should be noted that the southern authorities were legal until they seceded (the position thus being totally different from one in which courts are illegally established after a military invasion by a neighbouring State). Shortly after the Civil War ended, the Supreme Court recognised in the cases of Texas v. White , 74 U.S. 227; 7 Wall.700 (1868) ; Horn v. Lockhart , 21 L.ed. 658 ; 17 Wall. 570 (1873) and Williams v. Bruffy , 96 U.S. 178 (1878) and within very strict limits that the administrative acts and judgments of the confederate courts had some validity to the extent that their aim and execution did not conflict with the authority of the national Government and did not infringe citizens' constitutional rights. Those limited effects given retrospectively were strictly reserved to habitual acts necessary for the proper functioning of life in society. In the more recent case of Adams v. Adams ([1970] 3 Weekly Law Reports 934), the English High Court categorically refused to recognise any effect for the acts of the secessionist government concerned (the former Rhodesian government following the adoption of a unilateral declaration of independence) .

The European Convention on Human Rights

1. I should like to point out that this is a special situation. The Convention is a lex specialis whose special features must be respected and which is amenable to reasoning by analogy only in situations that are on all fours with each other (which is evidently not the case with the Advisory Opinion in the case of Namibia).

2. An analysis of the travaux préparatoires on the European Convention (Doc. Council of Europe, secret H (61) 4) reveals that, while domestic remedies were naturally required to be exhausted before applications were sent to Strasbourg, that condition was rapidly supplemented and qualified by the principle that exhaustion must be effected “according to the generally recognised international law” (ibid., in particular p. 462 and especially p. 497). That wording ultimately became “according to generally recognised rules of international law”.

Why were the requirement for the exhaustion of domestic remedies and especially the reference to generally recognised rules of international law made? While it is proper for the domestic courts first to be given the possibility of putting an end to the violation of a fundamental right where that possibility is an effective one, it is equally obvious that the authors of the Convention did not wish to be excessively formal and create additional obstacles for applicants wishing to apply to Strasbourg. The authors of the Convention sought to be rational, but above all effective and to offer a rapid remedy in Strasbourg when no other practical alternative exists. Their concern over effectiveness and fairness was reinforced by the fact that generally recognised rules do exist in this sphere in international law.

3. Indeed, the European Court of Human Rights has interpreted former Article 26 of the Convention on a number of occasions and its interpretation has been consistent with the generally recognised rules of international law (see, among other authorities, the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no. 246-A, p. 23, §§ 48 and 50, and the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1212, § 72).

Public international law

What are the generally recognised rules of international law in this sphere?

Legal opinion is unanimous on this subject:

The exhaustion of domestic remedies must never pose a theoretical obstacle to an international solution (through diplomatic protection or an international court). It is a clear rule of international law that while domestic remedies will normally require to be exhausted before recourse is had to international solutions, that requirement will never need to be satisfied if the domestic remedies are futile, ineffective, theoretical, non-existent or the domestic remedy is inoperative under the settled case-law .

1. Ch. Rousseau, Droit international public , Sirey, Paris, 1953, pp. 366-67.

2. D.P. O'Connell, International Law , Stevens, London, 1965, vol. II, pp. 1143-44.

3. M. Sorensen ed., Manual of Public International Law , Macmillan, London, 1968, pp. 588-90.

4. N. Quoc Dinh, Droit international public , LGDJ, Paris, 1975, p. 644.

5. G. Schwarzenberger and E. Brown, A Manual of International Law , 6th ed., Professional Books Limited, Oxon, 1976, p. 144: “If a State lacks effective local remedies, this amounts to a breach of the minimum standard. This omission itself constitutes an international tort and, in good faith, precludes the tortfeasor from invoking the local remedies rule .” (emphasis added)

6. O. Schachter, International Law in Theory and Practice , M. Nijhoff Publishers, Dordrecht, 1991, p. 213: “Of course the requirement [of exhaustion of local remedies] cannot be imposed where domestic remedies are manifestly ineffective or where they do not exist...”. “But it is not necessary to resort to local courts 'if the result must be a repetition of a decision already given'. An important exception in today's world is that the necessity to resort to local courts does not apply if the courts are completely subservient to the government.”

7. E.J. de Aréchaga and A. Tanzi, “International State Responsibility”, in M. Bedjaoui ed., International Law: Achievements and Prospects , Unesco, Paris, 1991, p. 375: “But even if there are remedies existing and available, the rule does not apply if theses remedies are 'obviously futile' or 'manifestly ineffective'.”

8. J.M. Arbour, Droit international public , 2nd ed., Yvon Blaise, Quebec, 1992, pp. 301-02.

9. J. Combacau and S. Sur, Droit international public , 4th ed., Montchrestien, 1999, p. 547: “[The exhaustion of domestic remedies] does not come into play either when the remedy is 'manifestly ineffective', that is to say when the competent court does not have effective power to make reparation for the damage sustained; and where judicial practice ... excludes all prospects of success on the merits because the courts consider themselves bound by the 'decisions of the executive' or settled case-law suggests that the remedy will fail.”

10. After declaring that remedies before the courts of northern Cyprus constitute domestic remedies for the purposes of former Article 26 of the Convention, the Court states, in paragraph 98 of the judgment, that the question of their effectiveness is to be considered on a case-by-case basis. Then, after analysing each individual case, the Court finds in the judgment that for one reason or another the domestic remedy did not exist or was ineffective.

The result might therefore be considered to be identical to what it would have been if former Article 26 had been strictly construed according to “the generally recognised rules of international law”. However, I consider that, although the result is the same, the Court should have avoided reasoning that is potentially perilous, as all the above arguments show. My view is reinforced by the fact that by so acting, the European Court of Human Rights finds itself dangerously caught up in assessing the validity of acts performed by a de facto government at a time when several member States of the Council of Europe have autonomist and even secessionist movements.

Paragraph 101 of the judgment

This paragraph, in which the Court notes an apparent contradiction, seems to me particularly inopportune, and even harmful, as it gives the impression that the Court sees no difference between the two violations of which Turkey is accused by Cyprus, as these are two very different cases, despite the fact that a single event is at the origin of both violations.

The criminal law of all democratic countries provides for situations in which a single offence may entail various consequences each of which, taken in isolation, may result in prosecution. By invading Cyprus and setting up illegal courts, Turkey clearly violated Article 6 of the European Convention. It is for that reason that those domestic remedies do not require exhausting before an application is made to Strasbourg. I do not see any contradiction in that.

It is precisely if the situation had been the converse that the applicant Government would have contradicted themselves, namely, on the one hand, by accusing the respondent State of being at the origin of numerous violations of human rights through its illegal occupation of northern Cyprus and, inter alia , of having established an illegal regime in that part of the country while, on the other hand, accepting that the courts illegally established by a military force there could provide a legally valid solution to the alleged violations.

Such reasoning is to my mind Cartesian.

Furthermore, the view that there is a “contradiction” is made even more erroneous by the fact that, as will be remembered, Turkey has consistently argued that the “TRNC” is a separate entity and that the courts of the “TRNC” are not part of the Turkish court system. Accordingly, adopting an ad hominem approach, how could the courts of the “TRNC” be regarded as being able to provide an effective remedy putting an end to the violations alleged against Turkey?

There is therefore no contradiction on the part of the applicant Government in those circumstances.

It is for that reason that I personally consider, mutatis mutandis , that courts established illegally in northern Cyprus do not satisfy the requirements of Article 6 of the Convention, which requires inter alia : “...[a] tribunal ... established by law...”. For exactly the same reason I am of the view that there is no “ effective remedy before a national authority ”, as required by Article 13 of the Convention, in northern Cyprus (see, in particular, paragraph 324, point 1, and paragraph 383).

Paragraph 221 of the judgment

In this paragraph the Court holds that there has been no violation of Article 2 of the Convention as a result of the “TRNC” authorities' refusal to afford Greek Cypriots and Maronites living in northern Cyprus access to medical care in another part of the island.

My view is that, at a time when freedom of movement is regarded as essential, especially when it comes to obtaining optimal medical care, a denial of such freedom by the State amounts to a serious breach of its obligations towards those within its jurisdiction. I consider that is something which may amount to a violation of the State's undertaking under Article 2 of the Convention to protect everyone's right to life by law.

We are living in a period of rapid scientific evolution and there may be substantial differences between institutions offering medical treatment, whether from one country to another or within the same country. For a State to use force to prevent a person from attending the institution which he considers offers him the best chance of recovery is to my mind highly reprehensible.

Furthermore, I regret that the European Court of Human Rights did not seize this opportunity to give Article 2 a teleological interpretation as it has done in the past with other Articles (see, among other authorities, the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, or the Young, James and Webster v. the United Kingdom judgment of 13 August 1981, Series A no. 44).

With the rapid evolution of biomedical techniques, new threats to human dignity may arise. The Convention on Human Rights and Biomedicine, signed at Oviedo in 1997, seeks to cover some of those dangers. However, to date only a limited number of States have signed it. Moreover, this Convention only affords the European Court of Human Rights consultative jurisdiction. In order this “fourth generation of human rights” to be taken into account so that human dignity is protected against possible abuse by scientific progress, the Court could issue a reminder that under Article 2 of the European Convention on Human Rights the States undertook to protect everyone's right to life by law.

The right to life may of course be interpreted in many different ways, but it undoubtedly includes freedom to seek to enjoy the best physically available medical treatment.

Paragraph 231 and paragraphs 235 to 240 of the judgment

For the reasons already set out in detail above, I do not share the opinion expressed in these paragraphs on Articles 6 and 13.

In addition to the arguments already put forward on the illegal nature of those courts, it seems to me that there is a further argument dictated by common sense. It is quite unrealistic to consider that the courts established in the territories occupied by the Turkish forces in northern Cyprus could administer independent and impartial justice, especially to Greek Cypriots, but also to Turkish Cypriots, in matters that are manifestly contrary to the rules established under the Turkish military occupation.

Even though those courts could hear and determine disputes between members of the local population, they would never dare take an impartial decision in a case relating to an event resulting from the military occupation.

Paragraph 317 of the judgment

I do not agree with the majority of the Court on this subject. Under a line of authority frequently followed by the Court, a violation of Article 14 of the Convention taken together with another Article will not be found where it covers the same ground as a finding of a violation of the other Article taken alone. Conversely, where taking Article 14 with that other Article results in a finding of an additional violation or a more serious violation of the other Article, the Court has always accepted in its case-law that there was also a violation of that other Article taken together with Article 14.

That is exactly the position here. Not to allow the religion to be practised fully constitutes a violation in itself, but the additional imposition of additional restrictions on account of that religion transforms the measure into a separate violation.

Certain documents produced at the United Nations

The Commission and the Court have treated the evidence adduced by the applicant Government in support of their allegations with great, some might say excessive, caution. For example, the report of the Secretary-General of the United Nations (S/1995/1020 of 10 December 1995) clearly documents infringements of the freedom of association of Turkish Cypriots living in the north wishing to take part in the formation of bi-communal associations in northern Cyprus; and a Security Council document of 23 May 2000 (A/54/878-S/2000/462) refers to a letter from the Permanent Representative of Turkey at the United Nations, an appendix to which indisputably establishes that, for the authorities of the “TRNC”, Greek Cypriots and Maronites living in northern Cyprus are aliens.

[1] . Note by the Registry . Protocol No. 11 came into force on 1 November 1998.

[2] . Note by the Registry . The full text of the Commission’s opinion and of the five partly dissenting opinions contained in the report will be reproduced as an annex to the final printed version of the judgment (in Reports of Judgments and Decisions ), but in the meantime a copy of the Commission’s report is obtainable from the Registry.

[3] . The Court has been informed of several successful court actions but it has no information at its disposal concerning the question of whether these judgments were actually enforced. The issue of enforcement, according to the applicant Government’s submissions, is also linked to alleged intimidation by Turkish settlers (see paragraph 229 of the judgment).

[4] . The Commission has described the notion of official tolerance as follows: “official tolerance means that superiors, though cognisant of such acts of ill-treatment, refuse to take action to punish those responsible or to prevent their repetition; or that a higher authority manifests indifference by refusing any adequate investigation of their truth or falsity; or that in judicial proceedings a fair hearing of such complaints is denied. To this latter element, the Commission would add that any action taken by a higher authority must be on a scale which is sufficient to put and end to the repetition of acts or to interrupt the pattern or system” (France, Norway, Denmark, Sweden and the Netherlands v. Turkey, decision of 6 December 1983, Decisions and Reports 35, pp. 163-64; also the Greek case, Yearbook 12, pp. 195-96).