ECtHR - Cyprus v. Turkey , Application no. 25781/94, 10 May 2001

Preliminary Issues

1) As to the issue of the Cyprus Government standing to bring an application before the ECtHR, the Court reiterated that the Republic of Cyprus has remained the sole legitimate government of Cyprus (as it was concluded in Loizidou  v. Turkey), and therefore its locus standi under former Article 24 (current Article 33) of the Convention could not be in doubt.

2) As to Cyrpus’ legal interest in bringing the  application, The Court did not deem the complaint raised in the instant application to be res judicata.

Indeed, the application  was  to  be  distinguished  from  the earlier  applications  in  that  it  set  out  new  violations  of  the  Convention, invoked complaints which were not the subject of any definitive finding by the Commission in its earlier reports, and was premised on the notion of continuing violations of Convention rights.

3) As to the respondent State's responsibility under the Convention, the  Court  held that the matters  complained  of  fell  within  the “jurisdiction” of Turkey within the meaning of Article 1 of the Convention and  therefore  entailed  the  respondent  State's  responsibility.

Indeed, the Court reiterated that the responsibility of a Contracting  Party  could  also  arise  when,  as  a  consequence  of military action , it exercises effective control of an area outside its national territory (Loizidou  v. Turkey). Indeed, any other finding would result in a regrettable vacuum in the system of human-rights protection in the territory in question.

4) As to the requirement to exhaust domestic remedies, the Court held that for  the  purposes  of  former  Article  26  of  the  Convention,  remedies available in Northern Cyprus were to be regarded as “domestic remedies” of the respondent State, regardless of the invalidity of the acts of the “TRNC” authorities from the standpoint  of  international  law. Accordingly,  the  inhabitants  of  the  territory  were required  to  exhaust  these  remedies, unless  their  inexistence  or  ineffectiveness could be proved. The latter issue of effectiveness was addressed by the Court with regard to each complaint when assessing the merit.

To underpin its conclusion, the Court made strong reference to the Advisory Opinion of the International Court of Justice in the  Namibia  case, where the Court held that international  law  recognises the  legitimacy  of  certain  legal  arrangements  and  transactions  in situations of de facto authority when ignoring those acts would only be to the detriment of the inhabitants of the territory.

Substantial issues

A) Alleged violations of the rights of Greek-Cypriot missing  persons and their relatives

1. The Court concluded that there had been a continuing violation of Article 2 on account of the failure of  the  authorities  of  Turkey to  conduct  an  effective investigation aimed at clarifying the whereabouts and fate of Greek-Cypriot missing persons who disappeared in life-threatening circumstances.

The Court maintained that, under Article 2 of the Convention read  in  conjunction  with  Article  1, the Contracting States have the procedural obligation of to effectively investigate not only when  individuals have been killed as a result of the use of force by agents of the State (McCann and Others v. the United Kingdom), but also upon the sole proof that an individual, who was last seen  in  the  custody  of  agents  of  the  State,  subsequently  disappeared  in  a context which may be considered life-threatening, as that which is clearly demonstrated in the present case.

Moreover, the Court affirmed that  the respondent  State's  procedural  obligation  could not be  discharged through  its  contribution  to  the  investigatory  work  of  the United  Nations  Committee  on  Missing  Persons (CMP), incapable to meet the standards of an effective remedy under Art. 2. .

2. The Court concluded there had been no breach of Article 4, being  of  the  view  that   it had not been substantiated that during the relevant period any of the missing persons  were  still  in  Turkish  custody  and  were  being  held  in  slavery or servitude.

3. The  Court  concluded  that,  there  had  been  a  continuing  violation  of  Article  5  on account of the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts of the missing Greek-Cypriot  persons  in  respect  of  whom  there  was  an  arguable  claim  that  they were in custody at the time they disappeared.

On the other hand, the Court found that there had been no violation of Article 5 by virtue of actual detention of Greek-Cypriot by the Turkish authorities due to the absence of sufficient evidence in this respect.

4. The court found that there had been a continuing violation of Article 3 in respect of the relatives of the Greek-Cypriot missing persons.

In fact, the Court maintained that the silence of the authorities of the respondent State in the face of the real concerns of the relatives of the missing persons had attained a level of severity which was to be categorised as inhuman treatment within the meaning of Article 3 (see also Çakici v. Turkey).

B) Alleged violations of the rights of displaced persons to respect for their home and property

1. The Court found a continuing violation of Article 8 by Turkey by reason of the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus.

Such conclusion was underpinned by two main observations. Firstly, the situation impugned by the applicant Government had no basis in law within the meaning of Article 8 § 2, since it was enforced only as a matter of policy.

Secondly, the inter-communal talks could not be invoked as the only means to solve the displaced persons’ complaint in order to legitimate a violation of the Convention.

2. The Court  concluded  that  there  had  been  a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot  owners  of  property  in  northern  Cyprus,  were  being  denied access to and control, use and enjoyment of their property because of an administrative practise of the Turkish authorities, and were also being denied any compensation for the interference with their property rights.

As the above was codified into Article 159 of the TRNC Constitution, the Court found that any complaint was unassailable, and thus the requirement to exhaust domestic remedies was not applicable.

Additionally, the Court recalled its conclusion in Loizidou, wherein it found that Article  159  of  the  TRNC  Constitution was invalid  for  the  purposes  of  the  Convention.

3. The Court held a violation of Article 13 by reason of the respondent State's  failure  to  provide  to  Greek  Cypriots  not  residing  in   northern  Cyprus  any  remedies  to  contest  interferences  with  their  rights under Article 8 of the Convention and Article 1 of Protocol No. 1.

C) Alleged Violations arising out of the living conditions of Greek Cypriot and Maronites living in northern Cyprus

1. The  Court  found no  violation  of  Article  2  on account of an alleged practice of denying access  to  medical  services  to  Greek  Cypriots and Maronites  living  in northern Cyprus.

The Court acknowledged that Article 2 § 1 obliges States to take appropriate steps to safeguard the lives of those within its jurisdiction; and, as it relates to the present case, a violation of Art. 2 may occur when an individual's life is put at risk through the denial of health care which a State has undertaken to make available to the population generally. (L.C.B. v. the United Kingdom). However, despite some shortcomings in individual cases, the Court observed that general access to medical services was available to them and it had not been established that the lives of any patients were put in danger on account of delays.

2. The Court dismissed the complaint under Art. 5 concerning acts of threat and actual aggression carried by the Turkish population against the Greek Cypriots without any appropriate counter-reaction of the authorities. Indeed, the Court found that those facts had to be more properly addressed from the angle of the requirements of Article 8.

3. The Court  found no  violation  of Article  6  by  reason  of  an  alleged  practice  of denying to the Greek-Cypriot population a fair hearing by an independent and impartial tribunal in the determination of their civil rights and obligations.

The court held that, for the settlement of disputes relating to civil rights and  obligations  defined  in  “domestic  law, there  was  a  functioning court system in the “TRNC””  which  was available  to  the Greek-Cypriot population, and had no flaws in its legal framework with regard to independency and impartiality.

Moreover, the Court affirmed that the illegality of the TRNC under international law was irrelevant from the standpoint of the Convention system.

4. The Court found a violation of art. 9 on account of restrictions placed on their freedom of movement which considerably curtailed their ability  to  observe  their  religious  beliefs,  for instance by hampering their access to places of worship outside their villages. On the contrary, the Court found no violation of art. 9 in respect of the Maronite population living in northern Cyprus, holding that there was insufficient evidence in this respect.

5. The  Court  found a  violation  of Article 10 insomuch as school-books destined for use in their primary school were subject to measures of censorship on the alleged ground  that  their  content  was  capable  of  fostering  hostility between the ethnic communities in northern Cyprus, no matter how innocuous their content was.

Secondly, the Court observed that there were no possible remedies available in this respect.

6. The  Court  found  no  violation  of  Article  11  by reason of an alleged practice of denying Greek  Cypriots  the  right  to  freedom  of association; indeed the Court considered that this claim was insufficiently substantiated.

7. The Court found a continuing violation of Art. 1 of the Protocol no. 1 (right to property), because the Greek Cypriots right to the peaceful enjoyment of their possessions  was not secured in case of their permanent departure from that territory, and their possessions could not  be  bequeathed  by  them  on  death,  and  passed  to  the authorities  as  “abandoned”  property.

In this respect, the Court was not persuaded that legal proceedings would hold out any prospects of success, having  regard  to  the  respondent  Government's  view  that  the  property  of  deceased  Greek  Cypriots passed to the authorities in accordance with the notion of “abandoned”.

8. The Court found a violation of Article 2 of Protocol No. 1 because no Greek-language secondary-school was available to Greek Cypriots. Whilst the Article does not  specify  the  language  in  which  education  must  be given, the Court held that having  assumed  responsibility  for  the provision of Greek-language primary schooling, the failure of the “TRNC” authorities to make continuing provision for it at the secondary-school level was a denial of the substance of the right having regard to the impact of this circumstances on families. Indeed, parents were de facto compelled to part from their children and send them to the south of Cyprus if they wanted to have their children to continue their education through the medium of the Greek language.

9. The Court found a violation of Art. 8. The Court came to this conclusion observing that Greek Cypriots who had permanently left the northern part of Cyprus (included school-children) were not allowed to return even if they had left a family  behind, and severe restrictions were placed also on simple visits. Furthermore, the Community was in several ways intrusively monitored in respect of its contacts and movements.

In the absence of any legal basis for these restrictions, the Court also held that it was not to be considered whether the interferences at issue could be justified with reference to the provisions of Article 8 § 2.

10. The Court found a violation of Art. 3 because of the discrimination amounting to degrading treatment suffered by the Greek Cypriots living  in  Karpas.

Indeed, the court recalled that discrimination based on race can constitute an affront to human dignity and therefore gives rise to an issue under art. 3 irrespective of  the relevance  of Article  14 (see also Abdulaziz, Cabales and Balkandali v. the  United  Kingdom).

The Court then observed that the severe restrictions on the exercise of basic freedoms above described were directed at the Karpas Greek-Cypriot community only on ethnic grounds, with the purported effect of extinguishing it with the passage of time.

D) Alleged Violations of the Turkish Cypriots and the Turkish-Cypriot Gypsy community in northern Cyprus

1. The Court concluded that it had not been established that there had  been  an  administrative  practice  of  violation  of  the  rights protected by  Articles 3,  5,  8,  10  and  11  against  Turkish Cypriots  who  were  opponents  of  the  regime  in  northern  Cyprus.

Whilst it could not be excluded that  by  reason  of  their  political  opposition  to  the ruling parties in northern Cyprus Turkish  Cypriots’ rights were being interfered with,  it  could not conclude  that  during the period under consideration an administrative practice of suppressing all dissent existed.

In addition, the Court noted that the individuals concerned did not exhaust the possible remedies available in the “TRNC” legal  system.

2. The Court concluded that it had not been sufficiently substantiated that there had  been  an administrative  practice  violating  the  rights  of the Turkish-Cypriot Gypsy community  under  Articles  3,  5,  8  and  14  of  the  Convention.

Despite acknowledging some individual cases of suffered hardship at the hands of the “TRNC” authorities, the Court did not consider that these individual cases proved the existence of an administrative practice of violation of the invoked rights.

3. The Court found a violation of Art. 6 on account of the legislative practice of authorising the trial of civilians by military courts.

As per Ireland  v.  the  United  Kingdom, unlike  individual  applicants,  a Contracting State is entitled to challenge under the Convention a law in abstracto as long as  it is couched in terms sufficiently clear and precise  to  make  the  breach  immediately  apparent.

That said, the Court found no reason to doubt that the military courts under analysis suffered from the same defects of independency and impartiality which were highlighted  in  Incal  v.  Turkey due to structural  links  between  the  executive  power  and  the  military  officers serving on the “TRNC” military courts.

4. Because of insufficient evidence, the Court held that no violation of art. 10 had been established by virtue of alleged restrictions on the right of Turkish Cypriots living in northern Cyprus to receive information from the Greek-language press.

5. The Court found that  it had not been established that there had been a violation of the right to freedom of association or assembly under Article 11 as a matter of administrative practice.

Indeed, the Court maintained that the applicant did not substantiate that the  “TRNC”  authorities  had  made  any  attempt  to  prevent  the  creation  of  bi-communal  organisations  between Turkish Cypriots living in the north and Greek Cypriots in the south during the period under consideration.

6. The Court found that it had not  been  established  that  there  had  been  a  violation  of  Article  1  of Protocol No. 1 because the  applicant had not substantiated that Turkish  Cypriots  living  in northern  Cyprus were prevented from accessing  their  property  in  the  south by  “TRNC”  authorities; and because sufficient remedies existed  to  secure redress against private interferences, and the existence of an administrative practice of condoning such interferences had not been substantiated.

7. The Court found no violation of Article 13 had been established, since the applicant government had not proved beyond reasonable doubt  the “TRNC”  failure as a matter of administrative  practice  to  secure  effective  remedies  to  Turkish  Cypriots living in northern Cyprus.