COUNCIL OF EUROPE

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a)  partly dissenting opinion of Mrs Palm joined by Mr Jungwiert, Mr Levits, Mr Pantîru, Mr Kovler and Mr Marcus-Helmons;
(b)  partly dissenting opinion of Mr Costa;
(c)  partly dissenting opinion of Mr Fuad;
(d)  partly dissenting opinion of Mr Marcus-Helmons.

While sharing most of the Court’s conclusions in this complex case, I feel obliged to record my dissent in respect of one major issue: the significance attached by the Court to the existence of a system of remedies within the “TRNC”. I consider the Court’s approach to this question to be so misguided that it taints the judgment as a whole. For the reasons developed below, this is especially unfortunate since it was open to the Court to carry out its task by avoiding this particular entanglement in a manner perfectly consonant with principle and its case-law.
In its Loizidou v. Turkey judgment of 18 December 1996 (merits) (Reports of Judgments and Decisions 1996-VI), the Court found that Article 159 of the fundamental law was to be considered as invalid against the background of the refusal of the international community to regard the “TRNC” as a State under international law. It did not “consider it desirable, let alone necessary … to elaborate a general theory concerning the lawfulness of legislative and administrative acts of the ‘TRNC’” (p. 2231, §§ 44-45). The Court was obviously concerned to limit its reasoning to what was essential for the decision of the case before it and to avoid straying into areas of particular complexity and delicacy concerning the “legality” of acts of an “outlaw” regime. It is my firm view that the Court should be equally careful in the present case to avoid elaborating a general theory concerning the validity and effectiveness of remedies in the “TRNC”, particularly if it is to be built around the minimalist remarks of the International Court of Justice (ICJ) in its Advisory Opinion on Namibia which the Court in Loizidou saw fit not to interpret or to explicate any further than necessary.
Such a policy of judicial restraint in this area is supported by three main considerations. In the first place, any consideration of remedies gives rise to the obvious difficulty that the entire court system in the “TRNC” derives its legal authority from constitutional provisions whose validity the Court cannot recognise – for the same reasons that it could not recognise Article 159 in the Loizidou case – without conferring a degree of legitimacy on an entity from which the international community has withheld recognition. An international court should not consider itself free to disregard either the consistent practice of States in this respect or the repeated calls of the international community not to facilitate the entity’s assertion of statehood. Secondly, the Court cannot examine the remedies of the “TRNC” in a vacuum, as if it were a normal Contracting Party, where it can be assumed that courts are “established by law” or that judges are independent and impartial (absent evidence to the contrary). To attribute legal validity to court remedies necessarily involves the Court in taking stand on whether the courts are “established by law” – something the Court
should avoid doing if it is to respect the illegal status of the “TRNC” regime and the declared stance of the international community. It is true that the concept of “established by law” is an autonomous one. However, the Court should avoid putting itself in a position where, for supposedly laudable reasons, it is tempted to fashion a semblance of legality out of a clearly illegal situation. Third, the Court should constantly bear in mind that Turkey herself does not claim that the “remedies” in question are Turkish remedies since the thrust of her arguments throughout this dispute is that the “TRNC” is an independent State responsible for the operation of its own legal system. The Court is thus confronted with the paradox that in its submissions the respondent State is advancing “remedies” that belong supposedly to another legal system. The artificiality of this approach which reflects the reality that the “TRNC” has no standing in the international community or indeed before the Court and is recognised by Turkey alone is, in itself, a reason for the Court to exercise great caution before giving a broad ruling on the status of such “remedies” under the Convention.
Of course, I accept that even in a situation of illegality it is clearly in the interests of the inhabitants that some form of court system is set up to enable basic everyday disputes to be settled by a source of authority. Moreover, it is not to be excluded that the decisions of such courts, particularly in civil matters – divorce, custody arrangements, contracts and the like – could be recognised by the courts of other countries. Such recognition has indeed occurred from time to time, notably after the situation of illegality has ended. However, it is precisely because of the importance of such arrangements for the local population – if the situation permits that recourse be had to them – that an international court should be reluctant to venture into any examination of their legality unless it is strictly necessary to do so. Any other approach may ultimately be harmful to the de facto utility of such a system. For example, a finding of “illegality” may discourage the use of such fora to settle disputes. Equally, a finding upholding the lawfulness of such arrangements in the present case could give rise to a call by the legitimate Cypriot government that such tribunals be shunned by the Greek-Cypriot community so as not to compromise the government’s internationally asserted claim of illegality. The Court should not assume too readily that it is acting for the benefit of the local population in addressing the legality of such arrangements.
However, I should emphasise from the outset that it does not follow from my acceptance of the utility of a local court system that this Court should require applicants in northern Cyprus complaining of human-rights violations to exhaust these possible avenues of redress – or those avenues which the Court considers to be effective – before it has jurisdiction to examine their complaints. Episodic recognition by foreign courts is one thing. The exhaustion requirement is another. To require those subject to the exigencies of an occupying authority to have recourse to the courts as a precondition to having their complaints of human-rights violations examined by this Court is surely an unrealistic proposition given the obvious and justifiable lack of confidence in such a system of administration of justice.
In the present judgment the Court unwisely embarks on the elaboration of a general theory of remedies in the “TRNC” constructed around the brief remarks of the ICJ in its Advisory Opinion on Namibia (see paragraphs 89-102) and reaches the general conclusion in paragraph 102 that “for the purposes of former Article 26 …, remedies available in northern Cyprus may be regarded as ‘domestic remedies’ of the respondent State”. This gives rise to two major difficulties. The first is that such a theory in the present case is not at all necessary since the Court does not in fact at any stage reject a complaint under former Article 26 for failure to exhaust domestic remedies! It limits itself to using these considerations only indirectly when considering the effectiveness of remedies from the standpoint of Article 13 and the issue of official tolerance as an element of the concept of administrative practice. The fifth point of the operative provisions on preliminary issues is thus both unnecessary and over-broad.
More importantly, such a general conclusion has, as a direct consequence, that the European Court of Human Rights may recognise as legally valid decisions of the “TRNC” courts and, implicitly, the provisions of the Constitution instituting the court system. Such an acknowledgment, notwithstanding the Court’s constant assertions to the contrary, can only serve to undermine the firm position taken by the international community which through the United Nations Security Council has declared the proclamation of the “TRNC”’s statehood “legally invalid” and which has stood firm in withholding recognition from the “TRNC”. It also runs counter to the position taken by the Committee of Ministers of the Council of Europe (see paragraph 14 of the judgment and paragraphs 19-23 of the Loizidou judgment) and to the terms of various resolutions calling upon States “not to facilitate or in any way assist the illegal secessionist entity” (see in particular paragraphs 20 and 23 of the Loizidou judgment). It is my view that an international court should be extremely hesitant before adopting a position which goes so firmly against the grain of international practice – particularly when this is not at all necessary for the disposal of the case before it. The cautious position adopted by the Court in paragraph 45 of its Loizidou judgment is a telling example of the wisdom of such an approach.
It remains to explain why it is not necessary for the Court to express any view on the legal significance of the remedies in northern Cyprus in order to decide the present case. I propose to examine in this context the complaints where the Court took into account the existence of remedies in order to reach its conclusion – namely those under Articles 6 and 13 as regards the Greek-Cypriot community in northern Cyprus (paragraphs 233-40 and 324 of the judgment), complaints concerning Turkish-Cypriot political opponents and Gypsies (paragraphs 342-53 of the judgment) and the alleged violation of Article 13 in respect of these complaints (paragraphs 378-83 of the judgment).
1.  Articles 6 and 13
The Court reaches the conclusion that no violation of Article 6 has been established “by reason of an alleged practice” as regards the claim that the members of the enclaved Greek-Cypriot population were denied their right to have their civil rights and obligations determined by independent and impartial courts established by law (paragraphs 233-40 of the judgment). In doing so, it endorsed the Commission’s conclusion on the facts that there was nothing in the framework of the “TRNC” legal system to cast doubt on the independence and impartiality of the judges and that the courts functioned on the basis of the domestic law of the “TRNC”.
Apart from the difficulties inherent in the recognition of the “TRNC” framework which I have alluded to above, the conclusion reached sits ill with the Court’s general findings in respect of the enclaved Greek-Cypriot community of multiple grave breaches of the provisions of the Convention (Articles 3, 9, 10 of the Convention and Articles 1 and 2 of Protocol No. 1). The Court accepts that the enclaved Greek Cypriots are “compelled to live in a hostile environment in which it is hardly possible to lead a normal private and family life” (paragraph 300). It also finds that this population is the victim of discriminatory and degrading treatment based on ethnic origin, race and religion and that its members are compelled to live “isolated, restricted in their movements, controlled and with no prospect of renewing or developing their community” (paragraph 309). When one stands away from the legal detail supporting these conclusions, the Court accepts the general picture of a dwindling and aged community that has been subjected to a substantial reduction of the Convention rights of its members under colour of a policy of ethnic separation. The Court, furthermore, agrees with the observations of the UN Secretary-General that the restrictions will have the inevitable effect that the community will cease to exist (paragraph 307).
In such a context, is it realistic to say that the members of this community have access to the courts in respect of their civil claims? Is it a credible proposition that there exists a haven of juridical relief ready and able to defend the rights of this beleaguered population notwithstanding the existence of an official policy of containment and oppression? I would very much like to believe that the courts could and would function in this manner but, in the absence of substantial evidence to the contrary – as opposed to a
few successful court judgments in personal-injury or trespass actions  –, experience and common sense teach us that the courts are generally powerless in such a situation. It must also be borne in mind that the inhabitants during the period under consideration were not permitted to travel more than three miles from their homes – a fact which is hardly conducive to a desire to have recourse to the courts to settle disputes. It is thus a perfectly natural and predictable state of affairs that this population makes no real use of the court system.
The Court must have regard to the general legal and political context in which remedies operate as well as the personal circumstances of the complainants (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1211, § 69). It is more in keeping with the Court’s usual approach to remedies to conclude that where there is a practice of non-observance of Convention provisions, in pursuance of a particular policy of the State, remedies will, as a consequence, be half-hearted, incomplete or futile (see, mutatis mutandis, the Commission’s report in the Greek case, Yearbook 12, p. 194). This conclusion would also apply to the complaint under Article 13 concerning alleged interferences by private persons with the rights of Greek Cypriots in northern Cyprus. Finally, it is difficult to comprehend how it can be said to be for the benefit of the local population – in the words of the much-relied upon sentence in the Advisory Opinion in the Namibia case – to require members of these communities to exhaust the domestic remedies offered by the “TRNC” before the Court would examine their complaints of human-rights violations.
In conclusion, the Court ought to have found a violation of this provision as an inevitable consequence of its general appraisal of the plight of this community and left open all issues concerning the legal system of the “TRNC”.
2.  Complaints concerning Turkish-Cypriot political opponents and Gypsies
The Court rejects the allegations of the existence of an administrative practice of a violation of the rights of both of the above categories. I find it helpful to recall that the concept of administrative practice in the case-law of the Convention institutions involves two distinct and cumulative elements: firstly a repetition of acts or “an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system” (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 64, § 159). It also involves a certain “official tolerance” by State authorities on the basis that “it is inconceivable that the higher authorities of a State should be, or at least should be entitled to be, unaware of the existence of such a practice” (ibid). Furthermore, “under the Convention those authorities are strictly liable for the conduct of their subordinates; they are under a duty to impose their will on subordinates and cannot shelter behind their inability to ensure that it is respected” (ibid) . The Court accepts the Commission’s conclusions that the facts do not support the claims of such a general and widespread interference with the rights of the members of these groups (paragraphs 342-53). Accordingly, it could not be said that the first limb of one of the constituent elements of administrative practice – namely a repetition of acts – was present. Having reached this conclusion, it is unnecessary to go further and decide that members of these groups did not have recourse to remedies as the Court has done in paragraph 352 of the judgment. Presumably – although it is not stated expressis verbis – the Court has made reference to remedies in this context with a view to demonstrating that the other requirement of an administrative practice, namely official tolerance, was lacking. However to reach the conclusion that there was no practice, it is sufficient that one of the requirements – in this case the factual one – was lacking. Here again, the Court is unwisely going further than is strictly necessary to reach its conclusion.
3.  Article 13 as regards the complaints of the Turkish-Cypriot community
The Court also accepts the Commission’s finding in respect of this peripheral complaint that there exist effective remedies before the courts of the “TRNC” in respect of the grievances of the dissident and Gypsy community (paragraphs 378-83). Here it may be questioned whether, having earlier rejected the allegations of an administrative practice of violation of the rights of these groups, it is at all necessary to then examine the further question of whether there existed a practice of denying them effective remedies. In my view this question need only be looked at if the evidence adduced in support of the practice gives rise to an arguable claim of the existence of a practice. But even if it did, I consider that the burden rests on the respondent Government to demonstrate, with reference to decided cases, that these groups had a realistic possibility of bringing successful court actions. In the political situation obtaining in the “TRNC” I am not at all convinced, for reasons similar to those set forth in the context of Article 6 above, that the court system is capable of affording or would be permitted to afford remedies to political dissidents who call into question the policy of ethnic separation on which the entity is constructed or to impoverished Gypsies living on the margins of civil society.
Accordingly, the problem of remedies could also have been avoided in this context either by finding that it was not necessary to examine Article 13 or, in the alternative, finding that there was also a violation of that provision on the basis of the ineffectiveness of remedies – while leaving open the question of their legality.
Conclusion
The Court was unwise to follow the Commission in elaborating a general theory concerning the validity and effectiveness of remedies in the “TRNC”.
It has perhaps lost sight of the disagreement between the Commission and Court in Loizidou as to how to approach issues arising out of Turkey’s continuing occupation of northern Cyprus. Surely in such a political area the Court should allow itself to be guided by the firm – and unrelenting –approach followed up to the present day by the international community. As shown above, the approach taken by the Court was unnecessary to decide the issues presented in this case. In an inter-State case where issues arise which have implications for the international community at large in its relations with both parties and indeed with the Court, the principle of judicial restraint should have been given free rein as the Court suggested in its remarks in the Loizidou judgment referred to above. I very much regret that a similar measure of caution was not followed in this case.

1.  There are only two points (out of some fifty operative provisions) on which I disagree with the majority (with regard either to the reasoning or to the conclusion). They concern the religious discrimination against the Greek Cypriots living in the Karpas region and the violation of the rights of the Turkish-Cypriot Gypsy community.
2.  As regards the first point, I quite understand why, having found a violation of Article 3 of the Convention against the Karpas Greek-Cypriots, the majority does not consider it necessary to examine whether there has also been a violation of Article 14 taken together with other provisions.
3.  I am, however, unhappy that that conclusion was held also to apply to Article 14 taken together with Article 9. As a matter of general principle, the prohibition on discrimination contained in Article 14 does not appear to me to be made redundant by a mere finding that a right guaranteed by the Convention has been violated. For example, in the case that ended with the Chassagnou and Others v. France judgment ([GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999-III) (in which I was in the minority, but that is a separate issue), the Court had no hesitation in finding a violation of Article 11 of the Convention and Article 1 of Protocol No. 1, taken both alone and together with Article 14 of the Convention. For an enclaved community living on an island divided among other things along religious lines and having no freedom of movement (see paragraph 245 of the instant judgment), it seems to me that religious freedom is one of the most important freedoms and has, in the present case, been infringed. For my part, I see nothing illogical in those circumstances in finding violations of Article 9 and of Article 9 taken together with Article 14.
4.  Admittedly, it could be objected that a finding of discriminatory treatment serious enough to amount to inhuman and degrading treatment prohibited by Article 3 suffices. Perhaps. But I am not sure that that Article necessarily encompasses everything and takes precedence over all other violations. The Convention constitutes a whole, but that does not mean that a finding of one violation of the Convention will release the Court from the obligation to examine whether there have been others, save in exceptional circumstances where all the various complaints arise out of exactly the same set of facts.
5.  As regards the Turkish Cypriots of Gypsy origin, the Court finds in paragraph 352 of the judgment that no practice of denying protection of their rights has been established. However, the Commission found numerous violations of those rights and noted particularly serious incidents (see paragraph 54 of the judgment). Without repudiating that finding, the Court merely relies on the fact that the victims did not exercise any
remedies before the local courts. However, surely a distinction should be drawn between the infringement of the victims’ rights and freedoms, which is undisputed, and the fact that, rightly or wrongly, the victims did not believe an action in the courts feasible or effective? Further, should their failure to bring an action be equated to a lack of evidence of an administrative practice, something which is in any event very difficult to prove and has been only rarely accepted as substantiated in the Court’s decisions?
6.  To my mind, it would have been simpler for the Court to accept the Commission’s findings and to deem them a violation of the rights guaranteed by the Convention and the Protocols thereto. For that reason, I did not vote in favour of that operative provision.
7.  As for the rest, and without deriving any individual or collective self-satisfaction, I readily agree with the grounds and operative provisions of this important judgment.
 

1.  I voted against the finding of the majority of the Court that there had been a continuing violation of Article 1 of Protocol No. 1 by the respondent State by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus were being denied access to, and the right to control and enjoy, their property without compensation for the interference with their property rights. Unless the Court, as presently constituted, was persuaded that the judgment of the majority in the Loizidou case was wrong, this decision was to be expected.
2.  With great respect, in my view the majority has not given sufficient weight to the causes and effects of the ugly and catastrophic events which took place in Cyprus between 1963 and 1974 (which literally tore the island apart) or to developments that have occurred since, particularly the involvement of the United Nations. I have found the reasoning in some of the dissenting opinions annexed to the Loizidou v. Turkey judgment of 18 December 1996 (merits) (Reports of Judgments and Decisions 1996-VI) cogent and compelling. They stress the unique and difficult features of what might be called the Cyprus problem.
3.  Judge Bernhardt (joined by Judge Lopes Rocha) made a number of observations about the present situation in Cyprus and the effect that it had on the issues before the Court. He said:
“1.  A unique feature of the present case is that it is impossible to separate the situation of the individual victim from a complex historical development and a no less complex current situation. The Court’s judgment concerns in reality not only Mrs Loizidou, but thousands or hundreds of thousands of Greek Cypriots who have (or had) property in northern Cyprus. It might also affect Turkish Cypriots who are prevented from visiting and occupying their property in southern Cyprus. It might even concern citizens of third countries who are prevented from travelling to places where they have property and houses. The factual border between the two parts of Cyprus has the deplorable and inhuman consequence that a great number of individuals are separated from their property and their former homes.
I have, with the majority of the judges in the Grand Chamber, no doubt that Turkey bears a considerable responsibility for the present situation. But there are also other actors and factors involved in the drama. The coup d’état of 1974 was the starting-point. It was followed by the Turkish invasion, the population transfer from north to south and south to north on the island, and other events. The proclamation of the so-called ‘Turkish Republic of Northern Cyprus’, not recognised as a State by the international community, is one of those events. The result of the different influences and events is the ‘iron wall’ which has existed now for more than two decades and which is supervised by United Nations forces. All negotiations or proposals for negotiations aimed at the unification of Cyprus have failed up to now. Who is responsible for this failure? Only one side? Is it possible to give a clear answer to this and several other questions and to draw a clear legal conclusion?
 
The case of Mrs Loizidou is not the consequence of an individual act of Turkish troops directed against her property or her freedom of movement, but it is the consequence of the establishment of the borderline in 1974 and its closure up to the present day.”
4.  After explaining why he considered that the preliminary objection raised by the respondent Government was sustainable, Judge Bernhardt went on to say:
“3.  Even if I had been able to follow the majority of the Court in this respect, I would still be unable to find a violation of Article 1 of Protocol No. 1. As explained above, the presence of Turkish troops in northern Cyprus is one element in an extremely complex development and situation. As has been explained and decided in the Loizidou judgment on the preliminary objections (23 March 1995, Series A no. 310), Turkey can be held responsible for concrete acts done in northern Cyprus by Turkish troops or officials. But in the present case, we are confronted with a special situation: it is the existence of the factual border, protected by forces under United Nations command, which makes it impossible for Greek Cypriots to visit and to stay in their homes and on their property in the northern part of the island. The presence of Turkish troops and Turkey’s support of the ‘TRNC’ are important factors in the existing situation; but I feel unable to base a judgment of the European Court of Human Rights exclusively on the assumption that the Turkish presence is illegal and that Turkey is therefore responsible for more or less everything that happens in northern Cyprus.”
5.  I also agree with the dissenting opinion of Judge Pettiti. After stating why he had been in favour of accepting certain preliminary objections raised by Turkey, he observed:
“Since 1974, the United Nations not having designated the intervention of Turkish forces in northern Cyprus as aggression in the international law sense, various negotiations have been conducted with a view to mediation by the United Nations, the Council of Europe and the European Union. Moreover, the Court did not examine the question whether that intervention was lawful (see paragraph 56 of the judgment). The decision to station international forces on the line separating the two communities made the free movement of persons between the two zones impossible, and responsibility for that does not lie with the Turkish Government alone.
The Court’s reference to the international community’s views about the Republic of Cyprus and the ‘TRNC’ (see paragraph 42 of the judgment) is not explained. But is it possible in 1996 to represent the views of this ‘international community’ on the question as uncontested, given that the most recent resolutions of the United Nations General Assembly and Security Council go back several years and the Court had no knowledge of the missions of the international mediators? For the Court it would appear that only Turkey is ‘accountable’ for the consequences of the 1974 conflict! In my opinion, a diplomatic situation of such complexity required a lengthy and thorough investigation on the spot, conducted by a delegation of the Commission, of the role of the international forces and the administration of justice, before the Court determined how responsibility, in the form of the jurisdiction referred to in Article 1 of the Convention, should be attributed.”
 
6.  In conclusion Judge Pettiti said:
“Whatever the responsibilities assumed in 1974 at the time of the coup d’état, or those which arose with the arrival of the Turkish troops in the same year, however hesitant the international community has been in attempting to solve the international problems over Cyprus since 1974, at the time when the ‘TRNC’ was set up or at the time of Turkey’s declaration to the Council of Europe, those responsibilities being of various origins and types, the whole problem of the two communities (which are not national minorities as that term is understood in international law) has more to do with politics and diplomacy than with European judicial scrutiny based on the isolated case of Mrs Loizidou and her rights under Protocol No. 1. It is noteworthy that since 1990 there has been no multiple inter-State application bringing the whole situation in Cyprus before the Court. That is eloquent evidence that the member States of the Council of Europe have sought to exercise diplomatic caution in the face of chaotic historical events which the wisdom of nations may steer in a positive direction.”
7.  I also agree with Judge Gölcüklü’s views in his dissenting opinion. He emphasised the fact that the Court was dealing with a political situation and that he did not find it possible to separate the political aspects of the case from its legal aspects. He agreed with Judge Bernhardt’s approach and later remarked:
“The Cypriot conflict between the Turkish and Greek communities is mainly attributable to the 1974 coup d’état, carried out by Greek Cypriots with the manifest intention of achieving union with Greece (enosis), which the Cypriot head of state at the time vigorously criticised before the international bodies. After this coup d’état Turkey intervened to ensure the protection of the Republic of Cyprus under the terms of a Treaty of Guarantee previously concluded between three interested States (Turkey, the United Kingdom and Greece) which gave these States the right to intervene separately or jointly when the situation so required, and the situation did so require ultimately in July 1974, on account of the coup d’état. In all of the above, incidentally, I make no mention of the bloody events and incidents which had been going on continually since 1963.
This implementation of a clause in the Treaty of Guarantee changed the previously existing political situation and durably established the separation of the two communities which had been in evidence as early as 1963.
…
After the establishment of the buffer-zone under the control of United Nations forces, movement from north to south and vice versa was prohibited and there was a population exchange with the common consent of the Turkish and Cypriot authorities under which eighty thousand Turkish Cypriots moved from southern to northern Cyprus.”
8.  Judges Gölcüklü and Pettiti made other observations about the present situation in Cyprus with which I respectfully agree. I think that they are relevant to the issue before us even though made at the just satisfaction stage (Loizidou v. Turkey judgment of 28 July 1998 (Article 50), Reports 1998-IV).
 
Judge Gölcüklü said:
“3.  This Loizidou case is not an isolated case concerning the applicant alone (the intervention of the Greek Cypriot administration is manifest proof of that); it concerns on the contrary all the inhabitants of the island, whether of Turkish or Greek origin, who were displaced following the events of 1974, a fact which should cause no surprise.
At the heart of the Loizidou v. Turkey case lies the future political status of a State that has unfortunately disappeared, a question to which all the international political bodies (the United Nations, the European Union, the Council of Europe, etc.) are now seeking an answer. A question of such importance can never be reduced purely and simply to the concept of the right of property and thus settled by application of a Convention provision which was never intended to solve problems on this scale.”
Judge Pettiti observed:
“My votes in the first two judgments were prompted by the political situation in Cyprus and my interpretation of international law. The fact that an international force controls the ‘green line’ and prohibits the free movement of persons from one zone to the other and access to property in another zone should in my opinion have been taken into account by the Court. Current political developments show that the problem of Cyprus unfortunately goes well beyond the dimensions of a mere lawsuit.”
9.  In my opinion, everything that was said in the passages from the dissenting opinions I have quoted is apt, mutatis mutandis, when the issue before us falls to be considered. Nothing has happened since the Loizidou case was decided that would render those observations untenable or irrelevant.
10.  The nettle must be grasped. The Court’s majority judgment must mean that unless every Cypriot who wishes to recover possession of his or her property is allowed to do so, crossing the UN-controlled buffer-zone as may be necessary, immediately and before a solution to the Cyprus problem has been found, there will be a violation of Convention rights in respect of the person whose wish is denied. As matters stand today (and sadly, have stood for over a quarter of a century) could anyone, armed with his title deed, go up to a unit of the UN peace-keeping force and demand the right to cross the buffer-zone to resume possession of his or her property? Who would police the operation? What might be the attitude of any present occupier of the property in question? Would not serious breaches of the peace inevitably occur? Who would enforce any eviction which was necessary to allow the registered owner to retake possession?
11.  If considerations of this kind are relevant (and I do not see how they can be brushed aside) then, it seems to me, it must be acknowledged that in present-day Cyprus it is simply not realistic to allow every dispossessed property owner to demand the immediate right to resume possession of his or her property wherever it lies. In my opinion, these problems are not overcome by giving such persons the solace of an award of compensation and/or damages because their property rights cannot, for practical reasons, be restored to them. The full impact of the majority decision must be confronted: it goes far beyond matters of compensation and condemnation.
12.  Events over the past thirty years or so have shown that despite the devoted and unremitting efforts of the United Nations (through successive holders of the office of Secretary-General and members of their staff), other organisations and friendly governments, a solution acceptable to both sides has not been found. This is surely an indication of the complexity and difficulty of the Cyprus problem. These efforts continue: talks were in progress in New York as the Court was sitting.
13.  Sadly, it may be that when a solution is ultimately found it will be one that fails to satisfy the understandable desire of every Cypriot to return to his or her home and fields, etc. The Secretary-General, looking ahead, has realistically faced this possibility. For example, as long ago as 1992, he included this paragraph in his Set of Ideas:
“Other areas under Greek-Cypriot and Turkish-Cypriot administration. Each community will establish an agency to deal with all matters related to displaced persons. The ownership of the property of displaced persons, in respect of which those persons seek compensation, will be transferred to the ownership of the community in which the property is located. To this end, all titles of properties will be exchanged on a global communal basis between the two agencies at the 1974 value plus inflation. Displaced persons will be compensated by the agency of their community from funds obtained from the sale of the properties transferred to the agency, or through the exchange of property. The shortfall in funds necessary for compensation will be covered by the federal government from a compensation fund obtained from various possible sources such as windfall taxes on the increased value of transferred properties following the overall agreement, and savings from defence spending. Government and international organisations will also be invited to contribute to the compensation fund. In this connection, the option of long-term leasing and other commercial arrangements may also be considered.
Persons from both communities who in 1974 resided and/or owned property in the federated State administered by the other community or their heirs will be able to file compensation claims. Persons belonging to the Turkish-Cypriot community who were displaced after December 1963 or their heirs may also file claims.”
14.  More recently, the Secretary-General issued a statement to each side (which was published in the press) at the November 2000 round of proximity talks in Geneva. His statement includes the following paragraph:
“Concerning property, we must recognise that there are considerations of international law to which we must give weight. The solution must withstand legal challenge. The legal rights which people have to their property must be respected. At the same time, I believe that a solution should carefully regulate the exercise of these rights so as to safeguard the character of the ‘component States’. Meeting these principles will require an appropriate combination of reinstatement, exchange and compensation. For a period of time to be established by agreement, there may be limits on the number of Greek Cypriots establishing residence in the north and Turkish Cypriots establishing residence in the south. It is worth mentioning in this context that the criteria, form and nature of regulation of property rights will also have a bearing on the extent of territorial adjustment, and vice versa.”
15.  I was not satisfied that the applicant Government had established that Turkey was responsible for the alleged violations relied upon in relation to Greek-Cypriot owners of property.
16.  I am also not able to agree with the decision of the majority of my colleagues regarding the alleged violations which relate to Greek-Cypriot missing persons and their relatives. Like the Commission, the majority has concluded that the facts did not disclose a substantive violation of Article 2 since the evidence was insufficient to establish Turkey’s responsibility for the deaths of any of the missing persons. The majority also accepted the finding of the Commission that nothing in the evidence supported the assumption that any of the missing persons were still in Turkish custody during the relevant period in conditions which offended Article 4: thus a breach of that Article had not been established.
17.  However, the majority decided that a continuing violation of Article 5 had been shown because the Turkish authorities had failed to conduct an effective investigation into the fate of missing persons in respect of whom there was an arguable claim that they were in Turkish custody at the time of their disappearance. They agreed with the Commission that these obligations had not been discharged through Turkey’s contribution to the investigatory work of the Committee on Missing Persons (“CMP”).
18.  Further, they held that since Turkey had failed to make the necessary investigations and thus had given no information about the fate of the missing persons, their relatives had been subjected to inhuman treatment of the kind proscribed by Article 3.
19.  A great deal of material was before the Commission and the Court about the formation, responsibilities and work of the CMP. A full summary of all this is in the Commission’s report. The UN General Assembly called for the establishment of an investigatory body to resolve the cases of missing persons from both communities. The General Assembly requested the Secretary-General to support the establishment of such a body with the participation of the International Committee of the Red Cross (“ICRC”) “which would be in a position to function impartially, effectively and speedily so as to resolve the problem without undue delay”.
20.  Eventually it was decided that the CMP should comprise three members: representatives from the Greek and the Turkish side and a representative of the Secretary-General nominated by the ICRC. What seems clear is that the United Nations, for obvious reasons, envisaged a body that would perform its sad and difficult task objectively and without bias. The UN’s call was met by the composition of the CMP. Very wisely, if I may say so, the ICRC was to be involved so that its resources and wide experience in the often heartbreaking task involved could be called upon.
21.  Once the CMP was set up, I have seen nothing to suggest that the Secretary-General, the ICRC or any other organisation such as the UN Working Group on Enforced and Involuntary Disappearances (Geneva) contemplated that a unilateral investigation by Turkey, the State against which the most serious allegations about the treatment and fate of the missing persons continue to be made, would satisfy anyone. And, of course, the advantage of the CMP was that it would investigate the disappearances of Turkish-Cypriot missing persons too, as the UN clearly had in mind.
22.  Turkey’s stand on the whole issue of the missing persons is well known. I have seen no evidence that Turkey has refused to cooperate with the CMP or obstructed its work. If the Terms of Reference, the Rules or the Guidelines that govern the way that the CMP operates are unsatisfactory these can be amended with good will and the help of the Secretary-General. I am not able to agree with my colleagues that the CMP procedures are not of themselves sufficient to meet the standard of an effective investigation required by Article 2. As the applicable Rules and Guidelines, read with the Terms of Reference, have developed, provided both sides give their ungrudging cooperation to the CMP, an effective investigating team has been created. That the CMP was the appropriate body to make the necessary investigations was acknowledged by the UN Working Group on Enforced and Involuntary Disappearances.
23.  Apart from the reliance by Turkey on the establishment and responsibilities of the CMP which I consider was justified, in my respectful opinion the majority of the Court has not given effect to the relevant part of the declaration by which Turkey submitted to the compulsory jurisdiction of the Court. Jurisdiction was accepted in relation to “matters raised in respect of facts which have occurred subsequent to [22 July 1990]”.
24.  The concept of continuing violations is well established and readily understood. In a simple case, for example, where a person has been arrested and detained illegally, it does not matter that his original detention took place before the respondent was subject to the Convention (or even before the Convention prohibiting the violation came into force). The Court will have jurisdiction to examine and adjudicate on the legality of his detention provided he is still under detention at the material time.
25.  Here the position is not simple. The events which the majority of the Court held to have given rise to an obligation to conduct effective investigations occurred in July and August 1974. This was some fifteen years before the operative date of Turkey’s declaration. Neither the Commission nor the Court found sufficient evidence to hold that the missing persons were still in the custody of the Turkish authorities at the relevant time. In my opinion, it cannot be right to treat the Convention obligation which arises in certain circumstances to conduct a prompt and effective investigation as having persisted for fifteen years after the events which required investigation so that, when Turkey did become bound by the Convention, her alleged failure to date to conduct appropriate investigations can be regarded as a violation of the Convention. In my view, the concept of continuing violations cannot be prayed in aid to reach such a result. It seems to me that such an approach would be to apply an obligation imposed by the Convention retrospectively and to divest the time limitation in the declaration of its effect.
26.  I was not satisfied that the respondent State has been shown to be guilty of any Convention violation in relation to the missing persons or their relatives.
27.  I now turn to address the alleged human-rights violations said to arise out of the living conditions of Greek Cypriots who choose to live in the Karpas region. My colleagues, following the reasoning of the majority in the Loizidou case, have held that all the violations found to have been established were imputable to Turkey because Turkey had general responsibility under the Convention for the policies and actions of the “TRNC” authorities since, through her army, she exercised overall control over northern Cyprus. They concluded, as had the Commission, that this was obvious “from the large number of troops engaged in active duties in northern Cyprus”.
28.  I do not think that this aspect of the case can be approached without a consideration of the events which led to the division of Cyprus. These events were unique. The finely balanced constitutional arrangements, supported by solemn treaty obligations, under which the Republic of Cyprus was established, broke down all too soon. Then there was the 1974 coup, the object of which is common knowledge. What was virtually a war then ensued, followed by a cease-fire and the movement of many members of the community to the north or to the south of a buffer-zone. Starting as long ago as 1963, the Turkish Cypriots began the process of establishing an administration of their own. They did not sit back and rely on institutions of the Turkish Republic, or apply their laws. There was ample evidence to suggest that the “TRNC” might well, after investigation, be found to display all the attributes of a State (although only recognised by Turkey) which exercises independent and effective control over northern Cyprus. It cannot be assumed, without proper inquiry, that the “TRNC” is a puppet regime or subordinate jurisdiction of Turkey.
29.  The fact that Turkey alone has recognised the “TRNC” does not affect the realities of the position. Recognition is, after all, a political act. Once the elaborate constitutional arrangements (with all the checks and balances designed to meet the concerns and anxieties of two distrustful communities) irretrievably broke down, difficult questions regarding recognition must have arisen. Governments were, of course, free to accord or withhold recognition as they wished, but the State that was recognised could not be said to be the bi-communal Republic established in 1960 under those arrangements.
30.  I respectfully agree with the observations of Judge Gölcüklü in his dissenting opinion annexed to the Loizidou (merits) judgment where he said:
“3.  I would also emphasise that not only does northern Cyprus not come under Turkey’s jurisdiction, but there is a (politically and socially) sovereign authority there which is independent and democratic. It is of little consequence whether that authority is legally recognised by the international community. When applying the Convention the actual factual circumstances are the decisive element. The Commission and the Court have stated more than once that the concept of ‘jurisdiction’ within the meaning of Article 1 of the Convention covers both de facto and de jure jurisdiction. In northern Cyprus there is no ‘vacuum’, whether de jure or de facto, but a politically organised society, whatever name and classification one chooses to give it, with its own legal system and its own State authority. Who today would deny the existence of Taiwan? That is why the Commission in its report in the Chrysostomos and Papachrysostomou cases examined the law in force in northern Cyprus as such, and not Turkish law in order to determine whether the applicants’ detention had been lawful (see paragraphs 148, 149 and 174 of the report).”
31.  I do not agree that the facts relied upon by the Court justified a finding that every violation, whatever its nature and whoever perpetrated it, is imputable, without more, to the respondent State. Everything must depend on the factual position as it has developed between 1963 and the present day, and the circumstances which prevailed at the time of each alleged violation. In my judgment, with great respect to those who take a different view, in the light of the events which took place (which have not been paralleled elsewhere) it was essential to examine the role of the troops at the material time as well as their conduct.
32.  I mention here that I am not impressed by the submission that unless Turkey is held to be accountable for the alleged violations in the Karpas, no other State would be accountable, with the result that the system of the Convention would be inoperative in the area. I do not think that considerations of this kind should be allowed to influence the Court.
33.  I was not satisfied that it had been established to the degree of certainty that is necessary that any of the violations relied upon in relation to Greek Cypriots living in the Karpas region of northern Cyprus are imputable to Turkey.
34.  On the subject of military courts, for the reasons I have attempted to give, I am unable to accept that Turkey can be held responsible for any shortcomings there might be (for the purposes of Article 6) in the Prohibited Military Areas Decree promulgated by the “TRNC”.
 

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.