COUNCIL OF EUROPE

In the case of Cyprus v. Turkey,

The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges:
 Mr L. WILDHABER, President,
Mrs E. PALM,
Mr J.-P. COSTA,
Mr L. FERRARI BRAVO,
Mr L. CAFLISCH,
Mr W. FUHRMANN,
Mr K. JUNGWIERT,
Mr M. FISCHBACH
Mr B. ZUPANCIC,
Mrs N. VAJIC,
Mr J. HEDIGAN,
Mrs M. TSATSA-NIKOLOVSKA,
Mr T. PANTÎRU,
Mr E. LEVITS,
Mr A. KOVLER,
Mr K. FUAD, ad hoc judge in respect of Turkey,
Mr S. MARCUS-HELMONS, ad hoc judge in respect of Cyprus,
and also of Mr M. DE SALVIA, Registrar,

Having deliberated in private on 20-22 September 2000 and on 21 March 2001,
Delivers the following judgment, which was adopted on the last?mentioned date:

PROCEDURE
1.  The case was referred to the Court, in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) , by the Government of the Republic of Cyprus (“the applicant Government”) on 30 August 1999 and by the European Commission of Human Rights (“the Commission”) on 11 September 1999 (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention).

2.  The case originated in an application (no. 25781/94) against the Republic of Turkey lodged with the Commission under former Article 24 of the Convention by the applicant Government on 22 November 1994.
 
3.  The applicant Government alleged with respect to the situation that has existed in Cyprus since the start of Turkey’s military operations in northern Cyprus in July 1974 that the Government of Turkey (“the respondent Government”) have continued to violate the Convention notwithstanding the adoption by the Commission of reports under former Article 31 of the Convention on 10 July 1976 and 4 October 1983 and the adoption by the Committee of Ministers of the Council of Europe of resolutions thereon. The applicant Government invoked in particular Articles 1 to 11 and 13 of the Convention as well as Articles 14, 17 and 18 read in conjunction with the aforementioned provisions. They further invoked Articles 1, 2 and 3 of Protocol No. 1.
These complaints were invoked, as appropriate, with reference to the following subject-matters: Greek-Cypriot missing persons and their relatives; the home and property of displaced persons; the right of displaced Greek Cypriots to hold free elections; the living conditions of Greek Cypriots in northern Cyprus; and the situation of Turkish Cypriots and the Gypsy community living in northern Cyprus.

4.  The application was declared admissible by the Commission on 28 June 1996. Having concluded that there was no basis on which a friendly settlement could be secured, the Commission drew up and adopted a report on 4 June 1999 in which it established the facts and expressed an opinion as to whether the facts as found gave rise to the breaches alleged by the applicant Government .

5.  Before the Court the applicant Government were represented by their Agent, Mr A. Markides, Attorney-General of the Republic of Cyprus. The respondent Government were represented by their Agent, Mr Z. Necatigil.

6.  On 20 September 1999, the panel of the Grand Chamber determined that the case should be decided by the Grand Chamber (Rule 100 § 1 of the Rules of Court).

7.  The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 (former version) of the Rules of Court in conjunction with Rules 28 and 29.

8.  Mr R. Türmen, the judge elected in respect of Turkey, withdrew from sitting in the Grand Chamber (Rule 28). The respondent Government accordingly appointed Mr S. Dayioglu to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). Following a challenge by the applicant Government to the participation of Mr Dayioglu, the Grand Chamber, on 8 December 1999, noted that Mr Dayioglu had communicated to the President his intention to withdraw from the case (Rule 28 §§ 3 and 4). The respondent Government subsequently appointed Mrs N. Ferdi to sit as an ad hoc judge in the case.
Also on 8 December 1999, the Grand Chamber considered objections raised by the respondent Government to the participation in the case of Mr L. Loucaides, the judge elected in respect of Cyprus. Having examined the objections, the Grand Chamber decided on the same date to request Mr Loucaides to withdraw from the case (Rule 28 §). The applicant Government subsequently appointed Mr L. Hamilton to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).
On 29 March 2000, following objections raised by the applicant Government to the participation of Mrs Ferdi in the case, the Grand Chamber decided that Mrs Ferdi was prevented from taking part in the consideration of the case (Rule 28 § 4). The respondent Government subsequently appointed Mr K. Fuad to sit as ad hoc judge in the case.
Following the death of Mr Hamilton on 29 November 2000, the Agent of the applicant Government notified the Registrar on 13 December 2000 that his Government had appointed Mr S. Marcus-Helmons to sit as ad hoc judge in his place.

9.  The procedure to be followed in the case was determined by the President in consultation with the Agents and other representatives of the parties at a meeting held on 24 October 1999 (Rule 58 § 1). On 24 November 1999 the Grand Chamber approved the President’s proposals concerning the substantive and organisational arrangements for the written and oral procedure.

10.  In pursuance of those arrangements, the applicant Government filed their memorial within the time-limit (31 March 2000) fixed by the President. By letter dated 24 April 2000, and following the expiry of the time-limit, the Agent of the respondent Government requested leave to submit his Government’s memorial before 24 July 2000. On 3 May 2000 the President, having consulted the Grand Chamber, agreed to extend the time-limit for the submission by the respondent Government of their memorial to 5 June 2000, it being pointed out that if the respondent Government failed to submit their memorial before the expiry of the new time-limit, they would be considered to have waived their right to submit a memorial.
Following the failure of the respondent Government to comply with the new time-limit, the President, by letter dated 16 June 2000, informed the Agents of both Governments through the Registrar that the written pleadings were now closed. A copy of the applicant Government’s memorial was sent to the Agent of the respondent Government for information purposes only. The President further informed the Agents in the same letter that, with a view to the hearing, a preparatory meeting with the Agents of both parties would be held on 7 September 2000.

11.  On 7 September 2000 the President met with the Agent and other representatives of the applicant Government in order to finalise arrangements for the hearing. The respondent Government, although invited, did not attend the meeting.

12.  The hearing took place in public in the Human Rights Building, Strasbourg, on 20 September 2000 (Rule 59 § 2). The respondent Government did not notify the Court of the names of their representatives in advance of the hearing and were not present at the hearing. In the absence of sufficient cause for the failure of the respondent Government to appear, the Grand Chamber decided to proceed with the hearing, being satisfied that such a course was consistent with the proper administration of justice (Rule 64).
The President informed the Chairman of the Committee of Ministers of this decision in a letter dated 21 September 2000.

There appeared before the Court:
(a)  for the applicant Government
Mr A. MARKIDES, Attorney-General
  of the Republic of Cyprus, Agent,
Mr I. BROWNLIE QC,
Mr D. PANNICK QC,
Ms C. PALLEY, Barrister-at-Law,
Mr M. SHAW, Barrister-at-Law,
Mrs S.M. JOANNIDES, Senior Counsel
  of the Republic of Cyprus,
Mr P. POLYVIOU, Barrister-at-Law,
Mr P. SAINI, Barrister-at-Law, Counsel,
Mr N. EMILIOU, Consultant,  Adviser;
(b)  for the respondent Government
The respondent Government did not appear.

The Court heard addresses by Mr Markides, Mr Brownlie, Mr Shaw, Mr Pannick and Mr Polyviou.\

THE FACTS
THE CIRCUMSTANCES OF THE CASE

A.  General context
13.  The complaints raised in this application arise out of the Turkish military operations in northern Cyprus in July and August 1974 and the continuing division of the territory of Cyprus. At the time of the Court’s consideration of the merits of the Loizidou v. Turkey case in 1996, the Turkish military presence at the material time was described in the following terms (Loizidou v. Turkey judgment of 18 December 1996 (merits), Reports of Judgments and Decisions 1996-VI, p. 2223, §§ 16-17):

“16.  Turkish armed forces of more than 30,000 personnel are stationed throughout the whole of the occupied area of northern Cyprus, which is constantly patrolled and has checkpoints on all main lines of communication. The army’s headquarters are in Kyrenia. The 28th Infantry Division is based in Asha (Assia) with its sector covering Famagusta to the Mia Milia suburb of Nicosia and with about 14,500 personnel. The 39th Infantry Division, with about 15,500 personnel, is based at Myrtou village, and its sector ranges from Yerolakkos village to Lefka. TOURDYK (Turkish Forces in Cyprus under the Treaty of Guarantee) is stationed at Orta Keuy village near Nicosia, with a sector running from Nicosia International Airport to the Pedhieos River. A Turkish naval command and outpost are based at Famagusta and Kyrenia respectively. Turkish airforce personnel are based at Lefkoniko, Krini and other airfields. The Turkish airforce is stationed on the Turkish mainland at Adana.
17.  The Turkish forces and all civilians entering military areas are subject to Turkish military courts, as stipulated so far as concerns ‘TRNC citizens’ by the Prohibited Military Areas Decree of 1979 (section 9) and Article 156 of the Constitution of the ‘TRNC’.”

15.  According to the respondent Government, the “TRNC” is a democratic and constitutional State which is politically independent of all other sovereign States including Turkey, and the administration in northern Cyprus has been set up by the Turkish-Cypriot people in the exercise of its right to self-determination and not by Turkey. Notwithstanding this view, it is only the Cypriot government which is recognised internationally as the government of the Republic of Cyprus in the context of diplomatic and treaty relations and the working of international organisations.

16.  United Nations peacekeeping forces (“UNFICYP”) maintain a buffer-zone. A number of political initiatives have been taken at the level of the United Nations aimed at settling the Cyprus problem on the basis of institutional arrangements acceptable to both sides. To this end, inter-communal talks have been sponsored by the Secretary-General of the United Nations acting under the direction of the Security Council. In this connection, the respondent Government maintain that the Turkish-Cypriot authorities in northern Cyprus have pursued the talks on the basis of what they consider to be already agreed principles of bi-zonality and bi-communality within the framework of a federal constitution. Support for this basis of negotiation is found in the UN Secretary-General’s Set of Ideas of 15 July 1992 and the UN Security Council resolutions of 26 August 1992 and 25 November 1992 confirming that a federal solution sought by both sides will be “bi-communal” and “bi-zonal”.
Furthermore, and of relevance to the instant application, in 1981 the United Nations Committee on Missing Persons (“CMP”) was set up to “look into cases of persons reported missing in the inter-communal fighting as well as in the events of July 1974 and afterwards” and “to draw up comprehensive lists of missing persons of both communities, specifying as appropriate whether they are still alive or dead, and in the latter case approximate times of death”. The CMP has not yet completed its investigations.

B.  The previous inter-State applications
17.  The events of July and August 1974 and their aftermath gave rise to three previous applications by the applicant Government against the respondent State under former Article 24 of the Convention. The first (no. 6780/74) and second (no. 6950/75) applications were joined by the Commission and led to the adoption on 10 July 1976 of a report under former Article 31 of the Convention (“the 1976 report”) in which the Commission expressed the opinion that the respondent State had violated Articles 2, 3, 5, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1. On 20 January 1979 the Committee of Ministers of the Council of Europe in turn adopted, with reference to an earlier decision of 21 October 1977, Resolution DH (79) 1 in which it expressed, inter alia, the conviction that “the enduring protection of human rights in Cyprus can only be brought about through the re-establishment of peace and confidence between the two communities; and that inter-communal talks constitute the appropriate framework for reaching a solution of the dispute”. In its resolution the Committee of Ministers strongly urged the parties to resume the talks under the auspices of the Secretary-General of the United Nations in order to agree upon solutions on all aspects of the dispute (see paragraph 16 above). The Committee of Ministers viewed this decision as completing its consideration of the case.
The third application (no. 8007/77) lodged by the applicant Government was the subject of a further report under former Article 31 adopted by the Commission on 4 October 1983 (“the 1983 report”). In that report the Commission expressed the opinion that the respondent State was in breach of its obligations under Articles 5 and 8 of the Convention and Article 1 of Protocol No. 1. On 2 April 1992 the Committee of Ministers adopted Resolution DH (92) 12 in respect of the Commission’s 1983 report. In its resolution the Committee of Ministers limited itself to a decision to make the 1983 report public and stated that its consideration of the case was thereby completed.

C.  The instant application
18.  The instant application is the first to have been referred to the Court. The applicant Government requested the Court in their memorial to “decide and declare that the respondent State is responsible for continuing violations and other violations of Articles 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 17 and 18 of the Convention and of Articles 1 and 2 of Protocol No. 1”.
These allegations were invoked with reference to four broad categories of complaints: alleged violations of the rights of Greek-Cypriot missing persons and their relatives; alleged violations of the home and property rights of displaced persons; alleged violations of the rights of enclaved Greek Cypriots in northern Cyprus; alleged violations of the rights of Turkish Cypriots and the Gypsy community in northern Cyprus.

D.  The Commission’s findings of fact in the instant application
19.  The Court considers it appropriate at this stage to summarise the Commission’s findings of fact in respect of the various violations of the Convention alleged by the applicant Government as well as the essential arguments advanced by both parties and the documentary and other evidence relied on by the Commission.
1.  Alleged violations of the rights of Greek-Cypriot missing persons and their relatives

20.  The applicant Government essentially claimed in their application that about 1,491 Greek Cypriots were still missing twenty years after the cessation of hostilities. These persons were last seen alive in Turkish custody and their fate has never been accounted for by the respondent State.

21.  The respondent Government maintained in reply that there was no proof that any of the missing persons were still alive or were being kept in custody. In their principal submission, the issues raised by the applicant Government should continue to be pursued within the framework of the United Nations Committee on Missing Persons (see paragraph 16 above) rather than under the Convention.

22.  The Commission proceeded on the understanding that its task was not to establish what actually happened to the Greek-Cypriot persons who went missing following the Turkish military operations conducted in northern Cyprus in July and August 1974. Rather, it saw its task as one of determining whether or not the alleged failure of the respondent State to clarify the facts surrounding the disappearances constituted a continuing violation of the Convention.

23.  To that end, the Commission had particular regard to its earlier findings in its 1976 and 1983 reports. It recalled that in its 1976 report it had stated that it was widely accepted that a considerable number of Cypriots were still missing as a result of armed conflict in Cyprus and that a number of persons declared to be missing were identified as Greek Cypriots taken prisoner by the Turkish army. This finding, in the Commission’s opinion at the time, created a presumption of Turkish responsibility for the fate of persons shown to be in Turkish custody. While noting that killings of Greek-Cypriot civilians had occurred on a large scale, the Commission also considered at the time of its 1976 report that it was unable to ascertain whether, and under what circumstances, Greek-Cypriot prisoners declared to be missing had been deprived of their life.

24.  In the present case, the Commission further recalled that in its 1983 report it found it established that there were sufficient indications in an indefinite number of cases that missing Greek Cypriots had been in Turkish custody in 1974 and that this finding once again created a presumption of Turkish responsibility for the fate of these persons.

25.  The Commission found that the evidence submitted to it in the instant case confirmed its earlier findings that certain of the missing persons were last seen in Turkish or Turkish-Cypriot custody. In this connection, the Commission had regard to the following: a statement of Mr Denktas, “President of the TRNC”, broadcast on 1 March 1996, in which he admitted that forty-two Greek-Cypriot prisoners were handed over to Turkish-Cypriot fighters who killed them and that in order to prevent further such killings prisoners were subsequently transferred to Turkey; the broadcast statement of Professor Yalçin Küçük, a former Turkish officer who had served in the Turkish army at the time and participated in the 1974 military operation in Cyprus, in which he suggested that the Turkish army had engaged in widespread killings of, inter alia, civilians in so-called cleaning-up operations; the Dillon Report submitted to the United States Congress in May 1998 indicating, inter alia, that Turkish and Turkish-Cypriot soldiers rounded up Greek-Cypriot civilians in the village of Asha on 18 August 1974 and took away males over the age of 15, most of whom were reportedly killed by Turkish-Cypriot fighters; the written statements of witnesses tending to corroborate the Commission’s earlier findings that many persons now missing were taken into custody by Turkish soldiers or Turkish-Cypriot paramilitaries.

26.  The Commission concluded that, notwithstanding evidence of the killing of Greek-Cypriot prisoners and civilians, there was no proof that any of the missing persons were killed in circumstances for which the respondent State could be held responsible; nor did the Commission find any evidence to the effect that any of the persons taken into custody were still being detained or kept in servitude by the respondent State. On the other hand, the Commission found it established that the facts surrounding the fate of the missing persons had not been clarified by the authorities and brought to the notice of the victims’ relatives.

27.  The Commission further concluded that its examination of the applicant Government’s complaints in the instant application was not precluded by the ongoing work of the CMP. It noted in this connection that the scope of the investigation being conducted by the CMP was limited to determining whether or not any of the missing persons on its list were dead or alive; nor was the CMP empowered to make findings either on the cause of death or on the issue of responsibility for any deaths so established. Furthermore, the territorial jurisdiction of the CMP was limited to the island of Cyprus, thus excluding investigations in Turkey where some of the disappearances were claimed to have occurred. The Commission also observed that persons who might be responsible for violations of the Convention were promised impunity and that it was doubtful whether the CMP’s investigation could extend to actions by the Turkish army or Turkish officials on Cypriot territory.

2.  Alleged violations of the rights of the displaced persons to respect for their home and property
28.  The Commission established the facts under this heading against the background of the applicant Government’s principal submission that over 211,000 displaced Greek Cypriots and their children continued to be prevented as a matter of policy from returning to their homes in northern Cyprus and from having access to their property there for any purpose. The applicant Government submitted that the presence of the Turkish army together with “TRNC”-imposed border restrictions ensured that the return of displaced persons was rendered physically impossible and, as a corollary, that their cross-border family visits were gravely impeded. What started as a gradual and continuing process of illegality over the years had now resulted in the transfer of the property left behind by the displaced persons to the “TRNC” authorities without payment of compensation and its re-assignment, together with “title deeds”, to State bodies, Turkish Cypriots and settlers from Turkey.

29.  The respondent Government maintained before the Commission that the question of the Varosha district of Famagusta along with the issues of freedom of movement, freedom of settlement and the right of property could only be resolved within the framework of the inter-communal talks (see paragraph 16 above) and on the basis of the principles agreed on by both sides for the conduct of the talks. Until an overall solution to the Cyprus question, acceptable to both sides, was found, and having regard to security considerations, there could be no question of a right of the displaced persons to return. The respondent Government further submitted that the regulation of property abandoned by displaced persons, as with restrictions on cross-border movement, fell within the exclusive jurisdiction of the “TRNC” authorities.

30.  The Commission found that it was common knowledge that with the exception of a few hundred Maronites living in the Kormakiti area and Greek Cypriots living in the Karpas peninsula, the whole Greek-Cypriot population which before 1974 resided in the northern part of Cyprus had left that area, the large majority of these people now living in southern Cyprus. The reality of this situation was not contested by the respondent Government.

31.  The Commission noted with reference to its earlier findings in its 1976 and 1983 reports that there was no essential change in the situation obtaining at the time of the introduction of the instant application. Accordingly, and this was not disputed either by the respondent Government, displaced Greek Cypriots had no possibility of returning to their homes in northern Cyprus and were physically prevented from crossing into the northern part on account of the fact that it was sealed off by the Turkish army. The arrangements introduced by the “TRNC” authorities in 1998 to allow Greek Cypriots and Maronites to cross into northern Cyprus for the purposes of family visits or, as regards Greek Cypriots, visits to the Apostolos Andreas Monastery, did not affect this conclusion.

32.  Nor did the respondent Government dispute the fact that Greek-Cypriot owners of property in northern Cyprus continued to be prevented from having access to, controlling, using and enjoying their property. As to the fate of that property, the Commission found it established that up until 1989 there was an administrative practice of the Turkish-Cypriot authorities to leave the official Land Register unaffected and to register separately the “abandoned” property and its allocation. The beneficiaries of allocations were issued with “possessory certificates” but not “deeds of title” to the properties concerned. However, as from June 1989 the practice changed and thereafter “title deeds” were issued and the relevant entries concerning the change of ownership were made in the Land Register. The Commission found it established that, at least since June 1989, the Turkish-Cypriot authorities no longer recognised any ownership rights of Greek Cypriots in respect of their properties in northern Cyprus. The Commission found confirmation for this finding in the provisions of “Article 159 § 1 (b) of the TRNC Constitution” of 7 May 1985 and “Law no. 52/1995” purporting to give effect to that provision.

33.  Although the respondent Government pointed out in their submissions to the Commission that the issue of the right of displaced Greek Cypriots to return to their homes was a matter to be determined within the framework of the inter-communal talks sponsored by the Secretary-General of the United Nations (see paragraph 16 above), the Commission found that there had been no significant progress in recent years in the discussion of issues such as freedom of settlement, payment of compensation to Greek Cypriots for the interference with their property rights, or restitution of Greek-Cypriot property in the Varosha district.

3.  Alleged violations arising out of the living conditions of Greek Cypriots in northern Cyprus
34.  The applicant Government adduced evidence in support of their complaint that the dwindling number of Greek Cypriots living in the Karpas peninsula of northern Cyprus were subjected to continuing oppressive treatment which amounted to a complete denial of their rights and a negation of their human dignity. In addition to the harassment and intimidation which they suffered at the hands of Turkish settlers, and which has gone unpunished, the enclaved Greek Cypriots laboured under restrictions which violated many of the substantive rights contained in the Convention. The continuous daily interferences with their rights could not be redressed at the local level on account of the absence of effective remedies before the “TRNC” courts. Similar but less extensive restrictions applied to the Maronite population living in the Kormakiti area of northern Cyprus.

35.  The respondent Government maintained before the Commission that effective judicial remedies were available to all Greek Cypriots living in northern Cyprus. However, they claimed that the applicant Government actively discouraged them from taking proceedings in the “TRNC”. The respondent Government further submitted that the evidence before the Commission did not provide any basis of fact for the allegations made.

36.  The Commission established the facts under this heading with reference to materials submitted by both Governments. These materials included, inter alia, written statements of persons affected by the restrictions alleged by the applicant Government; press reports dealing with the situation in northern Cyprus; case-law of the “TRNC” courts on the availability of remedies in the “TRNC”; “TRNC legislation” and decisions of the “TRNC Council of Ministers” on entry and exit arrangements at the Ledra Palace check-point. The Commission also had regard to United Nations documents concerning the living conditions of enclaved Greek Cypriots and especially to the UN Secretary-General’s progress reports of 10 December 1995 and 9 March 1998 on the humanitarian review carried out by UNFICYP in 1994-95 concerning the living conditions of Karpas Greek Cypriots, the so-called “Karpas Brief”.

37.  Furthermore, the Commission’s delegates heard the evidence of fourteen witnesses on the situation of Greek Cypriots and Maronites living in northern Cyprus. These witnesses comprised two persons who were closely associated with the preparation of the “Karpas Brief” as well as persons proposed by both Governments. The delegates also visited, on 23 and 24 February 1998, a number of localities in northern Cyprus, including Greek-Cypriot villages in the Karpas area, and heard statements from officials and other persons encountered during the visits.

38.  The Commission considered the above-mentioned “Karpas Brief” an accurate description of the situation of the enclaved Greek-Cypriot and Maronite populations at about the time of the introduction of the instant application and that the proposals for remedial action recommended by UNFICYP following the humanitarian review reflected the real needs of these groups in the face of administrative practices which actually existed at the material time. Although the Commission noted that there had been a considerable improvement in the overall situation of the enclaved populations, as evidenced by the UN Secretary-General’s progress reports on the “Karpas Brief” recommendations, there still remained a number of severe restrictions. These restrictions were not laid down in any “TRNC legislation” and were in the nature of administrative practices.

39.  The Commission further found that there existed a functioning court system in the “TRNC” which was in principle accessible to Greek Cypriots living in northern Cyprus. It appeared that at least in cases of trespass to property or personal injury there had been some successful actions brought by Greek-Cypriot litigants before the civil and criminal courts. However, in view of the scarcity of cases brought by Greek Cypriots, the Commission was led to conclude that the effectiveness of the judicial system for resident Greek Cypriots had not really been tested.

40.  In a further conclusion, the Commission found that there was no evidence of continuing wrongful allocation of properties of resident Greek Cypriots to other persons during the period under consideration. However, the Commission did find it established that there was a continuing practice of the “TRNC” authorities to allocate to Turkish-Cypriots or immigrants the property of Greek Cypriots who had died or left northern Cyprus.

41.  In the absence of legal proceedings before the “TRNC” courts, the Commission noted that it had not been tested whether or not Greek Cypriots or Maronites living in northern Cyprus were in fact considered as citizens enjoying the protection of the “TRNC Constitution”. It did however find it established that, in so far as the groups at issue complained of administrative practices such as restrictions on their freedom of movement or on family visits which were based on decisions of the “TRNC Council of Ministers”, any legal challenge to these restrictions would be futile given that such decisions were not open to review by the courts.

42.  Although the Commission found no evidence of cases of actual detention of members of the enclaved population, it was satisfied that there was clear evidence that restrictions on movement and family visits continued to be applied to Greek Cypriots and Maronites notwithstanding recent improvements. It further observed that an exit visa was still necessary for transfers to medical facilities in the south, although no fees were levied in urgent cases. There was no evidence to confirm the allegation that the processing of applications for movement was delayed in certain cases with the result that the health or life of patients was endangered; nor was there any indication of a deliberate practice of delaying the processing of such applications.

43.  The Commission found it established that there were restrictions on the freedom of movement of Greek-Cypriot and Maronite schoolchildren attending schools in the south. Until the entry into force of the decision of the “TRNC Council of Ministers” of 11 February 1998, they were not allowed to return permanently to the north after having attained the age of 16 in the case of males and 18 in the case of females. The age-limit of 16 years was still maintained for Greek-Cypriot male students. Up to the age-limit, certain restrictions applied to the visits of students to their parents in the north, which were gradually relaxed. However, even today such visits are subject to a visa requirement and a reduced “entry fee”.

44.  As to educational facilities, the Commission held that, although there was a system of primary-school education for the children of Greek Cypriots living in northern Cyprus, there were no secondary schools for them. The vast majority of schoolchildren went to the south for their secondary education and the restriction on the return of Greek-Cypriot and Maronite schoolchildren to the north after the completion of their studies had led to the separation of many families. Furthermore, school textbooks for use in the Greek-Cypriot primary school were subjected to a “vetting” procedure in the context of confidence-building measures suggested by UNFICYP. The procedure was cumbersome and a relatively high number of school-books were being objected to by the Turkish-Cypriot administration.

45.  Aside from school-books, the Commission found no evidence of any restrictions being applied during the period under consideration to the importation, circulation or possession of other types of books; nor was there evidence of restrictions on the circulation of newspapers published in southern Cyprus. However, there was no regular distribution system for the Greek-Cypriot press in the Karpas area and no direct post and telecommunications links between the north and south of the island. It was further noted that the enclaved population was able to receive Greek-Cypriot radio and television.

46.  The Commission did not find any conclusive evidence that letters destined for Greek Cypriots were opened by the “TRNC” police or that their telephones were tapped.

47.  As to alleged restrictions on religious worship, the Commission found that the main problem for Greek Cypriots in this connection stemmed from the fact that there was only one priest for the whole Karpas area and that the Turkish-Cypriot authorities were not favourable to the appointment of additional priests from the south. The Commission delegates were unable to confirm during their visit to the Karpas area whether access to the Apostolos Andreas Monastery was free at any time for Karpas Greek Cypriots. It appeared to be the case that on high religious holidays (which occur three times a year) visits to the monastery are also allowed to Greek Cypriots from the south.

48.  Concerning alleged restrictions on the freedom of association of the enclaved population, the Commission observed that the relevant “TRNC” law on associations only covered the creation of associations by Turkish Cypriots.

4.  Alleged violations in respect of the rights of Turkish Cypriots and the Turkish-Cypriot Gypsy community in northern Cyprus
49.  The applicant Government contended before the Commission that Turkish Cypriots living in northern Cyprus, especially political dissidents and the Gypsy community, were the victims of an administrative practice of violation of their Convention rights. They adduced evidence in support of their claim that these groups were victims of arbitrary arrest and detention, police misconduct, discrimination and ill-treatment and interferences in various forms with other Convention rights such as, inter alia, fair trial, private and family life, expression, association, property and education.

50.  The respondent Government essentially maintained that the above allegations were unsubstantiated on the evidence and pointed to the availability of effective remedies in the “TRNC” to aggrieved persons.

51.  The Commission’s investigation into the applicant Government’s allegations was based mainly on the oral evidence of thirteen witnesses who testified before the Commission’s delegates on the situation of Turkish Cypriots and the Gypsy community living in northern Cyprus. The witnesses were proposed by both parties. Their evidence was taken by the delegates in Strasbourg, Cyprus and London between November 1997 and April 1998.

52.  The Commission found that there existed rivalry and social conflict between the original Turkish Cypriots and immigrants from Turkey who continued to arrive in considerable numbers. Some of the original Turkish Cypriots and their political groups and media resented the “TRNC” policy of full integration for the settlers.

53.  Furthermore, while there was a significant incidence of emigration from the “TRNC” for economic reasons, it could not be excluded that there were also cases of Turkish Cypriots having fled the “TRNC” out of fear of political persecution. The Commission considered that there was no reason to doubt the correctness of witnesses’ assertions that in a few cases complaints of harassment or discrimination by private groups of or against political opponents were not followed up by the “TRNC” police. However, it concluded that it was not established beyond reasonable doubt that there was in fact a consistent administrative practice of the “TRNC” authorities, including the courts, of refusing protection to political opponents of the ruling parties. In so far as it was alleged by the applicant Government that the authorities themselves were involved in the harassment of political opponents, the Commission did not have sufficient details concerning the incidents complained of (for example, the dispersing of demonstrations, short-term arrests) which would allow it to form an opinion as to the justification or otherwise of the impugned acts. The Commission noted that, in any event, it did not appear that the remedy of habeas corpus had been invoked by persons claiming to be victims of arbitrary arrest or detention.

54.  Regarding the alleged discrimination against and arbitrary treatment of members of the Turkish-Cypriot Gypsy community, the Commission found that judicial remedies had apparently not been used in respect of particularly grave incidents such as the pulling down of shacks near Morphou and the refusal of airline companies to transport Gypsies to the United Kingdom without a visa.

55.  In a further conclusion, the Commission observed that there was no evidence before it of Turkish-Cypriot civilians having been subjected to the jurisdiction of military courts during the period under consideration. Furthermore, and with respect to the evidence before it, the Commission considered that it had not been established that, during the period under consideration, there was an official prohibition on the circulation of Greek-language newspapers in northern Cyprus or that the creation of bi-communal associations was prevented. In respect of the alleged refusal of the “TRNC” authorities to allow Turkish Cypriots to return to their properties in southern Cyprus, the Commission observed that no concrete instances were referred to it of any persons who had wished to do so during the period under consideration.

THE LAW

I.  PRELIMINARY ISSUES
56.  The Court observes that, in the proceedings before the Commission, the respondent Government raised several objections to the admissibility of the application. The Commission, at the admissibility stage of the proceedings, considered these objections under the following heads: (1) alleged lack of jurisdiction and responsibility of the respondent State in respect of the acts complained of; (2) alleged identity of the present application with the previous applications introduced by the applicant Government; (3) alleged abuse of process by the applicant Government; (4) alleged special agreement between the respective Governments to settle the dispute by means of other international procedures; (5) alleged failure of aggrieved persons concerned by the application to exhaust domestic remedies; and (6) alleged failure by the applicant Government to comply with the six-month rule.

57.  The Court further observes that the Commission, in its admissibility decision of 28 June 1996, rejected the respondent Government’s challenges under the third and fourth heads and decided to reserve to the merits stage the issues raised under the remaining heads.

58.  The Court notes that on account of the respondent Government’s failure to participate in the written and oral proceedings before it (see paragraphs 11 and 12 above), the objections which Turkey relied on before the Commission have not been re-submitted by her for consideration. Although it is open to the Court in these circumstances, in application of Rule 55 of the Rules of Court, to refuse to entertain the respondent Government’s pleas of inadmissibility, it nevertheless considers it appropriate to examine them in the form of preliminary issues. It observes in this connection that the applicant Government have devoted a substantial part of their written and oral pleadings to these issues, including their relevance to the merits of their various allegations.
Issues reserved by the Commission to the merits stage

1.  As to the applicant Government’s locus standi
59.  In the proceedings before the Commission, the respondent Government claimed that the applicant Government were not the lawful government of the Republic of Cyprus. Referring to it as the “Greek-Cypriot administration”, they maintained that the applicant Government lacked standing to bring the instant application.

60.  The applicant Government refuted this assertion with reference, inter alia, to the Court’s conclusions in its Loizidou v. Turkey judgment of 23 March 1995 (preliminary objections) (Series A no. 310) and to the reaction of the international community to the proclamation of the establishment of the “TRNC” in 1983, in particular the two resolutions adopted by the United Nations Security Council and the resolution of the Council of Europe’s Committee of Ministers condemning this move in the strongest possible terms (see paragraph 14 above).

61.  The Court, like the Commission, finds that the respondent Government’s claim cannot be sustained. In line with its Loizidou judgment (merits) (loc. cit.), it notes that it is evident from international practice and the condemnatory tone of the resolutions adopted by the United Nations Security Council and the Council of Europe’s Committee of Ministers that the international community does not recognise the “TRNC” as a State under international law. The Court reiterates the conclusion reached in its Loizidou judgment (merits) that the Republic of Cyprus has remained the sole legitimate government of Cyprus and on that account their locus standi as the government of a High Contracting Party cannot therefore be in doubt (loc. cit., p. 2231, § 44; see also the above-mentioned Loizidou judgment (preliminary objections), p. 18, § 40).

62.  The Court concludes that the applicant Government have locus standi to bring an application under former Article 24 (current Article 33) of the Convention against the respondent State.

2.  As to the applicant Government’s legal interest in bringing the application
63.  The respondent Government pleaded before the Commission that Resolutions DH (79) 1 and DH (92) 12 adopted by the Committee of Ministers on the previous inter-State applications (see paragraph 17 above) were res judicata of the complaints raised in the instant application which, they maintained, were essentially the same as those which were settled by the aforementioned decisions of the Committee of Ministers.

64.  In their reply, the applicant Government stated that neither of the above-mentioned resolutions precluded the Court’s examination of the complaints raised in the instant application. In the first place, the Committee of Ministers never took any formal decision on the findings contained in either of the Commission’s reports under former Article 31. Secondly, the application currently before the Court 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, moreover, premised on the notion of continuing violations of Convention rights.

65.  The Commission agreed with the applicant Government’s reasoning and rejected the respondent Government’s challenge under this head.

66.  The Court, like the Commission, accepts the force of the applicant Government’s reasoning. It would add that this is the first occasion on which it has been seised of the complaints invoked by the applicant Government in the context of an inter-State application, it being observed that, as regards the previous applications, it was not open to the parties or to the Commission to refer them to the Court under former Article 45 of the Convention read in conjunction with former Article 48. It notes in this connection that Turkey only accepted the compulsory jurisdiction of the Court by its declaration of 22 January 1990 (see the Mitap and Müftüoglu v. Turkey judgment of 25 March 1996, Reports 1996-II, p. 408, § 17).

67.  Without prejudice to the question of whether and in what circumstances the Court has jurisdiction to examine a case which was the subject of a decision taken by the Committee of Ministers pursuant to former Article 32 of the Convention, it must be noted that, in respect of the previous inter-State applications, neither Resolution DH (79) 1 nor Resolution DH (92) 12 resulted in a “decision” within the meaning of Article 32 § 1. This is clear from the terms of these texts. Indeed, it is to be further observed that the respondent Government accepted in their pleadings on their preliminary objections in the Loizidou case that the Committee of Ministers did not endorse the Commission’s findings in the previous inter?State cases (see the Loizidou judgment (preliminary objections) cited above, pp. 21-22, § 56).

68.  The Court accordingly concludes that the applicant Government have a legitimate legal interest in having the merits of the instant application examined by the Court.

3.  As to the respondent State’s responsibility under the Convention in respect of the alleged violations
69.  The respondent Government disputed Turkey’s liability under the Convention for the allegations set out in the application. In their submissions to the Commission, the respondent Government claimed that the acts and omissions complained of were imputable exclusively to the “Turkish Republic of Northern Cyprus” (the “TRNC”), an independent State established by the Turkish-Cypriot community in the exercise of its right to self-determination and possessing exclusive control and authority over the territory north of the United Nations buffer-zone. The respondent Government averred in this connection that the Court, in its Loizidou judgments (preliminary objections and merits), had erroneously concluded that the “TRNC” was a subordinate local administration whose acts and omissions engaged the responsibility of Turkey under Article 1 of the Convention.

70.  As in the proceedings before the Commission, the applicant Government contended before the Court that the “TRNC” was an illegal entity under international law since it owed its existence to the respondent State’s unlawful act of invasion of the northern part of Cyprus in 1974 and to its continuing unlawful occupation of that part of Cyprus ever since. The respondent State’s attempt to reinforce the division of Cyprus through the proclamation of the establishment of the “TRNC” in 1983 was vigorously condemned by the international community, as evidenced by the adoption by the United Nations Security Council of Resolutions 541 (1983) and 550 (1984) and by the Council of Europe’s Committee of Ministers of its resolution of 24 November 1983 (see paragraph 14 above).

71.  The applicant Government stressed that even if Turkey had no legal title in international law to northern Cyprus, Turkey did have legal responsibility for that area in Convention terms, given that she exercised overall military and economic control over the area. This overall and, in addition, exclusive control of the occupied area was confirmed by irrefutable evidence of Turkey’s power to dictate the course of events in the occupied area. In the applicant Government’s submission, a Contracting State to the Convention could not, by way of delegation of powers to a subordinate and unlawful administration, avoid its responsibility for breaches of the Convention, indeed of international law in general. To hold otherwise would, in the present context of northern Cyprus, give rise to a grave lacuna in the system of human-rights protection and, indeed, render the Convention system there inoperative.

72.  The applicant Government requested the Court to find, like the Commission, that the Loizidou judgments (preliminary objections and merits) defeated the respondent Government’s arguments since they confirmed that, as long as the Republic of Cyprus was unlawfully prevented from exercising its rightful jurisdiction in northern Cyprus, Turkey had “jurisdiction” within the meaning of Article 1 of the Convention and was, accordingly, accountable for violations of the Convention committed in that area.

73.  In a further submission, the applicant Government requested the Court to rule that the respondent State was not only accountable under the Convention for the acts and omissions of public authorities operating in the “TRNC”, but also those of private individuals. By way of anticipation of their more detailed submissions on the merits, the applicant Government claimed at this stage that Greek Cypriots living in northern Cyprus were racially harassed by Turkish settlers with the connivance and knowledge of the “TRNC” authorities for whose acts Turkey was responsible.

74.  The Commission rejected the respondent Government’s arguments. With particular reference to paragraph 56 (pp. 2235-36) of the Court’s Loizidou judgment (merits), it concluded that Turkey’s responsibility under the Convention had now to be considered to extend to all acts of the “TRNC” and that that responsibility covered the entire range of complaints set out in the instant application, irrespective of whether they related to acts or omissions of the Turkish or Turkish-Cypriot authorities.

75.  The Court recalls that in the Loizidou case the respondent State denied that it had jurisdiction in northern Cyprus and to that end invoked arguments similar to those raised before the Commission in the instant case. The Court rejected those arguments in its Loizidou judgment (merits) with reference to the imputability principles developed in its preceding judgment on the respondent State’s preliminary objections to the admissibility of the case.

76.  More precisely, the Court considered in its Loizidou judgment (merits) (pp. 2234-36) and in connection with that particular applicant’s plight:

“52.  As regards the question of imputability, the Court recalls in the first place that in its above-mentioned Loizidou judgment (preliminary objections) (pp. 23-24, § 62) it stressed that under its established case-law the concept of “jurisdiction” under Article 1 of the Convention is not restricted to the national territory of the Contracting States. Accordingly, the responsibility of Contracting States can be involved by acts and omissions of their authorities which produce effects outside their own territory. Of particular significance to the present case the Court held, in conformity with the relevant principles of international law governing State responsibility, that the responsibility of a Contracting Party could also arise when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration...
...
54.  It is important for the Court’s assessment of the imputability issue that the Turkish Government have acknowledged that the applicant’s loss of control of her property stems from the occupation of the northern part of Cyprus by Turkish troops and the establishment there of the ‘TRNC’... Furthermore, it has not been disputed that the applicant has on several occasions been prevented by Turkish troops from gaining access to her property...
However, throughout the proceedings the Turkish Government have denied State responsibility for the matters complained of, maintaining that its armed forces are acting exclusively in conjunction with and on behalf of the allegedly independent and autonomous ‘TRNC’ authorities.
...
56.  ...
It is not necessary to determine whether, as the applicant and the Government of Cyprus have suggested, Turkey actually exercises detailed control over the policies and actions of the authorities of the ‘TRNC’. It is obvious from the large number of troops engaged in active duties in northern Cyprus ... that her army exercises effective overall control over that part of the island. Such control, according to the relevant test and in the circumstances of the case, entails her responsibility for the policies and actions of the ‘TRNC’... Those affected by such policies or actions therefore come within the ‘jurisdiction’ of Turkey for the purposes of Article 1 of the Convention. Her obligation to secure to the applicant the rights and freedoms set out in the Convention therefore extends to the northern part of Cyprus.”

78.  In the above connection, the Court must have regard to the special character of the Convention as an instrument of European public order (ordre public) for the protection of individual human beings and its mission, as set out in Article 19 of the Convention, “to ensure the observance of the engagements undertaken by the High Contracting Parties” (see the Loizidou judgment (preliminary objections) cited above, p. 31, § 93). Having regard to the applicant Government’s continuing inability to exercise their Convention obligations in northern Cyprus, any other finding would result in a regrettable vacuum in the system of human-rights protection in the territory in question by removing from individuals there the benefit of the Convention’s fundamental safeguards and their right to call a High Contracting Party to account for violation of their rights in proceedings before the Court.

79.  The Court observes that the applicant Government raise the issue of imputability throughout their pleadings on the merits. Having regard to its conclusion on this issue, the Court does not consider it necessary to re?address the matter when examining the substance of the applicant Government’s complaints under the Convention.

80.  The Court concludes, accordingly, and subject to its subsequent considerations on the issue of private parties (see paragraph 81 below), that the matters complained of in the instant application fall within the “jurisdiction” of Turkey within the meaning of Article 1 of the Convention and therefore entail the respondent State’s responsibility under the Convention.

81.  As to the applicant Government’s further claim that this “jurisdiction” must also be taken to extend to the acts of private parties in northern Cyprus who violate the rights of Greek Cypriots or Turkish Cypriots living there, the Court considers it appropriate to revert to this matter when examining the merits of the specific complaints raised by the applicant Government in this context. It confines itself to noting at this stage that the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage that State’s responsibility under the Convention. Any different conclusion would be at variance with the obligation contained in Article 1 of the Convention.

4.  As to the requirement to exhaust domestic remedies
82.  The respondent Government maintained in the proceedings before the Commission that the “TRNC” had a fully developed system of independent courts which were accessible to every individual. Furthermore, Greek Cypriots and Maronites living in northern Cyprus were regarded as “TRNC” citizens and enjoyed the same rights and remedies as Turkish Cypriots living there. To illustrate their view of the effectiveness of local remedies, the respondent Government drew the Commission’s attention to cases in which Greek Cypriots living in the Karpas region of northern Cyprus successfully sued the Attorney-General of the “TRNC” under the Civil Wrongs Law in respect of property matters. The respondent Government claimed in this connection that the applicant Government actively discouraged Greek Cypriots and Maronites living in northern Cyprus from recognising “TRNC” institutions, with the result that they did not seek redress for their grievances through the “TRNC” legal system.

83.  The applicant Government, in the proceedings before the Court, maintained their opposition to the above arguments. They stressed that the description given by the respondent Government of the “TRNC”’s constitutional and legal order disregarded the context of total unlawfulness in which the “constitution and laws” were created. The applicant Government reiterated their view that the establishment of the “TRNC” in 1983 and its legal and constitutional apparatus stemmed directly from the aggression waged against the Republic of Cyprus by Turkey in 1974. This aggression continued to manifest itself in the continuing unlawful occupation of northern Cyprus. The applicant Government contended that, having regard to the continuing military occupation and to the fact that the “TRNC” was a subordinate local administration of the respondent State, it was unrealistic to expect that the local administrative or judicial authorities could issue effective decisions against persons exercising authority with the backing of the occupation army in order to remedy violations of human rights committed in furtherance of the general policies of the regime in the occupied area.

84.  The applicant Government stated before the Court that their primary starting-point was that the relevant applicable law in northern Cyprus remained that of the Republic of Cyprus and that it was inappropriate to consider other laws. However if, and only if, the Court were minded to consider such laws, this should not lead to approval of the Commission’s findings and reasoning in relation to Articles 6, 13 and former Article 26 of the Convention. They submitted that, contrary to the Commission’s view, it was not a necessary corollary of the “TRNC” being considered a subordinate local administration of the respondent State that the remedies available before the “TRNC” had to be regarded as “domestic remedies” of the respondent State for the purposes of former Article 26 of the Convention. The applicant Government pleaded in this connection that even the respondent State did not consider “TRNC” remedies to be remedies provided by Turkey as a Contracting Party. Moreover, given that the local administration was subordinated to and controlled by the respondent State not through the principle of legality and democratic rule but through military control and occupation, “TRNC” courts could not be considered to be “established by law” within the meaning of Article 6 of the Convention. The applicant Government claimed that it would be wrong in such circumstances to expect aggrieved individuals to have recourse to remedies for the purposes of the former Article 26 exhaustion requirement when these remedies did not fulfil the standards of either Article 6 or, it must follow, Article 13 of the Convention.

85.  In the applicant Government’s submission, the Commission, at paragraphs 123 and 124 of its report, misconstrued the scope of the Advisory Opinion of the International Court of Justice in the Namibia case (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), [1971] International Court of Justice Reports 16).

86.  The Commission, for its part, recalled that, with the exception of the respondent State, the “TRNC”’s claim to independent statehood was rejected and condemned by the international community. However, it further observed that the fact that the “TRNC” regime de facto existed and exercised de facto authority under the overall control of Turkey was not without consequences for the question of whether the remedies which the respondent State claimed were available within the “TRNC system” required to be exhausted by aggrieved individuals as a precondition to the admissibility of their complaints under the Convention. The Commission noted in this respect, and with reference to the above-mentioned Advisory Opinion of the International Court of Justice in the Namibia case (see paragraph 85 above), that even if the legitimacy of a State was not recognised by the international community, “international law recognises the legitimacy of certain legal arrangements and transactions in such a situation, ... the effects of which can be ignored only to the detriment of the inhabitants of the [t]erritory” (loc. cit. p. 56, § 125). On the understanding that the remedies relied on by the respondent State were intended to benefit the entire population of northern Cyprus, and to the extent that such remedies could be considered effective, account must in principle be taken of them for the purposes of former Article 26 of the Convention.

87.  In the Commission’s conclusion, whether or not a particular remedy could be regarded as effective, and had therefore to be used, had to be determined in relation to the specific complaint at issue. The Commission observed in this regard that, to the extent that the applicant Government alleged that the complaints set out in the application resulted from administrative practices imputable to the respondent State, proof of the existence of such practices depended on the absence of effective remedies in relation to the acts alleged to constitute the said practices.

88.  Having regard to these considerations, the Commission concluded 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 and that the question of their effectiveness had to be considered in the specific circumstances where it arose.

89.  The Court notes that the Commission avoided making general statements on the validity of the acts of the “TRNC” authorities from the standpoint of international law and confined its considerations to the Convention-specific issue of the application of the exhaustion requirement contained in former Article 26 of the Convention in the context of the “constitutional” and “legal” system established within the “TRNC”. The Court endorses this approach. It recalls in this connection that, although the Court in its Loizidou judgment (merits) refused to attribute legal validity to such provisions as “Article 159 of the TRNC Constitution”, it did so with respect to the Convention (p. 2231, § 44). This conclusion was all the more compelling since the Article in question purported to vest in the “TRNC” authorities, irreversibly and without payment of any compensation, the applicant’s rights to her land in northern Cyprus. Indeed, the Court in its judgment did not “consider it desirable, let alone necessary, in the present context to elaborate a general theory concerning the lawfulness of legislative and administrative acts of the ‘TRNC’” (ibid., p. 2231, § 45).

90.  In the Court’s opinion, and without in any way putting in doubt either the view adopted by the international community regarding the establishment of the “TRNC” (see paragraph 14 above) or the fact that the government of the Republic of Cyprus remains the sole legitimate government of Cyprus (see paragraph 61 above), it cannot be excluded that former Article 26 of the Convention requires that remedies made available to individuals generally in northern Cyprus to enable them to secure redress for violations of their Convention rights have to be tested. The Court, like the Commission, would characterise the developments which have occurred in northern Cyprus since 1974 in terms of the exercise of de facto authority by the “TRNC”. As it observed in its Loizidou judgment (merits) with reference to the Advisory Opinion of the International Court of Justice in the Namibia case, international law recognises the legitimacy of certain legal arrangements and transactions in situations such as the one obtaining in the “TRNC”, for instance as regards the registration of births, deaths, and marriages, “the effects of which can only be ignored to the detriment of the inhabitants of the [t]erritory” (loc. cit., p. 2231, § 45).

91.  The Court disagrees with the applicant Government’s criticism of the Commission’s reliance on this part of the Advisory Opinion. In its view, and judged solely from the standpoint of the Convention, the Advisory Opinion confirms that where it can be shown that remedies exist to the advantage of individuals and offer them reasonable prospects of success in preventing violations of the Convention, use should be made of such remedies. In reaching this conclusion, the Court considers that this requirement, applied in the context of the “TRNC”, is consistent with its earlier statement on the need to avoid in the territory of northern Cyprus the existence of a vacuum in the protection of the human rights guaranteed by the Convention (see paragraph 78 above).

92.  It appears evident to the Court, despite the reservations the Greek?Cypriot community in northern Cyprus may harbour regarding the “TRNC” courts, that the absence of such institutions would work to the detriment of the members of that community. Moreover, recognising the effectiveness of those bodies for the limited purpose of protecting the rights of the territory’s inhabitants does not, in the Court’s view and following the Advisory Opinion of the International Court of Justice, legitimise the “TRNC” in any way.

93.  The Court recalls that, in its Advisory Opinion on Namibia, the International Court of Justice stated the following (1971 ICJ Reports, p. 56, § 125):
“In general, the non-recognition of South Africa’s administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation. In particular, while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.”

94.  The Court observes that this passage was included in the Opinion as a result of various arguments made in the course of the proceedings preparatory to its adoption. Thus, the representative of the Netherlands pointed out to the International Court of Justice that the non-recognition of South Africa’s illegal rule in Namibia “does not exclude taking into account the fact of exercise of powers in so far as that taking into account is necessary in order to do justice to the legitimate interest of the individual [who] is, in fact, subjected to that power” (Pleadings, vol. II, p. 130). The representative of the United States said that “[i]t would, for example, be a violation of the rights of individuals if a foreign State refused to recognise the right of Namibians to marry in accordance with the laws in force ... or would consider their children to be illegitimate. A contract for the sale of goods also should not be declared invalid merely because it was entered into in accordance with ordinary commercial laws applied to Namibia by South Africa” (Pleadings, vol. II, p. 503). These statements, by logical necessity, must be taken to extend to decisions taken by courts and relating to such everyday relations. The above citations show that, despite having been invited to do so by the Secretary-General of the United Nations, the International Court resolutely rejected the approach refusing any effect to unlawful de facto regimes.

95.  The Court notes that this rejection was echoed and amplified in the separate opinions of Judges Dillard, de Castro and Onyeama. Judge Dillard (1971 ICJ Reports, pp. 166-67) pointed out that the maxim “ex injuria jus non oritur” was not an absolute one and added that “[w]ere it otherwise the general interest in the security of transactions would be too greatly invaded and the cause of minimising needless hardship and friction would be hindered rather that helped”. Judge de Castro (ibid., pp. 218-19) drew a distinction between acts of the de facto authorities in Namibia relating to acts or transactions “relating to public property, concessions, etc.” and “acts and rights of private persons” which “should be regarded as valid (validity of entries in the civil registers and in the Land Registry, validity of marriages, validity of judgments of the civil courts, etc.)”. Judge Onyeama said that, although there was an obligation for third States not to recognise the legality of South Africa’s presence in Namibia, that duty did not necessarily extend “to refusing to recognise the validity of South Africa’s acts on behalf of or concerning Namibia in view of the fact that the administration of South Africa over Namibia (illegal though it is) still constitutes the de facto government of the territory”.

96.  It is to be noted that the International Court’s Advisory Opinion, read in conjunction with the pleadings and the explanations given by some of that court’s members, shows clearly that, in situations similar to those arising in the present case, the obligation to disregard acts of de facto entities is far from absolute. Life goes on in the territory concerned for its inhabitants. That life must be made tolerable and be protected by the de facto authorities, including their courts; and, in the very interest of the inhabitants, the acts of these authorities related thereto cannot be simply ignored by third States or by international institutions, especially courts, including this one. To hold otherwise would amount to stripping the inhabitants of the territory of all their rights whenever they are discussed in an international context, which would amount to depriving them even of the minimum standard of rights to which they are entitled.

97.  The Court notes that the view expressed by the International Court of Justice in the context described in the preceding paragraph is by no means an isolated one. It is confirmed both by authoritative writers on the subject of de facto entities in international law and by existing practice, particularly judgments of domestic courts on the status of decisions taken by the authorities of de facto entities. This is true, in particular, for private-law relationships and acts of organs of de facto authorities relating to such relationships. Some State organs have gone further and factually recognised even acts related to public-law situations, for example by granting sovereign immunity to de facto entities or by refusing to challenge takings of property by the organs of such entities.

98.  For the Court, the conclusion to be drawn is that it cannot simply disregard the judicial organs set up by the “TRNC” in so far as the relationships at issue in the present case are concerned. It is in the very interest of the inhabitants of the “TRNC”, including Greek Cypriots, to be able to seek the protection of such organs; and if the “TRNC” authorities had not established them, this could rightly be considered to run counter to the Convention. Accordingly, the inhabitants of the territory may be required to exhaust these remedies, unless their inexistence or ineffectiveness can be proved – a point to be examined on a case-by-case basis.

99.  The Court, like the Commission, will thus examine in respect of each of the violations alleged by the applicant Government whether the persons concerned could have availed themselves of effective remedies to secure redress. It will have regard in particular to whether the existence of any remedies is sufficiently certain not only in theory but in practice and whether there are any special circumstances which absolve the persons concerned by the instant application from the obligation to exhaust the remedies which, as alleged by the respondent Government before the Commission, were at their disposal. The Court recalls in this latter respect that the exhaustion rule is inapplicable where an administrative practice, namely a repetition of acts incompatible with the Convention and official tolerance by the State authorities, has been shown to exist and is of such a nature as to make proceedings futile or ineffective (see, mutatis mutandis, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 66-67).

100.  In view of the above considerations, the Court does not consider it necessary at this stage to examine the applicant Government’s broader criticism of the court and administrative system in the “TRNC” under Articles 6 and 13 of the Convention.

101.  The Court does wish to add, however, that the applicant Government’s reliance on the illegality of the “TRNC” courts seems to contradict the assertion made by that same Government that Turkey is responsible for the violations alleged in northern Cyprus – an assertion which has been accepted by the Court (see paragraphs 75-81 above). It appears indeed difficult to admit that a State is made responsible for the acts occurring in a territory unlawfully occupied and administered by it and to deny that State the opportunity to try to avoid such responsibility by correcting the wrongs imputable to it in its courts. To allow that opportunity to the respondent State in the framework of the present application in no way amounts to an indirect legitimisation of a regime which is unlawful under international law. The same type of contradiction arises between the alleged unlawfulness of the institutions set up by the “TRNC” and the applicant Government’s argument, to be examined at a later stage (see, for example paragraphs 318-21 below), that there has been a breach of Article 13 of the Convention: it cannot be asserted, on the one hand, that there has been a violation of that Article because a State has not provided a remedy while asserting, on the other hand, that any such remedy, if provided, would be null and void.

102.  The Court concludes accordingly that, for the purposes of former Article 26 (current Article 35 § 1) of the Convention, remedies available in the “TRNC” may be regarded as “domestic remedies” of the respondent State and that the question of their effectiveness is to be considered in the specific circumstances where it arises.

5.  As to the requirement of the six-month rule
103.  The Court observes that although the Commission reserved this issue to the merits stage, neither Government submitted any arguments thereon; nor have the applicant Government reverted to the matter in their written or oral pleadings before the Court.

104.  The Court, in line with the Commission’s approach, confirms that in so far as the applicant Government have alleged continuing violations resulting from administrative practices, it will disregard situations which ended six months before the date on which the application was introduced, namely 22 November 1994. Therefore, and like the Commission, the Court considers that practices which are shown to have ended before 22 May 1994 fall outside the scope of its examination.

II.  THE ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF THE EVIDENCE

105.  The Court notes that the Commission had regard to written as well as, in respect of certain categories of complaints, oral evidence in order to clarify and establish the facts underlying the allegations advanced by the applicant Government. As appropriate, the Commission further relied on the findings contained in its 1976 and 1983 reports (see paragraph 17 above) as well as documentary materials obtained of its own motion and, as a principal source, materials submitted by the parties. As to the written evidence of the parties, it observes that the Commission admitted to the case file all written submissions made by both Governments at the admissibility and merits stages up until 14 September 1998. The Commission’s strict adherence to this deadline resulted in its decision of 5 March 1999 to reject the respondent Government’s request to have admitted to the file an aide-mémoire on “measures relating to the living conditions of Greek Cypriots and Maronites in the Turkish Republic of Northern Cyprus”. The Court notes that this was the only document excluded by the Commission, all other materials having been admitted in accordance with respect for the requirements of procedural equality between the parties.

106.  The Court observes that where it was impossible to guarantee full respect for the principle of equality of arms in the proceedings before the Commission, for example on account of the limited time available to a party to reply fully to the other’s submissions, the Commission took this factor into account in its assessment of the evidential value of the material at issue. Although the Court must scrutinise any objections raised by the applicant Government to the Commission’s findings of fact and its assessment of the evidence, it notes that, as regards documentary materials, both parties were given a full opportunity to comment on all such materials in their pleadings before the Court, including the above-mentioned aide-mémoire, which was admitted to the file by virtue of a procedural decision taken by the Court on 24 November 1999.

107.  As regards oral evidence, the Court notes that the Commission appointed three delegates to hear evidence on the Convention issues relating to the general living conditions of the so-called “enclaved” Greek Cypriots and the situation of Turkish Cypriots living in northern Cyprus, in particular political dissidents and members of the Turkish-Cypriot Gypsy minority. Witnesses were heard in Strasbourg on 27 and 28 November 1997, in Nicosia (mostly) on 22 and 23 February 1998, and in London on 22 April 1998. The investigation also involved visits to certain localities (the Ledra Palace crossing-point over the demarcation line, the court building in northern Nicosia and Greek-Cypriot villages in the Karpas area). Oral statements were taken by the delegates from a number of officials and other persons encountered during the visit to northern Cyprus including the Karpas peninsula. At the first hearing, ten witnesses proposed by the applicant Government gave evidence, three of whom remained unidentified. At the second hearing, the Commission delegates heard the evidence of twelve witnesses, seven of whom were proposed by the respondent Government and five by the applicant Government (including four unidentified witnesses). At the third hearing in London, the delegates heard five witnesses proposed by the applicant Government, four of whom remained unidentified.

108.  The Court observes that the Commission delegates took all necessary steps to ensure that the taking of evidence from unidentified witnesses complied with the fairness requirements of Article 6 of the Convention.

109.  It further observes that, in so far as the respondent Government were critical of the arrangements drawn up by the delegates to hear the evidence of the unidentified witnesses proposed by the applicant Government, those arrangements were consistent with the screening procedure requested by the respondent State itself to ensure the security of unnamed witnesses in an earlier and unrelated case (Sargin and Yagci v. Turkey, applications nos. 14116-14117/88). In the Court’s opinion, the handicaps alleged by the respondent Government in the proceedings before the Commission were sufficiently counterbalanced by the procedures followed by the Commission. It also observes that the Commission, in its assessment of the evidence given by unidentified witnesses, adopted a cautious approach by ascertaining its evidential value with reference to the particular nature of each of the witnesses’ testimony, and its findings were not based either solely or to a decisive extent on anonymous witness statements (see the Van Mechelen and Others v. the Netherlands judgment of 23 April 1997, Reports 1997-III, p. 712, §§ 54-55).

110.  The applicant Government, in the proceedings before the Court, have not contested the modalities used for hearing the evidence of unidentified witnesses. They have, on the other hand, disputed the limits placed by the delegates on the number of witnesses who could be heard by them. This is particularly true of the Commission’s inquiry into their allegations concerning the situation of Turkish Cypriots and members of the Gypsy community in northern Cyprus (see paragraph 338 below). Although the Court must revert to this matter when conducting its own assessment of whether the facts found by the Commission bear out the applicant Government’s allegations, it considers it appropriate at this juncture to examine the substance of their criticism. It notes in this regard that the applicant Government were in fact requested by the Commission to select a limited number of witnesses to testify to the claim that the Convention rights of Turkish Cypriots and members of the Gypsy community in northern Cyprus were being violated by the respondent State. The Court does not consider that the Commission’s approach can be criticised from the standpoint of procedural fairness. In the first place, the delegates heard the testimony of five witnesses proposed by the applicant Government and there is no reason to doubt that they were specifically selected in accordance with the applicant Government’s perception of the importance of their testimony. Secondly, the effective discharge of the Commission’s fact-finding role necessarily obliged it to regulate the procedure for the taking of oral evidence, having regard to constraints of time and to its own assessment of the relevance of additional witness testimony.

111.  For these reasons, the Court rejects the applicant Government’s criticism in this respect.

112.  The Court also observes that in its assessment of the evidence in relation to the various complaints declared admissible, the Commission applied the standard of proof “beyond reasonable doubt” as enunciated by the Court in its Ireland v. the United Kingdom judgment of 18 January 1978 (Series A no. 25), it being noted that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (ibid., pp. 64-65, § 161).

113.  The Court, for its part, endorses the application of this standard, all the more so since it was first articulated in the context of a previous inter?State case and has, since the date of the adoption of the judgment in that case, become part of the Court’s established case-law (for a recent example, see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).
Moreover, as regards the establishment of the existence of administrative practices, the Court does not rely on the concept that the burden of proof is borne by one or the other of the two Governments concerned. Rather, it must examine all the material before it, irrespective of its origin (see the above-mentioned Ireland v. the United Kingdom judgment, p. 64 § 160).

114.  The Court notes, however, that the applicant Government have disputed the appropriateness of applying the above-mentioned standard of proof with respect to their allegations that the violations of the Convention of which they complain result from administrative practices on the part of the respondent State. In their submission, the Commission erred in not having regard to the existence of “substantial evidence” of administrative practices and its reliance on the “beyond reasonable doubt” standard prevented it from reaching the correct conclusion on the facts as regards a number of complaints. For the applicant Government, the standard of proof applied by the Commission is at variance with the approach followed by the Court in its Ireland v. the United Kingdom judgment, an approach which, they maintain, had already been anticipated in the Commission’s decision in the “Greek case” (Yearbook 12).

115.  The Court recalls however that in its Ireland v. the United Kingdom judgment, it rejected the Irish Government’s submission that the “beyond reasonable doubt” standard of proof was an excessively rigid standard for establishing the existence of an administrative practice of violation of Article 3 of the Convention (loc. cit., pp. 64-65, § 161). The “beyond reasonable doubt” standard was applied in that case in order to determine whether the evidence bore out the allegation of a practice of violation. The Court will accordingly assess the facts as found by the Commission with reference to this standard. Furthermore, the Court will apply the definition of an administrative practice incompatible with the Convention set out in its Ireland v. the United Kingdom judgment, namely 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 (ibid., p. 64, § 159).

116.  The Court further recalls that, in the area of the exhaustion of domestic remedies, there is a distribution of the burden of proof. In the context of the instant case, it is incumbent on the respondent Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the aggrieved individuals’ complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant Government to establish that the remedy advanced by the respondent Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving the persons concerned from the requirement of exhausting that remedy. One such reason may be constituted by the national authorities remaining totally passive in the face of serious allegations of misconduct or infliction of harm by State agents, for example where they have failed to undertake investigations or offer assistance. In such circumstances it can be said that the burden of proof shifts once again, so that it becomes incumbent on the respondent Government to show what the authorities have done in response to the scale and seriousness of the matters complained of (see, mutatis mutandis, the above-mentioned Akdivar and Others judgment, p. 1211, § 68).

117.  Having regard to the above considerations, the Court recalls its settled case-law to the effect that under the Convention system prior to the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the establishment and verification of the facts was primarily a matter for the Commission (former Articles 28 § 1 and 31). While the Court is not bound by the Commission’s findings of fact and remains free to make its own assessment in the light of all the material before it, it is however only in exceptional circumstances that it will exercise its powers in this area (see, among many authorities, the above-mentioned Akdivar and Others judgment, p. 1214, § 78; and, more recently, Salman cited above, § 89).

118.  The Court has already noted that the applicant Government have impugned the findings of the Commission as regards certain of their allegations, considering them to be against the weight of the evidence adduced. The Court proposes to address the applicant Government’s challenges when considering the merits of their allegations.