COUNCIL OF EUROPE

VII.  ALLEGED VIOLATIONS IN RESPECT OF THE RIGHTS OF TURKISH CYPRIOTS, INCLUDING MEMBERS OF THE GYPSY COMMUNITY, LIVING IN NORTHERN CYPRUS

328.  The applicant Government pleaded that Turkish Cypriots resident in northern Cyprus who were opponents of the “TRNC” regime, as well as members of the Gypsy community living in the north, were victims of major violations of their Convention rights. These violations, they contended, occurred as a matter of administrative practice. The applicant Government pleaded in addition that there were no effective remedies to secure redress in respect of the violations.

329.  The applicant Government relied on Articles 3, 5, 6, 8, 10, 11, 13 and 14 of the Convention and Articles 1 and 2 of Protocol No. 1, distinguishing, as appropriate, between alleged violations of the rights of Turkish Cypriots and those of the Gypsy community.

A.  The scope of the complaints before the Court
1.  The applicant Government’s submissions
330.  In the applicant Government’s submission, the Commission had incorrectly excluded from the scope of its examination on the merits several major complaints on the ground that they had not been raised in specific form at the admissibility stage of the proceedings and were thus not in substance covered by the admissibility decision. The complaints in question related to, inter alia: pervasive discrimination against and the degrading treatment of the Gypsy community, in breach of Article 3; degrading treatment of Turkish Cypriots, including arrests and detention of political opponents and of those who sought asylum in the United Kingdom because of human-rights violations, in breach of Article 3; the conferment of extensive jurisdiction on military courts to try civilians, in breach of Article 6; and violations of the right to respect for private and family life and the home of indigenous Turkish Cypriots through a policy of mass settlement and colonisation by mainland Turks, in breach of Article 8.

331.  The applicant Government disputed the Commission’s approach to the interpretation of the admissibility decision and in particular its view that the above-mentioned complaints were only expanded on at the merits stage. They asserted that all of the above-mentioned issues had either explicitly or by necessary implication been raised as complaints at the admissibility stage. The applicant Government argued that the evidence which they had adduced at the merits stage did not raise new issues but was relevant to the issues or grounds of complaint already raised. They sought support for this view in their contention that the respondent Government had replied to these complaints in their observations of November 1997 and were given until 27 August 1998 by the Commission to forward further observations following Cyprus’s submissions on 1 June 1998. They added that the Commission had itself laid down the scope of the complaints to be considered in the mandate which it had assigned to the delegates on 15 September 1997. The applicant Government insisted that all of their complaints were within the scope of the mandate as defined by the Commission.

2.  The Court’s response
332.  The Court notes that the Commission declared admissible complaints introduced by the applicant Government under Articles 5, 6, 10, 11 and 13 of the Convention and Article 1 of Protocol No 1. These complaints were made with respect to Turkish Cypriots. The Commission also declared admissible complaints under Articles 3, 5 and 8 of the Convention in relation to the treatment of Turkish-Cypriot Gypsies who had sought asylum in the United Kingdom. The Court observes that in respect of all these complaints the applicant Government relied on specific sets of facts in support of their allegations. At the merits stage the applicant Government advanced further materials which, in their view, were intended to elaborate on the facts initially pleaded in support of the complaints declared admissible. However, in the Commission’s opinion the materials had the effect of introducing new complaints which had not been examined at the admissibility stage. For this reason, the Commission could not entertain what it considered to be “additional complaints”. The Court notes that the complaints now invoked by the applicant Government fall into this category.

333.  The Court finds no reason to depart from the Commission’s view of the scope of its admissibility decision. It notes in this respect that the Commission carefully examined the materials submitted by the applicant Government in the post-admissibility phase and was anxious not to exclude any further submissions of fact which could reasonably be considered to be inherently covered by its admissibility decision. It is for this reason that the Commission could properly relate the applicant Government’s post-admissibility pleadings on various aspects of the alleged treatment of political opponents to the complaint which it had declared admissible under Article 5 of the Convention relating to violation of the security of their person. In a similar vein, the Court also considers that the Commission was justified in rejecting complaints which it clearly felt were new complaints, for example as regards the effects of the respondent State’s policy with respect to settlers on the right of the indigenous Turkish Cypriots to respect for private life.

334.  The Court recalls that the Commission’s decision declaring an application admissible determines the scope of the case brought before the Court; it is only within the framework so traced that the Court, once a case is duly referred to it, may take cognisance of all questions of fact or of law arising in the course of the proceedings (see the above-mentioned Ireland v. the United Kingdom judgment, p. 63, § 157, and the Philis v. Greece judgment of 27 August 1991, Series A no. 209, p. 19, § 56). Accordingly it is the facts as declared admissible by the Commission which are decisive for its jurisdiction (see, for example, the Guerra and Others v. Italy judgment of 19 February 1998, Reports 1998-I, p. 223, § 44). Although the Court is empowered to give a characterisation in law to those facts which is different from that applied in the proceedings before the Commission, its jurisdiction cannot extend to considering the merits of new complaints which have not been pleaded at the admissibility stage of the proceedings with reference to supporting facts (see the Findlay v. the United Kingdom judgment of 25 February 1997, Reports 1997-I, pp. 277-78, § 63); nor is the Court persuaded by the applicant Government’s argument that the grounds set out in their original application were closely connected with the ones pleaded at the merits stage but rejected by the Commission.

335.  For these reasons, and having regard to the facts and grounds of complaint advanced by the applicant Government at the admissibility stage, the Court confirms the Commission’s view of the scope of its admissibility decision. On that account it will not examine any complaints adjudged by the Commission to fall outside the scope of that decision.

B.  The establishment of the facts
1.  The applicant Government’s submissions
336.  The applicant Government maintained that the Commission had applied the wrong legal test in determining whether there existed an administrative practice of violating the Convention. They referred in this connection to the Commission’s findings that it had not been proved “beyond reasonable doubt”, firstly, that there was a practice by the “TRNC” authorities and the courts of refusing legal protection to political opponents; secondly, that there was a practice of discriminating against the Gypsy community or denying them legal protection; and, thirdly, that there was a practice of condoning interferences by criminal conduct with the property of Turkish Cypriots or denying the latter legal protection.

337.  The applicant Government submitted in the above connection that it was sufficient under the Convention to establish proof of a practice with reference to the existence of “substantial evidence” of such, which, as regards these three allegations, there clearly was.

338.  As to the Commission’s evaluation of the evidence, the applicant Government claimed that the value of certain of the Commission’s findings of no violation was undermined on account of the limits placed by the Commission’s delegates on the number of witnesses who could be heard and the conclusions which the Commission drew from the credibility of those witnesses who did in fact testify.

2.  The Court’s response
339.  The Court reiterates at the outset its earlier conclusion that limits placed by the Commission’s delegates on the number of witnesses who could be heard in support of the Government’s case did not undermine the principle of procedural equality (see paragraph 110 above). It is the applicant Government’s contention that the delegates, by refusing to allow additional witness testimony, denied themselves the opportunity to be apprised fully of the weight of the evidence against the respondent State. However, in the Court’s view, the delegates’ decision could properly be justified with reference to their perception of relevance and sufficiency of evidence at the time of the hearing of witnesses. The Court sees no reason to doubt that the delegates would have admitted further witnesses had they considered that additional oral testimony would have contributed to the substantiation of the facts as alleged by the applicant Government. Moreover, it does not appear to the Court that the applicant Government pressed their wish to have further witnesses heard by the delegates. The main protest to the arrangements made by the delegates for hearing witnesses came from the respondent’s side (see paragraphs 109-10 above). This must be seen as a relevant consideration to be weighed in the balance.

340.  The Court is of course attentive to the fact that, unlike the investigation conducted into the situation of the Karpas Greek Cypriots, the Commission’s establishment of the facts in respect of the instant category of complaints could not draw on United Nations factual reviews. The Commission relied heavily on the evidence of the witnesses heard by the delegates. It does not appear to the Court that the Commission can be faulted for adopting a cautious approach to the evaluation of witness testimony, having regard to the nature of the allegations made by the applicant Government’s witnesses, the inevitable element of subjectivity which colours the evidence of individuals who are impugning a regime with which they profoundly disagree and the testimony of supporters of that regime. In the Court’s opinion, the Commission was correct in its decision to base its evaluation mostly on the common points which emerged from the various witnesses’ testimony as a whole.
It does not see any reason to depart from the facts as found by the Commission (see paragraphs 52-55 above).

341.  The Court will ascertain whether the facts as found disclose a violation of the rights invoked by the applicant Government. As to the standard of proof, it rejects the applicant Government’s submissions in respect thereof and will apply a standard of proof “beyond reasonable doubt”.

C.  The merits of the applicant Government’s complaints
1.  Complaints relating to Turkish-Cypriot political opponents
342.  The applicant Government alleged that Turkish Cypriots living in northern Cyprus who were political opponents of the “TRNC” regime were subject to arbitrary arrest and detention, in violation of their rights under Article 5 of the Convention. In addition, they were assaulted, threatened and harassed by third parties, in violation of Article 8 of the Convention. The applicant Government further alleged, with reference to Article 10 of the Convention, that the authorities failed to protect the right to freedom of expression by tolerating third-party constraints on the exercise of this right. These constraints took the form of, for example, denial of employment to political opponents or threats or assaults by private parties against their person. The applicant Government further contended that as a result of the “TRNC”’s general policy in the area of freedom of movement, the right of political opponents to freedom of association was violated on account of the interferences with their right to gather with Greek Cypriots and others in Cyprus. Finally, the applicant Government asserted that, in view of the aforementioned background, it had to be concluded that political opponents of the “TRNC” regime were victims of ill-treatment or degrading treatment in breach of Article 3 of the Convention.

343.  The applicant Government averred that there was an administrative practice of violation of the above Convention rights and that this was confirmed by the substantial evidence adduced by the witnesses who were heard by the delegates. They maintained that the oral testimony commonly and consistently established administrative practices of the “TRNC” authorities of refusing to protect the rights of political opponents of the ruling parties, irrespective of whether such interferences were caused by third parties or by the authorities themselves.

344.  The applicant Government further stated that the Commission had erred in its conclusion that habeas corpus proceedings ought to have been used by victims of unlawful arrest and detention. That remedy, they submitted, could not be considered effective in cases of brief arrests and detentions followed by release, all the more so since detainees had no access to a lawyer. Nor could the potential to seek a remedy ipso facto prevent the finding of an administrative practice of violation of Convention rights. In the applicant Government’s submission the Commission’s focus should have been on the tolerance by the authorities of repeated abuse of the rights of political opponents under Articles 5, 8 and 10 and 11 of the Convention. For the applicant Government, the practice which they alleged was based on that state of affairs, not on the non-availability of judicial remedies.

345.  The Commission concluded that there had been no violation of the rights invoked by the applicant Government by reason of failure to protect these rights. The Commission observed that it could not be excluded that in individual cases there had been interferences by the authorities with the rights of Turkish Cypriots by reason of their political opposition to the ruling parties in northern Cyprus. However, it also noted that the individuals concerned did not attempt to seek redress for their grievances, for example by making use of the remedy of habeas corpus to challenge the lawfulness of their arrest or detention. For the Commission, it had not been shown beyond reasonable doubt that all of the available remedies would have been ineffective.

346.  The Court accepts the Commission’s conclusion. Its own assessment of the evidence leads it to believe that there may have been individual cases of interferences with the rights of political opponents. However, it cannot conclude on the strength of that evidence that there existed during the period under consideration an administrative practice of suppressing all dissent directed at the “TRNC” ruling parties or an official policy of acquiescing in interferences by pro-“TRNC” supporters with the rights invoked by the applicant Government. The Court must have regard to the fact that the complaints alleged by the applicant Government are shaped in a vulnerable political context bolstered by a strong Turkish military presence and characterised by social rivalry between Turkish settlers and the indigenous population. Such a context has lead to tension and, regrettably, to acts on the part of the agents of the “TRNC” which violate Convention rights in individual cases. However, the Court considers that neither the evidence adduced by the applicant Government before the Commission nor their criticism of the Commission’s evaluation of that evidence can be said to controvert the finding that it has not been shown beyond reasonable doubt that the alleged practice existed during the period under consideration.

347.  The Court further notes that the Commission observed that aggrieved individuals did not test the effectiveness of remedies available in the “TRNC” legal system in order to secure redress for their complaints. The Court for its part considers that the respondent Government, in their submissions to the Commission, made out a case for the availability of remedies, including the remedy of habeas corpus. It is not persuaded on the evidence before it that it has been shown that these remedies were inadequate and ineffective in respect of the matters complained of or that there existed special circumstances absolving the individuals in question from the requirement to avail themselves of these remedies. In particular, and as previously noted, the evidence does not show to the Court’s satisfaction that the “TRNC” authorities have, as a matter of administrative practice, remained totally passive in the face of serious allegations of misconduct or infliction of harm either by State agents or private parties acting with impunity (see, mutatis mutandis, the above-mentioned Akdivar and Others judgment, p. 1211, § 68; and paragraph 115 above, in fine).

348.  Having regard to the above considerations, the Court concludes that it has not been established that, during the period under consideration, there has been an administrative practice of violation of the rights of Turkish Cypriots who are opponents of the regime in northern Cyprus under Articles 3, 5, 8, 10 and 11 of the Convention, including by reason of an alleged practice of failing to protect their rights under these provisions.

2.  Complaints relating to the Turkish-Cypriot Gypsy community
349.  The applicant Government stated that the Gypsy community living in northern Cyprus was subjected, as a matter of practice, to discriminatory and degrading treatment so extensive that many Gypsies were compelled to seek political asylum in the United Kingdom. The applicant Government relied on Articles 3, 5, 8 and 14 of the Convention.

350.  The applicant Government submitted that the Commission had erred in finding that members of the Gypsy community who had experienced hardship had not exhausted domestic remedies. They contended that the evidence heard by the delegates confirmed that Gypsies could not afford litigation and that legal aid was not available to them for civil proceedings. In any event, the allegation at issue concerned a continuing administrative practice of discriminatory and degrading treatment of the Gypsy community and substantial evidence of such had been adduced. The Commission had wrongly focused on the availability of remedies with reference to the “beyond reasonable doubt” test rather than on the key issue of whether there was substantial evidence of an administrative practice of discriminatory and degrading treatment against the Gypsy community.

351.  The Commission observed that individual members of the Gypsy community had experienced hardship during the period under consideration. It referred in this connection to the demolition of the shacks of a Gypsy community near Morphou upon the order of the local authority, the refusal of airline companies to transport Gypsies without a visa and humiliation of Gypsy children in school. However, in the Commission’s conclusion the aggrieved persons had not exhausted available domestic remedies and it had not been established beyond reasonable doubt that there was a deliberate practice to discriminate against Gypsies or withhold protection against social discrimination. The Commission accordingly found that there had been no violation of Articles 3, 5, 8 and 14 of the Convention.

352.  The Court observes that members of the Turkish-Cypriot Gypsy community have suffered hardship at the hands of the “TRNC” authorities. It refers in this respect to the instances identified by the Commission (see paragraph 54 above). However, the Court does not consider that these individual cases bear out the claim that there existed during the period under consideration an administrative practice of violating the rights invoked by the applicant Government. It further observes that it does not appear that any of the members of the Turkish?Cypriot Gypsy community who claim to have suffered at the hands of the “TRNC” authorities sought to invoke remedies before the local courts, for example a claim for damages in respect of the demolition of the Gypsy shacks near Morphou. The Court does not accept the applicant Government’s assertion that the unavailability of legal aid in the “TRNC” for the bringing of civil actions exonerated aggrieved individuals from the requirement to use domestic remedies. It notes that there is no Convention obligation as such on a Contracting State to operate a civil legal aid system for the benefit of indigent litigants. What is important for the Court is the fact that it does not appear that any attempt has been made to take any legal proceedings whatsoever in respect of the matters alleged by the applicant Government.

353.  The Court concludes that it has not been established that, during the period under consideration, there has been a violation as a matter of administrative practice of the rights of members of the Turkish-Cypriot Gypsy community under Articles 3, 5, 8 and 14 of the Convention, including by reason of an alleged practice of failing to protect their rights under these Articles.

3.  Alleged violation of Article 6 of the Convention
354.  The applicant Government contended that the “TRNC” authorities, as a matter of law and practice, violated Article 6 of the Convention in that civil rights and obligations and criminal charges against persons could not be determined by an independent and impartial tribunal established by law within the meaning of that provision. The applicant Government reiterated in this connection their view as to the illegality of the context in which “TRNC” courts operated (see paragraphs 83-85 above).

355.  The applicant Government further submitted that the “TRNC” authorities operated a system of military courts which had jurisdiction to try cases against civilians in respect of matters categorised as military offences. In their view it followed from the Court’s Incal v. Turkey judgment of 9 June 1998 (Reports 1998-IV) that a civilian tried before a military court was denied a fair hearing before an independent and impartial tribunal. The jurisdiction of the military courts in this respect was laid down in “Article 156 of the TRNC Constitution”, with the result that their composition could not be challenged. The applicant Government maintained that the Commission should have found a violation of Article 6 on account of the existence of a legislative practice of violation rather than concentrating on the issue as to whether there was evidence of any particular proceedings before military courts involving civilians. They further stressed that, contrary to the Commission’s conclusion on this point, the evidence adduced before the Commission provided concrete examples of civilians having been tried and convicted before military courts. This evidence was regrettably overlooked in the Commission’s assessment.

356.  The Commission did not find it established on the facts that military courts tried any civilians during the period under consideration. On that account it concluded that there had been no violation of Article 6 of the Convention.

357.  The Court considers that it does not have to be satisfied on the evidence that there was an administrative practice of trying civilians before military courts in the “TRNC”. It observes that the applicant Government complain about the existence of a legislative practice of violating Article 6, having regard to the clear terms of “Article 156 of the TRNC Constitution” and the “Prohibited Military Areas Decree” (see paragraph 355 above). It recalls in this connection that in its Ireland v. the United Kingdom judgment, the Court considered that, unlike individual applicants, a Contracting State was entitled to challenge under the Convention a law in abstracto having regard to the fact that former Article 24 (current Article 33) of the Convention enabled any Contracting State to refer to the Commission any alleged breach of the provisions of the Convention and the Protocols thereto by another Contracting State (see the above-mentioned Ireland v. the United Kingdom judgment, p. 91, § 240). In the same judgment the Court found that a “breach” within the meaning of former Article 24 (current Article 33) resulted from the mere existence of a law which introduced, directed or authorised measures incompatible with the rights and freedoms safeguarded. The Court further stated that a breach of this kind might only be found if the law challenged pursuant to former Article 24 (current Article 33) was couched in terms sufficiently clear and precise to make the breach immediately apparent; otherwise, the decision should be arrived at by reference to the manner in which the respondent State interpreted and applied in concreto the impugned text or texts (ibid.).

358.  For the Court, examination in abstracto of the impugned “constitutional provision” and the “Prohibited Military Areas Decree” leads it to conclude that these texts clearly introduced and authorised the trial of civilians by military courts. It considers that there is no reason to doubt that these courts suffer from the same defects of independence and impartiality which were highlighted in its Incal v. Turkey judgment in respect of the system of National Security Courts established in Turkey by the respondent State (judgment cited above, pp. 1572-73, §§ 70-72), in particular the close structural links between the executive power and the military officers serving on the “TRNC” military courts. In the Court’s view, civilians in the “TRNC” accused of acts characterised as military offences before such courts could legitimately fear that they lacked independence and impartiality.

359.  For the above reasons the Court finds that there has been a violation of Article 6 of the Convention on account of the legislative practice of authorising the trial of civilians by military courts.

4.  Alleged violation of Article 10 of the Convention
360.  The applicant Government complained in the proceedings before the Commission that the right of Turkish Cypriots living in northern Cyprus to receive information was violated on account of a prohibition on the circulation of Greek-language newspapers. The applicant Government did not revert to this complaint in their memorial or at the public hearing.

361.  The Commission found, with reference to a similar complaint raised in the context of the living conditions of the Karpas Greek Cypriots, that the alleged restrictions on the circulation of Greek-language newspapers in northern Cyprus had not been substantiated.

362.  The Court agrees with the Commission’s conclusion and notes that it is consistent with the finding reached on the evidence in connection with the alleged interference with Article 10 invoked with respect to the enclaved Greek-Cypriot population (see paragraphs 253-54 above).

363.  The Court holds, accordingly, that no violation of Article 10 of the Convention has been established by virtue of alleged restrictions on the right of Turkish Cypriots living in northern Cyprus to receive information from the Greek-language press.

5.  Alleged violation of Article 11 of the Convention
364.  The applicant Government stated that, as a result of the “TRNC”’s general policy in the area of freedom of movement, there was an administrative practice of interference, dating from 1974, with the right of Turkish Cypriots living in the north to meet or foregather with Greek Cypriots and others in Cyprus, particularly in the United Nations buffer-zone and in the government-controlled area.

365.  The applicant Government highlighted several instances of arbitrary restrictions being imposed on persons wishing to attend bi-communal meetings, including sports and music events. They drew attention to their claim that the respondent Government had themselves in their observations on the admissibility and merits of this complaint submitted evidence to the Commission of the administrative practice of imposing from 1994 through to 1996 continuing restrictions on the right of Turkish Cypriots to travel to the south. This period, they recalled, was the period under consideration.

366.  The applicant Government acknowledged that the original complaint formulated to the Commission was framed in terms of an administrative practice of interference with the right of Turkish Cypriots living in the north to freedom of association. They requested the Court to examine also the complaint in the terms described above. As to the restrictions on the right to freedom of association, they contended that the evidence heard by the delegates clearly established a violation of this right. They further observed in support of this allegation that “Articles 12 and 71 of the TRNC Constitution” precluded the formation of associations to promote the interests of minorities. In their view, the existence of such a prohibition should in itself be considered a violation of Article 11 of the Convention.

367.  The Commission observed that nothing was brought to its attention to the effect that during the period under consideration there had been attempts by Turkish Cypriots living in northern Cyprus to establish associations with Greek Cypriots in the northern or southern parts of Cyprus which were prevented by the authorities. On that account the Commission found the complaint to be unsubstantiated.

368.  As to impediments to participation by Turkish Cypriots in bi-communal events, the Commission noted that, according to relevant United Nations documents, certain restrictions had been placed in the way of inter-communal meetings as from the second half of 1996. In the Commission’s opinion, any complaint to that effect related to distinct facts which occurred after the date of the admissibility decision. For that reason a complaint could not be entertained.

369.  The Court recalls that it has accepted the facts as established by the Commission (see paragraphs 339-40 above). It does not consider that, on the basis of the evidence before it, there was, during the period under consideration, an administrative practice of impeding all bi-communal contacts between Turkish Cypriots living in the north and Greek Cypriots in the south. The Court notes that the “TRNC” authorities took a much more rigorous approach to such contacts after the second half of 1996 and indeed prohibited them. However, and as noted by the Commission, alleged violations of Convention rights occurring during that period are outside the scope of the admissibility decision (see paragraph 368 above).

370.  As to the alleged interference with the right of Turkish Cypriots living in the north to freedom of association, the Court observes that the Commission found on the evidence that the “TRNC” authorities had not made any attempt to intervene to prevent the creation of bi-communal organisations in the north of Cyprus. In the absence of any concrete evidence to the contrary, and having regard to the requisite standard of proof for establishing the existence of an administrative practice of violating a Convention right, the Court concludes that there has been no violation of Article 11 from this standpoint either.

371.  The Court finds therefore that it has not been established that there has been a violation, as a matter of administrative practice, of the right to freedom of association or assembly under Article 11 of the Convention in respect of Turkish Cypriots living in northern Cyprus.

6.  Alleged violation of Article 1 of Protocol No. 1
372.  The applicant Government maintained in the proceedings before the Commission that there was a continuing violation of Article 1 of Protocol No. 1, firstly, on account of the failure of the “TRNC” authorities to allow Turkish Cypriots living in northern Cyprus to return to their property in the south and, secondly, as a result of the tolerance shown by the same authorities to acts of criminal damage to the property of Turkish Cypriots committed by private parties.

373.  The applicant Government stated before the Court that, regarding the second complaint, the Commission wrongly concluded that it had not been established that there existed an administrative practice by the “TRNC” authorities of systematically condoning third-party interferences with the property of Turkish Cypriots. The applicant Government did not revert to the first complaint either in their memorial or at the hearing.

374.  The Commission found that no cases were brought to its attention where during the period under consideration Turkish Cypriots living in northern Cyprus made attempts to access their property in the south and were prevented from doing so. The complaint was therefore rejected for want of substantiation. As to the alleged unlawful interference by private persons with the property of Turkish Cypriots living in northern Cyprus, the Commission considered, firstly, that sufficient remedies existed to secure redress against such interferences and, secondly, that it was not established that there existed an administrative practice of condoning the interferences.

375.  The Court accepts the Commission’s conclusion. It observes in the first place that the applicant Government have not improved the case they sought to make out before the Commission concerning the alleged obstacles placed by the “TRNC” authorities in the way of Turkish Cypriots who wished to return to their homes in the south. No further evidence has been adduced before the Court of Turkish Cypriots living in the north who, during the period under consideration, have been prevented from having access to their property in the south on account of the functioning of “TRNC” restrictions on the freedom of movement.

376.  Secondly, and as to the alleged attacks by private parties on the property of Turkish Cypriots, the Court considers that the evidence relied on by the applicant Government does not bear out their claim that the “TRNC” authorities tolerate, encourage or in any way acquiesce in this form of criminality. The Court accepts on the evidence that it cannot be excluded that such incidents have occurred. However, that evidence does not substantiate the existence of an administrative practice of violation of Article 1 of Protocol No. 1.

377.  In view of the above considerations, the Court concludes that it has not been established that there has been a violation of Article 1 of Protocol No. 1 by reason of the alleged administrative practice of violating that Article, including by reason of failure to secure enjoyment of their possessions in southern Cyprus to Turkish Cypriots living in northern Cyprus.

7.  Alleged violation of Article 13 of the Convention
378.  The applicant Government challenged the Commission’s finding that there had been no violation of Article 13 of the Convention by reason of failure to secure effective remedies to Turkish Cypriots living in northern Cyprus. The applicant Government reiterated their view (see paragraphs 83-85 above) that the legal remedies which were claimed to be available did not satisfy the basic requirements of Article 6 and, as a consequence, could not be considered to be “effective” within the meaning of Article 13.

379.  Furthermore, the applicant Government reasserted their view (see paragraphs 336-37 above) that the Commission had erroneously relied on the “beyond reasonable doubt” standard in ascertaining whether there was an administrative practice of withholding legal remedies from certain groups of persons. Had it applied the correct standard, namely that of “substantial evidence”, it would have been compelled to reach a different conclusion.

380.  For the above reasons the applicant Government requested the Court to depart from the Commission’s finding and to rule that the respondent State, as a matter of law and practice, violated Article 13 by reason of its failure to provide an effective remedy before a national authority to the Gypsy community and political opponents of Turkey’s policy in Cyprus.

381.  The Commission considered that, generally speaking, the remedies provided by the “TRNC” legal system appeared sufficient to provide redress against any alleged violation of Convention rights in respect of the groups at issue and that the applicant Government had not substantiated their allegation concerning the existence of a practice of violating Article 13. It thus concluded that there had been no violation of Article 13 during the period under consideration.

382.  The Court recalls that, as regards their allegations concerning political opponents (see paragraphs 342-44 above) and the Gypsy community (see paragraphs 349-50 above), it considered that the applicant Government had not succeeded in refuting the respondent Government’s submissions in the proceedings before the Commission that remedies were available to aggrieved individuals within the “TRNC” legal system. The Court was not persuaded that any attempt to invoke a remedy was doomed to failure. On that account the Court could not accept the applicant Government’s allegation that there was an administrative practice of denying remedies to individuals, in breach of Article 13 of the Convention. The evidence before the Court in this connection cannot be said to prove beyond reasonable doubt the existence of any such practice.

383.  The Court concludes accordingly that no violation of Article 13 of the Convention has been established by reason of a failure as a matter of administrative practice to secure effective remedies to Turkish Cypriots living in northern Cyprus.

VIII.  ALLEGED VIOLATIONS OF ARTICLES 1, 17, 18 AND FORMER ARTICLE 32 § 4 OF THE CONVENTION

384.  The applicant Government requested the Court to find violations of Articles 1, 17, 18 and former Article 32 § 4 of the Convention. Article 1 provides:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”
Former Article 32 § 4 of the Convention provides:
“The High Contracting Parties undertake to regard as binding on them any decision which the Committee of Ministers may take in application of the preceding paragraphs.”

385.  The applicant Government contended that in view of the comprehensive and massive violations of the Convention committed by the respondent State, it would be appropriate in this case for the Court to find a violation of Article 1.

386.  The applicant Government further submitted that the facts disclosed that the respondent State in reality controlled Greek-Cypriot property in the north in pursuance of a policy of ethnic cleansing. The respondent State’s resettlement programme was also a clear manifestation of this policy. However, the respondent State sought to conceal its real aim with reference to the limitations on rights permitted under Article 8 § 2 or Article 1 of Protocol No. 1. The applicant Government submitted that the respondent State must be considered in the circumstances to have violated Articles 17 and 18 of the Convention.

387.  The applicant Government finally submitted that the respondent State had failed to put an end to the violations of the Convention established in the Commission’s 1976 report as requested in the Committee of Ministers’ decision of 21 October 1977 (see paragraph 17 above). The applicant Government stated that the Court should note any continuing violations of the Convention which it found had continued after that decision. They also submitted that the Court should consider it to be a further aggravating factor that violations of the Convention had continued for more than twenty years and that the respondent State’s official policy had directly resulted in violations after the Committee of Ministers’ decision.

388.  The Court considers that it is unnecessary in the circumstances to examine separately these complaints. It further recalls that, regarding the applicant Government’s complaints under Articles 17 and 18, it reached the same conclusion in the context of similar allegations made with respect to alleged interferences with the rights of Greek-Cypriot displaced persons’ property (see paragraph 206 above).