Cyprus v Turkey (25781/94)

• Date: 10 May 2001
• Court: European Court of Human Rights

European Court of Human Rights.

(Wildhaber, President; Palm, Costa, Ferrari Bravo, Caflisch, Fuhrmann, Jungwiert, Fischbach, Zupančič, Vajić, Hedigan, Tsatsa-Nikolovska, Panţîru, Levits and Kovler, Judges; Fuad and Marcus-Helmons, Judges ad hoc)2

Cyprus

and

Turkey1

Human rights — Jurisdiction — State responsibility for securing rights and freedoms — Whether limited to the territory of a State — State exercising effective control of territory outside its borders as a result of military action — Whether violations of human rights in that territory imputable to the State — Whether State responsible for acts of local administration — Cyprus — Whether northern Cyprus within the jurisdiction of Turkey for purposes of Article 1, European Convention on Human Rights, 1950 — Whether Turkey responsible for acts of ‘Turkish Republic of Northern Cyprus’

Human rights — Remedies — Courts of ‘Turkish Republic of Northern Cyprus’— Whether to be treated as courts for purposes of European Convention on Human Rights — Relevance of illegality of establishment of ‘Turkish Republic of Northern Cyprus’— Namibia doctrine — Whether courts of northern Cyprus affording remedies — Duty to exhaust domestic remedies — Whether courts of northern Cyprus independent and impartial tribunals — European Convention on Human Rights, 1950, Articles 6, 13 and 35

Human rights — Right to life — Whether State can violate right to life by failing to provide access to medical care — Degrading treatment — Systematic discrimination — Greek Cypriots living in enclave in northern Cyprus — European Convention on Human Rights, 1950, Articles 2, 3 and 5

Human rights — Right to property — Right to respect for home and family life — Greek Cypriots displaced from northern Cyprus by 1974 fighting — Whether violations of rights to property and home — Greek Cypriots enclaved in northern Cyprus — Restrictions on succession — European Convention on Human Rights, 1950, Article 8, Protocol 1, Article 1

Human rights — Rights to freedom of expression, association and religion — Limits — Whether violated by administration in northern Cyprus — European Convention on Human Rights, 1950, Articles 9, 10 and 11

Human rights — Discrimination — Systematic discrimination — Discrimination as separate basis for violation of Convention — European Convention on Human Rights, 1950, Article 14

Human rights — Claims of violations — European Court of Human Rights — Inter-State applications — Standard and burden of proof- — Proof beyond reasonable doubt — Claims regarding compatibility in abstracto of laws with Convention — Whether admissible

International organizations — United Nations — Security Council — Effect of resolutions — Resolutions not adopted under Chapter VII of Charter — Resolutions 541 (1983) and 550 (1994) — Situation in Cyprus — Invalidity of establishment of ‘Turkish Republic of Northern Cyprus’— Effects — Reports by United Nations on conditions in northern Cyprus — Evidential value

International tribunals — Jurisdiction — Procedure — European Court of Human Rights — Limitation on jurisdiction — Claims added after decision on jurisdiction

Recognition — States — Effects of non-recognition —‘Turkish Republic of Northern Cyprus’— Whether a State — Whether general duty of non-recognition — Whether duty of non-recognition subject to exceptions — Namibia doctrine — Validity of day-to-day acts

State responsibility — Imputability — Whether acts of separate entity imputable to the State — Degree of overall control required —‘Turkish Republic of Northern Cyprus’— Whether controlled by Turkey — Whether acts imputable to Turkey

States — Existence of State — Entity not recognized by international community, with exception of one State —‘Turkish Republic of Northern Cyprus’

War and armed conflict — Legality of resort to force — Occupation — Turkish intervention in Cyprus in 1974 and subsequent presence in northern Cyprus

Summary: The facts:—In 1974 Turkish forces intervened in Cyprus and took control of the northern part of the island following fighting between them and the forces of the Republic of Cyprus. As a result of this fighting, most of the Creek Cypriot population of northern Cyprus was displaced, although small communities of Greek Cypriots and Maronites continued to live in the Karpas enclave in the north. Those Greek Cypriots who were displaced were not permitted to return to their property in the north. A Turkish Cypriot administration was

formed in the north. Initially describing itself as the ‘Turkish Federated State of Cyprus’, in 1983 this administration proclaimed the north of Cyprus to be an independent State called the ‘Turkish Republic of Northern Cyprus’ (‘TRNC‘). Turkey continued to maintain a substantial military presence in the north. The proclamation of the TRNC was condemned as legally invalid by the United Nations Security Council in Resolutions 541 (1983) and 550 (1984). Apart from Turkey, no State recognized the TRNC. The south of Cyprus continued to be under the control of the Government of the Republic of Cyprus (the applicant Government), which was recognized by most States, though not by Turkey, as the sole government of Cyprus. A United Nations buffer zone existed between the two parts of Cyprus.

The applicant Government brought proceedings against the Government of Turkey (the respondent Government) for violations of Articles 1–6, 8–11 and 13 of the European Convention on Human Rights (‘the Convention’), of Articles 1 and 2 of the First Protocol to the Convention and of Articles 14, 17 and 18, taken together with those provisions.3 The applicant Government alleged that the respondent Government was engaged in continuing violations of the Convention with regard:

• (1) to the treatment of approximately 1,491 Greek Cypriots who had last been seen alive in Turkish custody in 1974 and for whose fate Turkey had not accounted (‘the missing persons’);

• (2) to the denial of the right of displaced Greek Cypriots to their homes and property in northern Cyprus;

• (3) to the living conditions of Greek Cypriots in the Karpas enclave;

• (4) to the denial of the right of displaced Greek Cypriots to hold elections;

• (5) to the rights of Turkish Cypriots and members of the gypsy community in northern Cyprus.

The respondent Government submitted that the application was inadmissible on the grounds that the applicant Government lacked locus standi to represent the Republic of Cyprus as it was not established in accordance with the Constitution, that it had no legitimate interest in having the merits examined and that the acts in respect of which complaint was made had not occurred within the jurisdiction of Turkey but within that of the TRNC and that they were the responsibility of the TRNC, not Turkey. The respondent Government also argued that there had been a failure to exhaust domestic remedies, since remedies available before the courts of the TRNC had to be regarded as domestic remedies within Turkey if the jurisdiction of Turkey was considered to extend to the TRNC. In respect of certain claims, the respondent Government maintained that the claims were brought out of time, because more than six months had expired since the alleged violation. The respondent Government also denied that there had been any violation of the Convention or the First Protocol.

The Commission rejected the preliminary objections advanced by the respondent Government, with the exception of the domestic remedies argument and time limits argument, which it accepted in part. The Commission held that the respondent Government was in breach of certain provisions of the Convention with respect to the missing persons, the displaced and the communities in the Karpas enclave but rejected the applicant Government's other claims.4 The case was referred to the Court.

Before the Court, the applicant Government maintained all of its claims, with the exception of the claim regarding denial of the right to hold free elections. The respondent Government did not take part in the proceedings before the Court.

Held:—The respondent Government was in violation of Articles 2, 3, 5, 8, 9, 10 and 13, of the Convention and Articles 1 and 2 of the First Protocol.

I. Preliminary Issues

(1) (unanimously) The Court had jurisdiction to examine the preliminary objections raised by the respondent Government before the Commission (paras. 56–8).

(2) (unanimously) The applicant Government had locus standi. It was evident from international practice and the condemnatory tone of the resolutions adopted by the Security Council and the Committee of Ministers of the Council of Europe that the international community did not recognize the TRNC as a State under international law and that the Government of the Republic of Cyprus remained the sole legitimate government of Cyprus (paras. 59–62).

(3) (unanimously) The applicant Government had a legitimate legal interest in having the merits of the application examined, notwithstanding the resolutions of the Committee of Ministers of the Council of Europe in relation to the earlier applications. Since Turkey only accepted the jurisdiction of the Court in 1990, the earlier applications could not have been brought before the Court (paras. 63–8).

(4) (by sixteen votes to one) The facts complained of in the application fell within the jurisdiction of Turkey within the meaning of Article 1 of the Convention. As the Court had held in its two decisions in Loizidou v. TurkeyINTLINTL,5 the jurisdiction of a State, for the purposes of Article 1, was not confined to the territory of that State. Turkey had effective overall control over northern Cyprus, where it had more than 30,000 members of its armed forces. Its responsibility was therefore engaged not only by the acts of its own soldiers or officials but also by those of the local administration which survived by virtue of Turkish military and other support. Moreover, the acquiescence or connivance of the authorities of a State in...