European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> LOIZIDOU v. TURKEY - 15318/89 [1991] ECHR 73 (04 March 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/73.html
Cite as: [1991] ECHR 73
|
|
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
European Court of Human Rights |
||
|
You are here: BAILII >> Databases >> European Court of Human Rights >> LOIZIDOU v. TURKEY - 15318/89 [1991] ECHR 73 (04 March 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/73.html Cite as: [1991] ECHR 73 |
||
[New search] [Contents list] [Help]
LOIZIDOU v. TURKEY - 15318/89 [1991] ECHR 73 (04 March 1991)
AS TO THE ADMISSIBILITY OF
Application No. 15299/89
introduced on 21 July 1989
by Metropolitan CHRYSOSTOMOS,
Bishop of Kitium
against Turkey
registered on 25 July 1989
Application No. 15300/89
introduced on 21 July 1989
by Archimandrite Georgios
PAPACHRYSOSTOMOU
against Turkey
registered on 25 July 1989
Application No. 15318/89
introduced on 22 July 1989
by Titina LOIZIDOU
against Turkey
registered on 31 July 1989
The European Commission of Human Rights sitting in private on
4 March 1991 the following members being present:
MM. C. A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Sir Basil HALL
MM. C.L. ROZAKIS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the declaration made by Turkey under Article
25 of the Convention on 28 January 1987;
Having regard to the application introduced on 21 July 1989 by
Metropolitan CHRYSOSTOMOS, Bishop of Kitium, against Turkey and
registered on 25 July 1989 under file No. 15299/89;
Having regard to the application introduced on 21 July 1989 by
Archimandrite Georgios PAPACHRYSOSTOMOU against Turkey and registered
on 25 July 1989 under file No. 15300/89;
Having regard to the application introduced on 22 July 1989 by
Titina LOIZIDOU against Turkey and registered on 31 July 1989 under
file No. 15318/89;
Having regard to the Commission's decisions of 9 November 1989
that the applications should be joined and brought to the notice of the
respondent Government and that the Government be invited to submit
written observations on the applications;
Having regard to the respondent Government's observations of
28 February 1990 and the applicants' observations in reply of 6 May
(Applications Nos. 15299/89 and 15300/89) and 11 May 1990 (Application
No. 15318/89);
Having regard to the applicants' further written observations
of 18 December 1990;
Having regard to the parties' oral submissions at the hearing
on 11 January 1991;
Having deliberated on 11 January and 4 March 1991;
Decides as follows:
THE FACTS
I. Particular circumstances of the applications
Application No. 15299/89
The first applicant is a Cypriot citizen born in 1938 and
residing in Larnaca. He is represented by Dr. K. Chrysostomides, a
lawyer practising in Nicosia.
The facts of the case, as they have been stated by the
applicant, may be summarised as follows:
Turkey's invasion of Cyprus - the Women's Pancyprian Movement "Return"
organised a demonstration aimed at proclaiming the refugees' right to
return to their homes. They intended to walk into and remain in the
"buffer zone" through the night until dawn, the time when the first
Turkish paratroopers landed on Cypriot soil on 20 July 1974. The
"buffer zone" is a strip of land between the military posts of the
occupying Turkish army and the national guard of the Republic of
Cyprus, at present under the responsibility of the United Nations
Forces in Cyprus known as UNFICYP.
clergymen over religious prayers for the missing persons in the Church
of Saint Kassianos, in the area controlled by the Government of Cyprus.
These followed a memorial service for those killed during the invasion
in 1974 and laying of wreaths. The congregation consisted of women.
Around 6.15 p.m. the women left the Church of Saint Kassianos. The
first applicant finished with the vespers at approximately 7 p.m.
for the missing persons and pray at the derelict church of Saint George
where in the meantime many women had gathered. The chapel of Saint
George is situated in the buffer zone, in the yard of the school of
Saint Kassianos. When the first applicant entered the church members
of UNFICYP saluted him.
together with Turkish Cypriot "policemen" suddenly charged into the
church and started to indiscriminately hit everybody who was present.
The first applicant, while still in the church, was brutally beaten
with gun butts and clubs and kicked by his captors. A blow with a club
on his head hurled his priest's cap on the ground. As he was trying
to pick it up, they continued to beat him and kick him with their
knees, swore at him and humiliated him. A "policeman" grabbed his
wrist, twisted it and painfully forced him to walk on.
civilians, sheltered by Turkish troops, who started to attack him, to
spit on him, to swear at him and to ill-treat him with punches. He
received a blow on his right ear which caused a wound that took about
five days to heal.
many women who had also been captured, taken to "Pavlides Garage" in
Nicosia.
applicant's personal belongings, the cross and the pectoral cross. He
refused to hand these over. A mob was throwing stones on the garage
and one stone fell into the interior, but nobody was hurt.
applicant. The interrogation lasted for about 40 minutes. The
interrogators asked questions in Greek and kept their notes in Turkish.
The first applicant refused to sign these notes. When asked whether
he would join another march he replied that he would go to any peaceful
march because he did not recognise any boundaries that were set by
force and the might of arms; he had done nothing wrong but was simply
present at a holy temple, praying for the missing and the dead people.
brought to the police station known as "Seragio" in Nicosia. They were
led into an office and left during the whole of the remaining night
hours sitting on two chairs. In the morning two interpreters came into
the office and behaved in a provocative way. The first applicant
refused to accept breakfast.
that he would be presented to a "court". He was taken into a large
room on the ground floor and charged with illegal entry into the area
of the "Turkish Republic of Northern Cyprus" and violation of military
zone A. The "prosecutor" requested that the first applicant be further
detained for three days in order to complete investigations and the
"judge" granted two days.
as "Ortagiogou" and detained in a cell together with four other
persons. At around 7 p.m. he was visited by the "Minister of Justice".
He requested to be seen by a doctor as he was suffering from influenza.
The doctor promised to send antibiotics and aspirins, but they did not
arrive.
be counted. After a while they were again lined up so that the officer
could establish that all were present. At around 11.30 p.m. they began
to open files. At around 2 a.m. or 3 a.m. on 21 July the detainees
were woken up in order to have their photographs taken and they were
otherwise disturbed throughout the night.
An interpeter was present. The first applicant contested the
jurisdiction of the "court" of an illegal regime not recognised by any
state or international organisation. He complained that he had been
illegally arrested in his own State while praying in a church, in an
area controlled by the United Nations, and declared that he was
innocent.
responsible for the area in which the first applicant had been
arrested, that the first applicant had violated the boundaries of the
"Turkish Republic of Northern Cyprus", and that he had seen that the
first applicant was on "Turkish ground" at the time of the arrest. When
the first applicant asked the witness whether he knew that the first
applicant was in the area controlled by UNFICYP, the "judge" did not
allow the question. Later the witness stated that he had not seen
where the first applicant was arrested.
witnesses in order to avoid the impression that he recognised the
jurisdiction of the "court". The "court" reserved its judgment.
towel from the Red Cross and some food. In the afternoon the prisoners
were visited by representatives of the United Nations.
"court". The "judge" reading out the "decision" had to interrupt the
pronouncement because a mob outside was shouting "murderer priest",
"traitor priest" and "hand over the priest to us". The first applicant
was pronounced "guilty". He repeated that he did not recognise the
jurisdiction of the "court" and that he had been arrested unlawfully
on Cypriot territory when performing religious duties and demonstrating
peacefully. The "judge" recalled her finding that the first applicant
had been arrested on Turkish ground. When the mob approached the
"court room" the "judge" interrupted the proceedings and received a
Reuter representative, who had been watching the "trial", in her
office.
of his arrest. In the presence of three United Nations'
representatives he requested protection of the United Nations. The
"judge" observed that protection was offered by the "State police".
The "court's sentence" was three days' imprisonment and a fine of
100,000 CYP, or ten days' detention in default.
prison was attacked by the mob and a stone hit the glass window.
conduct prayers with the prisoners. As contact with the female
prisoners was refused prayers were held with only the male prisoners
present.
first applicant received vestments and the holy ware from United
Nations' representatives but was told by the prison director that he
was prohibited from praying and officiating service. The applicant
addressed a protest to the United Nations and from that moment
abstained from taking any food or accepting any medical attendance.
first applicant refused to be examined. At around 11.30 a.m. he was
again interrogated. Later on that day, they took his personal
belongings, watches, crosses and chains from him.
examined while being denied the right to pray. Around noon he was put
into isolation on the ground that he should not have declared a hunger
strike. He was locked up in a dark and stiflingly hot cell until the
morning of the following day.
interrogators, a doctor and the director of the prison were present.
He refused to be examined by the doctor or to take any food and was
locked up in a cell 2 x 1.5 metres large which was dark and dirty. He
was told that they would bring his personal belongings from the
previous cell as well as a sheet for the bed, but they never did. The
first applicant was left in that cell until he was visited by a
representative of the United Nations. He was then taken to his
previous cell and told that his punishment of isolation had ended. He
complained to a United Nations' representative in the presence of the
director of the prison of the isolation and the conditions of his
detention. The director of the prison stated that prisons have their
own regulations. Later in the afternoon the first applicant was
informed by the United Nations' representives that he would be released
on 3 August. In the evening he fainted and was sick. He still refused
medical examination or any assistance from the "policemen". Dr. A.C.,
a co-prisoner, assisted him a lot.
bedside. When he refused to take any, they insisted and a TV crew came
to film shots showing that he had food.
the prison director the first applicant again refused to be examined
by a doctor. The director of the prison said that he could have a
shower and get ready because he would be released at around 8.30 p.m.
At 8 p.m. he was told that release had been postponed until the
following day. He was again offered food which he refused. In the
evening he fainted again and received help from the second applicant.
director of the prison. A TV crew was present but the first applicant
refused to make any statements.
days for exhaustion.
Application No. 15300/89
The second applicant is a Cypriot citizen born in 1949 and
residing at Nicosia. He is represented by Dr. K. Chrysostomides, a
lawyer practising in Nicosia.
The facts of the case, as they have been stated by the second
applicant, may be summarised as follows:
applicant, conducted the religious service in the derelict church of
Saint George in the "buffer zone". When approaching the church they
had not been stopped by the two United Nations' officers, who had
saluted them in a military fashion.
with electrically charged clubs the second applicant tried to protect
the women. He was beaten mercilessly and thrown on the ground. The
troops tore apart his vestments and stepped on his priest's cap whilst
they continued to kick him, hit him and spit on him. The bruises from
their beating did not disappear for a long time and lumps remained on
his left leg. One of the Turks grabbed his beard and pulled it
unceasingly until a bunch of hair was uprooted. A Turk wearing a
camouflage uniform with dark complexion punched him so violently in the
face that he felt great pain and lost his glasses.
swore, gestured at him and spat on him. He was holding in his hands
the pieces of his ragged vestments and his cap which could no longer
be worn. His vestments were full of spitting and so was his face.
Whilst he was taken to the bus the mob was beating him continuously.
He was taken to "Pavlides Garage". The mob had gathered outside the
garage, shouted, threatened and threw stones on the windows and the
roof creating panic and fear among the prisoners. One stone broke
through the roof and fell into the garage. At one moment the troops
allowed the mob to break into the garage but later they pushed them
back.
the second applicant. They were asking questions in Greek and one
interrogator took notes in Turkish. The second applicant refused to
sign the notes. At around 2 a.m. the second applicant was taken
together with the first applicant to the "police station" known as
"Seragio". They were left with one guard who was later replaced by
another one. Two of the persons who visited them during that night
were very provocative. At 2.30 p.m. they were ordered to go downstairs
for presentation to "court".
prolong detention for another three days for further interrogations,
granted two days' prolongation.
"Seragio" where he was visited by the "Minister of Justice".
that he could write down his name. Later he was brought before the
"court". The first applicant spoke on behalf of the group. The
witnesses lied. The "court decision" was reserved.
Red Cross. After midnight he was woken up and photographed holding a
sign with his name.
prayers by loud radio music of the guards. In the afternoon they were
visited by the United Nations' representatives.
"court". The uproar of the mob outside was so loud that the "judge"
interrupted the reading of her "decision". The second applicant was
pronounced "guilty". The sentence was three days' imprisonment and a
fine of 100,000 CYP, or ten days' detention in default. At the exit
of the "court" the detainees were attacked by the mob. Stones hit the
windscreen of the bus and broke it. The bus changed route and at high
speed drove back to the prison.
memorial service, the clergymen having been refused access to the
female detainees. On 24 July prayers were stopped by a prison officer
and the second applicant was told that they were prohibited. He then
went on a hunger strike and only drank water and refused examination
by the prison doctor. On 25 July he was again interrogated.
prison regulations after 48 hours of hunger strike all hunger strikers
are examined by a doctor. He refused saying that he would only accept
an examination by a doctor practising in the Republic of Cyprus or at
least a doctor of the United Nations. They then took away all his
personal belongings, watch, pen, keys and cross.
medical examination. He was led to a horrible cell of 2 x 1.5 metres,
dark with a small light window very high up, and was locked up. The
guard promised to bring him his personal belongings from the other
cell, i.e. towel etc., but never did. In the afternoon he was taken
out to meet a group of Turkish journalists. Subsequently he was
visited by United Nations' representatives who told him that he would
be released on 3 August.
brought a tray with some chicken, potatoes, bread, onions and salad
which they placed on the bedside table. The second applicant had a
back problem because of the beatings which had kept him sitting on a
chair for the last three previous nights. A television team filmed the
food.
examined.
returned to him. He was searched and released at about 11.30 a.m.
Application No. 15318/89
The third applicant is a Cypriot citizen born in 1949 and
residing at Nicosia. She is represented by Mr. Achileas Dimitriades,
a lawyer practising in Nicosia.
The facts of the case, as they have been stated by the third
applicant, may be summarised as follows:
of land Nos. 4609, 4610, 4618, 4619, 4748, 4884, 5002, 5004, 5386, 5390
in the district of Kyrenia in Cyprus had been donated or purchased by
the third applicant's father and were registered in her name as owner.
The applicant is still the owner of these plots.
married in 1972 and moved with her husband to Nicosia. She visited her
family frequently, intending to develop the property her father had
given her in Kyrenia and return there to live. Construction had
actually begun on plot No. 5390, and one of the flats was intended for
her family.
use of her property and of the right to enjoy her home town and move
and live freely with her family and the Kyrenian people.
of her basic human rights and the division of the island by the Turkish
troops, as well as her wish to see Cyprus reunified and to return to
Kyrenia found expression in the aims and goals of the "Women Walk Home"
movement. She participated in each of the four marches organised by
"Women Walk Home", in Spring 1975, in June and November 1987, and on
19 March 1989. On all four occasions she was prevented from walking
home by the Turkish troops.
fifty participants in the march, advanced towards the Church of the
Holy Cross (Stavros) in the Turkish-occupied part of Cyprus. They
passed the United Nations' guard post, but further on unarmed Turkish
soldiers tried to prevent them from continuing. The group persisted,
but when they reached the churchyard the soldiers surrounded them and
they were unable to move any further up the hill.
everyone to be quiet. As they sat there, holding white flags, the
Turkish army was gradually replaced by members of the Turkish Cypriot
"police force", who advanced wearing helmets and carrying shields and
clubs.
down the hill. The third applicant too was pushed and two "policemen"
took hold of her. She was carried round to the west side of the hill
and deposited on the ground with other women. A Turkish
officer who was in charge of the situation asked them if they needed
anything. Two United Nations' officers were also there to reassure the
women that they would make all the necessary arrangements for their
release. The women sat there for about two hours, while negotiations
took place between the United Nations' representatives, the Turkish
army, and the "police".
put into an ambulance with six or seven other women. They were
escorted by two Turkish Cypriot "policewomen" and a United Nations'
officer. The ambulance took them first to the village of Lourougina,
where a great many Turkish Cypriots and settlers (identifiable by their
clothes) were demonstrating - apparently a pre-arranged
counter-demonstration. They were held up in a traffic jam, with some
of these people banging on the ambulance and gesticulating at the women
to go away. The ambulance stopped at Lourougina "police station" at
the north entrance of the village. One could clearly see soldiers in
blue berets lined up there. They had no blue United Nations' badges
and were Turkish commandos.
waited for a further two hours or more. Before their release they
passed one by one before a United Nations' doctor, who asked if anyone
had been injured. The third applicant had nothing to report on that
score.
Republic through Nicosia International Airport, where the third
applicant's family was waiting for her. It was midnight by this time.
Further submissions by the applicants
The applicants claim that their detention and all other acts
complained of were carried out by Turkish military forces stationed in
the northern part of Cyprus or by forces acting under their authority.
In support of their submissions the applicants have filed a
number of statements, photographs and other documents.
Statement by the respondent Government on the facts alleged in the
applications
The respondent Government refute the applicants' account of the
facts. They submit that the alleged events relate to a demonstration
organised with the knowledge of the Greek Cypriot authorities. The
demonstration was designed as an attack against the neutral zone and
the territory of the "Turkish Republic of Northern Cyprus". The press
in Southern Cyprus stressed the aggressive nature of the demonstration.
The Turkish forces stationed on the island under the Treaty of
Guarantee did not intervene during the events of 19 July 1989 and had
nothing to do with those events. Only the United Nations' forces and
the security forces of the "Turkish Republic of Northern Cyprus" were
in contact with the demonstrators.
COMPLAINTS
The first and the second applicants complain about their
detention, ill-treatment, the conditions in which they were kept and
the subsequent proceedings. They allege violations of Articles 1, 3,
5, 6, 7, 9 and 13 of the Convention.
The third applicant alleges violations of Article 3 (degrading
treatment) and Article 5 of the Convention and a continuing violation
of Article 8 of the Convention and Article 1 of Protocol No. 1. She
states with regard to the six months' rule (Article 26 of the
Convention) that the violation of Article 8 took place on 19 March 1989
and that Turkey, by refusing the applicant access to her property, has
gradually, over the last 16 years, affected the rights of the applicant
as a property owner and in particular her right to a peaceful enjoyment
of her possessions, thus constituting a continuing violation of Article
1 (submissions of 18 December 1990, paras. 23 and 24).
II. Turkey's declaration under Article 25 of the Convention
following declaration with the Secretary General of the Council of
Europe pursuant to Article 25 of the Convention:
"The Government of Turkey, acting pursuant to Article 25
(1) of the Convention for Protection of Human Rights and
Fundamental Freedoms, hereby declares to accept the competence
of the European Commission of Human Rights to receive petitions
according to Article 25 of the Convention subject to the
following:
(i) the recognition of the right of petition extends only to
allegations concerning acts and omissions of public authorities
in Turkey performed within the boundaries of the territory to
which the Constitution of the Republic of Turkey is applicable;
(ii) the circumstances and conditions under which Turkey, by
virtue of Article 15 of the Convention, derogates from her
obligations under the Convention in special circumstances must
be interpreted, for the purpose of the competence attributed to
the Commission under this declaration, in the light of Articles
119 to 122 of the Turkish Constitution;
(iii) the competence attributed to the Commission under this
declaration shall not comprise matters regarding the legal status
of military personnel and in particular, the system of discipline
in the armed forces;
(iv) for the purpose of the competence attributed to the
Commission under this declaration, the notion of 'a democratic
society' in paragraphs 2 of Articles 8, 9, 10 and 11 of the
Convention must be understood in conformity with the principles laid
down in the Turkish Constitution and in particular its Preamble and its
Article 13;
(v) for the purpose of the competence attributed to the Commission
under the present declaration, Articles 33, 52, and 135 of the
Constitution must be understood as being in conformity with Articles 10
and 11 of the Convention.
This declaration extends to allegations made in respect of
facts, including judgments which are based on such facts which have
occurred subsequent to the date of deposit of the present declaration.
This declaration is valid for three years from the date of deposit with
the Secretary General of the Council of Europe."
Europe transmitted the above declaration to the other High Contracting
Parties to the Convention and added:
"At the time this declaration was deposited, I drew the
Turkish authorities' attention to the fact that this notification
made pursuant to Article 25 (3) of the Convention in no way
prejudges the legal questions which might arise concerning the
validity of the said declaration."
Permanent Representative of Turkey observed:
"...
The unequivocal wording of Article 25 (3) of the
Convention offers no basis for expressing opinions or adding
comments when transmitting the copies of the Turkish declaration
to the High Contracting Parties during the discharge of your
functions as depositary.
According to Article 25 (3) of the Convention, the
Secretary General, with regard to each declaration under Article
25 deposited with him, shall 'transmit copies thereof to the High
Contracting Parties and publish them'.
International treaty practice, in particular that
followed by the Secretary General of the United Nations as
depositary to such similar important treaties as the Statute of
the International Court of Justice or the covenants and
conventions dealing with human rights and fundamental freedoms
also confirms that the depositary has to refrain from any
comments on the substance of any declaration made by a
Contracting Party.
..."
with regard to his earlier letter of 29 January:
"...
I consider that this course is in keeping with
international treaty law and with the relevant practice, as
confirmed by numerous precedents, including the practice of the
Secretary General of the United Nations as depositary. ...
... Article 77 (2) of the Vienna Convention on the Law
of Treaties ... provides as follows:
'In the event of any difference appearing between a State
and the depositary as to the performance of the latter's
functions, the depositary shall bring the question to the
attention of the signatory States and the Contracting States or,
where appropriate, of the competent organ of the international
organisation concerned.'
It is consequently my duty to draw the attention of the
Contracting Parties to a point on which there is a difference
between a Government and myself concerning the performance of my
functions as depositary."
"...
First of all, I would like to state that the Turkish
declaration does not contain any 'reservations' in the sense of
international treaty law. ... The term 'reservations' mentioned
in your letter, therefore, consists solely of a subjective
interpretation and attribution which, in fact, should have been
carefully avoided in view of the clearly limited function of the
depositary according to Article 25 (3) of the Convention ...
(The) Secretary General of the UN, conforming himself to
Resolution 598 (VI) adopted on 12 January 1952 by the General
Assembly, has never refused to register notifications or
declarations made by contracting parties to a Convention to which
he acts as depositary, nor has he made any critical comment about
such notifications or declarations when informing the other
contracting parties thereof.
..."
addressed the following letter to the Secretary General:
"...
The Turkish Government, departing from the practice which
has up to now been followed by all States in respect of
declarations made pursuant to the aforementioned provision, has
thought it right to reduce substantially its conventional
obligations by formulating a certain number of reservations ...
(The) Turkish Government has not expressly used the term
reservation in its declaration but ... what is important ... is
not the nomenclature or absence of nomenclature of the act in
question but its content and effect. Accordingly, any unilateral
declaration which limits a State's contractual obligations is
incontestably, from the point of view of international law, a
reservation. This question concerns one of the most established
principles of international treaty law, which has been codified
by the two Vienna Conventions - the Convention of 1969 on the law
of treaties and the Convention of 1986 on the law of treaties
between States and international Organisations or between
international Organisations. Both Conventions provide in
identical terms that 'the expression 'reservation' means a
unilateral statement, however phrased or named, made by a State
when signing, ratifying, accepting, approving or acceding to a
treaty whereby it purports to exclude or to modify the legal
effect of certain provisions of the treaty in their application
to that State' (Article 2, para. 1 (d)).
It is therefore evident that limitations and restrictions
contained in the aforementioned declaration of the Turkish
Government constitute reservations from the point of view of
international law. Moreover, this results clearly from the
expression 'subject to' used in the Turkish declaration.
Accordingly, the question which arises is to know whether
the reservations are compatible with the European Convention on
Human Rights. In our opinion, there is no doubt that they are
incompatible and in particular for the following reasons:
The issue of reservations is regulated very strictly by
Article 64 of the Convention ...
It is self-evident that the Turkish reservations are far
from being in agreement with the conditions set out in this
article since they are neither compatible with the requirement
of time nor with the basic conditions provided therein.
It is moreover incontestable that reservations to the
European Convention on Human Rights may not be formulated on the
basis of any provision other than Article 64. This conclusion
results not only from Article 64 itself, which is the only
provision regulating reservations, but also from the overall
structure and nature of the European Convention on Human Rights
as well as the general principles of international law relating
to reservations. Furthermore, Article 25 provides neither
directly nor implicitly the possibility of formulating
reservations similar to the reservations set out in the Turkish
declaration. The position cannot be otherwise for if
reservations could be made on the basis of Article 25, such a
method of proceeding would undermine Article 64 and would sooner
or later destroy the very foundations of the Convention.
Article 19, paragraph b, of the Convention on the law of
treaties, proclaiming a principle of incontestable legal logic,
states that: 'a State may, when signing, ratifying, accepting,
approving or acceding to a treaty, formulate a reservation
unless: b) the treaty provides that only specified reservations,
which do not include the reservation in question, may be made'
(see also Article 19 (b) of the Convention on the law of treaties
between States and international Organisations or between
international Organisations).
It follows that the Turkish reservations, as they are
outside the scope of Article 64, must be considered as
unauthorised reservations under the Convention and, accordingly,
as illegal reservations. Consequently, they are null and void
and may not give rise to any effect in law.
In conclusion, we insist on stressing how regrettable it
is in this affair of extreme importance which concerns European
public order that you have not up to now fully exercised the
depositary functions resulting from general international law
and, in particular, from the Vienna Conventions of 1969 and 1986
(see Article 77, paragraph 1 (d), and paragraph 2, respectively),
particularly since over and above your depositary role, you are
one of the organs which must supervise the strict application of
the European Convention on Human Rights (Article 57)."
April 1987:
"Referring to the observations ... relating to the
exercise of my functions as depositary under the European
Convention on Human Rights, I would like to recall that, at the
time of deposit of the declaration by the Turkish authorities,
I thought it my duty to stipulate that the notification made
pursuant to Article 25 (3) of the Convention in no way prejudged
the legal questions which might arise concerning the validity of
the said declaration.
Moreover, by letter dated 10 February 1987, I drew the attention
of the Contracting Parties, referring to Article 77 (2) of the
Vienna Convention on the law of treaties, to the divergence which
had arisen between the Government of Turkey and myself concerning
the discharge of my aforementioned functions. In this way, I
consider that I have complied with the law and practice of
treaties and international organisations resulting in particular
from the Vienna Convention of 1969."
April 1987, replied as follows to the Secretary General's letter of 29
January 1987 transmitting Turkey's declaration under Article 25:
"...
The Swedish Government considers this declaration an
important step for the protection of human rights in Turkey.
However, the reservations and declarations which Turkey has made
in connection with the said recognition raise various legal
questions as to the scope of the recognition. The Government
therefore reserves the right to return to this question in the
light of such decisions by the competent bodies of the Council
of Europe that may occur in connection with concrete petitions
from individuals."
21 April 1987, replied as follows to the notification, by the Secretary
General, of Turkey's declaration under Article 25:
"...
The reservations, which are set out in that declaration
and which limit the recognition by the Turkish Government of the
competence of the European Commission of Human Rights to receive
individual petitions, raise a fundamental question regarding the
scope of legal instruments elaborated within the Council of
Europe. The question is to know inter alia whether the
unilateral expression of a limitation of an international
Convention's recognition is valid or not.
... Luxembourg reserves to itself the right to express,
when it deems appropriate and before the competent bodies of the
Council of Europe, its position in regard to the Turkish
Government's declaration. Between now and then, the absence of
a formal and official reaction on the merits of that problem
should not ... be interpreted as a tacit recognition by
Luxembourg of the Turkish Government's reservations."
30 April 1987 to the Secretary General, stated the following with regard
to Turkey's declaration:
"...
In the view of the Danish Government, the reservations
and declarations which accompany the said recognition raise
various legal questions as to the scope of the recognition. The
Government therefore reserves its right to return to these
questions in the light of future decisions by the competent
bodies of the Council of Europe in connection with concrete
petitions from individuals."
1987 to the Secretary General, made the following statement:
"...
In the view of the Norwegian Government the step taken
by the Turkish Government is to be welcomed as an important
contribution to the strengthening of human rights in Europe.
However, the wording of the declaration could give rise to
difficult issues of interpretation as to the scope of the
recognition of the right to petition. In the event, such issues
fall to be resolved by the European Commission of Human Rights
in dealing with concrete petitions from individuals.
The right of individual petition under Article 25 of the
Human Rights Convention forms an essential part of the system of
procedural safeguards for human rights in Europe. It is
therefore desirable to avoid any doubt as to the scope and
validity of the recognition by individual States of this right
which may be raised by generalised stipulations in respect of the
context in which petitions would be accepted as admissible,
interpretative statements or other conditionalities."
26 June 1987 to the Secretary General, made the following comments with
regard to the above letters by Greece, Sweden, Luxembourg, Denmark and
Norway:
"First of all, I would like to emphasise that the points
contained in the Turkish declaration cannot be considered as
'reservations' in the sense of international treaty law.
According to the Vienna Convention on the Law of Treaties of
1969, which for most of its provisions purports to codify
existing principles of international treaty law, 'a reservation
modifies for the reserving State the provisions of the treaty to
which the reservation relates to the extent of the reservation'.
In this sense, a reservation distinctly alters for the reserving
State the scope of its commitments under the treaty.
Turkey ratified the Convention and its First Protocol in
1954, by making a reservation with regard to Article 2 of the
Protocol. The 'conditions' attached to the Turkish declaration
of 28 January 1987, however, are not 'reservations' to
commitments arising out of the Convention. They do not modify
Turkey's general obligations under the Convention. The
Convention, as ratified and subject to the 'reservation' made in
1954, continues to bind Turkey to the full extent and ... is open
to allegations under Article 24.
In other words, the conditions attached to the
declaration of 28 January 1987 do not purport to modify or to
exclude any of the legal provisions of the Convention. The
'conditions' have the only purpose to define and limit the
granting of additional power and authority which Turkey as a
Contracting State has on its own volition bestowed upon the
Commission.
Furthermore, any acceptance of an optional clause of an
international treaty is tantamount to an expression of consent
by the State concerned to be bound by that provision. It is thus
based on the subjective attitude and understanding of the State
concerned. This means that the State is free, within the limits
of the rules of the international treaty or convention concerned,
to qualify its consent to be bound by the optional clause.
When recognising the right of individual petition
pursuant to Article 25 of the European Convention on Human
Rights, the States are granting an additional competence to the
European Commission of Human Rights. Such granting of competence
can be made subject to certain conditions.
Article 25 of the Convention does not contain any
indications neither of possible conditions nor of prohibition of
such conditions. In particular, it does not envisage a qualified
declaration nor does it prohibit such a declaration. Thus a
declaration under Article 25 accompanied with certain conditions
cannot be seen as being contrary to an explicit rule of the
Convention.
Finally, I would like to point out in this connection
that the only competent organ to make a legally binding
assessment in this respect is the European Commission of Human
Rights, when being seized by an individual application, and
eventually the Committee of Ministers when acting pursuant to
Article 32 of the Convention."
letter to the Secretary General, stated the following with regard to
Turkey's declaration under Article 25:
"...
The Belgian Government considers this declaration an
important step towards the protection of human rights in Turkey.
However, the conditions and qualifications set forth in this
declaration, which are liable to limit the recognition by the
Turkish Government of the competence of the European Commission
of Human Rights to receive individual petitions, raise legal
questions as to the scope of an essential provision of the system
of protection of the rights and fundamental freedoms provided for
by the Convention.
Belgium therefore reserves the right to express its
position in regard to the Turkish Government's declaration, at
a later stage and before the competent bodies of the Council of
Europe. Meanwhile the absence of a formal reaction on the merits
of the problem should by no means be interpreted as a tacit
recognition by Belgium of the Turkish Government's conditions and
qualifications."
PROCEEDINGS BEFORE THE COMMISSION
Applications Nos. 15299/89 and 15300/89 were introduced on
21 July and registered on 25 July 1989. Application No. 15318/89 was
introduced on 22 July and registered on 31 July 1989.
On 8 August 1989 counsel for the first and second applicants
informed the Commission that these applicants had been released. On 28
August 1989 he made further submissions.
On 9 November 1989 the Commission decided to join the
applications, to bring them to the attention of the respondent
Government and to invite the Government to submit observations on the
admissibility and merits of the applications.
The respondent Government's observations were filed, after an
extension of the time-limit, on 28 February 1990.
The applicant's observations in reply were submitted, after an
extension of the time-limit, on 6 May (Applications Nos. 15299/89 and
15300/89) and 11 May 1990 (Application No. 15318/89), respectively.
The Commission considered the applications again on 5 October
1990 and decided to invite the parties to a hearing on the admissibility
and merits of the applications.
The applicants filed further written submissions on 18 December
The hearing took place in Strasbourg on 11 January 1991. The
parties were represented as follows:
The Government:
Professor Suat BILGE, Agent
Professor Heribert GOLSONG, Counsel
Professor Elie LAUTERPACHT, Counsel
Münci ÖZMEN, Expert at the Ministry of Foreign Affairs
Dr. Deniz AKÇAY, Expert at the Ministry of Foreign Affairs
Daniel BETHLEHEM, Barrister, Expert
The applicants:
First and second applicants:
Dr. Kypros CHRYSOSTOMIDES, Advocate, Nicosia
Chrystalla PITSILLI, Barrister, Nicosia
Third applicant:
Achilleas DEMETRIADES, Barrister, Nicosia
Joanna LOIZIDOU, Barrister, Nicosia
First, second and third applicants:
Professor Ian BROWNLIE Q.C., Counsel
The first and third applicants were also present.
THE LAW
I. The Commission's competence in relation to the declaration
made by Turkey under Article 25 (Art. 25) of the Convention
Secretary General of the Council of Europe from any person,
non-governmental organisation or group of individuals claiming
to be the victim of a violation by one of the High Contracting
Parties of the rights set forth in this Convention, provided that
the High Contracting Party against which the complaint has been
lodged has declared that it recognises the competence of the
Commission to receive such petitions. Those of the High
Contracting Parties who have made such a declaration undertake
not to hinder in any way the effective exercise of this right.
General of the Council of Europe who shall transmit copies
thereof to the High Contracting Parties and publish them.
for in this Article when at least six High Contracting Parties
are bound by declarations made in accordance with the preceding
paragraphs."
25 (Art. 25) in her declaration of 28 January 1987.
Convention by Turkey in the "buffer zone" and the northern part of
Cyprus. The respondent Government, invoking the territorial limitation
in paragraph (i) of their declaration of 28 January 1987, submit that
Turkey has not recognised the Commission's competence to examine the
present applications, which lie outside the territorial framework
specified in the declaration. The applicants contest the validity of
this territorial limitation and its applicability to the present case.
The respondent Government state that the declaration has been conceived
as a whole and that the rejection of any of the conditions contained
therein would make the declaration inexistent.
declaration and its scope. Its competence for this determination has
expressly been recognised by Turkey in earlier correspondence (letter of
26 June 1987 to the Secretary General) and at the hearing before the
Commission. Moreover, the Secretary General of the Council of Europe
has on 28 January 1987, when Turkey deposited her declaration, drawn the
Turkish authorities' attention to the fact that the notification of the
declaration to the other High Contracting Parties "in no way prejudges
the legal questions which might arise concerning the validity of the
said declaration".
a) The meaning of the territorial limitation in
para. (i) of Turkey's declaration
territorial restriction that, on a reasonable interpretation, it does
not provide any assistance to Turkey because the Turkish Constitution
must apply to the actions of its armed forces and to the decisions of
the Government concerning the disposition and use of the armed forces.
They note that Turkey has replaced her declaration of 1987 "with a new
form of words".
public authorities in Turkey" in the declaration of 1987 clearly refers
to the metropolitan territory, but that the words "territory to which
the Constitution of Turkey is applicable" might also be interpreted as
including acts performed by Turkish authorities abroad, which are
governed by the Turkish Constitution. The Commission notes that the
latter phrase has in the Turkish declaration of 7 March 1990 been
replaced by the words "within the boundaries of the national territory
of the Republic of Turkey".
Turkey's declaration of 28 January 1987 must be interpreted in the light
of its clear object and purpose in view of the previous Inter-State
cases brought by Cyprus against Turkey. The applicants have stated
earlier: "It is generally recognised that this restriction has the
exclusive purpose of seeking to avoid the responsibility of Turkey for
breaches of the European Convention arising from Turkish actions in the
Turkish occupied area of Cyprus."
that the acts complained of in the present applications come within the
scope of the territorial restriction in Turkey's declaration of 28
January 1987. The Commission must therefore determine whether its
jurisdiction is limited by this clause.
b) The validity of the limitations in paras. (i) to (v)
of Turkey's declaration
from the temporal limitation in the first sentence of the last paragraph
- five restrictive clauses in paras. (i) to (v). In previous
applications by individuals against Turkey the Commission has not
determined the validity of any of these five clauses because they were
not invoked. However, when admitting Applications Nos. 14116/88 and
14117/88 (Sargin and Yagci v. Turkey, Dec. 11.5.89, Revue universelle
des droits de l'homme 1989 p. 516, also to be published in Decisions and
Reports), the Commission based itself on a valid declaration by Turkey
recognising the right of individual petition.
separately, and are different in their nature, from the temporal
limitation in the last paragraph of Turkey's declaration under Article
25 (Art. 25). It recalls that temporal limitations are permissible
under paragraph 2 of Article 25 (Art. 25-2), which provides that
declarations under paragraph 1 "may be made for a specific period".
This clause has always been understood as allowing High Contracting
Parties to exclude retroactivity of declarations made under Article 25
(Art. 25), cf. the declarations by the United Kingdom of 14 January 1966
(Yearbook 9 p. 8), by Italy of 20 June 1973 (Yearbook 16 p. 10), by
Spain of 11 June 1981 (Yearbook 24 p. 8), by Liechtenstein of 15 August
1985 (Yearbook 28 p. 11) and by Greece of 20 November 1985 (Yearbook 28
p. 10), and Application No. 6323/73, X. v. Italy, Dec. 4.3.76, D.R. 3 p.
Turkey's declaration the Commission has previously held that it is
precluded by this restriction from examining applications concerning
administrative decisions taken before, and confirmed by judgments after,
28 January 1987 (Application No. 13623/88, Dec. 13.4.89).
contained in paras. (i) to (v) of Turkey's declaration. They are not,
like temporal restrictions, covered by paragraph 2 of Article 25
(Art. 25-2) but, as limitations of a different character (ratione loci,
ratione materiae and ratione personae), not expressly authorised in this
Article. The Commission has examined whether they are nevertheless
compatible with Article 25 (Art. 25), as claimed by the respondent Government.
Treaties provides that a treaty shall be interpreted in good faith in
accordance with "the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and purpose".
(Art. 25-1) of the European Convention on Human Rights, the Commission
considers that the wording "the rights set forth in this Convention"
presupposes total, not partial recognition. Otherwise the Convention
would in Article 25 para. 1 (Art. 25-1) have referred to "any" or "some"
rights.
context of the Convention as a whole.
sentence any State may, when signing the Convention or when depositing
its instrument of ratification, make a reservation in respect of any
particular provision of the Convention to the extent that any law then
in force in its territory is not in conformity with the provision. It
follows from the clear wording of this provision ("when signing the
Convention or when depositing its instrument of ratification") that a
High Contracting Party may not, when at a later stage recognising the
right of individual petition, substantially modify its Convention
obligations for the purpose of proceedings under Article 25 (Art. 25).
The respondent Government have repeatedly stated that the additional
clauses in their declaration under Article 25 (Art. 25) are not to be
considered as "reservations" in the sense of international treaty law.
restrictions ratione materiae in paras. (ii), (iv) and (v) of Turkey's
declaration would lead to the result that the guarantee of specific
Convention rights would in proceedings under Article 25 (Art. 25) differ
from the guarantee of the same rights applying in proceedings under
Article 24 (Art. 24). However, the competence of the Commission cannot
in regard to the substance of Convention rights be different in the two
proceedings.
temporal restrictions expressly authorised in its second paragraph, is
further supported by a comparison with Article 46 (Art. 46-2), which
provides in paragraph 2 that declarations recognising the jurisdiction
of the Court "may be made ... for a specified period". This provision
is analogous to paragraph 2 of Article 25 (Art. 25-2). Article 46 para.
2 (Art. 46-2) further provides that declarations under paragraph 1 "may
be made unconditionally or on condition of reciprocity on the part of
several or certain other High Contracting Parties". As pointed out by
the Commission in the case of Kjeldsen, Busk Madsen and Pedersen, no
further conditions are permitted under this Article (see Eur. Court
H.R., Series B no. 21, p. 119; cf. also Eur. Court H.R., "Linguistic"
case, Series B no. 3, Vol. I p. 432).
4 and Article 7 para. 2 of Protocol No. 7 (P4-6-2, P7-7-2) provide that
the right of individual recourse recognised by a declaration made under
Article 25 (Art. 25) of the Convention shall not be effective in
relation to the Protocol unless the State concerned has made a statement
recognising such a right. As pointed out by the applicants such an
express stipulation would not have been necessary had Article 25
(Art. 25) allowed such limitations of the right of individual petition
to be placed unilaterally by a State when recognising the right of
individual petition.
paras. (i) to (v) of Turkey's declaration under Article 25 (Art. 25) in
the light of the object and purpose of the Convention.
Contracting Parties in concluding the Convention intended to achieve
greater unity by a common understanding and observance of human rights
and to take steps for the collective enforcement of the rights and
freedoms defined in Section I. The Commission found in the Austria v.
Italy case (No. 788/60, Dec. 11.1.61, Collection 7 p. 23 at pp. 40-43 =
Yearbook 4 p. 116 at pp. 136-142) that the purpose of the High
Contracting Parties to the Convention was "to establish a common public
order of the free democracies of Europe" and that the obligations
undertaken by the Parties in the Convention "are
essentially of an objective character" - a character which also appears
in the machinery provided in the Convention for its collective
enforcement - "being designed rather to protect the fundamental rights
of individual human beings from infringement by any of the High
Contracting Parties than to create subjective and reciprocal rights for
the High Contracting Parties themselves".
United Kingdom (Eur. Court H.R., judgment of 18 January 1978, Series A
no. 25 p. 90 para. 239) that, unlike international treaties of the
classic kind, "the Convention comprises more than mere reciprocal
engagements between contracting States. It creates, over and above a
network of mutual, bilateral undertakings, objective obligations which,
in the words of the Preamble, benefit from a 'collective enforcement'".
the Convention, as a constitutional instrument of European public order
in the field of human rights, excludes application by analogy, as
suggested by the respondent Government, of the State practice under
Article 36 para. 3 of the Statute of the International Court of Justice.
Declarations under this clause create mere reciprocal agreements between
contracting States. The Commission notes that Article 36 para. 3 of the
Statute does not, like Article 25 (Art. 25) of the European Convention
on Human Rights, concern petitions brought by individuals but
applications by States. State applications are in the Convention
regulated by Article 24 (Art. 24). Under this provision they may,
without any further agreement and without fulfilling any condition of
reciprocity, be brought by every State which has ratified the Convention
(cf. the Austria v. Italy case loc. cit. and Nos. 9940-44/82 - France,
Norway, Denmark, Sweden and Netherlands v. Turkey -, Dec. 6.12.83, D.R.
35 p. 143, at pp. 168-170).
before and after the Turkish declaration of 28 January 1987, in
accordance with Article 31 para. 3 of the Vienna Convention on the Law
of Treaties, which provides that there shall be taken into account,
together with the context: a) any subsequent agreement between the
parties regarding the interpretation of the treaty or the application of
its provisions; and b) any subsequent practice in the application of the
treaty which establishes the agreement of the parties regarding its
interpretation.
territorial limitation contained in the second paragraph of the United
Kingdom declaration of 14 January 1966 (Yearbook 9 pp. 8 - 9), which
excluded petitions "in relation to anything done or occurring in any
territory in respect of which the competence of the ... Commission ...
has not been recognised by the Government of the United Kingdom or to
petitions in relation to anything done or occurring in the United
Kingdom in respect of such a territory or of matters arising there."
but also central acts - e.g. decisions of the Privy Council in the
United Kingdom - concerning non-metropolitan territories. However, this
restriction was formulated by the United Kingdom in view of Article 63
para. 4 (Art. 63-4) of the Convention, which permits High Contracting
Parties to limit the application of declarations under Article 25
(Art. 25) as regards the non-metropolitan territories referred to in
Article 63 (Art. 63). The Commission is not in the present case called
upon to verify whether the United Kingdom has in the above declaration
correctly applied Article 63 (Art. 63). It will consider below whether
Article 63 (Art. 63) has any relevance for the present applications.
January 1987, the Commission notes that the restrictions contained in
the declaration were rejected by one High Contracting Party - i.e.
Greece - and that the Governments of Sweden, Luxembourg, Denmark, Norway
and Belgium, and the Secretary General of the Council of Europe as
depositary, reserved their positions in view of the serious Convention
issues raised by the Turkish declaration.
declaration made under Article 25 (Art. 25) by the Minister of Foreign
Affairs of Cyprus on 9 August 1988, which was deposited on 5 September
1988 and reads as follows:
"On behalf of the Government of the Republic of Cyprus,
I declare, in accordance with Article 25 (Art. 25) of the
Convention ... , that ... Cyprus recognizes, for the period
beginning on 1 January 1989 and ending on 31 December 1991, the
competence of the ... Commission ... to receive petitions
submitted ... subsequently to 31 December 1988, by any person,
non-governmental organisation or group of individuals claiming,
in relation to any act or decision occurring or any facts or
events arising subsequently to 31 December 1988, to be the victim
of a violation of the rights set forth in that Convention.
... (The) competence of the Commission by virtue of
Article 25 (Art. 25) ... is not to extend to petitions concerning
acts or omissions alleged to involve breaches of the Convention
or its Protocols, in which the Republic of Cyprus is named as the
Respondent, if the acts or omissions relate to measures taken by
... Cyprus to meet the needs resulting from the situation created
by the continuing invasion and military occupation of part of the
territory of the Republic by Turkey."
transmitting the above declaration by Cyprus to the other High
Contracting Parties on 12 September 1988, recalled that "according to
the general rules this notification made pursuant to Article 25 (3)
(Art. 25-3) of the Convention in no way prejudges the legal questions
which might
arise concerning the validity of the said declaration". The Commission
further observes that the validity of the limitation in the second
paragraph of the declaration by Cyprus was not at issue, and not
determined, in the Commission's decision of 6 December 1990 admitting
Application No. 15070/89 - Modinos v. Cyprus.
no legal basis in the Convention for a restriction of a declaration
under Article 25 (Art. 25-2) other than the temporal limitations
provided for in paragraph 2 of this Article.
in para. (i) of Turkey's declaration in the light of Articles 1 and 63
(Art. 1, 63) of the Convention, as applied by the Convention organs in
the determination of their competence ratione loci.
"The High Contracting Parties shall secure to everyone
within their jurisdiction the rights and freedoms defined
in Section 1 of this Convention."
military forces in Cyprus, and of persons acting under their authority,
fall within Turkey's jurisdiction within the meaning of Article 1
(Art. 1). The Commission recalls that the application of the Convention
extends beyond the national frontiers of the High Contracting Parties
and includes acts of State organs abroad. It has previously stated in
Applications Nos. 6780/74 and 6950/75 (Cyprus v. Turkey, Dec. 26.5.75,
D.R. 2 p. 125 at pp. 136-137), in inter-State proceedings instituted
under Article 24 (Art. 24) of the Convention:
"8. In Article 1 (Art. 1) of the Convention, the High
Contracting Parties undertake to secure the rights and freedoms
defined in Section 1 to everyone 'within their jurisdiction' (in
the French text: 'relevant de leur juridiction'). The Commission
finds that this term is not, as submitted by the respondent
Government, equivalent to or limited to the national territory
of the High Contracting Party concerned. It is clear from the
language, in particular of the French text, and the object of
this Article, and from the purpose of the Convention as a whole,
that the High Contracting Parties are bound to secure the said
rights and freedoms to all persons under their actual authority
and responsibility, whether that authority is exercised within
their territory or abroad ...
The Commission further observes that nationals of a
State, including registered ships and aircrafts, are partly
within its jurisdiction wherever they may be, and that authorised
agents of a State, including diplomatic or consular agents and
armed forces, not only remain under its jurisdiction when abroad
but bring any other persons or property 'within the
jurisdiction' of that State, to the extent that they exercise authority
over such persons or property. Insofar as, by their acts or omissions,
they affect such persons or property, the responsibility of the State is
engaged.
Convention, providing for the extension of the Convention to other than
metropolitan territories of High Contracting Parties, can be interpreted
as limiting the scope of the term 'jurisdiction' in Article 1
(Art. 1) to such metropolitan territories. The purpose of Article 63 is
not only the territorial extension of the Convention but its adaptation
to the measure of self-government attained in particular
non-metropolitan territories and to the cultural and social differences
in such territories; Article 63 para. 3 (Art. 63-3) confirms this
interpretation. This does not mean that the territories to which
Article 63 (Art. 63) applies are not within the 'jurisdiction' within
the meaning of Article 1 (Art. 1).
that the Commission's competence to examine the applications, insofar as
they concern alleged violations of the Convention in Cyprus, cannot be
excluded on the grounds that Turkey, the respondent Party in the present
case, has neither annexed any part of Cyprus nor, according to the
respondent Government, established either military or civil government
there.
It remains to be examined whether Turkey's responsibility under
the Convention is otherwise engaged because persons or property in
Cyprus have in the course of her military action come under her actual
authority and responsibility at the material times. In this respect it
is not contested by the respondent Government that Turkish armed forces
have entered the island of Cyprus, operating solely under the direction
of the Turkish Government and under established rules governing the
structure and command of these armed forces including the establishment
of military courts. It follows that these armed forces are authorised
agents of Turkey and that they bring any other persons or property in
Cyprus 'within the jurisdiction' of Turkey, in the sense of Article 1
(Art. 1) of the Convention, to the extent that they exercise control
over such persons or property. Therefore, insofar as these armed forces,
by their acts or omissions, affect such persons' rights or freedoms
under the Convention, the responsibility of Turkey is engaged."
Commission in Application No. 8007/77 (Cyprus v. Turkey, Dec. 10.7.78,
D.R. 13 p. 85 at pp. 148-150), in the following terms:
"22. The Commission, while maintaining this conclusion in the
present case, wishes to add the following further observations
with regard to the respondent Government's reference to the
'Turkish Federated State of Cyprus'.
Convention on Human Rights continues to apply to the whole of the
territory of the Republic of Cyprus, and that the applicant
Government have since 1974 been prevented from exercising their
jurisdiction in the north of the island. This restriction on the
actual exercise of jurisdiction by the applicant Government, as
the Government of the Republic of Cyprus, is due to the presence
of Turkish armed forces in the north of the island. The
respondent Government submit that the presence of their armed
forces in that area is justified both under the Treaty of
Guarantee of 1960 and by the wish of the 'Turkish Federated State
of Cyprus', proclaimed in the north of the Republic in 1975.
validity of either of these alleged justifications under general
law. It is bound to observe, however, that one High Contracting
Party, namely Cyprus, has since 1974 been prevented from
exercising its jurisdiction in the northern part of its territory
by the presence there of armed forces of another High Contracting
Party, namely Turkey; that the recognition by Turkey of the
Turkish Cypriot administration in that area as 'Turkish Federated
State of Cyprus' does not, according to the respondent
Government's own submissions, affect the continuing existence of
the Republic of Cyprus as a single State and High Contracting
Party to the Convention; and that, consequently, the 'Turkish
Federated State of Cyprus' cannot be regarded as an entity which
exercises 'jurisdiction', within the meaning of Article 1
(Art. 1) of the Convention, over any part of Cyprus.
the north of the Republic of Cyprus, existing by reason of the
presence of her armed forces there which prevents exercise of
jurisdiction by the applicant Government, cannot be excluded on
the ground that jurisdiction in that area is allegedly exercised
by the 'Turkish Federated State of Cyprus'."
supports the view that the territorial restriction in Turkey's
declaration is not permitted under Article 25 (Art. 25).
in respect of the view that certain territorial limitations may validly
be added to declarations made under Article 25 (Art. 25) the Commission
observes the following.
"(1) Any State may at the time of its ratification or at
any time thereafter declare by notification addressed to the
Secretary General of the Council of Europe that the present
Convention shall extend to all or any of the territories for
whose international relations it is responsible."
"(4) Any State which has made a declaration in accordance with
paragraph 1 of this Article may at any time thereafter declare on behalf
of one or more of the territories to which the declaration relates that
it accepts the competence of the Commission to receive petitions from
individuals, non-governmental organisations or groups of individuals in
accordance with Article 25 (Art. 25) of the Convention."
applied directly in the present case. The northern part of Cyprus is
not a territory for whose international relations Turkey is responsible
in the sense of this Article. Application of Article 63 para. 4
(Art. 63-4) by analogy - in the sense that a High Contracting Party may
validly exclude the application of a declaration recognising the right
of individual petition to territories which do not clearly form part of
its own metropolitan territory - is not suggested by the respondent
Government who leave this issue to the Commission's determination. The
applicants, who contest the legality of Turkey's presence in the north
of Cyprus, deny the applicability of Article 63 (Art. 63) in the present
case.
Article 63 para. 4 (Art. 63-4) of the Convention to other
non-metropolitan territories would in the circumstances of the present
case be compatible with the object and purpose of the Convention.
(Art. 63) to Turkish acts in Northern Cyprus would be illegitimate,
given the illegality under international law of Turkey's presence in
that area. The respondent Government submit, as regards control of the
implementation of the Convention by Turkey, that Turkey may be
challenged before the Commission for alleged non-observance of the
provisions of the Convention in the framework of Article 24 (Art. 24).
Convention, as described above, and to the principle, reflected in its
case-law under Article 1 (Art. 1), that application of the Convention
extends beyond the national frontiers of the High Contracting Parties
and includes acts of State organs abroad (cf. paras. 32 and 33 above).
The Commission also recalls that the Convention is intended to guarantee
"not rights that are theoretical or illusory but rights that are
practical and effective" (Eur. Court H.R., Artico judgment of 13 May
1980, Series A no. 37 p. 34 para. 33). The principle that Convention
rights should serve a practical purpose ("effet utile") applies in the
Commission's view not only to the rights defined in Section I of the
Convention but also to the fundamental procedural right of individual
petition under Article 25 (Art. 25) as soon as a State has recognised
that right. The Commission finally refers to its earlier observations
at para. 9 of its decision of 26 May 1975 (reproduced at para. 32 above)
concerning the purpose of Article 63 (Art. 63), and at para. 23 and 24
of its decision of 10 July 1978 (reproduced at para. 33 above)
concerning the restriction, resulting from the presence of Turkish armed
forces in the north of Cyprus, on the exercise of jurisdiction by
Cyprus, a High Contracting Party to the Convention. While not called
upon to pronounce on the legality under international law of Turkey's
presence in the north of Cyprus the Commission finds that application by
analogy of Article 63 (Art. 63) would be incompatible with the specific
situation in that area.
para. 4 (Art. 63-4) would in the circumstances of the present
applications be incompatible with the object and purpose of the
Convention.
(i) to (v) of Turkey's declaration under Article 25 (Art. 25) of 28
January 1987 are not permitted by this Article. This finding does not
affect the Commission's previous decisions (e.g. No. 13623/88, Dec.
restriction under paragraph 2, the clause contained in the first
sentence of the last paragraph of Turkey's declaration.
c) The validity of Turkey's recognition of the right of
individual petition
Government made the following statement
"Le gouvernement turc considère et a toujours considéré
que les conditions qui figurent dans sa déclaration
selon l'article 25 (Art. 25), y compris la clause territoriale,
ont un caractère essentiel pour la volonté du
Gouvernment d'accepter le droit de recours individuel,
à tel point que si une seule de ces conditions devait
être rejetée, la déclaration dans sa totalité deviendrait
caduque; dans un tel cas, la reconnaissance par la
Turquie du droit de recours individuel n'existerait plus."
scope and validity of Turkey's declaration under Article 25 (Art. 25)
has expressly been recognised by Turkey (cf. para. 4 above) and that
Turkey has repeatedly stated that the restrictions contained in paras.
(i) to (v) of the declaration "cannot be considered as 'reservations' in
the sense of international treaty law".
her declaration on 28 January 1987, as expressed at that time. It
recalls that the declaration was deposited after a friendly settlement
had been reached in proceedings brought against Turkey by France,
Norway, Denmark, Sweden and the Netherlands (Applications Nos.
9940-9944/82) and shortly before the expiry, on 1 February 1987, of the
period provided for the reporting procedure agreed in the settlement
(see Comm. Report 7.12.85, D.R. 44 pp. 31, 38f.). By making the
declaration under Article 25 (Art. 25) Turkey then manifested her will
to be bound by the Convention system also as regards individual
applications under Article 25 (Art. 25).
under Article 25 (Art. 25), but has added restrictions to its
declaration which are incompatible with the Convention, the main
intention of the State must prevail. The Commission finds Turkey's
present statement, accepting to be bound by its declaration under
Article 25 (Art. 25) only if all conditions contained therein are valid,
to be incompatible both with her above earlier statements and with the
object and purpose of the Convention. It therefore cannot prevail
within the framework of this instrument.
interpretative declaration by Switzerland did not satisfy two of the
requirements of Article 64 (Art. 64) of the Convention, "with the result
that it must be held to be invalid", found it at the same time "beyond
doubt that Switzerland is, and regards itself as, bound by the
Convention irrespective of the validity of the declaration" (Belilos
judgment of 29 April 1988, Eur. Court H.R., Series A no. 132 p. 28 para.
60). The Commission notes in this context a principle frequently applied
in the interpretation of legal instruments where parts are found to be
invalid. This rule is expressed in the Latin phrase "ut res magis
valeat quam pereat".
declaration of 28 January 1987, Turkey has validly, and with a temporal
limitation only, recognised the right of individual petition under
Article 25 (Art. 25) of the Convention.
loci, under Turkey's declaration under Article 25 (Art. 25) of the
Convention of 28 January 1987, to deal with the present applications.
d) The Commission's competence ratione temporis in relation to the
declaration made by Turkey under Article 25 (Art. 25) of the Convention
competent ratione temporis, given that the declaration only "extends to
allegations made in respect of facts, including judgments which are
based on such facts which have occurred subsequent to the date of
deposit of the present declaration".
with the complaints in Applications Nos. 15299/89 and 15300/89 which
concern violations of the Convention alleged to have been committed in
July 1989.
those complaints in Application 15318/89 which concern alleged
violations of the Convention in March 1989.
applicant alleges continuing violations of Article 8 (Art. 8) of the
Convention and Article 1 of Protocol No. 1 (P1-1).
continuing violation are made in view of the six months' rule under
Article 26 (Art. 26) of the Convention and concern in particular her
complaint under Article 1 of Protocol No. 1 (P1-1).
permanent state of affairs which is still continuing", the question of
the six months' rule "could only arise after the state of affairs has
ceased to exist" (De Becker case, Yearbook 2 pp. 214, 244; First Greek
case, second decision on admissibility, Collection 26 pp. 80, 110 =
Yearbook 11 pp. 730, 778).
(Art. 24) of the Convention, the Commission has stated the following in
respect of complaints of continuing violations of, inter alia, Article
1 of Protocol No. 1 (P1-1) by Turkey in the north of Cyprus (Dec.
"45. The Commission observes ... that, in admissibility
proceedings concerning State applications ..., it is not its task
even to carry out a preliminary examination of the merits since
the provisions of Article 27 para. (2) (Art. 27-2) ... apply,
according to their express terms, to individual applications
under Article 25 (Art. 25) only ...
It follows that the Commission cannot at this stage of
the proceedings examine whether the ... complaints of 'continuing
violations' of the Convention are or are not well-founded and
that the applicant Government's submission, that the six months'
rule is inapplicable because the application relates to such
'continuing violations', must be accepted.
rejected under Articles 26 and 27 para. (3) (Art. 26, 27-3) of
the Convention for non-observance of the six months' rule."
Commission must, before considering the six months' rule, examine the
effect of the temporal restriction contained in Turkey's declaration
under this Article.
specific terms of this restriction from examining applications
complaining of administrative decisions taken before, and confirmed by
judgments after, 28 January 1987 (see para. 11 above).
that it cannot, under the terms of Turkey's declaration under Article 25
(Art. 25) as limited by its temporal restriction, examine complaints of
continuing violations insofar as they relate to periods before 29
January 1987.
temporis under this declaration to deal with the third applicant's
complaints of continuing violations of Article 8 (Art. 8) of the
Convention and Article 1 of Protocol No. 1 between 20 July 1974 and 28
January 1987. It follows that, to this extent, Application No. 15318/89
is incompatible with the provisions of the Convention within the meaning
of Article 27 para. 2 (Art. 27-2).
II. As to whether the applications are manifestly ill-founded
a) Applications Nos. 15299/89 and 15300/89
and alleged ill-treatment and the proceedings in Northern Cyprus in July
Turkish military forces stationed in the northern part of Cyprus, or by
forces acting under their authority, and allege violations of Articles
1, 3, 5, 6, 7, 9 and 13 (Art. 1, 3, 5, 6, 7, 9, 13) of the Convention.
facts and state that Turkish forces did not intervene during the events
of 15 July 1989 and had nothing to do with those events.
complaints raise complex issues of law and fact which require an
examination of their merits. It follows that Applications Nos. 15299/89
and 15300/89 are not manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
b) Application No. 15318/89
1989 when trying to return to her property in the northern part of
Cyprus. She alleges violations of Articles 3 and 5 (Art. 3, 5) of the
Convention and continuing violations of Article 8 of the Convention and
Article 1 of Protocol No. 1 (P1-1).
of the facts.
Articles 3 and 5 (Art. 3, 5) of the Convention, concerning her detention
in March 1989, raise complex issues of law and fact which require an
examination of their merits. It follows that these complaints are not
manifestly ill-founded.
(Art. 8) of the Convention and Article 1 of Protocol No. 1, the
Commission has already found (paras. 59-60) that it is precluded by the
temporal restriction in Turkey's declaration from dealing with the third
applicant's complaints of continuing violations of the Convention
alleged to have occurred before 29 January 1987.
property in the north of Cyprus after 28 January 1987 raises an issue,
requiring an examination of the merits, under Article 1 of Protocol No.
1 (P1-1) to the Convention, but no issue under Article 8 (Art. 8) of the
Convention, as regards the third applicant's right to respect for her
home. The Commission notes that the applicant grew up in Kyrenia in
Northern Cyprus, but that in 1972 she married and moved with her husband
to Nicosia.
that she was refused access to her property in Northern Cyprus after 28
January 1987, is not manifestly ill-founded, if considered under Article
1 of Protocol No. 1 (P1-1) to the Convention.
For these reasons, the Commission, by a majority
15300/89 without prejudging the merits of the cases;
No. 15318/89 of continuing violations of Article 8
(Art. 8) of the Convention and Article 1 of Protocol
No. 1 alleged to have occurred before 29 January 1987;
(b) DECLARES ADMISSIBLE the remainder of this
application, without prejudging the merits of the
case.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)