(1993) 15 E.H.R.R. 509
*509
Cyprus v. Turkey
Application No. 8007/77
(Occupation of
territory)
Before the European
Commission of Human Rights and the Committee of Ministers
Eur Comm HR
4 October 1983
Resolution DH (92) 12 of
2 April 1992
Turkey had, on 20 July 1974, invaded Cyprus. It occupied about 40 per
cent. of Cyprus in the north of the Republic. Cyprus had made two previous and
largely successful applications under the Convention relating to Turkish
activities against Greek Cypriots both during and after the invasion up until
18 May 1976. The present application concerned continuing Turkish activity
against Greek Cypriots after that date. The Commission heard oral evidence and
received documentary evidence that many missing Greek Cypriots were still in
Turkish custody. The applicant government complained of a violation of the
right to liberty and security of person in Article 5 of the Convention. With
regard to the displacement of persons, in the two previous applications, the
Commission had found that the Turkish authorities had forced Greek Cypriots to
the south of Cyprus and prevented them from returning to their homes in the
north of the territory. Such persons were still being prevented from returning
to their northern homes by the Turkish army. This also resulted in the
separation of families, with some Greek Cypriots still residing in the north of
the territory. The applicant government complained of a violation of right to
respect for family life in Article 8 of the Convention. With regard to
deprivation of possessions, there was evidence, including Turkish legislation,
of the consolidation of earlier losses of property by Greek Cypriots and
continued looting and destruction of movables due to the Turkish occupation of
northern Cyprus. The applicant government complained of a violation of the
right to peaceful enjoyment of one's possessions in Article 1 of Protocol No. 1
to the Convention. The applicant government complained that there were no
adequate remedies for these violations under Turkish law. It contended also
that because the actions of the Turks were perpetrated against the Greek
Cypriots as opposed to the Turkish Cypriots, it discriminated against members
of one of the two communities in Cyprus in violation of Article 14 of the Convention.
The applicant government complained that the Turkish authorities had committed
acts of violence against Turkish Cypriots and deprived them of their property
by transferring them to Turkish occupied territory.
Held, by the Commission:
(1) Missing persons: by 16 votes to one that
Turkey had violated Article 5 of
the Convention;
(2) Displacement of persons and separation of
families: by 13 votes to two with two abstentions that Turkey had violated
Article 8 of the Convention with regard to the displacement of persons and by
14
*510 (3) Deprivation of
possessions: by 13 votes to one with three abstentions that Turkey had violated
Article 1 of Protocol No. 1;
(4) Absence of remedies: that there was nothing
to add to its finding in the decision on admissibility from the examination of
the merits of the complaint relating to absence of remedies in respect of the
violations of the Convention;
(5) Discrimination: that there was nothing to
add to its finding under Article
14 in the previous case [FN1] from the present case;
FN1 Apps. Nos. 6780/74 and 6950/75 at
para. 503.
(6) Position of Turkish Cypriots: that there was
not sufficient available evidence to come to any conclusion regarding this
complaint.
1. Deprivation of liberty: missing persons. (Art. 5).
On the basis of factual evidence showing three Greek Cypriots being held
in the custody of the respondent government and sufficient indications in an
indefinite number of other missing persons being so held after the close of the
Commission's previous investigations, there was a presumption of responsibility
of the respondent government for the fate of such persons. For nine years the
respondent government has failed to account for their fate. Such unaccounted
disappearance of detained persons was a serious violation of Article 5 which
requires that any deprivation of liberty must be subject to control. Further
the Commission could find no justification for detaining any of the missing
persons. Although it was possible that some may have died, there was not
sufficient evidence to make a finding as to the circumstances of any deaths.
[116]-[123]
Respect for private life: right to respect of one's home; separation
of families. (Art. 8).
2.
(a) The respondent government did not dispute
that its activities, including compulsory displacement of Greek Cypriots in
northern Cyprus to the South to enable compulsory exchange of Turkish Cypriots
for Greek Cypriots, and Turkish military presence along the 'green line'
separating northern Turkish-held Cyprus from the southern territory, physically
prevented the return to the northern areas of more than 170,000 displaced Greek
Cypriot refugees in the south. The continuance of this situation after the
close of the Commission's first two investigations (finding a violation of
Article 8 in this respect) was imputable to the respondent government and an
aggravating factor, constituting a continued violation of Article 8.
[130]-[131] and [133]- [135]
(b) In its previous investigations, the
Commission found that the forced displacement of Greek Cypriots in the north
resulted in the separation of families which was imputable to the respondent
government. The continued separation after the close of the earlier
investigations resulting from the respondent government's refusal to allow the
return of Greek Cypriots to their family members in the north was an
aggravating factor and a continuing violation of Article 8. [132] and [136]
3. Possessions and property: deprivation. (Art. 1 of Protocol 1).
In its previous investigations, the Commission had found that Turkish
Cypriots and Turks had occupied houses and land belonging to the displaced
Greek Cypriots in occupied northern Cyprus. It had also found *511 that looting and robbery on an
extensive scale and destruction of property by Turkish troops and Turkish
Cypriots had taken place. Since the close of those investigations, the
respondent government's legislation regulating distribution of property in the
north to Turkish Cypriots and Turks and further displacement of Greek Cypriots
in the north to the south depriving them of their property and possessions
(both of which were not disputed by the respondent government) consolidated the
earlier occupation of immovable property and taking of movable property, in
violation of Article 1 of Protocol 1. [148]-[155]
4. Local remedies rule.
The Commission had found in its decision on admissibility that the
remedies indicated by the respondent government could not be considered relevant
and sufficient for the purposes of the present application, which meant that it
was not necessary to investigate the merits of the complaint. [157]-[158]
5. Discrimination. (Art. 14).
In its previous investigations, the Commission had found that the
respondent government had discriminated against the Greek Cypriots, one of two
communities in Cyprus, on grounds of ethnic origin, race and religion by taking
action in violation of the Convention exclusively against them. Having found
further violations of the Convention in the present case directed exclusively
against the Greek Cypriots, it was not necessary to add anything to the
previous finding under Article 14. [161]-[162]
6.
With regard to the position of Turkish Cypriots, there was not sufficient
available evidence to come to any conclusions regarding violations by the
respondent government of Articles 3, 5, 6 and 8 of the Convention and Article 1
of Protocol 1 against such persons. [165]
Representation
Mr. L. G. Loucaides, Deputy Attorney-General
(Agent) for the applicant.
Professor Dr. Ilhan Unat (Agent) for the
respondent.
The following cases are referred to in the Commission's Report:
1. De Becker v. Belgium, Comm. Rep., Yearbook 2.
2. First Greek Case, Comm. Rep., Yearbook 11.
3. Apps. Nos. 6780/74 and 6950/75, Cyprus v. Turkey, Comm. Rep. 10 July
1976.
The following additional cases are referred to in the Separate Opinion
of Mr. G. Tenekides:
4. Engel v. Netherlands (No. 1) (A/22): 1 E.H.R.R. 647.
5. Ireland v. United Kingdom (A/25): 2 E.H.R.R. 25.
6. Lawless v. Ireland (No. 1) (A/1): 1 E.H.R.R. 1.
7. App. No. 343/57, Yearbook 2, p. 413.
8. App. No. 6315/73, 1 D & R. 73.
9. App. No. 788/76, 4 Yearbook, p. 116.
10. Corfu Channel Case, I.C.J., I.C.J. Reports 1949. *512
The Facts
I. The particular circumstances of the
case
A. Background
1. This Report deals with the third application [FN2] by Cyprus against
Turkey.
FN2 No. 8007/77.
2. The basic events which gave rise to the present situation in Cyprus,
to which this Report relates, are set out at Part I, Chapter 1, of the
Commission's Report of 10 July 1976 concerning the two previous applications
[FN3] by Cyprus against Turkey.
FN3 Nos. 6780/74 and 6950/75.
3. The Commission recalls that, in their first application, [FN4] the
applicant Government stated that Turkey had on 20 July 1974 invaded Cyprus,
until 30 July occupied a sizeable area in the north of the island, and on 14
August 1974 extended its occupation to about 40 per cent. of the territory of
the Republic. The applicant Government alleged violations of Articles 1, 2, 3,
4, 5, 6, 8, 13 and 17 of the Convention and Article 1 of Protocol No. 1 and of
Article 14 of the Convention in conjunction with the aforementioned Articles.
In their second application [FN5] the applicant Government contended that, by
acts unconnected with any military operation, Turkey had, since the
introduction of the first application, committed, and continued to commit,
further violations of the above Articles in the occupied territory.
FN4 No. 6780/74.
FN5 No. 6950/75.
4. In its Report of 10 July 1976 concerning Applications Nos. 6780/74
and 6950/75 the Commission concluded in particular [FN6] that Turkey had
violated Articles 2, 3, 5, 8, 13 and 14 of the Convention and Article 1 of
Protocol No. 1.
FN6 At pp. 165-167.
5. The Committee of Ministers of the Council of Europe, on 20 January
1979, adopted Resolution DH (79) 1 concerning the above-mentioned two previous
applications.
6. The following is an outline of the third application, as submitted by
the Republic of Cyprus to the European Commission of Human Rights under Article
24 of the European Convention on Human Rights, and of the procedure before the
Commission concerning this application. In the course of the procedure the
Commission has transmitted an Interim Report to the Committee of Ministers on 3
September 1980.
B. The substance of the present
application
7. The applicant Government contend that, since 18 May 1976, when the
Commission terminated its investigation in the first two *513 applications [FN7] by Cyprus against
Turkey, Turkey continues to commit breaches of Articles 1, 2, 3, 4, 5, 6, 8, 13
and 17 of the Convention, and of Articles 1 and 2 of Protocol No. 1 and Article
14 of the Convention in conjunction with the aforementioned Articles.
FN7 Nos. 6780/74 and 6950/75.
8. The applicant Government state that Turkey 'continues to occupy 40
per cent. of the territory of the Republic of Cyprus seized in consequence of
the invasion of Cyprus by Turkish troops on 20 July 1974.'
9. The violations complained of in the applications are described as:
-- detention or murder of about 2,000 missing
Greek Cypriots;
-- displacement of persons from their homes and
land (refusal to allow the return of over 170,000 refugees and eviction of
Greek Cypriots from the occupied areas through inhuman methods);
-- separation of families;
-- looting and robbery of movables belonging to
Greek Cypriots;
-- seizure, appropriation, exploitation,
occupation, distribution and destruction of movable and immovable properties of
Greek Cypriots.
10. Details of these complaints are reproduced in the Commission's
decision on the admissibility of the application, which is annexed to this
Report.
11. The applicant Government also complains of the 'oppression of
Turkish Cypriots in the occupied areas.' [FN8]
FN8 For details see the 'Particulars of
the Application.'
1. ADMISSIBILITY
13. The application was introduced on 6 September 1977. Particulars of
the application were filed on 4 November 1977.
14. The respondent Government, in its observations of 11 January 1978 on
the admissibility of the application, requested the Commission to declare the
application inadmissible on the following grounds:
-- that the applicants were not entitled to
represent the State of Cyprus and accordingly had no standing before the
Commission as applicants under Article 24 of the Convention;
-- that Turkey had no jurisdiction over the
territory of the Turkish Federated State of Cyprus--the area where the alleged
acts were claimed to have been committed;
-- that domestic remedies had not been
exhausted, as required by Article 26 of the Convention, and that the time-limit
of six months, laid down in Article 26, for bringing a case before the
Commission had not been observed;
-- that the application was substantially the
same as the two previous applications [FN9]; and *514
-- that the application was abusive.
FN9 Nos. 6780/74 and 6950/75--Cf. para. 2
above.
15. At the oral hearing before the Commission on 5 and 6 July 1978, the
respondent Government also maintained that the Commission was precluded from
dealing with the present application by the decision of the Committee of
Ministers of 21 October 1977 concerning the two previous applications.
16. The applicant Government contested all these grounds.
17. In its decision of 10 July 1978 on the admissibility
of the application, the Commission found:
-- that the application had been validly
introduced on behalf of the Republic of Cyprus;
-- that Turkey's jurisdiction in 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,
could not be excluded on the ground that jurisdiction in that area was
allegedly exercised by the ' Turkish Federated State of Cyprus';
-- that the applications could not be rejected
for non-exhaustion of domestic remedies or for non-observance of the six months
rule;
-- that the application could not be declared
inadmissible as being the same as the previous Applications Nos. 6780/74 and
6950/75;
-- that the Commission was not precluded from dealing
with the present application by the Committee of Ministers' decision of 21
October 1977 concerning the two previous applications; and
-- that the Commission could not accept the
objection that the application was abusive.
2. Merits [FN10]
FN10 A fuller account of the Parties'
procedural submissions in 1979 and 1980 is given in the 'Interim Report of the
Commission on the Present State of the Proceedings' of 12 July 1980.
A. 1978-1979
18. The applicant Government's observations on the merits of the
application were filed under cover of the Government's letter of 17 January
1979.
19. The respondent Government, in their letter of 9 May 1979, stated
[FN11]:
There has been no change in the Turkish
Government's view that the application in question was not lodged by a
competent authority of the Republic of Cyprus. The Turkish Government therefore
continues to consider that the Greek-Cypriot Administration does not have the
quality of an applicant and that at all events its purported capacity to
represent the State of Cyprus is not binding on Turkey.
FN11 Original French. English translation
by the Council of Europe.
*515 For these reasons my
Government much regrets that it is unable to take part in the proceedings on
the merits of the application in question.
...
In the same communication the respondent Government submitted that
the Committee of Ministers of the
Council of Europe, in Resolution DH (79) 1 concerning Applications Nos. 6780/74
and 6950/75, had 'agreed that this Resolution should be considered as a
decision putting an end to the examination of the case of Cyprus v. Turkey.'
20. The applicant Government, in a communication of 2 August 1979,
stated the expectation 'that the Commission will adopt the normal procedure for
the examination of the merits of the above application as in the case of
Applications Nos. 6780/74 and 6950/75.'
21. The Commission decided on 5 October 1979 that the Committee of
Ministers' Resolution DH (79) 1 concerning Applications Nos. 6870/74 and
6950/75 does not in any way prevent it from continuing its examination of the
present application. It further recalled that, by its decision of 10 July 1978,
the present application was declared admissible; that such a decision is
conclusive for the Parties; and that, in the Convention, the High Contracting
Parties have accepted obligations under Article 28(a) in relation to
proceedings before the Commission.
The Commission called on the parties accordingly to assist it in the
performance of its task under the Convention and to submit such suggestions as
they wished to make concerning its further examination of this case. In this
connection, the parties should indicate 'whether they accept that their
memoranda, submitted to the Committee of Ministers in the previous
applications, may be considered, in so far as they are relevant, as forming
part of the present case and, further, whether they consider that any of the
particulars of the present application requires a Commission visit to Cyprus.'
22. The applicant Government, in their communication of 21 November
1979, referred to the suggestions made in paras. 88 to 90 of their observations
on the merits, requesting the Commission, in an investigation, to hear
witnesses, inspect localities in Cyprus and Turkey, and to take other relevant
evidence.
The applicant Government added that, during the investigation, it 'may
ask the Commission to take into consideration in relation to some matters in
issue [FN12] the "Memorial" presented by the respondent Government
before the Committee of Ministers in respect of Applications Nos. 6780/74 and
6950/75.' However, in a further communication of 28 December 1979 the applicant
Government argued that the above document 'submitted to the Committee of Ministers
in the previous applications cannot, under the terms of the *516
Convention, become the subject of consideration by the Commission in the
present proceedings.'
FN12 E.g., the responsibility of the
respondent Government for certain continuing violations.
The Commission, noting that the said Memorial, submitted to the
Committee of Ministers, had not been communicated to it, did not, in the
absence of any indication by the respondent Government that they wished to rely
on this document in the present proceedings, find it appropriate to take it
into consideration.
23. The respondent Government, in a letter of 24 December 1979, [FN13]
reiterated its view 'that Application No. 8007/77 was not lodged with the
Commission by a competent authority of the Republic of Cyprus; that, in other
words, the Greek Cypriot Administration does not have the quality of an
applicant and that its purported capacity alone to represent the State of
Cyprus is at all events not effective as against Turkey, given that no jurisdiction
can be competent to oblige the Turkish Government to recognise against its will
the legitimacy of a "Government" which has usurped the State powers
in violation of the Constitution of which Turkey is a guarantor. For these
reasons (the) Government much regrets that it is unable to take part in the
proceedings on the merits before the Commission.'
FN13 Original French. English translation
by the Council of Europe.
24. The applicant Government, in a communication of 12 February 1980,
submitted 'that the stand taken by the respondent Government does not offer any
ground for not proceeding with the examination of the merits of the case.'
The applicant Government's 'Supplementary material regarding facts set
out in the Particulars and the Observations on the merits of the application'
arrived on 5 May 1980.
b.INTERIM REPORT AND DECISION OF THE COMMITTEE OF MINISTERS
25. On 13 May 1980 the Commission decided to inform the parties that it
considered sending an interim report to the Committee of Ministers containing
an account of the state of proceedings, an expression of the opinion of the
Commission that Turkey has failed to respect its obligations under Article 28,
and a request that the Committee of Ministers urge Turkey to meet those obligations.
The parties were invited to submit their observations on this course of
action.
26. The applicant Government submitted observations in its communication
of 25 June 1980.
27. The respondent Government, in a letter of 25 June 1980, stated that
' views on the Application No. 8007/77 are already set out in (the) letter of
24 December 1979.'
28. The 'Interim Report of the Commission on the Present State of the
Proceedings' was adopted on 12 July 1980 by 17 votes against one.
In the Report the Commission expressed the opinion 'that, by its refusal
to participate in the Commission's examination of the merits of *517 the present application, Turkey has so
far failed to respect its obligations under Article 28 of the Convention.'
[FN14]
FN14 Para. 45 of the Interim Report.
The Commission requested the Committee of Ministers 'to urge Turkey, as
a High Contracting Party to the European Convention on Human Rights, to meet
its obligations under this Convention and accordingly to participate in the
Commission's examination of the merits of the present application, as required
by Article 28.' [FN15]
FN15 Para. 48 of the Interim Report.
The Interim Report was transmitted to the Committee of Ministers on 3
September 1980.
29. By letter of 4 December 1980 the Chairman of the Committee of
Ministers informed the President of the Commission of the Decision
adopted by the Committee during the 326th meeting of the Ministers' Deputies.
[FN16] In that decision the Committee, having taken cognisance of the
Commission's Interim Report, 'Recalls the obligations imposed on all the
Contracting Parties by Article 28 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms.'
FN16 24 November to 4 December 1980.
c. 1980-1983
30. On 12 December 1980 the Commission, basing itself on the above
decision of the Committee of Ministers, decided that the respondent Government
should again be invited to submit its observations on the merits of the
application. A new time-limit, expiring on 2 March 1981, was fixed for that
purpose.
31. The respondent Government replied on 27 February 1981 that, for the
reasons given in previous letters, it continued 'to find it impossible to
participate in the procedure as to the merits before the Commission. [FN17]
FN17 Original French. English translation
provided by the Council of Europe.
32. The Commission, pursuing its examination of the case notwithstanding
the respondent Government's refusal to participate, decided on 16 March 1981 to
bring its above correspondence with the respondent Government to the attention
of the Committee of Ministers and to inform the Committee that it would
continue its proceedings.
The Commission further decided that the applicant Government should be invited
to submit:
-- certain particulars of their complaint
concerning missing persons, [FN18]
and
-- observations on the question in what way the
Government have a valid legal interest in a determination of their remaining
complaints in the present application in view of the *518 fact that these complaints relate
substantially to a situation in Cyprus which has already been the subject of
the Commission's Report in two previous applications.
FN18 A more detailed account of the
proceedings relating to this complaint is given below (paras. 87-95).
33. The applicant Government's particulars and observations arrived on
28 July 1981. Further particulars and observations were filed under cover of
the Government's letters of 22 January and 8 February, and on 5 March 1982,
respectively.
34. On 8 March 1982 the Commission decided that an investigation should
be undertaken, into the complaint concerning missing persons, by obtaining oral
evidence in some of the cases submitted by the applicant Government.
It also decided that the respondent Government should be invited to
submit such observations as it might wish to make in reply to the applicant
Government's above submissions.
35. The respondent Government replied on 22 April 1982 [FN19] that it
continued 'to find it impossible to participate in the procedure as to the
merits before the Commission.' They did not therefore propose 'to submit any
observations in reply to those of the applicant.'
FN19 Original French. English translation
provided by the Council of Europe.
36. The applicant Government's further submissions of 17 September,
concerning measures taken in respect of possessions of Greek Cypriots in the
North of Cyprus, arrived on 20 September 1982.
37. On the same day four delegated members of the Commission heard 13
witnesses in five cases of missing persons. The hearing was held in Strasbourg,
in the absence of the parties.
38. On 6 October 1982 the Commission decided that the parties should be
invited:
-- to submit comprehensive memoranda setting out
their final conclusions, and
-- to state their oral conclusions at a hearing
before the Commission.
39. The respondent Government, in a letter of 28 January 1983, stated
that it still finds it impossible to participate in the procedure as to the
merits before the Commission; it was excluded that it would file observations
or be represented at the hearing.
40. The applicant Government's final written submissions arrived on 14
February 1983.
41. At the hearing on 7 March 1983 the applicant Government stated their
oral conclusions on the merits of the application. The respondent Government
were not represented.
42. Following its decision on the admissibility the Commission, acting
in accordance with Article 28(b) of the Convention, placed itself at the
parties' disposal with a view to securing a friendly settlement of the matter.
In view, however, of the respondent Government's refusal to participate in the
proceedings under Article 28, the Commission *519 finds no basis on which it could
usefully pursue its efforts to reach such a settlement.
Part I-- General
A. Chapter 1--Application of Arts. 28
and 31 of the Convention in the circumstances of the present case
48. The Commission, noting the respondent Government's refusal to
participate in the proceedings provided for by Article 28 of the Convention,
[FN20] confirms the following observations made at paragraphs 38 to 44 of its Interim
Report. [FN21]
38. The respondent Government, after having taken
part, together with the applicant Government, in the Commission's proceedings
on the admissibility of the application, refuses to participate in the present
proceedings on the merits, particularly on the ground already advanced at the
stage of admissibility that the application was not lodged with the Commission
by a competent authority of the Republic of Cyprus.
FN20 See paras. 19, 23, 27, 31, 35, 39 and
41 in fine above.
FN21 Cf. para. 28 above.
39. The Commission recalls that, as stated in the
Preamble, the High Contracting Parties have in the Convention taken 'the first
steps for the collective enforcement' of the rights defined in Section I of the
Convention and that, under Article 19, they have set up the Commission and the
Court for this purpose. A system of collective protection of human rights, as
established by the Convention, requires, in order to be effective, the
co-operation with the Commission of all High Contracting States concerned in a
case. This is reflected in Article 28 para. (a) of the Convention, which
expressly obliges the parties to an admitted application to 'furnish all
necessary facilities' for the Commission's investigation.
40. The Commission cannot accept the respondent
Government's statement, that it does not recognise the applicant Government as
the Government of Cyprus, as a ground which could absolve Turkey from its
obligation to co-operate with the Commission in the present proceedings. The
Commission had already stated in its decision on the admissibility that the
Convention establishes a system of collective enforcement and that an
application brought under Article 24 does not of itself envisage any direct
rights or obligations between the High Contracting Parties concerned.
41. The respondent Government maintains that
Turkey cannot be obliged to recognise the applicant Government as representing
the Republic of Cyprus. They have also submitted that Article 28 of the
Convention, which governs the procedure on the merits of an admitted
application, requires direct contacts between the parties concerned.
42. The Commission observes, first, that its
decision admitting the present application is conclusive on the Parties and,
secondly, that the question of the recognition of the applicant Government by the
respondent Government does not arise at the proceedings on the merits.
Commission proceedings under Article 28 do not necessitate direct contacts
between the parties concerned.
43. The Commission considers further that to
accept that a Government may void 'collective enforcement' of the Convention
under Article 24, by asserting that they do not recognise the Government of the
applicant State, would defeat the purpose of the Convention.
*520 44. The Commission
finally notes that the respondent Government, while not recognising the
applicant Government as Government of Cyprus, nevertheless participated as a
Party concerned, under Article 32, and submitted a memorandum, in the Committee
of Ministers' examination of the merits of the two previous applications [FN22]
by Cyprus against Turkey. Those proceedings were, like the present one,
governed by the Convention.
FN22 Nos. 6780/74 and 6950/75.
49. The Commission also confirms its opinion, stated at paragraph 45 of
the Interim Report 'that, by its refusal to participate in the Commission's
examination of the merits of the present application, Turkey has so far failed
to respect its obligations under Article 28 of the Convention' and it recalls
that it requested the Committee of Ministers 'to urge Turkey, as a High
Contracting Party to the European Convention on Human Rights, to meet its
obligations under this Convention and accordingly to participate in the
Commission's examination of the merits of the present application, as required
by Article 28.' [FN23]
FN23 Para. 48 of the Interim Report.
50. The Commission notes the Decision
adopted by the Committee of Ministers during the 326th meeting of the
Ministers' Deputies [FN24] in which the Committee, having taken cognisance of
the Commission's Interim Report, 'Recalls the obligations imposed on all the
Contracting Parties by Article 28 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms.' [FN25]
FN24 24 November to 4 December 1980.
FN25 Cf. para. 29 above.
51. The respondent Government nevertheless did not comply with the
Commission's subsequent invitations to file observations and to appear at a
hearing. [FN26]
FN26 Cf. para. 30, 31, 34, 35, 38, 39 and
41 in fine above.
52. The Commission has already stated in the two previous applications
by Cyprus against Turkey that a respondent party's failure to co-operate in
proceedings under Article 28 does not prevent it from completing, as far as
possible, its examination of the application and from making a Report to the
Committee of Ministers under Article 31 of the Convention. [FN27] In those
applications the Commission, in the absence of any submissions by the
respondent Government on the merits of the complaints, accordingly 'proceeded
with its establishment of the facts on the basis of the material before it.'
[FN28]
FN27 Report of 10 July 1976, para. 55.
FN28 Ibidem,
para. 79.
53. In the present case the Commission, adopting the same procedure, has
again based its Report on the material before it, including the submissions
made by the Parties on the admissibility of the application. In this connection
it has also considered Annex I to the respondent Government's observations on
the admissibility, a document entitled 'Observations by Mr. R. R. Denktash,
President of the Turkish Federated State of Cyprus.' The Commission's notice of
*521 this
document does not imply any view on the position of Mr. Denktash, other than
that his observations, as reproduced therein, are considered as forming part of
those of the respondent Government. [FN29]
FN29 Cf. also para. 63 below.
B. Chapter 2--Legal interest
54. The respondent Government, in its observations on the admissibility,
objected that the present application 'deals with the same alleged acts and
events as those already covered in Applications Nos. 6780/74 and 6950/75,'
which alleged 'the detention or death of about 2,000 missing persons, the
displacement of persons, the separation of families and various infringements
of Greek Cypriots' property rights.' According to the Government the same
alleged acts and events were covered by the Commission's Report in the previous
applications. [FN30]
FN30 Cf. p. 109 below.
55. The Commission did not accept this objection as a ground for
inadmissibility: in its decision admitting the present application, it found
that it was not 'authorised under the Convention to declare inadmissible an
application filed under Article 24 by a High Contracting Party on the ground
that it is substantially the same as a previous inter-State application. For so
doing would, in the Commission's view, imply an examination, though
preliminary, of the merits of the application--an examination which, as already
stated, must in inter-State cases be entirely reserved for the post-
admissibility stage. In any event, the present application is not identical
with the previous cases.' [FN31]
FN31 See p. 157 below.
56. It follows from the above terms of its decision on the admissibility
that the Commission, having reached the stage of the merits, was still
confronted with the question whether and to what extent the present application
is substantially the same as the two previous applications. In the Commission's
view it cannot be its task again to investigate complaints already examined in
a previous case. Article 27(1)(b) of the Convention, while by its terms limited
to applications under Article 25 and therefore not authorising the Commission
to examine at the admissibility stage whether an inter-State application is
substantially the same as a previous one, reflects a basic legal principle of
procedure which in inter-State cases arises during the examination of the
merits. A State cannot, except in specific circumstances such as set out
hereafter in paragraphs 58 and 62, claim an interest to have new findings made
where the Commission has already adopted a Report under Article 31 of the
Convention concerning the same matter.
57. In its consideration of this issue in the present case the
Commission has distinguished between the complaint concerning missing persons
and the remaining complaints.
*522 58. The Commission noted that the issue
of missing persons in the present case is substantially the
same as in the previous applications, in that it concerns the fate of some 2,000
persons, both military personnel and civilians, who according to the applicant
Government 'were brought under the actual authority and responsibility of the
Turkish army in the course of the ... military action (of 1974) or during the
military occupation of the north of Cyprus (and) are still missing.' [FN32] The
Commission recalled, however, that the evidence before it in the previous case
did not allow 'a definitive finding with regard to the fate of Greek Cypriots
declared to be missing' [FN33] and, in view of new relevant information
indicated in the present application, [FN34] it decided to reconsider this
issue. [FN35]
FN32 Particulars of the application,
reproduced in the decision on the admissibility, p. 87 below.
FN33 Report of 10 July 1976, para. 347.
FN34 See para. 72 below.
FN35 See para. 82 below.
59. In respect of the remaining complaints,
the Commission invited the applicant Government to indicate in what way a valid
legal interest in a determination in the present proceedings in view of the
fact that these complaints relate substantially to a situation in Cyprus which
has already been the subject of the Commission's Report in the two previous
applications. [FN36]
FN36 Decision of 16 March 1981.
60. The applicant Government stated that the public order of Europe had
been disturbed by the flagrant violations of the Convention found by the
Commission, in its Report on the two previous applications, to have been
committed by Turkey. The Committee of Ministers had not in that case performed
its duty under Article 32 of the Convention and Turkey continued her policy of
systematic violation of the Convention. Cyprus' legal interest could therefore
not be disputed in the present application. [FN37]
FN37 Verbatim record of the hearing of 7
March 1983, pp. 1-2.
61. The respondent Government, in its letter of 22 April 1982, referred
to their observations on the admissibility of the application which in their
view established the lack of any legal interest.
62. The Commission, considering the specific nature of the complaints
and noting the terms of Resolution DH (79) 1 of the Committee of Ministers,
found that the applicant Government, in the particular circumstances described
by them, had a legal interest in the determination of their remaining
complaints. It has accordingly considered these complaints at Part III of this
Report.
C. Chapter 3--Responsibility of Turkey
under the Convention
63. In its decision on the admissibility of the present application, the
Commission, confirming its finding in the previous case, stated that the
Turkish armed forces in Cyprus brought any persons or property there 'within
the jurisdiction' of Turkey, in the sense of Article 1 of the Convention *523
, to the extent that they exercised control over such persons or property. The
Commission further observed that Cyprus had, since 1974, been prevented from
exercising its jurisdiction in the northern part of its territory by the
presence there of armed forces of Turkey; that the recognition by Turkey of the
Turkish Cypriot administration in that area as ' Turkish Federated State of
Cyprus' did not, according to the respondent Government's own submissions,
affect the continuing existence of the Republic of Cyprus as a single State;
and that, consequently, the 'Turkish Federated State of Cyprus' could not be
regarded as an entity which exercised ' jurisdiction,' within the meaning of
Article 1 of the Convention, over any part of Cyprus. The Commission concluded
that Turkey's jurisdiction in the north of the Republic of Cyprus, existing by
reason of the presence of her armed forces there which prevented exercise of
jurisdiction by the applicant Government, could not be excluded on the ground
that jurisdiction in that area was allegedly exercised by the 'Turkish
Federated State of Cyprus.'
64. The Commission does not find it necessary to add anything to its
above observations as regards the imputability to Turkey of any particular
violation of the Convention by her own armed forces which may be established in
Parts II and III of this report. As to violations of the Convention by acts of
the Turkish Cypriot administration, the Commission considers that, as submitted
by the applicant Government, [FN38] the existence of some kind of civil
administration in northern Cyprus does not exclude Turkish responsibility given
the degree of control which Turkey has in northern Cyprus. In particular, the
Commission is satisfied that fundamental changes of the conditions in northern
Cyprus cannot be decided without the express or tacit approval of the Turkish
authorities.
FN38 Verbatim record of the hearing of 7
March 1983, p. 32.
65. As in the previous case, [FN39] the Commission finally observes in
this connection that the substance of the present application required it to
confine its investigation essentially to acts and incidents for which Turkey,
as a High Contracting Party, might be held responsible. Alleged violations of
the Convention by Cyprus could be taken into account as such only if Turkey or
another High Contracting Party had raised them in an application to the
Commission under Article 24 of the Convention.
FN39 Report of 10 July 1976, para. 85.
D. Chapter 4--Article 15 of the
Convention
66. The Commission has in the previous case [FN40] considered whether
there was a basis for applying Article 15 of the Convention:
-- with regard to the northern area of Cyprus,
and/or
-- with regard to provinces of Turkey where
Greek Cypriots were detained. *524
FN40 Report of 10 July 1976, para. 524.
67. The Commission then:
-- concluded that it could not, in the absence
of some formal and public act of derogation by Turkey, apply Article 15 of the
Convention to measures taken by Turkey with regard to persons or property in
the north of Cyprus [FN41];
-- considered that certain communications made
by Turkey under Article 15 [FN42] with regard to certain provinces including
the Adana region, in which martial law was declared, could not, within the
conditions prescribed in Article 15, be extended to cover the treatment of
persons brought into Turkey from the northern area of Cyprus. The Commission
concluded that it could not apply Article 15 to the treatment by Turkey of
Greek Cypriot prisoners brought to and detained in Turkey.
FN41 Ibidem,
para. 528.
FN42 Ibidem,
paras. 529-531.
68. The Commission confirms these conclusions in the present case.
Part II-- Missing Persons
A. Chapter 1--Submissions of the
Parties
1. Applicant Government
69.
In their 'Particulars of the Application,' the applicant Government
submitted that about
2,000 Greek Cypriots (a considerable number of
them being civilians) who were last seen alive in the occupied areas of Cyprus
after the invasion and who were brought under the actual authority and
responsibility of the Turkish army in the course of the aforesaid military
action or during the military occupation of the north of Cyprus are still
missing. Turkey continues to prevent through its forces the carrying out of
investigations in the said areas and in Turkey by the international
humanitarian organisations such as the International Committee of the Red Cross
concerning the fate of these persons. This continuing negative attitude of
Turkey on a purely humanitarian problem coupled with indisputable evidence that
many missing persons were arrested, after the fighting was over, by the Turkish
army or armed Turks acting under the directions of the Turkish army, and
detained in prisons in Turkey or in Cyprus, is only compatible with the responsibility
of Turkey for violations of Articles 2 or 4 and in any case Article 5 of the
Convention in respect of all the missing persons in question.
70. For further particulars, the applicant Government referred to a
document entitled 'the Case of the Missing Cypriots' which was published by the
' Pancyprian Committee of Parents and Relatives of Undeclared POWs and Missing
Persons' in 1977. They added that 'Turkey in various international fora, e.g.
Third Committee of UN General Assembly, [FN43] continued to decline proposals
of the Cyprus Government for investigations by an independent body for the
tracing *525
of the missing persons in question.' The applicant Government referred
in this connection to various reports of the UN Secretary General. They observed
that the establishment of the joint committee proposed to be formed with the
help of the UN Special Representative in Cyprus 'is delayed because of the lack
of co-operation on the part of the Turkish side.' Turkey's responsibility on
this subject was of a continuing nature.
FN43 Meeting of 24 November 1976.
71. In their observations on the merits
of the application, the applicant Government stated that Turkey voted against
the Resolution adopted by the Third Committee of the UN Assembly on 12 December,
and endorsed by the General Assembly in its Resolution No. 32/128 of 20
December 1978, which urged the
establishment of an Investigatory Body under the
chairmanship of a Representative of the Secretary General with the co-operation
of the International Committee of the Red Cross, which will be in a position to
function impartially, effectively and speedily so as to resolve the problem (of
the missing persons) without undue delay; the Representative of the Secretary
General shall be empowered, in case of disagreement, to reach a binding
independent opinion which shall be implemented.
Turkey objected on the ground that the Resolution established a
compulsory arbitration against the explicit dissent of one of the parties and
contrary to international practice. She maintained her negative attitude in
respect of the implementation of the above Resolution of the Third Committee
and the General Assembly. [FN44]
FN44 The applicant Government here
referred to para. 42 of the Report of the UN Secretary General of 1 December
1978--S/12946.
72. The applicant Government further stated that they had received
information from various sources, such as Turkish Cypriots, Turks from Turkey
and other foreigners 'that a number of missing Greek Cypriots exceeding 200
have been seen alive in detention in Turkey. This information relates to the
period covered by the present application and the persons in question were seen
kept in detention in small groups in various areas of Turkey at different
times.' Thus it was alleged that, e.g. 19 detainees had been seen at Sinop in
May 1977.
73. Under cover of their letter of 24 July 1981
the applicant Government submitted certain further particulars concerning the
issue of missing persons, observing that they had more material, and--as
Appendix B--'supplementary material' concerning persons who, according to the
Government, had been seen alive in detention in Turkey after 18 May 1976.
[FN45]
FN45 The date on which the Commission had
closed its investigation in the previous applications.
74. Under cover of their letter of 22 January 1982
the applicant Government submitted:
-- a 'List of Missing Persons as a Result of the
Turkish Invasion in Cyprus' containing the names and other particulars of 1,619
persons; *526
-- 50 statements of 'illustrative cases of
missing persons containing new facts/evidence.'
Complaints
75. In support of their allegation that Turkey continues to violate Article
5 of the Convention the applicant Government submitted in its
observations on the merits of the application:
(a) The Commission has already found in respect
of the question of the missing persons that 'there is a presumption of Turkish
responsibility for the fate of persons shown to have been in Turkish custody. (It)
refrained at the time from making any finding regarding the question of
imputability to Turkey of any particular violation of the Convention. [FN46]
The applicant Government invites now the Commission to draw conclusions as to
the particular violations imputable to the respondent Government bearing in
mind the findings of the Commission as to the Turkish custody of those missing
and the additional relevant information presented by the present application.
FN46 See para. 351 of the Report of the
Commission in Applications Nos. 6780/74 and 6950/74.
(b) It is submitted that Turkey should in any
case be found responsible for continuing detention of the missing persons in
question in view of the uncontradicted evidence that these persons have been in
Turkish custody at some stage after the invasion. In the absence of proof to
the effect that these persons were killed or died in the meantime the
respondent Government should be found, at least, responsible for its detention
contrary to Article 5 of the Convention. In this respect it is respectfully
submitted that so long as there is evidence of the fact that the missing
persons have been in Turkish custody it would be unreasonable to absolve Turkey
from responsibility under the Convention simply because she declines to provide
any information as to their fate.
(c) It is further submitted that the evidence in
question raises a presumption of detention of the missing persons by the
respondent Government which, if rebutted, is legally sufficient to establish
responsibility on the part of the respondent Government for 'continuing
violations' of Article 5 in respect of all these persons within the meaning of
the Commission's case law. [FN47]
FN47 De Becker v. Belgium, Yearbook 2, pp.
214, 244; First Greek Case, 2nd Decision on admissibility, Collection of
Decisions, 26, pp. 80, 110, Yearbook 11, pp. 730, 778.
76. At the hearing before the Commission on 7 March 1983 [FN48] the
applicant Government stated, 'In the final analysis our case now is a case of
continuing deprivation of liberty under Article 5 of the Convention.'
FN48 Verbatim record p. 90.
77. In their observations on the merits of the application the applicant
Government also invoked Article 2 of the Convention,
arguing
that there will be a question of responsibility
of Turkey for violations of (this Article) if during the investigation of the
case it appears that any missing persons were in fact killed. The violations in
question are imputable to Turkey on the ground that they were the direct result
of the military activities of the Turkish forces in the occupied area.
*527 78. At the hearing before the Commission
on 7 March 1983 [FN49] the applicant Government stated:
In the observations on the merits we gave,
alternatively, two Articles, Article 5 and Article 2. That was because the case
was pending and the investigation on this subject had not been completed. There
was always the eventuality that during the investigations we might find out
that some of the missing persons were actually killed by the respondent
Government. But at the latest stage ... it was clear that, in the absence of
any evidence or any allegation on the part of the respondent Government to the
effect that any of these missing persons had in fact been killed, the only
remaining violation was the one of continuing detention.
FN49 Verbatim record p. 89.
2. Respondent Government
79. The respondent Government, in its observations on the
admissibility, stated that
the allegation concerning missing persons has
several times been the subject of negotiations between officials of the Turkish
Federated State of Cyprus and those of the Greek Cypriot Administration--
President Rauf R. Denktash and the late Archbishop Makarios also discussed this
matter together on two occasions--in the presence, moreover, of Dr. Kurt
Waldheim, the Secretary General of the United Nations, or his Special
Representative. Furthermore, the Secretary General of the United Nations
mentions this in his report of 25 February 1977 in the following terms:
The
missing persons issue was discussed during a meeting which I held in Nicosia on
12 February 1977 with His Beautitude Archbishop Makarios and His Excellency Mr.
Denktash. Agreement was reached to set up a new investigatory machinery
covering missing persons of both communities. The special representative of the
Secretary General is currently discussing the relevant details with both
communities.
80. At Annex I to their observations on the
admissibility, [FN50] the respondent Government stated in particular that, on
several occasions during the inter-communal negotiations, the discussions were
interrupted for unannounced visits to places where, according to Mr. Clerides,
[FN51] Greek Cypriot prisoners were to be found, but during those visits no
such prisoners were found; that, according to a press communiquŽ of the
International Committee of the Red Cross (ICRC) of 27 February 1976, 'the Greek
Cypriot prisoners and Greeks detained in Turkey were repatriated under the
supervision of the ICRC delegates and released in the zone controlled by the
Greek Cypriots'; and that a representative of the ICRC confirmed on 5 March
1976 that all prisoners-of-war transferred to Turkey had been returned to the
Greek Cypriots during the exchanges of prisoners.
FN50 Cf. para. 53 above.
FN51 The Greek Cypriot Interlocuter at the
inter-communal talks at the time.
81. The respondent Government did not participate in the proceedings on
the merits.
However, in their letter of 22 April 1982
they submitted that *528
(It) is appropriate to mention that in
accordance with the Committee of Ministers' Resolution DH (79) 1 the question
of missing persons is dealt with in the intercommunal talks which provide an adequate
framework for resolving the dispute. A tripartite missing persons' committee
has been set up to this end by an agreement reached between the representatives
of the two Cypriot communities on 22 April 1981 as the sole and exclusive forum
in which to examine the question of everyone who has disappeared in Cyprus.
This committee is currently working independently, with the participation of
the Committee of the International Red Cross.
B. Chapter 2--Investigation by the
Commission
1. Preliminary observations
82. The Commission recalls that the issue of missing persons was briefly
referred to in Part II, Chapter 2, of its Report on Applications Nos.
6780/74 and 6950/75 under the heading 'Deprivation of
liberty' and dealt with in more detail in Part III, Chapter 3, under the heading
'Deprivation of life.'
83. In the chapter 'Deprivation of liberty' the Commission examining the
issue under Article 5 of the Convention, stated [FN52]
that it had 'not been able to find out whether undeclared Greek Cypriot
prisoners are still in Turkish custody, as alleged by the applicant
Government.'
FN52 At para. 306.
84. In its examination of the issue of missing persons under Article
2 of the Convention, in the chapter 'Deprivation of
life,' the Commission found [FN53] that the evidence then before it did not
allow 'a definite finding with regard to the fate of Greek Cypriots declared to
be missing. This is partly due to the fact that the Commission's Delegation was
refused access to the northern part of Cyprus and to places in Turkey where Greek
Cypriot prisoners were or had been detained.' It appeared, however, from the
evidence:
-- that it was widely accepted that 'a
considerable number of Cypriots' were still 'missing as a result of armed
conflict in Cyprus'; i.e. between Turkey and Cyprus; and
-- that a number of persons declared to be
missing had been identified as Greek Cypriots taken prisoner by the Turkish
army. [FN54]
FN53 At para. 347.
FN54 Para. 349 of the Report.
The Commission then considered [FN55] that there was 'a presumption of
Turkish responsibility for the fate of persons shown to have been in Turkish
custody.' However, on the basis of the material before it, the Commission was '
unable to ascertain whether, and under what circumstances, Greek Cypriot prisoners
declared to be missing have been deprived of their life.'
FN55 At para. 351.
*529 85. The Commission notes that the
Committee of Ministers' Resolution DH (79) 1
of 20 January 1979 concerning the two previous applications contains no
specific finding with regard to the issue of missing persons.
86. The Commission further recalls its statements [FN56] concerning the
respondent Government's submission that the applicant Government's complaint
relating to missing persons in the present case
merely repeats a complaint already covered by the Commission's Report in the
first case.
FN56 At paras. 54 to 58 above.
2. Proceedings in the present case
87. On 16 March 1981 the Commission, noting the applicant Government's
statement [FN57] that they had received new information concerning missing
persons, decided that the Government should be invited to submit:
-- particulars, including evidence, concerning
missing persons who had been seen alive in detention in Turkey after 18 May
1976; and
-- any other relevant particulars, including
evidence, concerning the issue of missing persons and constituting either new
facts which had arisen after 18 May 1976 or evidence or indications concerning
earlier facts which had become available after that date.
FN57 Reproduced at para. 72 above.
88. The applicant Government, when submitting some material under cover
of their letter of 24 July 1981 [FN58] stated that
the necessity of protecting the missing persons
which may still be alive as well as the informants and in order to maintain our
confidential sources of valuable information (on humanitarian and security
matters) in the occupied area prevents the disclosure of other material at this
stage. Due to the same considerations no mention is made of the names and other
particulars of the informants of the matters set out in Appendix A.
FN58 Cf. para. 73 above.
If it were considered necessary by the Commission the applicant
Government could 'explain in more detail and support with evidence the actual
dangers and difficulties encountered at present in relation to the disclosure
of additional information on the subject of missing persons' at a meeting of
representatives of the Government with the Commission. The Government 'will
then discuss with the Commission ways and means for the solution of the problem
to the extent that is necessary to facilitate the effective investigation of
the merits of the application.' In this case, 'the applicant Government will
provide the Commission with all the confidential information and evidence in
their hands on the subject of missing persons if and when the Commission starts
an effective investigation in detention places in the occupied area *530 of Cyprus and in Turkey and according
to the needs and progress of such investigation and any relevant directions of
the Commission.'
89. On 7 October 1981 the Commission decided:
-- that the applicant Government should be
invited to submit full particulars on the issue of missing persons; and
-- that a meeting should be held in Strasbourg
at which the President and a further member of the Commission should be
informed by representatives of the applicant Government of the nature and
contents of the further particulars and evidence which the Government would
wish to submit, and at which such practical arrangements as might appear
necessary in the light of their observations could be considered.
90. At the meeting between the President and Mr. Frowein and
representatives of the applicant Government [FN59] on 14 December 1981, the
President stated that the Commission could only base its findings on such
submissions of a Party which had been duly communicated to the other Party and
in respect of which the other Party had had an opportunity to make submissions
in reply; and that any evidence submitted to the Commission should be of such a
nature as to assist it in its task, under Article 28(a) of the Convention, of
ascertaining the facts of the case. At the same time the President noted the
Government's wish to avoid, in the interests of those concerned, the
identification of certain persons.
FN59 MM. Loucaides, Papademas, Ioakim and
Varoshiotis.
In these circumstances the applicant Government was invited to file
material concerning about 50 illustrative cases of missing persons and
containing facts which had arisen after the adoption of the Commission's Report
in the two previous applications. They were also invited to file a complete
list containing the names and other details of all Greek Cypriots still declared
to be missing.
91. On 8 March 1982, the Commission decided that an investigation should
be undertaken, into the complaint concerning missing persons, by obtaining oral
evidence in some of the cases submitted by the applicant Government under cover
of their letter of 22 January 1982. [FN60] This investigation should be carried
out by a Delegation who should, in consultation with the applicant Government,
select the cases to be examined.
FN60 Cf. para. 74 above.
92. By a telex communication of 17 March 1982 the applicant Government
was informed that the Delegation intended to hear witnesses in relation to the
cases of such persons who had allegedly been seen:
-- in the course of their transportation to
Turkey [FN61]; or
-- in detention at the prisons of Adana or
Amasia [FN62]; or
-- when returning from Turkey. [FN63] *531
FN61 As described in the reports in files
Nos. 302 and 1209.
FN62 Files Nos. 23, 101, 153, 295, 1127
and 567.
FN63 Files Nos. 127, 175, 328 and 966.
The Government
was invited to suggest five cases considered to be representative and two
further cases which they would wish to suggest in the alternative.
93. The applicant Government replied on 30 March 1982, suggesting cases
Nos. 23, 127, 153, 328 and 1209 and, in the alternative, cases Nos. 175 and
295.
94. On 13 May 1982, the Delegation decided to hear witnesses in the five
cases suggested by the applicant Government. On 8 July it decided that 12 of
the 26 witnesses proposed by the Government in these cases should be examined.
The Principal Delegate [FN64] decided on 18 August that a further witness
suggested by the Government on 9 August should also be heard.
FN64 Mr. Frowein.
95. The Delegation [FN65] heard the witnesses in the absence of the
parties in Strasbourg on 20 September 1982. The hearing was conducted and
recorded in English, with interpretation from and into Greek; 11 witnesses gave
evidence in Greek, two [FN66] in English. [FN67] Some of the witnesses are
referred to by keys in the verbatim record for security reasons. [FN68] The
record was communicated to the parties.
FN65 MM. Frowein, Ermacora, Melchior and
Carrillo.
FN66 In case No. 127.
FN67 See pp. 45 and 54 of the Verbatim
Report.
FN68 Cf. paras. 88-90 above.
C. Chapter 3--Evaluation of the
evidence obtained
1. Cases investigated by the Delegation
96. As stated above (paras. 86-90), the Commission, through delegated
members, obtained oral evidence concerning five cases of missing persons. The
verbatim record of the hearing of witnesses and the report of the Delegation
were before the Commission.
On the basis of the above the Commission has reached the following
conclusions.
a. File No. 23 (Nicos ALEXANDROU)
97. The applicant Government states that this missing person, born in
1944, married and father of three children, was a barber at Ormidhia. On 14
August 1974, serving as a reservist with the 226 Infantry Batallion, he was
with other soldiers on a lorry [FN69] which was fired on by Turkish tanks near
Tymbou. He was later seen in Turkey, at the prison of Adana, working as a
barber.
FN69 Reg. No. GG 931.
98. The Delegation heard two witnesses. [FN70]
FN70 See pp. 3-6 and 6(a)-12 of the
Verbatim Report.
The first witnesss, G. E. Hapeshis, stated that he was together with
this missing person on the lorry when they were attacked by Turkish tanks on 14
August 1974. They got off the lorry and into a ditch. The missing person later
left the witness who has not seen him since.
*532 The second witness, W 23/5, stated that
he met this missing person, working as a barber, at Adana prison. The evidence
given by this witness was not in all respects quite consistent. He first
declared that he had been taken together with this missing person to the room
where he had his hair cut and later denied having made such a statement. He
further spoke of seven people who had escaped and then disputed having said
this. He also mentioned a window with bars in the barber's room and later said
that he did not look out of the window because it was in another corner. The
Commission finally observes that the witness, according to his own statement,
did not mention his encounter with the barber to any of his Cypriot
co-detainees. The explanation given for this silence is not at all convincing.
99. The Commission therefore does not find it established that this
missing person was detained at Adana prison.
b. File No. 1209 (Panayiotis
CHRISTOFOROU)
100. The applicant Government states that this missing person, born in
1949, married and father of three children, was a builder at Kiti. On 14 August
1974, serving as a reservist with the 226 Infantry Batallion, he was with other
soldiers on a lorry [FN71] which was fired on by Turkish tanks near Tymbou. He
was later seen on three occasions: at Pavlides Garage, Nicosia; when taken as a
prisoner of war to Turkey on a landing ship [FN72]; and at Adana prison in
Turkey.
FN71 Reg. No. GG 931.
FN72 L 402.
101. The Delegation heard three witnesses. [FN73]
FN73 See pp. 12-36 of the Verbatim Report.
The first witness, S. Charalambous, stated that he was together with
this missing person on a lorry when they were attacked by Turkish tanks on 14
August 1974. [FN74] They got off the lorry and into a ditch. The missing person
was wounded in his left arm. He stayed behind when the witness, who has seen
him since, left the place to fetch help.
FN74 The same lorry as in case No. 23.
The second witness, W 1209/6, stated that he met this missing person in
September 1974 in Turkish detention at Pavlides Garage in Nicosia and on board
of a ship taking prisoners to Turkey. The third witness, P. Lahanides, stated
that he met this missing person at Pavlides Garage, on the boat to Turkey and
at Adana prison.
102. The Commission notes that the witnesses differ in their description
of the missing person's facial hair. This can in the Commission's view be
explained by the fact that this missing person did not shave for some time
after 14 August 1974.
The Commission finds it established, by the concordant evidence of the
witnesses W 1209/6 and P. Lahanides, that this missing person was after 14
August 1974 in Turkish detention at Pavlides Garage in Nicosia and at Adana
prison in Turkey.
*533 c. File No.
127: Andreas GERMANOS
103. The applicant Government states that this missing person, born in
1958 and single, was a mason in Kyrenia. On 2 August 1974 he was arrested by a
group of Turkish soldiers, accompanied by a Turkish Cypriot civilian of Pano
Kyrenia and a Turkish Cypriot 'army officer' of Kyrenia. He was subsequently
seen in detention at the police station of Kyrenia and later on the main
Kyrenia- Nicosia road on a bus transporting Greek Cypriot prisoners who had
come back from Turkey and were to be released in Nicosia.
104. The Delegation heard three witnesses. [FN75]
FN75 Verbatim Report p. 37-58.
The first witness, Georghios Germanos, stated that his son, the missing
person, was arrested by a Turkish officer in 1974. The second witness, W 127/3,
and the third witness, W 127/4, stated that they met this missing person in
Turkish detention at the police station of Kyrenia.
The first witness also stated that he saw his son in a bus transporting
Greek Cypriot prisoners who had come back from Turkey and were to be released
in Nicosia.
105. The Commission finds it established, by the evidence of the above
witnesses, that, in 1974, this missing person was arrested by a Turkish officer
and subsequently detained under Turkish control at the police station of Kyrenia.
The Commission also accepts that the first witness is convinced that he
saw his son on the bus, but it does not find it established that what he
believed he saw was the reality. The witness's description of the position from
which he caught sight of three people--his two sons and his son-in-law--sitting
on the far side of the crowded bus leaves room for reasonable doubt as to
whether the witness really saw what he must very much have hoped to see.
d. File No. 153: Costakis GEORGHIOU
106. The applicant Government states that this missing person, born in
1951 and engaged, was living at Lakatamia and an engineer at a Pallouriotissa
factory. On 14 August 1974 he was serving in the 361 Infantry Battalion which
was attacked by Turkish forces in the area of Pachyammos near Kyrenia. He was
later seen at Adana prison in Turkey and identified on a photo of Greek Cypriot
prisoners of war, published in the Turkish magazine 'Hayiat' on 19 September
1974. [FN76]
FN76 Appendix 1 of the Verbatim Report of
the hearing of the witnesses. The photo had already been reproduced at Appendix
IV of the file on 'Undeclared Greek Cypriot Prisoners of War and Missing
Persons' prepared by the 'Pancyprian Committee of Parents and Relatives of
Undeclared Prisoners and Missing Persons' and filed by the applicant Government
in the proceedings concerning the two previous applications. The Government
have submitted a further copy of the photo in the present proceedings.
107. The Delegation heard three witnesses. [FN77]
FN77 Verbatim record pp. 59-73.
The first witness, Anna K. Vasiliou, stated that she recognised her *534 brother, the missing person, on a photo
of Greek Cypriot prisoners published in a Turkish magazine. The second witness,
C. Manousakis, stated that this missing person was in his unit on 14 August
1974. The third witness, W 153/4, stated that he met this missing person, whom
he knew well, at Adana prison in 1974.
108. The Commission finds it established, by the evidence of witness W
153/4, that this witness met this missing person at Adana prison in 1974. It
finds, as stated by this witness, that it is difficult to identify the person
shown, at the left of the circle marked '3,' on the lower photo of Greek
Cypriot prisoners reproduced at Appendix I to the verbatim record; it therefore
does not find it established that the person shown on the photo is indeed this
missing person.
e. File No. 328: Minas IOANNOU
109. The applicant Government states that this missing person, born in
1943, married and father of two children, was living with his family at
Kokkirvorrinithia and working as a builder in Nicosia. He served as a reserve
in the 306 infantry Battalion and was engaged in combat in July 1974. He was
later seen at the prison of Adana and mentioned as detained at the prison of
Amasia in Turkey; he was also seen on board a ship returning from Cyprus to
Turkey and subsequently at Pavlides Garage in Nicosia.
110. The Delegation heard two witnesses. [FN78]
FN78 Verbatim record pp. 74-93.
The first witness, W 328/2, stated that he met this missing person at
Adana prison and when returning to Cyprus. The second witness, W 328/3, stated
that, when at Amasia prison, he heard from other Greek detainees that this
missing person was also there.
111. The Commission notes that the statements of witness W 328/2 were
inconsistent on several points. First, as regards his alleged encounters with
this missing person, he first declared that, having met the missing person at
Adana prison and having lost contact when he himself was brought to Amasia
prison, he met the missing person again 'when he was put in the lorries to go
back to Cyprus.' He then spoke (as earlier, before the police) of a meeting on
the boat and finally stated that it was only at Pavlides Garage that he met the
missing person again. Secondly, the witness's affirmation that the prisoners
were blindfolded on the boat when returning from Turkey to Cyprus is
contradicted by the other witnesses who gave evidence on this subject. He
himself stated that there 'were possibly two or three thousand detainees' and '
various boats.' This, he explained, he could see because 'we could just about
pull down our blindfolds and peep out.' Thirdly, the witness's evidence was
inconsistent as regards the time when he learned that the missing person had
not been released. [FN79]
FN79 Cf. pp. 76, 89 and 92 of the Verbatim
record.
The Commission therefore does not find it established, on the basis *535 of the above evidence, that this
missing person was in fact in Turkish detention.
2. Other cases submitted to the
Commission
112. As stated above, [FN80] the applicant Government in 1982 submitted
a list of persons declared to be missing which contains the names and other
particulars [FN81] of altogether 1,619 persons; the list indicates in each case
whether the person concerned is military, reservist or civilian, when and where
he or she disappeared and where he or she has last been seen. The applicant
Government has also submitted statements and evidence concerning altogether 50
of those 1,619 cases chosen as illustrative.
FN80 Para. 74.
FN81 Identity card number, year of birth.
113. The Commission has examined five of these cases, which were
selected as representative [FN82] and in which relevant evidence was offered by
the Government, and has found in three of these cases that the missing persons
concerned were in Turkish custody in 1974.
FN82 As described at paras. 92 and 93.
114. The Commission notes that the remaining 1,614 missing persons are
either military personnel [FN83] or civilians. They are said to have
disappeared during the last 10 days of July, in August, September or October
1974 or--in one case [FN84]--on 5 February 1975. The dates given often coincide
with periods of armed conflict. [FN85] In a number of these cases, evidence is
offered that the missing person concerned was subsequently seen in detention.
[FN86] The Commission observes that, at paragraph 354 of its Report in the
previous case, it found 'that killings happened on a larger scale than in
Elia,' during and immediately after the periods of armed conflict in 1974. It
therefore cannot exclude that persons declared to have been missing have in
fact met their death during these periods although it has no evidence before it
concerning specific missing persons.
FN83 Including reservists.
FN84 No. 1410.
FN85 20-30 July and 14-16 August 1974.
FN86 In about 20 of the 50 cases referred
to above at para. 74 in fine. Cf. also indications in other cases, e.g.
Nos. 8, 9, 10, 12, 55, 57.
115. In conclusion, the Commission,
recalling its finding concerning the five cases which it examined that three
missing persons were in Turkish custody in 1974, noting the evidence offered
that further missing persons were then seen in Turkish custody, in the absence
of any information to the contrary from the respondent Government, finds
sufficient indications, on the basis of its investigation of five cases and of
the further material submitted, that, of the remaining 1,614 missing persons,
an indefinite number have been in Turkish custody in 1974 after the cessation
of hostilities.
D. Chapter 4--Opinion of the Commission
116. The Commission observes that it has in the present case *536 raised the issue of missing persons on
the basis of fresh evidence offered by the applicant Government; the verbatim
record of the Delegates' hearing of witnesses was communicated to the
respondent Government who were, like the applicant Government, given the
opportunity of submitting observations on this new evidence. [FN87] The
Commission considers that the factual information now before it concerning the
issue of missing persons is more detailed and direct than in the previous
applications and thus offers a better basis for the examination of this question.
FN87 Cf. paras. [can't read photocopy--see
original] above.
117. In its evaluation of this evidence the Commission has found it
established in three of five cases investigated, and has found sufficient
indications in an indefinite number of cases [FN88] that Greek Cypriots, who
are still missing, were in Turkish custody in 1974. It considers that this
creates a presumption of Turkish responsibility for the fate of these persons
and notes with concern that no relevant information has been provided by the
Turkish authorities.
FN88 Para. 115 above.
118. The Commission notes that the families of these missing persons
have been without news from them for nearly nine years and that this is due to
the respondent Government's failure to account for the fate of these persons in
their custody. It finds that the resulting uncertainty has caused severe
suffering to these families who are entitled under the Convention to be
informed of the situation of their close relatives. [FN89]
FN89 The Commission here refers to
Resolution DH (82) 1, adopted by the Committee of Ministers in Applications
Nos. 8022/77, 8025/77 and 8027/77-- McVeigh and Others v. United Kingdom(1983)
5 E.H.R.R. 71 , at which it was held (at the penultimate para.)
that there had been a breach of Art. 8 of the Convention 'in so far as the
applicants McVeigh and Evans were prevented from contacting their wives during
detention.
119. The wording of Article 5, in particular paragraph (1), second
sentence, paragraph (3) first sentence, and paragraph (4), shows in the
Commission's view that any deprivation of liberty must be subject to law and
that any unaccounted disappearance of a detained person must be considered as a
particularly serious violation of the Article, which can also be understood as
a guarantee against such disappearances.
120. The evidence before the Commission is limited in time to the
situation of missing Greek Cypriots in the second half of 1974, i.e.
nine years ago. [FN90] The applicant Government submit [FN91] that a
considerable number were seen alive in detention in Turkey more recently, but
no evidence has been adduced in support of this allegation.
FN90 With the exception of case No. 1410,
referred to at para. 109, above.
FN91 Para. 72.
121. The Commission cannot exclude that missing persons found to have
been in Turkish detention in 1974 have died in the meanwhile but, on the
material before it, it cannot make any finding as to the circumstances in which
such deaths may have occurred.
*537 122. The Commission finds no
justification, in the circumstances of the present case, for detaining any of
these missing persons. It observes that its statement concerning prisoners of
war, at paragraph 313 of its Report in the previous case, related only to
initial detention during or immediately following the hostilities, which were
terminated on 16 August 1974.
Conclusion
123. The Commission, having found it established in three cases, and
having found sufficient indications in an indefinite number of cases, that
Greek Cypriots who are still missing were unlawfully deprived of their liberty,
in Turkish custody in 1974, noting that Turkey has failed to account for the
fate of these persons, concludes by 16 votes against one that Turkey has
violated Article 5 of the Convention.
Part III --Remaining Complaints
A. Chapter 1--Displacement of Persons
and Separation of Families
1. Submissions
a. Applicant Government
124. The applicant Government alleges [FN92] that Turkey:
-- prevents about 200,000 Greek Cypriots from
returning to their homes in the North; and
-- forces the remaining Greek Cypriots in the
North to leave their homes and to take refuge in the south: between 18 May 1976
and 10 February 1983 'about 7,000 Greek Cypriots were forced to sign
applications to leave the occupied area.' The Government speaks of ' inhuman
methods used to force the remaining Greek Cypriot inhabitants of the occupied
area to leave that area (e.g. restrictions on
movement, education and work threats, violence etc.)' and state that, according
to the U.N. Secretary-General's Report of 1 December 1982, [FN93] the Greek
Cypriot population in the occupied area amounted, at that time, to 952 persons;
on 10 February 1983 it amounted to 940.
FN92 Final submissions of 10 February
1983, para. 47.
FN93 S/15502, para. 26.
The applicant Government submit that the above facts constitute
'continuous violations of Article 8 of the Convention.
Furthermore, the methods used to force the remaining Greek Cypriot inhabitants
of the occupied area of Cyprus amount to violations of 'Articles 3 to 5, 8, 11
and 14 of the Convention and Articles 1 and 2 of Protocol No. 1.
125. The applicant Government further alleges [FN94] that systematic *538
colonisation of the occupied area of Cyprus has been effected by the settlement
of Turks from mainland Turkey who acquire the status of 'Turkish Cypriot
citizens.' These settlers seized and occupied the houses and lands of the Greek
Cypriots, exploited their fields and stole their agricultural produce, and
harassed, by various inhuman methods and activities, the remaining Greek
Cypriot population in the North, thus forcing them to leave and move to the
Government-controlled area. The colonisation was carried out in furtherance of
the Turkish policy of altering the racial balance of the island and changing
the demographic pattern of Cyprus by converting the occupied area into an
exclusively Turkish populated area on a permanent basis. Since the Turkish
invasion about 63,000 Turks from the mainland have settled in the occupied
area.
FN94 Final submissions paras. 57-60.
The applicant Government submits that this colonisation constitutes
continuing violations of Articles 3, 5, 8, 13, 14 and of Article 1 of Protocol
No. 1 to the Convention.
126. The applicant Government, quoting reports of the UN Secretary
General of 1976-82, finally alleges [FN95] that the above measures of displacement
of Greek Cypriots [FN96] caused separation of families in a substantial number
of cases.
FN95 Final submissions para. 66.
FN96 Para. 124 above.
They invoke Article 8 of the Convention and refer to paragraph 211 of
the Commission's Report on the two previous applications.
b. Respondent Government
127. The respondent Government, at Annex I [FN97] to their observations
on the admissibility, [FN98] submitted that the return of Greek Cypriots to the
North,
other than those envisaged in the exchange of
population agreement ..., would not only endanger the security of life of the
Turkish Cypriots, but would also undermine the bi-zonal solution which
constitutes the only basis for the peaceful co-existence of the two communities
in the future ... Those who are moving to the south are doing so of their own
free will and within the framework of the agreement reached between UNFICYP and
the Turkish Federated State of Cyprus, whereby people wishing to move south
submit their application through UNFICYP and are allowed to do so only after
UNFICYP confirms that they have not submitted their application under pressure
of any sort and that their wish to move south is genuine.
FN97 Paras. 56, 58.
FN98 Cf. para. 53 above.
128. The respondent Government, at Annex I [FN99] to their observations
on the admissibility, [FN100] further submitted that the exodus of Turkish
Cypriots from Cyprus over the years and subsequently under EOKA's terroristic
activity, enhanced by administrative and economic discrimination and later by
the inhuman treatment of the *539 Turkish Cypriots during the 11 years
preceding 1974, had been immense. 40,000 Turkish Cypriots lived in London
alone, thousands in Australia, Canada and other places; each Turkish Cypriot home
in Cyprus had one or more sons and daughters living in Turkey without severing
relations and property interests in Cyprus. Seasonal workers had gone and come
from Turkey; the Turkish Community, deprived for years of the opportunities of
economic and social development as a result of the policy of the Greek
Cypriots, needed to import seasonal labourers in order to reactivate the
economic resources today available to it. Cyprus had been the home of Turks and
Greeks for 400 years. The population ratio had varied. The fact that Turkish
Cypriots were methodically squeezed out of Cyprus by the Greeks in the past
gave the latter no right to maintain their unfair, unjust and artificially
created position of advantage. Turkish Cypriots were entitled to return to their
native land if they so wished; this was also recognised by the 1960
Constitution.
FN99 Paras. 60-62.
FN100 Cf. para. 53 above.
129. The respondent Government finally, at Annex I [FN101] to their
observations on the admissibility, [FN102] stated that, of the 1,800 Greek
Cypriots who chose to stay in the North, there might be some who were separated
from their families who moved to the South. This, however, did not concern
Turkey.
FN101 Para. 63.
FN102 Cf. para. 53 above.
2. Opinion of the Commission
130. The Commission recalls that the issue of displacement of persons
was examined under Article 8 of the Convention in Part II, Chapter 1, of its
Report on Applications Nos. 6780/74 and 6950/75.
The Commission then also noted, [FN103] when examining the question of
displacement of persons, the applicant Government's allegations concerning a
compulsory exchange of population and information as to the settlement of
Turkish Cypriots and Turkish settlers in the North. [FN104]
FN103 At paras. 92 et seq.
FN104 Para. 94.
131. The Commission considered in the previous case [FN105] 'that the
prevention of the physical possibility of the return of Greek Cypriot refugees
to their homes in the north of Cyprus amounts to an infringement, imputable to
Turkey, of their right to respect of their homes,' which could not be justified
on any ground under paragraph (2) of Article 8. It concluded that, 'by the
refusal to allow the return of more than 170,000 Greek Cypriot refugees to
their homes in the north of Cyprus, Turkey did not act, and was continuing not
to act, in conformity with Article 8 of the Convention in all these cases.'
FN105 At para. 208.
The Commission further considered, [FN106] with regard to Greek Cypriots
transferred to the south under various intercommunal *540 agreements, that the prevention of the
physical possibility of the return of these Greek Cypriots to their homes in
the north of Cyprus generally amounted to an infringement, imputable to Turkey
and not justified under paragraph (2), of their right to respect for their
homes under paragraph (1) of Article 8. It concluded that, 'by the refusal to
allow the return to their homes in the north of Cyprus to several thousand
Greek Cypriots who had been transferred to the South under intercommunal
agreements, Turkey did not act, and was continuing not to act, in conformity
with Article 8 of the Convention in all these cases.'
FN106 At para. 210.
132. The Commission finally recalls that it examined the issue of separation
of families under the heading 'Displacement of
persons' in its Report on Applications Nos. 6780/74 and 6950/75. It then found:
-- that the separation of Greek Cypriot families
resulting from measures of displacement imputable to Turkey under the Convention
must also be imputed to Turkey. The continued separation of families resulting
from Turkey's refusal to allow the return of Greek Cypriot refugees to their
family members in the North, the separation of families brought about by
expulsions of family members across the demarcation line, or by transfers of
members of the same family to different places of detention, must therefore be
imputed to Turkey [FN107]; and
-- that the separation of families brought about
by measures of displacement imputable to Turkey were interferences, with the
right of the persons concerned to respect for their family life as guaranteed
by paragraph (1), which could not be justified on any ground under paragraph
(2) of Article 8 (paragraph 211). [FN108]
FN107 Para. 205.
FN108 Para. 211.
The Commission then concluded [FN109] that, by the separation of Greek
Cypriot families brought about by measures of displacement in a substantial
number of cases, Turkey had not acted in conformity with her obligations under
Article 8 of the Convention.
FN109 At para. 211.
133. In the present case the Commission, again
examining the issue of displaced persons under Article 8
of the Convention, confirms the finding made, at paragraph 168 of its Report on
the previous applications, that displaced Greek Cypriots in the South are
physically prevented from returning to the northern area as a result of the
fact that the demarcation line across Cyprus [FN110] is sealed off by the
Turkish army. This fact of common knowledge is not disputed by the respondent
Government. [FN111]
FN110 'Green line' in Nicosia.
FN111 Cf. para. 127 above.
134. The Commission finds that the continuation of this situation, since
the adoption of its Report on the first two applications on 10 July *541 1976, must, in the circumstances of the
present case, be considered as an aggravating factor.
135. The Commission concludes, by 13 votes against two
with two abstentions that, by her continued refusal to allow over 170,000 Greek
Cypriots the return to their homes in the North of Cyprus, Turkey continues to
violate Article 8 in all these cases.
136. The Commission further finds that the continued separation of
families resulting from Turkey's refusal to allow the return
of Greek Cypriots to their family members in the North must in the
circumstances of the present case be considered as an aggravating factor.
It concludes, by 14 votes against two and with
one abstention, that, in the cases of continued separations of families
resulting from Turkey's refusal to allow the return of Greek Cypriots to their
family members in the North, Turkey continues to violate Article 8 of the
Convention.
B. Chapter 2--Deprivation of
Possessions
1. Submissions
a. Applicant Government
137. The applicant Government submits [FN112] that Greek Cypriots in the
North of Cyprus have, since 18 May 1976, been deprived of their possessions by
the occupation by Turkish forces of that area, where thousands of houses and
acres of land, enterprises and industries belonging to Greek Cypriots exist; by
the eviction of the remaining Greek Cypriot population from those possessions;
by seizure, appropriation, etc., of lands and houses belonging to Greek
Cypriots in the occupied area; by robbery of the agricultural produce, etc., and
looting of properties belonging to the Greek Cypriots in that area; and by
wanton destruction of Greek Cypriot properties in that area.
FN112 Final submissions, paras. 72-86.
138. As regards immovable property, the applicant
Government state that, during the above period, all privately-owned land and
houses of Greek Cypriots in the North have been under the full control of the
Turkish Army, which prevents the owners of such properties from returning
thereto and enjoying them. Practically all such property was distributed to
Turkish Cypriots, or to Turks brought from Turkey in order to settle in that
area, and measures were taken to institutionalise such distribution by the 'Law
to Provide for the Housing and Distribution of Land and Property of Equal Value,'
of the ' Legislative Assembly' of the so-called 'Turkish Federated State of
Cyprus,' [FN113] of 16 August 1977. Under this 'law' properties of Greek
Cypriots were allocated to Turks. An amendment of 10 August 1982 extended,
aggravated and solidified the violations of property rights of *542 Greek Cypriots. [FN114] In January 1983
this 'law' was implemented by co-operation by Turkish controlled institutions
which gave mortgages to persons who had received ' definite possession'
certificates. The same 'law' by section 59(a) extinguished the rights of Greek
Cypriots to reclaim loans and mortgages formerly held by them. The respondent
Government approved and assisted in the implementation of that law. The first
'definitive possession certificates' were given to Turks in the occupied area
on 20 December 1982; it is expected that, by the end of 1983, all Turkish
Cypriots who moved from the South to the North will get their certificates.
FN113 'TFSC.'
FN114 Issue of new certificates of
'definite' possession, acceptance of members of the Turkish army as persons
'entitled' to such property, provision for ' compulsory acquisition' of such
property without compensation, by the TFSC, and substitution of the legal Land
Registry of Cyprus by a Registry kept by the TFSC.
139. The applicant Government further state that, in July 1982, 32
houses owned by Maronites [FN115] were seized by the Turkish Army in the
villages of Asomatos, Karpasia and Kormakitis, in order to house army officers'
families. This incident, having subsequently been cloaked by 'regularising'
actions of the Turkish Cypriot 'authorities,' was referred to in the UN
Secretary General's Report of 1 December 1982.
FN115 Who according to the Cyprus
Constitution opted to belong to the Greek Cypriot community.
Operational hotel units in the occupied area which belonged to Greek
Cypriots have been operated by Turks without any authority from their owners.
[FN116] The 'Cyprus Turkish Tourism Enterprises Co. Ltd,' the major
shareholders therein being Turkish organisations, and the Turkish Tourism and
Information offices in European countries, continued to promote tourism in
relation to the hotels in question. Some hotels continued to operate as clubs
for Turkish army officers or to be occupied by their families. Turkish
officials, visiting the occupied area, assisted in the operation and
exploitation of the hotels in question.
FN116 Who were prevented from repossessing
them.
Agricultural, commercial and industrial enterprises belonging to Greek
Cypriots in the occupied area, which were originally seized by the Turks
following the invasion, continued to be occupied, operated and exploited by the
latter on a permanent basis without any authority from their owners. [FN117] A
substantial number of Greek Cypriot factories were put into operation for the
first time after 1977.
FN117 Who were prevented from repossessing
them.
140. As regards movable property, the applicant
Government states that looting, by or with the support of Turkish troops, of
houses and business premises belonging to Greek Cypriots in the occupied area,
especially in the Famagusta area, and robbery of the agricultural produce,
stock in commercial and industrial enterprises, and other movables belonging to
Greek Cypriots in the occupied area have continued. A substantial part of the
citrus fruit belonging to the Greek *543 Cypriots in the Morphou area has since
1981 been stolen and exported to the United Kingdom through a United Kingdom
public company under the name of Wearwell Ltd. operating in the occupied area
and run by two Turkish Cypriots. This operation has been encouraged and
facilitated by the respondent Government, which has recently authorised the
said company to carry out associated activities on the mainland.
141. The applicant Government finally complains of various incidents,
during the relevant period, of wanton destruction
of properties belonging to Greek Cypriots in the occupied area by Turkish
troops or Turks acting with the authority or support of the Turkish Army.
142. The applicant Government submits that the above facts constitute
continuing violations of Article 1 of Protocol No. 1 to the Convention.
b. Respondent Government
143. The respondent Government, at Annex I [FN118] to their observations
on the admissibility, [FN119] stated that agricultural land abandoned by Greek
Cypriots in North Cyprus was allocated to Turkish Cypriot displaced persons by
the Government of the Turkish Federated State of Cyprus, acting as custodian of
alien properties, by virtue of the Immovable Alien Property Allocation and
Utilisation Law 1975. The produce of such land went to the allottees who
cultivated it. The same procedure was applied by the Greek Cypriot
Administration regarding agricultural land and other properties abandoned by
Turkish Cypriot displaced persons in South Cyprus which was approximately equal
in extent to those left by Greek Cypriots in the North. The Greek Cypriot
displaced persons to whom Turkish-owned land was allocated cultivated those lands
and utilised their produce for the maintenance and rehabilitation of their
families.
FN118 Paras. 64-72.
FN119 Cf. para. 53 above.
144. The complaint regarding the distribution of Greek Cypriot owned
houses, land and places of business to Turkish Cypriots was also groundless
because the Greek Cypriot Administration similarly allocated the houses, lands
and places of business belonging to 90,000 Turkish Cypriots, who moved North,
to the displaced Greek Cypriots who now occupied and utilised them. Everything
left by the Turkish Cypriots in the way of immovable property was similarly
distributed by the Greek Cypriot Administration.
145. The complaint of 'looting of appreciable quantities of commercial
and other movable properties from Greek Cypriot owned business, houses and
other premises especially in the Famagusta Area' was entirely groundless. When
the Greek Cypriots fled, there were no longer any local councils in the
villages and this created a gap in the administration. A great deal of theft and
looting was committed by *544 Greek Cypriots and members of the Greek
Cypriot National Guard. The fact that isolated instances of theft and looting
should have been committed by members of the Turkish Cypriot Community was a
matter of personal responsibility dealt with by the Courts of Law of that
Community.
If reference was made to items of furniture and other household goods
taken from Greek Cypriot houses and other premises for the rehabilitation of
the 90,000 displaced Turkish Cypriots, these were not stolen but taken on
lawful authority of the Government of the Turkish Federated State of Cyprus on
the same criteria as the properties left behind by the Turkish Cypriots in
South Cyprus were taken and utilised by the Greek Cypriot Administration. A record
of everything taken was kept and would be produced when the question of mutual
compensation would come up for consideration.
146. The complaint of robbery of agricultural produce, livestock, stocks
in commercial and industrial enterprises and other movables belonging to Greek
Cypriots was equally misleading and malicious as anything taken from the Greek
Cypriot commercial and industrial enterprises or other premises was not stolen
but taken on the lawful authority of the Turkish Federated State of Cyprus for
the rehabilitation of the 90,000 displaced Turkish Cypriots; a record of the
items taken was kept.
147. The respondent Government finally stated that the complaint of
wanton destruction of properties belonging to Greek Cypriots was entirely false.
There had not been any wanton destruction of houses and groves belonging to
Greek Cypriots or to churches. On the contrary, most of the Greek Cypriot
houses or other premises damaged during the fighting had been repaired and a
number of half-constructed houses had been completed by the Turkish Federated
State of Cyprus. One or two houses might have been pulled down by the
Municipalities, because they were in a state of collapse and constituted a
danger to the lives of the passers-by, and some orange groves might have
deteriorated as the result of lack of water due to the wanton destruction by
Greek Cypriots of water pumps and installations before they left for the South
during the armed conflict in 1974. Depletion of the water resources of the
Morphou area and the dangers of salinisation due to overpumping were well known
facts. It might well be that those groves which had unavoidably dried had been
replanted with vines or other crops not requiring the same quantity of water as
citrus. There has certainly been no case of wanton destruction of groves for
planting vines.
2. Opinion of the Commission
148. As regards the displacement of the overwhelming majority of the
Greek Cypriot population from the northern area, where it left behind movable
and immovable possessions, and the established fact that these displaced
persons are not allowed to return to their homes in *545 the North, and thus the property left
there, the Commission refers to its above findings under the heading
'Displacement of Persons.' [FN120]
FN120 Paras. 132 et seq.
149. As to immovable property, the Commission further
recalls that, in its Report on Applications Nos. 6780/74 and 6950/75,
it found [FN121] elements of proof of taking and occupation of houses and land
by Turkish Cypriots and Turks from the mainland, both military personnel and
civilians. The Commission then observed [FN122] that about 40,000 Turkish
Cypriots originally residing in the South had, from 1974 onwards, moved
gradually to the North of the Island, where accommodation had to be found for
them. That supported allegations concerning the occupation on a considerable
scale of houses and land in the North belonging to Greek Cypriots, and the
establishment of an office for housing to regulate the distribution. The
Commission therefore accepted the evidence obtained as establishing the taking
and occupation of houses and land belonging to Greek Cypriots. [FN123] The
Commission also found strong indications that Turks from the mainland had
settled in the North in houses belonging to Greek Cypriots [FN124] and it found
it established that agricultural, commercial and industrial enterprises were
taken out of the hands of Greek Cypriots [FN125] and that hotels were put into
operation in the northern area. [FN126]
FN121 At para. 472.
FN122 At para. 473.
FN123 Para. 474.
FN124 Para. 476.
FN125 Para. 477.
FN126 Para. 478.
150. As to movable property, the Commission recalls
its finding, at paragraph 481 of its Report on Applications Nos. 6780/74 and
6950/75, that looting and robbery on an extensive scale by
Turkish troops and Turkish Cypriots have taken place.
151. The Commission finally recalls its finding in Applications Nos.
6780/74 and 6950/75 [FN127] that destruction of property
had taken place in many cases.
FN127 At para. 48 of its Report.
152. The Commission concluded in Applications Nos. 6780/74 and
6950/75 [FN128] that there had
been deprivation of possessions of Greek Cypriots on a large scale, imputable
to Turkey and not necessary for any of the purposes mentioned in Article 1 of
Protocol No. 1.
FN128 At para. 486 of its Report.
153. In its examination of the complaints concerning interference with
possessions in the present case, the Commission notes
that, since the adoption of its Report in the previous applications,
deprivation of property of Greek Cypriots in the North of the Island has been
confirmed by what is referred to by the applicant Government as the 'Law to
Provide for the Housing and Distribution of Land and Property of Equal Value'
of 16 August 1977. There have also been *546 interferences with property rights of
some 7,000 Greek Cypriots who since 18 May 1976 [FN129] have moved to the
South. [FN130] The Commission observes that the occupation and taking of Greek
Cypriot property in the North is not disputed by the respondent Government.
[FN131]
FN129 When the Commission terminated its
investigation into the first two applications.
FN130 Cf. para. 124 in fine above.
FN131 Cf. para. 143 above.
154. The Commission is of the opinion that the measure described of 16
August 1977 consolidates the earlier occupation of immovable property and for
that reason constitutes a violation of Article 1 of Protocol No. 1. In
addition, it is not disputed that new takings of movable property occurred
after the adoption of the Report of the Commission of 10 July 1976.
155. The Commission concludes, by 13 votes against one
and with three abstentions, that Turkey has violated Article 1 of Protocol No.
1.
C. Chapter 3--Absence of Remedies
1. Submissions
156. The applicant Government submits [FN132] that,
throughout the relevant period, there was no effective relevant remedy in the
Turkish courts or before any authority in the Turkish-occupied area of Cyprus
or in Turkey in respect of any of the violations complained of. According to
the so-called 'Constitution of the TFSC' practically all the human rights of
the Greek Cypriots that have been violated are not even recognised.
FN132 Final submissions paras. 91 et
seq.
The applicant Government invoke Articles 6 and 13 of the Convention.
157. The respondent Government, at Annex I
(para.73) to their observations on the admissibility, [FN133] submitted that
all cases of offences committed against Greek Cypriots living in the North of
Cyprus and their properties, which come to the knowledge of the authorities of
the Turkish Federated State of Cyprus, are investigated and referred to courts.
Severe sentences were imposed on a number of persons convicted for serious
criminal offences committed during 1976 on Greek Cypriots living in the North.
FN133 Cf. para. 53 above.
2. Opinion of the Commission
157. In its decision on the admissibility the Commission found under
Article 26 of the Convention [FN134] 'that the remedies indicated by the
respondent Government cannot, for the purposes of the present application, be
considered as relevant and sufficient and that they need not, therefore, be
exhausted.'
FN134 At para. 39 of the Law.
158. The Commission, in its examination of the merits of this complaint,
does not find it necessary to add anything to its finding in the decision on
admissibility.
*547 D. Chapter
4--Discrimination
1. Submissions
159. The applicant Government submit [FN135] that, in
as much as the above violations were directed against members of one of the two
communities in Cyprus, namely the Greek Cypriot community because of their
ethnic origin, race and religion, the respondent Government should be found
responsible for continuing violations of Article 14 of the Convention in
failing to secure the rights and freedoms set forth in the Convention without
discrimination on the grounds of ethnic origin, race and religion as required
by that Article.
FN135 Final submissions, para. 97.
160. The respondent Government did not participate in
the proceedings on the merits.
2. Opinion of the Commission
161. The Commission recalls that, in its Report on Application Nos.
6780/74 and 6950/75, [FN136] having found violations of a
number of Articles of the Convention, it noted that the acts violating the
Convention were exclusively directed against members of one of the two
communities in Cyprus, namely the Greek Cypriot community. The Commission then
concluded that Turkey had thus failed to secure the rights and freedoms set
forth in these Articles without discrimination on the grounds of ethnic origin,
race and religion as required by Article 14 of the Convention.
FN136 At para. 503.
162. Having again found violations of the rights of Greek Cypriots under
a number of Articles of the Convention in the present case,
the Commission does not consider it necessary to add anything to its finding
under Article 14 in the previous case.
E. Chapter 5--Position of Turkish
Cypriots
163.
The applicant Government allege [FN137] that,
during the relevant period Turkey committed continuous violations of the rights
of the Turkish Cypriots living in the occupied area by her policy or operation
of colonisation and her policy and measures of segregation by the force of arms
of the two communities within the Cyprus population on the basis of what came
to be known as the ' Attila Line.' These violations fall under two categories:
various systematic acts of violence, threats, insults, and other oppressive
acts by Turkish settlers from Turkey, encouraged and or countenanced by the
presence of the Turkish troops, and prevention of any return by Turkish
Cypriots, who were transferred from the Government-controlled area in 1974-75
to the occupied area, to their homes and properties in the
Government-controlled area and denial of any exercise of their rights in
respect of such property. In respect of both the above categories of violations
no effective remedy before any authority exists.
FN137 Final submissions paras. 98 et
seq.
*548 The applicant Government submits that the
above facts constitute continuous violations of Articles 3, 5, 6 and 8 of the
Convention and Article 1 of Protocol No. 1.
164. The respondent Government, at Annex I
[FN138] of its observations on the admissibility, [FN139] submitted that the
above complaint was 'another example of the insincere and dishonest way in
which those who have tried to annihilate the Turkish Community and have caused
them to suffer all sorts of hardships, now, for purely propaganda purposes,
express false and mock concern for the well-being of the Turkish Cypriots.'
FN138 Para. 91.
FN139 Final submissions paras. 98 et
seq.
165. The Commission, having regard to the
material before it, finds that it does not have sufficient available evidence
enabling it to come to any conclusion regarding this complaint.
Part IV-- Conclusions
The Commission,
Having examined the allegations in this
application [FN140];
Having found that Article 15 of the Convention
does not apply [FN141];
Arrives at the following findings and
conclusions:
FN140 See Parts II and III above.
FN141 See Part. I, Chap. 4.
1. Missing persons
[FN142]
FN142 Para. 123 above.
The Commission, having found it established in three cases, and having
found sufficient indications in an indefinite number of cases, that Greek
Cypriots who are still missing were unlawfully deprived of their liberty, in
Turkish custody in 1974, noting that Turkey has failed to account for the fate
of these persons, concludes by 16 votes against one that Turkey has violated
Article 5 of the Convention.
2. Displacement of persons and
separation of families
[FN143]
FN143 Paras. 135 and 136 above.
The Commission concludes, by 13 votes against two with two abstentions
that, by her continued refusal to allow over 170,000 Greek Cypriots the return
to their homes in the North of Cyprus, Turkey continues to violate Article 8 in
all these cases.
The Commission further concludes by 14 votes against two and with one
abstention, that, in the cases of continued separation of families resulting
from Turkey's refusal to allow the return of Greek Cypriots to their family
members in the North, Turkey continues to violate Article 8 of the Convention.
3. Deprivation of possessions
[FN144]
FN144 Para. 155 above.
The Commission concludes, by 13 votes against one and with three
abstentions, that Turkey has violated Article 1 of Protocol No. 1.
*549 4. Absence of
remedies
[FN145]
FN145 Para. 158 above.
The Commission, in its examination of the merits of this complaint, does
not find it necessary to add anything to its finding in the decision on
admissibility.
5. Discrimination
[FN146]
FN146 Para. 162 above.
Having again found violations of the rights of Greek Cypriots under a
number of Articles of the Convention in the present case, the Commission does
not consider it necessary to add anything to its finding under Article 14 in
the previous case.
6. Position of Turkish Cypriots
[FN147]
FN147 Para. 165 above.
The Commission, having regard to the material before it, finds that it
does not have sufficient available evidence enabling it to come to any
conclusion regarding this complaint.
Separate Opinion of Mr. M. A.
Triantafyllides
1. I am in agreement with the findings of the Commission regarding the
violations of the Convention which are referred to in the Report of the
Commission in the present case.
2. In order to avoid making this opinion unduly lengthy I repeat that I
still adhere in principle to the views which I have expressed in my Separate
Opinion in the previous case of Cyprus v. Turkey [FN148] and, also, I endorse
the salient features of the Separate Opinion of Mr. G. Tenekides in the present
case. [FN149]
FN148 Apps. Nos. 6780/74 and 6950/75.
FN149 No. 8007/77.
3.
I wish, furthermore, to add the following:
(a) Missing Persons:
(i) In addition to the violation of Article 5 of the Convention, which
was found by the Commission, I am of the view that there have been established
violations of Articles 3, 4 and 8 of the Convention, of which missing persons
are the victims, and violations of Articles 3 and 8 of the Convention, of which
the families of missing persons are the victims, especially as the suffering to
which the families of missing persons are being daily subjected for over nine
years, due to the persistent refusal of the respondent Government of Turkey to
account for their fate, amounts to inhuman treatment of the gravest nature.
(ii) Also, I think that it cannot be really seriously disputed that
there is a presumption of Turkish responsibility for deprivation of life
contrary to Article 2 of the Convention in so *550 far as there are concerned any missing
persons who may have died in the meantime whilst in Turkish detention.
(iii) Lastly, there should be pointed out that the Commission has been
overcautious in weighing uncontradicted oral evidence adduced in relation to
the five cases of missing persons in respect of which witnesses were heard by a
Delegation of the Commission in Strasbourg. I am, consequently, of the view
that it could have been found, with adequate certainty, that all five missing
persons concerned, and not only three of them, were, at the material time, in
Turkish detention.
(b) Displacement of persons and
deprivation of possessions
(i) I am of the opinion that the settlement of Turkish settlers in the
northern part of Cyprus occupied by the Turkish military forces constitutes, by
itself, a separate violation of Article 8 of the Convention and Article 1 of
the First Protocol to the Convention.
(ii) Also, there should be observed, in addition to the finding of the
Commission in the present Report regarding the violation of Article 1 of the
First Protocol to the Convention, that the violation of the said Article 1 by
means of deprivations of possessions which were found by the Report of the
Commission in the previous case of Cyprus v. Turkey [FN150] are still
continuing in a most aggravated manner.
FN150 Apps. Nos. 6780/74 and 6950/75.
(c) Violations of human rights of Turkish CypriotsIn my view there
exists before the Commission material which, having remained uncontradicted,
justified, prima facie, further examination of whether
there are occurring continuous violations of human rights of Turkish Cypriots
now living in the northern part of Cyprus occupied by the Turkish military
forces.
4. I would like to conclude this Separate Opinion by stressing that
there exists great urgency to restore the public order of Europe in Cyprus and,
in this connection, the Committee of Ministers of the Council of Europe are
invited to take immediate action in order to ensure the restoration of the
human rights which have been found to be violated by Turkey.
Professor Dr. BŸlent Daver's Dissenting
Opinion
May I take the liberty to say that I am not in agreement with the
present Report for the reasons stated below.
1. First of all, in my view the Commission's decision on admissibility
did not properly deal with the problem of the locus standi
of the applicant Government. [FN151] As I stated in my previous dissenting *551 opinion, joined to the Report of the
Commission adopted on 10 July 1976 ',' [FN152] the Commission should have had
the primary task of examination from the point of view of ius standi
of an application referred to it by a High Contracting Party under Article 24
of the Convention. However, in this Report the Commission refrained again from
dealing with the ius standi of the applicant Government.
FN151 Because of the Commission's constant
and general practice not to allow the members to make separate opinions to the
admissibility decision, I am stating my objection here as to the admissibility
decision. For my previous separate opinion to the Report of the Commission in
Apps. Nos. 6780/74 and 6950/75, Cyprus v. Turkey, see pp. 186-192.
FN152 Applications Nos. 6780/74 and
6950/75Cyprus v. Turkey.
In my opinion, the actual applicant Government is not the legal and
legitimate authority entitled to bring a case before international instances.
The Cyprus Constitution of 1960 and international agreements [FN153] which gave
birth to the Cyprus Republic originally envisaged a sui generis
state composed of two communities. The Constitution of Cyprus expressly
recognised the Turkish community not as a mere minority but as a full founding
partner. The Constitution also gave the Turkish Vice-President powers beyond
those of a normal Vice-President, including the right of vetoing the decisions
taken by the President. [FN154]
FN153 London and Zurich Agreements and the
Treaty of Guarantee.
FN154 See Cyprus Constitution, Arts. 1,
46, 47(c), 49(d), 50(1)(a), 54(a),
(b), 57. Peaslee, Constitutions of Nations, 3rd ed. 1968, Vol. III,
Europe, pp. 138-216.
However, in this case as in the previous applications, the Cyprus
Government did not act in conformity with the Cyprus Constitution and the
international instruments cited above. Instead, the Greek Cypriot authorities,
in flagrant violation of the 1960 Constitution, unilaterally abrogated in
practice the legal status of the Turkish community and of their legal
representatives such as the Vice-President and the Turkish Ministers.
2. In my opinion, the Commission's present Report, adopted on 4 October
1983, does not comply with Article 31 of the Convention. Article 31 envisages,
in wording and in spirit, a full investigation of the facts and requires
clear-cut evidence as to the findings. The Law part of the Report could only be
based upon such extensive and clear-cut findings.
3. In the very important issue of missing persons, for instance, almost
half of the testimonies by Greek Cypriots in a 'very conveniently chosen' five
illustrative cases, heard before the Commission's Delegates in Strasbourg, are
not credible and therefore not convincing.
4. I would also like to emphasise the fact that the Commission held an
oral hearing without the participation of the respondent Government, although
Article 28(a) of the Convention expressly provides for the participation of the
two Parties. The respondent Government, on the ground that it is not
recognising the 'Greek Cypriot Administration' as the legitimate
representatives of the Cyprus Republic, did not participate in the proceedings
on the merits *552 before the Commission. The Commission, which observed the
non-co-operation of the respondent Government, decided to make an Interim
Report to the Committee of Ministers to complain about this matter. But the Commission,
instead of awaiting the decision of the Committee of Ministers, went ahead with
the proceedings and held an oral hearing with one Party only. In my opinion,
this is incompatible with and contrary to the wording and the spirit of the
Convention. The reading of Article 28(a) of the Convention clearly shows this
point. I must add that the Committee of Ministers' decision did not tackle the
essence of the problem.
Furthermore, the Commission is not entitled to give a 'judgment by
default,' because the Commission is not a court, but mainly an investigating
body, performing quasi-judicial duties and making inquiries
under the Convention. Therefore, the Commission cannot give an opinion in
absentia like domestic or international courts. It can be
argued that this is on account of the non-co- operating attitude of the
respondent Government. However, as I stated earlier, the Commission's task and
obligation should have been to refer it to the Committee of Ministers and
suspend its proceedings until the Committee of Ministers brings a proper solution
to this political problem.
5. It is my considered judgment that, in order to cast more light on the
complex facts relevant to this case, the Commission should have examined ex
officio the Memorial submitted by the respondent Government
to the Committee of Ministers.
Conclusion
The Commission's Report, unfortunately like the previous one, is
incomplete, lacking in many crucial facts relevant to the case, arrives at
conclusions without the counter evidence and omits some important factual and
legal issues indicated above. I consider that the content and the presentation
of the Report as such do not reflect in an accurate and complete way the
historical, factual and legal situation in Cyprus.
Finally, as I stated in my separate opinion to the Commission's Interim
Report, 'the best way of serving the cause of European public order and
watching over the respect of human rights within the ambit of our Convention
would be to have a probing analysis of this important and many sided issue.'
For these reasons, I am against the Report as a whole, and I am opposed to the
conclusions of the Commission therein.
Separate Opinion of Mr. G. Tenekides
[FN155]
FN155 Original French.
While accepting the conclusions of the Commission as set out in
particular in paragraphs 123, 134, 135, 136, 155 and 161 of the Report I must
make it clear that I differ on some points which refer: *553
-- to a difference of approach on a matter which
is of vital importance in this case, namely the question of the missing persons;
-- the absence of any reference in the Report to
a certain number of provisions of the Convention which were applicable in the
present case and which in the opinion of the undersigned were or are still
being violated by the actions of officers of the respondent Government on
Cypriot territory.
I. Allegations of the applicant
Government relating to the treatment and fate of missing persons
(a) In paragraph 87 of the Report it is recalled that the Commission
requested the applicant Government to supply evidence to show that the missing
persons were really in detention under Turkish military control and that there
were witnesses who had actually seen this.
It is precisely on this question of the burden of proof that I differ
fundamentally from the point of view adopted by the Commission.
One fact emerges clearly from the circumstances of the case: the persons
whose names were on the population registers of the Cypriot towns and villages
disappeared following what has been called Turkish 'military action' which
occurred in two successive waves in July and August 1974. Since that time
nobody (with some exceptions) has been able to provide any information on the
fate of these persons who are euphemistically described as missing. No Greek Cypriot,
whether a Government officer or private individual, has been able during the
last nine years to enter either the occupied zone in North Cyprus or Turkey
itself in order to obtain information about the treatment undergone by these
persons. Nor has anything come to light either from Turkish Government sources
or through the press. There has in fact been complete silence on the matter.
Following the state of belligerence created by the intervening power
there was created in Cyprus in 1974 a large area in which the territorial
sovereign has no power of control. Anything may occur in this area: arrests;
detention in concentration camps; deportation to Turkey; inhuman and degrading
treatment; in extreme cases execution without anyone (except the officers of
the respondent Government) being able to prove the circumstances in which these
persons have undergone their detention. In these circumstances to require the
applicant Government (which has absolutely no means of obtaining information on
what happens in the prisons in North Cyprus or Turkey) to prove that these
persons have undergone any particular treatment contrary to Articles 5, 4, 3
and 2 is to ask for the impossible.
The special features of the case call for a different legal approach to
that currently applied both as regards the basis of liability and consequently
also as regards the burden of proof.
As a general rule (and this applies in the present case) the respondent
Government is automatically responsible for damage *554 caused by abnormal activities or
activities which involve exceptional risks if they occur or originate within
its jurisdiction. That being so, a military occupation following on a series of
hostile acts and massive and repeated violations of the Convention [FN156] produces
a type of liability which may be classified as strict liability.
It must accordingly be admitted that misconduct on the part of individuals
exercising government authority, whatever their exact position in domestic law,
results in a violation by the State of its obligations under the Convention.
The actions of such officers in a situation where the pre- existing legal order
has been fundamentally upset by the occupying power is a risk
liability for which responsibility must be borne exclusively by the State which
produced this situation.
FN156 See Commission's Report of 10 July
1976 on Apps. Nos. 6780/74 and 6950/75, Cyprus v. Turkey.
As regards the burden of proof, it is true that in principle the
complaining or applicant State is under an obligation to prove the
internationally illegal act prejudicial to its interests. This proof is
facilitated by the 'presumption of effectiveness' which applies to the
territorial sovereign with respect to its actions (including illegal actions)
within its territorial and maritime frontiers. It follows that the presumption
of effectiveness based on normal territorial control does not necessarily imply
knowledge by the applicant State of the illegal acts committed on the territory
of the State accused of having violated the provisions of the Convention. This
is a rule of international law of general application. This point should be
noted because the organs of the Convention have frequently and rightly referred
to the rules of international law. [FN157]
FN157 Consistent case law illustrated by:
App. No. 6315/73, DR 1, p. 73; Engel v. Netherlands (No. 1) (1976) 1 E.H.R.R.
647, para. 72; Lawless v. Ireland (No. 1) (1960) 1 E.H.R.R. 1, paras. 39-41;
Ireland v. United Kingdom (1978) 2 E.H.R.R. 25, para. 222; App. No. 343/57,
Yearbook 2, p. 413; App. No. 788/76, Yearbook 4, p. 116 etc.
What has been said above with regard to the burden of proof appears
clearly from the following passage of the International Court of Justice's
decision in the Corfu Channel case:
It is clear that knowledge of the minelaying
cannot be imputed to the Albanian Government by reason merely of the fact that
a minefield discovered in Albanian territorial waters caused the explosions
[...] It cannot be concluded from the mere fact of the control exercised by a
State over its territory and waters that that State necessarily knew, or ought
to have known, of any unlawful act perpetrated therein, nor yet that it
necessarily knew, or should have known, the authors. This fact, by itself and
apart from other circumstances, neither involves prima facie
responsibility nor shifts the burden of proof. On the other hand, the fact of
this exclusive territorial control exercised by a State within its frontiers
has a bearing upon the methods of proof available to establish the knowledge of
that State as to such events. By reason of this exclusive control, the other
State, the victim of a breach of international law, is often unable to furnish
direct proof of facts giving rise to responsibility. *555 Such a State should be allowed a more
liberal recourse to interferences of fact and circumstantial evidence. [FN158]
FN158 Reports of ICJ 1949, pp. 18-22.
The concept of effectiveness of territorial control
(which applies particularly to the respondent Party because, failing to comply
with the requirements of Article 28, it refuses to co-operate with the
Commission) may contribute to remedy the natural inequality between States in
the production of evidence. In this connection, Charles de Visscher [FN159]
speaks of proof by presumption 'which makes it
possible to apply against the respondent State the means of information which
it controls on the specific ground of the effectiveness of this control.'
FN159 Les effectivites en Droit
International Public, 1967, p. 120.
In the instant case it is for the applicant State to prove the existence
before July and August 1974 of the persons subsequently reported missing on the
basis of the population registers, but it would be contrary to the rules of
international law and natural justice to require the applicant State to prove
facts of which by the nature of things it has no knowledge seeing that they
occurred on the territory over which the respondent exercises exclusive control
either as a military occupant or as territorial sovereign. The undersigned
considers that it would have been a correct application of the Convention to
consider the specific case of persons reported missing by using the method
which has just been indicated and which is better adapted to the special nature
of the law governing inter-State relations (in particular inter-European
relations), as they are regulated by the Convention, and above all a method
better suited to the circumstances of the present case.
The reasoning which I have just expounded brings me by a different path,
which I consider the only appropriate means of approaching the case before us,
to support the Commission's conclusions [FN160] concerning the violation of
Article 5. But this is not the only provision which was violated in the case of
the missing persons.
FN160 Para. 123.
(b) In my opinion, the Commission was under an obligation to apply
Article 4(1) of the Convention and to find that it had been violated.
Under this provision 'no one shall be held in slavery or servitude.' The
fact that the persons reported missing in the present case (presuming that they
are still alive) have been detained for more than nine years without possible
contact with their family amounts to servitude within the meaning of Article
4(1). According to the definition given by the Commission in Van Droogenbroek
v. Belgium, [FN161] 'in addition to the obligation to provide another with
certain services the concept of servitude includes the obligation ... to live
on another's property and the impossibility of changing his condition.' It is
not clear how in the case under consideration, there can be any question of '
services rendered' though servitude in the *556 ordinary sense of the term implies a
state of dependence or inferiority and a constraint. Moreover the notion of
'services rendered' falls into the category of forced or compulsory labour.
[FN162] What is relevant and well-established in the instant case is that these
persons were obliged to live on the territory (the
'property') of another and that they were and are 'unable to change their
condition.' This strictly speaking amounts to servitude.
FN161 App. No. 7906/77, para. 79.
FN162 Art. 4(2).
(c) Though Article 5 is relevant, Article 3 is so in a greater degree.
It states a fundamental rule which, like that concluded in Article 4, is
mandatory law (jus cogens). [FN163] A State is
not only obliged not to violate this provision directly but also take all
necessary preventive measures of an administrative
nature or by passing statutes or making regulations to ensure that inhuman or
degrading treatment does not occur on its territory. Detention or deprivation
of freedom which continues for more than nine years in circumstances in which
the families of the missing persons (wives, fiancŽes, fathers, mothers and
children) are kept in complete ignorance of the fate of their close relatives
amounts both as regards the persons directly concerned and as regards their
families to inhuman treatment. There is a further aggravating circumstance: the
respondent Government remains obstinately silent and refuses to engage in any
dialogue: it does not reply to the families' petitions and is not prepared to
allow any enquiry on the spot.
FN163 See Art. 15(2) of the Convention.
(d) Though in July 1976 when the Commission adopted its first Report on
Applications Nos. 6780/74 abd 6950/75 there might have been some doubts as to
their survival, at the end of 1983 the chance of discovering them alive has
decreased to the point that it has practically disappeared. After nine years,
in the face of enquiries from numerous different sources, including
international organs and private associations, the respondent Government, which
could and should have provided information, which might have been satisfactory,
as to the fate of one or other of the missing persons, refuses to provide the
least explanation to the persons concerned. There is therefore a strong
presumption ('proof by presumption,' to adopt the wording used above) that a
certain number of the missing persons have died as a result of the treatment
they received: inordinately long detention in solitary confinement, i.e.
a violation in the instant case of Article 2 seeing that, according to the
Commission's case law, States have an obligation to take adequate measures to
protect life.
II. Displacement of persons and
separation of families
My comments relate to paragraph 128 of the Report. Although the
Commission in setting out in its Report the respective submissions of the
Parties to the proceedings was obliged on equitable grounds to maintain an
equal balance between the applicant and the respondent *557 (even though the respondent
Government's submissions were only put forward at an earlier stage of the
proceedings relating to admissibility) it is nevertheless the Commission's duty
not to repeat assertions which from an historical point of view are completely
without foundation, particularly when facts which prove the contrary are a
matter of common knowledge. The Report takes note of the respondent
Government's submission that the colonists newly installed in the North of
Cyprus are former Turkish Cypriots who had been expelled by the Greek Cypriots
and merely returned to their former homes and homeland after 1974. On the
contrary, it is quite clear and irrefutably established that the persons
installed by the occupation forces in the north of the island in violation of
Article 49(6) of the Geneva Convention of 12 August 1949 on 'the protection of
civilian persons in time of war' [FN164] are purely and simply colonists of
Anatolian origin, and the difference in culture and behaviour has been a source
of conflicts and clashes between these new arrivals and the Turkish Cypriots.
Moreover, the general question of repatriating Cypriots living outside Cyprus
was dealt with in great detail by the Establishment Treaty between the United
Kingdom, Greece, Turkey and the Republic of Cyprus of 16 August 1960. [FN165]
About 50,000 colonists transferred from Anatolia were installed in the north of
Cyprus in violation of this agreement. The Commission, which is also an organ
of 'enquiry,' [FN166] had a duty to exclude ex officio
any allegation which was manifestly and notoriously contradicted by the facts
and to restrict itself to its final conclusion as set out in paragraph 476 of
its Report of 10 July 1976 and reproduced in paragraph 149 in fine of the
present Report: ' the Commission ... found strong indications that Turks from
the mainland had settled in the North in houses belonging to Greek Cypriots.'
FN164 'The occupying power shall not
deport or transfer part of its own civilian population into the territory it
occupies.'
FN165 Appendix D: Nationality.
FN166 Art. 28 of the Convention.
III. Destruction of cultural property
It is regrettable that, in the part of the Report relating to violations
of Article 1 of the First Protocol
to the Convention, [FN167] the Commission did not refer to cultural property
(destruction of historical churches, ancient or medieval monuments, looting of
private collections of ancient objects and private libraries particularly in
the city of Famagusta; export and sale by auction of property of historical
value) seeing that this heritage (which is both Cypriot and European)
is an essential element affecting the identity of the community which is the
victim of a situation which has lasted for more than nine years.
FN167 Paras. 137-155.
The Commission, which according to the Preamble is required in all
circumstances to maintain the rule of law, was under a duty to apply *558
Article 1 of the First Protocol, and in fact did so [FN168] by drawing the
legal consequences, but it also had a duty to apply this provision in the light
of numerous conventions and agreements relating to the protection of cultural
property (these texts are often of a declaratory nature and thus constitute
customary law): first and foremost the Hague Convention of 14 May 1954 'for the
protection of cultural property in the event of armed conflict' [FN169] and the
'Convention concerning the means of prohibiting and preventing the illicit
import, export and transfer of ownership in cultural property' adopted by the
General Conference of UNESCO on 14 November 1970. [FN170]
FN168 Paras. 148-150.
FN169 This Convention was ratified by the
respondent State in 1965.
FN170 See in particular Art. 11: 'The
export and transfer of ownership of cultural property under compulsion arising
directly or indirectly from the occupation of the country by a foreign power
shall be regarded as illicit.'
IV. Failure of the Commission to make
'proposals' under Article 31(3) of the Convention
These last comments are based on the idea that law should be effective
as otherwise there cannot be any valid system for the protection of human
rights and fundamental freedoms. Though this principle of effectiveness is of
general application it is particularly urgent and compelling in the instant
case. It is now nearly 10 years since the first Cypriot application was brought
before the Commission [FN171] soon to be followed by a second. [FN172] This was
the starting-point of rather long and meticulous proceedings which led to the
adoption of the Report on 10 July 1976: the Commission found a considerable
number of violations without making any proposals with a view to remedying a
situation which is continuing indefinitely to the detriment of the rule of law
in Europe. It took five years for the Commission to determine the merits of the
present case after its decision on the admissibility of this application on 10
July 1978. The inordinate length of the proceedings [FN173] and also the fact
that nothing has been done in the meantime to remedy the violations committed
[FN174] will no doubt produce a feeling of frustration among the thousands of
direct and indirect victims of the violations committed. Such a situation is
certainly incompatible with the general spirit of the system of protection
which obligatorily binds the Member States of the Council of Europe.
FN171 No. 6780/74.
FN172 No. 6950/75.
FN173 Five years: 1978-1983.
FN174 See Committee of Ministers
Resolution DH (79) 1.
According to the Preamble to the Convention, which refers expressly to
the Universal Declaration of Human
Rights, the Commission was required to comply with the requirement contained in
Article 28 of that Declaration which provides that 'everyone is entitled to an
international order in which the rights and freedoms set forth in this
Declaration can be fully realised.'
*559 In fact the mere statement of human
rights as mandatory rules binding the Member States implies as a logical
corollary the guarantee of their effectiveness. In the instant case it would
have been desirable that, as in the First Greek case, the Commission attempted,
in addition to the violations which it found to exist, to discover the root of
the trouble and indicate practical means of remedying it. Because here, far
more than in the great majority of cases with which the Commission dealt, European
public order has been disturbed. It follows that the
charge of 'denial of justice,' which in the case of failure of the organs of
the Convention to perform their task would certainly be raised, would involve
particularly serious repercussions for everything connected with the future of
our institutions.
It would therefore have been in accordance with the spirit of the
Convention and the principle of effectiveness if the Commission were to decide
to make proposals so that:
-- urgent action was undertaken to provide a
remedy for the breaches of the human rights found to be violated by the present
Report. This remedial action would be coupled with an assurance that the rights
of all Cypriots would be guaranteed and effectively
protected;
-- that without delay full information should be
provided by the competent authorities of the respondent Government on the fate
of the missing persons.
Unless considerations outside the Convention constitute an obstacle to
the statement of such a conclusion in the Report it is impossible to find any
good reason or counter-indication of a legal or technical nature for not
formulating these two proposals which would have constituted the minimum
required by European public order in such circumstances.
Separate Opinion of Mr. H. G. Schermers on
the violation of Article 8 with respect to the occupation of houses
[FN175]
FN175 Para. 135 of the Report.
In its Report of 10 July 1976 on Applications Nos. 6780/74 and 6950/75
the Commission found that in 1974 Turkey had violated Article 8 of the
Convention with respect to a large number of people who were chased away from
their houses and not allowed to return.
In its decision of 21 October 1977 the Committee of Ministers of the
Council of Europe took note of the Commission's Report and asked that measures
be taken in order to put an end to such violations as might continue to occur.
In my opinion this created an obligation for Turkey under Article 32(4)
of the Convention to remedy the violations found. Therefore, in the present
case a violation of Article 32(4) should be found rather than a violation of
Article 8.
But there is another aspect of Article 8 in as far as it guarantees the *560 right to everyone to respect for his
home. The home is the building in which people live. With their chasing away
the factual situation changes. After some time the people concerned will
establish a new home. This does not legalise the violation of Article 8 but it
will initiate a development which gradually replaces the obligation to restore
the original situation by an obligation to provide due compensation. Generally,
there will be other people occupying the building. They establish there their
home. As Article 8 guarantees the right to respect for his home to everyone,
the rights of the new occupant should be taken into account, even if the occupation
was originally established on an invalid title. After a long period of time
restoration of the status quo ante will become a violation
of Article 8 with respect to the new occupant. It is difficult to establish how
long this period is to be, because in fact it is a gradual process. On the one
side, original occupants of a house will die, their rights being taken over by
heirs who will succeed in the financial interest in compensation but who have
not the attachments of a home. On the other side, children will be born in the
house who have no other place which they could consider as their home.
I accept that Turkey has violated the Convention in 1974 and that it is
still under the obligation to provide for a remedy, [FN176] but I cannot accept
as the only possible remedy that Turkey should [FN177] be obliged to break up
the homes of all present occupants in order to allow the original occupants to
return.
FN176 Under Art. 32(4).
FN177 Under Art. 8.