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Court's (Majority) Opinion:
..............................................................................
. . .
.....3. The applicant Government
alleged with respect to the situation that has existed in Cyprus
since the start of Turkey's military operations in northern Cyprus
in July 1974 that the Government of Turkey ("the respondent
Government") have [sic] continued to violate the [European]
Convention [on Human Rights] .
..............................................................................
. . .
THE CIRCUMSTANCES OF THE CASE
..............................................................................
. . .
.....13. The complaints raised in
this application arise out of the Turkish military operations
in northern Cyprus in July and August 1974 and the continuing
division of the territory of Cyprus. . . .
.....14. A major development in
the continuing division of Cyprus occurred in November 1983 with
the proclamation of the "Turkish Republic of Northern Cyprus"
(the "TRNC") and the subsequent enactment of the "TRNC
Constitution" on 7 May 1985.
.....This development was condemned
by the international community. On 18 November 1983 the United
Nations Security Council adopted Resolution 541 (1983) declaring
the proclamation of the establishment of the "TRNC"
legally invalid and calling upon all States not to recognise
any Cypriot State other than the Republic of Cyprus. A similar
call was made by the Security Council on 11 May 1984 in its Resolution
550 (1984). In November 1983 the Committee of Ministers of the
Council of Europe decided that it continued to regard the government
of the Republic of Cyprus as the sole legitimate government of
Cyprus and called for respect of the sovereignty, independence,
territorial integrity and unity of the Republic of Cyprus.
.....15. According to the respondent
Government, the "TRNC" is a democratic and constitutional
State which is politically independent of all other sovereign
States including Turkey, and the administration in northern Cyprus
has been set up by the Turkish-Cypriot people in the exercise
of its right to self-determination and not by Turkey. Notwithstanding
this view, it is only the Cypriot government which is recognised
internationally as the government of the Republic of Cyprus in
the context of diplomatic and treaty relations and the working
of international organisations.
.....16. United Nations peacekeeping
forces ("UNFICYP") maintain a buffer-zone. A number
of political initiatives have been taken at the level of the
United Nations aimed at settling the Cyprus problem on the basis
of institutional arrangements acceptable to both sides.
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. . .
18. The instant application is the first to have been referred
to the Court. The applicant Government requested the Court in
their memorial to "decide and declare that the respondent
State [Turkey] is responsible for continuing violations . . .
of the Convention . . . .
.....These allegations were invoked
with reference to four broad categories of complaints: alleged
violations of the rights of Greek-Cypriot missing persons and
their relatives; alleged violations of the home and property
rights of displaced persons; alleged violations of the rights
of enclaved Greek Cypriots in northern Cyprus; alleged violations
of the rights of Turkish Cypriots and the Gypsy community in
northern Cyprus.
[Here, the court addresses the alleged violations of the rights
of Greek-Cypriot missing persons and their property in the TRNC,
which is governed by military courts.]
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. . .
THE LAW
..............................................................................
. . .
.....3. As to the respondent
State's responsibility under the Convention in respect of the
alleged .........violations
.....69. The respondent Government
disputed Turkey's liability under the Convention for the allegations
set out in the application. In their submissions to the Commission,
the respondent Government claimed that the acts and omissions
complained of were imputable exclusively to the "Turkish
Republic of Northern Cyprus" (the "TRNC"), an
independent State established by the Turkish-Cypriot community
in the exercise of its right to self-determination and possessing
exclusive control and authority over the territory north of the
United Nations buffer-zone. . . .
.....70. As in the proceedings before
the Commission, the applicant Government contended before the
Court that the "TRNC" was an illegal entity under international
law since it owed its existence to the respondent State's unlawful
act of invasion of the northern part of Cyprus in 1974 and to
its continuing unlawful occupation of that part of Cyprus ever
since. The respondent State's attempt to reinforce the division
of Cyprus through the proclamation of the establishment of the
"TRNC" in 1983 was vigorously condemned by the international
community, as evidenced by the adoption by the United Nations
Security Council of Resolutions 541 (1983) and 550 (1984) and
by the Council of Europe's Committee of Ministers of its resolution
of 24 November 1983 (see paragraph 14 above).
.....71. The applicant Government
stressed that even if Turkey had no legal title in international
law to northern Cyprus, Turkey did have legal responsibility
for that area in Convention terms, given that she exercised overall
military and economic control over the area. This overall and,
in addition, exclusive control of the occupied area was confirmed
by irrefutable evidence of Turkey's power to dictate the course
of events in the occupied area. In the applicant Government's
submission, a Contracting State to the Convention could not,
by way of delegation of powers to a subordinate and unlawful
administration, avoid its responsibility for breaches of the
Convention, indeed of international law in general. To hold otherwise
would, in the present context of northern Cyprus, give rise to
a grave lacuna in the system of human-rights protection and,
indeed, render the Convention system there inoperative.
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. . .
.....FOR THESE REASONS, THE COURT
..............................................................................
. . .
.....I. Preliminary issues
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. . .
.....4. Holds by sixteen votes to
one that the facts complained of in the application fall within
the "jurisdiction" of Turkey . . . and therefore entail
the respondent State's responsibility under the Convention;
.....5. Holds by ten votes to seven
that, for the purposes of former Article 26 (current Article
35 § 1) of the Convention, remedies available in the "TRNC"
may be regarded as "domestic remedies" of the respondent
State.
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. . .
PARTLY DISSENTING OPINION OF JUDGE PALM
.......................[joined
by five other judges]
.....While sharing most of the
Court's conclusions in this complex case, I feel obliged to record
my dissent in respect of one major issue: the significance attached
by the Court to the existence of a system of remedies within
the "TRNC". I consider the Court's approach to this
question to be so misguided that it taints the judgment as a
whole. . . .
.....In its Loizidou v. Turkey judgment
of 18 December 1996 (merits) the Court found that Article 159
of the [TRNC] fundamental law was to be considered as invalid
against the background of the refusal of the international community
to regard the "TRNC" as a State under international
law. It did not "consider it desirable, let alone necessary
. . . to elaborate a general theory concerning the lawfulness
of legislative and administrative acts of the ‘TRNC'"
(p. 2231, §§ 44-45). The Court was obviously concerned
to limit its reasoning . . . to avoid straying into areas of
particular complexity and delicacy concerning the "legality"
of acts of an "outlaw" regime. It is my firm view that
the Court should be equally careful in the present case to avoid
elaborating a general theory concerning the validity and effectiveness
of remedies in the "TRNC" . . . . .....
Such a policy of judicial restraint in this area is supported
by three main considerations. In the first place, any consideration
of remedies gives rise to the obvious difficulty that the entire
court system in the "TRNC" derives its legal authority
from constitutional provisions whose validity the Court cannot
recognise–for the same reasons that it could not recognise
Article 159 in the Loizidou case–without conferring a degree
of legitimacy on an entity from which the international community
has withheld recognition. An international court should not consider
itself free to disregard either the consistent practice of States
in this respect or the repeated calls of the international community
not to facilitate the entity's assertion of statehood. . . .
The artificiality of this approach which reflects the reality
that the "TRNC" has no standing in the international
community or indeed before the Court and is recognised by Turkey
alone is, in itself, a reason for the Court to exercise great
caution before giving a broad ruling on the status of such "remedies"
under the Convention.
.....Of course, I accept that even
in a situation of illegality it is clearly in the interests of
the inhabitants that some form of court system is set up to enable
basic everyday disputes to be settled by a source of authority.
Moreover, it is not to be excluded that the decisions of such
courts, particularly in civil matters – divorce, custody
arrangements, contracts and the like–could be recognised
by the courts of other countries. Such recognition has indeed
occurred from time to time, notably after the situation of illegality
has ended. However, it is precisely because of the importance
of such arrangements for the local population–if the situation
permits that recourse be had to them–that an international
court should be reluctant to venture into any examination of
their legality unless it is strictly necessary to do so. Any
other approach may ultimately be harmful to the de facto utility
of such a system. For example, a finding of "illegality"
may discourage the use of such fora to settle disputes. Equally,
a finding upholding the lawfulness of such arrangements in the
present case could give rise to a call by the legitimate Cypriot
government that such tribunals be shunned by the Greek-Cypriot
community so as not to compromise the government's internationally
asserted claim of illegality. The Court should not assume too
readily that it is acting for the benefit of the local population
in addressing the legality of such arrangements.
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. . .
.....In the present judgment the
Court unwisely embarks on the elaboration of a general theory
of remedies in the "TRNC" . . . .
.....More importantly, such a general
conclusion has, as a direct consequence, that the European Court
of Human Rights may recognise as legally valid decisions of the
"TRNC" courts and, implicitly, the provisions of the
Constitution instituting the court system. Such an acknowledgment,
notwithstanding the Court's constant assertions to the contrary,
can only serve to undermine the firm position taken by the international
community which through the United Nations Security Council has
declared the proclamation of the "TRNC"'s statehood
"legally invalid" and which has stood firm in withholding
recognition from the "TRNC".
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. . .
...PARTLY DISSENTING OPINION
...OF JUDGE MARCUS-HELMONS
..........................(Translation)
..............................................................................
. . .
.....Accordingly, . . . requiring
the inhabitants of Cyprus to exhaust domestic remedies before
the "TRNC" before applying to the European Court of
Human Rights when, moreover, those remedies are known to be ineffective
obviously constitutes an additional obstacle for the inhabitants
to surmount in their legitimate desire to secure an end to the
violation of a fundamental right by applying to Strasbourg.
..............................................................................
. . .
.....[T]he judgment the Court seems
to jump to hasty and ill-advised conclusions which it considers
to be a widely held opinion on this subject. As evidence of this,
one need only examine, among other sources, the case-law of the
Supreme Court of the United States on the validity of the confederate
acts of the South during the Civil War. It should be noted that
the southern authorities were legal until they seceded (the position
thus being totally different from one in which courts are illegally
established after a military invasion by a neighbouring State).
Shortly after the Civil War ended, the Supreme Court recognised
in the cases [citations omitted] and within very strict limits
that the administrative acts and judgments of the confederate
courts had some validity to the extent that their aim and execution
did not conflict with the authority of the national Government
and did not infringe citizens' constitutional rights. . . . |