(1982)
4 E.H.R.R. 482
*482
Cyprus v. Turkey
Applications
6780/74 and 6950/75
Before
the European Commission of Human Rights
Eur
Comm HR
10
July 1976
1. Procedure. Effect of refusal of
respondent State to co-operate in proceedings before the Commission.
The refusal of a respondent State to
co-operate in proceedings under
Article 28 did not prevent the Commission 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 [55].
2. Procedure. Difficulties in
establishing the facts.
The large number of alleged violations
caused the Commission to restrict its investigation to a limited number of
representative cases. In the absence of any submissions by the
non-participating respondent State, the Commission proceeded with its
examination of the facts on the basis of the materials before it. The
Commission distinguished in its Report between matters of common knowledge,
facts established to the Commission's satisfaction, allegations for which
evidence existed (ranging from prima facie to strong) and
allegations for which no relevant evidence had been found [76-82].
3. State responsibility under the
Convention.
State jurisdiction, in the meaning of
Article 1 of the Convention, existed in so far as a respondent State exercised
control over persons or property [83].
4. Right to respect for home (Art.
8). Displacement of persons.
The displacement of persons from their
homes raised issues under Article 8 [99]. Preventing Greek Cypriot refugees
from returning to their homes in the north of Cyprus constituted an
infringement of Article 8 which was imputable to the respondent State [208].
The eviction of Greek Cypriots from their homes was not in conformity with
Article 8 [209]. The respondent State did not act in accordance with Article 8
when it refused to allow several thousand Greek Cypriots to return to their
homes in the north after they had been transferred to the South under
intercommunal agreements [210]. The separation of families brought about by
measures of displacement was not in conformity with Article 8 [211].
Right to liberty (Art. 5). Freedom
of Movement (Prot. 4 Art. 2). Deprivation of liberty.
5.
(a) The curfew imposed at
night on 'enclaved' Greek Cypriots in the north of Cyprus, whilst a restriction
of liberty, was not a deprivation of liberty within the meaning of Article 5
(1) [235].
(b) The alleged
restrictions of movement outside the built up area of villages in the north of
Cyprus would have fallen within the scope of Article 2 of Protocol No. 4 which
had not been ratified by either Cyprus or Turkey [236]. *483
(c) The confinement of more
than 2,000 Greek Cypriots in detention centres, which was imputable to Turkey,
amounted to a deprivation of liberty within the meaning of Article 5 (1) of the
Convention. The detention was not justified under any of the subparagraphs of
Article 5 (1) [285].
(d) The detention in Turkey
of Greek Cypriot military personnel and of Greek Cypriot civilians was a
deprivation of liberty under Article 5 (1) and was not justified by any of the
subparagraphs of the article [309].
(e) The Commission did not
examine the application of Article 5 to persons accorded the status of
prisoners of war because such persons had been visited by delegates of the
International Committee of the Red Cross and were subject to the Geneva
Protocols [313].
6. Right to life (Art. 2).
There were strong indications of
violations of Article 2 (1) of the Convention by the respondent State in a
substantial number of cases [353].
Inhuman treatment (Art. 3). Rape.
Conditions of detention. Physical assaults on persons not in detention.
7.
(a) There was strong
evidence of many rapes by Turkish soldiers [372]. It was not shown that the
Turkish authorities had taken adequate measures to prevent rapes or that they
generally took any disciplinary measures following such incidents. The failure
to prevent rapes was imputable to Turkey [373]. The incidents of rape
constituted 'inhuman treatment' in the sense of Article 3 of the Convention
[374].
(b) There was evidence of
physical ill treatment of detainees by Turkish soldiers. The ill treatment was
of sufficient severity to have amounted to 'inhuman treatment' in the sense of
Article 3 of the Convention [394].
(c) The withholding from
prisoners of an adequate supply of food and drinking water and of adequate
medical treatment constituted 'inhuman treatment' in the sense of Article 3
[405].
(d) There were indications
of ill treatment by Turkish soldiers of persons not in detention [410].
8. Right to property (Prot. 1 Art.
1). Deprivation of possessions.
There had been deprivations of
possessions of Greek Cypriots on a large scale, the exact scope of which could
not be determined. The deprivation of possessions was imputable to the
respondent State and not justifiable under Article 1 of Protocol No. 1 [486].
9. Forced labour (Art. 4).
The incompleteness of the investigation
did not allow any conclusions to be made on the allegations of forced labour
[495].
Obligation to secure the Convention
rights (Art. 1). Right to an effective remedy before a national authority (Art.
13). Non discrimination (Art. 14). Articles 17 and 18.
10.
(a) Article 1 of the
Convention did not confer any rights in addition to those mentioned in Section
1 of the Convention. It could not be the subject of a separate breach [498].
(b) The Commission found no
evidence that effective remedies before a national authority had been available
[501].
(c) The acts violating the
Convention had been exclusively directed against members of one of the two
communities in *484 Cyprus, namely the Greek Cypriot community. The respondent
State had thus failed to secure the rights and freedoms in these articles
without discrimination on grounds of ethnic origin, race and religion as
required by Article 14 [503].
(d) No separate issues were
found under Articles 17 and 18 [505].
Derogation in time of war or other
public emergency threatening the life of the nation (Art. 15). Competence to
derogate. Communication under Article 15 (3). Requirement of some formal and
public act of derogation.
11.
(a) When the Commission had
found that the respondent State was responsible under the Convention to the
extent that it exercised control over persons and property, it followed that to
the same extent the State was the High Contracting Party competent ratione
loci for any measures of derogation under Article 15 of
the Convention [525].
(b) The Commission reserved
the question whether measures of derogation are null under the Convention when
a State has failed to notify the Secretary General of the Council of Europe as
required under Article 15 (3) [526].
(c) Article 15 required
some formal and public act of derogation such as a declaration of martial law
or a state of emergency. When no such act had been proclaimed by the High
Contracting Party concerned, Article 15 could not apply [528].
(d) The declaration of
martial law in certain provinces of Turkey did not extend to cover the
treatment of persons brought into Turkey from the northern area of Cyprus
[530].
The following cases are referred to in
the Commission's Report:
1. Australia v. France (Nuclear Tests)
[1974] I.C.J. Rep. 253.
2. Austria v. Italy (App. No. 788/60) 4
Yearbook 116.
3. Federal Republic of Germany v.
Iceland (Fisheries Jurisdiction) [1974] I.C.J. Rep. 175.
4. First Greek Case (App. Nos.
3321-3323/67 and 3344/67) 12 Yearbook passim.
5. Greece v. United Kingdom (App. No.
156/56) 1 Yearbook 128.
6. Greece v. United Kingdom (App. No.
299/57) 2 Yearbook 274.
7. Ireland v. United Kingdom
(Commission's Report) Series B.
8. Lawless v. Ireland (Commission's
Report) Series B. 1960-1961.
9. New Zealand v. France (Nuclear
Tests) [1974] I.C.J. Rep. 457.
10. United Kingdom v. Iceland
(Fisheries Jurisdiction) [1974] I.C.J. Rep. 3.
The following additional cases are
referred to in the Commision's Admissibility Decision:
11. First Greek Case (New Allegations)
11 Yearbook 730.
12. Retimag v. Germany (App. No.
712/60) 4 Yearbook 384.
13. X v. Germany (App. No. 1611/62) 8
Yearbook 158.
TABULAR OR
GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
REPORT OF THE
COMMISSION
INTRODUCTION
1. The following is an outline of the
two applications as submitted by the Republic of Cyprus to the European
Commission of Human Rights under Article 24 of the European Convention on Human
Rights. In their first application (No. 6780/74) 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 their
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 (No. 6950/75) 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.
2. The respondent Government argued
that the applications were inadmissible on the following grounds: the
applicants were not *486 entitled to represent the Republic of Cyprus and accordingly
had no standing before the Commission as applicants under Article 24 of the
Convention; domestic remedies had not been exhausted as required by Article 26
of the Convention; the respondent Government had no jurisdiction in the area of
Cyprus where most of the alleged acts were claimed to have occurred; and the
applications constituted an abuse of the right of petition.
3. The two applications were joined by
the Commission on 21 May 1975. Having received the Parties' written
observations on the admissibility of the applications the Commission, on 22 and
23 May 1975, heard their oral submissions on this issue. On 26 May 1975 the
Commission declared the applications admissible.[1]
4. For the purpose of carrying out its
double task under Article 28 of the Convention of establishing the facts of the
case and being at the Parties' disposal with a view to securing a friendly
settlement, the Commission set up a Delegation which, in the course of its
investigation, held a hearing of witnesses and obtained further evidence in
Cyprus in September 1975. Both the Commission and the Delegation also put
themselves at the Parties' disposal with a view to securing a friendly
settlement.
The respondent Government, for reasons
stated in their communication of 27 November 1975,[2]
did not participate in the proceedings on the merits and were not prepared to
enter into negotiations with the applicant Government with a view to reaching a
friendly settlement of the case. The legal problems arising as a result of this
non-participation are dealt with in Part I, Chapter 4, of the Report.
5. The present Report has been drawn up
by the Commission in pursuance of
Article 31 of the Convention after deliberation in plenary session. The
Report was adopted on 10 July 1976 and is now transmitted to the Committee of
Ministers in accordance with paragraph (2) of Article 31. A friendly settlement
of the case has not in the circumstances been possible and the purpose of the
Commission in this Report, as provided in paragraph (1) of Article 31, is
accordingly:
(1) to establish the facts,
and
(2) to state an opinion as
to whether the facts found disclose a breach by the respondent Government of
its obligations under the Convention.
PART I
--GENERAL
Chapter 1
--Background of Events
6. Cyprus was under Turkish rule from
1571, when it was conquered by the Turks from the Venetians, until 1878, when
it came under British administration. It was annexed to the British Crown *487 in 1914 and, after Turkey had under the
Treaty of Lausanne of 24 July 1923[3]
recognised this annexation, made a Crown colony in 1925.
7. In 1931 serious disturbances arose
in Cyprus in connection with the demand for union with Greece (enosis)
put forward by the Greek Cypriots (about 80 per cent. of the population). After
World War II the enosis movement was resumed by the Greek
Cypriots under the leadership of Archbishop Makarios, but the Turkish Cypriots
(about 18 per cent. of the population) rejected a union with Greece and
proposed the continuation of British rule or the island's partition.
In 1955 the London Conference of the
Foreign Ministers of Greece, Turkey and the United Kingdom failed to produce a
solution. In Cyprus emergency measures[4]
were introduced by the British authorities in order to suppress the guerilla
activities of EOKA (National Organisation of Cypriot Struggle) headed by
Colonel Grivas, a former officer of the Greek army.
The United Nations General Assembly,
seized of the Cyprus question as an issue of self-determinatation since 1955,
repeatedly urged the parties concerned to find a solution through negotiation.
8. The proposal, accepted by Archbishop
Makarios, that Cyprus should become an independent state eventually led to
negotiations and, at the Zurich Conference (1959), to an agreement between
Greece and Turkey, subsequently accepted by the United Kingdom and the leaders
of the Greek and Turkish Cypriot communities (London agreement).[5]
The following instruments resulted from
the agreements:
-- the Treaty of
Establishment of 16 August 1960[6]
setting up the Republic of Cyprus and providing that its territory shall
comprise the island of Cyprus with the exception of the military bases of
Dhekhelia and Akrotiri (which remained under British sovereignty);
-- the Treaty of Alliance
of 16 August 1960,[7] in which
Cyprus, Greece and Turkey undertook to resist any attack or aggression directed
against the independence or territorial integrity of Cyprus; it further
provided that a tripartite headquarters should be established and that military
contingents should be stationed on the territory of the Republic, the Greek and
Turkish contingents to consist of 950 and 650 officers and men respectively; *488
-- the Treaty of Guarantee
of 16 August 1960,[8] in which
Cyprus undertook to maintain the constitutional order created, and in which
Greece, Turkey and the United Kingdom guaranteed this order and the
independence and integrity of Cyprus.
9. Under the Constitution of Cyprus of
1960, provided for in the above agreements, executive power was vested in a
Greek Cypriot President (since 1960 Archbishop Makarios) and a Turkish Cypriot
Vice-President (Mr. Ktchk, succeeded by Mr. Denktash). Decisions of the
Council of Ministers, composed of seven Greek and three Turkish Cypriots, were
binding on the President and Vice- President who could, however, exercise a
veto in matters relating to security, defence and foreign affairs. Of the
members of the House of Representatives 70 per cent. were to be elected from
the Greek and 30 per cent. from the Turkish Cypriot community, and the civil
service was to consist of 70 per cent. Greek and 30 per cent. Turkish Cypriots.
10. In 1963 violent disturbances broke
out between the two communities in Cyprus resulting in losses of life and
property on both sides. The administration ceased to function on a bicommunal
basis. There were further outbreaks of intercommunal violence in 1964, 1965 and
1967.
A United Nations peace-keeping force
(United Nations Force in Cyprus-- UNFICYP) was sent to the island in 1964 and
attempts were made by United Nations representatives to mediate (Plaza Report
of 1965). These attempts having failed, intercommunal talks under the auspices
of the United Nations Secretary General began in 1968 and continued until July
1974. These talks brought progress in some respect but no final agreement was
reached.
11. On 6 July 1974 President Makarios
made public a letter he had sent on 2 July to General Ghizikis, head of the new
regime in Greece since November 1973. In this letter he charged EOKA-B, an illegal
organisation which since 1972 had been conducting a terrorist campaign against
his Government, and officers of Greek nationality in the Cypriot National Guard
with an attempt on his life, instigated by Greek Government agencies. General
Denissis, commanding officer of the Cypriot National Guard, having been called
to Athens on 13 July, a coup d'tat took place in Cyprus
under the leadership of other Greek officers on 15 July 1974 and, as a result,
President Makarios had to leave the island on 16 July.
12. In Turkey the National Security
Council met on 15 July 1974. The Council of Ministers decided on the following
day to convene both Houses of the National Assembly on 19 July. In a note to
the United Kingdom Turkey called for joint British-Turkish action under the
Treaty of Guarantee to protect the independence of Cyprus and announced that,
if this did not take place, she would proceed *489 unilaterally as provided for by the
Treaty. Conversations followed in London on 18 July between the Turkish Prime
Minister Ecevit and Foreign Minister ad interim
Isik and United Kingdom Foreign Minister Callaghan, but no agreement on a joint
action was reached. Large troop movements began towards the south and west of
Turkey. On 19 July the Grand National Assembly (Chamber and Senate) met in
closed session in Ankara, it alone having authority under the Turkish
Constitution (Article 66) to order dispatch of armed forces abroad.
On 20 July 1974 Turkish army units were
landed in the Kyrenia area of Cyprus with naval and air support. The purpose of
this operation was stated in a Government communiqu of the same day[9]
in the following words:
A coup d'tat
has been carried out in Cyprus by both the Greek contingent stationed in the
Island and the unconstitutional Greek National Guard which is under the
complete command and control of officers from the mainland Greece. Since the
forces involved in the coup are the military units under the direct command of
a foreign State, the independence and the territorial integrity of Cyprus have
been seriously impaired as a result of this action. The present situation in
the Island, as has emerged from the coup, has completely
darkened the future of the independent State of Cyprus. In these circumstances
it is hoped that all States which are favouring the independence and the
territorial integrity of Cyprus will support Turkey in her action aimed at
restoring the legitimate order in the Island, undertaken in her capacity as a
State which guaranteed the independence of Cyprus under international treaties.
After having fully evaluated the recent events which took place in the Island
and in view of the failure of the consultations and efforts it undertook in
accordance with the Treaty of Guarantee of 1960 as one of the guarantor powers,
the Government of the Republic of Turkey had decided to carry out its
obligations under Article 4/2 of the said Treaty, with a view to enable Cyprus
to survive as an independent State and to safeguard its territorial integrity
and the security of life and property of the Turkish community and even that of
many Greek Cypriots who are faced with all sorts of dangers and pressures under
the new Administration. The purpose of our peaceful action is to eliminate the
danger directed against the very existence of the Republic of Cyprus and the
rights of all Cypriots as a whole and to restore the independence, territorial
integrity and security and the order established by the basic Articles of the
Constitution. Turkey, in the action she undertook as the Guarantor Power shall
act with the sincere desire of cooperation with the United Nations
Peace-keeping Force in the Island in the restoration of conditions of security.
On the other hand, because of the above- mentioned aim of the action, those
Greek Cypriots who are wholeheartedly attached to the independence of Cyprus
and to the rule of democracy in the Island, need not be concerned. Turkey's aim
is to restore security and human rights without any discrimination whatsoever
among the communities. Our purpose in Cyprus, a bicommunal State, is to get the
intercommunal talks to start as rapidly as possible in order to restore the
situation prior to the coup and the legitimate
order. But it is natural that we cannot consider as *490 interlocutor the present de facto
Administration which seized power by the use of brutal force and which is not
representative of the Greek Cypriot community. Following the restoration of
constitutional order, Turkey will strictly abide by what is required from a
guarantor power which fulfilled its treaty obligations.
By 22 July 1974 the Turkish army units
landed in the Kyrenia area had joined up with Turkish military units already
posted or dropped by parachute in the northern part of Nicosia.
13. Following Resolution 353 of the United
Nations Security Council of 20 July 1974[10]
a cease-fire was agreed for 16.00 hours on 22 July, but the area of Turkish
military action continued to be extended up to 30 July 1974, when it formed a
rough triangle between the northern part of Nicosia and pointed approximately
six miles west, and six miles east of Kyrenia.
The coup d'tat
having failed, Assembly President Clerides took office as acting President of
Cyprus on 23 July 1974.
The First Geneva Conference of the
Foreign Ministers of Greece, Turkey and the United Kingdom, meeting as
Guarantors under the Treaty of Guarantee, opened on 25 July 1974 and on 30 July
issued a declaration[11]
convening a second conference on 8 August.
14. The Second Geneva Conference was
abortive and the Turkish forces on 14 August 1974 resumed their armed action
with, according to their general Staff, over 20,000 men and 200 tanks. At 17.00
hours on 16 August a cease-fire was declared. The Turkish forces had by then
reached a line which runs from Morphou through Nicosia to the south of
Famagusta; in two areas, Louroujina and west of Famagusta, they advanced beyond
this line.
On 7 December 1974 President Makarios
returned to Cyprus.
15. The Parliamentary Assembly of the
Council of Europe established a working group on Cyprus on 5 September and
adopted Resolutions 736 and 737 on 15 September 1974. The working group visited
Cyprus from 12 to 14 December. On 27 January 1975 the Parliamentary Assembly
adopted Recommendation 756, related to matters dealt with in the report made on
Cyprus by the Committee on Population and Refugees.[12]
From 10 to 13 March the working group visited Ankara and Athens and on 10 April
the Political Affairs Committee submitted a Report on Cyprus and a draft
Recommendation,[13] which was
unanimously adopted by the Parliamentary Assembly on 24 April 1975. On 9
January 1976 the Political Affairs Committee submitted a Report on the
situation in the Eastern Mediterranean with a draft Resolution on the situation
in *491
Cyprus,[14] which was
adopted by the Parliamentary Assembly on 30 January.
16. The Security Council of the United
Nations from the very beginning of the "explosive situation" in
Cyprus in July 1974 acted continuously. Hundreds of letters of the responsible
leaders of the two communities were sent to the Security Council, written
communications of concerned member States of the United Nations dealt with the
situation and Special Reports of the Secretary General on developments in
Cyprus were submitted to the Security Council.
Action of the United Nations comprised:
-- Security Council
Resolutions 353,[15] 360,[16]
361[17]
and further resolutions (concerning inter alia
the extension of UNFICYP);
-- General Assembly
Resolutions 3212--XXIX,[18]
3395--XXX[19] and
3450--XXX;[20]
-- Resolutions 4 (XXXI)[21]
and 4 (XXXII)[22] of the
Commission on Human Rights;
-- intercommunal talks held
under the auspices of the Secretary General.
17. Intercommunal talks led by Mr.
Clerides and Mr. Denktash, took place intermittently between September 1974 and
February 1975. On 20 September 1974 agreement was reached on exchange of
prisoners and detainees, completed on 31 October. Following an agreement of 11
November 1974 the evacuation to the south of Cyprus of persons held in the
remaining two detention centres of Voni and Gypsou was completed by the Turkish
authorities on 28 November. On 17 January 1975 a sub-committee on humanitarian
issues was established.
On 13 February 1975 a constituent
assembly set up by the Turkish Cypriot community declared the area north of the
demarcation line[23] to
constitute a Turkish Federated State of Cyprus and on 8 June a constitution for
it was promulgated.
Further intercommunal talks were held
in Vienna in April, June and July/August 1975. They led to an agreement
allowing all Turkish Cypriots in the south of the island to move to the north,
permitting Greek Cypriots in the north to stay or go to the south and, in this
connection, providing for Greek Cypriot priests and teachers to come to the
north and for 800 Greek Cypriot families to be reunited there. The following
intercommunal talks in New York were adjourned in September 1975 without result
and sine die, but further *492 talks were held in Vienna from 17 to 21
February 1976. In April 1976 written proposals on the various aspects of the
Cyprus problem were exchanged between the two communities. Since then no
further meeting has taken place between the two representatives of the
communities in the talks, who are now Mr. Papadopoullos and Mr. Onan.
18. The Cyprus problem has many facets
and elements--international and national, political, social, psychological,
economic, humanitarian. Therefore the problem of human rights protection raised
by the present applications is only one element amongst a complexity of elements.
Chapter 2
--Substance of the Applications
(a)
Application No. 6780/74
19. On 19 September 1974 the applicant
Government submitted this application to the Commission in the following terms:
1. The Republic of Cyprus
contends that the Republic of Turkey has committed and continues to commit, in
the course of the events outlined hereinafter, both in Cyprus and Turkey,
breaches of Articles 1, 2, 3, 4, 5, 6, 8, 13 and 17 of the Convention and
Article 1 of the First Protocol and of Article 14 of the Convention in
conjunction with all the aforementioned Articles.
2. On 20 July 1974 Turkey,
without prior declaration of war, has invaded Cyprus and commenced military
operations in its territory, by means of land, sea and air forces, and until 30
July 1974 has occupied a sizeable area in the northern part of Cyprus.
3. On 14 August 1974 by
further military operations Turkey extended its occupation to about 40 per
cent. of the territory of the Republic of Cyprus, and continues to remain in
occupation of such territory.
4. In the course of the
said military operations and occupation, Turkish armed forces have, by way of
systematic conduct and adopted practice, caused deprivation of life, including
indiscriminate killing of civilians, have subjected persons of both sexes and
all ages to torture, inhuman and degrading treatment and punishment, including
commission of rapes and detention under inhuman conditions, have arrested and
are detaining in Cyprus and Turkey hundreds of persons arbitrarily and with no
lawful authority, are subjecting the said persons to forced labour under
conditions amounting to slavery or servitude, have caused through the aforesaid
detention, as well as by deplacement of thousands of persons from their places
of residence and refusal to all of them to return thereto, separations of
families and other interferences with private life, have caused destruction of
property and obstruction of free enjoyment of property, and all the above acts
have been directed against Greek Cypriots only, due, inter alia,
to their national origin, race and religion ...
20. The applicant Government gave
further particulars of the above allegations in their written submission of 15
November 1974 (entitled ' Particulars of the Application'), at the hearing on
22 and 23 May 1975 and in the subsequent proceedings before the Commission and
its Delegation.
*493
(b) Application No. 6950/75
21. On 21 March 1975 the applicant
Government submitted this application to the Commission in the following terms:
1. The Republic of Cyprus
contends that the Republic of Turkey has committed and continues to commit,
since 19 September 1974 when Application No. 6780/74 was filed, in the areas
occupied by the Turkish army in Cyprus, under the actual and exclusive
authority and control of Turkey (as per paragraphs 12, 18 and 19 of the
Particulars of Application No. 6780/74 pending before the Commission of Human
Rights) breaches of Articles 1, 2, 3, 4, 5, 6, 8, 13 and 17 of the Convention
and Article 1 of the First Protocol and of Article 14 of the Convention in
conjunction with all the aforementioned Articles.
2. Turkey, since 19
September 1974, continues to occupy 40 per cent. of the Territory of the
Republic of Cyprus, seized as described in the Particulars of the said
Application ...
3. In the said Turkish
occupied areas the following atrocities and crimes were committed by way of
systematic conduct by Turkey's state organs in flagrant violation of the
obligations of Turkey under the European Convention on Human Rights during the
period from 19 September 1974 until the filing of the present Application:
(a)
Murders in cold blood of civilians including women and old men. Also about
3,000 persons (many of them civilians), who were in the Turkish occupied areas,
are still missing and it is feared that they were murdered by the Turkish army.
(b)
Wholesale and repeated rapes. Even women of ages up to 80 were savagely raped
by members of the Turkish forces. In some areas forced prostitution of Greek
Cypriot girls continues to be practised. Many women who remained in the Turkish
occupied areas became pregnant as a result of the rapes committed by the
Turkish troops.
(c)
Forcible eviction from homes and land. The Greek Cypriots who were forcibly
expelled by the Turkish army from their homes (about 200,000) as per paragraph
20C of (the Particulars of) Application No. 6780/74, are still being prevented
by the Turkish army to return to their homes in the Turkish occupied areas and
are refugees in their own country living in open camps under inhuman
conditions. Moreover, the Turkish military authorities continue to expel
forcibly from their homes the remaining Greek Cypriot inhabitants in the
Turkish occupied areas most of whom are forcibly transferred to concentration
camps. They are not even allowed to take with them their basic belongings.
Their homes and properties have been distributed amongst the Turkish Cypriots
who were shifted from the southern part of Cyprus into the Turkish occupied
areas as well as amongst many Turks who were illegally brought from Turkey in
an attempt to change the demographic pattern on the Island.
(d)
Looting by members of the Turkish army of houses and business premises
belonging to Greek Cypriots continues to be extensively practised.
(e)
Robbery of the agricultural produce and livestock, housing units, stocks in
stores, in factories and shops owned by Greek Cypriots and of jewellery and
other valuables found on Greek Cypriots arrested by the Turkish army continues
uninterrupted. The agricultural produce belonging to Greek Cypriots continues
to be collected and exported directly or indirectly to markets in several
European countries. Nothing belonging to the Greek Cypriots in the Turkish
occupied areas has been returned and no compensation was paid or offered in
respect thereof.
(f)
The seizure, appropriation, exploitation and distribution of land, *494 houses, enterprises and industries
belonging to Greek Cypriots, as described in paragraph 20F of the Particulars
of Application No. 6780/74 continues.
(g)
Thousands of Greek Cypriot civilians of all ages and both sexes are arbitrarily
detained by the Turkish military authorities in the Turkish occupied areas
under miserable conditions. For this purpose additional concentration camps
were established. The report mentioned in ... the observations of the Cyprus
Government on the admissibility of Application No. 6780/74 describes the
conditions of some cases of such detention. The situation of most of the
detainees is desperate.
(h)
Greek Cypriot detainees and inhabitants of the Turkish occupied areas,
including children, women and elderly people, continue to be the victims of
systematic tortures and of other inhuman and degrading treatment, e.g.
wounding, beating, electric shocks, lack of food and medical treatment, etc.
(i)
Forced labour. A great number of persons detained by the Turkish army,
including women, were and still are made, during their detention, to perform
forced and compulsory labour.
(j)
Wanton destruction of properties belonging to Greek Cypriots including
religious items found in the Greek Orthodox Churches.
(k)
Forced expatriation of a number of Greek Cypriots living in the Turkish
occupied areas, to Turkey.
(l)
Separation of families. Many families are still separated as a result of some
of the crimes described above such as detention and forcible eviction.
4. All the above atrocities
were entirely unconnected with any military operations. They were all committed
at a time when no military operations or any fighting whatsoever was taking
place.
5. The aforementioned
atrocities and criminal acts were directed against Greek Cypriots because of
their ethnic origin, race and religion. The object was to destroy and eradicate
the Greek population of the Turkish occupied areas so as to move therein Turks,
thus creating by artificial means a Turkish populated area in furtherance of
Turkey's policy for the formation of the so-called 'Turkish Cypriot Federated
State'. In pursuance of this policy the members of the Turkish army who took
part in the invasion (about 40,000) and their families have been recently
declared as subjects of the illegally and unilaterally proclaimed 'Turkish
Cypriot Federated State', i.e. the Turkish occupied
areas of Cyprus, with the official blessing of Turkey and have occupied the
properties belonging to the Greek Cypriots.
6. No remedy in the Turkish
Courts was under the circumstances likely to be effective and adequate for the
atrocities and crimes in question. In any case all the above atrocities and
crimes were committed under such circumstances which excuse the failure to
resort to any domestic remedy for the purposes of Article 26 of the Convention.
7. The situation resulting
from Turkey's occupation of the areas in question affected also the rights and
freedoms of the Turkish Cypriots in those areas including those who, in
furtherance of Turkey's political aims, were shifted thereto from the southern
part of Cyprus where they have their homes and properties.
8. All the above atrocities
and criminal acts can be proved by evidence including evidence of eye
witnesses. Other sources of evidence as to the above matters are international
organisations like the United Nations and the International Red Cross.
9. Further particulars of
the above violations of human rights, including statements by witnesses, will
be made available as soon as possible.
*495
10. It should be mentioned that it was not possible until now to ascertain in
full the magnitude of the savage crimes perpetrated by Turkey in the
Turkish-controlled areas as these areas are still sealed off and the Turkish
military authorities do not allow free access to them even by UNFICYP and
humanitarian organisations ...
22. The applicant Government gave further
particulars of the above allegations at the hearing on 22 and 23 May 1975, in
their written submissions of 14 July 1975 (entitled 'Particulars of the
Application') and in the subsequent proceedings before the Commission and its
Delegation.
(c) Statement
of the respondent Government
23. The respondent Government, in a
letter of 27 November 1975, declared that 'Turkey cannot be required to accept
the Greek Cypriot administration as applicant, since there is no authority
which can properly require the Turkish Government to recognise against its will
the legitimacy of a government which has usurped the powers of the State in
violation of the Constitution of which Turkey is a guarantor'. It followed in
the Government's view 'that the function which is the Commission's principal
task under Article 28 of the Convention on Human Rights, namely of placing
itself at the disposal of the parties with a view to securing a friendly
settlement, cannot be discharged, for the simple reason that the Turkish Government
cannot agree to enter into talks with the representatives of an administration
which it is entirely unable to recognise as a legal authority empowered to
represent the Republic of Cyprus.' The Government stated that they were
therefore 'unable to take part in the proceedings on the merits before the
Commission. Since the press communiqu publishing the Commission's decision on
admissibility was issued, the Turkish Government has in fact categorically
refrained from participating in any of the Commission's activities. In this
connection, it should be emphasised that the remarks made by Ambassador Gnver,
the new Permanent Representative of Turkey to the Council of Europe, during a
courtesy call which he paid to the President of the Commission, although they
were included in the case file in the form of a note drafted by the Commission,
can in no way be interpreted as participation by my Government in the
Commission's examination of the merits of the case.'
Chapter 3
--Proceedings before the Commission
24. The following is an outline of the
proceedings.
(a)
Proceedings on admissibility
25. Application No. 6780/74
was introduced on 19 September 1974 and on the President's instructions
communicated on the following day to the respondent Government for observations
on admissibility. The Commission considered the application on 30 September and
on 1 October 1974 decided that the applicant Government should be invited to
submit further details.
*496
26. The applicant Government's 'Particulars of the Application' of 15 November
and the respondent Government's observations of 21 November on the
admissibility of the application were examined by the Commission on 13 and 14
December 1974. The Commission decided that the respondent Government, and subsequently
the applicant Government, should be invited to submit such further observations
in writing as they might wish to make.
27. On 20 March 1975 the Commission,
having regard to the respondent Government's further observations of 22 January
and the applicant Government's reply of 27 February, decided to hold a hearing
on the admissibility of the application on 22 and 23 May 1975.
28. Application No. 6950/75
was introduced on 21 March 1975 and on the Commission's instructions
communicated on 25 March to the respondent Government for observations on
admissibility.
On 21 May 1975 the Commission
considered the application, the respondent Government's observations of 24
April and the applicant Government's reply of 10 May 1975. The Commission
decided that the two applications should be joined and that the Parties should
be invited at the hearing to make oral submissions on the admissibility of both
applications.
29. The Commission heard the Parties'
oral submissions on both applications on 22 and 23 May and deliberated on 23,
24 and 26 May 1975. On 26 May it declared the applications admissible.
The Parties were informed of this
decision on the same day. The full text of the decision was approved by the
Commission on 12 July and communicated to the Parties on 16 July 1975.
(b)
Proceedings on the merits
30. For the purpose of carrying out its
tasks under Article 28 of the Convention the Commission on 28 May 1975 set up a
Delegation composed of the President, Mr. Fawcett, and five other members,
Messrs. Ermacora, Busuttil, Frowein, Jrundsson and Trechsel.
On 30 May 1975 the Delegation adopted a
provisional programme for ascertaining the facts of the case and conducting any
necessary investigations under Article 28 (a). This was communicated to the
Parties who were invited to meet the Delegation in June 1975.
31. In a press communiqu of 30 May
1975[24]
the respondent Government, reiterating their view that 'the Greek Cypriot
Administration cannot by itself represent the Republic of Cyprus', declared
that the Commission's decision on the admissibility of the applications would
not influence this attitude. Accordingly 'the Turkish Government will not
accept the Greek Cypriot Administration as the Government of Cyprus (and) as a
party in the application(s)'.
*497
In a communication of 6 June 1975 the respondent Government, referring to the
above declaration, submitted that proceedings (under Article 28) could not
start until they had received the final text of the Commission's decision on
the admissibility.
32. The President, having consulted the
other members of the Delegation, decided on 10 June 1975 that the meeting with
the Parties should be maintained on the ground that the reasoning of the
Commission's decision on admissibility was not relevant for the purpose of the
meeting.
The respondent Government in a
communication of 16 June 1975 invoking Rule 42 (4) of the Commission's Rules of
Procedure,[25] maintained
their position.
33. At the Delegation's meeting on 19
June 1975 the applicant Government's representatives submitted suggestions
concerning the Delegation's provisional programme.[26]
The respondent Government were not represented.
The Delegation decided to visit Cyprus
in September in order to begin its investigation. Details of this decision were
communicated to the Parties who were also informed that the full text of the
Comission's decision on admissibility, drafted on the basis of its
deliberations in May, would be approved at the Commission's July session and
communicated to the Parties immediately thereafter. In accordance with the
Commission's practice, however, proceedings under Article 28 could be started
before this communication had taken place; this was not excluded by the
Convention nor by Rule 42 (4) of the Rules of Procedure.
34. In a telex communication of 26 June
1975 the applicant Government contended that Turkey had, in disregard of the
Commission's pending proceedings, committed further violations of the
Convention, in particular in Famagusta. In a communication of 2 July the
applicant Government complained inter alia of expulsions of
Greek Cypriots from the north of Cyprus by Turkish military authorities.
35. The full text of the decision on
the admissibility of the applications[27]
was approved by the Commission on 12 July and communicated to the Parties on 16
July 1975.
On the Delegation's proposal the
Commission at the same time suggested to the respondent Government that a
meeting for the discussion of procedural questions be held before 16 August
1975 between representatives of the Government and members of the Delegation;
the applicant Government would also be invited to take part.
*498
The respondent Government did not reply to this invitation and the meeting did
therefore not take place.
36. The Particulars of Application No.
6950/75 were filed by the applicant Government on 1 August 1975.
37. On 1 September 1975 the Delegation[28]
met in Nicosia. Between 2 and 6 September 1975 it heard seventeen witnesses,
visited two refugee camps and obtained further evidence. Details of this
investigation are given in Chapter 5 below.
The respondent
Government did not participate in the above investigation and the Delegation
therefore decided to hear all witnesses in the absence also of the applicant
Government's representatives.
The applicant Government furnished
facilities for the investigation, in accordance with Article 28 paragraph (a)
in fine of the Convention. The respondent Government, although requested to do
so, did not offer or provide any facilities.
38. Details of this development were as
follows: On 1 September 1975 the President and Principal Delegate rang the
Turkish Embassy in Nicosia and asked whether the respondent Government would
send a representative and whether the Delegates could enter the northern area
of Cyprus if they desired to do so. The acting head of mission replied that the
Turkish Government maintained their attitude that the taking of evidence by the
Delegation was ultra vires given the Government's
objections to the Commission's decision on admissibility; and that only the
authorities of the Turkish Federated State were competent to authorise taking
of evidence in or visits to that area. He advised approach to Mr. Unel or Mr.
Orek, the latter designated as acting President of the Federated State, in the
absence abroad of Mr. Denktash.
Mr. Orek made a broadcast on 1
September 1975 criticising the one-sided character of the Commission's
investigation. After a telephone call by the Principal Delegate he agreed to a
meeting. On 4 September Messrs. Fawcett and Ermacora, with the approval of the
Delegation, visited Mr. Orek in the northern sector of Nicosia. It was made
clear to him, and in a subsequent broadcast he confirmed it, that the Delegates
were visiting him, not in his capacity as designated acting President, but to
invite him, as a leading Turkish Cypriot, to give evidence to the Delegation or
to indicate persons who could give evidence or places that could be usefully
visited, in particular Famagusta, in relation to the present applications. His
response was that he was not prepared to do or authorise any of these things
unless the Commission's investigation were extended to cover complaints by
Turkish Cypriots against the regime in Cyprus, since 1963, and in particular in
respect of certain incidents at Tokhm and Maratha in 1974. It was pointed out
to him that, for various reasons explained, these complaints were outside the
competence of *499
the Commission and its Delegation, unless they were relevant to matters
raised in the present applications to the Commission or made the subject of
distinct applications under Article 24 of the Convention.
39. The Principal Delegate also visited
Mr. Gorg, Senior Legal and Political Adviser to UNFICYP, in particular to see
whether it or the United Nations could assist the Commission's investigation by
provision of evidence or otherwise, and in particular reports of U.N. inquiries
into alleged atrocities both on the Greek Cypriot and Turkish Cypriot side. In
a long conversation, in which Mr. Gorg surveyed the whole situation in the
light of his long experience in Cyprus, he explained that it was essential that
the absolute impartiality of UNFICYP be secured and that it should therefore
not even appear to be assisting an investigation tending against one side or
the other in the island. He regretfully said that he could not therefore offer
evidence or propose witnesses to the Delegation.
40. On 11 September 1975 the Delegation
communicated to the respondent Government the evidence of one of the witnesses
heard in Cyprus who, according to his statements, had together with other Greek
Cypriots been deported by the Turkish armed forces to a prison in Adana in
Turkey. The Government were invited to furnish facilities for a visit by the
Delegation to that prison for the purpose of hearing witnesses and to name any
witnesses which they wished to call.
On 6 October 1975 the Permanent
Representative of Turkey informed the President of the Commission that his
Government could not accept any procedure which implied recognition of the
'Greek Cypriot Administration'. He added that the testimony received was false
and that the Government would not provide facilities for an enquiry at Adana.
41. Further particulars of the
applications were filed by the applicant Government on 17 September and 3
October 1975.
42. On 6 and 8 October 1975 the
Commission considered the applications in the light of the evidence obtained in
Cyprus. The Commission decided to invite the Parties' comments on that evidence
and to request them to indicate whether they wished to propose further evidence
and to make final submissions on the merits of the applications at a hearing
before the Commission.
43. The applicant Government, in a
telex message of 22 October 1975, complained that a large number of Turks from
Turkey were being moved into the northern area of Cyprus.
On 10 November 1975 the Government
stated that they did not want to make any further submissions.
44. The respondent Government, in their
letter of 27 November 1975,[29]
declared that Turkey 'cannot be required to accept the Greek Cypriot
Administration as applicant' and that the Turkish Government *500 were consequently unable to participate
in any proceedings under Article 28 of the Convention in the present case.
45. The applicant Government replied on
10 December 1975 that the views advanced by the respondent Government had
already been dealt with in the Commission's decision on the admissibility of
the applications. The applicant Government considered that legal proceedings
such as the present ones, 'whose object is to bring before the Commission
alleged violations of the public order of Europe and to ensure the observance
of the legal engagements undertaken under the European Convention on Human
Rights, cannot depend in any way on whether the State Party against which the
charges of violations of human rights are brought before the Commission, does
or does not recognise the Government which brings such charges'.
46. On 18 and 19 December 1975 the
Commission continued its examination of the applications in the light of the
Parties' above communications. It decided to terminate its investigation and,
for reasons set out in the following Chapter, to draft a Report under Article
31 of the Convention.
47. On 10, 11 and 12 March 1976 the
Commission considered parts of its draft Report. It decided to invite the
Parties to submit such observations as they might wish to make on the
applicability of the Convention to a situation of military action as in the
present case, bearing in mind Article 15.
48. On 14, 15, 17 and 18 May 1976 the
Commission continued its examination of the draft Report in the light of the
applicant Government's communications of 15 April and 10 May and the respondent
Government's communication of 15 April 1976. It decided not to hold a hearing
on the applicability of the Convention to a situation of military action as in
the present case, as requested by the applicant Government.
49. On 8, 9 and 10 July 1976 the Commission
further continued its consideration of the draft Report. It adopted the present
Report on 10 July.
Chapter 4
--Application of Articles 28 and 31 of the Convention in the circumstances of
the present case
50. The Commission, noting the
respondent Government's refusal to participate in the proceedings provided for
by Article 28 of the Convention, has considered the procedure to be followed in
the circumstances of the present case.
51. Following its decision on the
admissibility of the applications, the Commission had a double task under
Article 28:
-- under paragraph (a),
with a view to ascertaining the facts, it had to 'undertake together with the
representatives of the parties an examination of the petition(s) and, if need
be, an investigation, for the effective conduct of which the States *501 concerned shall furnish all necessary
facilities, after an exchange of views with the Commission'.;
-- under paragraph (b), it
had to 'place itself at the disposal of the parties concerned with a view to
securing a friendly settlement of the matter on the basis of respect for Human
Rights as defined in this Convention'.
52. Where proceedings in an admitted
application are not terminated by such a friendly settlement, or by a
Commission decision under Article 29 of the Convention or Rule 49 of its Rules
of Procedure, the Commission further, under Article 31 of the Convention, has
to 'draw up a Report on the facts and state its opinion as to whether the facts
found disclose a breach by the State concerned of its obligations under the
Convention'.[30]
53. Neither the Convention nor the
Commission's Rules of Procedure contain an express provision for the case where
a respondent party, as in the present applications, fails to co-operate in the
Commission's proceedings under Article 28. In dealing with this situation under
Article 28 the Commission has therefore had regard to its practice in previous
cases and, in particular, to the procedure followed in the First Greek Case.
Moreover, although their functions under the Convention differ in some
respects, the Commission has also noted Rule 49 of the Rules of the European
Court of Human Rights.[31]
54. The Commission first observes that,
in carrying out its task of establishing the facts of a case, it has to seek
the parties' co-operation. This is clear from the terms of Article 28 (a) which
provides that the Commission shall undertake an examination of the petition
'together with the representatives of the parties' and further states that the
States concerned shall, after an exchange of views with the Commission, furnish
all necessary facilities for any necessary investigation. Article 28 (b)
further obliges the Commission to place itself at the parties' disposal with a
view to securing a settlement.
55. It does not follow from either of
these provisions, however, that a respondent party's failure to co-operate in
proceedings under Article 28 could prevent the Commission from completing, as
far as possible, its examination of the application and from making a *502 Report to the Committee of Ministers
under Article 31 of the Convention.[32]
56. The above considerations are in
conformity with the procedure adopted by the Commission in the First Greek Case
and the Commission has followed the same procedure in the present applications,
noting that the following elements are common to both cases:
--
the respondent Government fully co-operated at the admissibility stage;
--
an investigation under Article 28 (a) of the Convention, though incomplete, was
carried out. The Commission recalls in this connection that, in the First Greek
Case, the Sub-Commission decided to terminate its visit to Greece on the ground
that it had been prevented from hearing certain further witnesses and from
inspecting a detention camp and a prison[33];
during the subsequent proceedings the respondent Government refrained from
submitting oral or written conclusions to the Sub-Commission.[34]
57. The Commission has also had regard
to the procedure which it adopted in the Second Greek Case, in its 'Report on
the Present State of the Proceedings' of 5 October 1970. Paragraphs 18 to 20 of
that Report read as follows:
18. It is a general
principle of judicial procedure in national legal systems, as well as before
international tribunals, that a respondent party cannot evade the jurisdiction
of a competent tribunal simply by refusing to take part in the proceedings
instituted against it. It is a general principle of judicial procedure that a
competent tribunal may give judgment by default. The Commission is of the
opinion that this principle should also apply to its own proceedings in
appropriate circumstances. If this were not so, a respondent party might find
it too easy, and might even feel encouraged, to evade its obligations under the
Convention simply by not entering an appearance before the Commission. To that
extent, it may therefore be necessary to depart from the strict adherence to
the above-mentioned principle, according to which the findings of the
Commission should be based on submissions and evidence presented by both
parties. The Commission would, however, even in such circumstances have to
satisfy itself that the information before it is sufficient to express a
well-founded opinion. *503 There could be no
question of automatically finding in favour of the applicant, irrespective of
the circumstances of the case.
19. In the present case the
circumstances are of a very particular nature. The Commission finds it
necessary to recall that the denunciation of the Convention by the respondent
Government and its withdrawal from the Council of Europe took place at a time
when the Committee of Ministers had before it a proposal for the suspension of
Greece from membership in the Council. After the Greek Government had announced
its decision to withdraw, the Committee of Ministers on 12 December 1969
adopted Resolution (69) 51 in which it expressed its understanding that this
Government would abstain from any further participation in the activities of
the Council of Europe as from the same day, and concluded that on this
understanding there was no need to pursue the procedure for suspension.
Moreover, the Chairman of the Committee of Ministers reported to the
Consultative Assembly of the Council of Europe on 29 January 1970 that it was
the opinion of the majority of the Ministers' Deputies at their 186th Session
that, from the date on which the above Resolution was adopted, 'Greece, while
formally remaining a member of the Council of Europe until 31 December 1970,
must be considered as being suspended de facto
from its rights of representation, so that it can no longer take part in the
work of the Council of Europe'.
20. Against this
background, the refusal of the Greek Government to take part in the proceedings
instituted before the Commission by the applicant Governments in the present
case appears in a different light from the situation which might typically be
expected to exist when a respondent Government fails to appear before the
Commission. The general reasons which would normally prompt the Commission to
'give judgment by default', as indicated in paragraph 18 above, do not carry
the same weight in the present circumstances, where the refusal of the
respondent Government to appear before the Commission may in some way be connected
with the general relationship between the Council of Europe and Greece.
58. The Commission considers that the
circumstances described in the above Report are substantially different from
the procedural situation in the present applications. It notes in this respect
that Turkey, the respondent Party in these applications, is a member State of
the Council of Europe and a High Contracting Party to the Convention on Human
Rights, which continues to co- operate in the Committee of Ministers in matters
relating to the application of this Convention.
59. The Commission therefore does not
find it appropriate in the present applications to address an interim report to
the Committee of Ministers. It concludes that it has the task to draw up a
Report under Article 31 of the Convention on the basis of the material now
before it.
Chapter 5
--Evidence obtained
INTRODUCTION
60. The Commission was faced with
special difficulties in its investigation which are described in Chapter 6
below.
*504
61. The Commission's Delegation, in its provisional programme,[35]
considered that investigations should be carried out in such parts of Cyprus as
might be necessary with a view to:
-- finding out the best way
of obtaining relevant evidence concerning the alleged violations, and
-- hearing witnesses and
visiting localities which might be useful for this purpose.
The Delegation therefore proposed to
interview first a number of community leaders, e.g.
mayors of localities in which violations of the Convention were alleged to have
taken place, and to that effect:
-- to invite the applicant
Government to indicate a limited number of such persons and the alleged
violations with which they were concerned, and
-- subsequently to invite
the respondent Government to propose relevant witnesses concerning the same
allegations.
On the basis of the information so
obtained the Delegation intended to fix the programme for its further
proceedings.
62. At the Delegation's meeting on 19
June 1975 the applicant Government submitted a list of community leaders and
other representative witnesses who, in the Government's view, could testify on
the alleged violations in view of their capacity; the Government also made
certain proposals as to localities to be visited by the Delegation.
63. During its visit to Cyprus from 2
to 6 September 1975 the Delegation heard 14 of the 29 witnesses proposed by the
applicant Government. It also heard three further witnesses, who were refugees
from the Kyrenia area, and members of the Delegation interviewed eleven
refugees in refugee camps.
64. The respondent Government, although
invited to do so, did not propose any witnesses or file other evidence.[36]
65. The Commission's establishment of
the facts in the present Report is based on submissions made and evidence
received up to 18 May 1976.
I. WITNESSES
AND PERSONS INTERVIEWED
1. Witnesses
66. During its visit to Cyprus the
Delegation heard the following witnesses who had been proposed by the applicant
Government in view of their capacity:
TABULAR OR
GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
67. The Delegation also heard as
witnesses the following refugees from the Kyrenia area:
Mrs. M. Kyprianou, Nicosia, formerly
Elia.
Mr. V. Efthymiou, Nicosia, formerly
Karavas.
Mrs. S. Efthymiou, Nicosia, formerly
Karavas.
68. All the above witnesses, with the
exception of Mrs. Kyprianou, gave their testimony in English. A full verbatim
record of the hearing of these witnesses has been produced as a separate
document.
*506
2. Persons interviewed
69. Members of the Commission's
Delegation, through interpreters, interviewed eleven refugees in the camps at
the orphanage school of Nicosia and at Stavros on 5 September 1975. The
interviews are recorded in a separate document.
II. OTHER
EVIDENCE
1. Inspection
of localities.
70. Members of the Delegation visited
in Nicosia:
-- the demarcation
("green line") separating the area controlled by the applicant
Government from the north of the city;
-- the refugee camps
mentioned in paragraph 66 above.
2. Films
71. On 4 September 1975 the Delegation
saw a set of short news films compiled and presented by the Cyprus Broadcasting
Corporation, the subjects and sources of which were:
TABULAR OR
GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
3. Reports,
statements and other documents
(a) Reports of
other international bodies
72. The Commission has taken note of
various reports on the events in Cyprus in 1974 and 1975 by the Secretary
General of the United Nations and the Consultative Assembly of the Council of
Europe which were publicly available.
(b) Statements
73. Numerous statements by individuals
were submitted by the applicant Government as evidence of the violations of the
Convention alleged in the present applications. The names of the authors of
these statements were omitted for security reasons but the Government offered
to indicate them should the Commission so require, and three authors of such
statements have in fact been heard as witnesses by the Delegation.
(c) Other
documents
74. Further documents have been
received from:
-- the applicant Government
in support of their submissions, and
-- witnesses giving
evidence before the Delegation.
75. Mr. Orek and the Turkish
Information Office also gave the Delegates collections of reports and other
publications on events in, and aspects of the administration of, Cyprus since
1963. These were received by the Principal Delegate who explained to the donors
that they could not form part of the Commission's case-file unless they were
submitted by the respondent Government and shown to be relevant to the present
applications.[37]
Chapter 6
--Difficulties arising in the establishment of the facts in the present case
76. Before examining the applicant
Government's allegations, the Commission would draw attention to certain
difficulties which, in the special circumstances of the present case, have
arisen in the establishment of the facts, and to the solutions adopted to meet
these difficulties.
I. SCOPE OF
THE ALLEGATIONS
77. One of the characteristics of the
present case is the sheer number of alleged violations of the Convention.
The Commission therefore had to
restrict its investigation of alleged violations and has tested only a limited
number of cases selected as representative.
*508
II. NON-PARTICIPATION OF THE RESPONDENT GOVERNMENT IN THE PROCEEDINGS ON THE
MERITS
78. The respondent Government, as
already stated, did not participate in the Commission's proceedings under
Article 28 (a) of the Convention: apart from the statement mentioned above,[38]
they did not make any submissions, or propose evidence, on the alleged
violations, nor offer facilities for the Commission's investigation, as provided
for in Article 28 (a) in fine: the Commission's Delegation was refused entry
into Turkey and any co-operation by Turkish or Turkish Cypriot authorities for
an investigation in the north of Cyprus.
79. In the absence of any submissions
by the respondent Government the Commission, for the reasons stated above,[39]
proceeded with its establishment of the facts on the basis of the material
before it.
III. CHARACTER
OF THE EVIDENCE
80. Evidence relating to the applicant
Government's allegations has to a great extent been provided in the testimony
of witnesses named and in documents, including written statements, submitted by
this Government. Moreover, all witnesses heard, including those selected by the
Delegation were Greek Cypriots.
81. Nevertheless, the evidence before
the Commission, and the facts established on the basis of this evidence, cannot
be seen as presenting a view of the events and incidents complained of mainly
from the Greek Cypriot side. The Commission observes in this connection that:
-- certain events and
incidents referred to in the applications are in great part a matter of public
knowledge. In particular the massive movement of population from the northern
to the southern part of Cyprus after 20 July 1974 is an undisputable fact
which, as such, calls for no particular investigation;
-- the Commission has based
its findings in part on reports of other international organisations, in
particular the United Nations;
-- the witnesses heard by
the Commission's Delegation in Cyprus testified, with little exception, with a
restraint and objectivity that gave credibility to their testimony; some of
them confirmed a number of statements in the Particulars of the Applications
about which they could not have had any direct knowledge;
-- in the evaluation of the
evidence before it, the Commission has refrained from drawing any conclusions
from the fact that the respondent Government, despite every opportunity being
offered to them, failed to make any statements, or to propose counter-evidence,
on the applicant Government's allegations. *509
82. The Commission further observes in
this connection that, as a full investigation of all the facts has not been
possible, it will in its establishment of the facts distinguish between:
-- matters of common
knowledge;
-- facts established to the
satisfaction of the Commission;
-- evidence which ranges
from bare indications, the establishment of a prima facie case to strong
indications;[40]
-- allegations for which no
relevant evidence has been found.
IV.
RESPONSIBILITY OF TURKEY UNDER THE CONVENTION
83. In its decision on the
admissibility of the present applications, the Commission found 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, 'to
the extent that they exercise control over such persons or property'.
84. In the light of its above decision,
the Commission has examined, with regard to each of the complaints considered,
whether or not the acts committed were imputable to Turkey under the
Convention.
85. The Commission finally observes
that the substance of the present applications 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.[41]
PART II
--EXAMINATION OF THE ALLEGATIONS IN THE TWO APPLICATIONS
Introduction
86. The Commission will examine the
applicant Government's allegations in the following order:
-- displacement of persons
(Article 8 of the Convention)--Chapter 1;
-- deprivation of liberty
(Article 5)--Chapter 2;
-- deprivation of life
(Article 2)--Chapter 3;
-- ill-treatment (Article
3)--Chapter 4;
-- deprivation of
possessions (Article 1 of Protocol No. 1)--Chapter 5;
-- forced labour (Article 4
of the Convention)--Chapter 6. *510
87. With regard to each item the Report
will set out:
-- the relevant submissions
of the Parties;
-- the relevant Article of
the Convention;
-- the evidence obtained;
-- an evaluation of the
said evidence;
-- the Commission's opinion
as to the responsibility of Turkey under the Convention for the acts complained
of;
-- the Commission's
conclusion as to the alleged violation.
88. The Commission, for the reason
stated above,[42] had to
restrict its investigation of the violations alleged in the present case. It
therefore has not considered as separate issues the applicant Government's
complaints concerning:
-- searches of homes
(Article 8 of the Convention);
-- interference with
correspondence (Article 8);
-- detention of Greek
Cypriots arrested at the demarcation line
(Article 5).
Chapter 1
--Displacement of persons
INTRODUCTION
89. Many of the applicant Government's
allegations of violations of human rights by the Turkish armed forces in the
Northern part of Cyprus are closely related to the displacement, on a massive
scale, of the Greek Cypriot population of that area. The Commission has
therefore first considered whether the alleged expulsion of some 200,000 Greek
Cypriot citizens and/or the alleged refusal to allow their return to their
homes in the northern area, constitute, if established, in themselves
violations of the Convention.
90. Further alleged violations of the
Convention arising out, not of the displacement as such, but of particular
circumstances of alleged measures of expulsion in individual cases, such as
ill-treatment, detention, loss of property, etc., must be distinguished from
the displacement itself and will be dealt with in the relevant context in
subsequent chapters.
91. Finally, as regards the
displacement, the Commission considers that a distinction should be made
between:
-- the movement of persons
provoked by the military action of Turkey;
-- measures of displacement
not directly connected with the said military action (e.g.
eviction from homes, expulsions and transfers across the demarcation line);
-- the refusal to allow the
return of refugees and expellees, and
-- the separation of
families brought about by measures of displacement.
This distinction, which is not to be
found in the applicant Government's submissions, will be observed by the
Commission in its *511 presentation and evaluation of the evidence obtained, and in
its opinion on the legal issues.
A. SUBMISSIONS
OF THE PARTIES
I. Applicant
Government
92. The applicant Government submitted
that, as far ago as 1964 Turkey had pursued a policy with regard to Cyprus
which envisaged a compulsory exchange of population between the Greek and
Turkish Cypriot communities in order to bring about a state of affairs in which
each of the two communities would occupy a separate part of the island. This
policy became publicly known as the so-called Attila plan.
93. The military action of 1974, and in
particular its second phase between 14 and 16 August 1974, was designed to
implement this plan by the use of force. The atrocities committed in the course
of this action constituted part of the tactics to bring about the geographical
partition of Cyprus with the object of destroying and eradicating the Greek
population of the occupied areas and creating a Turkish populated area.
94. The actions of the Turkish armed
forces included:
-- the deportation to
Turkey of men who were taken prisoners;
-- the transport of persons
(mostly women, children and old men) to the demarcation line and their
expulsion to areas controlled by the applicant Government. The Government
specially mentioned the expulsion in this manner of about 600 persons from the
villages of Karmi, Trimithi, Thermia, Kazaphani and Ayios Georgios on 2 August
1974, and of 778 persons, mostly from the Karpasia area, between 27 and 30 June
1975 (among whom were the last inhabitants of the villages Ayios Serghios,
Gerani, Akhna, Engomi, Kalopsida, Davlos, Ayios Georgios and Spatharikon).
Further cases of expulsion allegedly happened in 1976, affecting 1,051 persons
including children and elderly people from Kyrenia and Karpasia area between
January and May 1976;
-- the detention of persons
who had stayed in the areas controlled by the Turkish armed forces in
"concentration camps" where they were forced to live under such
miserable conditions that they reached a stage of complete despair, and had to
apply to move to the areas controlled by the applicant Government in order to
alleviate their condition;
-- the forcing of persons
either by the threat of arms, or by inhuman conditions of life imposed on them
by the Turkish military authorities, to sign applications for their
transportation to areas controlled by the applicant Government;
-- the creation of such
conditions in the north of Cyprus that Greek Cypriots would not wish to return
there even if they were allowed to do so. The applicant Government complained *512 in particular of faits accomplis
such as the allocation of Greek Cypriot homes and properties to Turkish
Cypriots and Turkish settlers;
-- the continued refusal to
allow the return of Greek Cypriots to their homes in the area controlled by the
Turkish forces;
95. The result of these measures was
that out of a total population of about 200,000 Greek Cypriots in the north
there remained only about 14,000 in September 1974, and about 8,000 in July
1975. The applicant Government stressed that the remainder (about 40 per cent.
of the island's Greek population) did not move to the south of their own
volition, in the exercise of the "freedom to move to the south"
proclaimed by the Turkish side, but were all expelled by the Turkish army and
not allowed to return.
96. The applicant Government also
referred to certain statements which were said to have been made by Turkish
officials. Thus the Chief Spokesman of the Turkish Foreign Ministry, Mr. Semi
Akbil, was reported to have stated that the remaining 8,000 Greek Cypriots in
the north might also have to be moved. Mr. Barutcu, Head of the Cyprus and
Greek Department of the same Ministry, had modified this statement by saying
that only those Greek Cypriots who had applied for permission to leave were
being moved, and that this was not expulsion.
97. According to the applicant
Government, however, some of the persons concerned were forced to sign
applications for their transportation to the Government controlled areas; the
majority did not even sign such applications and persistently refused to
abandon their homes. In fact, all of them were displaced by force.
II. Respondent
Government
98. The respondent Government who, for
the reasons stated above,[43]
did not take part in the proceedings on the merits, have not made any
statements with regard to these allegations.
B. RELEVANT
ARTICLE OF THE CONVENTION
99. The Commission considers that the
displacement of persons from their homes, as complained of in the present
applications, raises issues under Article 8 of the Convention (interference
with their homes and their private and family life). It notes in this
connection the applicant Government's view that the 'displacement of thousands
of persons from their places of residence and refusal to all of them to return
thereto' caused 'separations of families and other interferences with private
life'.
100. Article 8 of the Convention reads
as follows:
1. Everyone has the right
to respect for his private and family life, his home and correspondence.
*513
2. There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the rights and
freedoms of others.
C. EVIDENCE
OBTAINED
This section of the Commission's Report
(paragraphs 101-184) is omitted.
D. EVALUATION
OF THE EVIDENCE OBTAINED
I. General
185. Since it is common knowledge that
the overwhelming majority of the Greek Cypriot population from the northern
area has been displaced as a consequence of the Turkish military action in 1974
the Commission does not consider that specific evidence corroborating this is
needed. As regards the number of persons affected, the Commission accepts as
credible the figures mentioned by witness Iacovou, i.e.
about 182,000 displaced Greek Cypriots in September 1975.
II. Movement
of persons provoked by the military action of Turkey
186. The Commission considers that the
evidence before it shows that the vast majority of displaced Greek Cypriots
left the north of Cyprus as a direct consequence of the military action of
Turkey.
Many fled during the first phase of
this operation from the areas where actual fighting took place, or from areas
considered to be in danger of becoming the theatre of military operations.
There then developed in the Greek Cypriot population a sentiment of fear and
horror about the reported conduct of the Turkish troops--a sentiment
convincingly described by witnesses Odysseos and Kaniklides who came from
places as far apart as Morphou and Famagusta--and, during the second phase of
the military action, whole areas were evacuated by their Greek Cypriot
residents before the Turkish army reached them.
187. The Commission has not included in
its examination those some 20,000 refugees who only temporarily left their
homes in the south near the demarcation line.
188. The Commission was not able to
establish the exact figure of persons who fled. It assumed, however, that they
were more than 170,000 since all other categories of displaced persons together
make up only a few thousand out of the above-mentioned total of 182,000.
III. Measures
of displacement not directly connected with the Turkish military action in the
phases of actual fighting
189. The Commission considers that the
evidence before it establishes that a large number of Greek Cypriots who
remained in the *514 north of Cyprus after the arrival of the Turkish troops were
uprooted from their normal surroundings and temporarily subjected to various
measures of displacement.
(a) Eviction from houses and
transportation to other places within the north of Cyprus
190. The range of these measures
included the eviction of Greek Cypriots from houses including their own houses,
the assembling of them at certain places, forcible excursions to other places
where they were held for periods ranging from several hours to several days,
and their transfer to prisons, detention centres or other detention places.
Such measures were not only described
in a considerable number of individual statements, some of them corroborating
each other, including statements made orally to the Commission's Delegation in
Cyprus. They were also confirmed in reports of the United Nations and of the
International Committee of the Red Cross which leave no doubt as to their
correctness.
(b) Expulsion across the demarcation
line
191. The Commission finds it
established that there was an organised operation for the expulsion of the
remaining civilian population of some villages in the Kyrenia district
(Trimithi, Ayios Georgios, Karmi) to the south of Cyprus by driving them in
buses to the green line at the Ledra Palace Hotel in Nicosia on 2 August 1974.
Several persons gave the Commission's Delegation a detailed description of
these events, which were also confirmed in written statements submitted to the
Commission. Moreover, witness Soulioti saw the arrival of these expellees and
arranged their accommodation, and a UN report based on UNFICYP sources
apparently concerns the same events although no places or names are mentioned.
192. Taking into account its above
finding, the Commission finds strong indications that the other group
expulsions mentioned by witness Soulioti also happened in the way described.
This concerns, in particular, the alleged expulsion of persons from the Karpasia
area in June 1975, which was also mentioned by a number of other witnesses. The
Commission's Delegation saw a film of persons who stated that they were
expelled in June 1975, and they were also given a copy of an official letter to
the ICRC in Nicosia protesting against these expulsions. However, the
Commission has been unable to establish whether applications for transfer to
the south were made by a number of these persons and, if so, whether such
applications were made voluntarily.
193. With regard to other group
expulsions, especially those during the second phase of the Turkish military
operation, the Commission disposes only of hearsay evidence.
*515
(c) Negotiated transfer of prisoners and detainees, including those detained in
Turkey
194. The fact that several thousand
Greek Cypriot prisoners and detainees, including those detained in Turkey,
became displaced as a consequence of their transfer and release to the south of
Cyprus under the provisions of the Geneva Declaration and various intercommunal
agreements is common knowledge.
195. The Commission has not fully
investigated to which extent these persons had an option to return to their
homes in the north of Cyprus. It observes that the permission for the return of
20 per cent. of the prisoners from Turkey to their homes in the north of Cyprus
could only be achieved with difficulty, but one could assume in the
circumstances that the remainder of this group of prisoners were persons who
had actually opted for their release to the south. On the other hand it appears
from the testimony of witness Perkettis that prisoners were not asked where
they wanted to be released.
196. With regard to persons who had
been detained in detention centres in the north of Cyprus, the Commission finds
it established that they were virtually barred from returning to their homes in
the north of Cyprus. Only very few of them were released in the north. This is
recorded in public documents of the United Nations. Moreover, the statements
made by the UNHCR and ICRC representatives at the intercommunal meeting of 7
February 1975, the record of which the Commission accepts as correct, indicate
that the will of these persons to remain in the areas under Turkish control was
broken by the conditions imposed on them. Mr Zuger expressly stated, 'They want
to go south because they are not allowed to go back to their homes'. In
addition, some witnesses conveyed their impression that the detention centres
were a special device for the evacuation of the Greek Cypriot population from
the north of Cyprus. As a result of the non-participation by the respondent
Government in the proceedings on the merits, the Commission has been unable
further to investigate the purposes of those centres. It notes, however, that
the detainees were eventually moved to the south on the basis of agreements
concluded by the applicant Government with the Turkish Cypriot administration.
In the light of the above the Commission finds a strong indication that
evacuation of the Greek Cypriot population was a purpose of the detention
centres.
197. The evidence before the Commission
is clear as regards the circumstances of the displacement to the south of
persons confined to the Kyrenia Dome Hotel. The Commission finds it established
that the great majority of these persons were not allowed to return to their
homes in Kyrenia. In this respect it accepts as credible the testimony of
witness Charalambides, which is supported by UN documents. However, the UN
reports do not state on what basis these persons were transferred to the south.
The treatment of Dr. *516 Charalambides may be
due to his prominent role as the only Greek Cypriot physician in the area and
as former Deputy Mayor of Kyrenia. It cannot, therefore, be considered as
representative.
(d) Negotiated transfer of medical
cases and other persons on humanitarian grounds
198. Finally, the transfer to the south
of medical cases and other persons for humanitarian reasons, whether on the
basis of intercommunal agreements or individual arrangements, would appear to
have been in the own interest of the persons concerned; indeed, it often
happened upon their own request. The evidence before the Commission tends to
show that the particular difficulty experienced by this category of persons was
the removal of obstacles preventing their speedy transfer. The Commission,
therefore, was unable to establish that their transfer, as such, was a forcible
measure.
IV. The
refusal to allow the return of refugees and expellees
199. It is common knowledge that the
vast majority of Greek Cypriot displaced persons in the south of Cyprus have
not returned to their homes in the north. While it may be that a number of
these persons do not want to return to an area at present under Turkish Cypriot
administration, the fact remains that they are physically prevented from even
visiting their houses in the north, and that they are not allowed to return
there permanently. This has been established by the relevant UN documents,
including reports on the implementation of resolutions of the General Assembly
and the Security Council calling for such return, and is confirmed by the
direct evidence obtained by the Commission's Delegation in Cyprus.
V. Separation
of Greek Cypriot families brought about by their displacement
200. The Commission finds it
established that, by the measures of displacement affecting a large number of
Greek Cypriots, a substantial number of families were separated for
considerable periods of time ranging from several days to more than a year. The
refusal to allow the return of Greek Cypriot refugees to their homes in the
north of Cyprus prolonged this situation and the intercommunal agreement of
August 1975 did not completely solve the problem. The Commission has not been
able, in the course of its limited investigation (3), to establish the exact
numbers of persons and families affected.
*517
E. RESPONSIBILITY OF TURKEY UNDER THE CONVENTION
I. Movement of
persons provoked by the military action of Turkey in the phases of actual
fighting, and refusal to allow the return of refugees to the north of Cyprus
201. In its decision on the
admissibility of the present applications the Commission examined the question
whether the responsibility of Turkey was engaged because 'persons or property
in Cyprus have in the course of her military action come under her actual
authority and responsibility at the material times'. The Commission concluded
that the armed forces of Turkey brought any other persons or property in Cyprus
'within the jurisdiction' of Turkey, in the sense of Article 1 of the
Convention, 'to the extent that they exercise control over such persons or
property'.
202. The Commission has considered the
question of the imputability to Turkey, under the Convention, of the movement
of persons provoked by her military action. However it does not think it
necessary or useful to answer this question, having regard to its finding, set
out in the following paragraph, as to the refusal to allow refugees to return
to their homes in the northern area of Cyprus.
203. As regards this refusal, the
evidence before the Commission shows that Turkey encouraged and actively
supported the policy of the Turkish Cypriot administration not to allow the
return of Greek Cypriot refugees to their homes in the north of Cyprus. This
support was not limited to diplomatic action such as declarations against the
return of Greek Cypriots to the north of Cyprus in the General Assembly of the
United Nations, votes cast against resolutions calling for such return, and
transmission of statements by representatives of the Turkish Cypriot community
opposing such return. It also included the prevention, by the presence of her
army in the north of Cyprus and the sealing off of the demarcation line by
fortifications and minefields, of the physical possibility of the return of
Greek Cypriot refugees to their homes in the north. The Commission considers
that by these measures preventing their return to the north, Turkey exercised
in effect a control which in this respect bought the said persons under her
jurisdiction within the meaning of Article 1 of the Convention as interpreted
in the Commission's decision on admissibility. The refusal to allow the return
of Greek Cypriot refugees to their homes in the north of Cyprus must therefore
be imputed to Turkey under the Convention.
II. Measures
of displacement not directly connected with the Turkish military action in the
phases of actual fighting
(a) Measures of displacement within the
northern area of Cyprus and expulsion across the demarcation line
204. The Commission finds it
established that Turkish troops actively participated in the following measures
of displacement: *518
-- eviction of Greek
Cypriots from houses including their own homes in the north of Cyprus;
-- transportation of Greek
Cypriots to other places within the territory controlled by the Turkish army,
including various detention places;
-- expulsion of Greek
Cypriots across the demarcation line; and
-- removal to the south
brought about by living conditions in the north.
These measures were carried out while
the persons concerned were under the actual control of the Turkish armed forces
and hence within the jurisdiction of Turkey in the meaning of Article 1 of the
Convention as interpreted in the Commission's above decision. The displacement
of Greek Cypriots from their homes, which was the result of these measures,
must therefore be imputed to Turkey under the Convention.
(b) Negotiated transfer of persons to
the area controlled by the applicant Government, and refusal to allow their
return to the north of Cyprus
205. The Commission has considered the
question of the imputability to Turkey of the negotiated transfer of persons to
the south of Cyprus.[44]
However, it does not think it necessary or useful to answer this question,
having regard to its finding as to the refusal to allow transferred persons to
return to their homes in the northern area.
As regards this
refusal, the situation of persons transferred to the south of Cyprus under the
various intercommunal agreements is the same as that of refugees; the refusal
to allow the return of transferred persons to their homes in the north of
Cyprus must be imputed to Turkey on the same grounds as the refusal to allow
the return of refugees.[45]
III.
Separation of families
206. The separation of Greek Cypriot
families resulting from measures of displacement imputable to Turkey under the
Convention, for the reasons set out above, must be imputed to Turkey on the
same grounds. It follows that the continued separation of families resulting
from the refusal to allow the return of Greek Cypriot refugees to their homes
and family members in the north must be imputed to Turkey as well as the
separation of families brought about by expulsions of certain family members
across the demarcation line or by transfers of members of the same family to
different places of detention.[46]
*519
F. CONCLUSIONS
I. General
207. The Commission has examined the
complaints concerning the displacement of Greek Cypriots under Article 8 of the
Convention. It notes that Protocol No. 4 concerning such rights as inter
alia the right to liberty of movement and choice of
residence has not been ratified by the Parties. In any case, Article 8 is not
affected by the Protocol.
II. Movement
of persons provoked by the military action of Turkey in the phases of actual
fighting and refusal to allow the return of refugees
208. As stated above,[47]
the Commission did not express an opinion as to the imputability to Turkey
under the Convention of the refugee movement of Greek Cypriots caused by the
Turkish military action in the phases of actual fighting. Since in any case the
refusal to allow the return of those refugees to their homes in the north of
Cyprus must be imputed to Turkey, the Commission also limits its conclusion to
this aspect of the matter.
The Commission considers 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 for their homes as guaranteed in Article 8
(1) of the Convention. This infringement cannot be justified on any ground
under paragraph (2) of this Article.
The Commission concludes by 13 votes
against one 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,[48]
in conformity with Article 8 of the Convention in all these cases.
III. Measures
of displacement not directly connected with the Turkish military action in the
phases of actual fighting
(a) Measures of displacement within the
north of Cyprus and expulsions across the demarcation line
209. The Commission considers that the
evictions of Greek Cypriots from houses, including their own homes, which are
imputable to Turkey under the Convention, amount to an interference with rights
guaranteed under Article 8, paragraph (1) of the Convention, namely the right
of these persons to respect for their home, and/or their right to respect for
private life. The Commission further considers that the transportation of Greek
Cypriots to other places, in particular the forcible excursions within the
territory controlled by the Turkish army, and the deportation of Greek Cypriots
to the *520
demarcation line, which are equally imputable to Turkey under the
Convention, also constitute an interference with their private life. However,
in so far as the displacement of Greek Cypriots within the north of Cyprus was
a necessary corollary of their detention, it must, together with that
detention, be examined in Chapter 2 (deprivation of liberty).
The above interferences by the Turkish
army in the north of Cyprus with rights guaranteed under Article 8, paragraph
(1) cannot be justified on any ground under paragraph (2) of Article 8.
The Commission concludes, by 12 votes
against one, that by the eviction of Greek Cypriots from houses, including
their own homes, by their transportation to other places within the north of
Cyprus, or by their deportation across the demarcation line, Turkey has
committed acts not in conformity with the right to respect for the home
guaranteed in Article 8 of the Convention.
(b) Negotiated transfer of persons to
the area controlled by the applicant Government, and refusal to allow their
return to their homes in the north of Cyprus
210. As stated above,[49]
the Commission did not express an opinion as to the imputability to Turkey
under the Convention of the transfers of Greek Cypriots to the south of Cyprus
under various intercommunal agreements. Since in any case the refusal to allow
the return of these persons to their homes in the north of Cyprus must be
imputed to Turkey, the Commission limits its conclusion to this aspect of the
matter.
The Commission considers that the
prevention of the physical possibility of the return of these Greek Cypriots to
their homes in the north of Cyprus amounts to an infringement of their right to
respect for their homes as guaranteed in Article 8 (1) of the Convention. This
infringement cannot be justified on any ground under paragraph (2) of this
Article.
The Commission concludes, by 13 votes
against one, 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,[50]
in conformity with Article 8 of the Convention in all these cases.
IV. Separation
of families
211. The Commission finds that the
separation of families brought about by measures of displacement imputable to
Turkey under the Convention are interferences with the right of the persons
concerned to respect for their family life as guaranteed by Article 8 (1) of
the *521
Convention. These interferences cannot be justified on any ground under
paragraph (2) of this Article.
The Commission concludes by 14 votes
against one with one abstention that, by the separation of Greek Cypriot
families brought about by measures of displacement in a substantial number of
cases, Turkey has again not acted in conformity with her obligations under
Article 8 of the Convention.
V. Reservation
concerning Article 15 of the Convention
212. The Commission reserves for
consideration in Part III of this Report the question whether any of the above
interferences with rights protected by Article 8 were justified as emergency
measures under Article 15 of the Convention.
Chapter 2
--Deprivation of Liberty
INTRODUCTION
213. The Commission will deal with the
allegations in the two applications concerning the deprivation of liberty of
Greek Cypriots by the Turkish armed forces in Cyprus in the following order:
-- the alleged general
deprivation of liberty of that part of the Greek Cypriot population which
remained in the north of Cyprus after the military action of Turkey ('Enclaved
persons');
-- the alleged deprivation
of liberty of Greek Cypriot civilians who, according to the applicant
Government were concentrated in certain villages in the north, in particular
Gypsou, Marathovouno, Morphou, Vitsada and Voni, or in the Dome Hotel at
Kyrenia ('Detention centres');
-- the deprivation of
liberty of persons referred to as 'prisoners and detainees' in the
intercommunal agreements, including persons detained in the mainland of Turkey
or at Pavlides Garage and Saray Prison in the Turkish sector of Nicosia
('Prisoners and detainees').
214. As stated above[51]
the Commission will not consider as separate issues the applicant Government's
allegations concerning deprivation of liberty of Greek Cypriots arrested at the
demarcation line.
A. 'ENCLAVED
PERSONS'
I. Submissions
of the Parties
(1) Applicant Government
215. The applicant government alleged
generally that the Turkish armed forces were arbitrarily detaining a great
number of Greek Cypriot civilians of all ages and both sexes in the north of
Cyprus.
*522
216. They described the enclaved population as a whole as being at the mercy of
the Turkish forces, as hostages not allowed to move from their ' places of
detention'.
217. In the Government's view the
remaining enclaved Greek Cypriot inhabitants in the north of Cyprus (about
9,000) were virtually under detention because, though allowed to move to the
south, they were not allowed freedom of movement in the north. They were
subjected to a curfew between 9.00 p.m. and 6.00 a.m., were not allowed to go
to their fields unless they obtained special permission and, in any case, they
were not allowed to move from one village to another. The enclaved persons were
under the continuous supervision of the Turkish authorities. In particular the
ex-prisoners who had been detained in Turkey and were now residing in the
Turkish-occupied areas were forced to present themselves to the police twice a
day. Many of them were arrested for interrogation or put in prison for reasons
such as failure to salute members of the Turkish army.
(2) Respondent Government
218. The respondent Government who, for
the reasons stated above,[52]
did not take part in the proceedings on the merits, have not made any
statements with regard to these allegations.
II. Relevant
Article of the Convention
219. The Commission considers that the
restrictions imposed on the liberty of the so-called enclaved persons in the
north of Cyprus, as complained of in the present applications, may raise issues
under Article 5 of the Convention. It notes in this connection the applicant
Government's view that the enclaved persons 'could virtually be described as
being under detention'.
220. Article 5 of the Convention reads
as follows:
1. Everyone has the right
to liberty and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed by law:
(a)
the lawful detention of a person after conviction by a competent court;
(b)
the lawful arrest or detention of a person for non-compliance with the lawful
order of a court or in order to secure the fulfilment of any obligation
prescribed by law;
(c)
the lawful arrest or detention of a person effected for the purpose of bringing
him before the competent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered necessary to prevent
his committing an offence or fleeing after having done so;
(d)
the detention of a minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before the
competent legal authority; *523
(e)
the lawful detention of persons for the prevention of the spreading of
infectious diseases, of persons of unsound mind, alcoholics or drug addicts or
vagrants;
(f)
the lawful arrest or detention of a person to prevent his effecting an
unauthorised entry into the country or of a person against whom action is being
taken with a view to deportation or extradition.
2. Everyone who is arrested
shall be informed promptly, in a language which he understands, of the reasons
for his arrest and of any charge against him.
3. Everyone arrested or
detained in accordance with the provisions of paragraph 1 (c) of this Article
shall be brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a reasonable time
or to release pending trial. Release may be conditioned by guarantees to appear
for trial.
4. Everyone who is deprived
of his liberty by arrest or detention shall be entitled to take proceedings by
which the lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.
5. Everyone who has been
the victim of arrest or detention in contravention of the provisions of this
Article shall have an enforceable right to compensation.
III. Evidence
obtained
This section of the Commission's Report
(paragraphs 221-229) is omitted.
IV. Evaluation
of the evidence
230. The Commission has not been able,
on the basis of the evidence before it, to establish a clear picture of the
living conditions of the so-called enclaved Greek Cypriots in the north of
Cyprus in so far as they were not subjected to special measures of detention.
The evidence obtained from witnesses is fragmentary and partly contradictory,
in particular with regard to the hours and other conditions of the curfew.
Moreover, it is almost exclusively hearsay evidence with the exception of the
evidence of Dr. Charalambides in respect of conditions in Upper Kyrenia. The
sparse information contained in UN documents and written statements submitted
is not sufficient to complete the picture. The only findings which can be
arrived at with some degree of certainty are:
(a) that there has been a
curfew involving confinement to houses, as a rule during the night hours, for
the Greek Cypriot population in the north of Cyprus;
(b) that restrictions have
been imposed on the freedom of movement of Greek Cypriots in the north of
Cyprus outside their villages.
231. The exact conditions of the curfew
and its application as well as the scope and application of the restrictions on
the movement of persons outside villages have not been further investigated.
The Commission observes in this connection that investigations would have had
to be carried out in the north of Cyprus to which access has not been granted
to its Delegation.
*524
V. Responsibility of Turkey under the Convention
232. Since the Commission has not been
able to establish all the relevant facts with regard to the present
allegations, it is also unable to determine to what extent the treatment of the
enclaved Greek Cypriot population is imputable to Turkey under the Convention.
In particular it has not established whether the curfew and restrictions of
movement were proclaimed by the Turkish military authorities, or by the Turkish
Cypriot Administration--either on their own initiative or on instructions of
the Turkish authorities.
233. However, on the basis of the
evidence before it, the Commission finds indications that the restrictions of
movement and, to a lesser degree, the curfew, were enforced with the assistance
of the Turkish army: while references to members of the Turkish Cypriot police
are frequent in statements concerning searches and controls which were carried
out during night-time, it seems that the movement of persons between villages
was more closely controlled by the Turkish armed forces. Such control confirms
that the persons concerned were under the jurisdiction of Turkey within the
meaning of Article 1 of the Convention.
VII.
Conclusions
234. The Commission has examined the
general restrictions imposed on the liberty of Greek Cypriots in the north of
Cyprus in the light of the provisions of Article 5 of the Convention. In this
connection it has also noted the provisions of Article 2 of Protocol No 4 to
the Convention according to which everybody lawfully within the territory of a
State has the right to liberty of movement within that territory.
235. The Commission, by eight votes
against five votes and with two abstentions, first considers that, on the basis
of the evidence before it, it is sufficiently informed to draw the conclusion
that the curfew imposed at night on enclaved Greek Cypriots in the north of
Cyprus, while a restriction of liberty is not a deprivation of liberty, within
the meaning of Article 5 (1) of the Convention.
236. The Commission, by twelve votes
with two abstentions, further considers that, on the basis of the evidence
before it, it is sufficiently informed to draw the conclusion that the alleged
restrictions of movement outside the built-up area of villages in the north of
Cyprus would fall within the scope of Article 2 of Protocol No 4, which has not
been ratified by either Cyprus or Turkey, rather than within the scope of
Article 5 of the Convention. The Commission is therefore unable to find a
violation of Article 5 of the Convention in so far as the restrictions imposed
on Greek Cypriots in order to prevent them from moving freely outside villages
in the north of Cyprus are imputable to Turkey.
*525
B. 'DETENTION CENTRES'
I. Submissions
of the Parties
(1) Applicant Government
237. The applicant Government submitted
that in the north of Cyprus the Turkish armed forces detained thousands of
persons arbitrarily and with no lawful authority; they stated that this detention
occurred essentially in certain 'concentration camps', the worst of which were
Voni, Marathovouno, Vitsada and Gypsou.
238. The Government first alleged that,
on entering any inhabited area, the Turkish forces at once arrested the Greek
Cypriot inhabitants and detained them because they were Greeks: the same course
was followed in respect of any Greek Cypriot met on the way of the invading
army.
According to the Government, those who
were not detained as prisoners-of-war[53];
i.e. women, children and old men, were put in
'concentration camps', if they were not expelled. In those camps hundreds of
persons from small babies to old people of 90 were kept in small spaces under
bad conditions without sanitary facilities[54]
and were not allowed to move out. Detainees were often moved from one
concentration area to another and regrouped.
239. The applicant Government also
complained of the detention by the Turkish authorities of some 3,000
inhabitants of the Kyrenia district in the Kyrenia Dome Hotel and in Bellapais
village. They stated that most of these persons were arrested in their houses
by the Turkish army and transported to the said places of detention. The rest
were forced during the first days of the invasion to take refuge there. In
November 1974 the Turkish military authorities continued to detain about 450 of
those persons at the Dome Hotel and 1,000 at Bellapais. The detainees were not
allowed to move from their places of detention to their nearby houses.
240. In their second application the
applicant Government submitted that additional concentration camps had been
established for the purpose of the detention of Greek Cypriot civilians in the
north of Cyprus.
They distinguished between the
additional 'concentration camp' at Morphou established after the filing of the
first application, and other places of detention including:
-- the Dome Hotel in
Kyrenia--53 detainees;
-- Lapithos
(Kyrenia)--about 150 detainees;
-- Larnaca of Lapithos
(Kyrenia)--about 30 detainees;
-- Trikomo
(Famagusta)--about 120 detainees;
-- Kondemenos
(Kyrenia)--about 8 detainees;
-- Kalopsida
(Famagusta)--about 10 detainees; *526
-- Spathariko
(Famagusta)--about 9 detainees.
It was further stated that the Morphou
concentration camp was gradually evacuated so that there remained only about 30
detainees by March 1975, and only 12 by July 1975, and that the detainees in
the last three of the detention places above were expelled to the Government
controlled areas in the summer of 1975.
(2) Respondent Government
241. The respondent Government who, for
the reasons stated above,[55]
did not take part in the proceedings on the merits, have not made any
statements with regard to the above allegations.
II. Relevant
Articles of the Convention
242. The Commission considers that the
above allegations concerning the concentration of Greek Cypriots in the north
of Cyprus in certain detention centres raise issues under Article 5 of the
Convention.[56] The
question whether the conditions of this confinement raise issues under Article
3 of the Convention will be dealt with separately.
III. Evidence
obtained
This section of the Commission's Report
(paragraphs 243-273) is omitted.
IV. Evaluation
of evidence obtained
274. The Commission considers that the
evidence obtained establishes that Greek Cypriots in the north of Cyprus were
confined for considerable periods of time at certain locations, including
detention centres, private houses, and the Dome Hotel in Kyrenia.
275. As regards detention centres, it
has been established that such centres existed in schools and churches at Voni,
Gypsou and Morphou. There is also evidence concerning the existence of similar
centres at Marathovouno and Vitsada but the Commission is unable, on the basis
of the material before it, fully to determine the conditions which existed
there. It appears from written and oral statements that the detention centres
in these two villages were evacuated to Gypsou before the intercommunal
arrangements for the transfer to the south of Cyprus of persons subjected to
such measures of confinement were concluded in November 1974. This would
explain why the relevant intercommunal agreement mentions only Gypsou and Voni.
The evidence also shows that the centre at Morphou was not fully established
until a later stage.
276. The Commission finds it proved
that more than 2,000 Greek Cypriots, mainly civilians, including old people and
children, were *527 transferred to the centres, and that their freedom of
movement was consequently restricted to the respective premises where they were
kept under guard in miserable conditions. Apart from the written and oral
evidence of persons who stated that they had themselves been kept in one or
several of the centres, this was also confirmed by independent sources such as
the statements of UNHCR and ICRC officials at an intercommunal meeting, the
record of which the Commission accepts as correct, and in the report of a
journalist describing the conditions in Gypsou. Although the relevant UN
documents do not contain details about conditions in the centres, they do not
in any way contradict the above findings but rather tend to confirm them. The
period of confinement in these centres was in most cases two to three months.
277. As regards confinement in private
houses the Commission considers that a distinction should be made between
houses used in connection with detention centres, and other houses.
(a) There is evidence
showing that at least at Gypsou and Morphou some private residences were used
as annexes of the detention centres established there. The Greek Cypriots
confined to these houses lived in the same, if not worse, conditions as those
in the school and church, and were guarded together with them.
(b) There is also evidence
that elsewhere, too, e.g. in Lapithos, Greek
Cypriots were confined to private houses either their own ones or houses to
which they were transferred. There are strong indications that conditions in
these houses were some-times similar to those in the detention centres, but the
Commission has been unable, on the basis of the evidence before it, to
establish a clear picture of all the relevant circumstances, e.g.
as to the duration of the confinement, the number of persons concerned, whether
they were continuously guarded, etc.
278. Finally, as regards the
confinement of Greek Cypriots in the Dome Hotel the Commission finds that it
developed from an original situation of UN protective custody, such as also
existed in the village of Bellapais. Although it has been established to the
Commission's satisfaction that some Greek Cypriots from Kyrenia and the
surrounding villages were brought to the Hotel by Turkish troops while it was
still under UN control, it is not clear whether this happened against their
will. In addition to them there were no doubt many, including the Commission's
main witness in this matter, Dr. Charalambides, who went to the Hotel of their
own volition, some on the advice of UNFICYP, in order to take refuge there.
However, the Commission finds it established that the persons in the Hotel were
soon subjected to restrictions of their freedom of movement. They could only
leave the Hotel under escort after having obtained permission, which was given
on a restrictive basis for reasons such *528 as shopping, visits to church, walks
for exercise twice a week, and apparently once early in October 1974 in order
to inspect their houses. With this exception the persons confined to the Hotel
were not allowed to go to their houses. The arrangements made for Dr.
Charalambides, who was permitted to fetch medicaments and surgical instruments
from his house, and to visit patients in Kyreniatown, were apparently of a
special character and cannot be considered as representative. The Commission
further finds it established that, after the withdrawal of UNFICYP, the Dome
Hotel was guarded by Turkish Cypriots under the orders of a Turkish Commander,
who occasionally came to the Hotel for inspection. The practice concerning
permission to leave the Hotel became gradually more restrictive, especially
after Christmas 1974. The majority of persons confined to the Hotel were
apparently transferred to the south of Cyprus during the first half of 1975.
V.
Responsibility of Turkey under the Convention
279. It has been established that many
of the persons confined to detention centres or the Dome Hotel were brought
there by the Turkish army.
280. It has also been established that
the detention centres were under the command of Turkish army officers, to whom
the guarding personnel, including Turkish soldiers and Turkish Cypriot
policemen, reported if important issues had to be decided.
281. A similar situation existed at the
Dome Hotel after 14 August 1974 when UNFICYP was forced to withdraw and the
full control passed to the Turkish military authorities. However, the
Commission has been unable, on the basis of the evidence before it, fully to
establish the extent of Turkish control with regard to the Hotel before that
date.
282. It follows that the persons confined
in the detention centres, and those confined in the Dome Hotel after 14 August
1974, were under the actual control of the Turkish army. Turkey thus exercised
jurisdiction, within the meaning of Article 1 of the Convention as interpreted
in the Commission's decision on admissibility, in respect of those persons and
their confinement must therefore be imputed to Turkey under the Convention.
283. As regards confinement to private
houses, the Commission finds that the circumstances in private residences
attached to detention centres were the same as in these centres and the
confinement of Greek Cypriots to these houses must therefore equally be imputed
to Turkey because these persons were under the command of Turkish army officers
and guarded with the assistance of Turkish soldiers.
284. On the other hand, the Commission
has not been able fully to establish the circumstances of confinement to other,
isolated *529
private houses. However, there are strong indications that these
premises, too, were often under the control of the Turkish army.
VI.
Conclusions
285. The Commission, by 13 votes
against one, considers that the confinement of more than 2,000 Greek Cypriots
to detention centres established in schools and churches at Voni, Gypsou and Morphou,
which is imputable to Turkey, amounted to a deprivation of liberty within the
meaning of Article 5 (1) of the Convention. The confinement to these centres
was not ordered in accordance with any procedure prescribed by law, and did not
serve any of the purposes justifying detention which are mentioned in
sub-paragraphs (a) to (f) of Article 5 paragraph (1). It follows that the
confinement of Greek Cypriots in the above detention centres was not in
conformity with Article 5 (1) of the Convention.
286. The Commission further considers,
by 13 votes against one, that the confinement of Greek Cypriots to private
houses in Gypsou and Morphou, where they were kept under similar circumstances
as in the detention centres, was equally a deprivation of liberty contrary to
Article 5 (1) of the Convention, imputable to Turkey.
287. Finally, as regards the Dome
Hotel, the Commission is not called upon to examine the compatibility of the
initial 'protective custody' of the United Nations with the provisions of Article
5 of the Convention. Since it has not been fully determined to what extent the
Turkish authorities controlled the Hotel prior to the withdrawal of UNFICYP the
Commission proposes to limit its findings to the period after 14 August 1974
when the full responsibility for the Hotel passed to the Turkish authorities.
288. The confinement, after this date,
of Greek Cypriots to the premises of the Hotel, with no possibility of leaving
without permission and without being escorted, was in the Commission's opinion
a deprivation of liberty within the meaning of Article 5 (1) of the Convention.
This deprivation of liberty was not ordered in accordance with any procedure
prescribed by law, nor did it serve any of the purposes enumerated in
sub-paragraphs (a) to (f) of Article 5 (1) as justifying detention.
The Commission concludes, by ten votes
against two with two abstentions, that the confinement of Greek Cypriots to the
Kyrenia Dome Hotel after 14 August 1974, imputable to Turkey, was not in
conformity with Article 5 (1) of the Convention.
289. The question whether any of the
above deprivations of liberty may have been justified under Article 15 (1) of
the Convention is reserved for consideration in Part III of this Report.
*530
C. 'PRISONERS AND DETAINEES'
I. Submissions
of the Parties
(1) Applicant Government
290. The applicant Government submitted
that the Turkish armed forces arrested and detained hundreds of Greek Cypriots
arbitrarily and with no lawful authority both in Cyprus and in Turkey.
291. The Government stated that on
entering any inhabited area the Turkish forces at once arrested the Greek
Cypriot population. Men were usually separated and detained apart from old
people, women and children.
Some male Greek Cypriots were kept as
prisoners in places like Saray Prison and Pavlides Garage in the Turkish part
of Nicosia. Most of them were subsequently deported to Turkey where they were
detained in prisons in Adana, Amasia and Atiama. Those deported were mostly
civilians of all ages between 16 and 70.
Turkey did not give complete lists of
these detainees. A total of 2,460, of whom more than 2,000 had been deported to
Turkey, were gradually released as a result of relevant arrangements. The last
group of prisoners from Turkey was released by the end of October 1974.
292. The applicant Government further
stated that there was evidence that a number of missing persons were among
those who had been expatriated, and they invited the Commission to investigate
whether they were still detained in Turkey.
(2) Respondent Government
293. The respondent Government who, for
the reasons stated above,[57]
did not take part in the proceedings on the merits, have not made any
submissions with regard to the above allegations. The Permanent Representative
of Turkey at the meeting on 6 October 1975 contested the testimony of Mr.
Pirkettis concerning the witness' detention in Turkey.
II. Relevant
Article of the Convention
294. The Commission considers that the
above allegations concerning the arrest and detention of male Greek Cypriots as
'prisoners and detainees' raise issues under Article 5 of the Convention. The
question whether the conditions of this detention were contrary to Article 3 of
the Convention will be dealt with separately.[58]
*531
III. Evidence obtained
This section of the Commission's Report
(paragraphs 295-302) is omitted.
IV. Evaluation
of the evidence obtained
303. The Commission finds it
established that more than 2,400 Greek Cypriots were arrested during the first
and second phase of the Turkish military action and kept as prisoners until
their release on the basis of intercommunal agreements concluded in September
1974 and implemented by the end of October 1974. The Commission finds that more
than 2,000 of these prisoners were deported to Turkey where they were kept in
prisons at Adana and Amasia. The remainder, some 146 persons as stated by
witness Soulioti, were kept in two locations in the Turkish sector of Nicosia,
Saray Prison and Pavlides Garage.
304. The Commission finds that the
above prisoners included a substantial number of National Guard soldiers, but
that these were not all arrested in the course of actual fighting. There are,
however, indications that all these soldiers were subsequently deported to Turkey.
305. The Commission also finds that
many of the prisoners were civilians, who were either detained in the north of
Cyprus or deported to Turkey, including the Commission's main witness on this
matter, Mr. Pirkettis.
306. The Commission has not been able
to find out whether undeclared Greek Cypriot prisoners are still in Turkish
custody, as alleged by the applicant Government. The problem of missing persons
will be dealt with separately.
V.
Responsibility of Turkey under the Convention
307. The Greek Cypriots deported to and
detained in prison in Turkey were clearly under the actual control of the
Turkish authorities, and thus under the jurisdiction of Turkey, within the
meaning of Article 1 of the Convention. Their detention must therefore be
imputed to Turkey under the Convention.
308. The Commission has not found
sufficient evidence showing that the two locations where prisoners were kept in
the north of Cyprus, namely Saray Prison and Pavlides Garage, were under the
control of the Turkish army, or guarded by Turkish soldiers. The Commission is
consequently unable, on the basis of the evidence before it, to establish
whether the detention of Greek Cypriots in those locations is imputable to
Turkey.
VI.
Conclusions
309. The Commission considers that the
detention of Greek Cypriot military personnel in Turkey, which is clearly
imputable to Turkey under the Convention, constituted a deprivation of liberty *532 within the meaning of Article 5 (1) of
the Convention. Since it did not serve any of the purposes enumerated in
sub-paragraphs (a) to (f) of this provision, the Commission concludes, by
thirteen votes against one, that it was not in conformity with Article 5,
paragraph (1) of the Convention.
310. As regards the detention of Greek
Cypriot civilians, the Commission considers that, in so far as it occurred in
Turkey and therefore is imputable to Turkey, it equally constituted a
deprivation of liberty within the meaning of Article 5 (1) of the Convention
not serving any of the purposes mentioned in sub-paragraphs (a) to (f) of this
provision. The Commission therefore concludes, by thirteen votes against one,
that the detention of civilians in Turkey was equally not in conformity with
Article 5, paragraph (1) of the Convention.
311. However, in view of its finding
that it was unable to establish the imputability to Turkey under the Convention
of the detention of 146 Greek Cypriots at Saray Prison and Pavlides Garage in
the Turkish sector of Nicosia, the Commission considers, by ten votes against
two, with two abstentions, that it is not called upon to express an opinion as
to the conformity with Article 5 of the Convention of the detention of Greek
Cypriot prisoners in the north of Cyprus.
312. The question whether any of the
above deprivations of liberty, in particular the detention of military
personnel as prisoners-of-war, were justified under Article 15 of the
Convention is reserved for consideration in Part III of this Report.
313. The Commission has taken account
of the fact that both Cyprus and Turkey are Parties to the (Third) Geneva
Convention of 12 August 1949, relative to the treatment of prisoners-of-war,
and that, in connection with the events in the summer of 1974, Turkey in
particular assured the International Committee of the Red Cross (ICRC) of its
intention to apply the Geneva Conventions and its willingness to grant all
necessary facilities for humanitarian action.[59]
In fact, ICRC delegates made regular visits to soldiers and civilians who had
been granted prisoner-of-war status by the authorities on either side.[60]
They included, before the resumption of hostilities on 14 August 1974, 385
Greek Cypriots in Adana, who were visited by two ICRC delegates, one of them a
doctor, 63 Greek Cypriots in Saray Prison in the Turkish part of Nicosia and
3,268 Turkish Cypriots in camps in Cyprus.
After fighting in August had come to an
end the ICRC obtained permission to visit Greek Cypriot prisoners first in
transit camps in Cyprus and then in three camps in Turkey, and several thousand
Turkish Cypriot prisoners in four camps in the south of Cyprus.
*533
Having regard to the above, the Commission has not found it necessary to
examine the question of a breach of Article 5 of the European Convention on
Human Rights with regard to persons accorded the status of prisoners of war.
D. FINAL
OBSERVATION
314. The Commission, by seven votes
against six with three abstentions, decided not to consider as a separate issue
the effect of detention on the exercise of the right to respect for one's
private and family life and home (Article 8 of the Convention).
Chapter 3
--Deprivation of life
A. SUBMISSIONS
OF THE PARTIES
I. Applicant
Government
315. The applicant Government submitted
that mass killings of civilians who were unconnected with any war activities
was a systematic course of action followed by the Turkish army: not only
unarmed soldiers, who had surrendered, but also civilians, including children
between six months and 11 years, women and old men up to the age of 90, even
paralysed cripples, mentally retarded and blind people, had been killed.
Hundreds of killings of Greek Cypriots by Turkish forces had been reported by
eye-witnesses. The acts complained of included killings of persons who had
attempted to visit areas under Turkish military control in order to collect
their belongings from their homes.
316. The Government also feared that a
large proportion of the Greek Cypriots who had last been seen in the Turkish
occupied area and were still unaccounted for (at least 3,000, a considerable
number being civilians) were victims of such killings. There was evidence
showing that such persons had fallen into the hands of the Turkish army but the
Turkish authorities denied any knowledge about them. The category of missing
persons assumed to have been killed by Turkish forces included persons arrested
by such forces when going near to the Turkish controlled area or straying into
it, in so far as no particulars as to their fate had subsequently been given by
the Turkish authorities.
II. Respondent
Government
317. The respondent Government, who for
the reasons stated above[61]
did not participate in the proceedings on the merits, have not made any
statement with regard to the above allegations.
*534
B. RELEVANT ARTICLE OF THE CONVENTION
318. The facts alleged by the applicant
Government raise issues under Article 2 of the Convention which states as
follows:
1. Everyone's right to life
shall be protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his conviction of a
crime for which this penalty is provided by law.
2. Deprivation of life
shall not be regarded as inflicted in contravention of this Article when it
results from the use of force which is no more than absolutely necessary:
(a)
in defence of any person from unlawful violence;
(b)
in order to effect a lawful arrest or to prevent the escape of a person
lawfully detained;
(c)
in action lawfully taken for the purpose of quelling a riot or insurrection.
C. EVIDENCE
OBTAINED
I. Evidence of
killings
This section of the Commission's Report
(paragraphs 319-342) is omitted.
D. EVALUATION
OF THE EVIDENCE OBTAINED
I. Evidence of
killings
343. As regards the killing of 12
civilians near Elia, the Commission notes that the three eye-witnesses,
although personally affected by the incident, gave evidence in a disciplined,
calm and precise manner. Their statements were not contradictory and their
elaborate and detailed account of the incident is credible in itself. The
Commission is satisfied that their testimony was true and correct.
344. The testimony received from
witness Stylianou on the killing of 17 civilians at Palekythro is corroborated
by the evidence given by Dr. Hadjikakou and by a person interviewed in a
refugee camp. The knowledge of Mr. Stylianou and Dr. Hadjikakou was based on
hearsay but they proposed to indicate the names and addresses of eye-witnesses.
345. The refugees who gave evidence on
killings had been chosen at random and had no time to prepare their statements.
They all appeared to be honest and trustworthy and the Commission finds no
reason to doubt the correctness of their statements.
346. The written statements submitted
about other killings have for the reasons already stated not been further
investigated. However, together with the above evidence and that given by Mrs.
Soulioti, they constitute strong indications of killings committed on a
substantial scale.
II. Evidence
on missing persons
347. The evidence before the Commission
does not allow a definite finding with regard to the fate of Greek Cypriots
declared *535
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.
348. In the present Report the
Commission is only concerned with the fate of persons declared to be missing as
from the beginning of the military action of Turkey on 20 July 1974. It is not
concerned with any person missing due to the coup d'tat
which on 15 July 1974 preceded the above action.
349. It appears, however, from the
evidence that:
-- it is widely accepted
that 'a considerable number of Cypriots' are still 'missing as a result of
armed conflict in Cyprus'; i.e. between Turkey and
Cyprus;
-- a number of persons
declared to be missing have been identified as Greek Cypriots taken prisoner by
the Turkish army.
E.
RESPONSIBILITY OF TURKEY UNDER THE CONVENTION
I. Killings
350. The evidence shows that killings
were committed near Elia by Turkish soldiers acting under the order of an
officer.
It further appears that the victims
were, at the material time, under the 'actual authority and responsibility' of
Turkey, in the sense of the Commission's decision on the admissibility of the
present applications.[62]
These killings are therefore imputable to Turkey under the Convention.
In the other cases Turkish soldiers
were also described as being responsible.
II. Missing
persons
351. The Commission considers that
there is 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 has been unable to ascertain whether, and under what
circumstances, Greek Cypriot prisoners declared to be missing have been
deprived of their life.
F. CONCLUSION
352. Article 2 (1), second sentence of
the Convention, provides that no one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law. Paragraph (2)
of the Article contains further exceptions as regards deprivation of life in
three categories of cases.
353. The Commission, by 14 votes
against one, considers that the evidence before it constitutes very strong
indications of violations of *536 Article 2 (1) of the Convention by
Turkey in a substantial number of cases. The Commission points out that it
restricted the taking of evidence to a hearing of a limited number of
representative witnesses and that the Delegates, during the period fixed for
the hearing of witnesses, heard eye-witnesses only concerning the incident of
Elia. The evidence obtained for this incident establishes the killing of 12
civilians near Elia by Turkish soldiers commanded by an officer contrary to
Article 2 (1).
354. In view of the very detailed
material before it on other killings alleged by the applicant Government, the
Commission, by 14 votes against one, draws the conclusion from the whole
evidence that killings happened on a larger scale than in Elia.
355. There is nothing to show that any
of these deprivations of life were justified under paragraphs (1) or (2) of Article
2.
356. The question whether any of the
above acts were 'deaths resulting from lawful acts of war', within the meaning
of Article 15 (2) of the Convention, is reserved for consideration in Part III
of this Report.
Chapter 4
--Ill-treatment
357. The applicant Government's
complaints of ill-treatment will be considered under the following
sub-headings:
-- allegations of rape;
-- conditions of detention;
-- other forms of physical
aggression of persons not in detention.
A. ALLEGATIONS
OF RAPE
I. Submissions
of the Parties
(1) Applicant Government
358. The applicant Government
complained of 'wholesale and repeated rapes of women of all ages from 12 to 71,
sometimes to such an extent that the victims suffered haemorrhages or became
mental wrecks. In some areas, enforced prostitution was practised, all women
and girls of a village being collected and put into separate rooms in empty
houses, where they were raped repeatedly by the Turkish troops.' In certain
cases 'members of the same family were repeatedly raped, some of them in front
of their own children. In other cases women were brutally raped in public.
Rapes were on many occasions accompanied by brutalities such as violent biting
of the victims to the extent of severe wounding, hitting their heads on the
floor and wringing their throats almost to the point of suffocation.' In some
cases 'attempts to rape were followed by the stabbing or killing of the victim.
Victims of rape included pregnant and mentally retarded women.'
*537
(2) Respondent Government
359. The respondent Government, who for
the reasons stated above[63]
did not participate in the proceedings on the merits, have not made any
statement with regard to the above allegations.
II. Relevant
Article of the Convention
360. The facts alleged raise issues
under Article 3 of the Convention, which provides:
No one shall be subjected
to torture or to inhuman or degrading treatment or punishment.
III. Evidence
obtained
This section of the Commission's Report
(paragraphs 361-370) is omitted.
IV. Evaluation
of the evidence obtained
371. The Delegation noted that the two
medical witnesses, Drs. Hadjikakou and Charalambides, endeavoured to be precise
and to avoid any exaggeration. Their statements were corroborated by the other
witnesses, in particular Mr. Kyprianou, Mr. Efthymiou and Witness E, and by the
great number of written statements submitted. The Commission is therefore
satisfied that the oral evidence obtained on this item is correct.
372. The written statements submitted
have, for the reasons already stated,[64]
not been further investigated. However, together with the above evidence, they
constitute further strong indications of rapes committed on a large scale.
V.
Responsibility of Turkey under the Convention
373. The evidence shows that rapes were
committed by Turkish soldiers and at least in two cases even by Turkish
officers, and this not only in some isolated cases of indiscipline. It has not
been shown that the Turkish authorities took adequate measures to prevent this
happening or that they generally took any disciplinary measures following such
incidents. The Commission therefore considers that the non-prevention of the
said acts is imputable to Turkey under the Convention.
VI. Conclusion
374. The Commission, by 12 votes
against one, finds that the incidents of rape described in the above cases and
regarded as established constitute ' inhuman treatment' in the sense of Article
3 of the Convention, which is imputable to Turkey.
*538
B. CONDITIONS OF DETENTION
I. Physical
ill-treatment
(1) Submission of the Parties
(a) Applicant Government
375. The applicant Government alleged
that hundreds of persons including children, women and elderly people were the
victims of systematic tortures and savage and humiliating treatment during
their detention by the Turkish army. They were beaten, sometimes to the extent
of being incapacitated. Many of them were subjected to tortures such as
whipping, breaking of their teeth, knocking their heads on the wall, beating
with electrified clubs, extinction of cigarettes on their skin, jumping and
stepping on their chests and hands, pouring dirty liquids on them, piercing
them with bayonets, etc. Many of them were ill-treated to such an extent that
they became mental and physical wrecks.
376. Among the persons so treated were
those deported to Turkey and kept as prisoners there. Most of them were
civilians of all ages from 16 to 70. During their transportation and detention
these persons were savagely ill-treated. They were wounded, beaten, kicked,
whipped, blindfolded, handfettered, punched to the extent of bleeding, etc.
377. The brutalities complained of
reached their climax after the cease-fire agreements and the relevant
resolutions of the UN Security Council. In fact most of the acts described were
committed at a time when Turkish armed forces were not engaged in any war
activities. More than 1,000 statements obtained from alleged victims or
witnesses described the ill-treatment. They show a pattern of behaviour of the
Turkish forces which proves that the atrocities were part of the tactics which
the invading forces were to follow. Their object was to destroy and eradicate
the Greek population of the Turkish occupied areas, to move therein Turks and
thus create a Turkish populated area.
378. Some elderly people, women and
children who hid out of fear to avoid expulsion from their homes were rounded
up by the Turkish army and placed in concentration camps, the main ones being
in Voni, Marathovouno, Vitsada and Gypsou, where the inhumanity of the
treatment accorded to them defied the imagination.
(b) Respondent Government
379. The respondent Government, who for
the reasons indicated above[65]
did not participate in the proceedings on the merits, have not, apart from the
statement mentioned above, made any submissions with regard to the above
allegations.
*539
(2) Relevant Article of the Convention
380. The applicant Government's
allegations raise issues under Article 3 of the Convention.
(3) Evidence obtained
This section of the Commission's Report
(paragraphs 381-389) is omitted.
(4) Evaluation of the evidence obtained
390. The Commission, considering the
personal reliability of the witnesses heard, and the fact that their statements
to some extent corroborate each other, finds these statements consistent and
credible. It especially accepted after careful examination the evidence given
by Mr. Pirkettis, whom it considers honest and sincere.
391. It is true that among the written
statements submitted by the applicant Government there is one according to
which the conditions of detention at Adana were at one time rather
satisfactory. However, Mr. Pirkettis stated that there were rooms in the prison
which he never saw and which were probably supervised by other officers. This
would explain the divergence between his testimony and the written statement in
question. Mr. Pirkettis himself also mentioned that among the prison personnel
some behaved in a friendly manner and disapproved of the ill-treatment of
prisoners. It is therefore not in contradiction to his testimony if persons who
were held prisoner at other places in Adana report to have been--at least after
their arrival--correctly treated. Moreover, Mr. Pirkettis' descriptions of the
beating in the corridor on arrival at Adana is fully confirmed by the statement
in question, and the Commission further notes that in the written statements
submitted the living conditions of Greek Cypriot detainees in Turkey were
generally described as horrible or the description was similar to that given by
Mr. Pirkettis.
392. The written statements submitted
have, for the reasons already stated,[66]
not been further investigated. However, together with the above evidence, they
constitute further strong indications of physical ill-treatment of prisoners.
(5) Responsibility of Turkey under the
Convention
393. The evidence obtained establishes
that, in a considerable number of cases, prisoners were severely beaten or
otherwise physically ill-treated by Turkish soldiers. These acts are therefore
imputable to Turkey under the Convention.
(6) Conclusion
394. The Commission, by 12 votes
against one, concludes: The testimony of Mr. Pirkettis and of Dr. Hadjikakou
suffice to show *540 that prisoners were in a number of cases physically
ill-treated by Turkish soldiers. These acts of ill-treatment caused
considerable injuries and at least in one case described by Dr. Hadjikakou the
death of the victim. By their severity they constitute ' inhuman treatment' in
the sense of Article 3 of the Convention, which must be imputed to Turkey.
II.
Withholding of food and medicaments
(1) Submissions of the Parties
(a) Applicant Government
395. The applicant Government alleged
that detainees were left without food and water for days and without medical
treatment.
(b) Respondent Government
396. The respondent Government who for
the reasons indicated above[67]
did not participate in the proceedings on the merits, have not, apart from the
statement mentioned above,[68]
made any submissions with regard to these allegations.
(2) Relevant Article of the Convention
397. The applicant Government's above
allegations raise issues under Article 3 of the Convention.
(3) Evidence obtainedThis section of
the Commission's Report (paragraphs 398- 401) is omitted.
(4) Evaluation of the evidence obtained
402. The Commission accepts as
credible, for the reasons stated above, the evidence of the witnesses Pirkettis
and Hadjikakou concerning the treatment of prisoners who were deported to
Turkey. The testimony of these witnesses establishes that, in a number of
cases, such prisoners were, for varying periods, not given sufficient food
supply and that, in some cases, adequate medical treatment was not made
available.
403. The Delegates, during the period
fixed for the hearing of witnesses, could not investigate all incidents
described in the written statements mentioned. However, together with the above
oral evidence, these statements constitute strong indications of withholding of
food and water, and of medical treatment, in a number of cases.
(5) Responsibility of Turkey under the
Convention
404. The conditions of detention of
Greek Cypriot prisoners held at Adana and of detainees in the northern area of
Cyprus, with the *541 exception of the detention centres Pavlides Garage and Saray
Prison, must be imputed to Turkey under the Convention as all these persons
were arrested by and in custody of the Turkish army.
(6) Conclusion
405. The Commission, by 12 votes
against one, concludes that the withholding of an adequate supply of food and
drinking water and of adequate medical treatment, in the cases referred to
above and considered as established, constitutes in the conditions described
'inhuman treatment' in the sense of Article 3 of the Convention which must be
imputed to Turkey.
C. OTHER FORMS
OF PHYSICAL AGRESSION ON PERSONS NOT IN DETENTION
I. Submissions
of the Parties
(1) Applicant Government
406. Apart from the specific forms of
ill-treatment dealt with under A and B of this Chapter, the applicant
Government alleged generally that Greek Cypriots in the Turkish occupied area
were subjected to inhuman treatment by Turkish soldiers.
(2) Respondent Government
407. The respondent Government, who for
the reasons stated above did not participate in the proceedings on the merits,
have not made any statements with regard to this allegation.
II. Relevant
Article of the Convention
408. The applicant Government's
allegations raise issues under Article 3 of the Convention.
III.
Observations on the evidence obtained
409. The oral evidence obtained by the
Commission's Delegation with regard to ill-treatment concerned only cases of
detained persons.
The applicant Government have submitted
several written statements of persons not in detention who were allegedly
beaten by Turkish soldiers. However, the Delegates, during the period fixed for
the hearing of witnesses, could not investigate the allegations on
ill-treatment of persons not in detention.
IV. Conclusion
410. The Commission, by 12 votes
against one, therefore limits its conclusion to the finding that the written
statements submitted by the applicant Government constitute indications of
ill-treatment by Turkish soldiers of persons not in detention.
*542
Chapter 5 --Deprivation of possessions
A. SUBMISSIONS
OF THE PARTIES
I. Submissions
of the applicant Government
411. The applicant Government submitted
that Greek Cypriots in northern Cyprus had been deprived of their possessions
by:
(a) the occupation by the
Turkish forces of that area, where thousands of houses and acres of land,
enterprises and industries belonging to Greek Cypriots existed;
(b) the eviction of the
Greek population from those possessions;
(c) the detention of the
remaining Greek population; and
(d) further measures of the
Turkish authorities, as described in relevant official statements of the
respondent Government.
412. In support of this submission the
applicant Government filed documentary evidence containing descriptions of many
forms of deprivation of possessions signed by or attributed to named alleged
victims. These statements relate to loss of farms, sheep and livestock,
dwelling houses, agricultural, commercial and industrial enterprises, hotels
and other property by persons displaced, brought about either by eviction or by
seizure of movable property and its subsequent removal by the Turkish soldiers,
or by conditions arising that abandonment of home and property was the only
course.
413. Details of these submissions were
as follows:
(1) Immovable property
(a) Houses and land
414. The applicant Government submitted
that all the privately owned land and houses belonging to Greek Cypriots in the
Turkish occupied areas had come under the full control of the invading army and
that most of them had already been distributed to Turkish Cypriots and Turks
brought from Turkey in order to settle in those areas.
415. The applicant Government
repeatedly stressed that the Greek Cypriots who had been expelled from their
homes and land by the Turkish army were still being prevented from returning to
their possessions and that the Turkish authorities continued to expel the
remaining Greek Cypriots from their possessions.
They further alleged that the
distribution of Greek Cypriot properties had been intensified and organised in
a systematic way.
(b) Agricultural, commercial and
industrial enterprises
416. The applicant Government referred
to the seizure and appropriation by the invading army of enterprises and
industries belonging to Greek Cypriots who had been expelled and had not been
allowed to return to their property. They stated that the industries which were
now being operated under Turkish control included meat preparations and dairy
industries, export oriented canning plants in *543 Famagusta and Morphou, grain milling
and biscuit factories, the major olive oil and vegetable oil plants, carob,
kibbling and fodder factories, textile, footwear and clothing units, almost all
brick and mosaic plants, the entire lime producing plants, the only steel pipes
plant, the plastics industry in Famagusta and the Nicosia industrial estate, an
important concentration of industry.
417. They submitted that the Turkish
Government through various official statements had made it clear that all the
agricultural produce in the Turkish occupied areas, whether belonging to Greeks
or not, was taken control of and exploited by the Turkish authorities. In this
connection Mr. Ziya Muezzinoglu, the Turkish Permanent Representative to the
European Economic Community, was reported to have stated in October 1974 that
the supervision of cultivation and irrigation of the citrus groves in the
occupied areas was being carried out by experts from Turkey, who had made
arrangements for the taking of the fruit, and that an agreement had been
reached with co-operative organisations in Turkey on marketing arrangements.
418. The applicant Government stated
that industrial units belonging to Greek Cypriots in the Turkish occupied areas
had been taken over by two large Turkish organisations which had put them into
operation with the help of technical personnel from Turkey. Several factories
had been reopened and were being operated in Zodhia, Morphou, Famagusta,
Yialousa and Nicosia.
(c) Tourist industries
419. The applicant Government stated
that all operational hotel units in the Turkish occupied areas, a total of 66
hotels with 8,368 beds, belonged to Greek Cypriots. Many other Greek Cypriot
owned tourist installations like apartments and restaurants were situated
within the occupied area, in particular in the towns of Kyrenia and Famagusta.
In the Government's opinion the fact that on 1 October 1974 an agreement had
been signed for the setting up of a Tourism Company with the participation of
Turkish and Turkish Cypriot Banks and Finance Companies, with the aim of
exploiting those hotels and tourist installations in the Turkish occupied
areas, showed the Turkish appropriation of the Greek Cypriot tourist
industries, all worth millions of pounds.
420. The Government further alleged
that after the signing of the agreement Mr. Bener, the Director-General of the
Turkish Pensioners Savings Bank, one of the share-holders of the said Company, had
said that tourist installations and hotels in Kyrenia were expected to be ready
for tourists by the 'Kurban Bairam', i.e. towards the end
of December 1974. The Turkish Prime Minister had announced in October 1974 that
it was planned to send about 2,000 persons from Turkey to provide the necessary
personnel for the operation of the said tourist installations before the winter
season and that it was also *544 planned to transfer the management of
the hotels to the Turkish Tourism Bank and other Turkish enterprises.
421. The applicant Government mentioned
hotels which, according to the Government, were operated by Turks. The Turkish
Minister of Tourism was reported to have said on 16 May 1975 that he had no
hope of getting any income from Cyprus during the 1975 tourist season.
(2) Movable property
(a) Looting
422. Looting of houses and business
premises belonging to Greek Cypriots was described by the applicant Government
as being part of a systematic course of action followed by the Turkish army in
all Turkish occupied areas. Even the properties of Greek Cypriots who had
remained in the Turkish occupied areas were said not to have escaped this fate.
The loot was said to have been loaded on Turkish army vehicles and buses seized
from Greek Cypriots, while a substantial part of the loot, including vehicles,
animals, household goods, building equipment, etc. had been transported by
Turkish naval vessels to the mainland.
423. A Turkish Cypriot member of the
'House of Representatives' had observed that it had been the purpose of the
'peaceful operation' of the Turkish forces to secure the rights and freedoms of
the Turkish Cypriot community, and not to permit looting and profiting which
had been continuing for months.
424. The applicant Government also
submitted that Greek Cypriot inhabitants of the Karpasia area and other Greek
villages in the Turkish occupied areas had been expelled and that the looting
of their homes by Turkish soldiers had started in their presence while they
were sitting in vehicles awaiting to be driven south.
(b) Robbery
425. The applicant Government
complained of robbery of agricultural produce, livestock, housing units, stocks
in stores, in factories and ships owned by Greek Cypriots, as well as of
jewellery and other valuables including money found on Greek Cypriots who had
been arrested and detained by the Turkish army. They submitted numerous
statements supporting these allegations and alleged that generally all goods
left in warehouses, fields, factories, houses and shops belonging to Greek
Cypriots and worth many millions of pounds had been seized and appropriated by
the Turkish army and that nothing had been returned or paid to the owners
thereof. They complained in particular of the taking of carrots, citrus, carobs,
tobacco and other agricultural products from the Turkish occupied areas and
belonging to Greek Cypriots which had been collected and transported by Turkish
vessels to markets in several European countries.
*545
426. A sale of a great number of vehicles of Greek Cypriots to Turkish Cypriots
was reported to have taken place in the port of Famagusta on 12 February 1975.
427. The applicant Government further
submitted that the flocks of many Greek Cypriots, arrested when coming close to
the Turkish controlled areas, were confiscated by Turkish forces without any
payment or compensation. It was estimated that 48,000 pigs, 280,000 sheep and
goats, 1,400,000 poultry and about 12,000 cattle worth eleven million pounds
and belonging to Greek Cypriots were cut off in the occupied areas and
appropriated by the Turkish authorities. Their Greek Cypriot owners were not
allowed to feed them and, when trying to do so, were killed or captured by the
Turkish army.
428. Greek Cypriot inhabitants of the
Turkish occupied areas were told by the Turkish military authorities that
citrus fruits and other agricultural products belonging to Greek Cypriots
should be considered as the property of the Turkish military authorities.
429. The applicant Government also
complained of the taking of yachts and fishing boats belonging to Greek
Cypriots which, according to the Government were listed by the Turkish military
authorities for sale by public auction to Turkish Cypriots.
(3) Destruction of movable and
immovable property
430. The applicant Government alleged
that many shops and warehouses, as well as orchards and lemon gardens belonging
to Greek Cypriots were set on fire by the Turkish army, at a time when no
military activities were carried out. Household equipment, clothing and medical
equipment were broken, destroyed or burnt. The destruction included the
smashing and setting on fire of icons, other religious items and church
equipment in Greek Orthodox churches some of which were converted into mosques.
431. Hundreds of thousands of animals
were left unattended by their Greek owners who were obliged by the invading
army to leave their villages. The animals fell into the hands of the Turkish
army and hundreds were shot dead or died because of lack of food and veterinary
care.
II.
Submissions of the respondent Government
432. The respondent Government who, for
the reasons stated above,[69]
did not participate in the proceedings on the merits, have not made any
statements with regard to the above allegations.
B. RELEVANT
ARTICLE OF THE CONVENTION
433. The Commission considers that the
above-mentioned allegations concerning deprivation of possessions raise issues
under Article 1 of Protocol No. 1 which reads as follows: *546
Every natural or legal
person is entitled to the peaceful enjoyment of his possessions. No one shall
be deprived of his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of international
law.
The preceding provisions
shall not, however, in any way impair the right of a State to enforce such laws
as it deems necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other contributions or
penalties.
C. EVIDENCE
OBTAINED
This section of the Commission's Report
(paragraphs 434-470) is omitted.
D. EVALUATION
OF THE EVIDENCE OBTAINED
I. General
471. 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
the north, and thus to property left there, the Commission refers to its
findings in Chapter 1 above.
II. Immovable
property
1. Houses and land
472. As to the specific evidence
obtained concerning the occupation of houses and land by Turkish Cypriots,
Turkish soldiers and Turks from the mainland, witness Charalambides described
the events which took place in Kyrenia in a calm and precise manner. His
statement was corroborated by the evidence of some other witnesses and a number
of written statements submitted.
The Commission, for the reasons stated
above,[70]
could not investigate all incidents described in the written statements,
especially those where Turks from the mainland were concerned. However,
together with the above evidence, these statements constitute further elements
of proof of taking and occupation of houses and land by Turkish Cypriots and
Turks from the mainland, both military personnel and civilians.
473. The Commission further observes
that about 40,000 Turkish Cypriots originally residing in the south, including
approximately 17,000 transferred under negotiated agreements, moved gradually
to the north of the island from 1974 onwards.
The Commission considers that
accommodation had consequently to be found for over 40,000 Turkish Cypriots in
the northern area and that this element supports allegations concerning the occupation
*547 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.
474. The Commission therefore accepts
the evidence obtained as establishing the taking and occupation of houses and
land belonging to Greek Cypriots.
475. The figures or losses given may be
approximate and detailed findings would require a closer examination. However,
such details would only be of secondary importance in the determination of the
alleged violations of Article 1 of Protocol No. 1.
476. Moreover, the Commission found
strong indications that Turks from the mainland have settled in houses
belonging to Greek Cypriots in the north of the island.
2. Agricultural, commercial and
industrial enterprises
477. The Commission finds no reason to
doubt the testimonies of Messrs. Savvides and Azinas. It finds it established
that agricultural, commercial and industrial enterprises were taken out of the
hands of Greek Cypriots but considers that a definite finding concerning the
value and the operation of the said enterprises after 20 July 1974 cannot be
made because the matter has not been further investigated for the reasons
stated above.
3. Tourist industries
478. Witness Andronikou's lengthy and
detailed statement does not give rise to any doubt as to its credibility. The
Commission considers, however, that the figures of the value of these
industries would need further investigation. As regards the putting into operation
of some named hotels in Kyrenia and Famagusta, the submitted newspaper cuttings
containing advertisements on trips to the said hotels and on leasing of other
hotels and statements by Turkish authorities, substantially corroborated Mr.
Andronikou's testimony.
479. The Commission concludes that the
evidence so far obtained proves beyond reasonable doubt the putting into
operation of certain hotels in the northern area while further investigations
would be required to establish the actual situation as regards the
appropriation of such property and its value.
III. Looting
and robbery of movable property
480. Witnesses Pirkettis and
Charalambides are, as stated above, credible and the Commission finds no reason
to doubt the testimony of Mr. Kaniklides. Further statements by other witnesses
and persons heard in the refugee camps as well as the numerous written
statements submitted fully corroborate the descriptions given by these
witnesses.
*548
The Commission, therefore, accepts their testimony as proving beyond reasonable
doubt that looting and robbery on an extensive scale, by Turkish troops and
Turkish Cypriots have taken place.
IV.
Destruction of property.
481. The credible testimony of
witnesses Charalambides and Kaniklides is further supported by the evidence
given by persons interviewed in the refugee camps and by a great number of
written statements submitted. The Commission is therefore satisfied that
destruction of property has taken place in many cases.
482. The evidence concerning the
uprooting of a dried out orange orchard, the effort to burn down all the
buildings along the green line in Nicosia, and the destruction of consumer
goods, as mentioned by witnesses Odysseos, Tryfon and Azinas respectively,
constitutes strong indications of the measures described.
E.
RESPONSIBILITY OF TURKEY UNDER THE CONVENTION
483. The Commission has already found
that the refusal to allow the return of Greek Cypriot refugees and expellees to
the north of Cyprus must be imputed to Turkey under the Convention. It now
considers that the consequent interference with the peaceful enjoyment by Greek
Cypriots of their movable and immovable possessions in the north must equally
be imputed to Turkey.
484. The evidence further showed that
the taking of houses and land, looting and robbery, and destruction of certain
property were effectuated by the Turkish forces. These acts must therefore be
imputed to Turkey.
485. As regards such deprivations of
possessions by Turkish Cypriots, the Commission considers that, insofar as the
persons committing them were acting under the direct orders or authority of the
Turkish forces of which there is evidence, the deprivation must equally be
imputed to Turkey under the Convention.
F. CONCLUSION
486. The Commission, by 12 votes
against one, finds it established that there has been deprivation of
possessions of Greek Cypriots on a large scale, the exact extent of which could
not be determined. This deprivation must be imputed to Turkey under the
Convention and it has not been shown that any of these interferences were
necessary for any of the purposes mentioned in Article 1 of Protocol No. 1.
487. The question whether any of these
acts were justified under Article 15 of the Convention will be considered in
Part III of this Report.
*549
Chapter 6 --Forced Labour
A. SUBMISSIONS
OF THE PARTIES
I. Applicant
Government
488. The applicant Government submitted
that a great number of persons detained by the Turkish army in the
Turkish-occupied areas, including women, were during their detention made to
perform forced and compulsory labour consisting, for example, of cleaning
water-courses for the Turks to water the fields, of cleaning and repairing
houses, constructing and repairing various structures like bridges, erecting
monuments, cleaning dead bodies out of houses, cleaning out looted houses,
cleaning military headquarters, transporting looted goods, etc. This was done
under the threat of arms and in many cases day after day throughout the whole
period of detention.
II. Respondent
Government
489. The respondent Government who, for
the reasons stated above[71]
did not participate in the proceedings on the merits, have not made any
submissions with regard to the above allegation.
B. RELEVANT
ARTICLE OF THE CONVENTION
490. The facts alleged raise issues
under Article 4 (2) of the Convention.
Article 4 states as follows:
1. No one shall be held in
slavery or servitude.
2. No one shall be required
to perform forced or compulsory labour.
3. For the purpose of this
Article the term "forced or compulsory labour" shall not include;
(a)
any work required to be done in the ordinary course of detention imposed
according to the provisions of Article 5 of this Convention or during
conditional release from such detention;
(b)
any service of a military character or, in case of conscientious objectors in
countries where they are recognised, service exacted instead of compulsory
military service;
(c)
any service exacted in case of an emergency or calamity threatening the life or
well-being of the community;
(d)
any work or service which forms part of normal civil obligations. *550
C. EVIDENCE
OBTAINED
491. No direct evidence by witnesses
was obtained on this item.
492. As a hearsay witness Mrs. Soulioti
referred to statements of enclaved or detained Greek Cypriots who were made to
work in the surrounding areas. Such written statements have also been submitted
by the applicant Government. According to these statements women were
especially made to clean out Turkish- occupied houses. In one case they had to
put out dead bodies. Greek Cypriot men were compelled to do construction work
or to clean up water courses.
D. EVALUATION
OF THE EVIDENCE OBTAINED
493. The facts described in the written
statements in question have not been further investigated by the Commission.
They constitute, however, indications of compulsion to perform certain work.
E.
RESPONSIBILITY OF TURKEY UNDER THE CONVENTION
494. In most of the statements Turkish
soldiers were described as being responsible.
It further appears that the alleged
victims were at the material time under the "actual authority and
responsibility" of Turkey, in the sense of the Commission's decision on
the admissibility of the present applications.
F. CONCLUSION
495. The Commission, by eight votes
against three votes and with one abstention, finds that the incompleteness of
the investigation with regard to the allegations on forced labour does not
allow any conclusions to be made on this issue.
Final
observations
I. Article 1
of the Convention
496. The Commission notes that, in
their present applications, the applicant Government also alleged a violation
of Article 1 of the Convention.
Article 1 provides:
The High Contracting Parties
shall secure to everyone within their jurisdiction the rights and freedoms
defined in Section I of this Convention.
497. The Commission has applied Article
1 in its decision on the admissibility of the applications, when determining
the scope of its competence ratione loci.[72]
498. The Commission, by 12 votes
against one vote and with three abstentions, considers that, in its examination
of the merits of *551 this case, no further issue arises under Article 1 as this
provision, not grating any rights in addition to those mentioned in Section I,
cannot be the subject of a separate breach. It refers in this respect to its
report in Application No. 5310/71 (Ireland v. the United Kingdom).[73]
II. Article 13
of the Convention
499. In its decision on the
admissibility of the applications, the Commission did not find that, in the
particular situation prevailing in Cyprus since the beginning of the Turkish
military action on 20 July 1974, the remedies indicated by the respondent
government could be regarded as effective and sufficient "domestic
remedies" within the meaning of Article 26 of the Convention.[74]
500. In its examination of the merits
of this case, the Commission has considered Article 13 of the Convention, which
provides:
Everyone whose rights and
freedoms as set forth in this Convention are violated shall have an effective
remedy before a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.
501. The Commission, by 13 votes
against one vote and with two abstentions, has found no evidence that such
remedies were in fact available.
III. Article
14 of the Convention
502. Article 14 states:
The enjoyment of the rights
and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a
national minority, property, birth or other status.
503. The Commission has found violations
of a number of Articles of the Convention. It notes 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
concludes by 11 votes to three that Turkey has 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.
IV. Articles
17 and 18 of the Convention
504. The Commission finally observes
that the applicant Government have also invoked Articles 17 and 18 of the
Convention.
Article 17 provides:
Nothing in this Convention
may be interpreted as implying for any State, group or person any right to
engage in any activity or perform *552 any act aimed at the destruction of any
of the rights and freedoms set forth herein or at their limitation to a greater
extent than is provided for in the Convention.
Article 18 provides:
The restrictions permitted
under this Convention to the said rights and freedoms shall not be applied for
any purpose other than those for which they have been prescribed.
505. The Commission, by 12 votes with
four abstentions, considers that these provisions do not raise separate issues
in the present case.
PART III
--ARTICLE 15 OF THE CONVENTION
A. Submissions
of the Parties
506. The Commission decided on 12 March
1976 to invite the Parties' observations on 'the applicability of the
Convention to a situation of military action as in the present case, bearing in
mind in particular Article 15.'
I. Applicant
Government
507. The applicant Government submitted
that, under the Commission's decision on the admissibility of the applications,
the Convention was applicable irrespective of the military situation.
508. Turkey undertook the military
operations described in the applications in order to impose, in violation of
the Treaty of Guarantee and the Constitution of Cyprus protected by that
Treaty, the federal solution pursued by her.
509. The application of the Convention
was not excluded by Turkey's concurrent responsibility under other
international instruments, especially the Fourth Geneva Convention of 1949: in
belligerent operations a State was bound to respect not only the humanitarian
law laid down in the Geneva Convention (jura in bello)
but also the fundamental human rights.
Resolution 2675 (XXV) of the United
Nations General Assembly of 9 December 1970 provided that fundamental human
rights, as accepted by international law and laid down in international
instruments, 'continue to apply fully in situations of armed conflict.'
510. The applicability of the European
Convention on Human Rights to armed conflicts followed also from its Article 15
(1) which made provision for the case of 'war,' while no such reference was
contained in the otherwise analogous Article 4 (1) of the International
Covenant on Civil and Political Rights.
The reference to 'other obligations
under international law' in Article 15
(1) excluded wars violating such obligations as those under the United
Nations Charter; it presupposed that the Convention applied to armed conflicts
' irrespective of the applicability thereto of 'other obligations under
international law,' either conventional such as the Geneva Convention or the
Hague Regulations or customary.'
*553
The reference in Article 15 (2) to deaths 'resulting from lawful acts of war'
also connoted that the European Convention could be applied simultaneously with
'the law of war relating to the jura in bello
because there could be deaths during an armed conflict not resulting from
lawful acts of war,' as complained of in the present case.
511. The derogation provided in Article
15 was 'a right of the State concerned': Article 15 (3) spoke of the High
Contracting Party 'availing itself of this right of derogation.' If the State
concerned did not exercise the right of derogation no other person could invoke
it, and neither the Commission nor the Court could apply it ex officio.
Turkey had not invoked any right of derogation in the present case, although
she had done so in the past on other occasions.
512. Turkey's war against Cyprus was
'an aggressive war' and therefore not contemplated by Article 15 (1). Moreover,
no derogation by Turkey with respect to Cyprus could have remained in force
after 23 July 1974, the date on which the constitutional order in Cyprus 'was
restored by the assumption of the office of the President of the Republic by
the President of the House of Representatives.' The actual war operations were
carried out on 20, 21 and 22 July 1974 (first phase) and 14, 15 and 16 August
1974 (second phase), while most of the violations complained of were not
committed during those days and ' unconnected with any war' in the sense of
Article 15.
513. Turkey never informed the
Secretary General of the Council of Europe of any measures of derogation taken
under Article 15 and the Commission could not consider ex officio
whether such measures were 'strictly required by the exigencies of the
situation.' In any case, 'the nature and extent' of the acts complained of
could not be regarded as so required.
514. Even if any of these acts were
considered (otherwise) to be in accordance with Article 15, they were still
inconsistent with Turkey's 'other obligations under international law,'
especially the Geneva Conventions and the Hague Regulations, and therefore
could not stand under Article 15.
515. Any notice to the Secretary
General of measures of derogation should under Article 15 (3) have been given
promptly; no such notice could be given as late as the closing stage of the
Commission's proceedings.
516. Even if Article 15 applied no
derogation could be made from Article 2 except for deaths resulting from lawful
acts of war, or from Articles 3, 4 (1) or 7 of the Convention; a number of the
acts complained of violated Articles 2, 3 and 4 (1).
517. Even if Article 15 applied any
derogation by Turkey would in the circumstances be incompatible with Articles
17 and 18 of the Convention.
*554
II. Respondent Government
518. The respondent Government made the
following statement[75]:
It is without any doubt
that if the conditions required by the European Convention on Human Rights
concerning the admissibility of an application were fulfilled, the question of
the applicability of the Convention in matters of military action and the
effect of Article 15 in such a situation must be examined by the Commission as
in cases like Applications Nos. 6780/74 and 6950/75 pending before the
Commission.
The present situation is
however different. In fact, as my Government has repeatedly brought to the
attention of the Commission, the above- mentioned application has been brought
by an administration which is not qualified to act in the name of a 'High
Contracting Party,' a condition required by Article 24 of the Convention.
Turkey, a guarantor State of the constitutional system of the Republic of
Cyprus according to the Zurich and London Agreements and the Treaties of
Nicosia of 1960 and acknowledged as such by the Cyprus Republic itself, has
never recognised such competence on the part of the Greek-Cypriot
administration which was constituted in flagrant violation of the
above-mentioned international treaties. According to the well- established
rules of international law, third parties may not and cannot apply rules to the
relations between the parties to the treaty other than those rules agreed in
the treaty between the parties in question. My Government therefore firmly
believes that the argument that a de facto recognition of a
government by a certain number of other States and international organs
necessitates the recognition of that government as lawful government cannot be
binding on Turkey.
In view of the above you
will acknowledge that it is out of the question for my Government to submit, in
the course of the proceedings on the merits, their observations on the
applicability of the said Convention with regard to military action and the
effects of Article 15 thereto.
B. Relevant
Article of the Convention
519. Article 15 of the Convention
states as follows:
1. In time of war or other
public emergency threatening the life of the nation any High Contracting Party
may take measures derogating from its obligations under this Convention to the
extent strictly required by the exigencies of the situation, provided that such
measures are not inconsistent with its other obligations under international
law.
2. No derogation from
Article 2, except in respect of deaths resulting from lawful acts of war, or
from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3. Any High Contracting
Party availing itself of this right of derogation shall keep the Secretary
General of the Council of Europe fully informed of the measures which it has
taken and the reasons therefor. It shall also inform the Secretary General of
the Council of Europe when such measures have ceased to operate and the
provisions of the Convention are again being fully executed.
*555
C. Communications by Turkey under Article 15 (3)
I. As to the
northern area of Cyprus
520. No communication has been made by
Turkey under Article 15 (3) of the Convention with regard to the northern area
of Cyprus.
II. As to the
Turkish mainland
521. With regard to the Turkish
mainland, the Permanent Representative of Turkey, by a Note Verbale of 23 July
1974, informed the Secretary General of the Council of Europe as follows:
The Turkish Government has
declared martial law for a duration of one month in the provinces of Ankara,
Istanbul, Tekirdag, Izmir, Aydin, Mugla, Kanisa, Kirklareli, Edirne, Canakkale,
Balikesir, Adana, Iel and Hatay in conformity with Article 20 of the
Constitution.
This decision on martial
law which was taken due to a situation that may necessitate war, foreseen in
paragraph 1 of Article 15 of the European Convention on Human Rights, is
communicated hereby in accordance with the third paragraph of the same article
of the above- mentioned Convention.
522. The above declaration was renewed
at intervals up to 5 August 1975 and in all cases the Adana region was
included, but martial law was lifted in certain other provinces. All
declarations were notified to the Secretary General.
523. By letter of 12 November 1975 the
Turkish Permanent Representative informed the Secretary General that 'Martial
Law in the provinces of Ankara, Istanbul, Adana and Iel has been lifted on 5
August 1975. Thus, no province now remains where Martial Law is in force.'
D. Opinion of
the Commission
524. The Commission has considered
whether there is a basis for applying Article 15 of the Conventon in the
present case:
--with regard to the
northern area of Cyprus, and/or
--with regard to provinces
of Turkey where Greek Cypriots were detained.
I. As regards
the northern area of Cyprus
525. In its decision on the
admissibility of the present applications, the Commission found that the
Turkish armed forces in Cyprus brought any other persons or property there
'within the jurisdiction' of Turkey, in the sense of Article 1 of the
Convention, 'to the extent that they exercise control over such persons or
property.'[76] It follows
that, to the same extent, Turkey was the High Contracting Party competent ratione
loci for any measures of derogation under Article 15 of
the Convention affecting persons or property in the north of Cyprus.
*556
526. The Commission notes that no communication was made by Turkey, under
Article 15 (3) of the Convention, with regard to persons or property under her
jurisdiction in the north of Cyprus.[77]
The Commission further notes that, at
the admissibility stage, the respondent Government submitted that they had no
jurisdiction over that area.
The Commission recalls that, both in
the First Cyprus Case[78]
and in the Lawless Case[79]
it reserved its view as to whether failure to comply with the requirements of
Article 15 (3) may 'attract the sanction of nullity or some other sanction.' In
the Lawless Case the Commission also pointed out that the obligation to inform
the Secretary General of a measure derogating from the Convention is 'an
essential link in the machinery provided in the Convention for ensuring the
observance of the engagements undertaken by the High Contracting Parties' and
further observed that, without such information, the other Parties will not
know their position under Article 24 of the Convention and the Commission
itself will be unaware of facts which may affect the extent of its own
jurisdiction with respect to acts of the State in question.[80]
527. In the present case the Commission
still does not consider itself called upon generally to determine the above
question. It finds, however, that, in any case, Article 15 requires some formal
and public act of derogation, such as a declaration of martial law or state of
emergency, and that, where no such act has been proclaimed by the High
Contracting Party concerned, although it was not in the circumstances prevented
from doing so, Article 15 cannot apply.
528. The Commission, by 12 votes
against three votes, concludes as regards the present case that it cannot, 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.
II. As to
localities in Turkey where Greek Cypriots were detained
529. The Commission notes that certain
communications, as set out above,[81]
were made by Turkey under Article 15 (3) of the *557 Convention with regard to certain
provinces including the Adana region, in which martial law was declared.
530. The Commission considers, however,
that the said declaration of martial law cannot, within the conditions
prescribed in Article 15, be extended to cover the treatment of persons brought
into Turkey from the northern area of Cyprus.
531. The Commission, by 14 votes with
one abstention, concludes that it cannot, in the present case apply Article 15
of the Convention to the treatment by Turkey of Greek Cypriot prisoners brought
to and detained in Turkey.
PART IV
--CONCLUSIONS
The Commission,
Having examined the
allegations in the two applications (see Part II above);
Having found that Article
15 of the convention does not apply (see Part III);
Arrives at the following conclusions:
I.
Displacement of persons
1. The Commission concludes by 13 votes
against one 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 violated, and
was continuing to violate,[82]
Article 8 of the Convention in all these cases.[83]
2. The Commission concludes by 12 votes
against one that, by the eviction of Greek Cypriots from houses, including
their own homes, by their transportation to other places within the north of
Cyprus, or by their deportation across the demarcation line, Turkey has equally
violated Article 8 of the Convention.
3. The Commission concludes by 13 votes
against one 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 inter-communal agreements, Turkey violated, and was continuing
to violate, Article 8 of the Convention in all these cases.[84]
4. The Commission concludes by 14 votes
against one with one abstention that, by the separation of Greek Cypriot
families brought about by measures of displacement in a substantial number of
cases, Turkey has again violated Article 8 of the Convention.[85]
*558
II. Deprivation of liberty[86]
1. 'Enclaved
persons'
(a) The Commission, by
eight votes against five votes and with two abstentions, concludes that the
curfew imposed at night on enclaved Greek Cypriots in the north of Cyprus,
while a restriction of liberty, is not a deprivation of liberty within the
meaning of Article 5 (1) of the Convention.[87]
(b) The Commission, by 12
votes with two abstentions, further concludes that the alleged restrictions of
movement outside the built-up area of villages in the north of Cyprus would
fall within the scope of Article 2 of Protocol No. 4, not ratified by either
Cyprus or Turkey, rather than within the scope of Article 5 of the Convention.
It is therefore unable to find a violation of Article 5 in so far as the
restrictions imposed on Greek Cypriots in order to prevent them from moving
freely outside villages in the north of Cyprus are imputable to Turkey.[88]
2. 'Detention
centres'
(a) The Commission, by 13
votes against one, concludes that, by the confinement of more than 2,000 Greek
Cypriots to detention centres established in schools and churches at Voni,
Gypsou and Morphou, Turkey has violated Article 5 (1) of the Convention.[89]
(b) The Commission, by 13
votes against one, further concludes that, by the confinement of Greek Cypriots
to private houses in Gypsou and Morphou, where they were kept under similar
circumstances as in the detention centres, Turkey has equally violated Article
5 (1).[90]
(c) The Commission by 10
votes against two with two abstentions, finally concludes that, by the confinement
of Greek Cypriots to the Kyrenia Dome Hotel after 14 August 1974, Turkey has
again violated Article 5 (1).[91]
3. 'Prisoners
and detainees'
(a) The Commission, by 13
votes against one, concludes that the detention of Greek Cypriot military
personnel in Turkey was not in conformity with Article 5 (1) of the Convention.[92]
*559
(b) The Commission, by 13 votes against one, concludes that the detention of
Greek Cypriot civilians in Turkey was equally not in conformity with Article 5
(1).[93]
(c) Considering that it was
unable to establish the imputability to Turkey under the Convention of the
detention of 146 Greek Cypriots at Saray Prison and Pavlides Garage in the
Turkish sector of Nicosia, the Commission, by 10 votes against two with two
abstentions, does not consider itself called upon to express an opinion as to
the conformity with Article 5 of the detention of Greek Cypriot prisoners in
the north of Cyprus.[94]
(d) The Commission, by 14
votes against none, with two abstentions, has not found it necessary to examine
the question of a breach of Article 5 with regard to persons accorded the
status of prisoners of war.[95]
4. Final observationThe Commission, by
seven votes against six with three abstentions, decided not to consider as a
separate issue the effect of detention on the exercise of the right to respect
for one's private and family life and home (Article 8 of the Convention).
III.
Deprivation of life[96]
The Commission, by 14 votes against
one, considers that the evidence before it constitutes very strong indications
of violations of Article 2 (1) of the Convention by Turkey in a substantial
number of cases. The Commission restricted the taking of evidence to a hearing
of a limited number of representative witnesses and the Delegation, during the
period fixed for the hearing of witnesses, heard eye-witnesses only concerning
the incident of Elia. The evidence obtained for this incident establishes the
killing of 12 civilians near Elia by Turkish soldiers commanded by an officer
contrary to Article 2 (1).
In view of the very detailed material
before it on other killings alleged by the applicant Government the Commission,
by 14 votes against one, concludes from the whole evidence that killings
happened on a larger scale than in Elia.
There is nothing to show that any of
these deprivations of life were justified under paragraphs (1) or (2) of
Article 2.
IV.
Ill-treatment
1. The Commission, by 12 votes against
one, finds that the incidents of rape described in the cases referred to and
regarded as *560
established constitute 'inhuman treatment' and thus violations of
Article 3, for which Turkey is responsible under the Convention.[97]
2. The Commission, by 12 votes against
one, concludes that prisoners were in a number of cases physically ill-treated
by Turkish soldiers. These acts of ill-treatment caused considerable injuries
and at least in one case the death of the victim. By their severity they
constitute 'inhuman treatment' and thus violations of Article 3, for which
Turkey is responsible under the Convention.[98]
3. The Commission, by 12 votes against
one, concludes that the withholding of an adequate supply of food and drinking
water and of adequate medical treatment from Greek Cypriot prisoners held at
Adana and detainees in the northern area of Cyprus, with the exception of
Pavlides Garage and Saray Prison, again constitutes, in the cases considered as
established and in the conditions described, 'inhuman treatment' and thus a
violation of Article 3, for which Turkey is responsible under the Convention.[99]
4. The Commission, by 12 votes against
one, concludes that the written statements submitted by the applicant
Government constitute indications of ill- treatment by Turkish soldiers of
persons not in detention.[100]
V. Deprivation
of possessions
The Commission, by 12 votes against
one, finds it established that there has been deprivation of possessions of
Greek Cypriots on a large scale, the exact extent of which could not be
determined. This deprivation must be imputed to Turkey under the Convention and
it has not been shown that any of these interferences were necessary for any of
the purposes mentioned in Article 1 of Protocol No.1. The Commission concludes
that this Provision has been violated by Turkey.[101]
VI. Forced
labour
The Commission, by eight votes against
three votes and with one abstention, finds that the incompleteness of the
investigation with regard to the allegations on forced labour does not allow
any conclusions to be made on this issue.[102]
*561
VII. Other issues[103]
1. The Commission, by 12 votes against
one vote and with three abstentions, considers that no further issue arises
under Article 1 of the Convention.[104]
2. The Commission, by 13 votes against
one vote and with two abstentions, has found no evidence that effective
remedies, as required by Article 13 of the Convention, were in fact available.[105]
3. Having found violations of a number
of Articles of the Convention, the Commission notes that the acts violating the
convention were exclusively directed against members of one of the two
communities in Cyprus, namely the Greek Cypriot community. It concludes by 11
votes to three that Turkey has 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.[106]
4. The Commission, by 12 votes with
four abstentions, considers that Articles 17 and 18 of the Convention do not
raise separate issues in the present case.[107]
Dissenting Opinion
of Mr. G. Sperduti, joined by Mr. S. Trechsel, on Article 15 of the Convention
1. In the present case the Commission
has concluded that Article 15 of the Convention is inapplicable. It has, in
fact, touched upon a new problem of interpretation in the field covered by
Article 15, which problem it has stated and resolved as follows:
in any case, Article 15
requires some formal and public act of derogation, such as a declaration of
martial law or state of emergency, and that, where no such act has been
proclaimed by the High Contracting party concerned, although it was not in the
circumstances prevented from doing so, Article 15 cannot apply.[108]
This proposition has led the Commission
to arrive at the conclusion mentioned in the following terms:
The Commission, by twelve
votes against three votes, concludes as regards the present case that it
cannot, 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.[109]
I cannot concur in this approach. Since
a general problem of interpretation is involved, I feel it my duty to explain,
if only briefly, my reasons for disagreeing.
*562
2. I would first point out that another problem of interpretation of the
Convention has also been taken into consideration by the Commission, namely
that concerning the legal consequences resulting from a failure to comply with
the rule laid down in paragraph (3) of Article 15 as to information to be given
to the Secretary General of the Council of Europe. The Commission has, in this
context, recalled the precedents of the First Cyprus Case and the Lawless Case
and has considered in particular a passage in its Report in the Lawless Case concerning
the ratio for this obligation.[110]
It has nevertheless left the above problem open once again:
In the present case the
Commission still does not consider itself called upon generally to determine
the above question.[111]
3. In my opinion the obligation laid
down in paragraph (3) of Article 15, albeit a very important one, is not to be
understood as meaning that strict and rigid respect for it is a condition
indispensable to the valid exercise of the right of derogation conferred by
that article. Such a sanction cannot easily be deduced from the general
principles of international law. It would on the other hand have been very easy
for the High Contracting Parties to have provided for it if they had had the
intention of establishing it: it would have been sufficient to say that this
right of derogation could only be exercised, on pain of nullity, if the
Secretary General of the Council of Europe were kept fully informed of the
measures taken and the reasons which inspired them.
It has even occurred that a High
Contracting party has only informed the Secretary General of the Council of
Europe of measures of derogation taken by it after they had already been
revoked or withdrawn.[112]
Whilst it is not now necessary to consider whether such a manner of informing
the Secretary General is in accordance with the obligation laid down in
paragraph (3) of Article 15, it can nevertheless be said that this indicates an
attitude which does not suggest any conviction that the exercise of the right
of derogation could be struck at by a sanction of nullity in the event that it
was not accompanied by transmission of the required information.
In brief, the obligation in question
should, in principle at least, be seen as an autonomous obligation in the sense
that its violation does not affect the valid exercise of the right of
derogation flowing from the same article.
The problem as to the legal
consequences of such a violation indeed remains. However, there is no need to
examine in depth any aspect of this problem apart from that examined above.
*563
4. Having said this, I should draw attention to the following point: the
measures of derogation envisaged in Article 15 are promulgated by public
authorities in the exercise of their functions and have an exceptional
character even from the point of view of internal law. Given this, it is
scarcely conceivable that they should not receive some form of publicity. It
does not follow that such publicity will accompany every concrete measure: the
arrest of persons, the seizure of property and so forth. A distinction must
indeed be drawn between these concrete measures and the acts which authorise
and regulate them. Whether laws or ordinances or proclamations are involved, it
is inherent in the very nature of these acts that they should be promulgated by
means of certain forms of publicity. Furthermore, it does not seem compatible
with the spirit of the European Convention that it should envisage a right of
derogation which would be exercised without even the citizens of the state, the
inhabitants of a territory or other persons subject for some other reason to
the jurisdiction of the High Contracting Party being warned in what
circumstances and under what conditions they might be subjected to
restrictions, constraints or sanctions contrary to the rights and freedoms
which the Convention normally assures them.
5. It should, however, be added that
the requirement of publicity just referred to need not necessarily always be
understood in the sense that recourse to publicity should immediately precede
recourse to concrete measures of derogation. There may even be situations with
the following characteristics, namely situations envisaged by domestic or
international law as being situations which, from the moment when they arise,
render applicable rules--of domestic or international law as the case may
be--under which exceptional measures can be taken in the conditions envisaged
by them. One cannot see how one could deduce from Article 15 that it was
necessary to resort to further forms of publicity in relation to these rules.
This is notably the case in military
occupation of the territory of a foreign state, as can be seen from the second
volume of the well-known treatise of Oppenheim:
An occupant having military
authority over the territory, the inhabitants are under his Martial Law and
have to render obedience to his commands.[113]
The state of emergency which the
establishment of military rule in a foreign territory brings about for the
occupying authorities differs from other emergency situations in that it bears,
to a large extent, certain typical characteristics, so that it is sufficient
that the military occupation should be known for the state of emergency which
it has brought about to be equally known as an inherent phenomenon. This has
allowed the elaboration of rules of the law of *564 war concerning the occupation of
territories and covering, amongst other matters, the exercise of exceptional
powers by the occupying authorities.[114]
6. The ideas
which have just been set out can be developed further, still in relation to the
hypothesis of the military occupation by one High Contracting Party of the
territory of another state.
It is to be noted that the rules of
international law concerning the treatment of the population in occupied
territories (contained notably in The Hague Regulations of 1907 and theFourth
Geneva Convention of 12 August 1949) are undeniably capable of assisting the
resolution of the question whether the measurer taken by the occupying power in
derogation from the obligations which it should in principle observe--by virtue
of the European Convention--where it exercises (de jure
or de facto) its jurisdiction, are or are not
justified according to the criterion that only measures of derogation strictly
required by the circumstances are authorised. In fact these rules duly take
account of the necessities of the occupying power: they are inspired by the
search for a just balance between military necessities and the safeguarding of
the rights and interests of the civil population.
It follows that respect for these same
rules by a High Contracting Party during the military occupation of the
territory of another state, will in principle assure that that High Contracting
Party will not go beyond the limits of the right of derogation conferred on it
by Article 15 of the Convention. One can cite, for example, Article 49 of the
Fourth Geneva Convention, which article relates to the prohibition of forced
transfers in the occupied territories whether en masse
or individually, as also to other obligations on the occupying power in
relation to the displacement of persons.[115]
7. Since my aim in the present opinion
has only been to take a position on a general problem of interpretation, I
shall not formulate any particular conclusions with regard to the case which is
subject of the Commission's Report. I shall note, however, that in paragraph
313 in fine thereof, this Report contains the
following passage:
Having regard to the above,
the Commission has not found it necessary to examine the question of a breach
of Article 5 with regard to persons accorded the status of prisoners of war.
It can be said, in accordance with the
above approach, that measures which are in themselves contrary to a provision
of the European Convention but which are taken legitimately under the
international law applicable to an armed conflict, are to be considered *565 as legitimate measures of derogation
from the obligations flowing from the Convention.
Separate Opinion
of Mr. F. Ermacora
I. As to
Article 3 of the Convention
1. Although I agree with the
Commission's finding at paragraph 373 that it has not been shown that the
Turkish authorities took adequate measures to prevent the acts in question, I
want to stress that Article 152 of the Turkish Military Code[116]
contains a provision for punishment of rape. My translation of the Turkish text
reads as follows:
Article 152
1. Those persons who commit
rape or ravishment (defloration) in military service, shall be punished pursuant
to Chapter 8 of the Turkish Criminal Code.
2. Although I agree with the
Commission's finding at paragraph 393, I consider it necessary to use the same
argument as in the case of rape, namely, that it has not been shown that the
Turkish authorities took adequate measures to prevent beating and other
ill-treatment of prisoners by Turkish soldiers. I consider that such a
treatment, apart from obligations under the Third Geneva Convention, is also
not a normal behaviour of soldiers and that military ethics prohibit this form
of violence against prisoners. The omission of the statement that Turkey did
not prevent such ill-treatment might create the impression that it is regarded
as a lighter offence of military discipline whose prevention may not be asked
for.
II. As to
Article 1 of Protocol No. 1
Although I agree with the Commission's
finding at paragraph 484, I find it necessary to state that it has not been
shown that the Turkish authorities took adequate measures to prevent looting
although looting is clearly forbidden and made a punishable offence by Articles
122, 125, 126 and 127 of the Turkish Military Code.[117]
III. As to
Article 15 of the Convention
I agree with the Commission that
Article 15 does not apply in the present case. My opinion is based on the
following observations on the interpretation of Article 15 of the Convention in
the light of its history, linked with the drafting of Article 4 of the
International Covenant on Civil and Political Rights which is now in force.
*566
1. Article 15 of the Convention is drafted in similar terms to Article 4 of the
Covenant on Civil and Political Rights[118]
which was already preliminarily drafted in 1948 in the course of the
elaboration of the first Draft International Covenant on Human Rights. Article
22 of the Interamerican Convention on Human Rights also contains a clause which
corresponds exactly to Article 15 of the European Convention. The preparatory
work of Article 15 of the European Convention does not give any indication of
the intention of the parties to the Convention or the drafters of the
Convention in drafting this clause.
2.
It seems that the European drafters
based themselves wholly on the results of the work of the UN. Indeed in the
Commission on Human Rights of the UN the derogation clause now contained in
Article 4 was drafted by a working group[119];
the text reads as follows:
Article 41. In time of war
or other public emergency, a State may take measures derogating from its
obligations under Article 2 above to the extent strictly limited by the
exigencies of the situation.
In May 1948 the text was revised and
the second paragraph was put aside ' until implementation articles have been
drafted'.[120] At the
seventh session of the Commission the text read as follows:
Article 2 1.In the case of
a state of emergency officially proclaimed by the authorities or in the case of
public disaster, a State may take measures derogating, to the extent strictly
limited by the exigencies of the situation, from its obligations under Article
1, paragraph 1 and Part II of this Covenant.
2.No derogation from
Articles 3, 4, 5 (paragraphs 1 and 2), 7, 11, 12 and 13 may be made under this
provision. No derogation which is otherwise incompatible with international law
may be made by a State under this provision.
3.Any State Party hereto
availing itself of the right of derogation shall inform immediately the other
States Parties to the Covenant, through the intermediary of the
Secretary-General, of the provisions from which it has derogated and the date
on which it has terminated such derogation.[121]
The following amendments thereto were
drafted:
Article 2
1.Paragraph 1
United Kingdom
Delete and substitute: *567
'In time of war or other
public emergency threatening the life of the nation
the States Parties hereto may take measures derogating from their
obligations under the Covenant to the extent strictly
required by the exigencies of the situation, provided that such measures are
not inconsistent with their other obligations under international law.'
2.Paragraph 2
Yugoslavia
After the words 'with international
law' in Article 2, paragraph 2, line 3, insert the words:
'and in particular with the
principles of the Charter of the United Nations and the Universal Declaration
of Human Rights'.
United Kingdom
Delete and substitute:
'No derogation from Article
3, except in respect of deaths resulting from lawful acts of war,
or from Articles 4, 5 (paragraphs 1 and 2), 7 and 11 shall be made under this provision.'
3.Paragraph 3
India
For the word 'immediately' substitute
the words 'as soon as may be', and for the words 'the other States Parties ...
Secretary-General' substitute the words 'the Secretary-General who shall inform
the General Assembly of the United Nations'.
Yugoslavia
After the words in the present text:
'the provisions from which it has derogated' insert the words: 'the reasons by
which it was actuated'.
At the eighth session of the Commission
(1952) the relevant clause was voted upon. The report of the Commission[122]
noted the following:
Article 3
(Derogations)
227. "At its 330th and
331st meetings, the Commission considered Article 2.
278. Scope of
derogations. Some representatives favoured some
qualification of the kind of public emergency in which a State
would be entitled to make derogations from the rights contained in the
covenant. In their view, the public emergency should be of such magnitude as
to threaten the life of the nation as a whole and not of a
portion of the nation, as when a natural disaster had taken place. Although it
was recognised that one of the most important public emergencies of such kind
was the outbreak of war, many representatives felt that the
covenant should, by omitting any mention of war, avoid the imputation of
seeming to condone it or to make particular provision for it. A majority of the
Commission also favoured the provision that a public emergency
giving the State the right to derogate from its obligations under the covenant should
be officially proclaimed. Some representatives, however, were
of the opinion that public emergency was too restrictive a term because it did
not cover natural disasters, which almost always justified the State in
derogating from some, at least, of the rights recognised in the covenant. There
was general agreement that no derogation incompatible with international law
should be allowed under the covenant, although some representatives considered *568 that, in addition to the expression
'international law', there should be reference, in particular, to the
principles of the United Nations Charter and the Universal Declaration of Human
Rights. Others pointed out that the principles of the Charter
were part of international law and that the principles of the Universal
Declaration of Human Rights were not.
279. The consensus of the
Commission was that none of the derogations from the obligations under the
covenant should involve discrimination on grounds of
race, colour, sex, language, religion or social origin. There was some debate,
however, whether it was 'solely' on those grounds that discrimination was
prohibited. In justification of the word 'solely', it was argued that a State
might take steps in derogation from the rights recognised in the covenant that
could be construed as discriminatory merely because the persons concerned
belonged to a certain race, religion, etc.; the evil to be avoided was
discrimination based solely on those grounds.
280. The voting
took place at the 331st meeting. The Commission voted upon an amendment of the
USSR[123]
by division; the words 'caused by circumstances' were rejected by nine votes to
five, with four abstentions; and the words, 'threatening the interests of the
people and' were not adopted, there being eight votes in favour, eight against,
and two abstentions. The Commission next adopted, by 13 votes to none, with
five abstentions, an amendment by France,[124]
to add after the words 'the life of the nation' in a United Kingdom amendment,[125]
the words 'and the existence of which is officially proclaimed'. The Commission
then rejected an amendment by Yugoslavia,[126]
to add after the words 'international law' the words 'particularly the
principles of the Charter of the United Nations and the Universal Declaration
of Human Rights'. The first part, ending with the words 'United Nations', was
not adopted, there being six votes in favour, six against, and six abstentions;
the second part was rejected by seven votes to three, with eight abstentions.
The Commission finally voted upon the United Kingdom amendment[127]
in parts: the first part, reading 'which threatens the life of the nation', was
adopted by 14 votes to four; the word 'solely' was adopted by nine votes to
seven, with two abstentions; and the remainder of the amendment, as amended,
was adopted by 15 votes to none, with three abstentions.
281. Limitation on
derogations. There was much discussion on the rights
from which no derogation under the covenant should be permitted. Some
representatives expressed their satisfaction with the present specification of
the articles in the covenant from which no derogations would be allowed in a
state of public emergency under paragraph 1 of the article. Others thought it
would be necessary, before the drafting of the covenant was completed, to make
a thorough study of the articles to be placed in the category of rights that
allowed of no derogation even in times of public emergency. Article 6,
paragraphs 1 and 2, and Article 8, paragraph 2 (a) (present Articles 8 and 10
of the draft covenant on civil and political rights), were mentioned as
enunciating rights that should appropriately be included in that category. Some
representatives expressed the view that the inclusion of Article 13 (present Article
15) in that category might cause difficulties, as cases
might arise where exercise of one of the rights enunciated in that article *569 would also constitute exercise of a
right under Articles 14 or 15 (present Articles 16 and 17). The expression of
opinion might also be the manifestation of a belief. If in such cases
derogation from Articles 14 and 15 were allowed, while derogation from Article
13 was prohibited, an impossible situation might arise. Representatives who
took that view considered that a point of substance was involved, because,
although they favoured in principle an absolute prohibition of derogation from
the right to freedom of thought, conscience and religion, they considered that
the manifestation of religion or belief might have to be subject to derogation
to the limited extent to which similar derogation would be justifiable under
Articles 14 or 15.
282. At its 331st meeting,
the Commission unanimously adopted the first sentence of the second paragraph.
283. Notification of
derogation. There was general agreement that a State
wishing to derogate from the rights recognised in the covenant should inform
the other States Parties to the covenant of its action in accordance with the
provisions of paragraph 3. Some representatives thought that a mere
notification was not enough; the derogating State should also give the reason
by which it was actuated in deciding to make the derogation, although it was
not suggested that the reasons for each particular measure constituting such
derogation should be notified. Some representatives also emphasised the need
for retaining the link between the contracting States and the United Nations,
since the covenant was an undertaking between the United Nations and those
States.
284. At its 331st meeting,
the Commission adopted, by eight votes to three, with seven abstentions, an
amendment by Yugoslavia,[128]
to add after the words 'the provisions from which it had derogated' the words
'the reasons by which it was actuated'. Paragraph 3, as amended, was adopted by
14 votes to none, with four abstentions.
285. The article as a
whole, as amended, was adopted by 15 votes to none, with three abstentions (See
article 3, annex IB).
All in all the following documents are
relevant in order to follow the full procedure more closely:
Article 2 of the draft
covenant prepared at the sixth session E/1992, annex I; E/CN.4/528, paragraphs
79-86; E/CN.4/528/Add. 1, paragraphs 50-56; E/1992, annex III, A; E/CN.4/L.121,
136, 139, 139/Rev. 1, 211, 212, 213; E/CN.4/SR.330-331; E/CN.4/668/Add. 17; and
see paragraphs 277-285. The articles referred to in paragraph 2 have been
changed to conform with the order of the articles in this section.
3. As a result of these proceedings it
can be said that the said clause in the Covenant is to be considered as a
derogation clause, that the notification procedure belongs to the
implementation aspects of the Covenant and that the notification is an
essential condition for the abrogation of human rights and freedoms. Since the
aim of the Convention is similar to that of the Covenant the above conclusion
could also be applied to the derogation clause of Article 15 of the Convention.
The aims of the European Convention,
like the aims of other international instruments on the protection of human
rights, are focused in its Preamble and in the substantive articles. There
cannot *570
be any doubt that the European Convention is designed to establish a
collective guarantee of these basic human rights and fundamental freedoms
incorporated in the Convention and the additional Protocols. But this guarantee
is not an absolute one. The States Parties to the Convention have reserved
certain areas where their sovereign will should not be touched, neither by
international human rights obligations nor by international intervention. All
clauses of the Convention which contain certain exemptions for the State
authorities relate to the domestic jurisdiction of the States.
Article 15 of the Convention exempts a
certain area of domestic jurisdiction from the general obligations of respect
of human rights ensured in the Convention. The application of this exemption,
however, is under the control of the organs established under the Convention.
This has already been clarified by the jurisprudence of the Commission and the
Court.
4. Article 15 of the Convention is a
kind of protection clause for member States in regard to those situations
mentioned in paragraph 1 of the Article. It permits the legal suspension of
human rights.
It is up to the State to avail itself
of the right of derogation from its obligations under the Convention. But a
State Party availing itself of the right of derogation shall inform the
Secretary General accordingly. In every case where the Commission or the Court
examined Article 15 the Governments concerned informed the Secretary General of
the derogation of their obligations under the Convention. In the present case,
however, for the first time the respondent Government did not indicate that
they derogated from their obligations under the Convention except for the
declaration concerning the Turkish region of Adana.
5. The main question before the
Commission is two-fold. It has to be considered:
(a) whether the respondent
Government were exempted from invoking Article 15, and/or
(b) whether the Commission
is authorised to look into the question of Article 15 ex officio.
Since Article 15 is a kind of clausula
rebus sic stantibus by itself it would be illogical to argue
that a State member by reference to this clause is free to apply Article 15 in
a given situation. If this would be accepted, the framework of the Convention
would be completely destroyed and the State in question would have freed itself
from any obligation under the Convention.
The main condition for applying Article
15 of the Convention, however, is the application of the Convention. By Article
1 of the Convention the High Contracting Parties are obliged to secure to
everyone within their jurisdiction the rights and freedoms contained in the
Convention. Only if the jurisdiction of a member State is involved may Article
15 of the Convention be applied. The Commission already in its decision on
admissibility has decided that the action taken by Turkey after 20 July 1974
established a de facto *571 jurisdiction over this part of the
territory of Cyprus, which since then has been occupied or controlled by the
Turkish army. It may be a consequence of the application of Article 3 of the
Treaty of Guarantee annexed to the London Agreement 1959. The moment when
jurisdiction is exercised, Article 1 of the Convention must be applied. No
place whatsoever falling within the jurisdiction of a member State of the
Convention may be exempt from the obligations of the Convention. The member
State who exercises jursdiction over a territory--either factually or
legally--is obliged to fulfil the obligations under the Convention.
6. The first question in this context
is if the respondent Government were justified in not invoking Article 15.
Could the Turkish Government say that the action taken after 20 July was not 'a
war' in the meaning of Article 15? (It might be recalled that Article 4 of the
above-mentioned Covenant does not use the expression war but public emergency.)
The term 'war' is to be understood in the meaning of modern international
legislation. The modern international legislation, in particular the attempts
to modify the provisions of the Geneva Conventions, avoid the expression 'war'
and use the expression 'armed conflict'. There can be no doubt that the events
in Cyprus after 20 July 1974 amounted to an armed conflict between Cyprus and
Turkey or at least between the Greek Cypriot population of Cyprus and Turkey.
Even if military interventions of the above kind may be justified under the
said Treaty of Guaranty, the acts leading to violations of human rights or
their abrogation may only be justified in the framework of Article 15 of the
Convention.
7. Can Article 15 be invoked ex
officio even if the respondent Government has not done so? In
its Report in the Lawless Case the Commission said:
'In stating this opinion,
however, the Commission is not to be understood as having expressed the view
that in no circumstances whatever may a failure to comply with the provisions
of paragraph (3) of Article 15 attract the sanction of nullity of the
derogation or some other sanction.'[129]
If the Commission is one of the
safeguards of the Convention, it must find ways and means to bring a case
occurring within the jurisdiction of a member State within the scope of the
Convention as any member State could simply take measures of derogation
invoking paragraph (1) of Article 15 without observing the provisions of
paragraph (3) of the same Article in order to be exempt from the obligations
under the Convention. There are two ways to do so: either the Commission
applies Article 15 ex officio, or it declares the
respondent Government cannot rely on paragraph (1) because it has failed to
observe paragraph (3) of Article 15.
In view of the Lawless Case it seems
that the Commission has the competence to apply Article 15 ex officio.
But it is open to question *572 if it should do so. If the Commission
applies Article 15 ex officio it assumes the role of
a State Party and substitutes the sovereign will of a State. However, it is
primarily the competence of a given State Party to invoke Article 15 and, under
paragraph (1), to present all the reasons for a given abrogation of human
rights. If a Government does not use the means of Article 15 it is the
Government's risk.
If Article 15 is not invoked and if the
Commission does not apply Article 15 ex officio
it follows that Article 15 cannot be considered as an exemption clause for the
respective Government. The consequence is that the provisions of the Convention
must be applied without reference to those elements of Article 15 (1) which
justify derogation from obligations to respect human rights.
IV. As to
Article 1 of the Convention
I cannot agree with the opinion of the
Commission that Article 1 of the Convention cannot be the subject of a separate
breach. I follow my separate opinion expressed on a similar issue in
Application No. 5310/71 (Ireland v. the United Kingdom).[130]
As stated in that opinion, I consider that Article 1 can only be violated when
there is a consistent pattern of the violations of certain human rights (in
particular the right to life or the freedom from inhuman and degrading
treatment) which, in regard to other international instruments, are considered
as 'grave breaches' or as 'flagrant and massive violations' of human rights,
against which no effective remedy is available and possible. In the present
case the respondent Government have not shown that they took adequate measures
to prevent the alleged violations and it is to be assumed that the violations
found by the Commission belong to the given system in the specific situation.
Separate Opinion
of Mr. M. A. Triantafyllides
1. I am in agreement with the findings
of the Commission as regards violations of the Convention.
2. It should, however, be emphasised
that this Report does not present the full extent of each violation because in
view of the urgency of the case it was not feasible to hear all the hundreds of
available witnesses in relation to a really vast number of complaints,
resulting from a violation of the public order of Europe on an unprecedented
scale.
3. Also, the refusal to allow the
Delegation of the Commission to visit the northern area of Cyprus under Turkish
occupation has rendered it impossible to investigate a considerable number of
other complaints. What the Delegation would have found out among other things
on such a visit is indicated by an article published in the English daily
newspaper The Guardian on 6 May 1976, by an English *573 television team, who managed to visit
26 former Greek villages in the occupied area and found in only four of them
the village churches in what could be described as a decent condition, and did
not find a single graveyard which had not been desecrated.
Moreover, a visit of the Delegation to
the occupied area would have enabled the Commission to evaluate the close
relationship between the continuing attempt to change the demographic structure
of such area by means of settlement of civilians from Turkey and the continuing
displacement from there of its Greek Cypriot inhabitants; furthermore, such a
visit could have helped considerably in ascertaining the fate of many missing
Greek Cypriots.
4. In addition to the violations of the
Convention found by the Commission I am of the opinion that at least two more
violations have been established, as follows:
(a) The restrictions
imposed on the liberty of enclaved Greek Cypriots in the occupied area are not
only contrary to the Fourth Protocol to the Convention (which has not been
ratified by either Cyprus or Turkey) but, in view of their extensive and
cumulative nature, they also result, in most instances, in deprivation of
liberty contrary to Article 5 of the Convention.
(b) The manner in which the
detention of many Greek Cypriots has been effected by Turkish military forces,
involving the wholesale separation of men from their families, has not only
contravened Article 5 of the Convention (as found by the Commission), but
amounts also to a violation of Article 8 of the Convention.
5. I should conclude by drawing
attention to the fact that this Report establishes extremely serious violations
of the public order of Europe; and at least two of them, which are of the
utmost gravity, namely the displacement of persons and the deprivation of
possessions, are still continuing. I feel that it is my duty to stress the
urgency of the need to restore the public order of Europe in Cyprus.
Separate Opinion
of Mr. E. Busuttil
I am not myself satisfied that the
facts have been properly established in the present case; and indeed the
majority of the Commission acknowledge this in paragraph 82 of the Report when
they say that 'a full investigation of all the facts has not been possible'.
I do not, of course, purport to suggest
that any fault for this failure to conduct 'a full investigation of all the
facts' can be laid at the door of the Commission or of its Cyprus Delegation.
The problems confronting the Commission in this case have been essentially
political problems, stemming in the main from the posture of non-recognition
assumed by the Turkish Government vis-- vis the applicant Government in the
broad field of general international *574 relations, in consequence of which the
respondent Government has not seen fit to participate in the proceedings of the
Commission under Article 28.
That being the case, it is not, in my
view, open to the Commission to report to the Committee of Ministers under
Article 31, for two reasons. First, the wording of Article 31 makes the
initiation of friendly settlement negotiations mandatory, and it is only if
such negotiations have proved abortive that the Commission can proceed to make
a Report under Article 31. In the present case, however, given the refusal of
the Turkish Government to 'enter into talks' with the applicant Government, no
friendly settlement negotiations in fact ensued, so that a 'solution' was
discounted at the very outset. Secondly, to report to the Committee of
Ministers under Article 31 when the provisions of Article 28 have been rendered
nugatory by the non-participation of a High Contracting Party is tantamount to
entering a judgment by default.
In my opinion, the Commission is not
empowered to enter a judgment by default. Unlike the International Court of
Justice and the European Court of Human Rights, it is not a judicial tribunal.
The Commission is a sui generis amorphous body which
performs divers functions--quasi-judicial, investigatory, political and
auxiliary--throughout the different stages of a case of which it is seized.
Where a High Contracting party defaults on its international obligations under
Article 28, it is not the task of the Commission to enter a judgment by
default, but simply to refer the default to the Committee of Ministers in an
Interim Report. Such a Report would indicate to the Committee of Ministers the
inability of the Commission to fulfil its functions under Article 28 and to
proceed to a Report under either Article 30 or Article 31 of the Convention.
The precedent of the First Greek Case
adverted to by the majority of the Commission in paragraph 56 is not precisely
in point, since in that case the Greek Government had very largely co-operated
both in the Commission's investigatory proceedings under Article 28 (a) and in
the friendly settlement negotiations under Article 28 (b).
In the light of the foregoing
considerations, therefore, and had I not been unavoidably absent when the votes
were taken by the Commission in the May session, I would have found myself in
the impossibility of expressing an opinion on the merits of the present
Applications and would have felt constrained to abstain.
Dissenting
Opinion of Professor Dr. Blent Daver
With all respect due to the Commission,
of which I am a member, for the reasons stated below, I disagree with its
Report as a whole and with the conclusions arrived at therein.
First of all, I am not in agreement
with the Commission's decision on admissibility. I abstained in the vote on
that decision because I was not permitted to join my separate opinion thereto,
on the *575
ground of the Commission's practice (see decision of the Commission as
to the admissibility of Applications Nos. 6780/74 and 6950/75 Cyprus v.
Turkey). However, there is nothing in our Convention that forbids a member from
stating his separate opinion at the admissibility stage. There is also nothing
in our Rules of Procedure which bars a member from submitting a separate
opinion.
Furthermore, to my recollection, some
members were allowed to join their separate opinions to the admissibility
decision in the Iversen case.[131]
See also dissenting opinion of Professor Sperduti on the admissibility of the
Application No. 788/60, Austria v. Italy.[132]
As to the
procedure followed by the Commission, I would like to raise the issue that in
some important respects the Commission did not comply with its Rules of
Procedure. Rule 46, for instance, expressly requires a provisional opinion
on the merits of a case after deliberation. However, in this case no such
provisional opinion has ever been reached. This was also contrary to the
Commission's constant practice, particularly in inter-State cases.[133]
The second point that I would like to
emphasise is that in its admissibility decision the Commission did not tackle
the problem of the competence of the Party which brought this case before the
Commission, to do so. This problem, which was raised at the admissibility
stage, was not adequately dealt with by the Commission. However in my opinion
this was the crucial problem before the Commission and it merited detailed
examination because the State of Cyprus was a State sui generis,
created by international agreements (mainly the Zurich, London Agreements and,
later, Nicosia Treaties of 1960). A reading of the Constitution of Cyprus shows
that not only executive power but also legislative and judicial powers were
distributed between the two communities. In other words, the powers of State
were divided between the two communities. A close examination of the
Constitution clearly shows that this distribution of powers depends upon a delicate
balance; indeed the power of veto of the Vice- President, who according to the
Constitution should be a Turkish Cypriot,[134]
covers not only domestic affairs but also international relations including the
right to bring a matter before international instances.
The 'High Contracting Party' mentioned
in Article 24 of our Convention does not, according to the Cyprus Constitution,
consist only of the Greek Cypriot side of the Government, which alone has
addressed the application to the Secretary General of the Council of Europe and
alleged the violation of the Convention. Under the Constitution this competence
is a joint one to be exercised with the Vice-President of the State (see
Articles 46, 49, 50, 54 and 57 of the Cyprus Constitution). However the Greek
Cypriot side of the *576 Government has referred the case to
the Council of Europe without consulting the Vice-President (see also Article
47 of the said Constitution). This is contrary to the Constitution of Cyprus
and consequently contrary to our Convention and constitutes an ultra vires
act by a Party holding the powers of state unilaterally, and unlawfully and in
violation of the International Agreements mentioned above.
Furthermore, it is important to bear in
mind that this Constitution has been violated many times by Greek Cypriots (for
instance Turkish Ministers were ousted from the Cabinet). In my opinion the
Commission was wrong in side- stepping this crucial matter of violation of the
Constitution, an essential point in the case, and arguing that all
international bodies and organs recognise the applicant Party as legitimate.
The organs mentioned by the Commission, such as the United Nations Assembly or
Security Council and Council of Europe, are primarily political organisations
acting mainly from political motivations. Our Commission, which is a
quasi-judicial organ, had at the admissibility stage the task of examining all
juridical problems connected with the admissibility of the application,
including the question of the competence of the 'High Contracting Party' which
referred the case to the Commission. It should also be noted that the
Consultative Assembly of the Council of Europe did not accept that the Greek
Cypriot side of the Cyprus Parliamentary Delegation could alone represent Cyprus.
In dealing with the background to the
events, the Commission's Report does not concern itself with the reasons which
led the respondent Government to intervene in Cyprus. The respondent Government
has invoked that this intervention was based on the Treaty of Guarantee
concluded between the United Kingdom, Turkey and Greece. It is common knowledge
that during the summer of 1974 a coup d'tat,
instigated by the military junta in Athens and carried out by Greek army
contingents stationed on the island violated the independence of Cyprus,
toppled the actual Government and installed a puppet Government headed by Mr.
Sampson. This unlawful and illegal interference from outside put an end to the
last remnants of constitutional order in Cyprus. The respondent Government has
invoked that in such circumstances the Guarantor Powers had a right to
intervene, after consultation in order to re-establish constitutional order in
the island. If the Guarantor Powers did not agree on joint action, as was the
case here, Article 4(2) of the Treaty of Guarantee gave each power the right to
act alone as it saw fit. it should not be forgotten that if there had been no
such intervention for the purpose of re-establishing the constitutional order
on the island and defending the rights of the long-oppressed Turkish community,
the applicant party would never have had the opportunity of bringing an
application before the Commission. This intervention also inevitably helped the
collapse of the military junta in Athens and facilitated the establishment of a
democratic Government in Greece.
*577
The third point I should like to make is that in the 'Background of Events in
Cyprus' some important facts have been omitted, which could have shed light on
the very complex and intricate Cyprus problem. In my opinion our Report, in
order to give a true and exact picture of the situation, should have mentioned
all important events, especially those which started in 1963 with the massacre
of Turkish families in Nicosia as well as in enclaves and which continued from
1964 onwards and in the summer of 1974 before and during the intervention.
Throughout these years the Turkish community of Cyprus has been the victim of
systematic ill-treatment by the Greek community. The Turkish community was
subjected to many crimes and atrocities during this period. Treated as
second-class citizens, the Turks were not able to enjoy even their basic human
rights. An appendix showing these events in chronological order could have
helped towards a better understanding of this tragic situation behind which lie
many human, political, social, cultural and economic factors.
These tragic events, covered and
reported by many international news agencies at the time and witnessed also by
neutral observers on the spot, such as accredited foreign representatives and
members of the United Nations peace- keeping force and the International Red
Cross, have unfortunately caused bitter and continuous intercommunal violence
between the two different ethnic groups on the island.
The other important points that I
should like to raise here are as follows: Firstly at the stage of examination
of the merits the Commission did not comply with Article 28, which provides
that:
'in the event of the
Commission accepting a petition referred to it: (a) it shall, with a view to
ascertaining the facts undertake together with the representatives of the
parties an examination of the petition and, if need be, an
investigation for the effective conduct of which the States concerned shall
furnish all necessary facilities after an exchange of views with the
Commission.'
However the petition of the applicant
party was not examined together with the representatives of the respondent
Government. Accordingly the mandatory requirements
of Article 28 were not fulfilled. It can be argued that any High Contracting
party can escape from its obligations under the Convention, merely by giving
some reason for not participating in the proceedings before the Commission, and
that it can thus prevent the Commission from fulfilling its functions. In my
opinion if the Commission found that the Convention procedures were blocked in
such a way, the proper course for it would have been to refer the case, with an
interim Report, to the Committee of Ministers of the Council of Europe, since
such a situation is not envisaged by the Convention and raises a new and
complex problem. The Committee of Ministers should then take the appropriate
measures to induce the respondent Government to cooperate *578
by sending representatives and thus helping the Commission in its functioning.
In my opinion the Commission was wrong
to go ahead in this situation and proceed in the absence of the respondent
Government. The Commission has argued in its Report that in such a situation it
could, like other judicial organs such as the European Court of Human Rights
and the International Court of Justice, proceed in absentia.
However, this approach is not correct because the Commission is not a court.
The express provisions of the relevant texts permit the courts mentioned above
to give judgment by default. However in our Convention nothing is said even
implicitly in this respect in relation to the Commission. The Commission acts
mainly as an investigating body with quasi- judicial powers.
Another important point that I should
raise is that the Commission's Report is incomplete since the investigating
Delegates sent to Cyprus visited only the Greek Cypriot part of the island. The
Delegates heard evidence only from Greek Cypriots and thus only one side of the
picture has been given in the Report. It is obvious that such a limited and
one-sided inquiry, which lasted barely a few days, could lead only to an
incomplete and even unbalanced version of the facts. It can again be argued
that this was not the fault of the Commission since the authorities in the
northern part of Cyprus did not allow the delegation to visit this part of the
island and carry out the necessary investigations. However the Commission was
in this respect confronted with the same deadlock as I have mentioned above. In
my opinion in order to resolve this the Commission should have addressed itself
to the Committee of Ministers and requested its assistance in solving this
political problem. After settlement of the preliminary political problem, the
Commission should then have gone ahead and visited places throughout the island
and taken evidence from a variety of different persons including Turkish
Cypriots and have completed its investigation as provided for in Article 28 (a)
of the Convention.
I should also like to mention that some
very important documentary evidence highly relevant to the case, for instance,
UN reports concerning inter-communal violence on the island, is missing from
our Report. Documents of that kind, originating from a neutral and impartial
organisation such as the UN should have been taken into consideration by the
Commission.
Certain other important evidence is
also missing from the Report. For instance the United Nations authorities on
the island abstained from giving evidence to the Delegates. They have said that
their impartial and neutral position prevented them from co-operating with the
Commission. This attitude was incomprehensible since the Commission is an
international institution. In the absence of cooperation from these
international institutions the Commission was prevented from fulfilling its
duty under Article 28 (a). Again in this situation the Commission should have
addressed itself to the Committee *579 of Ministers
requesting it to intervene in the matter with the higher authorities of the
United Nations.
In addition I should like to state that
the Commission and its investigating Delegates did not deal with the atrocities
committed against members of the Turkish community, especially those isolated
in enclaves in the summer of 1974. Such an inquiry could have helped the
Commission to arrive at a better and truer version of events which subsequently
occurred. Although in principle the Commission cannot act by itself without
being seized of an application by a High Contracting party[135]--in
this case presumably Turkey--it could rightly and properly have examined the
alleged atrocities against the Turkish Cypriots in so far as they are relevant
to the issues raised in this case. This has not been done by the Commission.
As to the establishment of the facts
and the evidence taken by the Commission we know that the sole object and aim
of evidence is to assist in the ascertainment of the truth of disputed facts or
the determination of points in issue. However, some of the evidence taken by
the Commission cannot, in my opinion, be considered as conclusive. It is,
rather, circumstantial or presumptive. Certain evidence was partly derivative,
being hearsay or rumour and thus not the best evidence to prove the facts in
dispute in this case. In many instances the evidence consists of testimony
given solely by Greek Cypriots.
In addition, in proceedings in an
inter-State case it is essential that counter-evidence should be produced in
order to arrive at the truth of the facts in issue. In this case the respondent
Government has not, for the reasons stated in its submissions, taken part in
the proceedings on the merits and it was not therefore possible to obtain
counter-evidence during the investigation and examination of the petitions by
the Commission.
To sum up briefly, the unilateral
evidence taken by the Commission during its very short visit to the island must
raise serious doubts as to the soundness of the Commission's findings and may
endanger the very basis of the Report as well as the conclusions as to
violations of the Convention.
The Commission also did not deal
properly and adequately in its Report with the question of the applicability of
the Convention in a situation of armed conflict and failed to apply it for that
purpose. Article 15 provides that in situations of emergency threatening the
life of the nation, a High Contracting Party may take measures derogating from
its obligations under the Convention to the extent required by the exigencies
of the situation. Although the respondent Government did not formally
communicate a notice of derogation to the Secretary General of the Council of
Europe concerning *580 Cyprus, the state of martial law proclaimed in Turkey and
notified to the Secretary General of the Council of Europe in fact covered all
provinces near Cyprus. In my opinion although this point was not invoked by the
respondent Government during the proceedings, the Commission should have
applied this Article to such situation. Since the respondent Government
rejected the argument that Cyprus was under her jurisdiction she could not have
invoked this point without contradicting herself. On the other hand the
Commission, in accepting that the northern part of the island was under the de
facto jurisdiction of the respondent Government, could
logically and consequently have accepted that the state of martial law existing
in Turkey also extended, as a matter of actual fact, to the parts of the island
under the respondent Government's control.
As to the problem of imputability and
responsibility, in my opinion some isolated acts by individuals during an armed
conflict cannot properly engage the responsibility of a State unless it has
been shown beyond doubt that such acts were in fact ordered, organised and
systematically conducted by the responsible authorities. In order to attribute
such acts to the respondent Government in the present case, the Commission
should also have shown clearly that official tolerance for such acts was displayed
by the competent agents of the respondent Government. There is no conclusive
evidence that such tolerance was displayed.
Final
conclusion
For the reasons stated above, and
having observed that the actual applicant party is not the legitimate and legal
High Contracting Party envisaged in the original constitutional order erected
by the Cyprus Constitution and sanctioned by international Agreements, and
having contemplated that the Commission's Report is inevitably one-sided,
unfortunately incomplete, lacking in many crucial facts relevant to the case,
that it arrives at conclusions without the counter evidence which is the very
essence of all modern legal systems and omits some important legal issues and
is thus an unbalanced Report which cannot help in any way to solve this highly
complex problem, and having noted furthermore that in such situations, where
there is a non co-operating Party, the Commission's best and most adequate form
of action would be first to address itself to the Committee of Ministers in
order to facilitate its functioning and to further the aim of the Convention
and thus to complete its task as provided in the Convention, I am against the
Report as a whole and am opposed to the conclusions of the Commission as to the
alleged violations of the Convention complained of by the applicant Party.[136]
*581
Separate Opinion of Mr. G. Tenekides
I declare my agreement in principle
with the present Report in so far as it concerns, in particular, the violations
of the Convention in the case under consideration.
Availing myself, however, of the right
given to me by Article 31 (1), I reserve my opinion on the following points:
1. The number of concrete cases which
have come under the Commission's consideration is far from corresponding with
the mass of events (massive violations) which form the background of the case.
-- This applies, for
example, in the case of the two thousand people declared missing. The
impossibility of furnishing, in the present case, tangible proof of violation
of Article 2 (1), did not absolve the Commission from the duty to draw
conclusions from the lack of information, after two years, as to the fate of
these people.
-- The situation of the
Greek Cypriots living in certain enclaves in the occupied zone has not been
examined with the attention that might have been wished. The signatory of these
lines has the conviction that violations of Article 8 and 5 have been committed
against these people.
-- Whilst violations of
Article 1 of the First Protocol concerning the peaceful enjoyment of
possessions have been found with regard to private property, with the necessary
legal implications, no mention is made of cultural patrimony (churches, ancient
or mediaeval monuments, objects of art, libraries) which, taking account of the
local traditions, occupies a particularly high place in the scale of values.
The difficulty faced by the Commission
in making a judgment of a judicial nature on the two last mentioned matters
arises from the obstacles encountered by the Delegates in trying to make
enquiries in the northern part of Cyprus. It follows from this that the
respondent Government's non-observation of Article 28 in relation to 'the
obligation on the States concerned to furnish every facility after an exchange
of views with the Commission', far from constituting a simple procedural
incident, is of such a gravity that it could have featured in the conclusions
of the present Report, amongst the major violations of the Convention.
2. Every act of 'public authority'
carried out by the Turkish Cypriots in contravention of the provisions of the
Convention is, as a result of the situation created in the zone of military
occupation in Cyprus, imputable to the respondent party. There exists, indeed,
on all the evidence, a direct causal relationship between the presence of the
military force from the continent and the opportunity for persons of the same
ethnic origin to carry out such acts. It follows that the case of the 146 Greek
Cypriots detained in the Saray Prison *582 or the Pavlides Garage, as well as
analogous cases, are in my opinion imputable to the respondent Government.
3. In relation to everything concerning
continuing violations as related in the Report, which are circumstances gravely
compromising European public order, the Commission had the possibility, acting
under Article 31 (3), of proposing measures necessary in the circumstances for
the purposes of an urgent return to the situation demanded by the duty of
applying the Convention.
Dissenting
Opinion of Mr. S. Trechsel on Article 14 of the Convention
Contrary to the opinion of the majority
of the Commission I am of the opinion that Article 14 does not apply at all in
a case where a violation of the Convention has already been found. In fact, the
Commission is called upon to make a choice between two alternatives: either a
particular guarantee of the Convention has been violated or not. If one of the
guarantees set out in Articles 2-13 of the Convention, 1-3 of Protocol No. 1 or
1-4 of Protocol No. 4 is found to have been violated, there is no room for an
additional finding according to which the violation is aggravated by an element
of discrimination.
I concede that discrimination in itself
could constitute a wrong, amounting to the violation of a human right. It could
then be said, for instance, that the pattern of behaviour of the Turkish
military forces in Cyprus, by discrimination, violated human rights of the
whole Greek-Cypriot community in the northern area of the country. Under the
Convention, however, Article 14 prohibits discrimination only in connection
with 'the enjoyment of the rights and freedoms set forth' therein. This wording
is to be read in the sense that only where an unreasonable differentation is
made between individuals both enjoying, though to a varying degree, the rights
and freedoms set forth in the Convention, can there be discrimination. Such
might be the case, for instance, in a discriminate interference with one of the
rights set forth in Article 8-11 in circumstances covered by paragraph 2 of
these Articles. As soon as there has been a violation of the Convention,
however, the very concept of discrimination/reasonable differentiation becomes
meaningless.
COMMITTEE OF
MINISTERS
Resolution DH (79) 1
20 January 1979
The COMMITTEE OF MINISTERS,
Considering the terms of
the European Convention on Human Rights (hereinafter referred to as "the
convention"); *583
Having regard to the
situation concerning the respect of human rights in the Republic of Cyprus;
Considering its decision of
21 October 1977 by which it
--
had taken note of the report of the European Commission of Human Rights as well
as of the memorial of the Turkish Government and found that events which
occurred in Cyprus constitute violations of the convention.
--
had asked that measures be taken in order to put an end to such violations as
might continue to occur and so that such events are not repeated.
--
and consequently had urged the parties to resume intercommunal talks;
Considering with regret
that this request had not been taken up by the parties concerned;
Having decided to resume
consideration of the matter;
Convinced that the enduring protection
of human rights in Cyprus can only be brought about through the
re-establishment of peace and confidence between the two communities; and that
intercommunal talks constitute the appropriate framework for reaching a
solution of the dispute.
DECIDES strongly to urge the parties to
resume intercommunal talks under the auspices of the Secretary General of the
United Nations in order to agree upon solutions on all aspects of the dispute.
The Committee of Ministers views this
decision as completing its consideration of the case Cyprus against Turkey. The
documentation will be declassified on 31 August 1979.
DECISION AS TO
ADMISSIBILITY[137]
The Law
1. The Commission has considered the
respondent Government's four objections to admissibility in the following
order:
I. the objection concerning
the locus standi of the applicant Government;
II. the objection
concerning the Commission's competence ratione loci;
III. the objection that
domestic remedies have not been exhausted; and
IV. the objection that the
applications are abusive.
I. As to the
locus standi of the applicant Government
2. The present applications have been
introduced under Article 24 of the European Convention on Human Rights which
provides that any High Contracting Party may refer to the Commission any
alleged breach of the Convention by another High Contracting Party.
*584
The Commission has first considered ex officio
whether the applications, which were lodged in the name of the Republic of
Cyprus, were brought on behalf of Cyprus as a 'High Contracting Party', that is
to say, whether Cyprus has been, at the time of the introduction of the
applications, and continues to be such a Party.
In this connection the Commission has
noted the respondent Government's reference to paragraph 5 of the Geneva
Declaration of 30 July 1974 in which Greece, Turkey and the United Kingdom
recognised the existence in practice 'in the Republic of Cyprus' of 'two
autonomous administrations', namely that of the Greek Cypriot community and
that of the Turkish Cypriot community. The Commission further notes that the
Vice-President of the Republic of Cyprus, Mr. Rauf Denktash, has on 13 February
1975 proclaimed a 'Turkish Federated State' in Cyprus.
It is clear, however, from the terms of
the above declarations that, whatever may have been their legal significance in
other respects, they did not affect, and were not intended to affect, the
continuing existence of Cyprus as a State and High Contracting Party to the
European Convention on Human Rights. The Commission is satisfied that this is
not disputed by Turkey or any other Party to the Convention.
It follows that the applications cannot
be rejected on the ground that they have not been brought in the name of Cyprus
as a 'High Contracting Party' within the meaning of Article 24.
3. The respondent Government submit,
however, that the applicant Government are not the Government of Cyprus but
only the leaders of the Greek Cypriot Community who in 1963 have taken the
administration of the State into their hands in violation of the London and Zurich
Agreements of 1959, the Treaty of Guarantee of 1960, and the Constitution of
Cyprus which is a part of those agreements. Under international law the
applicant Government are therefore not entitled to represent the Republic of
Cyprus.
The Commission, in its examination of
this preliminary objection concerning the ius standi
of the applicant Government in proceedings under Article 24 of the Convention,
notes that this Government have nevertheless been and continue to be recognised
internationally as the Government of the Republic of Cyprus and that their acts
are accepted accordingly in a number of contexts of diplomatic and treaty
relations and of the working of international organisations. In this respect
the Commission observes in particular:
-- that the Security
Council of the United Nations, in Resolution 364 (1974) of 13 December 1974 concerning the prolongation of
service of the United Nations Peace-Keeping Force in Cyprus, expressly noted
the agreement of 'the Government of Cyprus'--that is to say, the applicant
Government in the present proceedings--and that this Government's consent was
similarly recorded in a number of earlier resolutions of the Security Council
since 1964 concerning the same matter; *585
-- that representatives of
the Republic of Cyprus, appointed by the applicant Government, have continued
fully to participate in the Committee of Ministers of the Council of Europe,
consistently with Articles 14 and 16 of its Statute, and that the present
applications were signed by the then Deputy Permanent Representative (No.
6780/74) and the present Permanent Representative (No. 6950/75) respectively;
-- that no objection was
raised by any other Party to the Convention, including Turkey, when the
applicant Government, acting in the name of the Republic of Cyprus, ratified in
1969 Protocols Nos. 2, 3 and 5 to the Convention and that the applicant
Government, as the Government of Cyprus, similarly ratified a number of other
international agreements including the European Social Charter.
The Commission therefore concludes that
the applicant Government, as constituted at and since the time of lodging the
present applications, are to be considered as representing the Republic of
Cyprus also for the purpose of proceedings under Article 24, and any subsequent
proceedings under Article 28, of the Convention.
4. The respondent Government further
contend that the applicant Government acted unconstitutionally in bringing the
present applications: in the absence of a Council of Ministers constituted in
conformity with Article 46, the decision to seize the Commission has not been
taken by the organ competent under Article 54 of the Constitution; moreover,
this decision has not been approved by the Vice-President, as required by
Articles 49 and 57 of the Constitution (in this respect the respondent
Government refer to two letters of 24 September and 30 October 1974 from the
Vice-President to the Commission which were transmitted by the Permanent
Representative of Turkey); lastly, the agents who lodged the applications were
not appointed in accordance with Articles 47 and 50 of the Constitution.
The Commission, even assuming that an
inconsistency with the Constitution of Cyprus of 1960 as alleged by the
respondent Government could be relevant for the validity of the applications,
finds that regard must be had not only to the text of this Constitution but
also to the practice under it, especially since 1963. In this respect the
Commission notes that a number of international legal acts and instruments,
which were drafted in the course of the above practice and presented on behalf
of the Republic of Cyprus, have, as stated above, been recognised in diplomatic
and treaty relations, both by Governments of other States and by organs of
international organisations including the Council of Europe.
5. The Commission also considers that
regard must be had to the purpose of Article 24 of the present Convention and
that the protection of the rights and freedoms of the people of Cyprus under
the Convention should consequently not be impaired by any constitutional defect
of its Government.
*586
6. The Commission therefore concludes that the present applications have been
validly introduced on behalf of the Republic of Cyprus.
II. As to the
Commission's competence ratione loci
7. The respondent Government further
contend that the Commission has no jurisdiction ratione loci
to examine the applications, insofar as they relate to alleged violations of
the Convention in the island of Cyprus. They submit that, under Article 1 of
the Convention, the Commission's competence ratione loci
is limited to the examination of acts alleged to have been committed in the
national territory of the High Contracting Party concerned; Turkey has not
extended her jurisdiction to Cyprus or any part thereof, nor can she be held
liable, under Article 63 of the Convention, for any acts committed there.
8. In Article 1 of the Convention, the
High Contracting Parties undertake to secure the rights and freedoms defined in
Section 1 to everyone 'within their jurisdiction' (in the French text:
'relevant de leur juridiction'). The Commission finds that this term is not, as
submitted by the respondent Government, equivalent to or limited to the
national territory of the High Contracting Party concerned. It is clear from
the language, in particular of the French text, and the object of this Article,
and from the purpose of the Convention as a whole, that the High Contracting
parties are bound to secure the said rights and freedoms to all persons under
their actual authority and responsibility, whether that authority is exercised
within their own territory or abroad. The Commission refers in this respect to
its decision on the admissibility of Application No. 1611/62.[138]
The Commission further observes that
nationals of a State, including registered ships and aircraft, are partly
within its jurisdiction wherever they may be, and that authorised agents of a
State, including diplomatic or consular agents and armed forces, not only remain
under its jurisdiction when abroad but bring any other persons or property
'within the jurisdiction' of that State, to the extent that they exercise
authority over such persons or property. In so far as, by their acts or
omissions, they affect such persons or property, the responsibility of the
State is engaged.
9. The Commission does not find that
Article 63 of the Convention, providing for the extension of the Convention to
other than metropolitan territories of High Contracting Parties, can be interpreted
as limiting the scope of the term 'jurisdiction' in Article 1 to such
metropolitan territories. The purpose of Article 63 is not only the territorial
extension of the Convention but its adaptation to the measure of
self-government attained in particular non- metropolitan territories; Article
63 (3) confirms this interpretation. This does not *587 mean that the territories to which
Article 63 applies are not within the 'jurisdiction' within the meaning of
Article 1.
10. It follows from the above
interpretation of Article 1 that the Commission's competence to examine the
applications, in so far as they concern alleged violations of the Convention in
Cyprus, cannot be excluded on the grounds that Turkey, the respondent party in
the present case, has neither annexed any part of Cyprus nor, according to the
respondent Government, established either military or civil government there.
It remains to be examined whether
Turkey's responsibility under the Convention is otherwise engaged because
persons or property in Cyprus have in the course of her military action come
under her actual authority and responsibility at the material times. In this
respect it is not contested by the respondent Government that Turkish armed
forces have entered the island of Cyprus, operating solely under the direction
of the Turkish Government and under established rules governing the structure
and command of these armed forces including the establishment of military
courts. It follows that these armed forces are authorised agents of Turkey and
that they bring any other persons or property in Cyprus 'within the
jurisdiction' of Turkey, in the sense of Article 1 of the Convention, to the
extent that they exercise control over such persons or property. Therefore, in
so far as these armed forces, by their acts or omissions, affect such persons'
rights or freedoms under the Convention, the responsibility of Turkey is
engaged.
III. As to the
exhaustion of domestic remedies
11. Under Article 26 of the Convention
the Commission may only deal with a case after all domestic remedies have been
exhausted, according to the generally recognised rules of international law.
This rule applies not only in individual applications lodged under Article 25
but also in cases brought by States under Article 24 of the Convention.[139]
The rule requiring the exhaustion of
domestic remedies means in principle that remedies, which are shown to exist
within the legal system of the responsible State, must be used and exhausted in
the normal way before the Commission is seized of a case; on the other hand,
remedies which do not offer a possibility of redressing the alleged injury or
damage cannot be regarded as effective or sufficient and need not, therefore,
be exhausted.[140]
12. The respondent Government submit
that, under Turkish law, a number of effective remedies are available in
criminal, civil, disciplinary and administrative proceedings to persons
claiming to *588
be the victims of violations by Turkish authorities of individual rights
and freedoms as alleged in the present applications; such remedies can be
brought either before the competent judicial authorities in Turkey or before
the military courts of the Turkish forces in Cyprus.
13. With regard to the question whether
the remedies indicated by the respondent Government can in the circumstances of
the present case be considered as effective, the Commission notes that the
applicant Government's allegations of large-scale violations of human rights by
Turkish authorities in Cyprus relate to a military action by a foreign power
and to the period immediately following it. It is clear that this action has
deeply and seriously affected the life of the population in Cyprus and, in
particular, that of the Greek Cypriots who were living in the northern part of
the Republic where the Turkish Troops operated. This is especially shown by the
very great number of refugees who are at present in the south of the island.
14. In these circumstances the
Commission finds that remedies which, according to the respondent Government,
are available in domestic courts in Turkey or before Turkish military courts in
Cyprus could only be considered as effective 'domestic' remedies under Article
26 of the Convention with regard to complaints by inhabitants of Cyprus if it
were shown that such remedies are both practicable and normally functioning in
such cases. This, however, has not been established by the respondent
Government. In particular, the Government have not shown how Article 114 of the
Constitution of Turkey can extend to all the alleged complaints or how any
proceedings could be effectively handled given the very large number of these
complaints.
15. The Commission therefore does not
find that, in the particular situation prevailing in Cyprus since the beginning
of the Turkish military action on 20 July 1974, the remedies indicated by the
respondent Government can be considered as effective and sufficient 'domestic
remedies' within the meaning of Article 26 of the Convention. It follows that
the applications cannot be rejected for non-exhaustion of domestic remedies in
accordance with Articles 26 and 27 (3).
IV. As to
whether the applications are abusive
16. The respondent Government finally
submit that the applications constitute an abuse of the procedure provided for
by the Convention in that they are unsubstantiated and contain accusations of a
political nature, such as references to the 'invasion' and 'occupation' of
Cyprus by Turkey.
17. The Commission has already held in
a previous case[141]
that the provision of Article 27 (2), requiring the Commission to declare *589
inadmissible any application that it consides abusive, is confined to
individual petitions under Article 25 and therefore inapplicable to inter-State
applications under Article 24 of the Convention. It follows that the present
applications cannot be rejected under the said provision.
18. The Commission notes, however, that
the respondent Government, by inviting the Commission to reject the
applications as abusive, invoke a general principle according to which the
right to bring proceedings before an international instance must not be abused.
They consider that such a principle has been recognised in the Commission's
above decision in the First Greek Case.
In that decision the Commission,
'assuming that such a general principle exists and is applicable to the
institution of proceedings within the framework of the Convention', found that
'the alleged political element of the new allegations, even if established, is
not such as to render them "abusive" in the general sense of the
word'.[142]
As regards the present applications the
Commission does not accept either of the contentions of the respondent
Government that they are an abuse of the Convention process. The Commission,
even assuming that it is empowered on general principle to make such a finding,
considers that the applicant Government have, at this stage of the proceedings,
provided sufficient particularised information of alleged breaches of the
Convention for the purpose of Article 24. The Commission further considers that
the terms in which the applicant Government have characterised the Turkish
intervention in Cyprus cannot be regarded as 'abusive' in the general sense of
the word.
Now therefore THE COMMISSION without
prejudging the merits of the case, DECLARES THE APPLICATIONS ADMISSIBLE.
[1] The
Admissibility Decision is published infra, 4 E.H.R.R. 583.
[2] Infra,
para. 23.
[3] League
of Nations Treaty Series, Vol. 28, p. 12 (No. 701). Article
20 of the Treaty stated: 'Turkey hereby recognises the annexation of Cyprus
proclaimed by the British Government on the 5th November 1914.'
[4] These
measures were the subject of Application No. 176/56--Greece v. United Kingdom:
1 Yearbook 128, 130.
[5] Following
this agreement proceedings in Application No. 176/56, and in a further
application brought by Greece against the United Kingdom (No. 299/57), were
terminated: 2 Yearbook 174 et seq.
[6] United
Nations Treaty Series, Vol. 382, p. 10 (I No. 5476).
[7] United
Nations Treaty Series, Vol. 397, p. 289 (I No. 5712).
[8] United
Nations Treaty Series, Vol. 382, p. 4 (I No. 5475).
[9] Published
in the special issue 'Cyprus' of the Turkish quarterly review Foreign Policy
(Ankara, 1974/75), pp. 224-225.
[10] The
UN Resolutions are conveniently collected together and commented on by
Professor Rosalyn Higgins in United Nations Peacekeeping: Documents and
Commentary, Volume 4 Europe 1946-1979 (1981 Oxford). Security
Council Resolution 353 is reported at p. 109.
[11] Higgins
op. cit., p. 282.
[12] Council
of Europe Doc. 3566 (Rapporteur Forni).
[13] Council
of Europe Doc. 3600 (Rapporteur Karasek).
[14] Council
of Europe Doc. 3708 (Rapporteur Karasek).
[15] Higgins
op. cit. p. 109.
[16] Higgins
op. cit. p. 112.
[17] Higgins
op. cit. p. 113.
[18] Higgins
op. cit. p. 114.
[19] Higgins
op. cit. p. 117.
[20] Adopted
on 9 December 1979.
[21] Adopted
on 13 February 1975.
[22] Adopted
on 27 February 1976.
[23] Supra,
para. 14.
[24] Issued
by the Permanent Representative of Turkey to the Council of Europe. (The
Commission's press communiqu stating that the applications had been declared
admissible was released on the same day.)
[25] 'The
decision of the Commission shall be accompanied by reasons. It shall be
communicated by the Secretary of the Commission to the applicant and, except
for the case provided for in paragraph 1 of this Rule or where information has
been obtained from the applicant only, to the High Contracting Party
concerned.'
[26] Supra,
para. 30.
[27] Infra,
4 E.H.R.R., p. 583.
[28] Mr.
Frowein did not participate in this investigation.
[29] Supra,
para. 23.
[30] 12 Yearbook
passim.
[31] 'Where
a Party fails to appear or to present its case, the Chamber shall ... give a
decision in the case'. Cf. also Article 53 of the Statute
of the International Court of Justice which states as
follows: 1. Whenever one of the parties does not appear before the Court, or
fails to defend its case, the other party may call upon the Court to decide in
favour of its claim. 2. The Court must, before doing so, satisfy itself, not
only that it has jurisdiction ... but also that the claim is well founded in
fact and law.
[32] In
four recent cases before the International Court of Justice the respondent
Government failed to appear and the Court decided on the merits: Fisheries
Jurisdiction Cases (United Kingdom v. Iceland, (1974) I.C.J. Rep., p. 3;
Federal Republic of Germany v. Iceland, ibid.
p. 175) and Nuclear Tests Cases (Australia v. France, ibid.
p. 253; New Zealand v. France, ibid. p. 457). Paragraph 15
of the two latter judgments (at pp. 257 and 461) reads as follows: It is to be
regretted that the French Government has failed to appear in order to put
forward its arguments on the issues arising in the present phase of the
proceedings, and the Court has thus not had the assistance it might have
derived from such arguments or from any evidence adduced in support of them.
The Court nevertheless has to proceed and reach a conclusion, and in doing so
must have regard not only to the evidence brought before it and the arguments
addressed to it by the Applicant, but also to any documentary or other evidence
which may be relevant. It must on this basis satisfy itself, first that there
exists no bar to the exercise of its judicial function, and secondly, if no
such bar exists, that the Application is well founded in fact and in law.
[33] Paragraph
23 of the Commission's Report, 12 Yearbook,
p. 14.
[34] Paragraphs
29-31 and 34-35 of the Report, ibid. pp. 16-17.
[35] Supra,
para. 30.
[36] Supra,
paras. 40, 42 and 44.
[37] Supra,
para. 38.
[38] Supra,
para 40.
[39] Supra,
chapter 4.
[40] The
First Greek case, Commission's Report, 12 Yearbook, 504.
[41] Supra,
para. 38.
[42] Supra,
para. 77.
[43] Supra,
para. 23.
[44] Supra,
paras. 194-197.
[45] Supra,
para. 203.
[46] Supra,
para. 200.
[47] Supra,
para. 202.
[48] As
of 18 May 1976.
[49] Supra,
para. 205.
[50] As
of 18 May 1976.
[51] Supra,
para. 88.
[52] Supra,
para. 23.
[53] For
detention of persons classified as 'prisoners and detainees' who were sometimes
designated as 'prisoners of war', cf. sub-section C, infra.
[54] For
conditions of detention see Chapter 4 B, infra
[55] Supra,
para. 23.
[56] Infra,
Chapter 4 B.
[57] Supra,
para. 23.
[58] Infra.
Chapter 4B.
[59] Cf.
(1974) volume 14 International Review of the Red Cross,
p. 456.
[60] Ibid,
p.605.
[61] Supra,
para. 23.
[62] Paragraph
10 of The Law in the Commission's admissibility decision.
[63] Supra,
para. 23.
[64] Supra,
para. 77.
[65] Supra,
para. 23.
[66] Supra,
para. 77.
[67] Supra,
para. 23.
[68] Supra,
para. 40.
[69] Supra,
para. 23.
[70] Supra,
para. 77. As stated in paragraph 78, the Commission's Delegation was refused
any co-operation by Turkish or Turkish Cypriot authorities for an investigation
in the north of Cyprus.
[71] Supra,
para. 23.
[72] Paras.
7 to 10 of The Law in the Commission's admissibility decision.
[73] Ireland
v. U.K., Series B.
[74] Para.
15 of The Law in the Commission's admissibility decision.
[75] Communication
of 15 April 1976.
[76] Para.
10 of The Law in the Commission's admissibility decision.
[77] Supra,
para. 520.
[78] See
the Commission's (unpublished) Report of 26 September 1958 in Application No.
176/56 (Greece v. U.K.) Volume 1, p. 181.
[79] Series
B, 1960-1961, pp. 74, 335-336.
[80] Ibid.
The annotation on the draft International Covenants on Human Rights prepared by
the UN Secretary General (Doc. A/2929) contained the following observations on
the emergency clause in Article 4 of the draft Covenant on Civil and Political
Rights: It was generally agreed that the proclamation of a public emergency and
consequential derogation from the provisions of the covenant was a matter of
the gravest concern and the States Parties had the right to be notified of such
action. It was further agreed that since the use of emergency powers had often
been abused in the past, a mere notification would not be enough.
[81] Supra,
paras. 521-523.
[82] As
of 18 May 1976.
[83] Supra,
para. 208.
[84] Supra,
para. 210.
[85] Supra,
para. 211. Supra, para. 211.
[86] See
also supra, para. 88.
[87] Supra,
para. 235.
[88] Supra,
para. 236.
[89] Supra,
para. 285.
[90] Supra,
para. 286.
[91] Supra,
para. 288.
[92] Supra,
para. 309.
[93] Supra,
para. 310.
[94] Supra,
para. 311.
[95] Supra, para. 313.
[96] Supra,
paras. 353-355.
[97] Supra,
para. 374.
[98] Supra,
para. 394.
[99] Supra,
paras. 404 and 405.
[100] Supra,
para. 410.
[101] Supra,
para. 486.
[102] Supra,
para. 495.
[103] See
also supra para. 88 (complaints concerning searches
of homes and interferences with correspondence.)
[104] Supra,
para. 498.
[105] Supra,
para. 501.
[106] Supra,
para. 503.
[107] Supra,
para. 505.
[108] Report,
para. 527, supra.
[109] Report,
para. 528, supra.
[110] Series
B, 1960-1961, pp. 74 and 335-336.
[111] Report,
para. 527, supra.
[112] eg.
the Note Verbale deposited with the Secretariat General on
16 November 1962 by the permanent Representative of the United Kingdom relating
to the situation of 'public emergency' which had arisen in the Protectorate of
Northern Rhodesia (1962) Yearbook 8.
[113] Oppenheim,
International Law volume 2 Disputes, War and Neutrality
(7th edition ed. H. Lauterpacht) p. 438.
[114] See
the Regulations respecting the Laws and Customs of War on Land annexed to the
Fourth Hague Convention of 1907.
[115] It
will be recalled that under an article common to this Convention and the other
three Conventions of the same diplomatic conference, "The Convention shall
also apply to all cases of partial or total occupation of the territory of a
High Contracting Party, even if the said occupation meets with no armed
resistance." (1st common article, paragraph 3.)
[116] Cemal
Kseoglu, Hasiyeli Askeri Ceza ve Muhakeme Usul Kanunlari,
Istanbul 1958, p. 146.
2. If the crimes of
paragraph 1 are committed against subordinated persons, the punishment shall be
increased by 50 per cent according to Article 417 of the Turkish Criminal Code.
[117] Ibid,
p. 120.
[118] UN
Res. 2200 A (XXI).
[119] Docs. E/CN
4/56; E/CN 4/AC 3/1-9; See also the Commission's Report on the Second Session,
DOC. E/600.
[120] Doc.
E/CN 4/95.
[121] Doc.
E/CN 4/640.
[122] Doc.
E/CN 4/669.
[123] E/CN
4/L. 121.
[124] E/CN.
4/L. 211.
[125] E/CN.
4/L. 139/Rev. 1.
[126] E/1992,
annex 111, A. Article 2.
[127] E/CN.
4/L. 139/Rev. 1.
[128] E/1992,
annex 111, A, Article 2, paragraph 3.
[129] Series
B, 1960-1961, p. 74.
[130] Series
B, Ireland v. UK.
[131] Application
No. 1468/62 6 Yearbook, 278 at pp. 326-332.
[132] 4
Yearbook p. 166.
[133] See
Application No. 5310/71 Ireland v. UK.
[134] See
Article 1 of the Cyprus Constitution.
[135] Assuming
that the State concerned has not accepted the right of individual
petition--Cyprus not having done so.
[136] The
Annex to Professor Blent Daver's Dissenting Opinion is omitted.
[137] 26
May 1975. Only the section dealing with the law is reported here--Ed.
[138] X
v. Germany, 8 Yearbook, 158 at pp. 168-169.
[139] Cf.
the Commission's settled case law and, in particular, its decision on the
admissibility of Application No. 788/60 Austria v. Italy, 4 Yearbook, 116 at pp.
148-153.
[140] Cf.
the Commission's decision on the admissibility of Application No. 712/60
Retimag v. Germany, 4 Yearbook 384, at p. 400.
[141] Decision
on the admissibility of certain new allegations in the First Greek Case, 11
Yearbook, 730, 764.
[142] Ibid.