(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. KŸtchŸk, 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'Žtat 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 communiquŽ of the same day[9]
in the following words:
A coup d'Žtat
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'Žtat
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 communiquŽ 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 GŸnver,
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, Jšrundsson 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 communiquŽ 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. GorgŽ, 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. GorgŽ 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'Žtat
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.