ASPROFTAS v. TURKEY

THIRD SECTION

DECISION

Application no. 16079/90
by Tasos ASPROFTAS
against Turkey

The European Court of Human Rights (Third Section), sitting on 26 September 2002 as a Chamber composed of

MrG. Ress, President,
MrI. Cabral Barreto,
MrL. Caflisch,
MrJ. Hedigan,
MrsH.S. Greve,
MrK. Traja, judges,
MrF. Gölcüklü, ad hoc judge,
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 12 January 1990,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the comments submitted by the Cyprus Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Tasos Asproftas, is a Cypriot national of Greek Cypriot origin born in 1963 and living in Nicosia. In the proceedings before the Court he is represented by Mr C. Velaris, a lawyer practising in Nicosia.

The facts of the case, as submitted by the parties, may be summarised as follows.

The home of the applicant

The applicant claims to have his home in Famagusta in northern Cyprus.

The applicant claims that since the 1974 Turkish intervention, he has been deprived of his home, his home being located in the area that is under the occupation and the control of the Turkish military authorities. The latter prevent him from having access to and from using his house.

The demonstration of 19 July 1989

On 19 July 1989, the applicant joined an anti-Turkish demonstration in the Ayios Kassianos area in Nicosia in which the applicants in the Chrysostomos and Papachrysostomou v. Turkey and Loizidou v. Turkey cases (see below) took part.

The applicant’s submissions:

The demonstration was peaceful and took place in view of the fifteenth anniversary of the Turkish intervention in Cyprus, for the missing persons and to protest against human rights violations. The applicant joined the demonstration as a reporter for the newspaper Exormisis. During the demonstration, while he was trying to help some of the women who were being attacked by Turkish military personnel and / or other personnel acting under Turkish control, he was grabbed and beaten by Turkish policemen. He states that he was constantly hit in the face and other parts of his body and dragged to a gun emplacement with others who had also been detained during the demonstration. He states that he was beaten all the way to the emplacement and that his photographic equipment was seized despite showing his press card. He was then led to a bus through an angry crowd which shouted abuse and threats, spat at him and also beat him. He was transported to “Pavlides Garage” where a body search was carried out and all his personal effects were taken. The crowd outside the garage was shouting and throwing stones at the garage some of which came through the roof. Sometime around 11.00 p.m. he was interrogated and told to sign a statement but did not do so. On 20 July 1989, around 2.30 a.m., he states that he and some other men who had also been detained were ordered to go into a police bus. He was taken to Seray police station where, after a bodily search was carried out and his personal effects were taken, he was held in a cell that he claims was filthy and dark. Around 2.00 p.m. of the same day, he was given back his personal effects and taken to court. He states that during the remand procedure there was no proper translation. He was remanded in custody for two days and then taken to Ortakeuy prison where all his personal effects were taken again. He was put with other men in a dormitory block. An hour later, he was blindfolded and led to another area of the prison where he was interrogated. After interrogation he was taken to another room to talk to a television presenter.

On 21 July 1989 he was taken to court. He states that he had no legal representation or proper interpretation. After the trial he was taken back to prison.

On 22 July 1989 he was taken to court again and he was sentenced to a fine of 50 Cyprus pounds and three days imprisonment. The fine was due to be paid in 24 hours otherwise for every 10 pounds an additional day in prison would be served. There was an angry crowd in the court area shouting, swearing and making obscene gesticulations at him and the other detainees.

From 24 July 1989 until 28 July 1989, the applicant was detained in Ortakeuy prison and during this period he refused to eat anything because the prison director refused to give the Bishop of Kitium the church vestments and holy vessels that had been sent to allow the latter to celebrate mass. On 26 July 1989 he was locked in an isolation cell as punishment for refusing food. He claims that the cell was extremely small and unbearably hot.

On 28 July 1989 the applicant was released with others in front of journalists and television cameras. He was handed over to the UN soldiers at the last sentry box of the Turkish authorities and transported back to the southern part of Cyprus.

The Government’s submissions:

The Government allege that the applicant participated in a violent demonstration with the aim of flaming anti-Turkish propaganda. Some of the demonstrators carried Greek flags, clubs, knives and wire-cutting scissors. They were acting in a provocative manner and shouting abuse. The demonstrators were warned in Greek and English that unless they dispersed they would be arrested in accordance with the law of the Turkish Republic of northern Cyprus (‘TRNC’). The applicant was arrested by the Turkish Cypriot police after having crossed the United Nations buffer zone and having entered the area under Turkish Cypriot control. The Turkish Cypriot police intervened in the face of the manifest inability of the Greek Cypriot authorities and of the United Nations Force in Cyprus to contain the intrusion and its possible consequences.

The applicant was charged, tried, found guilty and sentenced to a short term of imprisonment. The applicant pleaded “non-guilty”, but did not give evidence and he refused available judicial remedies. He was asked if he wanted to avail the services of a lawyer registered in ‘TRNC’ but he refused and he did not ask for legal representation. Interpretation was given during the trial by qualified interpreters. All the proceedings were translated into Greek.

COMPLAINTS

The applicant complained under Articles 1, 3, 5, 6, 7, 8, 9, 10, 11, 13 and 14 of the Convention and 1 of Protocol No.1 of a violation by Turkish authorities of the rights guaranteed by these provisions.

THE LAW

1.  The applicant complains of a violation of his right to respect for his home and family life under Article 8 of the Convention. He also complains of a violation of Article 14 of the Convention by virtue of discriminatory treatment against him in the enjoyment of the above-mentioned right solely because he is Greek Cypriot.

The relevant provisions read as follows:

Article 8 of the Convention

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

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.”

Article 14 of the Convention

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

A.  Preliminary objections

The Government reject the applicant’s complaints and submit that Turkey is not responsible for matters in northern Cyprus which fall within the exclusive control of the wholly independent and democratic ‘TRNC’. Thus, they maintain that this application is incompatible ratione loci with the provisions of the Convention and should be declared inadmissible.

The applicant disputes the submissions in relation to jurisdiction and responsibility, relying essentially on the reasons given by the Court for rejecting similar objections raised by Turkey in its Loizidou v. Turkey judgments of 23 March 1995 (preliminary objections) (Series A no 310), of 18 December 1996 (merits) and of 29 July 1998 (Article 50), (Reports of Judgments and Decisions 1996-VI and 1998-IV), and the conclusions of the European Commission of Human Rights in its report in the inter-state case of Cyprus v. Turkey (application no. 25781/94, Commission’s report of 4 June 1999, reported in Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001‑IV).

Finally the applicant adopts the observations submitted by the Government of Cyprus which dispute the arguments of the respondent Government and include the following point regarding the issue of imputability:

- the conclusions of the Court in its judgments in the above-mentioned Loizidou v. Turkey case (op. cit.), the decision of the Court in the Christodoulidou v. Turkey case (no. 16085/90, 7 December 1999, unreported) and the findings of the Commission in its report of 4 June 1999 in the inter-state case of Cyprus v. Turkey (op. cit.) that Turkey is responsible under the Convention for the acts and omissions of the ‘TRNC’, are applicable in this case.

The Court refers to its dismissal in the aforementioned Loizidou judgment (merits) (op. cit.) of the Government’s preliminary objections as to Turkey’s alleged lack of jurisdiction and responsibility for the acts of which the complaint is made (op. cit., §§ 49–57). These considerations were confirmed by the Court in its judgment of 10 May 2001 in the inter-State case of Cyprus v. Turkey (op. cit., §§ 69–81 and 175). The Court recalls that in its latter judgment it rejected the Government’s arguments that it had erred in its approach to the issues raised by the Loizidou case, especially on the matter of Turkey’s liability for alleged violations of Convention rights occurring within the ‘TRNC’ (Cyprus v. Turkey, op. cit., §§ 69, 75–81 and 165-177).

The Court finds no reason to depart from these conclusions. Accordingly, it rejects the Government’s aforementioned objections to the admissibility of the application.

B.  Merits

The observations of the Government do not include submissions on the merits of the applicant’s complaints.

The applicant adopts the observations submitted by the Cyprus Government, which dispute the arguments of the respondent Government with submissions that include the following points:

- the applicant was driven from his home, by the Turkish intervention and has been consistently refused the right to return ever since, in violation of Article 8 of the Convention. This interference cannot be justified under the second paragraph of this provision;

-the applicant’s human rights have been and are violated solely because he is Greek Cypriot, contrary to Article 14 of the Convention;

- the Commission’s findings in its report of 4 June 1999 (op. cit.) as to the discriminatory nature of the intereference with the rights of Greek Cypriots under Articles 8 of the Convention apply mutatis mutandis to this case (ibidem).

The Court considers, in the light of the parties’ submissions, that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2.  The applicant complains under Articles 3, 5, 6, 7, 11, and 13 of the Convention. Further he complains of a violation under Article 14 of the Convention in conjunction with Articles 5, 6 and 7 of the Convention.

The relevant provisions read as follows :

Article 3 of the Convention

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 5 of the Convention

“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;

...

(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;

...

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.

...”

Article 6 of the Convention

“1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3.  Everyone charged with a criminal offence has the following minimum rights:

(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b)  to have adequate time and facilities for the preparation of his defence;

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e)  to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

Article 7 of the Convention

“1.  No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2.  This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

Article 11 of the Convention

“1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2.  No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

Article 13 of the Convention

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government reject the applicant’s complaints with submissions that include the following points.

- the application should be determined on the basis of the findings of the Commission in the case of Chrysostomos and Papachrysostomou v. Turkey (application nos. 15299/89 and 15300/89, Commission’s report of 8 June 1993, DR 86, p. 4). They state that the factual and legal bases of the present application are the same as those in the above-mentioned case that constitutes a pilot case. Further, Turkey is not in any way involved in the administration of justice by Turkish Cypriot courts and in the prison administration of northern Cyprus and Turkey has no jurisdiction or control over the legal system of the TRNC. They state that the applicant is intending to produce re-litigation before the Court on issues which have been already considered and ruled upon by the Commission. Thus, they maintain that this application is incompatible ratione personae and ratione loci with the provisions of the Convention and should be declared inadmissible;

As regards Article 3 of the Convention:

- there was no ill-treatment;

- during arrest and detention the Turkish Cypriot police used no more force than was reasonably necessary under the circumstances in order to effect arrest and detention.

As regards Article 5 of the Convention:

- the applicant was lawfully arrested in accordance with the law of the TRNC.

As regards Article 6 of the Convention:

- the trial of the applicant was by an impartial and independent court;

- all the cases before the court, which formed part of a group of cases and included that of the applicant, were divided into groups so as to ensure a speedy trial and help the accused in their defence;

- the applicant did not ask for more time to prepare his defence, or to be legally represented. If he had done so, he would have been given more time for such purposes. He was asked if he wanted to avail the services of a lawyer but he refused;

- the court advised and helped the applicant understand his rights and the procedure involved;

- everything in the trial was interpreted during the proceedings by qualified translators / interpreters in order to ensure that the defence was not affected and that the accused was fully informed of the charges against him;

- in passing sentence the court took all circumstances of the case into consideration.

Lastly, the Government state that the decision of the Court on admissibility in the Christodoulidou v. Turkey case (no. 16085/90, 7 December 1999, unreported) related only to complaints under Articles 3 and 11 of the Convention and 1 of Protocol No. 1. Those complaints have no bearing on the general issues and objections raised in the present application since the complaints of Ms Christodoulidou did not relate to the administration of justice in the TRNC. She was not detained, punished or imprisoned in northern Cyprus.

The observations of the applicant are similar to the observations adopted by the Cyprus Government and the applicant adopts the observations submitted by the latter. These observations dispute the arguments of the respondent Government with submissions that include the following points:

- the complaints made by the applicant are not identical to those raised in the Chrysostomos and Papachrysostomou v. Turkey (op. cit.) but significantly different, both as regards the factual basis and the legal analysis. In light of the decisions of the Court in the Loizidou v. Turkey case (op. cit.) and by the Commission in its report of 4 June 1999 in the inter-state case of Cyprus v. Turkey (op. cit.), the legal basis upon which certain complaints in the case of Chrysostomos and Papachrysostomou v. Turkey (op. cit.) where dismissed by the Commission is no longer sustainable;

As regards Article 3 of the Convention:

- the findings of the Commission in the case of Chrysostomos and Papachrysostomou v. Turkey (op. cit.) are not applicable to the present applicant. Whether the treatment suffered by the applicant in this case violated Article 3, has to be examined and determined in light of the facts of the instant case and on the basis of the evidence provided;

- in view of the Loizidou v. Turkey case (merits) (op. cit.) and the Commission’s report of 4 June 1999 in the inter-state case of Cyprus v. Turkey (op. cit.), the Government are responsible for treatment suffered by the applicant during detention, interrogation and trial;

- the treatment endured by the applicant during his arrest and subsequent imprisonment and trial was of a very severe nature, including inter alia physical violence and punishment, exposure to violent and abusive crowds, inhuman and degrading conditions of detention, including solitary confinement and sleep deprivation and, humiliating and frightening treatment in court. Whether such treatment is viewed cumulatively or separately, it caused severe physical and psychological suffering, some of which is continuing today. Thus the treatment suffered constituted inhuman and degrading treatment in violation of Article 3 of the Convention.

As regards Article 5 of the Convention:

- during the applicant’s initial arrest and subsequent detention as well as during the detention imposed following the court conviction, the applicant was denied his liberty in circumstances which did not follow a procedure prescribed by law and which was not lawful under Articles 5 § 1 (a) and 5 § 1 (c) of the Convention;

- the failure of the authorities to inform the applicant of the or all the reasons for his arrest and charges against him constitutes a violation of Article 5 § 2.

As regards Article 6 of the Convention:

- this application is an exceptional case where the applicant was denied each and every of the basic fair trial guarantees provided for in the above-mentioned provision. These include inter alia a failure: to inform the applicant promptly in a language that he understood, of the nature and cause of the accusation against him, to provide the applicant with adequate time and facilities to find a lawyer of his own choice and to prepare his defence, to allow the cross-examination of witnesses and provide the applicant with a transcript of the trial, and to provide the applicant with proper interpretation;

- the applicant was not permitted to engage a lawyer of his choice, but was asked only at the commencement of the trial if he wished to use a lawyer registered in the ‘TRNC’. No indication was given to the applicant that such a lawyer would provide free legal assistance. In any case, legal advice should have been offered well in advance of the commencement of the trial;

- the finding of the Commission in the Chrysostomos and Papachrysostomou v. Turkey (op. cit.) that Article 6 of the Convention had been violated in that there was proof beyond reasonable doubt that subjectively the “court” which tried the applicants was neither impartial nor fair, wholly supports the applicant’s case.

As regards Article 7 of the Convention:

- the applicant was falsely tried for offences which did not amount to offences under relevant national or international law, and which in any event failed to meet the standards of foreseeability and accessibility required by the Convention (G. v. France judgment of 27 September 1995, Series A no. 325-B), in violation of Article 7 of the Convention.

As regards Article 11 of the Convention:

- the applicant’s right to demonstrate under Article 11 of the Convention was interfered with in an aggravated and serious manner;

- the acts of the Government were a deliberate and provocative attempt to disrupt a lawful demonstration in an area which was the subject of UN patrols and not within even the claimed jurisdiction of the ‘TRNC’;

- the interference with the applicant’s rights was not prescribed by law and was an excessive and disproportionate response to the peaceful and lawful demonstration. The Government have not identified in their current observations any legitimate aim that they were seeking to serve by committing these assaults upon the applicant.

As regards Article 13 of the Convention:

- no effective remedies are or were at any time available to the applicant in respect of any of his complaints under the Convention; alternatively, the institutions established by the ‘TRNC’ are incapable of constituting effective domestic remedies within the national legal system of Turkey, within the meaning of Article 13 of the Convention.

As regards Article 14 of the Convention in conjunction with Articles 5, 6 and 7:

- the applicant was arrested, beaten and prosecuted by the authorities solely because of his nationality and ethnic origin. This differential treatment was a clear violation of Article 14 of the Convention when read together with Articles 5, 6 and 7.

The Court recalls that the Commission in its report in the Chrysostomos and Papachrysostomou v. Turkey (op. cit.) had considered that, because, inter alia, of the overall control exercised by Turkey over the “border zone” the arrest of the applicants in that case and alleged ill-treatment in the “border area” on 19 July 1989 were imputable to Turkey. Further the Court considers that in view of and in accordance with its above-mentioned Loizidou v. Turkey judgment, the alleged violations are imputable to Turkey.

In view of the above-mentioned findings, the Court considers therefore that this part of the application cannot be rejected as incompatible ratione personae and ratione loci with the provisions of the Convention.

The Court considers, in the light of the parties’ submissions, that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2.  The applicant had initially complained of a violation of Article 1 of Protocol No. 1 to the Convention. However, on 3 January 1998 he informed the Court that he wished to withdraw the complaint in question.

The Court notes this development and considers that respect for human rights as defined in the Convention does not require it to continue the examination of this complaint which, accordingly, no longer form part of the application.

3.  Finally, the applicant had initially complained of a violation of Articles 1, 9 and 10 of the Convention.

The Court notes that the applicant has failed to substantiate his complaints under these provisions. In particular, the applicant has not submitted any observations on their substance. Further, the Court finds that the facts of the case do not disclose any appearance of a violation of the above-mentioned provision.

It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court by a majority

Declares admissible, without prejudging the merits, the applicant’s complaints under Articles 3, 5, 6, 7, 8, 11, 13 and 14 of the Convention;

Decides to strike the application out of its list of cases insofar as it concerns Article 1 of Protocol No. 1;

Declares the remainder of the application inadmissible.

Vincent BergerGeorg Ress
       RegistrarPresident

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