AS TO THE ADMISSIBILITY OF
Applications Nos. 25316/94 I. Denizci
25317/94 A. Merthoca
25318/94 H. Mavideniz, Y. Mavideniz
and D. Davulcular
25319/94 H.M. Merthoca
25320/94 E. Kaptanoglu
25321/94 T.A. Kismir
27207/95 I. Tufansoy
against Cyprus
The European Commission of Human Rights sitting in private on
20 January 1998, the following members being present:
MM S. TRECHSEL, President
G. JÖRUNDSSON
H. DANELIUS
Mrs G.H. THUNE
M C.L. ROZAKIS
Mrs J. LIDDY
MM B. MARXER
M.A. NOWICKI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, Secretary to the Commission;
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the applications introduced on 12 September 1994
by Ilker Denizci, Aziz Merthoca, Hüseyin Mavideniz, Yilmaz Mavideniz,
Dogan Davulcular, Hasan M. Merthoca, Erbay Kaptanoglu and Taser Ali
Kismir against Cyprus, and registered on 27 September 1994 under files
Nos. 25316-25321/94, and the application introduced on
12 September 1994 by Ibrahim Tufansoy against Cyprus and registered on
2 May 1995 under file No. 27207/95;Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
16 November 1995 and the observations in reply submitted by the
applicants on 5 February 1996;
- the Commission's decision of 31 October 1997 to join the
applications;
- the supplementary observations submitted by the respondent
Government on 5 January 1998;
- the parties' oral submissions at the hearing on 20 January 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are all Cypriot citizens of Turkish origin.
The first applicant, Ilker Denizci, born in 1960, is a
construction worker. He is presently residing in Akcay-Guzelyurt
(Morphou) in the northern part of Cyprus.
The second applicant, Aziz M. Merthoca, born in 1968, is a
construction worker. He is presently serving a sentence of nine months'
imprisonment in the northern part of Cyprus.
The third applicant, Hüseyin Mavideniz, the fourth applicant,
Yilmaz Mavideniz, and the fifth applicant, Dogan Davulcular, are
presently residing in Famagusta, in the northern part of Cyprus. The
third and the fourth applicants are brothers. The third and the fifth
applicants are brothers-in-law.
The sixth applicant, Hasan Mehmet Merthoca, born in 1955, is a
construction worker. He is presently residing in Girne (Kyrenia) in the
northern part of Cyprus.
The seventh applicant, Erbay Kaptanoglu, born in 1950, is a
builder. He is presently residing in Gecitkale (Lefkoniko), Famagusta,
in the northern part of Cyprus.
The eighth applicant, Taser Ali Kismir, born in 1957, is a
construction worker. He is presently residing in Paphos (Republic of
Cyprus).
The ninth applicant, Ibrahim Tufansoy, born in 1926 in Limassol,
is a retired municipality worker. He lives in Morphou, in the northern
part of Cyprus. He is the father and next of kin of deceased Ilker
Tufansoy who was killed in the village of Stavrokonno (Aydogan) in
Paphos, Republic of Cyprus, on 2 June 1994. He is bringing the
application as the father and/or next of kin of the deceased, and/or
administrator of the estate of the deceased, for and/or on behalf of
the family and/or the estate of the deceased.
Before the Commission the applicants are represented by
Zaim M. Necatigil, a lawyer practising in Nicosia (in the northern
part).
The facts of the case, which are in dispute between the parties,
may be summarised as follows.
A. Submissions of the applicants
The case of Ilker Denizci
In February 1991 the applicant, who had previously been living
in the northern part of Cyprus, moved to the territories under the
control of the Republic of Cyprus, where he worked as a builder until
June 1992. There, he was under strict surveillance by the Cypriot
police. His movements were monitored and at certain times, he was
taken to the police headquarters where he was severely beaten and
intimidated. When it was found that he was working at Ayia Napa the
police ordered him to leave his work, beat him and threatened to kill
him if he did not leave the territories under the control of the
Republic of Cyprus. On 12 June 1992 the applicant returned to northern
Cyprus and on 4 March 1994 he crossed over again to the territories
under the control of the Republic of Cyprus. He first went to Larnaca
and a few days later to Limassol. He started to work as a builder at
Aghrodimou village within the British military base of Akrotiri.
On 4 April 1994 at about 7.30 a.m., two Cypriot policemen,
believed to be attached to the Secret Intelligence Police, came to the
applicant's place of work and ordered him to come with them. The
applicant was forced into a car and taken to Limassol police
headquarters, believed to be that of the Central Intelligence Service.
There, he was interrogated about the murder in Nicosia of
Theophilos Georghiades, the desk officer responsible for Turkish
affairs at the Cypriot Public Information Office who had been killed
on 20 March 1994 by unknown persons.
The applicant was then taken to Nicosia police station in the
vicinity of Paphos gate, a two-storey building believed to be the
central headquarters of the Cypriot Intelligence Service. There he
was insulted and beaten by 8-9 policemen for about 20 minutes. He was
then blindfolded and taken to the police headquarters in the
Troodos/Kambos area. At these headquarters two uniformed policemen
seated the applicant on a chair, the wrong way round, and handcuffed
him. He was interrogated for about one hour about the killing of Mr.
Georghiades. During the interrogation, he was severely and continually
beaten by hand and fist, received blows from an electrical baton and
was hit several times with an olive stick and a pistol butt. The two
policemen left the applicant in a helpless state for about half an
hour. Then they came back and forced him to sign and affix his
fingerprint on a statement to the effect that he had no complaint about
the Cypriot police and wanted to go to the northern part of Cyprus
freely of his own will. When he refused, a club was pushed into his
mouth pulling out one of his teeth. He then signed the statement. His
identity card certifying that he was a citizen of Turkish origin of the
Republic of Cyprus was seized by the policemen. Then he was put in a
cell.
On the same evening, at about 8.00 p.m., four armed policemen
blindfolded the applicant and put him in a car. After 15-20 minutes'
journey, the car was stopped and the applicant came out of the car.
When the blindfold was removed the applicant realised that he was in
the middle of fortifications under the control of the Republic of
Cyprus near the United Nations buffer-zone. The policemen made the
applicant take off his shoes, started stamping on his toes, crushing
and bleeding them, and then extinguished their burning cigarettes on
them. They took away the sum of 380 Cyprus Pounds which the applicant
had in his pocket. The policemen then pulled the applicant by the
handcuffs, released them and pushed him into a dry river bed and set
their guns. They told the applicant to follow the river to the north
and said if he returned they would shoot him.
As the applicant had received blows on every part of his body,
he could not walk. He crawled along the river bed and reached the
northern part of Cyprus at Taspinar (Angolem) village. In the
northern part of Cyprus the applicant was examined and treated at
Cengiz Topel (Pendayia) Hospital, and later at the "Turkish Cypriot
State Hospital" in Nicosia.
In a report dated 8 April 1994, a medical doctor of the Cengiz
Topel Hospital stated that there was evidence of abrasions on both
sides of the applicant's zygomatic zones and also on the right
mandibular zone. According to the Report, there were several wounds
in different sizes on both hands and both tibia areas. There was also
evidence of abrasion and bruises of different sizes and width on the
upper back and right shoulder. The applicant was also found to be a
diabetic.
The toe which the policemen had stamped upon and crushed was
later affected with gangrene and had to be amputated.
The applicant was also examined by a United Nations medical
officer at the United Nations Ledra Palace headquarters.
The case of Aziz M. Merthoca
The applicant used to live in the northern part of Cyprus until
1985. In 1985, with another Cypriot citizen of Turkish origin, he
crossed over to the territories under the control of the Republic of
Cyprus in order to find work there and earn a living. They reported
to a police station in Xylotymbou where they were questioned about the
military situation in the northern part of Cyprus. They were later
taken to the Cypriot Central Intelligence Police Headquarters in
Nicosia. They were detained for 18 days during which they were
interrogated and beaten by the police.
The applicant and his friend were later allocated a house by the
police at the Turkish quarter of Limassol. The applicant started to
work as a construction labourer in Limassol. Within a few months the
applicant met P.Y., a Cypriot citizen of Greek origin with whom he
rented a house and started living together. In 1987 the applicant and
P.Y. had a daughter and in 1991 the couple had a son.
After the killing of Theophilos Georghiades the applicant was
taken to the Limassol police station where he was interrogated by
Cypriot policemen attached to the Central Intelligence Service. A
statement was taken from him.
On 17 April 1994, the applicant, together with another Turkish
Cypriot, Yilmaz Mavideniz (cf. Application No. 25318/94), helped some
other Cypriot citizens of Turkish origin to cross from the northern
part of Cyprus to the territories under the control of the Republic of
Cyprus, and tried to find accommodation for them in Limassol. Among
the persons whom they helped to cross to the south, were Hüseyin
Mavideniz, Nermin Mavideniz, Dogan Davulcular, Hüseyin Davulcular,
Selma Davulcular and their four children.
On 18 April 1994, when the applicant was getting prepared to go
to work, three Cypriot policemen from the Central Intelligence Service
by the names of Theodoro, Rodi and Kosti came to his apartment and told
him that they would take him to the police headquarters. The applicant
was taken to the Limassol police headquarters. Yilmaz Mavideniz and
the Turkish Cypriots whom they had helped to cross to the south were
already there. The applicant and Yilmaz Mavideniz were taken into
another room and beaten by hand and fist for helping the other Turkish
Cypriots to come to the territories under the control of the Republic
of Cyprus.
On the same day, towards mid-day, they were all put in a mini-bus
and driven to Nicosia Central Intelligence Service Headquarters.
There, the applicant and other men were beaten by 6-7 policemen,
amongst whom the applicant recognised Chrystaki and Beniko. Then they
were all driven to a police station in a mountain village called
Kambou. There the applicant and the other men were again beaten by the
Cypriot Intelligence Police with clubs and sand bags. They were forced
to sign statements to the effect that they had no complaint against the
Cypriot police and wanted to go to the northern part of Cyprus of their
own will. They were then put in a cell.
In the evening of the same day the applicant and the other
Turkish Cypriots were taken from the cell. The applicant was
handcuffed and slapped before he was put in a police jeep. They were
put in two jeeps and driven to a dry riverbed near the buffer-zone
south of the Guzelyurt (Morphou) area. The handcuffs were removed and
they were ordered to walk along the riverbed to the northern part of
Cyprus. A policeman by the name of Chrystaki Savva warned them not to
come back, otherwise they would be shot. The applicant and the other
persons followed a different route to the north in case the route
suggested by the police might have been mined. They safely reached the
village of Taspinar in the northern part of Cyprus.
On 21 April 1994, the applicant was examined at the "Turkish
Cypriot State Hospital" in Nicosia. On the same day a medical report
was drawn up which stated that there was swelling and ecchymosis on
both scapular regions. The applicant was later examined by a United
Nations medical officer.
On 27 August 1995, the applicant returned to the South to join
P.Y. and their children.
On 28 August 1995, under threat and blackmail from the Greek
Cypriot police, the applicant gave a statement declaring that he had
been ill-treated by the Turkish or Turkish Cypriot police.
The case of Hüseyin and Yilmaz Mavideniz and Dogan Davulcular
In 1986 Yilmaz Mavideniz crossed over from the northern part of
Cyprus to the territories under the control of the Republic of Cyprus
in order to find work there and earn a living. He worked there until
1991 when he returned to the northern part of Cyprus. In 1992 he again
crossed to the Republic of Cyprus. Upon arrival at Limassol, he went
to the Limassol police station and reported his arrival. He resided
in Limassol where he worked as a construction worker and later at a
petrol station. During this period he met T., a Cypriot woman of Greek
origin, and they lived together in the Turkish quarter of Limassol.
Yilmaz Mavideniz was continually under the surveillance and
control of the Cypriot police and his movements were monitored.On
17 April 1994, he helped some other Turkish Cypriots to cross from the
northern part of Cyprus to the territories under the control of the
Republic of Cyprus and tried to find accommodation for them in
Limassol. The persons whom they helped to cross to the south were
Hüseyin Davulcular, Dogan Davulcular (his cousins), Hüseyin Mavideniz
and their wives and children.
On 18 April 1994, three Cypriot policemen from the Central
Intelligence Service, amongst whom were Rodi and Asimeno, visited the
house of Yilmaz Mavideniz. The other Turkish Cypriots who had come to
the south the day before and were staying in the house of Yilmaz
Mavideniz (Dogan and Hüseyin Davulcular and their wives and children)
were taken from the house and driven to Limassol police station. A
police officer named Asimeno ordered Yilmaz Mavideniz to drive him to
the house where Hüseyin Mavideniz was staying. Hüseyin Mavideniz was
then brought to the Limassol police station together with his wife and
their two children.
At the Limassol police station Yilmaz Mavideniz and Aziz M.
Merthoca were taken into another room, interrogated and beaten by hand
and fist for helping the others to come to the territories under the
control of the Republic of Cyprus. Hüseyin Mavideniz and Dogan
Davulcular were also interrogated, sworn at and beaten by the police.
Hüseyin Mavideniz said that he was a poor person, he intended to work,
but would not stay permanently in the south. He asked why he was
beaten. The police swore at him and told him that he was beaten for
being a Turkish Cypriot. The police officer said that they did not
want to see any Turks in the south.
On the same day, at about mid-day, the applicants, their families
and the other detainees were put in two jeeps (Pajeros) and driven to
Nicosia Central Intelligence Service Headquarters. There, the
applicants were beaten by 6-7 policemen. Then they were all taken to
a police station in a mountainous area, believed to be the Greek
Cypriot Central Intelligence Service in Troodos/Kambos area. There,
the applicants were taken in a room in turn and beaten by the Cypriot
Intelligence Police with clubs and sand bags. Four of the policemen
wore civilian clothes and one was in police/military uniform. The
policemen were repeatedly saying that they did not want Turks in the
south and that they would punish them.
Due to severe beating at the area of his kidneys, Hüseyin
Mavideniz could not urinate for two days. He had bruises on the body
and a swollen face.
The applicants and the other detainees were forced to sign
statements to the effect that they had no complaint against the Cypriot
police and wanted to go to the northern part of Cyprus of their own
will.
In the evening of the same day, at about 8.00 p.m., the
applicants and the other detainees were handcuffed, put in two Land
Rovers and driven to a dry riverbed near the buffer-zone in the south
of the Guzelyurt (Morphou) area. The handcuffs were removed and they
were ordered to walk along the riverbed to the northern part of
Cyprus.One of the policemen warned them not to come back, otherwise
they would be shot. The applicants and others followed a different
route to the north in case the route suggested by the police might have
been mined. They reached safely the village of Taspinar in the
northern part of Cyprus.
On 21 April 1994, the applicants were examined at the "Turkish
Cypriot State Hospital" in Nicosia. According to the medical reports,
Hüseyin Mavideniz had an epigastric hernia and sensitivity in the
lateral thoracic region. Yilmaz Mavideniz had pain on his chin and neck
and sensitivity on his back. Dogan Davulcular had tenderness on the
epigastric region.
At the material time, T., the concubine of Yilmaz Mavideniz, was
pregnant and expecting to give birth to their child.
The case of Hasan Mehmet Merthoca
The applicant used to live in the northern part of Cyprus until
1981. In 1981 he moved to the territories under the control of the
Republic of Cyprus in order to stay with his mother, who, at the
material time, was residing in Limassol. He also intended to work and
earn a living there. He worked in Limassol as a construction worker
for three years and then returned to the northern part of Cyprus. In
1986 the applicant again went to the territories under the control of
the Republic of Cyprus through the British bases. He was apprehended
by the Cypriot police and was kept in custody for some time. After his
release he went to Limassol to stay with his mother. In Limassol he
met M.Y., a Cypriot woman of Greek origin and they started living
together. In 1990 the couple had a daughter.
The applicant was continually under the surveillance and control
of the Cypriot police. He was at times interrogated and his movements
were monitored.
After the killing of Theophilos Georghiades, two Cypriot
policemen attached to the Central Intelligence Service, whom the
applicant believes are named Rodi and Kosti, visited his house in
Limassol and questioned him on his whereabouts on the day Mr.
Georghiades was killed. The policemen took a statement from the
applicant. Since then, the applicant was forbidden to go outside
Limassol without police permission and his movements were closely
watched. The police visited his house every now and then to ask
questions.
On 19 April 1994, between 7.00-8.00 a.m. two Cypriot policemen
visited the applicant's house and ordered him to come with them. The
applicant was taken to the headquarters of the Central Intelligence
Service in Limassol, on the third floor. Sergeant Rodi told him that
he would be taken to Nicosia to be interrogated in relation to an
incident of theft. The applicant was then handcuffed to Süleyman
Seyer, another Cypriot citizen of Turkish origin, and they were driven
in a white car to the headquarters of the Central Intelligence Service
in Nicosia. At these headquarters there were 5 or 6 policemen who
insulted and beat Hasan Merthoca and other Turkish Cypriots with clubs
and a truncheon. On the same day at about noon, the applicant and
Süleyman Seyer were handcuffed and blindfolded and driven to a police
station believed to be the headquarters of the Cypriot Central
Intelligence Service in the Troodos/Kombos area. At these headquarters
the applicant was beaten again with clubs by three policemen whom he
had seen earlier at the Nicosia police headquarters. He was then
forced to sign and affix his fingerprint on a piece of paper. The
applicant was then taken back to his cell. Then Süleyman Seyer was
taken from the cell and brought back after some time. The two men were
kept in the cell till evening.
On the same evening at about 9.00 p.m., the applicant and
Süleyman Seyer were again blindfolded, handcuffed and driven to a dry
riverbed where the blindfolds were removed and the handcuffs were
released. One of the policemen, whom the applicant believes was
Chrystaki, ordered the applicant to proceed across the United Nations
buffer-zone to the northern part of Cyprus. Süleyman Seyer followed the
applicant. They were warned not to come back; if they did they would
be shot. They proceeded to the north and reached the village of
Taspinar (Angolem) in the northern part of Cyprus.
On 21 April 1994, the applicant was examined at the "Turkish
Cypriot State Hospital" in Nicosia. On the same day a medical report
was drawn up which mentioned the presence of six ecchymotic lesions on
the dorsal region of the body, diameters of which varied from 3 to 7
centimetres. The applicant was examined by a United Nations medical
officer on 27 April 1994.
Due to his forced displacement to the northern part of Cyprus,
the applicant left behind various household goods and clothes at his
house at Ankara Street No. 17 in Limassol, which include a stove, a
colour TV, a video, a radio cassette player, a doublebed, gold
jewellery and a Datsun car. He also left behind 1500 Cyprus Pounds at
the house of his mother Nazli, who resides at Kemal Selim Street No.
5, in Limassol.
The case of Erbay Kaptanoglu
The applicant, who had been previously living in the northern
part of Cyprus, moved in August 1985 to the territories under the
control of the Republic of Cyprus in order to find work and earn a
living. He reported to a Cypriot police station outside Nicosia. From
there the applicant was brought to the Nicosia police headquarters and
interrogated about the military situation in the northern part of
Cyprus. Then he was brought to the Larnaca Road police station where
he was detained in a cell for 29 days. During his detention and later
the applicant was continually interrogated by the Cypriot Intelligence
Service about the military situation in the northern part of Cyprus.
After his release the applicant was sent to Limassol. The Limassol
police found accommodation for the applicant at a deserted house in
Limassol and the applicant started to work as a construction worker.
In 1987 the applicant migrated to Norway and stayed there for
five years. In 1992 he returned to Limassol and started to work in a
factory. During his stay in Limassol he was under strict surveillance
by the Cypriot police, his activities and movements were all the time
monitored by the police. After the killing of Theophilos
Georghiades, the applicant was questioned by the Cypriot police on his
whereabouts on the relevant day.
On 20 April 1994 at 9.30 a.m., two policemen, believed to be from
the Central Intelligence Service, came to the applicant's place of work
and ordered him to come to the Limassol police station with them. When
he was brought to the police station, the applicant saw another Turkish
Cypriot, Murat Doksandokuz, who was being kept there. The applicant
and Murat Doksandokuz were then taken to a police station in Nicosia,
believed to be the central headquarters of the Cypriot Central
Intelligence Service. The Limassol police who handed over the
applicant to Nicosia police took from the applicant the keys to his
apartment, car and motorcycle. At the Nicosia police headquarters the
applicant was insulted by words such as "filthy Turks" and he was
beaten and slapped. The applicant was then blindfolded, handcuffed to
Murat Doksandokuz and taken to another police station, believed to be
that of the Central Intelligence Service in the Troodos/Kambos area.
There, the applicant was beaten by the Cypriot police with a truncheon
and a club. He was then forced to sign a statement to the effect that
he had no complaint about the Cypriot police and he wanted to return
to the northern part of Cyprus of his own free will. When he refused
to sign he was severely beaten. In the end he signed the statement.
Then he was put in a cell with Murat Doksandokuz.
On the same day at about 8.00 p.m., the applicant and Murat
Doksandokuz were taken from the cell by five policemen, they were
handcuffed and blindfolded and driven to a dry riverbed. They were
ordered to follow the riverbed across the United Nations buffer-zone
to the northern part of Cyprus. They were warned not to come back;
otherwise they would be shot. They reached the village of Taspinar
(Angolem) in the northern part of Cyprus.
On 21 April 1994, the applicant was examined at the "Turkish
Cypriot State Hospital" in Nicosia and a medical report was drawn up
which mentioned the presence of ecchymosis on his right scapular area
with a diameter of 10 centimetres. The applicant was examined by a
United Nations medical officer on 29 April 1994.
The case of Taser Ali Kismir
Until April 1991 the applicant had been living in the northern
part of Cyprus. In April 1991 he crossed to the territories under the
control of the Republic of Cyprus. Upon his arrival in Limassol, he
went to the police station and made the relevant records. For some
months he worked in Limassol as a construction worker. He then moved
to Paphos and at all material times he was working there as a
construction worker.
The applicant was under strict police surveillance during his
stay in the territories under the control of the Republic of Cyprus.
On 22 April 1994 at about 8.30 a.m., three members of the Cypriot
police, believed to be attached to the Central Intelligence Service,
came to the applicant's place of work in the village of Florakas and
ordered him to come with them. The applicant asked to see his lawyer,
but was told that there was no need for a lawyer. He was forced into
a car and driven to Nicosia, to a certain police station which the
applicant believes was that of the Central Intelligence Service. In
this police station the applicant was taken to a room where Ilker
Tufansoy, another Cypriot citizen of Turkish origin, was being kept
(Ilker Tufansoy was later killed by unknown persons. His father has
brought application No. 27207/95.). The applicant was handcuffed to
Ilker Tufansoy, blindfolded, slapped and hit on the face and on the
back of his head several times.
The applicant and Ilker Tufansoy, their eyes still blindfolded,
were driven to another police station, probably in the vicinity of the
Troodos area. The journey took about 30-45 minutes. There, the
handcuffs were released and the applicant was separated from Ilker
Tufansoy. The applicant was taken to another room and interrogated by
the police, one of whom he recognised later as being a certain
Chrystaki. He was asked where he was in 1974 during the Turkish
intervention. During the interrogation the applicant was insulted and
beaten by clubs, one of which broke into pieces due to the severity of
the blows. Then the applicant was forced to sign a statement to the
effect that he wanted to go to the northern part of Cyprus freely and
of his own will. He was then taken back to a cell. Ilker Tufansoy was
already there.
On the same day, at about 8.00 - 8.30 p.m., the applicant and
Ilker Tufansoy were taken from the cell and were driven, blindfolded,
to a dry riverbed near the buffer-zone controlled by the United
Nations. The police removed their blindfolds and told them to go to
the northern part of Cyprus through a path following the riverbed. The
police warned them not to come back; if they did they would be shot.
The applicant and Ilker Tufansoy walked to the north, but when the
police were out of sight, they followed a different path for fear that
the path which they were shown might have been mined. They reached a
village in the northern part of Cyprus (Gayretköy) on the same evening.
On 23 April 1994, the applicant was examined at the "Turkish
Cypriot State Hospital" in Nicosia. On the same day a medical report
was drawn up which stated that there was pain and evidence of extensive
abrasion and bruises on his upper back and shoulders. His left wrist
was swollen and in pain. The applicant was also examined by a United
Nations civilian police officer and a medical officer at Ledra Palace
and his photographs were taken.
On 23 January 1996, the applicant returned to the South.
On 26 January 1996, under threat and blackmail from the Greek
Cypriot police, the applicant gave a statement at the Paphos Police
station declaring that he had been ill-treated by the Turkish or the
Turkish Cypriot police.
The case of Ilker Tufansoy
The applicant's son, Ilker Tufansoy, was born in 1971 in
Limassol. In May 1991 Ilker Tufansoy crossed over, with two of his
friends, from the northern part of Cyprus to the territories under the
control of the Republic of Cyprus. Upon their arrival, they reported
to the police at Limassol. Ilker Tufansoy stayed at Stavrokonno
village for about one and a half months and worked in a construction.
Then he went to live in Paphos, still continuing to work at the same
construction. In July 1991 he returned to the northern part of Cyprus.
In the summer of 1992 he crossed over again to the territories under
the control of the Republic of Cyprus with two of his friends. They
were apprehended by the police and taken to the Nicosia police
headquarters where they were interrogated about their military service
in the northern part of Cyprus and about the military situation in
northern Cyprus. They were then released and asked to report to the
police station in Paphos. Ilker Tufansoy then found a job and started
to work as a construction worker. Towards the end of 1993 he went to
London where he applied for asylum. Three months later he withdrew his
application and returned to the Republic of Cyprus. He started to work
with his former employer.
Ilker Tufansoy was constantly under strict police surveillance
during his stay in the territories under the control of the Republic
of Cyprus.
On 22 April 1994 at about 7.30 a.m., three policemen came to
Ilker Tufansoy's place of work and ordered him to come to the Paphos
police station with them. Two of the policemen were GIP (dealing
specifically with Turks) and one was from the Cypriot Central
Intelligence Service. Ilker Tufansoy wanted to get in touch with his
lawyer but he was not allowed to do so. He was driven to the Nicosia
police headquarters instead of the headquarters at Paphos. He was
handed over to the Cypriot Central Intelligence Service Police at the
Nicosia headquarters. Later another Turkish Cypriot, Taser Kismir, was
brought in (cf. application No. 25321/94). The two were handcuffed to
each other and taken into a room. There were five policemen in the
room. Ilker Tufansoy was slapped and beaten by the policemen. Later,
he was blindfolded and beaten again.
Ilker Tufansoy and Taser Kismir, their eyes still blindfolded,
were later driven to another police station, probably in the vicinity
of the Troodos/Kambos area. There the handcuffs were released and
Ilker Tufansoy was separated from Taser Kismir. Then his blindfold was
removed and he saw the same five policemen. One of the policemen asked
whether he liked Greek Cypriots or not. He said he liked them. At
that time one of the policemen kicked him on the face. Later he was
beaten with a rubber baton. He was then forced to sign a statement to
the effect that he would be going to the northern part of Cyprus of his
own free will. The policemen continued to beat him even after he had
signed the statement. He was then taken to a room where Taser Kismir
was kept.
On the same day, at about 8.00 p.m., the policemen came back to
the room. The policemen continued to beat the applicant and Taser
Kismir until they were put in a car, their eyes blindfolded. They were
driven to a dry riverbed near the buffer-zone controlled by the United
Nations, on the south of the Morphou (Guzelyurt) area. The police told
them to go to the northern part of Cyprus through a path following the
riverbed. The police warned them not to come back; if they did they
would be shot. Ilker Tufansoy and Taser Kismir walked to the north,
but when the police were out of sight, they followed a different path
for fear that the path which they were shown might have been mined.
They reached a village in the northern part of Cyprus on the same
evening. On 23 April 1994, Ilker Tufansoy was examined at the
"Turkish Cypriot State Hospital" in Nicosia. A medical report was
drawn up according to which there was pain and evidence of extensive
abrasion and bruises on his upper back and shoulders. There was also
swelling and pain on his left zygomatic area. The same day he was also
examined by a medical officer at the United Nations Headquarters in
Ledra Palace. Photographs of injuries of his back were taken.
On 5 May 1994, Ilker Tufansoy again returned to the territories
under the control of the Republic of Cyprus. In order to be allowed
to stay and work in South Cyprus, on 14 May 1994 Ilker Tufansoy had to
sign a statement denying that he had been ill-treated and expelled by
the Greek Cypriot police, but stating instead that he had been ill-
treated by the Turkish Cypriot authorities.
He then stayed at a house in the town of Paphos shown by the
Cypriot police.
On 2 June 1994, at about 6.00 p.m., Ilker Tufansoy telephoned to
his father and told him that he was going to Stavrokonno (Aydogan)
village that evening with Ertugrul Akburc, one of his Turkish Cypriot
friends, to another house where he could stay because the house the
police had shown him in the town was a private property.
On the same day, at about 9.00 p.m., Ilker Tufansoy and Ertugrul
Akburc were shot and killed with automatic rifles and shotguns in front
of their house in the village. On 4 June 1994, an autopsy was
performed in the northern part of Cyprus in the presence of an observer
from the United Nations. The autopsy report stated that there were
findings of a first autopsy which had probably been performed in the
Republic of Cyprus. It concluded that the body had been hit by five
bullets two of which had remained inside and had probably been removed
during the first autopsy.
All the incidents concerning the applicants were reported by the
Turkish Cypriot press.
B. Submissions of the respondent Government
Following a sabotage on two Turkish Mosques in Nicosia and the
murder of Theophilos Georghiades, President of the Committee for
Solidarity to Kurdistan, feelings of anger arose among the Greek
Cypriots. Consequently, the Cypriot police advised persons who had
escaped from the occupied area to avoid any action which would be
likely to cause reaction among the Greek Cypriots.
However, as a result of insecurity that such persons felt,
between 7 and 22 April 1994, 22 of the said Turkish Cypriots, on their
own initiative, secretly crossed over to the Turkish occupied area.
From the above 22 Turkish Cypriots, five managed to escape again to the
Government controlled area. They were : Ilker Tufansoy, Aziz Merthoca,
Süleyman Seyer, Taser Ali Kismir and Murat Doksandokuz. Upon their
return, they voluntarily gave written statements to the Police of the
Republic. The statements given by those applicants who returned to the
South are as follows : Ilker Tufansoy (the ninth applicant's son) gave
a signed statement on 14 May 1994; Aziz M. Merthoca gave a signed
statement on 28 August 1995; Taser Ali Kismir gave two signed
statements, on 26 January 1996 and on 13 January 1998.
The Government submit these statements, according to which the
aforesaid 22 Turkish Cypriots, upon their entry in the Turkish occupied
area, were apprehended by the occupation forces and taken to a police
station, where they were badly beaten, ill-treated and injured. Under
threat and force by the Turkish Cypriot "police", they made false
statements to the press as well as to the United Nations Force in
Cyprus (UNFICYP) to the effect that they allegedly had been arrested
and ill-treated by the Cyprus police and then led to the occupied area
against their will. They were further forced, under threat, to sign
statements to that effect. A number of them, acting under threat,
black-mailing and promises signed in blank application forms to the
European Commission of Human Rights.
The Government further submit that at the request of the
"authorities of the pseudostate" UNFICYP investigated complaints about
allegations of assault and forcible return of Turkish Cypriots from the
Government controlled area to the occupied area. All Turkish Cypriots
who, according to their allegations, had been ill-treated by the Greek
Cypriot police were examined by two medical doctors of UNFICYP, whose
medical reports formed part of a report of the investigation by UNFICYP
of these allegations. In their reports the doctors pointed out that,
although some of the complainants had some signs of possible injuries,
these were not consistent with the time at which, and the degree to
which, the persons examined alleged that they had been ill-treated.
The above-mentioned United Nations report was delivered to the
Minister of Foreign Affairs, who forwarded it to the Minister of
Justice and Public Order. The latter ordered an investigation and
appointed for that purpose a pathologist, Dr. M.M., who proposed to
examine each complaint in the presence of the complainant and of a
medical doctor of his choice. However, the complainants never came
forward to be examined. On the other hand, the authorities of the
"pseudostate" refused to cooperate with him and did not allow him
access to the occupied area in order to perform his duties as a
forensic specialist.
Dr. M.M. nevertheless prepared a report on 30 July 1994 together
with a police officer, H.A. This report was based on the video-
cassette provided by CIVPOL (UNFICYP's Civilian Police) and the
photographs in conjunction with medical findings of the UNFICYP
doctors.
The Government have submitted this report, which rebuts the
applicants' allegations.
As to Ilker Denizci's allegations, Dr. M.M. found that the
applicant had been diagnosed in 1974, and not in 1994 as stated before
the United Nations authorities, as having diabetes, which could have
had as effect an infection and a surgical removal of his toe. Dr. M.M.
also expressed the opinion that the applicant had omitted on purpose
to mention his long date diabetes, in order to delude the United
Nations.
Insofar as Hüseyin Mavideniz is concerned, after examination of
the photographs that accompanied the United Nations report, Dr. M.M.
reached the same conclusion as the United Nations report, that is, that
there was no evidence of beating or torturing.As far as Yilmaz
Mavideniz was concerned, Dr. M.M. wrote the following in the English
version of his report dated November 1995 : "[...] It is impossible to
base any comments/conclusions on this video because I have no proof as
to where, how and when it was made, and no clear evidence whatsoever
of any beating/torturing appears in the video. I note that the general
appearance of Mr. Mavideniz eg. presence of multiple tatoos and
generally ill kept, seems to indicate a person of low intelligence and
low social status i.e. a person who could easily have sustained
injuries after involving himself in quarrels and fights and a person
who could have lied on his allegations either voluntarily or after
pressure from the Turkish Cypriot pseudostate authorities [...]"
Concerning Dogan Davulcular, Hasan Mehmet Merthoca and Erbay
Kaptanoglu, Dr. M.M. concluded that there was no evidence of beating
or torturing, and referred to the United Nations report stating that
their injuries were not of a serious nature and that their stories were
not consistent with their alleged injuries. Finally, Dr. M.M.'s report
stated that although the United Nations doctor who had examined Taser
Ali Kismir reported recent bruises, it was impossible to ascertain when
these bruises had been made.
As to Ilker Tufansoy's injuries, Dr. M.M. stated that they appear
to have been caused "a few hours prior to examination/photographing by
the United Nations Medical Officer and not on or before 19 April 1994,
which is the date Mr. Ilker Tufansou fled into the occupied part of
Cyprus."
Concerning the death of Ilker Tufansoy, the Government point out
that the corpse was examined by a forensic pathologist, Dr. M.M., who
arrived at the scene of death on 3 June 1994 at 00.25 a.m. An autopsy
was performed at the Paphos General Hospital later the same day.
Dr. M.M. prepared a forensic report, according to which the death had
been provoked by multiple wounds caused by shooting with small and
large diameter shotgun pellets. The forensic report was submitted to
the Cyprus police.
An investigation was opened (files Paphos ME 185/94 and Kouklie
ME 17/94) in order to determine the circumstances of the murder. More
than 70 persons were exhaustively interrogated by the police and made
written statements, and a number of items (the clothes of the victims
and shotguns from various villages) were taken in for scientific
investigation. Nevertheless, no incriminating evidence was found
against any person. On 11 July 1995, the police suggested to the
Attorney General that a Coroner's inquest be carried out.
A Coroner's inquest was fixed pursuant to Cap. 153 of the
Coroner's Law. On 9 August 1996, the Coroner gave his verdict that
"the death is attributable to premeditated criminal act committed by
unknown persons".C. Findings of the UNFICYP's civilian police and
the Secretary-General of the United Nations
Reports
In a report dated 7 June 1994 the Secretary General of the United
Nations stated that UNFICYP received from the members of the Turkish
Cypriot community allegations that in five incidents in April 1994, 22
Cypriot citizens of Turkish origin in the southern part of the island
had been taken into police custody, beaten and forcibly sent to
northern Cyprus. In the period between mid-April and 10 May 1994,
CIVPOL conducted an investigation concerning these allegations.
Fourteen persons were interviewed. The remaining eight could not be
interviewed due either to their tender age, or for reasons of mental
incapacity or detention in prison. The interviews were recorded on
cassette tape. Photographs were taken of all the men interviewed
showing the areas where they were allegedly beaten. The majority of
males were medically examined.
On 26 April 1994, Ilker Denizci was examined by a United Nation
doctor, who noted in her report that the applicant had approximately
fourteen scars of varying ages and shapes and that it would be
difficult to say with certainty what the aetiology of these scars was.
It was noted in the report that, on examination the applicant appeared
to be frail, with obvious nicotine stains on his right hand and that
he was missing the incisor from the right side of his mouth. The area
of the missing incisor showed no sign of any bruising or bleeding. The
doctor added in her report that the applicant's diabetes had been
diagnosed since the alleged assault, and pointed out that the applicant
probably had mild diabetes before, that had developed since he was
examined after the assault. A test of the applicant's urine showed a
large amount of blood which could be, in the doctor's view, consistent
with recent trauma. As to the amputation of the fourth toe of the left
foot, the doctor noted in her report that, had the foot been stamped
on, "it would be more likely that the first or fifth toe would be
injured and not the fourth". She also added that, due to the foot's
poor circulation, associated with diabetes, it would be possible that
the toe "may have been amputated for medical injuries anyway".
Members of AUSTCIVPOL (Australian Civil Police Contingent Cyprus)
interviewed Ilker Denizci the same day between 2.37 and 4.35 p.m.
Aziz Merthoca was examined by a United Nations medical officer
on an unspecified date. No documents concerning the results of this
examination have been submitted to the Commission.
On 30 April 1994, Yilmaz Mavideniz was examined by a United
Nations doctor, who stated in his report that the applicant had
superficial scars and scratches on his left forearm, which had the
appearance of being between two or three weeks old. The report
concluded that, had the applicant sustained beatings on 18 April 1994,
his injuries at that time were not severe. The applicant's statements
were taken by AUSTCIVPOL the same day between 4.27 and 5.37 p.m.
Dogan Davulcular was examined by a United Nations doctor on
3 May 1994. According to the examination report, had the applicant
been beaten on 18 April 1994, his injuries were not severe and the
history of vomiting blood was not consistent with the trauma described.
Hasan Mehmet Merthoca was interviewed by AUSTCIVPOL on
27 April between 12.21 and 3.02 p.m. He was examined by a United
Nations doctor the same day. The medical report stated that the
applicant's bruise of 3x2 cm over his collarbone would be consistent
with an assault from 19 April 1994 and that there was no other sign of
bruising. According to the United Nations doctor, after a severe
beating as described by the applicant, the absence of any other such
sign would be unusual.
Erbay Kaptanoglu was examined by a United Nations doctor on
29 April 1994. According to the doctor's report, there was an
inconsistency between the degree of physical injuries described and the
"lack of any sign of recent significant physical injury." Furthermore,
the psychological problems of which the applicant complained were
"consistent with Post Traumatic Stress, but this could only be
ascertained after a review by a specialist in this field." The
Commission has not been informed of any examination of the applicant
by a psychologist.
Taser Ali Kismir was medically examined on 23 April 1994.
According to the medical report, evidence was found to support his
allegations. In particular, numerous bruisings of approximately two
days old were found along back of scapulae. He was interviewed the
same day from 3.41 p.m. until 6.15 p.m.
Ilker Tufansoy was examined by a United Nations doctor on
23 April 1994, who found superficial contusions over the left upper
back and deltoid region and some mild swelling over the left cheek and
around the left eye. The doctor concluded that evidence was found to
support the original complaint. The applicant was interviewed by
members of AUSTCIVPOL on 26 April 1994 between 11.45 a.m. and 1.44 p.m.
During the interview, the applicant gave precise details about the
policemen who participated in his expulsion and his ill-treatment and
about the way these events occurred.
The CIVPOL final investigation report of 9 May 1994 concluded
that prima facie there was adequate material to support the
plausibility of the allegations. The view of the medical examiners was
that some of the injuries were consistent with recent assault while
others were not. As to the allegations that the applicants were
forcibly removed from the southern part of the island and directed to
the northern part, the UNFICYP investigators concluded that there was
prima facie plausibility to all of them.
According to the investigation report, the details contained
within the investigation file were sufficient to launch a criminal
investigation if deemed appropriate. It was also pointed out that the
method alleged to have been used by the Cypriot police officers was
such that in all likelihood further evidence, such as photographs,
documents, fingerprint records, statements, radio logs, diary entries,
would exist. The investigation report concluded furthermore that the
information contained in the interviews was probably sufficient to
enable some of the officers concerned to be identified, along with the
locations of the events outlined.
It was stated that full reports had been passed by UNFICYP to the
Government of Cyprus. In a report of 12 December 1994, the
Secretary-General of the United Nations mentioned that, as a result of
the transmission of the CIVPOL report, the Government of Cyprus had
informed UNFICYP that the allegations could not be conclusively
substantiated.
D. Relevant domestic law
Article 113 para. 2 of the Constitution of Cyprus :
"The Attorney-General of the Republic shall have power,
exercisable at his discretion in the public interest, to
institute, conduct, take over and continue or discontinue any
proceedings for an offence against any person in the Republic.
Such power may be exercised by him in person or by officers
subordinate to him acting under and in accordance with his
instructions."
COMPLAINTS
All applicants allege violations of Articles 3, 5, 8 and 14 in
conjunction with Articles 3 and 5 of the Convention, and Articles 2 and
3 of Protocol No. 4.
The applicants Ilker Denizci and Hasan Mehmet Merthoca also
complain of violations of Article 1 of Protocol No. 1. The applicant
Ibrahim Tufansoy also alleges a violation of Article 2 of the
Convention.
As regards Article 2 of the Convention, Ibrahim Tufansoy alleges
that the respondent Government are responsible for the killing of his
son. He asserts in this regard that the deprivation of the life of his
son was the consequence of a series of acts imputable to the
authorities or agents of the respondent Government. He maintains that
the respondent Government failed to provide security of life for his
son in the territories under their control and to punish or take legal
measures against any person or any member of the police for acts of
harassment, ill-treatment and banishment of the Cypriots of Turkish
origin living and working in their territories, including his son. He
alleges that this implies that the respondent Government approve,
support or condone such acts.
As to Article 3 of the Convention, the applicants assert that the
manner in which they (or, in the case of the ninth applicant, his son)
were treated by the Greek Cypriot police, and the way in which they
were forcefully "expelled" to the northern part of Cyprus constituted
deliberate and severe physical and mental suffering which amounted to
torture and/or to inhuman and/or degrading treatment and punishment.
As to Article 5 of the Convention, they complain that they (or,
in the case of the ninth applicant, his son) have been victims of
unlawful and arbitrary arrest and detention. They assert that the
arrest and detention deprived them of their right to liberty and
security of person without justification under Cyprus law and the
Convention. They maintain that no reason for their arrest and
detention was given, no court order or judgment was served on them and
there was no judicial warrant authorising their arrest.
As to Article 8 of the Convention, the applicants assert that the
aim of the treatment to which they (or, in the case of the ninth
applicant, his son) were subjected was to exercise coercion through
force and fear and this constituted unjustified interference with their
moral integrity as well as their physical integrity, and thus their
private life.
As regards Article 14 of the Convention, the applicants complain
that they (or, in the case of the ninth applicant, his son) were
subjected to discrimination on grounds of race and/or national or
social origin in the enjoyment of their rights guaranteed under
Articles 3 and 5 of the Convention.
As to Article 1 of Protocol N° 1 to the Convention, the applicant
Ilker Denizci complains that the seizure of 380 Cyprus Pounds which he
had in his pocket amounted to unjustified deprivation of his
possessions. The applicant Hasan Mehmet Merthoca complains that due
to his forceful "expulsion" from the Republic of Cyprus, he has been
deprived of the use and enjoyment of his household goods and money.
As to Article 2 of Protocol No. 4 to the Convention, the
applicants complain that their forceful "expulsion" (or, in the case
of the ninth applicant, his son's "expulsion") from the territories
under the control of the Republic of Cyprus to the northern part of
Cyprus constituted an unjustified violation of their liberty of free
movement within the territory of the Republic of Cyprus and their
freedom to choose their residence. They also assert in this respect
that during their stay in the territories of the Republic of Cyprus,
they were under strict police surveillance, their movements were
monitored and they had to get a permission to leave the town in which
they were residing.
As to Article 3 of Protocol No. 4, they complain that they (or,
in the case of the ninth applicant, his son) were expelled from the
territory of the Republic of Cyprus of which they are nationals. They
maintain in this regard that the Republic of Cyprus can exercise
authority and control only in the southern part of Cyprus.
PROCEEDINGS BEFORE THE COMMISSION
The applications were introduced on 12 September 1994. The
applications Nos. 25316-25321/94 were registered on 27 September 1994
and the application No. 27207/95 was registered on 2 May 1995.
On 26 June 1995, the Commission decided to communicate the
applications to the respondent Government.
The Government's written observations were submitted on
16 November 1995. The applicants replied on 5 February 1996.
On 27 October 1995, the Commission granted the applicants legal
aid.
The applications have been joined on 31 October 1997.Also on 31
October 1997, the Commission decided to invite the parties to make oral
submissions on the admissibility of the applications at a hearing.
The Government submitted supplementary observations on
5 January 1998.
At the hearing on 20 January 1998, the Government were
represented by Mr. A. Markides, Agent of the Government,
Ms. L. Koursoumba and Ms. M. A. Markou, counsel. The applicants were
represented by Mr. Z. Necatigil, counsel.
THE LAW
The applicants complain about their detention, ill-treatment and
expulsion to northern Cyprus by the Greek Cypriot police. The
applicant Ibrahim Tufansoy complains also about the killing of his son
upon return to the Republic of Cyprus. The applicants Ilker Denizci
and Hasan Mehmet Merthoca complain that they were deprived of their
possessions. The applicants invoke Articles 2, 3, 5, 8 and 14 in
conjunction with Articles 3 and 5 of the Convention, Article 1 of
Protocol No. 1 and Articles 2 and 3 of Protocol No. 4
(Art. 2+3+5+P1+1+P4-2+P4-3, 3+3+5+P1+1+P4-2+P4-3, 5+3+5+P1+1+P4-2+P4-3,
8+3+5+P1+1+P4-2+P4-3, 14+3+5+P1+1+P4-2+P4-3).
Exhaustion of domestic remedies
a) The Government
The Government submit that the applicants have failed to comply
with the requirement under Article 26 (Art. 26) of the Convention to
exhaust domestic remedies before lodging an application with the
Commission.
They contend that the applicants had effective, sufficient and
practicable remedies that were easily accessible to them, but which
they did not try :
i. by way of criminal proceedings
The applicants could have had the benefit of either a public
prosecution by the Attorney-General or of a private prosecution.
The applicants could have complained of the alleged criminal acts
to the Attorney-General of the Republic, who is, according to Articles
112 and 113 of the Constitution of the Republic, an independent officer
of the State. He is appointed by the President of the Republic, cannot
be removed, except on the like grounds and in the like manner as a
judge of the Supreme Court, he is the legal adviser of the Republic and
has power exercisable at his discretion in the public interest to
institute, conduct, take over and continue or discontinue any
proceedings for an offence against any person in the Republic.
The Government point out that according to section 4 of the
Criminal Procedure Law, the investigation into the commission of an
offence may be carried out either by a police officer or by any person
who is authorised in that respect by the Council of Ministers. Had
theAttorney-General had before him any complaint relating to the
alleged commission of an offence, he could, if he thought fit, initiate
action for an independent investigation of the complaint, irrespective
of the views of the police.
The United Nations report was never addressed to the Attorney-
General and the Attorney-General could not take any action in the
absence of any relevant statement or complaint addressed to him by the
alleged victims.
The Government further point out that a complaint to the
Attorney-General about the commission of any offence could be made by
a simple letter and the physical presence of the complainant in the
Republic is not required. The Government submit domestic case-law
where proceedings were taken against policemen. In the case of the
Republic v. Stylianou and Taliadoros, criminal case 19707/92 of
23.7.93, the Attorney-General instituted criminal proceedings against
members of the Police Force for alleged ill-treatment of an individual.
The accused were acquitted on the facts by the Limassol Assize Court,
and the case was then taken to the European Commission of Human Rights.
The Government invoke the case Koç v. Turkey (No. 24257/94, Dec.
2.3.95) and conclude that by not complaining to the Attorney-General,
the applicants failed to exhaust the domestic remedies available to
them.
Alternatively, the applicants could have themselves instituted
a private prosecution, either personally or through a lawyer.
ii. by way of civil proceedings
The Government point out that the applicants could have,
themselves or through a lawyer, instituted civil proceedings in the
district court claiming damages for any wrongful act. The Government
have referred to a judgment in which the District Court of Limassol
awarded compensation to two Turkish Cypriots living in England who had
brought an action through a lawyer in Cyprus against the Republic for
taking possession of their immovable property.
b) The applicants
The applicants state that it would be degrading and unrealistic
to ask them, after their forceful deportation from the jurisdiction of
the Greek Cypriot authority, to apply to the courts of that authority.
They further state that there is no security of life and physical
integrity for them in the southern part of Cyprus and refer in this
respect to the killing of Ilker Tufansoy upon his return to the
Republic of Cyprus.
The applicants further state that in practice no remedy at all
would be available to them. They contend that the courts in southern
Cyprus are not only inaccessible to them, but the attitude of the
respondent authorities, including the practice of taking "statements"
to frustrate any possible claims, would close the door entirely to any
remedy in the Republic of Cyprus. In view of the above, the
applicants argue, there are no effective or practicable remedies that
the applicants can seek either by going to the Republic of Cyprus or
otherwise, or through recourse to administrative or judicial organs
there.
c) The Commission
The Commission recalls that the rule of exhaustion of domestic
remedies referred to in Article 26 (Art. 26) of the Convention obliges
those seeking to bring their case against the State before an
international judicial or arbitral organ to use first the remedies
provided by the national legal system. Consequently, States are
dispensed from answering before an international body for their acts
before they have had an opportunity to put matters right through their
own legal systems (see Eur. Court HR, Akdivar and Others v. Turkey
judgment of 16 September 1996, Reports of Judgments and Decisions -
1996-IV, No. 15, p. 1210, para. 65).
Under Article 26 (Art. 26), normal recourse should be had by an
applicant to remedies which are available and sufficient to afford
redress in respect of the breaches alleged. The existence of the
remedies in question must be sufficiently certain not only in theory,
but in practice, failing which they will lack the requisite
accessibility and effectiveness.
However, there is no obligation to have recourse to remedies
which are inadequate or ineffective. In addition, according to the
"generally recognised rules of international law" to which Article 26
(Art. 26) makes reference, there may be special circumstances which
absolve the applicant from the obligation to exhaust the domestic
remedies at his disposal (see the above-mentioned Akdivar and Others
judgment, p. 1210, paras. 66 and 67; Eur. Court HR, Aksoy v. Turkey
judgment of 18 December 1996, Reports of Judgments and Decisions -
1996-VI, No. 26, p. 2276, para. 52).
The Commission also recalls that Article 26 (Art. 26) must be
applied with some degree of flexibility and without excessive
formalism. The rule of exhaustion is neither absolute nor capable of
being applied automatically; in reviewing whether it has been observed
it is essential to have regard to the particular circumstances of each
individual case. This means amongst other things that the Convention
organs must take realistic account not only of the existence of formal
remedies in the legal system of the Contracting Party concerned but
also of the general legal and political context in which they operate,
as well as the personal circumstances of the applicant (see the above-
mentioned Akdivar and Others judgment, loc. cit. p. 1211, para. 69;
Aksoy judgment, loc. cit. p. 2276, para. 53).
Having regard to the particular circumstances of the present
case, the Commission does not consider it necessary to answer the
allegations of the applicants that the courts in the Republic of Cyprus
are not accessible to them.
The Commission notes that the United Nations Peace-Keeping Force
in Cyprus, following allegations received in April 1994 from members
of the Turkish Cypriot community, carried out an investigation
concerning the complaints that 22 Cypriot citizens of Turkish origin
in the southern part of the island, including the applicants (or, in
the case of the ninth applicant, his son), had been taken into police
custody, beaten and forcibly sent to northern Cyprus.
The Commission further notes that the applicants (or, in the case
of the ninth applicant, his son) were thoroughly interviewed and
medically examined by CIVPOL.
The Commission also notes that the United Nations final
investigation report of 9 May 1994 concluding that prima facie there
was adequate material to support the plausibility of the allegations,
was transmitted on behalf of the applicants to the Government of
Cyprus. However, the Attorney-General of the Republic of Cyprus at no
time enquired into any of these allegations, despite the power he has
to conduct such enquiry (see Relevant domestic law above). The
Commission cannot in this respect consider it important that the
applicants did not formally address a complaint to the Attorney-
General.
Furthermore, the Commission notes that an investigation was
nevertheless ordered by the Minister of Justice and Public Order of the
Republic of Cyprus, that the investigation report of 30 July 1994
rebutted the applicants' allegations, and that no further investigation
on the matter was deemed necessary by the respondent Government.
In light of the above special circumstances, the Commission
considers that the applicants had reason to believe that no other legal
remedy through national channels would be effective in respect of their
complaints.
The Commission therefore finds that the applicants were not
required under Article 26 (Art. 26) of the Convention to pursue any
other legal remedy.
Concerning the complaint related to the killing of the ninth
applicant's son, Ilker Tufansoy, the Commission notes that an
investigation was opened ex officio. However, no incriminating
evidence was found against any person.
The Commission finds therefore that the ninth applicant is not
required under Article 26 (Art. 26) of the Convention to pursue any
other legal remedy in this regard.
The substance of the complaints
The Government claim that the applications are an abuse of the
right of petition. They deny that the applicants were detained and
then expelled to northern Cyprus. They submit that the applicants, on
their own initiative, secretly crossed over to the Turkish occupied
area. Upon their entry in the Turkish occupied area, they were
apprehended by the occupation forces and forced to make false
statements to the press as well as to UNFICYP to the effect that they
allegedly had been arrested and ill-treated by the Cyprus police and
then led to the occupied area against their will. They were further
forced, under threat, to sign statements to that effect and blank
application forms to the European Commission of Human Rights.In
any event, the Government claim, the applications are manifestly ill-
founded.
The applicants maintain their own account of events, which they
state is supported by detailed statements of events before the United
Nations officers and by the findings of the United Nations
investigation.
The Commission considers, in the light of the parties'
submissions, that the case, the complaints of which are closely
interrelated, raises complex issues of law and of fact under the
Convention, the determination of which should depend on an examination
of the merits of the applications as a whole. The Commission
concludes, therefore, that the applications are not manifestly ill-
founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other grounds for declaring them inadmissible have been
established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATIONS ADMISSIBLE, without prejudging the
merits of the case.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy