AS TO THE ADMISSIBILITY OF
Application No. 20652/92
by Ahmet DJAVIT AN
against Turkey
The European Commission of Human Rights sitting in private on
14 April 1998, the following members being present:
MM S. TRECHSEL, President
J.-C. GEUS
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM 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 application introduced on 8 September 1992
by Ahmet DJAVIT AN against Turkey and registered on 18 September 1992
under file No. 20652/92;
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
1 July 1997 and the observations in reply submitted by the
applicant on 30 September 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Cypriot national born in 1950, is a
paediatrician residing in Nicosia, north of the "green line". Before
the Commission he is represented by Mr. Malcolm Shaw, a barrister
practising in London.
The facts of the case, as they have been submitted by the
parties, may be summarised as follows:
A. The particular circumstances of the case
In addition to being a critic of the Turkish Cypriot authorities
and of the Turkish military presence in the northern part of Cyprus,
which he qualifies as "occupation", the applicant is the "Turkish
Cypriot Coordinator" of "the Movement for an Independent and Federal
Cyprus", an unregistered association of Turkish and Greek Cypriots
founded in 1989 in Nicosia. The movement has a Turkish Cypriot
coordinating committee in the northern part of the island and a Greek
Cypriot coordinating committee in the southern part. The purpose of
this Movement is to develop close relations between the two
communities. To this end, it organises bi-communal meetings of
political, cultural, medical or social character.
In general, the applicant cannot obtain a permit from the Turkish
and Turkish Cypriot authorities to visit the "buffer zone" or the
southern part of the island. Thus, between 23 September 1989 and
3 October 1996, only 22 out of 124 requests for such permits were
granted. One of the requests that were turned down concerned the
UNFICYP (United Nations Forces in Cyprus) Spring Fair at the Nicosia
International Airport in May 1992 and another a bi-communal medical
seminar organised by UNHCR in June 1992. Moreover, in May 1992 the
above-mentioned authorities refused to allow Greek Cypriots to attend
a meeting organised by the applicant in the northern part of the
island.
The applicant claims that there exists a decision by the cabinet
of the "TRNC" prohibiting his contacts with Greek Cypriots. Reference
to this decision is allegedly made in a letter dated 3 February 1992
by the "Health Minister of the TRNC" to the applicant, which reads as
follows:
"According to the information our Ministry received, you were
informed by the Ministry of Foreign Affairs and Defence orally
and this has been a decision of the government and we have
nothing to add in our capacity as the Ministry."
On 7 May 1992 the applicant wrote to the Prime Minister of the
"TRNC" requesting to be informed of the content of the cabinet decision
referred to in the above-mentioned letter, but received no reply.
On 29 May 1992 he sent a letter of protest to the Foreign
Minister of Turkey, which has also remained unanswered.
On 18 May 1994 the "Directorate of Consular and Minority Affairs
of the Ministry of Foreign Affairs and Defence of the TRNC" informed
the applicant that "the permission requested by (his) letter of
19 April 1994 was refused for security reasons, in the public interest
and because (he) made propaganda against the state."
B. Applicant's previous application
On 13 May 1991 the applicant and four other Turkish Cypriots
filed an application against Cyprus before the European Commission of
Human Rights complaining about the restrictions of their freedom of
movement. The Commission found that the Government of Cyprus "could not
be held responsible under Article 1 of the Convention for the acts of
Turkish Cypriot authorities in the north of Cyprus" and declared their
application inadmissible (No. 18270/92, Ahmet Cavit AN and others
v. Cyprus, Dec. 8.10.91, unpublished).
The applicant claims that the attitude of the Turkish and Turkish
Cypriot authorities towards him has become even stricter following his
first application to the Commission.
COMPLAINTS
1. The applicant complains under Articles 10 and 11 of the
Convention that the Turkish and Turkish Cypriot authorities, by not
allowing him to cross the "green line", prohibit him from exercising
his right to freedom of assembly and association with the Greek
Cypriots as well as his right to freedom of expression including the
freedom to hold opinions and ideas and to receive and impart
information.
2. The applicant complains under Article 13 of the Convention about
the lack of effective domestic remedies to challenge the arbitrary
refusal to allow him to cross the "green line" for the purpose of
taking part in meetings organised in the southern part of the island.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 8 September 1992 and registered
on 18 September 1992.
On 27 June 1994 the Commission decided to communicate the
application to the respondent Government without requesting any
observations.
On 8 April 1995 the Commission decided to adjourn the examination
of the application pending delivery of the Court's judgment on the
merits of the Loizidou v. Turkey case. The judgment was delivered on
18 December 1996 (cf. Reports 1996-IV).
On 23 January 1997 the Commission decided to request the
respondent Government to submit observations on the admissibility and
merits of the application.
On 2 April 1997 the respondent Government requested the
Commission to adjourn the examination of the case until completion by
the Court of its consideration of the issue under Article 50 of the
Convention in the Loizidou v. Turkey case. On 18 April 1997 the
Commission decided not to accede to the respondent Government's request
and fixed a new time-limit for the submission of their observations.
The Government's written observations were submitted on
1 July 1997, after an extension of the second time-limit fixed for that
purpose. The applicant replied on 30 September 1997.
THE LAW
1. The applicant complains under Articles 10 and 11 (Art. 10, 11)
of the Convention that the Turkish and Turkish Cypriot authorities, by
not allowing him to cross the "green line", prevent him from exercising
his right to freedom of assembly and association with the Greek
Cypriots as well as his right to freedom of expression including the
freedom to hold opinions and ideas and to receive and impart
information. He also complains under Article 13 (Art. 13) of the
Convention about the lack of effective domestic remedies to challenge
the arbitrary refusal to allow him to cross the "green line".
The provisions invoked by the applicant provide as follows:
Article 10 (Art. 10) of the Convention
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
Article 11 (Art. 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. ..."
Article 13 (Art. 13) of the Convention
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
2. The respondent Government submit that they are not responsible
for the decisions of the "TRNC" preventing the applicant from crossing
the "green line". Although the applicant alleges that it was the
Turkish military authorities which prevented him from crossing this
line, he himself confirms that all the applications for a permit he has
lodged were addressed to the Turkish Cypriot authorities. Moreover, the
Government submit that the control and day-to-day administration of the
crossing gates of the "TRNC" belong to the authorities of the "TRNC"
which are also responsible for issuing the relevant permits.
Furthermore, it is the laws of the "TRNC" which apply to the matter in
question. The applicant himself chose to protest to the "Prime Minister
of the TRNC".
The respondent Government further contend that there is no
military occupation of northern Cyprus by Turkey, but rather that there
has been an evolution towards the creation of their own independent
State by the Turkish Cypriot community in exercise of their right to
self-determination. In this respect, the respondent Government refer
in detail to the history of Cyprus since 1960 emphasising in
particular:
(i) the bi-communal character of the 1960 Constitution and the
obligation of Cyprus, under international treaty obligations guaranteed
by the signatories of the 1960 Treaty of Guarantee, to maintain her
independence, territorial integrity and the fundamental principles of
the Constitution;
(ii) the alleged responsibility of the Greek Cypriot side for the
breakdown of the 1960 constitutional arrangements in 1963 and the
subsequent changing of basic principles of the Constitution;
(iii) the allegedly intolerable situation of enclaved Turkish
Cypriots in the period between 1964 and 1974, which caused them to set
up their own administration as from December 1967;
(iv) the fact that the Turkish intervention in July 1974 was
preceded by a coup d'etat of Greek officers of the National Guard who
pursued the aim of unification of Cyprus with Greece (Enosis);
(v) the contention that the Turkish military operation in 1974
was carried out in conformity with Article IV of the Treaty of
Guarantee to protect the right of Turkish Cypriots;
(vi) the contention that the subsequent relocation of both the
Turkish Cypriot and the Greek Cypriot communities in separate parts of
the island was the result of agreements achieved in inter-communal
talks held in Vienna in July/August 1975, these agreements being fully
implemented on a voluntary basis under UN auspices, UN troops moving
into the newly established buffer zone;
(vii) the alleged agreement achieved in 1977 and 1979 between the
Turkish Cypriot and Greek Cypriot leaders for seeking a federal
solution on the basis of a bi-communal and bi-zonal federation, a
concept which it is contended is still valid as a basic guideline for
the inter-communal talks;
(viii) the contention that the establishment of the "TRNC" as an
independent State on 15 November 1983 was declared by the legitimate
representative body of the Turkish Cypriots in exercise of their right
to self-determination, and that this did not constitute secession as
the bi-communal Republic of Cyprus had ceased to function due to the
actions of the Greek Cypriot side since 1963;
(ix) the contention that the subsequent development of "TRNC"
institutions was legitimate and in line with democratic principles and
that it consolidated the statehood of the "TRNC" according to criteria
accepted in international law;
(x) the opinion that, despite the fact that it has not been
recognised de jure by any other State than Turkey, the "TRNC" exists
de facto as an independent State exercising all branches of State power
on its territory (in this connection the respondent Government refer
to several decisions of English courts recognising that there was "an
effective and autonomous administration in the North" and to the fact
that Turkey, having recognised the "TRNC" de jure, does not claim for
herself to exercise power in that area);
Finally, as regards the role of the Turkish forces in northern
Cyprus, the respondent Government claim that these forces are there in
a peace-keeping function at the request and with the consent of the
"TRNC", that they act under the latter's authority and do not
themselves exercise governmental power. It is claimed that their status
is not essentially different from that of Greek military forces in
southern Cyprus.
The Government draw further arguments from the Commission's
Report of 8 July 1993 in Chrysostomos and Papachrysostomou v. Turkey
(D.R. 86-A, p. 4) in which the Commission found that certain legal acts
emanating from the "TRNC" had to be assumed to be legally valid acts
under the Convention. According to the Government, this opinion remains
controlling for the Commission notwithstanding the Court's Loizidou
v. Turkey judgment of 18 December 1996 (Reports 1996-I) which, as the
Government emphasise, binds only the parties in that case and has no
broader legally-binding effect. In any event, the Government argue that
the Loizidou v. Turkey judgment is ultra vires.
In the light of all the above, the respondent Government submit
that Turkey has no accountability, control, jurisdiction or
responsibility in respect of the acts of the "TRNC" which constitute
the basis of the applicant's complaints.
The applicant does not consider it necessary to comment on the
general historical exegesis provided by the respondent Government,
which in any event he does not accept. He refers in reply to the
Court's Loizidou v. Turkey judgment of 18 December 1996 (supra) which
he considers to be determinative as to certain crucial legal issues,
as evidenced by the Commission's decision to adjourn the examination
of his application pending its delivery. He also refers to the
Commission's decision of 7 September 1996 in the fourth inter-State
case (No. 25781/94 Cyprus v. Turkey, D.R. 86-A, p. 104) which is in
line with the approach of the Court.
The applicant recalls that in its Loizidou v. Turkey judgment of
18 December 1996 the Court found that Turkey exercises "effective
overall control" in northern Cyprus, which includes not only direct
actions and omissions of the Turkish authorities but also actions and
omissions of the "TRNC". According to the Court, what matters is
"effective overall control" and not "the actual exercise of control",
as the respondent Government contend. The notion of "actual exercise
of control" was rejected by the Commission itself in its Chrysostomos
and Papachrysostomou v. Turkey Report, when it linked the question of
imputability to the Turkish troops' being capable to intervene (supra,
p. 27, paras. 99-102). The applicant submits that the respondent
Government cannot use the proceedings before the Commission in the
present case to appeal against the Loizidou v. Turkey judgment of the
Court.
The applicant also refers to the Commission's finding in its
Chrysostomos and Papachrysostomou v. Turkey Report that the actual
control of the border area is exercised by Turkish armed forces.
Moreover, he recalls that in its admissibility decision in the fourth
Cyprus v. Turkey case the Commission found that the applicant
Government had sufficiently demonstrated the possibility of a direct
or indirect involvement of Turkish authorities, inter alia, in the
restriction of freedom of movement of Turkish Cypriots, including the
applicant. Finally, he points out that, in addition to having protested
to the Turkish Cypriot authorities, on 29 May 1992 he sent a letter to
the Foreign Minister of Turkey.
The Commission recalls that the Court in its Loizidou v. Turkey
judgment of 18 December 1996 found that
"(i)t is not necessary to determine whether, as the applicant and
the Government of Cyprus have suggested, Turkey actually
exercises detailed control over the policies and actions of the
authorities of the 'TRNC'. It is obvious from the large number
of troops engaged in active duties in northern Cyprus that her
army exercises effective overall control over that part of the
island. Such control, according to the relevant test and in the
circumstances of the case, entails her responsibility for the
policies and actions of the 'TRNC'. Those affected by such
policies or actions therefore come within the 'jurisdiction' of
Turkey for the purposes of Article 1 (Art. 1) of the Convention.
Her obligation to secure to the applicant the rights and freedoms
set out in the Convention therefore extends to the northern part
of Cyprus" (supra, pp. 2235-2236, para. 56).
Moreover, the Commission notes that underlying the applicant's
complaints is his inability to cross the "green line", an area over
which the Commission has already found that the Turkish armed forces
have actual control (Chrysostomos and Papachrysostomou v. Turkey
Report, supra, p. 4, para. 99). It follows that the acts complained of
are imputable to Turkey. As a result, the Commission considers that it
cannot reject the application as inadmissible ratione personae.
3. The Commission will then examine whether the application has been
lodged within the six-month time-limit provided for under Article 26
(Art. 26) of the Convention. The Commission notes in this connection
that the applicant complains about the general effect which the refusal
of the Turkish and Turkish Cypriot authorities to allow him to cross
the "green line" has had on his enjoyment of several Convention rights.
However, the Commission cannot lose sight of the fact that in reality
the applicant complains about a series of incidents some of which
occurred more than six months before the lodging of the present
application on 8 September 1992.
Under Article 26 (Art. 26) of the Convention the Commission may
only deal with a matter within a period of six months from the date on
which the final decision was taken. As a result, the Commission
considers that it must declare inadmissible under Article 27 para. 3
(Art. 27-3) of the Convention the part of the application which relates
to the period before 8 March 1992.
4. Moreover, the Commission notes that the respondent Government
argue that the applicant has not exhausted domestic remedies. They
point out that the applicant is a Turkish Cypriot who lives in the
"TRNC" and to whom all effective remedies within the judicial and
administrative system of the "TRNC" are accessible.
The Government stress in this connection that the "TRNC" is
endowed with a Constitution based on the principles of the rule of law
and supremacy of the Constitution (Articles 1 and 7), which provides
for an independent judiciary (Articles 136, 137, 141 and 150) and for
effective judicial control of executive and legislative activity
(Articles 146-148 and 152). Article 17 relating to fair and public
hearing is similar to Article 6 (Art. 6) of the Convention and
prohibits the establishment of judicial committees or special courts
under any name whatsoever. According to the Constitution, no act of the
administration can be excluded from judicial review. Article 152
provides for judicial review of administrative action on the grounds
of excess and/or abuse of power, illegality and unconstitutionality.
There is also provision for judicial review of legislation by way of
reference to the Supreme Constitutional Court (Article 148) and
institution of proceedings for annulment of legislation and subsidiary
legislation (Article 147).
The respondent Government claim that the existence of an
effective and independent judicial system in the "TRNC" has also been
recognised in the Commission's own case-law. They refer again to the
Commission's Chrysostomos and Papachrysostomou v. Turkey Report
(supra). According to the Government, in paragraph 174 of that report
the Commission recognised the existence of effective remedies before
the national authorities in northern Cyprus when it noted that the
applicants in that case had been brought before judicial authorities
which they refused to recognise, and that they had not wished to avail
themselves of such remedies as might have been available to them with
regard to the circumstances of their arrest by Turkish Cypriot police.
In this connection, the respondent Government submit a list of
cases brought by Greek Cypriots in Turkish Cypriot courts including
inter alia cases relating to trespass by other persons and unlawful
cultivation of land belonging to Greek Cypriot plaintiffs in the Karpas
area. Such claims were accepted by the competent "TRNC" courts.
In the Government's view, the applicant could have used the
remedies which exist in the "TRNC". Moreover, he could have complained
to the Attorney General of the "TRNC". Since he did not do so, he has
failed to comply with Article 26 (Art. 26) of the Convention.
The applicant submits first that the remedies under the "TRNC"
Constitution are illegal in that they emanate from an illegal entity
established pursuant to an illegal invasion and occupation by Turkey.
Secondly, he points out that it is the Turkish authorities that
have the ultimate control and responsibility in northern Cyprus. They
also have effective control over border crossings. As a result and in
the light of the Loizidou v. Turkey judgment of the Court, "TRNC"-based
remedies cannot in principle be adequate and effective. In any event,
the decisions of the Turkish Cypriot courts are not binding on the
Turkish military authorities. The decisions to which the respondent
Government refer revolve around conflicts of private law rights and do
not concern issues involving directly the Turkish authorities.
Thirdly, the applicant submits that there is no law in the
northern part of Cyprus regulating contacts between that part and the
southern part. Decisions affecting him have not been communicated to
him in writing and he has been the subject of veiled threats. As a
result, he has been unable to discover any proper legal basis for his
treatment. In any event, when an application for a permit to cross the
"green line" is rejected, no written reply is issued. The police at the
control point, to whom the authorities send a circular with the list
of persons permitted to cross over, simply do not permit the passage.
Moreover, the Turkish Cypriot courts are likely to treat the freedom
of movement between the two parts of the island as a political matter
which is not judicially reviewable.
Finally, the applicant argues that the arbitrary and erratic
practices in the matter of permits for crossing over to the southern
part fall within the administrative-practice exception to the
exhaustion of domestic remedies rule.
The Commission recalls that, according to the Convention organs'
case-law,
"(i)t is incumbent on the Government claiming non-exhaustion to
satisfy the Court that the remedy was an effective one available
in theory and in practice at the relevant time, that is to say,
that it was accessible, was one which was capable of providing
redress in respect of the applicant's complaints and offered
reasonable prospects of success" (Eur. Court HR, Akdivar and
others v. Turkey judgment of 16 September 1996, Reports 1996-IV,
no. 15, p. 1211, para. 68).
The Commission notes that the only remedies which the respondent
Government claim that the applicant should have exhausted are remedies
before bodies set up by the "TRNC". However, the Commission recalls
that in its admissibility decision in the fourth inter-State case
(No. 25781/94 Cyprus v. Turkey, supra) it considered that the question
of whether "TRNC" courts are capable of providing redress, inter alia,
in respect of complaints by Turkish Cypriots living in the northern
part of Cyprus could only be determined at the merits stage of the
proceedings. The Commission considers that it must reach the same
conclusion in the circumstances of the present case. As a result, the
Commission decides to reserve the final determination of the question
of whether the applicant is required to pursue his complaints further
before bodies established by the "TRNC" for a later stage in the
proceedings.
It follows that the part of the application which has been
submitted within the six-month time-limit cannot be rejected as
inadmissible under Article 27 para. 3 (Art. 27-3) of the Convention on
the ground that the applicant has not exhausted domestic remedies.
5. As regards the substance of the complaints, the Government argue
that they concern freedom of movement. In their view, the applicant has
failed to demonstrate how the alleged instances of restriction on his
movement have affected his freedom of expression and association, given
the nature of the meetings he wished to attend, namely a Spring Fair
and a bi-communal medical seminar. They also submit that the applicant
cannot complain on behalf of the Greek Cypriots who were allegedly
prevented from attending the meeting he had organised in the northern
part of the island. Moreover, the Government argue that the applicant
has exercised his freedom of expression through the media and other
means available to him in the "TRNC" and elsewhere. In any event, the
exercise of the rights invoked by the applicant is subject to
restrictions under the second paragraph of the relevant provisions of
the Convention.
The applicant submits that he does not complain of restrictions
of freedom of movement as such. The applicant is seeking to assert his
rights to communicate his ideas and appropriate information to those
on the island of Cyprus who share his aims of a peaceful resolution of
the problems of the island and to receive similar ideas and
information. In this respect, his case is analogous to that of Loizidou
v. Turkey where the issue of freedom of movement was considered by the
Court to be a peripheral aspect of the core complaint concerning the
right to property.
In the circumstances of the current situation in Cyprus, the
applicant feels that it is only by meetings of Turkish and Greek
Cypriots that ideas for a peaceful political settlement can be truly
imparted, received and exchanged as envisaged by Article 10 (Art. 10)
of the Convention. Such meetings cannot be held in the northern part
of Cyprus. He also submits that Article 11 (Art. 11) of the Convention
protects inter alia the gathering together of persons. Moreover, the
term "association" has an autonomous meaning. It requires a minimum of
organisation and stability and the Movement for an Independent and
Federal Cyprus fulfils these criteria.
The applicant contends that by not allowing him to cross over
to the southern part, the authorities for which the respondent
Government are responsible have interfered with these rights. However,
there was no law regulating this interference. The Government have made
no effort to indicate the grounds on which such an interference may be
justified. Nor have they shown it to be necessary in a democratic
society. It follows that Articles 10 and 11 (Art. 10, 11) of the
Convention have been violated. Moreover, for the reasons already set
forth, the applicant considers that he has no effective remedy in
respect of these violations.
The Commission, in the light of the parties' observations,
considers that the part of the application which has been submitted
within the six-month time-limit raises serious questions of fact and
law which are of such complexity that their determination should depend
on an examination of the merits. This part of the application cannot,
therefore, be regarded as being manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no
other ground for declaring it inadmissible has been established.
For these reasons, the Commission, unanimously,
DECLARES INADMISSIBLE the application insofar as it concerns the
refusal to allow the applicant to cross the "green line" before
8 March 1992;
DECLARES ADMISSIBLE, without prejudging the merits, the remainder
of the application.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy