FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 39973/07
by Ali EREL and Mustafa DAMDELEN
against Cyprus
The European Court of Human Rights (First Section), sitting on 14 December 2010 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Dean Spielmann,
Giorgio Malinverni, judges,
Stelios Nathanael, ad hoc judge,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 3 September 2007,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Ali Erel and Mr Mustafa Damdelen, are Cypriot nationals of Turkish-Cypriot origin, who were born in 1951 and 1952 respectively and live in Nicosia, in the northern part of Cyprus which in November 1983 was proclaimed as the Turkish Republic of Northern Cyprus” (the “TRNC”). They were represented before the Court by Mr A. Demetriades, a lawyer practising in Nicosia.
A. The circumstances of the case
The facts of the case, as submitted by the applicants and as derived from the documents in the file, may be summarised as follows.
On 28 February 2006, before the parliamentary elections of the Republic of Cyprus to be held on 21 May 2006, the applicants submitted seventy-eight applications on behalf of other Turkish Cypriots and themselves to the Minister of the Interior of the Republic of Cyprus (“the Minister”) requesting to be placed on a separate electoral list, namely, a Turkish electoral list, in order to vote and stand for the parliamentary elections. The applicants claimed that section 3 (1) of the Law on the Exercise of the Right to Vote and be Elected by Members of the Turkish community with Habitual Residence in the Free Areas of the Republic (Temporary Provisions) (“Law 2(I)/2006”) was contrary to the Constitution and the Convention.
Their applications were refused by the Minister on 12 April 2006. In his decision the Minister stated that the above-mentioned Law had been enacted in compliance with the Court’s ruling in the case of Aziz v. Cyprus (no. 69949/01, ECHR 2004‑V) in order to enable Turkish Cypriots residing in the government-controlled areas of the Republic to exercise their individual right to vote and stand for election. It did not provide, however, for the exercise of these rights as a community. Due to the irregular situation, the relevant Constitutional provisions concerning separate elections had become impossible to implement in practice. The Law applied as long as the irregular situation in Cyprus continued to exist. It was therefore of a temporary nature and did not deprive the Turkish community of their constitutional rights. Until a comprehensive settlement was reached, however, the exercise of these rights in the manner provided by the Constitution was not possible.
On 28 April 2006 the applicants filed an application, in the Turkish language, at the Registry of the Supreme Court for a declaration that the Minister’s decision was null and void. The applicants relied on Articles 62 and 63 of the Constitution as they were before the amendment whereby the number of seats in the House of Representatives was increased (see domestic law part below). The document did not comply with any of the procedures concerning the drafting of special proceedings whereby the various competences of the Supreme Court are evoked. The officers of the Registrar, taking into account the fact that the applicants were seeking the annulment of the Minister’s decision in order to enable them to exercise their right to vote and to stand for election, filed the case under the category of electoral applications and submitted it to the Plenary of the Supreme Court which has exclusive jurisdiction to adjudicate finally on any election petition, made under the provisions of the Electoral Law (Article 145 of the Constitution).
The Supreme Court, after considering the application, decided that in substance it constituted a recourse under Article 146 of the Constitution by which the applicants challenged the Minister’ decision dismissing their application.
On 30 April 2007 the Supreme Court, sitting as a full bench, dismissed the recourse.
In its judgment the Supreme Court noted, firstly that the applicants wished to be registered as voters in a separate electoral list, namely that of the Turkish-Cypriot citizens of the Republic of Cyprus. It followed therefore that they also sought the right to be elected by the Turkish-Cypriot voters, who were on a separate list, in order to take a parliamentary seat from the separate number of seats that the Constitution allocated to the Turkish community. As such the applicants’ demand touched upon the very continuation of the existence of the Republic of Cyprus which constituted the internationally-recognised legal state established in 1960. The Supreme Court noted that after the withdrawal of the Turkish community from the State organs in 1963 following a decision of its leadership, the relevant Articles of the Constitution providing for separate elections by the two communities had become impossible to implement in practice. From 1963/1964 the State based its legal existence and its continuing functioning on the Law of Necessity, as laid out in the case of The Attorney-General of the Republic v. Mustafa Ibrahim and others, (1964) C.L.R. 195). The Supreme Court stated that this fundamental legal decision stood side by side with the Constitution which contained the consummate rule of law governing the continuing existence and functioning of the State as a legal and democratic entity and referred in detail to the situation and the reasons which led unavoidably to the adoption and prevalence of the Law of Necessity. The Supreme Court pointed out that these reasons became even more pressing after the Turkish invasion in Cyprus in the summer of 1974 and the occupation of northern Cyprus by Turkish troops. At present only a small number of Greek Cypriots lived in the occupied part of Cyprus and very few Turkish Cypriots lived in the territory controlled by the Republic of Cyprus.
The Supreme Court stated that the above realities were confirmed in a series of judgments by the European Court of Human Rights (“the Court”) in which, inter alia, the international recognition of the Republic of Cyprus as the legitimate and lawful State was considered an indisputable fact, while at the same time the regime which existed in the northern part of Cyprus, where Turkey exercised effective control, was held to be illegal. In this connection, the Supreme Court referred to the Court’s findings in the case of Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001‑IV), Loizidou v. Turkey ((preliminary objections), 23 March 1995, Series A no. 310), Xenides-Arestis v. Turkey (no. 46347/99, 22 December 2005) and Aziz (cited above). With regard to the latter case, the Supreme Court pointed out that the Court had found a violation of Article 3 of Protocol No. 1 in that although the relevant constitutional provisions had been rendered ineffective there had been a manifest lack of legislation resolving the ensuing problems; namely that members of the Turkish-Cypriot community, living in the government-controlled area of Cyprus, had been completely deprived of any opportunity to express their opinion in the choice of the members of the House of Representatives of the country of which they were nationals and where they had always lived. Following this judgment, Law 2(I)/2006 was enacted enabling Cypriot nationals who belong to the Turkish-Cypriot community and had their habitual residence in the government-controlled areas of Cyprus to vote and to stand for election. The Supreme Court noted, however, that the applicants had and still had their permanent residence in the northern part of Cyprus, which was occupied by and under the control of Turkish troops. They could not therefore claim a right to vote or to stand for election on the basis of the Court’s ruling in the Aziz case and Law 2(I)/2006.
B. Relevant domestic law and practice
1. Relevant Constitutional and legal provisions
Article 31 of the Constitution safeguards the right to vote. It provides as follows:
Article 31
“Every citizen has, subject to the provisions of this Constitution and any electoral law of the Republic or of the relevant Communal Chamber made thereunder, the right to vote in any election held under this Constitution or any such law.”
Articles 62 and 63 of the Cypriot Constitution concern the composition of the House of Representatives and the right to be registered in the electoral lists for parliamentary elections. They provide as follows:
Article 62
“1. The number of representatives shall be fifty:
Provided that such number may be altered by a resolution of the House of Representatives carried by a majority comprising two-thirds of the Representatives elected by the Greek Community and two-thirds of the representatives elected by the Turkish Community.
2. Out of the number of Representatives provided in paragraph 1 of this Article seventy per centum shall be elected by the Greek Community and thirty per centum by the Turkish Community separately from amongst their members respectively, and in the case of a contested election, by universal suffrage and by direct and secret ballot held on the same day. ...”
Article 63
“1. Subject to paragraph 2 of this Article every citizen of the Republic who has attained the age of twenty-one years and has such residential qualifications as may be prescribed by the Electoral Law shall have the right to be registered as an elector in either the Greek or the Turkish electoral list:
Provided that the members of the Greek Community shall only be registered in the Greek electoral list and the members of the Turkish Community shall only be registered in the Turkish electoral list.
2. No person shall be qualified to be registered as an elector who is disqualified for such registration by virtue of the Electoral Law.”
Article 64 of the Constitution sets out the eligibility requirements to stand for election to the House of Representatives. It provides as follows:
Article 64
“A person shall be qualified to be a candidate for election as a Representative if at the time of the election that person-
(a) is a citizen of the Republic;
(b) has attained the age of twenty-five years;
(c) has not been, on or after the date of the coming into operation of this Constitution, convicted of an offence involving dishonesty or moral turpitude or is not under any disqualification imposed by a competent court for any electoral offence;
(d) is not suffering from a mental disease incapacitating such person from acting as a Representative.”
Following the withdrawal of the Turkish community from the State organs in 1963, a number of Constitutional provisions, including the Articles providing for the parliamentary representation of the Turkish community and the quotas to be adhered to by the two communities, became impossible to implement in practice.
In 1985, by decision of the House of Representatives, the number of seats in the House of Representatives was increased from fifty to eighty; fifty-six seats were allotted to representatives to be elected by the Greek community and twenty-four seats to representatives to be elected by the Turkish community. The twenty-four seats remain vacant.
According to Section 5 of Law on the Election of Members of the House of Representatives Law (Law 72/79, as amended), the right to elect belongs to those who have the qualifications provided for under Article 63 of the Constitution. The residential requirement is that of habitual residence in Cyprus for a period of six months immediately before the date fixed by the Minister, by publication in the Official Gazette of the Republic, as the date of acquisition of the electoral qualifications. Section 19 (1) of the same Law provides that a candidate for parliamentary elections should have the qualifications set out in Article 64 of the Constitution.
2. Specific electoral legal provisions concerning members of the Turkish community: developments following the Court’s judgment in Aziz v. Cyprus
Following the Court’s judgment in the case of Aziz v. Cyprus (cited above), Law 2(I)/2006 was enacted and entered into force on 10 February 2006. Law 2(I)/2006 applies to citizens of the Republic who are members of the Turkish community and had, at the time of entry into force of the Law or subsequently, their habitual residence in the free areas of the Republic (section 3) and enables them to exercise their right to vote in presidential elections and their right to vote and to be elected in parliamentary, municipal and community elections. As regards parliamentary elections, this relates to the filling of the fifty-six seats allotted to the Greek community. Section 6 provides that Cypriot nationals of Turkish origin are to be registered on a supplementary electoral list which is then incorporated into the main electoral list in accordance with the Civil Registry Law (Law 141(I) 2002, as amended). Further, in respect of the right to vote, the requirement is that of habitual residence for a term of six months immediately before the date of acquisition of the electoral qualifications (section 5).
Law 2(I)/2006 does not apply to citizens of the Republic who are members of the Turkish community and reside in the free areas occasionally, from time to time or temporarily (section 3).
According to section 4 the provisions of the Electoral Legislation are also applicable to members of the Turkish community who come within the scope of the Law [Civil Registry Law (Law 141 (I)/2002 as amended); the Law on the Election of Members of the House of Representatives Law (Law 72/79 as amended); the Municipalities Law (Law 111 of 1985 as amended); the Communities Law (Law 86(I) of 1999 as amended) and the Election (President and Vice President of the Republic) Law (Law 37 of 1959 as amended)].
Following the entry into force of Law 2(I)/2006, members of the Turkish community with their habitual residence in the government-controlled areas, were able to participate in the parliamentary elections of 21 May 2006. From the information given by the respondent Government to the Committee of Ministers about the measures to comply with the Court’s judgment in the case of Aziz, two hundred and seventy Turkish Cypriots cast their vote in those elections while one Turkish Cypriot was a candidate MP (appendix to Resolution CM/ResDH(2007)77 of 20 June 2007).
3. Additional relevant provisions of the Constitution
In accordance with Article 145 of the Constitution, the Supreme Court has exclusive jurisdiction to adjudicate finally on any election petition, made under the provisions of the Electoral Law, with regard to the elections of the President or the Vice-President of the Republic or of members of the House of Representatives or of any Communal Chamber.
Furthermore, under Article 146 of the Constitution the Supreme Court has exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person (Article 146(1)).
COMPLAINTS
1. The applicants complained of a violation of Article 3 of Protocol No. 1 in that they had been deprived of their right to vote and to stand for elections. In particular, they claimed that they had been completely denied any opportunity to express their opinion in the choice of the members of the House of Representatives.
2. Furthermore, the applicants complained that they had been subjected to discriminatory treatment in violation of Article 14 taken in conjunction with the above provision and Article 1 of Protocol No. 12 on the basis of their ethnic origin and/or language and/or religion.
THE LAW
1. The applicants complained of a violation of their rights under Article 3 of Protocol No. 1 which reads as follows:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
In particular, the applicants complained that because of the applicable electoral legislation they had been entirely deprived of their rights to vote and to stand for election, rights that were safeguarded by the Constitution and which they sought to exercise. They submitted that they had been denied a say in the choice of members of the House of Representatives and that the legislation which emanated from that organ affected them directly. The applicants further emphasised that their case was distinguishable from that of Aziz (cited above). In this respect they noted that unlike Mr Aziz, firstly, they did not live in the government-controlled areas; secondly they had requested to be registered in a separate electoral list, namely that of the Turkish community; and thirdly, they had not only requested to exercise their right to vote but also their right to stand for election.
The Court reiterates that Article 3 of Protocol No. 1 implies the individual rights to vote and to stand for election. These rights, however, bestowed by this provision are not absolute but subject to restrictions. Contracting States have a wide margin of appreciation, given that their legislation on elections varies from place to place and from time to time. The rules on granting the right to vote, reflecting the need to ensure both citizen participation and knowledge of the particular situation of the region in question, vary according to the historical and political factors peculiar to each State. The number of situations provided for in the legislation on elections in many member States of the Council of Europe shows the diversity of possible choice on the subject. However, none of these criteria should in principle be considered more valid than any other provided that it guarantees the expression of the will of the people through free, fair and regular elections. For the purposes of applying Article 3, any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another (Py v. France, no. 66289/01, § 46, ECHR 2005‑... (extracts)).
There is room for implied limitations and Contracting States must be given a wide margin of appreciation in this sphere (Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 52, Series A no. 113). In their internal legal orders the Contracting States may make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3. They have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate. In particular, such conditions must not thwart “the free expression of the opinion of the people in the choice of the legislature” (Gitonas and Others v. Greece, judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, § 39; Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II; and Mathieu-Mohin and Clerfayt, cited above, § 52).
The Court first of all points out that the applicants, relying on Articles 62 and 63 of the Constitution, sought, with their application to the Minister of the Interior and then the Supreme Court, to be registered on a separate electoral list of the Turkish community for the purpose of voting and standing for election in the parliamentary elections of 1 May 2006. They therefore sought to vote and elect representatives from their own community in their capacity as members of that community. The refusal to register them on this separate electoral list constitutes the core of their complaint before the domestic courts and this Court.
The Court notes that Article 3 of Protocol No. 1 cannot be interpreted as imposing an obligation on States to set up separate electoral lists and carry out separate elections. Although the Constitution of Cyprus provides for separate electoral lists for the Greek and Turkish communities, as noted by the Supreme Court in its judgment of 30 April 2007 and by the Court in its judgment in Aziz (cited above, §§ 26 and 29), since the withdrawal of the Turkish community from the organs of the State and the irregular situation prevailing in Cyprus, the Constitutional provisions requiring separate elections have been rendered ineffective. In these circumstances, it cannot be said that the refusal of the applicants’ request to implement these provisions was unreasonable or arbitrary.
Further, insofar as the applicants may be construed as complaining in general terms of being unable to vote or stand as candidates as regards elections for the legislature in the Republic of Cyprus, the Court recalls that pursuant to Law 2(I)/2006, adopted following its judgment in the Aziz case, all Cypriot nationals belonging to the Turkish community who are habitually resident within the free areas can be registered in a supplementary electoral list which is then incorporated into in the main electoral list for members of the Greek community and are able to vote and stand for election in, inter alia, parliamentary elections. As a result of this law, it appears that a significant number of Turkish Cypriots were able to participate in the parliamentary elections of 21 May 2006 (see Relevant Domestic Law above). As the applicants had their permanent residence in the “TRNC”, they did not satisfy the residence requirement. It was on account of this that they were unable to exercise their electoral rights and were unable to take part in the said elections.
In this connection, the Court recalls that in relation to the cases concerning the right to vote, that is, the so-called “active” aspect of the rights under Article 3 of Protocol No. 1, the former Commission and the Court have taken the view that having to satisfy a residence or length-of-residence requirement in order to have or exercise the right to vote in elections is not, in principle, an arbitrary restriction of the right to vote and is therefore not incompatible with Article 3 of Protocol No. 1 (see, for example, Py, cited above; Hilbe v. Liechtenstein (dec.), no. 31981/96, ECHR 1999-VI; (see Polacco and Garofalo v. Italy, no. 23450/94, Commission decision of 15 September 1997, Decisions and Reports (DR); see also, X v. the United Kingdom, application no. 7730/76, Commission decision of 28 February 1979, Decisions and Reports (DR) 15, p. 137; and Luksch v. Germany, application no. 35385/97, Commission decision of 21 May 1997, DR 89-B, p. 175).
These cases illustrate that enjoyment of the right to vote and to stand in election may depend on the nature and degree of the links that exists between the individual applicant and the legislature of the particular country. Relevant considerations include (1) the assumption that a non-resident citizen is less directly or continuously concerned with, and has less knowledge of, a country’s day-to-day problems; (2) the impracticality and sometimes undesirability (in some cases impossibility) of parliamentary candidates presenting the different electoral issues to citizens living elsewhere so as to secure the free expression of opinion; (3) the influence of resident citizens on the selection of candidates and on the formulation of their electoral programmes; and (4) the correlation between one’s right to vote in parliamentary elections and being directly affected by the acts of the political bodies so elected (Melnychenko v. Ukraine, (no. 17707/02, § 56, ECHR 2004-X and authorities cited therein).
In relation to cases concerning an alleged violation of an individual’s right to stand as a candidate for election, that is, the so-called “passive” aspect of the rights under Article 3 of Protocol No. 1, the Court has also accepted that stricter requirements may be imposed on the eligibility to stand for election to parliament as distinguished from voting eligibility. The Court has emphasised that the Contracting States enjoy considerable latitude in establishing constitutional rules on the status of members of parliament, including criteria governing eligibility to stand for election. Thus, it has also recognised that legislation establishing domestic residence requirements for a parliamentary candidate was, as such, compatible with Article 3 of Protocol No. 1, this requirement arguably being deemed appropriate to enable such persons to acquire sufficient knowledge of the issues associated with the national parliament’s tasks (Melnychenko, cited above, §§ 53-67).
The present case does not concern, as such, the position of expatriate citizens vis-à-vis the legislature. Here, the applicants live voluntarily in the “TRNC”, which is an area on the island of Cyprus occupied by Turkey and its armed forces and where the Government and authorities of the Republic of Cyprus have been prevented since 1974 from exercising their powers and carrying out their responsibilities. The “TRNC” holds its own elections in which the population in the north participate even if these are not recognised on an international level. While the applicants claimed that legislation from the Cyprus House of Representatives directly affected them, they have not specified any concrete example. Nor have they given any example of any personal interests arising within the Government-controlled southern part of the island which might depend on decisions taken by the legislature there. Insofar as they had local concerns as citizens, it would appear that these matters effectively fell under the exclusive sway of the “TRNC” authorities and not the legislature of the Republic of Cyprus. Indeed it is not apparent that as residents in the “TRNC” the applicants are in any way under the effective jurisdiction and control of the Cypriot authorities. Even if measures passed by the legislature of the Republic of Cyprus may well have some significance and interest beyond the government-controlled areas, this cannot be regarded in the same light as the direct and enforceable impact of those measures on those residents within those areas. The Court is not therefore persuaded that the principle of correlation between the right to vote in parliamentary elections and the individual being directly affected by the acts of the political bodies so elected is in issue in the present case. In this respect, the link between the applicants and the Cypriot jurisdiction may be regarded as having been severed by the de facto partition of the country (see, mutatis mutandis, Matthews, cited above, § 64).
In these very particular circumstances, having regard to its case-law on the matter, the provisions of the domestic electoral legislation and the irregular situation existing in Cyprus, the Court does not find that the habitual residence requirement imposed for eligibility to vote and to stand for parliamentary elections is disproportionate or irreconcilable with the underlying purposes of Article 3 of Protocol No. 1.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
2. The applicants complained that they had been subjected to discriminatory treatment in violation of Article 14 taken in conjunction with the above provision and Article 1 of Protocol No. 12 on the basis of their ethic origin and/or language and/or religion. These provisions provide as follows:
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 1 of Protocol No. 12
“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”
The Court finds that, even assuming exhaustion of domestic remedies, the applicants’ complaint under the above provisions is unsubstantiated.
In this respect, the Court reiterates that discrimination, both for the purposes of Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV; with regard to Article 1 of Protocol No. 12 see the Explanatory Report to Protocol No. 12, § 18; Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 55, 22 December 2009). However, not every difference in treatment will amount to a violation of these provisions. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory (see Unal Tekeli v. Turkey, no. 29865/96, § 49, 16 November 2004). Even where there is a difference in treatment, no discrimination will arise if the measure has objective and reasonable justification, pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Larkos v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999-I)
In the present case, however, there is no evidence that the applicants have been discriminated against: the applicants have not indicated in comparison to whom they have been treated differently nor have they submitted evidence that they have been treated less favourably than other persons who were in a comparable or “relevantly” similar situation. Insofar as the applicants might seek to compare themselves to Turkish Cypriots who resided in the Government-controlled area and who may vote and stand for election subject to applicable conditions, the Court would not consider that this is a valid comparison group. Even if it were, for the reasons given above, there is objective and reasonable justification and a legitimate basis for distinguishing for electoral purposes between those Turkish Cypriots who chose to remain in the “TRNC” under the day-to-day administration of the de facto authorities and those Turkish Cypriots who lived within the area controlled by the Government, subject to the direct impact of the measures adopted by the legislature of the Republic.
Insofar as the applicants might seek to compare themselves to Greek Cypriots living in the Government-controlled area, the same reasoning would essentially apply.
It follows that these complaints are inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy