THIRD SECTION
DECISION
Application no. 16084/90
by Eliade PROTOPAPA
against Turkey
The European Court of Human Rights (Third Section), sitting on 26 September 2002 as a Chamber composed of
MrG. Ress, President,
MrI. Cabral Barreto,
MrL. Caflisch,
MrJ. Hedigan,
MrsH.S. Greve,
MrK. Traja, judges,
MrF. Gölcüklü, ad hoc judge,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 12 January 1990,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the comments submitted by the Cyprus Government,
Having deliberated, decides as follows:
THE FACTS
The applicant, Eliade Protopapa, is a Cypriot national of Greek Cypriot origin born in 1937 and living in Nicosia. In the proceedings before the Court she is represented by Mr C. Velaris, a lawyer practising in Nicosia.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s submissions:
The demonstration of 19 July 1989 was peaceful and took place in view of the fifteenth anniversary of the Turkish intervention in Cyprus, for the missing persons and to protest against human rights violations. In the course of the demonstration, the applicant states she was seized by the hair and was allegedly beaten and assaulted by Turkish military personnel and / or other personnel acting under Turkish control. The beatings were inflicted with electric clubs. She states that one of the blows she received caused a painful injury to her right arm. She was then dragged to small room with other individuals who had been arrested at the same demonstration. After this, she was taken to a bus through a crowd that spat and swore at her and the other detainees and she was transported to “Pavlides Garage”. She states that as she entered the garage her handbag was seized. She states that she was forced to sit on the floor and that the toilet facilities available were filthy. There was a the crowd outside the garage was swearing, shouting abuse and threats as well as throwing stones at the garage some of which came through the roof. While she was in the garage, she was interrogated but refused to sign the statement. The next day, on 20 July 1989, she and the other detainees were provided with food and were at the same time photographed and filmed by a television crew.
On the same day, after a body search was carried out, she was taken to court and was remanded in custody for two days. She was transferred with other women who had been arrested during the same events to Ortakeuy prison, where she was kept in a cell with another woman. She claims that the conditions of detention were appalling, the cell was unbearably hot, and that during the night she and the other detainees were harassed by the guards so they were not able to sleep. She states that during her detention she went on hunger strike.
On 21 July 1989, at night, the applicant was taken to court where her trial took place. She states that she had no legal representation or proper interpretation and that she was not allowed to speak. She states that she had never seen some of the exhibits presented during the trial before. After the trial she was taken back to prison.
The next day, 22 July 1989, the court sentenced the applicant to 1 million Turkish liras and a year’s imprisonment if she entered northern Cyprus again. She was sentenced to 3 days imprisonment and to a fine of 50 Cyprus pounds. Then she was led back to prison.
On 24 July 1989 she was released and transported by bus to southern Cyprus.
The applicant alleges that she continues to suffer from a permanent, incurable and continuously deteriorating injury to three of her vertebrae, which she sustained from the beatings and blows she received.
The Government’s submissions:
The Government allege that the applicant participated in a violent demonstration with the aim of flaming anti-Turkish propaganda. Some of the demonstrators carried Greek flags, clubs, knives and wire-cutting scissors. They were acting in a provocative manner and shouting abuse. The demonstrators were warned in Greek and English that unless they dispersed they would be arrested in accordance with the law of the Turkish Republic of northern Cyprus (‘TRNC’). The applicant was arrested by the Turkish Cypriot police after having crossed the United Nations buffer zone and having entered the area under Turkish Cypriot control. The Turkish Cypriot police intervened in the face of the manifest inability of the Greek Cypriot authorities and of the United Nations Force in Cyprus to contain the intrusion and its possible consequences.
The applicant was charged, tried, found guilty and sentenced to a short term of imprisonment. The applicant pleaded “non-guilty”, but did not give evidence and she refused available judicial remedies. She was asked if she wanted to avail the services of a lawyer registered in the ‘TRNC’ but she refused and she did not ask for legal representation. Interpretation was given during the trial by qualified interpreters. All the proceedings were translated into Greek.
COMPLAINTS
The applicant complained under Articles 1, 3, 5, 6, 7, 8, 9, 10, 11, 13 and 14 of the Convention and 1 of Protocol No. 1 of a violation by Turkish authorities of the rights guaranteed by these provisions.
THE LAW
1. The applicant complains under Articles 3, 5, 6, 7, 11 and 13 of the Convention. Further she complains of a violation of Article 14 of the Convention in conjunction with Articles 5, 6 and 7 of the Convention.
The relevant provisions read as follows :
Article 3 of the Convention
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 5 of the Convention
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
...”
Article 6 of the Convention
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
Article 7 of the Convention
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
Article 11 of the Convention
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
Article 13 of the Convention
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 14 of the Convention
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
A. Preliminary objections
The Government reject the applicant’s complaints and submit that Turkey is not responsible for matters in northern Cyprus which fall within the exclusive control of the wholly independent and democratic ‘TRNC’. Turkey is not in any way involved in the administration of justice by Turkish Cypriot courts and in the prison administration of northern Cyprus. Turkey has no jurisdiction or control over the legal system of the ‘TRNC’. Thus, they maintain that this application is incompatible ratione personae and ratione loci with the provisions of the Convention and should be declared inadmissible.
The applicant disputes the submissions in relation to jurisdiction and responsibility, relying essentially on the reasons given by the Court for rejecting similar objections raised by Turkey in its Loizidou v. Turkey judgments of 23 March 1995 (preliminary objections) (Series A no 310), of 18 December 1996 (merits) and of 29 July 1998 (Article 50) (Reports of Judgments and Decisions 1996-VI and 1998-IV), and the conclusions of the European Commission of Human Rights in its report in the inter-state case of Cyprus v. Turkey (application no. 25781/94, Commission’s report of 4 June 1999, reported in Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001‑IV).
Finally the applicant adopts the observations submitted by the Government of Cyprus which dispute the arguments of the respondent Government and include the following point regarding the issue of imputability.
- the conclusions of the Court in its judgments in the above-mentioned Loizidou v. Turkey case (op. cit.), the decision of the Court in the Christodoulidou v. Turkey case (no. 16085/90, 7 December 1999, unreported) and the findings of the Commission in its report of 4 June 1999 in the inter-state case of Cyprus v. Turkey (op. cit.) that Turkey is responsible under the Convention for the acts and omissions of the ‘TRNC’, are applicable in this case.
The Court refers to its dismissal in the aforementioned Loizidou judgment (merits) (op. cit., §§ 49–57) and in its judgment of 10 May 2001 in the inter‑State case of Cyprus v. Turkey (op. cit., §§ 69–81) of the Government’s preliminary objections as to Turkey’s alleged lack of jurisdiction and responsibility for acts of which the complaint is made. In particular, the Court recalls that in its latter judgment it decided that the responsibility of Turkey cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by the acts of the local administration which survives by virtue of Turkish military and other support. In terms of Article 1 of the Convention, Turkey’s ‘jurisdiction’ must be considered to extend to securing the entire range of substantive rights set out in the Convention and those additional Protocols which she has ratified, and that violations of those rights are imputable to Turkey (Cyprus v. Turkey, op. cit., §§ 69-81).
The Court finds no reason to depart from these conclusions. Accordingly, it rejects the Government’s aforementioned objections to the admissibility of the application.
B. Merits
The Government reject the applicant’s complaints with submissions that include the following points.
- the application should be determined on the basis of the findings of the Commission in the case of Chrysostomos and Papachrysostomou v. Turkey (application nos. 15299/89 and 15300/89, Commission’s report of 8 June 1993, DR 86, p. 4). They state that the factual and legal bases of the present application are the same as those in the above-mentioned case that constitutes a pilot case. They state that the applicant is intending to produce re-litigation before the Court on issues which have been already considered and ruled upon by the Commission.
As regards Article 3 of the Convention:
- there was no ill-treatment;
- during arrest and detention the Turkish Cypriot police used no more force than was reasonably necessary under the circumstances in order to effect arrest and detention.
As regards Article 5 of the Convention:
- the applicant was lawfully arrested in accordance with the law of the TRNC.
As regards Article 6 of the Convention:
- the trial of the applicant was by an impartial and independent court;
- all the cases before the court, which formed part of a group of cases and included that of the applicant, were divided into groups so as to ensure a speedy trial and help the accused in their defence;
- the applicant did not ask for more time to prepare her defence, or to be legally represented. If she had done so, she would have been given more time for such purposes. She was asked if she wanted to avail the services of a lawyer but she refused;
- the court advised and helped the applicant understand her rights and the procedure involved;
- everything in the trial was interpreted during the proceedings by qualified translators / interpreters in order to ensure that the defence was not affected and that the accused was fully informed of the charges against her;
- in passing sentence the court took all circumstances of the case into consideration.
Lastly, the Government state that the decision of the Court on admissibility in the Christodoulidou v. Turkey case (no. 16085/90, 7 December 1999, unreported) related only to complaints under Articles 3 and 11 of the Convention and 1 of Protocol No. 1. Those complaints have no bearing on the general issues and objections raised in the present application since the complaints of Ms Christodoulidou did not relate to the administration of justice in the TRNC. She was not detained, punished or imprisoned in northern Cyprus.
The observations of the applicant are similar to the observations adopted by the Cyprus Government and the applicant adopts the observations submitted by the latter. These observations dispute the arguments of the respondent Government with submissions that include the following points:
- the complaints made by the applicant are not identical to those raised in the Chrysostomos and Papachrysostomou v. Turkey (op. cit.) but significantly different, both as regards the factual basis and the legal analysis. In light of the decisions of the Court in the Loizidou v. Turkey case (op. cit.) and by the Commission in its report of 4 June 1999 in the inter-state case of Cyprus v. Turkey (op. cit.), the legal basis upon which certain complaints in the case of Chrysostomos and Papachrysostomou v. Turkey (op. cit.) where dismissed by the Commission is no longer sustainable;
As regards Article 3 of the Convention:
- the findings of the Commission in the case of Chrysostomos and Papachrysostomou v. Turkey (op. cit.) are not applicable to the present applicant. Whether the treatment suffered by the applicant in this case violated Article 3, has to be examined and determined in light of the facts of the instant case and on the basis of the evidence provided;
- in view of the Loizidou v. Turkey case (merits) (op. cit.) and the Commission’s report of 4 June 1999 in the inter-state case of Cyprus v. Turkey (op. cit.), the Government are responsible for treatment suffered by the applicant during detention, interrogation and trial;
- the treatment endured by the applicant during her arrest and subsequent imprisonment and trial was of a very severe nature, including inter alia physical violence and punishment, exposure to violent and abusive crowds, inhuman and degrading conditions of detention, including sleep deprivation, and humiliating and frightening treatment in court. Whether such treatment is viewed cumulatively or separately, it caused severe physical and psychological suffering, some of which is continuing today. Thus the treatment suffered constituted inhuman and degrading treatment in violation of Article 3 of the Convention.
As regards Article 5 of the Convention:
- during the applicant’s initial arrest and subsequent detention as well as during the detention imposed following the court conviction, the applicant was denied her liberty in circumstances which did not follow a procedure prescribed by law and which was not lawful under Articles 5 § 1 (a) and 5 § 1 (c) of the Convention;
- the failure of the authorities to inform the applicant of the or all the reasons for her arrest and charges against her constitutes a violation of Article 5 § 2.
As regards Article 6 of the Convention:
- this application is an exceptional case where the applicant was denied each and every of the basic fair trial guarantees provided for in the above‑mentioned provision. These include inter alia a failure: to inform the applicant promptly in a language that she understood, of the nature and cause of the accusation against her, to provide the applicant with adequate time and facilities to find a lawyer of her own choice and to prepare her defence, to allow the cross-examination of witnesses and provide the applicant with proper interpretation and with a transcript of the trial;
- the applicant was not permitted to engage a lawyer of her choice, but was asked only at the commencement of the trial if she wished to use a lawyer registered in the ‘TRNC’. No indication was given to the applicant that such a lawyer would provide free legal assistance. In any case, legal advice should have been offered well in advance of the commencement of the trial;
- the finding of the Commission in the Chrysostomos and Papachrysostomou v. Turkey (op. cit.) that Article 6 of the Convention had been violated in that there was proof beyond reasonable doubt that subjectively the “court” which tried the applicants was neither impartial nor fair, wholly supports the applicant’s case.
As regards Article 7 of the Convention:
- the applicant was falsely tried for offences which did not amount to offences under relevant national or international law, and which in any event failed to meet the standards of foreseeability and accessibility required by the Convention (G. v. France judgment of 27 September 1995, Series A no. 325-B), in violation of Article 7 of the Convention.
As regards Article 11 of the Convention:
- the applicant’s right to demonstrate under Article 11 of the Convention was interfered with in an aggravated and serious manner;
- the acts of the Government were a deliberate and provocative attempt to disrupt a lawful demonstration in an area which was the subject of UN patrols and not within even the claimed jurisdiction of the ‘TRNC’;
- the interference with the applicant’s rights was not prescribed by law and was an excessive and disproportionate response to the peaceful and lawful demonstration. The Government have not identified in their current observations any legitimate aim that they were seeking to serve by committing these assaults upon the applicant.
As regards Article 13 of the Convention:
- no effective remedies are or were at any time available to the applicant in respect of any of her complaints under the Convention; alternatively, the institutions established by the ‘TRNC’ are incapable of constituting effective domestic remedies within the national legal system of Turkey, within the meaning of Article 13 of the Convention.
As regards Article 14 of the Convention in conjunction with Articles 5, 6 and 7:
- the applicant was arrested, beaten and prosecuted by the authorities solely because of her nationality and ethnic origin. This differential treatment was a clear violation of Article 14 of the Convention when read together with Articles 5, 6 and 7.
The Court recalls that the Commission in its report in the Chrysostomos and Papachrysostomou v. Turkey (op. cit.) had considered that, because, inter alia, of the overall control exercised by Turkey over the “border zone” the arrest of the applicants in that case and alleged ill-treatment in the “border area” on 19 July 1989 were imputable to Turkey. Further the Court considers that in view of and in accordance with its above-mentioned Loizidou v. Turkey judgment, the alleged violations are imputable to Turkey.
In view of the above-mentioned findings, the Court considers therefore that this part of the application cannot be rejected as incompatible ratione personae and ratione loci with the provisions of the Convention.
The Court considers, in the light of the parties’ submissions, that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. The applicant had initially complained of a violation of Article 1 of Protocol No. 1 to the Convention. However, on 3 January 1998 she informed the Court that she wished to withdraw the complaint in question.
The Court notes this development and considers that respect for human rights as defined in the Convention does not require it to continue the examination of this complaint which, accordingly, no longer form part of the application.
3. Finally, the applicant had initially complained of a violation of Articles 1, 9 and 10 of the Convention. Further, the Commission communicated ex officio a complaint under Article 8 of the Convention.
The Court notes that the applicant has failed to substantiate her complaints under these provisions. The applicant has not submitted any observations on their substance. Moreover, the applicant has submitted that she did not have a home in northern Cyprus. Finally, the Court finds that the facts of the case do not disclose any appearance of a violation of the above-mentioned provision.
It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court by a majority
Declares admissible, without prejudging the merits, the applicant’s complaints under Articles 3, 5, 6, 7, 11, 13 and 14 of the Convention;
Decides to strike the application out of its list of cases insofar as it concerns Article 1 of Protocol No.1 to the Convention;
Declares the remainder of the application inadmissible.
Vincent BergerGeorg Ress
RegistrarPresident
Full & Egal Universal Law Academy