Sentenza 10 maggio 2001
Corte Europea dei diritti dell’uomo. Sentenza 10 maggio 2001: “Case of Cyprus v. Turkey”
(Application no. 25781/94)
1. The case was referred to the Court, in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by the Government of the Republic of Cyprus (“the applicant Government”) on 30 August 1999 and by the European Commission of Human Rights (“the Commission”) on 11 September 1999 (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention).
2. The case originated in an application (no. 25781/94) against the Republic of Turkey lodged with the Commission under former Article 24 of the Convention by the applicant Government on 22 November 1994.
3. The applicant Government alleged with respect to the situation that has existed in Cyprus since the start of Turkey’s military operations in northern Cyprus in July 1974 that the Government of Turkey (“the respondent Government”) have continued to violate the Convention notwithstanding the adoption by the Commission of reports under former Article 31 of the Convention on 10 July 1976 and 4 October 1983 and the adoption by the Committee of Ministers of the Council of Europe of resolutions thereon. The applicant Government invoked in particular Articles 1 to 11 and 13 of the Convention as well as Articles 14, 17 and 18 read in conjunction with the aforementioned provisions. They further invoked Articles 1, 2 and 3 of Protocol No. 1. These complaints were invoked, as appropriate, with reference to the following subject-matters: Greek-Cypriot missing persons and their relatives; the home and property of displaced persons; the right of displaced Greek Cypriots to hold free elections; the living conditions of Greek Cypriots in northern Cyprus; and the situation of Turkish Cypriots and the Gypsy community living in northern Cyprus.
Alleged violations arising out of the living conditions of Greek Cypriots in northern Cyprus
34. The applicant Government adduced evidence in support of their complaint that the dwindling number of Greek Cypriots living in the Karpas peninsula of northern Cyprus were subjected to continuing oppressive treatment which amounted to a complete denial of their rights and a negation of their human dignity. In addition to the harassment and intimidation which they suffered at the hands of Turkish settlers, and which has gone unpunished, the enclaved Greek Cypriots laboured under restrictions which violated many of the substantive rights contained in the Convention.
47. As to alleged restrictions on religious worship, the Commission found that the main problem for Greek Cypriots in this connection stemmed from the fact that there was only one priest for the whole Karpas area and that the Turkish-Cypriot authorities were not favourable to the appointment of additional priests from the south. The Commission delegates were unable to confirm during their visit to the Karpas area whether access to the Apostolos Andreas Monastery was free at any time for Karpas Greek Cypriots. It appeared to be the case that on high religious holidays (which occur three times a year) visits to the monastery are also allowed to Greek Cypriots from the south.
48. Concerning alleged restrictions on the freedom of association of the enclaved population, the Commission observed that the relevant “TRNC” law on associations only covered the creation of associations by Turkish Cypriots.
IV. ALLEGED VIOLATIONS OF THE RIGHTS OF DISPLACED PERSONS TO RESPECT FOR THEIR HOME AND PROPERTY
179. The applicant Government contended that the respondent State had adopted a systematic and continuing policy of interference with the immovable property of the displaced persons. They stated, inter alia, that the properties in question, of which the displaced persons were unlawfully dispossessed following their eviction from the north, were transferred into Turkish possession. Steps were then taken to “legalise” the illegal appropriation of the properties and their allocation to “State” bodies, Turkish Cypriots and settlers from the Turkish mainland. This was effected by means such as the assignment of “title deeds” to their new possessors. No compensation had ever been awarded to the victims of these interferences. Furthermore, specific measures had been taken to develop and exploit commercially land belonging to displaced persons, Church-owned land had been transferred to the Muslim religious trust, and agricultural produce from Greek-Cypriot land was now being exported accompanied by Turkish certificates.
Article 14 of the Convention taken in conjunction with Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1
195. The applicant Government stated that the administrative practices, “legislation” and “constitutional provisions” at issue violated not only the rights guaranteed by Article 8 of the Convention and Article 1 of Protocol No. 1 but, being exclusively directed against Greek Cypriots not living in northern Cyprus, also Article 14 of the Convention. Article 14 of the Convention provides:
“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.”
196. Elaborating on their submission, the applicant Government maintained that the aim of the respondent State was to discriminate against Greeks and Greek Cypriots since only these classes of persons were disentitled to acquire immovable property in the “TRNC”. Other “aliens” such as British retired persons were not prevented from acquiring immovable property in the “TRNC”, inter alia property which had been “abandoned” by Greek-Cypriot displaced persons. Furthermore, Turks from Turkey not resident in the “TRNC” were not treated as having abandoned their property and were permitted to acquire new property holdings or homes.
197. The applicant Government further submitted that, as a matter of practice, the respondent State failed, on a discriminatory basis, to provide remedies for Greek Cypriots and Greeks in respect of their property rights. In their submission, there was a breach of Article 14 of the Convention in conjunction with Article 13.
Article 9 of the Convention
241. The applicant Government alleged that the facts disclosed an interference with the enclaved Greek Cypriots’ right to manifest their religion, in breach of Article 9 of the Convention which states:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
242. The applicant Government contended that the interference with the concerned population’s right under Article 9 was reflected in the “TRNC” policy of limiting its freedom of movement and thereby restricting access to places of worship. The applicant Government also condemned the failure of the “TRNC” to appoint further priests to the area. They endorsed the Commission’s findings on the facts and its conclusion that there had been a breach of Article 9. They added that a similar breach should be found in respect of the Maronite population living in northern Cyprus on account of the fact that that population also had to contend with restrictions on its right to visit and tend to its holy places in the northern part of Cyprus.
243. The Commission observed that the existence of a number of measures limited the religious life of the enclaved Greek-Cypriot population. It noted in this respect that, at least until recently, restrictions were placed on their access to the Apostolos Andreas Monastery as well as on their ability to travel outside their villages to attend religious ceremonies. In addition, the “TRNC” authorities had not approved the appointment of further priests for the area, there being only one priest for the whole of the Karpas region. For the Commission, these restrictions prevented the organisation of Greek Orthodox religious ceremonies in a normal and regular manner and amounted to a breach of Article 9 of the Convention. In the Commission’s view, there existed no effective remedies in respect of the measures complained of.
244. The Commission accordingly concluded that during the period under consideration there had been a violation of Article 9 of the Convention in respect of Greek Cypriots living in northern Cyprus.
245. The Court accepts the facts as found by the Commission, which are not disputed by the applicant Government. It has not been contended by the applicant Government that the “TRNC” authorities have interfered as such with the right of the Greek-Cypriot population to manifest their religion either alone or in the company of others. Indeed there is no evidence of such interference. However, the restrictions placed on the freedom of movement of that population during the period under consideration considerably curtailed their ability to observe their religious beliefs, in particular their access to places of worship outside their villages and their participation in other aspects of religious life.
246. The Court concludes that there has been a violation of Article 9 of the Convention in respect of Greek Cypriots living in northern Cyprus.
247. The Court notes that the applicant Government have requested it to make a similar finding in respect of the Maronite community living in northern Cyprus. However, it considers that the evidence before it is insufficient to prove beyond reasonable doubt that members of this community were prejudiced to the same extent as the Greek-Cypriot
population in the north in the exercise of their right to freedom of religion. It finds therefore that no violation of Article 9 has been established in respect of the Maronite population living in northern Cyprus.
Article 10 of the Convention
250. The Commission found a violation of Article 10 in so far as the Turkish-Cypriot authorities had, during the period under consideration, censored or rejected the distribution of a considerable number of schoolbooks on the ground that their content was capable of fostering hostility between the ethnic communities in northern Cyprus. The Commission noted that the books which had been censored or rejected concerned subjects such as Greek language, English, history, geography, religion, civics, science, mathematics and music. Even having regard to the possibility that such books contained materials indicating the applicant Government’s view of the history and culture of Cyprus, the impugned action failed to comply with the requirements of paragraph 2 of Article 10. In the Commission’s view there were no remedies which would have allowed parents or teachers to contest the action taken.
Article 2 of Protocol No. 1
273. The applicant Government averred that the children of Greek Cypriots living in northern Cyprus were denied secondary-education facilities and that Greek-Cypriot parents of children of secondary-school age were in consequence denied the right to ensure their children’s education in conformity with their religious and philosophical convictions. The applicant Government relied on Article 2 of Protocol No. 1, which states:
“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
274. The applicant Government approved the reasons given by the Commission for finding a violation of the above provision. However, they requested the Court to rule that this provision had also been breached on account of the prevention by the respondent State of appropriate primaryschool teaching until the end of 1997. Before that date, the “TRNC” had not permitted the appointment of a primary-school teacher. In the applicant Government’s submission this policy interfered with the right of Greek-Cypriot children to a primary education.
275. The Commission, with reference to the principles set out by the Court in the Case relating to certain aspects of the laws on the use of languages in education in Belgium (merits) (judgment of 23 July 1968, Series A no. 6), observed that the secondary educational facilities which were formerly available to children of Greek Cypriots had been abolished by the Turkish-Cypriot authorities. Accordingly, the legitimate wish of Greek Cypriots living in northern Cyprus to have their children educated in accordance with their cultural and ethnic tradition, and in particular through the medium of the Greek language, could not be met. The Commission further considered that the total absence of secondary-school facilities for the persons concerned could not be compensated for by the authorities’allowing pupils to attend schools in the south, having regard to the fact that restrictions attached to their return to the north (see paragraph 44 above). In the Commission’s conclusion, the practice of the Turkish-Cypriot authorities amounted to a denial of the substance of the right to education and a violation of Article 2 of Protocol No. 1.
276. As to the provision of primary-school education in the Greek language, the Commission considered that the right to education of the population concerned had not been disregarded by the Turkish-Cypriot authorities and that any problems arising out of the vacancy for teaching posts had been resolved.
277. The Court notes that children of Greek-Cypriot parents in northern Cyprus wishing to pursue a secondary education through the medium of the Greek language are obliged to transfer to schools in the south, this facility being unavailable in the “TRNC” ever since the decision of the Turkish-Cypriot authorities to abolish it. Admittedly, it is open to children, on reaching the age of 12, to continue their education at a Turkish or English-language school in the north. In the strict sense, accordingly, there is no denial of the right to education, which is the primary obligation devolving on a Contracting Party under the first sentence of Article 2 of Protocol No. 1 (see the Kjeldsen, Busk Madsen and Pedersen v. Denmark judgment of 7 December 1976, Series A no. 23, pp. 25-26 § 52). Moreover, this provision does not specify the language in which education must be conducted in order that the right to education be respected (see the abovementioned Belgian linguistic judgment, pp. 30-31, § 3).
278. However, in the Court’s opinion, the option available to Greek-Cypriot parents to continue their children’s education in the north is unrealistic in view of the fact that the children in question have already received their primary education in a Greek-Cypriot school there. The authorities must no doubt be aware that it is the wish of Greek-Cypriot parents that the schooling of their children be completed through the medium of the Greek language. Having assumed responsibility for the provision of Greek-language primary schooling, the failure of the “TRNC” authorities to make continuing provision for it at the secondary-school level must be considered in effect to be a denial of the substance of the right at issue. It cannot be maintained that the provision of secondary education in the south in keeping with the linguistic tradition of the enclaved Greek Cypriots suffices to fulfil the obligation laid down in Article 2 of Protocol No. 1, having regard to the impact of that option on family life (see paragraph 277 above and paragraph 292 below).
279. The Court notes that the applicant Government raise a further complaint in respect of primary-school education and the attitude of the “TRNC” authorities towards the filling of teaching posts. Like the Commission, it considers that, taken as a whole, the evidence does not disclose the existence of an administrative practice of denying the right to education at primary-school level.
280. Having regard to the above considerations, the Court concludes that there has been a violation of Article 2 of Protocol No. 1 in respect of Greek Cypriots living in northern Cyprus in so far as no appropriate secondary school facilities were available to them.
C. Overall examination of the living conditions of Greek Cypriots in northern Cyprus
Article 3 of the Convention
302. The applicant Government alleged that, as a matter of practice, Greek Cypriots living in the Karpas area of northern Cyprus were subjected to inhuman and degrading treatment, in particular discriminatory treatment amounting to inhuman and degrading treatment.
303. They submitted that the Court should, like the Commission, find that Article 3 had been violated. The applicant Government fully endorsed the Commission’s reasoning in this respect.
304. The Commission did not accept the respondent Government’s argument that it was prevented from examining whether the totality of the measures impugned by the applicant Government, including those in respect of which it found no breach of the Convention, provided proof of the pursuit of a policy of racial discrimination amounting to a breach of Article 3 of the Convention. The Commission had particular regard in this connection to its report under former Article 31 in the East African Asians v. the United Kingdom case adopted on 14 December 1973 (Decisions and Reports 78-A, p. 62). Having regard to the fact that it found the Convention to be violated in several respects, the Commission noted that all the established interferences concerned exclusively Greek Cypriots living in northern Cyprus and were imposed on them for the very reason that they belonged to this class of persons. In the Commission’s conclusion, the treatment complained of was clearly discriminatory against them on the basis of their “ethnic origin, race and religion”. Regardless of recent improvements in their situation, the hardships to which the enclaved Greek Cypriots were subjected during the period under consideration still affected their daily lives and attained a level of severity which constituted an affront to their human dignity.
305. The Court recalls that in its Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985 (Series A no. 94), it accepted the applicants’ argument that, irrespective of the relevance of Article 14, a complaint of discriminatory treatment could give rise to a separate issue under Article 3. It concluded on the merits that the difference of treatment complained of in that case did not denote any contempt or lack of respect for the personality of the applicants and that it was not designed to, and did not, humiliate or debase them (p. 42, §§ 90-92).
306. The Court further recalls that the Commission, in its decision in the above-mentioned East African Asians case, observed, with respect to an allegation of racial discrimination, that a special importance should be attached to discrimination based on race and that publicly to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special affront to human dignity. In the Commission’s opinion, differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when differential treatment on some other ground would raise no such question (loc. cit., p. 62, § 207).
307. With these considerations in mind the Court cannot but observe that the United Nations Secretary-General, in his progress report of 10 December 1995 on the “Karpas Brief” (see paragraph 36 above), stated that the review carried out by UNFICYP of the living conditions of the Karpas Greek Cypriots confirmed that they were the object of very severe restrictions which curtailed the exercise of basic freedoms and had the effect of ensuring that, inexorably, with the passage of time, the community would cease to exist. He made reference to the facts that the Karpas Greek Cypriots were not permitted by the authorities to bequeath immovable property to a relative, even the next-of-kin, unless the latter also lived in the north; there was no secondary-school facilities in the north and Greek-Cypriot children who opted to attend secondary schools in the south were denied the right to reside in the north once they reached the age of 16 in the case of males and 18 in the case of females.
308. The Court notes that the Humanitarian Review reflected in the “Karpas Brief” covered the years 1994-95, which fall within the period under consideration for the purposes of the complaints contained in the present application. It recalls that the matters raised by the United Nations Secretary-General in his progress report have, from the perspective of the Court’s analysis, led it to conclude that there have been violations of the enclaved Greek Cypriots’ Convention rights. It further notes that the restrictions on this community’s freedom of movement weigh heavily on their enjoyment of private and family life (see paragraphs 292-93 above) and their right to practise their religion (see paragraph 245 above). The Court has found that Articles 8 and 9 of the Convention have been violated
in this respect.
309. For the Court it is an inescapable conclusion that the interferences at issue were directed at the Karpas Greek-Cypriot community for the very reason that they belonged to this class of persons. The treatment to which they were subjected during the period under consideration can only be explained in terms of the features which distinguish them from the Turkish-Cypriot population, namely their ethnic origin, race and religion. The Court would further note that it is the policy of the respondent State to pursue discussions within the framework of the inter-communal talks on the basis of bi-zonal and bi-communal principles (see paragraph 16 above). The respondent State’s attachment to these principles must be considered to be reflected in the situation in which the Karpas Greek Cypriots live and are compelled to live: isolated, restricted in their movements, controlled and with no prospect of renewing or developing their community. The conditions under which that population is condemned to live are debasing and violate the very notion of respect for the human dignity of its members.
310. In the Court’s opinion, and with reference to the period under consideration, the discriminatory treatment attained a level of severity which amounted to degrading treatment.
311. The Court concludes that there has been a violation of Article 3 of the Convention in that the Greek Cypriots living in the Karpas area of northern Cyprus have been subjected to discrimination amounting to degrading treatment.
Article 14 of the Convention taken in conjunction with Article 3
312. The applicant Government stated that, notwithstanding the Commission’s conclusion on their complaint under Article 3, a conclusion which they endorsed, the Court should give separate examination to the discriminatory measures imposed on, and exclusively on, Greek Cypriots living in northern Cyprus from the standpoint of compliance with Article 14 of the Convention. The applicant Government submitted that, since the enclaved Greek Cypriots were victims of unreasonable and unjustified differences in treatment based on racial and religious grounds, the fundamental principle underlying Article 14 was violated as a matter of practice. They contended that the elements of discrimination included the pattern of restrictions and pressures which constituted the policy of ethnic cleansing in the Karpas region; the respondent State’s policy of demographic homogeneity; the continuing violations of Greek-Cypriots’property rights as a consequence of the systematic implantation of settlers; the restrictions on the movement of displaced Greek Cypriots as a facet of ethnic exclusiveness; the transfer of possession of the property of displaced
Greek Cypriots forced to leave the Karpas region to Turkish settlers; and the continued deprivation of possessions of Greek Cypriots located within the Turkish-occupied area.
313. The Commission, for its part, did not find it necessary, in view of its finding on the applicant Government’s Article 3 complaint, to consider the instant complaints also in the context of the respondent State’s obligations under Article 14.
314. The Court agrees with the Commission’s conclusion. Having regard to the reasoning which underpins its own finding of a violation of Article 3 it considers that there is no need to pronounce separately on what is in reality a restatement of a complaint which is substantially addressed in that finding.
315. The Court concludes therefore that, in view of its finding under Article 3 of the Convention, it is not necessary to examine whether during the period under consideration there has been a violation of Article 14 of the Convention taken in conjunction with Article 3 in respect of Greek Cypriots living in northern Cyprus.
Article 14 of the Convention taken in conjunction with other relevant Articles
316. The applicant Government requested the Court to find that the respondent State’s policies towards the enclaved Greek Cypriots involved violations of Article 14 of the Convention taken in conjunction with the relevant provisions. They submitted that the population concerned was discriminated against in the enjoyment of the rights guaranteed under these provisions on racial, religious and linguistic grounds.
317. The Court considers that, having regard to the particular circumstances of this case, it is not necessary to examine whether during the period under consideration there has been a violation of Article 14 of the Convention taken in conjunction with the other relevant Articles.
Articles 6 and 13
The Court reaches the conclusion that no violation of Article 6 has been established “by reason of an alleged practice” as regards the claim that the members of the enclaved Greek-Cypriot population were denied their right to have their civil rights and obligations determined by independent and impartial courts established by law (paragraphs 233-40 of the judgment). In doing so, it endorsed the Commission’s conclusion on the facts that there was nothing in the framework of the “TRNC” legal system to cast doubt on the independence and impartiality of the judges and that the courts functioned on the basis of the domestic law of the “TRNC”. Apart from the difficulties inherent in the recognition of the “TRNC” framework which I have alluded to above, the conclusion reached sits ill with the Court’s general findings in respect of the enclaved Greek-Cypriot community of multiple grave breaches of the provisions of the Convention (Articles 3, 9, 10 of the Convention and Articles 1 and 2 of Protocol No. 1). The Court accepts that the enclaved Greek Cypriots are “compelled to live in a hostile environment in which it is hardly possible to lead a normal private and family life” (paragraph 300). It also finds that this population is the victim of discriminatory and degrading treatment based on ethnic origin, race and religion and that its members are compelled to live “isolated,
restricted in their movements, controlled and with no prospect of renewing or developing their community” (paragraph 309). When one stands away from the legal detail supporting these conclusions, the Court accepts the general picture of a dwindling and aged community that has been subjected to a substantial reduction of the Convention rights of its members under colour of a policy of ethnic separation. The Court, furthermore, agrees with the observations of the UN Secretary-General that the restrictions will have the inevitable effect that the community will cease to exist (paragraph 307). In such a context, is it realistic to say that the members of this community have access to the courts in respect of their civil claims? Is it a credible proposition that there exists a haven of juridical relief ready and able to defend the rights of this beleaguered population notwithstanding the existence of an official policy of containment and oppression? I would very much like to believe that the courts could and would function in this manner but, in the absence of substantial evidence to the contrary – as opposed to a few successful court judgments in personal-injury or trespass actions1 –, experience and common sense teach us that the courts are generally powerless in such a situation. It must also be borne in mind that the inhabitants during the period under consideration were not permitted to travel more than three miles from their homes – a fact which is hardly conducive to a desire to have recourse to the courts to settle disputes. It is thus a perfectly natural and predictable state of affairs that this population makes no real use of the court system.
The Court must have regard to the general legal and political context in which remedies operate as well as the personal circumstances of the complainants (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1211, § 69). It is more in keeping with the Court’s usual approach to remedies to conclude that where there is a practice of non-observance of Convention provisions, in pursuance of a particular policy of the State, remedies will, as a consequence, be halfhearted, incomplete or futile (see, mutatis mutandis, the Commission’s
report in the Greek case, Yearbook 12, p. 194). This conclusion would also apply to the complaint under Article 13 concerning alleged interferences by private persons with the rights of Greek Cypriots in northern Cyprus.
Finally, it is difficult to comprehend how it can be said to be for the benefit of the local population – in the words of the much-relied upon sentence in the Advisory Opinion in the Namibia case – to require members of these communities to exhaust the domestic remedies offered by the “TRNC” before the Court would examine their complaints of human-rights
In conclusion, the Court ought to have found a violation of this provision as an inevitable consequence of its general appraisal of the plight of this community and left open all issues concerning the legal system of the “TRNC”.
2. Complaints concerning Turkish-Cypriot political opponents and Gypsies
The Court rejects the allegations of the existence of an administrative practice of a violation of the rights of both of the above categories. I find it helpful to recall that the concept of administrative practice in the case-law of the Convention institutions involves two distinct and cumulative elements: firstly a repetition of acts or “an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system” (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 64, § 159). It also involves a certain “official tolerance” by State authorities on the basis that “it is inconceivable that the higher authorities of a State should be, or at least should be entitled to be, unaware of the existence of such a practice” (ibid). Furthermore, “under the Convention those authorities are strictly liable for the conduct of their subordinates; they are under a duty to impose their will on subordinates and cannot shelter behind their inability to ensure that it is respected” (ibid)1. The Court accepts the Commission’s conclusions that the facts do not support the claims of such a general and widespread interference with the rights of the members of these groups (paragraphs 342-53). Accordingly, it could not be said that the first limb of one of the constituent elements of administrative practice – namely a repetition of acts – was present. Having reached this conclusion, it is unnecessary to go further and decide that members of these groups did not have recourse to remedies as the Court has done in paragraph 352 of the judgment. Presumably – although it is not
stated expressis verbis – the Court has made reference to remedies in this context with a view to demonstrating that the other requirement of an administrative practice, namely official tolerance, was lacking. However to reach the conclusion that there was no practice, it is sufficient that one of the requirements – in this case the factual one – was lacking. Here again, the Court is unwisely going further than is strictly necessary to reach its conclusion.