Cyprus v. Turkey (2002) 35 E.H.R.R. 30

Before the European Court of Human Rights

10 May 2001

*731 Cyprus v. Turkey

Application No. 25781/94

(Alleged violations concerning Turkish invasion and occupation of northern

Cyprus)

Before the European Court of Human Rights

ECHR

( The President, Judge L. Wildhaber; Judges Palm, Costa, Ferrari Bravo,

Caflisch, Fuhrmann, Jungwiert, Fischbach, Zupancic, Vajic, Hedigan, Tsatsa-

Nikolovska, Pantîru, Levits, Kovler, Fuad, Marcus-Helmons)

10 May 2001

H1 Relying on Articles 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 17, and 18 of the Convention as well as Articles 1 and 2 of Protocol No. 1, Cyprus alleged that these articles were violated as a matter of administrative practice by the Turkey who had invaded and occupied northern Cyprus. The allegations concerned the following issues:
(a) Greek-Cypriot missing persons and their relatives;
(b) the homes and property of displaced persons;
(c) living conditions of Greek Cypriots in the Karpas region of northern Cyprus; and
(d) complaints relating to Turkish Cypriots, including members of the Gypsy community, living in northern Cyprus.
Cyprus also claimed just satisfaction under Article 41.

Held,
I. Preliminary Objection.
H2
1. unanimously that it had jurisdiction to examine the preliminary issues raised in the proceedings before the Commission;
2. unanimously that the applicant Government had locus standi to bring the application;
3. unanimously that the applicant Government had a legitimate legal interest in having the merits of the application examined;
4. by 16 votes to one that the facts complained of in the application fell within the "jurisdiction" of Turkey within the meaning of Article 1 of the Convention and therefore entailed the respondent State's responsibility under the Convention;
5. by 10 votes to seven that, for the purposes of former Article 26 of the Convention, remedies available in the "TRNC" should be regarded as "domestic remedies" of the respondent State and that the question of the effectiveness of these remedies was to be considered in the specific circumstances where it arises;
6. unanimously that situations which ended more than six months before the date of introduction of the present application (22 May 1994) fell outside the scope of the Court's examination. *732
II. Alleged violations of the rights of Greek-Cypriot missing persons and their relatives.
H3
1. unanimously that there had been no breach of Article 2 of the Convention by reason of an alleged violation of a substantive obligation under that Article in respect of any of the missing persons;
2. by 16 votes to one that there had been a continuing violation of Article 2 of the Convention on account of the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts and fate of Greek-Cypriot missing persons who disappeared in life-threatening circumstances;
3. unanimously that no breach of Article 4 of the Convention had been established;
4. by 16 votes to one that there had been a continuing violation of Article 5 of the Convention by virtue of the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts and fate of the Greek-Cypriot missing persons in respect of whom there was an arguable claim that they were in Turkish custody at the time of their disappearance;
5. unanimously that no breach of Article 5 of the Convention had been established by virtue of the alleged actual detention of Greek-Cypriot missing persons;
6. unanimously that it was not necessary to examine the applicant Government's complaints under Articles 3, 6, 8, 13, 14 and 17 of the Convention in respect of the Greek-Cypriot missing persons;
7. by 16 votes to one that there had been a continuing violation of Article 3 of the Convention in respect of the relatives of the Greek- Cypriot missing persons;
8. unanimously that it was not necessary to examine whether Articles 8 and 10 of the Convention had been violated in respect of the relatives of the Greek-Cypriot missing persons, having regard to the Court's conclusion under Article 3.
III. Alleged violations of the rights of displaced persons to respect for their homes and property.
H4
1. by 16 votes to one that there had been a continuing violation of Article 8 of the Convention by reason of the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus;
2. unanimously that, having regard to its finding of a continuing violation of Article 8 of the Convention, it was not necessary to examine whether there had been a further violation of that Article by reason of the alleged manipulation of the demographic and cultural environment of the Greek-Cypriot displaced persons' homes in northern Cyprus;
3. unanimously that the applicant Government's complaint under Article 8 of the Convention concerning the interference with the right to respect for family life on account of the refusal to allow the return of any Greek- Cypriot displaced persons to their homes in northern Cyprus fell to be considered in the context of their allegations in respect of the living conditions of the Karpas Greek Cypriots;
4. by 16 votes to one that there had been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus were being denied access to *733 and control, use and enjoyment of their property as well as any compensation for the interference with their property rights;
5. by 16 votes to one that there had been a violation of Article 13 of the Convention by reason of the failure to provide to Greek Cypriots not residing in northern Cyprus any remedies to contest interferences with their rights under Article 8 of the Convention and Article 1 of Protocol No. 1;
6. unanimously that it was not necessary to examine whether in this case there had been a violation of Article 14 of the Convention taken in conjunction with Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1, by virtue of the alleged discriminatory treatment of Greek Cypriots not residing in northern Cyprus as regards their rights to respect for their homes, to the peaceful enjoyment of their possessions and to an effective remedy;
7. unanimously that it was not necessary to examine whether the alleged discriminatory treatment of Greek-Cypriot displaced persons also gave rise to a breach of Article 3 of the Convention, having regard to its conclusions under Articles 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1
8. unanimously that it was not necessary to examine separately the applicant Government's complaints under Articles 17 and 18 of the Convention, having regard to its findings under Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1.
IV. Alleged violations arising out of the living conditions of Greek Cypriots in northern Cyprus.
H5
1. by 16 votes to one that no violation of Article 2 of the Convention had been established by reason of an alleged practice of denying access to medical services to Greek Cypriots and Maronites living in northern Cyprus;
2. by 16 votes to one that there had been no violation of Article 5 of the Convention;
3. by 11 votes to six that no violation of Article 6 of the Convention had been established in respect of Greek Cypriots living in northern Cyprus by reason of an alleged practice of denying them a fair hearing by an independent and impartial tribunal in the determination of their civil rights and obligations;
4. by 16 votes to one that there had been a violation of Article 9 of the Convention in respect of Greek Cypriots living in northern Cyprus;
5. unanimously that no violation of Article 9 of the Convention had been established in respect of Maronites living in northern Cyprus;
6. by 16 votes to one that there had been a violation of Article 10 of the Convention in respect of Greek Cypriots living in northern Cyprus in so far as school-books destined for use in their primary school were subject to excessive measures of censorship;
7. unanimously that no violation of Article 11 of the Convention had been established by reason of an alleged practice of denying Greek Cypriots living in northern Cyprus the right to freedom of association;
8. unanimously that the applicant Government's complaint under Article 8 of the Convention in respect of an alleged practice of restricting the participation of Greek Cypriots living in northern Cyprus in bi-communal or inter-communal events fell to be considered in the context of the global assessment of whether or not there had been a violation of that Article;
9. by 16 votes to one that there had been a continuing violation of Article 1 of Protocol No. 1 in respect of Greek Cypriots living in northern Cyprus in that their right to the peaceful enjoyment of *734 their possessions was not secured in case of their permanent departure from that territory and in that, in case of death, inheritance rights of relatives living in southern Cyprus were not recognized;
10. unanimously that no violation of Article 1 of Protocol No. 1 had been established by virtue of an alleged practice of failing to protect the property of Greek Cypriots living in northern Cyprus against interferences by private persons;
11. by 16 votes to one that there had 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;
12. by 16 votes to one that, from an overall standpoint, there had been a violation of the right of Greek Cypriots living in northern Cyprus to respect for their private and family life and to respect for their home, as guaranteed by Article 8 of the Convention;
13. unanimously that no violation of Article 8 of the Convention had been established by reason of an alleged practice of interference with the right of Greek Cypriots living in northern Cyprus to respect for their correspondence;
14. unanimously that it was not necessary to examine separately the applicant Government's complaint under Article 8 of the Convention concerning the effect of the respondent State's alleged colonization policy on the demographic and cultural environment of the Greek Cypriots' homes, having regard to its overall assessment of the latter population's living conditions under that Article;
15. by 16 votes to one that there had 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;
16. unanimously that it was not necessary to examine whether there had been a violation of Article 14 of the Convention taken in conjunction with Article 3 in respect of Greek Cypriots living in northern Cyprus, having regard to its finding under Article 3;
17. by 14 votes to three that, having regard to the particular circumstances of this case, it was not necessary to examine whether there had been a breach of Article 14 of the Convention taken in conjunction with the other relevant Articles;
18. by 11 votes to six that no violation of Article 13 of the Convention had been established by reason of the alleged absence of remedies in respect of interferences by private persons with the rights of Greek Cypriots living in northern Cyprus under Article 8 of the Convention and Article 1 of Protocol No. 1;
19. by 16 votes to one that there had been a violation of Article 13 of the Convention by reason of the absence, as a matter of practice, of remedies in respect of interferences by the authorities with the rights of Greek Cypriots living in northern Cyprus under Articles 3, 8, 9 and 10 of the Convention and Articles 1 and 2 of Protocol No. 1.
V. Alleged violation of the right of displaced Greek Cypriots to hold elections.
H6 Unanimously that it was not necessary to examine whether the facts disclosed a violation of the right of displaced Greek Cypriots to hold free elections, as guaranteed by Article 3 of Protocol No. 1.
*735 VI. Alleged violations in respect of the rights of Turkish Cypriots, including members of the gypsy community, living in northern Cyprus.
H7
1. unanimously that it declined jurisdiction to examine those aspects of the applicant Government's complaints under Articles 6, 8, 10 and 11 of the Convention in respect of political opponents of the regime in the TRNC as well as their complaints under Articles 1 and 2 of Protocol No. 1 in respect of the Turkish-Cypriot Gypsy community, which were held by the Commission not to be within the scope of the case as declared admissible;
2. unanimously that no violation of the rights of Turkish Cypriots who are opponents of the regime in northern Cyprus under Articles 3, 5, 8, 10 and 11 of the Convention had been established by reason of an alleged administrative practice, including an alleged practice of failing to protect their rights under these Articles;
3. by 16 votes to one that no violation of the rights of members of the Turkish-Cypriot Gypsy community under Articles 3, 5, 8 and 14 of the Convention had been established by reason of an alleged administrative practice, including an alleged practice of failing to protect their rights under these Articles;
4. by 16 votes to one that there had been a violation of Article 6 of the Convention on account of the legislative practice of authorizing the trial of civilians by military courts;
5. unanimously that no violation of Article 10 of the Convention had been established by reason of an alleged practice of restricting the right of Turkish Cypriots living in northern Cyprus to receive information from the Greek-language press;
6. unanimously that no violation of Article 11 of the Convention had been established by reason of an alleged practice of interference with the right to freedom of association or assembly of Turkish Cypriots living in northern Cyprus;
7. unanimously that no violation of Article 1 of Protocol No. 1 had been established by reason of an alleged administrative practice, including an alleged practice of failing to secure enjoyment of their possessions in southern Cyprus to Turkish Cypriots living in northern Cyprus;
8. by 11 votes to six that no violation of Article 13 of the Convention had been established by reason of an alleged practice of failing to secure effective remedies to Turkish Cypriots living in northern Cyprus.
VII. Alleged violations of other Articles of the Convention.
H8 Unanimously that it was not necessary to examine separately the applicant Government's complaints under Articles 1, 17, 18 and former Article 32(4) of the Convention.
VIII. The issue of Article 41 of the Convention.
H9 Unanimously that the issue of the possible application of Article 41 of the Convention was not ready for decision and consideration thereof be adjourned.
1. Preliminary Objection; admissibility; locus standi; "jurisdiction"; exhaustion of domestic remedies; scope of case; six month rule.
H10 (a) In the proceedings before the Commission, the respondent Government raised several objections to the admissibility of the application. The Commission, at the admissibility stage of the proceedings, considered these objections under the following heads: (1) alleged lack of jurisdiction and responsibility of the respondent State in respect of the acts complained of; (2) alleged identity of the present application with the previous applications *736 introduced by the applicant Government; (3) alleged abuse of process by the applicant Government; (4) alleged special agreement between the respective Governments to settle the dispute by means of other international procedures; (5) alleged failure of aggrieved persons concerned by the application to exhaust domestic remedies; and (6) alleged failure by the applicant Government to comply with the six-month rule.
H11 (b) The Commission, in its admissibility decision of 28 June 1996, rejected the respondent Government's challenges under the third and fourth heads and decided to reserve to the merits stage the issues raised under the remaining heads. [56-57]
H12 (c) The objections which Turkey relied on before the Commission have not been re-submitted for consideration because the respondent Government failed to participate in the written and oral proceedings before the Court. Although the Court could refuse to entertain the respondent Government's pleas of inadmissibility, it nevertheless considers it appropriate to examine them in the form of preliminary issues, especially when the applicant Government has devoted a substantial part of its written and oral pleadings to these issues, including their relevance to the merits of their various allegations. [58]
H13 (b) The respondent Government's claim cannot be sustained: In line with Loizidou v. Turkey, the Court notes that the international community does not recognize the Turkish Republic of Northern Cyprus ("the TRNC") as a State under international law. The Republic of Cyprus has remained the sole legitimate government of Cyprus and on that account her locus standi as the government of a High Contracting Party cannot therefore be in doubt.
H14 (c) The Court concludes that the applicant Government has locus standi to bring an application under former Article 24 of the Convention against the respondent State. [61-62]
H15 (d) Without prejudice to the question of whether and in what circumstances the Court has jurisdiction to examine a case which was the subject of a decision taken by the Committee of Ministers pursuant to former Article 32 of the Convention, it must be noted that, in respect of the previous inter-State applications, neither Resolution DH (79) 1 nor Resolution DH (92) 12 resulted in a "decision" within the meaning of Article 32(1). The respondent Government accepted in her pleadings on their preliminary objections in Loizidou v. Turkey that the Committee of Ministers did not endorse the Commission's findings in the previous inter-State cases.
H16 (e) The Court accordingly concludes that the applicant Government has a legitimate legal interest in having the merits of the instant application examined by the Court. [67-68]
H17 (f) In Loizidou v. Turkey, the respondent State denied that it had jurisdiction in northern Cyprus and to that end invoked arguments similar to those raised before the Commission in the instant case. The Court rejected those arguments in its Loizidou v. Turkey with reference to the imputability principles developed in its preceding judgment on the respondent State's preliminary objections to the admissibility of the case. Having effective overall control over northern Cyprus, its responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of 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 *737 "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. [75] & [77]
H18 (g) The Court must have regard to the special character of the Convention as an instrument of European public order (ordre public) for the protection of individual human beings and its mission, as set out in Article 19 of the Convention, "to ensure the observance of the engagements undertaken by the High Contracting Parties". Having regard to the applicant Government's continuing inability to exercise their Convention obligations in northern Cyprus, any other finding would result in a regrettable vacuum in the system of human- rights protection in the territory in question by removing from individuals there the benefit of the Convention's fundamental safeguards and their right to call a High Contracting Party to account for violation of their rights in proceedings before the Court. [78]
H19 (h) Subject to subsequent considerations on the issue of private parties, the matters complained of in the instant application fall within the "jurisdiction" of Turkey within the meaning of Article 1 of the Convention and therefore entail the respondent State's responsibility under the Convention. [80]
H20 (i) As to the applicant Government's further claim that this "jurisdiction" must also be taken to extend to the acts of private parties in northern Cyprus who violate the rights of Greek Cypriots or Turkish Cypriots living there, the Court considers it appropriate to revert to this matter when examining the merits of the specific complaints raised by the applicant Government in this context. The acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage that State's responsibility under the Convention. Any different conclusion would be at variance with the obligation contained in Article 1 of the Convention. [81]
H21 (j) The Commission avoided making general statements on the validity of the acts of the TRNC authorities from the standpoint of international law and confined its considerations to the Convention-specific issue of the application of the exhaustion requirement contained in former Article 26 of the Convention in the context of the "constitutional" and "legal" system established within the TRNC. The Court endorses this approach: although in Loizidou v. Turkey the Court refused to attribute legal validity to such provisions as "Article 159 of the TRNC Constitution", it did so with respect to the Convention. This conclusion was all the more compelling since the Article in question purported to vest in the TRNC authorities, irreversibly and without payment of any compensation, the applicant's rights to her land in northern Cyprus. [89]
H22 (k) Without in any way putting in doubt either the view adopted by the international community regarding the establishment of the TRNC or the fact that the Government of the Republic of Cyprus remains the sole legitimate government of Cyprus, it cannot be excluded that former Article 26 of the Convention requires that remedies made available to individuals generally in northern Cyprus to enable them to secure redress for violations of their Convention rights have to be tested. The developments which *738 have occurred in northern Cyprus since 1974 can be characterized in terms of the exercise of de facto authority by the TRNC. International law recognizes the legitimacy of certain legal arrangements and transactions in situations such as the one obtaining in the TRNC, for instance as regards the registration of births, deaths, and marriages, "the effects of which can only be ignored to the detriment of the inhabitants of the [t]erritory". [90]
H23 (l) Despite the reservations the Greek-Cypriot community in northern Cyprus may harbor regarding the TRNC courts, the absence of such institutions would work to the detriment of the members of that community. Moreover, recognizing the effectiveness of those bodies for the limited purpose of protecting the rights of the territory's inhabitants does not, in the Court's view and following the Advisory Opinion of the International Court of Justice, legitimize the TRNC in any way. [92]
H24 (m) The Court cannot simply disregard the judicial organs set up by the TRNC in so far as the relationships at issue in the present case are concerned. It is in the very interest of the inhabitants of the TRNC, including Greek Cypriots, to be able to seek the protection of such organs; and if the TRNC authorities had not established them, this could rightly be considered to run counter to the Convention. Accordingly, the inhabitants of the territory may be required to exhaust these remedies, unless their inexistence or ineffectiveness can be proved--a point to be examined on a case-by-case basis. [98]
H25 (n) The Court will thus examine, in respect of each of the violations alleged by the applicant Government, whether the persons concerned could have availed themselves of effective remedies to secure redress. It will have regard in particular to whether the existence of any remedies is sufficiently certain not only in theory but in practice and whether there are any special circumstances which absolve the persons concerned by the instant application from the obligation to exhaust the remedies which, as alleged by the respondent Government before the Commission, were at their disposal. In this latter respect, the exhaustion rule is inapplicable where an administrative practice, namely a repetition of acts incompatible with the Convention and official tolerance by the State authorities, has been shown to exist and is of such a nature as to make proceedings futile or ineffective. [99]
H26 (o) In view of the above considerations, it is not necessary at this stage to examine the applicant Government's broader criticism of the court and administrative system in the TRNC under Articles 6 and 13 of the Convention. [100]
H27 (p) The applicant Government's reliance on the illegality of the TRNC courts seems to contradict the assertion made by that same Government that Turkey is responsible for the violations alleged in northern Cyprus--an assertion which has been accepted by the Court. It appears indeed difficult to admit that a State is made responsible for the acts occurring in a territory unlawfully occupied and administered by it and to deny that State the opportunity to try to avoid such responsibility by correcting the wrongs imputable to it in its courts. To allow that opportunity to the respondent State in the framework of the present application in no way amounts to an indirect legitimization of a regime which is unlawful under international law. [101]
H28 (q) For the purposes of former Article 26 of the Convention, remedies *739 available in the TRNC may be regarded as "domestic remedies" of the respondent State and that the question of their effectiveness is to be considered in the specific circumstances where it arises. [102]
H29 (r) In so far as the applicant Government has alleged continuing violations resulting from administrative practices, the Court will disregard situations which ended six months before the date on which the application was introduced, namely 22 November 1994. Therefore, practices which are shown to have ended before 22 May 1994 fall outside the scope of its examination. [104]
2. The establishment of the facts and assessment of the evidence.
H30 (a) The Commission had regard to written as well as oral evidence in order to clarify and establish the facts underlying the allegations advanced by the applicant Government. The Commission further relied on the findings contained in its 1976 and 1983 reports as well as documentary materials obtained of its own motion and, as a principal source, materials submitted by the parties. As to the written evidence of the parties, the Commission admitted to the case file all written submissions made by both Governments at the admissibility and merits stages up until 14 September 1998. The Commission's strict adherence to this deadline resulted in its decision of 5 March 1999 to reject the respondent Government's request to have admitted to the file an aide-mémoire on "measures relating to the living conditions of Greek Cypriots and Maronites in the Turkish Republic of Northern Cyprus": this was the only document excluded by the Commission, all other materials having been admitted in accordance with respect for the requirements of procedural equality between the parties. [105]
H31 (b) Where it was impossible to guarantee full respect for the principle of equality of arms in the proceedings before the Commission, the Commission took this factor into account in its assessment of the evidential value of the material at issue. Although the Court must scrutinize any objections raised by the applicant Government to the Commission's findings of fact and its assessment of the evidence, as regards documentary materials, both parties were given a full opportunity to comment on all such materials in their pleadings before the Court, including the above-mentioned aide-mémoire, which was admitted to the file by virtue of a procedural decision taken by the Court on 24 November 1999. [106]
H32 (c) As regards oral evidence, the Commission appointed three delegates to hear evidence on the Convention issues relating to the general living conditions of the so-called "enclaved" Greek Cypriots and the situation of Turkish Cypriots living in northern Cyprus, in particular political dissidents and members of the Turkish-Cypriot Gypsy minority. [107]
H33 (d) The Court observes that the Commission delegates took all necessary steps to ensure that the taking of oral evidence from unidentified witnesses complied with the fairness requirements of Article 6 of the Convention. [108]
H34 (e) In so far as the respondent Government was critical of the arrangements drawn up by the delegates to hear the evidence of the unidentified witnesses proposed by the applicant Government, those arrangements were consistent with the screening procedure requested by the respondent State itself to ensure the security of unnamed witnesses in an earlier and unrelated case. Therefore, the handicaps alleged by the *740 respondent Government in the proceedings before the Commission were sufficiently counterbalanced by the procedures followed by the Commission. The Commission, in its assessment of the evidence given by unidentified witnesses, adopted a cautious approach by ascertaining its evidential value with reference to the particular nature of each of the witnesses' testimony, and its findings were not based either solely or to a decisive extent on anonymous witness statements. [109]
H35 (f) The applicant Government, in the proceedings before the Court, has not contested the modalities used for hearing the evidence of unidentified witnesses but did dispute the limits placed by the delegates on the number of witnesses who could be heard by them. The Court does not consider that the Commission's approach can be criticized from the standpoint of procedural fairness: first, the delegates heard the testimony of five witnesses proposed by the applicant Government and there is no reason to doubt that they were specifically selected in accordance with the applicant Government's perception of the importance of their testimony; secondly, the effective discharge of the Commission's fact-finding role necessarily obliged it to regulate the procedure for the taking of oral evidence, having regard to constraints of time and to its own assessment of the relevance of additional witness testimony. [110]
H36 (g) For these reasons, the Court rejects the applicant Government's criticism in this respect. [111]
H37 (h) In its assessment of the evidence in relation to the various complaints declared admissible, the Commission applied the standard of proof "beyond reasonable doubt", it being noted that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. [112]
H38 (i) The Court endorses the application of this standard, all the more so since it was first articulated in the context of a previous inter-State case and has, since the date of the adoption of the judgment in that case, become part of the Court's established case law. Moreover, as regards the establishment of the existence of administrative practices, the Court does not rely on the concept that the burden of proof is borne by one or the other of the two Governments concerned. Rather, it must examine all the material before it, irrespective of its origin. [113]
H39 (j) The applicant Government has disputed the appropriateness of applying the above-mentioned standard of proof with respect to her allegations that the violations of the Convention of which she complains result from administrative practices on the part of the respondent State. In their submission, the Commission erred in not having regard to the existence of "substantial evidence" of administrative practices and its reliance on the "beyond reasonable doubt" standard prevented it from reaching the correct conclusion on the facts as regards a number of complaints. For the applicant Government, the standard of proof applied by the Commission is at variance with the approach followed by the Court in Ireland v. United Kingdom, an approach which, they maintain, had already been anticipated in the Commission's decision in the "Greek Case". [114]
H40 (k) In Ireland v. United Kingdom, the Court rejected the Irish Government's submission that the "beyond reasonable doubt" *741 standard of proof was an excessively rigid standard for establishing the existence of an administrative practice of violation of Article 3 of the Convention. The "beyond reasonable doubt" standard was applied in that case in order to determine whether the evidence bore out the allegation of a practice of violation. The Court will accordingly assess the facts as found by the Commission with reference to this standard. Furthermore, the Court will apply the definition of an administrative practice incompatible with the Convention set out in Ireland v. United Kingdom, namely 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. [115]
H41 (l) In the area of the exhaustion of domestic remedies, there is a distribution of the burden of proof. In the context of the instant case, it is incumbent on the respondent 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 aggrieved individuals' complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant Government to establish that the remedy advanced by the respondent Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving the persons concerned from the requirement of exhausting that remedy. One such reason may be constituted by the national authorities remaining totally passive in the face of serious allegations of misconduct or infliction of harm by State agents, for example where they have failed to undertake investigations or offer assistance. In such circumstances it can be said that the burden of proof shifts once again, so that it becomes incumbent on the respondent Government to show what the authorities have done in response to the scale and seriousness of the matters complained of. [116]
H42 (m) Having regard to the above considerations, the Court recalls its settled case law to the effect that under the Convention system prior to the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the establishment and verification of the facts was primarily a matter for the Commission. While the Court is not bound by the Commission's findings of fact and remains free to make its own assessment in the light of all the material before it, it is however only in exceptional circumstances that it will exercise its powers in this area. [117]
H43 (n) The applicant Government has impugned the findings of the Commission as regards certain of their allegations, considering them to be against the weight of the evidence adduced. The Court proposes to address the applicant Government's challenges when considering the merits of their allegations. [118]
3. Alleged violations of the rights of Greek-Cypriot missing persons and their relatives (Arts 2, 4, 5, 6, 8, 13, 14, 17).
A. Missing Persons
H44 (a) Cyprus has not contested the facts as found by the Commission. *742 The Court does not consider it appropriate to estimate the number of persons who fall into the category of "missing persons". Figures are communicated by the applicant Government to the United Nations Committee on Missing Persons ("CMP") and revised in accordance with the most recent information which becomes available. [120]
H45 (b) The Court shares the Commission's concern to limit its inquiry to ascertaining the extent, if any, to which the authorities of the respondent State have clarified the fate or whereabouts of the missing persons. It is not its task to make findings on the evidence on whether any of these persons are alive or dead or have been killed in circumstances which engage the liability of the respondent State. [120-121]
H46 (c) Cyprus contends first and foremost that the missing persons must be presumed to be still alive unless there is clear evidence to the contrary. Although the evidence adduced before the Commission confirms a very high incidence of military and civilian deaths during the military operations of July and August 1974, the Court cannot speculate as to whether any of the missing persons have in fact been killed by either the Turkish forces or Turkish-Cypriot paramilitaries into whose hands they may have fallen. Statements by the head of the TRNC, Mr Denktas and others in the media are insufficient to establish the respondent State's liability for the deaths of any of the missing persons. It is mere speculation that any of these persons were killed in the circumstances described in these accounts. [129]
H47 (d) The evidence given of killings carried out directly by Turkish soldiers or with their connivance relates to a period which is outside the scope of the present application. Indeed, the Commission was unable to establish on the facts whether any of the missing persons were killed in circumstances for which the respondent State can be held responsible under the substantive limb of Article 2 of the Convention. The Court cannot therefore accept the applicant Government's allegations that the facts disclose a substantive violation of Article 2 of the Convention in respect of any of the missing persons. [130]
H48 (e) The applicant Government's allegations must, however, be examined in the context of a Contracting State's procedural obligation under Article 2 to protect the right to life. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 to "secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention", requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by agents of the State or by non- State agents. [131]
H49 (f) The Court recalls that there is no proof that any of the missing persons have been unlawfully killed. However, in its opinion, and of relevance to the instant case, the above-mentioned procedural obligation also arises upon proof of an arguable claim that an individual, who was last seen in the custody of agents of the State, subsequently disappeared in a context which may be considered life-threatening. [132]
H50 (g) The evidence bears out the applicant Government's claim that many persons now missing were detained either by Turkish or Turkish-Cypriot forces. Their detention occurred at a time when *743 the conduct of military operations was accompanied by arrests and killings on a large scale. The Commission correctly described the situation as life-threatening. [133]
H51 (h) The Court notes that the authorities of the respondent State have never undertaken any investigation into the claims made by the relatives of the missing persons that the latter had disappeared after being detained in circumstances in which there was real cause to fear for their welfare. [135]
H52 (i) The Court agrees with the applicant Government that the respondent State's procedural obligation at issue cannot be discharged through its contribution to the investigatory work of the CMP. The CMP's procedures are undoubtedly useful for the humanitarian purpose for which they were established, they are not of themselves sufficient to meet the standard of an effective investigation required by Article 2 of the Convention, especially in view of the narrow scope of that body's investigations. [135]
H53 (j) The Court concludes that there has been a continuing violation of Article 2 on account of the failure of the authorities of the respondent State to conduct an effective investigation aimed at clarifying the whereabouts and fate of Greek-Cypriot missing persons who disappeared in life-threatening circumstances. [136]
H54 (k) The Court agrees with the Commission's finding and has accepted the facts as established by the Commission. It follows that no breach of Article 4 of the Convention has been established. [140-141]
H55 (l) The unacknowledged detention of an individual is a complete negation of the guarantees of liberty and security of the person contained in Article 5 of the Convention and a most grave violation of that Article. Having assumed control over a given individual, it is incumbent on the authorities to account for his or her whereabouts. It is for this reason that Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt and effective investigation into an arguable claim that a person has been taken into custody and has not been seen since. [147]
H56 (m) The Court refers to the irrefutable evidence that Greek Cypriots were held by Turkish or Turkish-Cypriot forces. There is no indication of any records having been kept of either the identities of those detained or the dates or location of their detention. From a humanitarian point of view, this failing cannot be excused with reference either to the fighting which took place at the relevant time or to the overall confused and tense state of affairs. Seen in terms of Article 5 of the Convention, the absence of such information has made it impossible to allay the concerns of the relatives of the missing persons about the latter=s fate. Notwithstanding the impossibility of naming those who were taken into custody, the respondent State should have made other inquiries with a view to accounting for the disappearances. As noted earlier, there has been no official reaction to new evidence that Greek-Cypriot missing persons were taken into Turkish custody. [148]
H57 (n) The Court has addressed this allegation from the angle of the procedural requirements of Article 5 of the Convention and the obligations devolving on the respondent State as a Contracting Party to the Convention. [149]
H58 (o) The Court concludes that, during the period under consideration, *744 there has been a continuing violation of Article 5 of the Convention by virtue of the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts and fate of the missing Greek- Cypriot persons in respect of whom there is an arguable claim that they were in custody at the time they disappeared. [150]
H59 (p) However, it has not been established that during the period under consideration any of the Greek-Cypriot missing persons were actually being detained by the Turkish-Cypriot authorities. [151]
H60 (q) At the merits stage of the proceedings before the Commission, the applicant Government submitted that the facts of the case disclosed violations of the above-mentioned Articles. The Commission concluded that these complaints were outside the scope of its admissibility decision and on that account could not be examined. [152]
H61 (r) The Court further observes that Cyprus has not pursued these complaints either in the memorial or at the public hearing; nor sought to dispute the Commission's interpretation of the scope of its admissibility decision. In these circumstances, there is no reason to consider either its jurisdiction to examine these complaints or their merits. It is therefore that not necessary to examine the applicant Government's complaints under Articles 3, 6, 8, 13, 14 and 17 of the Convention in respect of the Greek-Cypriot missing persons. [153]
B. Greek-Cypriot missing persons' relatives.
H62 (a) The question whether a family member of a "disappeared person" is a victim of treatment contrary to Article 3 will depend on the existence of special factors which give the suffering of the person concerned a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human-rights violation. Relevant elements will include the proximity of the family tie--in that context, a certain weight will attach to the parent-child bond --, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The essence of such a violation does not so much lie in the fact of the "disappearance" of the family member but rather in the authorities' reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities' conduct. [156]
H63 (b) The authorities of the respondent State have failed to undertake any investigation into the circumstances surrounding the disappearance of the missing persons. In the absence of any information about their fate, the relatives of persons who went missing during the events of July and August 1974 were condemned to live in a prolonged state of acute anxiety which cannot be said to have been erased with the passage of time. The Court does not consider, in the circumstances of this case, that the fact that certain relatives may not have actually witnessed the detention of family members or complained about such to the authorities of the respondent State deprives them of victim status under Article 3. It recalls that the military operation resulted in a considerable loss of life, large-scale arrests and detentions and enforced separation of *745 families. The overall context must still be vivid in the minds of the relatives of persons whose fate has never been accounted for by the authorities. They endure the agony of not knowing whether family members were killed in the conflict or are still in detention or, if detained, have since died. The fact that a very substantial number of Greek Cypriots had to seek refuge in the south coupled with the continuing division of Cyprus must be considered to constitute very serious obstacles to their quest for information. The provision of such information is the responsibility of the authorities of the respondent State. This responsibility has not been discharged. For the Court, the silence of the authorities of the respondent State in the face of the real concerns of the relatives of the missing persons attains a level of severity which can only be categorized as inhuman treatment within the meaning of Article 3. [157]
H64 (c) The Court concludes that, during the period under consideration, there has been a continuing violation of Article 3 of the Convention in respect of the relatives of the Greek-Cypriot missing persons. [158]
H65 (d) In view of its conclusion under Article 3, with its emphasis on the effect which the lack of information had on the families of missing persons, the Court finds it unnecessary to examine separately the complaints which the applicant Government have formulated in terms of Articles 8 and 10 of the Convention. [161]
4. Alleged violations of the rights of displaced persons to respect for their home and property (Arts.8, 13, 14, 17, 18 and Art.1 of Protocol No.1).
H66 (a) There are no exceptional circumstances which would lead the Court to take a different view of the facts established by the Commission. Further, the respondent Government did not contest the accuracy of several allegations of fact made by the applicant Government in the proceedings before the Commission. The Court will accordingly examine the merits of the applicant Government's complaints with reference to the facts established by the Commission. [163-4]
H67 (b) In the proceedings before the Commission the respondent Government did not dispute the applicant Government's assertion that it was not possible for displaced Greek Cypriots to return to their homes in the north. It was their contention that this situation would remain unchanged pending agreement on an overall political solution to the Cypriot question. In these circumstances the Court, like the Commission, considers that the issue of whether the aggrieved persons could have been expected to avail themselves of domestic remedies in the TRNC does not arise. [171]
H68 (c) The official policy of the TRNC authorities to deny the right of the displaced persons to return to their homes is reinforced by the very tight restrictions operated by the same authorities on visits to the north by Greek Cypriots living in the south. Accordingly, not only are displaced persons unable to apply to the authorities to reoccupy the homes which they left behind, they are physically prevented from even visiting them. [172]
H69 (d) The situation impugned by the applicant Government has existed since the events of 1974 in northern Cyprus. It would appear that it has never been reflected in "legislation" and is enforced as a matter of policy in furtherance of a bi-zonal arrangement designed to minimize the risk of conflict which the intermingling of the Greek and Turkish-Cypriot communities in the north might *746 engender. That bi-zonal arrangement is being pursued within the framework of the inter-communal talks sponsored by the United Nations Secretary-General. [173]
H70 (e) The Court observes: first, the complete denial of the right of displaced persons to respect for their homes has no basis in law within the meaning of Article 8(2) of the Convention; secondly, the inter-communal talks cannot be invoked in order to legitimate a violation of the Convention; thirdly, the violation at issue has endured as a matter of policy since 1974 and must be considered continuing. [174]
H71 (f) In of these circumstances, there has been a continuing violation of Article 8 of the Convention by reason of the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus. [175]
H72 (g) As to the further allegation concerning the alleged manipulation of the demographic and cultural environment of the displaced persons' homes, the Court considers that it is not necessary to examine this complaint in view of its above finding of a continuing violation of Article 8 of the Convention. [176]
H73 (h) Furthermore, it is appropriate to examine the applicant Government's submissions on the issue of family separation in the context of their allegations in respect of the living conditions of the Karpas Greek Cypriots. [177]
H74 (i) The Court agrees with the Commission's finding that at least since June 1989 the TRNC authorities no longer recognized any ownership rights of Greek Cypriots in respect of their properties in northern Cyprus. This purported deprivation of the property at issue was embodied in a constitutional provision. The legality of the interference with the displaced persons' property is unassailable before the TRNC courts. Accordingly, there is no requirement for the persons concerned to use domestic remedies to secure redress for their complaints. [184]
H75 (j) The essence of the applicant Government's complaints is not that there has been a formal and unlawful expropriation of the property of the displaced persons but that these persons, because of the continuing denial of access to their property, have lost all control over, as well as possibilities to enjoy, their land. The physical exclusion of Greek-Cypriot persons from the territory of northern Cyprus is enforced as a matter of TRNC policy or practice. The exhaustion requirement does not accordingly apply in these circumstances. [185]
H76 (k) In Loizidou v. Turkey that particular applicant could not be deemed to have lost title to her property by operation of "Article 159 of the TRNC Constitution", a provision which it held to be invalid for the purposes of the Convention. This conclusion is unaffected by the operation of "Law No. 52/1995". Although the latter was not invoked before the Court in Loizidou v. Turkey cannot be attributed any more legal validity than its parent "Article 159" which it purports to implement. [186]
H77 (l) The reasoning and conclusion in Loizidou v. Turkey apply with equal force to displaced Greek Cypriots who, like Mrs. Loizidou, are unable to have access to their property in northern Cyprus by reason of the restrictions placed by the TRNC authorities on their physical access to that property. The continuing and total denial of access to their property is a clear interference with the right of the displaced Greek Cypriots to the peaceful enjoyment of *747 possessions within the meaning of the first sentence of Article 1 of Protocol No. 1. It further notes that, as regards the purported expropriation, no compensation has been paid to the displaced persons in respect of the interferences which they have suffered and continue to suffer in respect of their property rights. [187]
H78 (m) The Court notes that the respondent Government, in the proceedings before the Commission, sought to justify the interference with reference to the inter-communal talks and to the need to rehouse displaced Turkish-Cypriot refugees. However, similar pleas were advanced by the respondent Government in Loizidou v. Turkey and were rejected. The Court sees no reason in the instant case to reconsider those justifications. [188]
H79 (n) For the above reasons the Court concludes that there has been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus are being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights. [189]
H80 (o) The Court notes that in the proceedings before the Commission the respondent Government pleaded that, pending the elaboration of an agreed political solution to the overall Cyprus problem, there could be no question of a right of displaced persons either to return to the homes and properties which they had left in northern Cyprus or to lay claim to any of their immovable property vested in the TRNC authorities by virtue of "Article 159 of the TRNC Constitution" and allocated to Turkish Cypriots with full title deeds in accordance with implementing "Law No. 52/1995". The respondent Government did not contend before the Commission that displaced persons could avail themselves of local remedies to contest this policy of interference with their rights. Indeed, the Court considers that it would be at variance with the declared policy to provide for any challenge to its application. The Court further recalls in this connection that, as regards the violations alleged under Article 8 of the Convention and Article 1 of Protocol No. 1, it concluded that no issue arose in respect of the exhaustion requirement. [193]
H81 (p) For these reasons, there has been a violation of Article 13 of the Convention by reason of the respondent State's failure to provide to Greek Cypriots not residing in northern Cyprus any remedies to contest interferences with their rights under Article 8 of the Convention and Article 1 of Protocol No. 1. [194]
H82 (q) The Court considers that, in the circumstances of the present case, the applicant Government's complaints under this heading amount in effect to the same complaints, albeit seen from a different angle, as those which the Court has already considered in relation to Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1. It has found that those Articles have been violated. In considers that it is not necessary to examine whether in this case there has been a violation of Article 14 taken in conjunction with those Articles by virtue of the alleged discriminatory treatment of Greek Cypriots not residing in northern Cyprus as regards their rights to respect for their homes, to the peaceful enjoyment of their possessions and to an effective remedy. [199]
H83 (r) Bearing in mind its own conclusion on the applicant Government's complaints under Article 14 of the Convention as *748 well as its finding of a violation of Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1, it is not necessary to examine whether the facts alleged also give rise to a breach of Article 3 of the Convention. [203] & [206]
5. Alleged violations arising out of the living conditions of Greek Cypriots in northern Cyprus (Arts. 2, 3, 5, 6, 8, 9, 10, 11, 13, 14, Art.1 of Protocol No.1).
H84 (a) The Commission established the facts with reference, inter alia, to the oral evidence given by witnesses proposed by both sides. It further recalls that it rejected the applicant Government's criticism of the manner in which the delegates heard the evidence and reaffirms that the hearing of witnesses was organized in a way which respected the principle of procedural equality between both parties. It is to be noted in addition that, with a view to its establishment of the facts, the Commission made extensive use of documentary materials including the "Karpas Brief" on the living conditions of the enclaved Greek-Cypriot population in northern Cyprus and the UN Secretary-General's progress reports on the proposals for remedial action formulated in the Brief. [211]
H85 (b) The applicant Government accepts much of the Commission's findings of fact. Its criticism is directed at certain conclusions which the Commission drew from those facts. The Court does not consider that there are any exceptional circumstances which would lead it to depart from the facts as established by the Commission. It will, on the other hand, scrutinize carefully whether the facts bear out all of the applicant Government's complaints. It will do so using the "beyond reasonable doubt" standard of proof including with respect to the alleged existence of an administrative practice of violating the Convention rights relied on. [212]
H86 (c) As to the applicant Government's request that the Humanitarian Review dealing with the living conditions of the Maronite community in northern Cyprus be obtained, the respondent Government objected to the release of the document. It observes that, in any event, major aspects of the Review have been made public and have been included in the case file. [213]
H87 (d) The Commission, in its examination of the merits of the applicant Government's complaints, made an overall assessment of the living conditions of Greek Cypriots living in northern Cyprus from the standpoint of Articles 3, 8 and 14 of the Convention. At the same time, the Commission examined the merits of the complaints about the living conditions under the relevant Convention Article, while addressing in the framework of its global assessment the specific complaints raised by the applicant Government under Article 8 concerning interferences with the right of the Karpas Greek Cypriots to respect for their private and family life, home and correspondence. Having regard to the fact that the applicant Government's arguments on the latter aspects of Article 8 are interwoven with their broader submissions on the violation of that provision, the Court considers that it is appropriate to discuss those arguments in the context of the living conditions of the Karpas Greek Cypriots seen from the angle of Article 8. [214-5]
H88 *749 (e) An issue may arise under Article 2 of the Convention where it is shown that the authorities of a Contracting State put an individual's life at risk through the denial of health care which they have undertaken to make available to the population generally. Article 2(1) of the Convention enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. The Commission, however, was unable to establish on the evidence that the TRNC authorities deliberately withheld medical treatment from the population concerned or adopted a practice of delaying the processing of requests of patients to receive medical treatment in the south. During the period under consideration medical visits were indeed hampered on account of restrictions imposed by the TRNC authorities on the movement of the populations concerned and that in certain cases delays did occur. However, it has not been established that the lives of any patients were put in danger on account of delay in individual cases. Neither the Greek-Cypriot nor Maronite populations were prevented from availing themselves of medical services including hospitals in the north. The applicant Government is critical of the level of health care available in the north. However, the Court does not consider it necessary to examine in this case the extent to which Article 2 of the Convention may impose an obligation on a Contracting State to make available a certain standard of health care. [219]
H89 (f) The Court further observes that the difficulties which the Greek- Cypriot and Maronite communities experience in the area of health care under consideration essentially stem from the controls imposed on their freedom of movement. Those controls result from an administrative practice which is not amenable to challenge in the TRNC courts. On that account, the Court considers that the issue of non-exhaustion need not be examined. [220]
H90 (g) The Court concludes that no violation of Article 2 of the Convention has been established by virtue of an alleged practice of denying access to medical services to Greek Cypriots and Maronites living in northern Cyprus. [221]
H91 (h) The applicant Government has not claimed that any members of the enclaved Greek-Cypriot population were actually detained during the period under consideration. The complaint relates to the vulnerability of what is an aged and dwindling population to the threat of aggression and criminality and its overall sense of insecurity. However, the Court considers that these are matters which fall outside the scope of Article 5 of the Convention and are more appropriately addressed in the context of its overall assessment of the living conditions of the Karpas Greek Cypriots seen from the angle of the requirements of Article 8. For the above reason, the Court concludes that there has been no violation of Article 5 of the Convention. [226-7]
H92 (i) The applicant Government has confined its submissions under this head to the civil limb of Article 6 of the Convention. The first paragraph of Article 6 embodies the right of access to a court or tribunal in respect of disputes over civil rights or obligations which can be said, at least on arguable grounds, to be recognized under domestic law; it does not of itself guarantee any particular content for such rights and obligations in the substantive law of *750 the Contracting State. Furthermore, a court or tribunal is characterized in the substantive sense of the term by its judicial function, that is to say determining matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner. It must also satisfy a series of further requirements--independence, in particular of the executive; impartiality; duration of its members' terms of office; guarantees afforded by its procedure--several of which appear in the text of Article 6(1). [233]
H93 (j) It is the applicant Government's contention that the enclaved Greek- Cypriot population is prevented, as a matter of administrative practice, from asserting civil claims before the TRNC courts. However this assertion is at variance with the testimony of witnesses heard by the delegates, including witnesses proposed by the applicant Government. It is also contradicted by the written evidence adduced before the Commission. It is clear that Greek Cypriots living in the north have on occasion successfully taken court actions in defence of their property rights, and they are not barred for reasons of race, language or ethnic origin from using the local courts. The Commission accepted this on the facts and the Court does not dispute the Commission's conclusion. The applicant Government is required to show that the courts have been tried and found wanting. Absent this, it is being asked to speculate on the merits of their claim. [234]
H94 (k) This conclusion is not affected by the fact that certain matters which may weigh heavily on the daily lives of the enclaved Greek Cypriots are not amenable to challenge in the TRNC courts, for example restrictions on their freedom of movement or their right to bequeath property to family members in the south. However, in the Court's opinion those measures, whether embodied in policy or "legislation", are to be addressed from the standpoint of the effectiveness of remedies within the meaning of Article 13 of the Convention and their compatibility with other relevant substantive provisions of the Convention and its Protocols. The existence of such measures does not improve the applicant Government's case concerning the alleged administrative practice of violating Article 6. It recalls in this connection that the applicability of Article 6 is premised on the existence of an arguable cause of action in domestic law. [235]
H95 (l) As to the applicant Government's challenge to the very legality of the TRNC court system, the Court observes that they advanced similar arguments in the context of the preliminary issue concerning the requirement to exhaust domestic remedies in respect of the complaints covered by the instant application. The Court concluded that, notwithstanding the illegality of the TRNC under international law, it cannot be excluded that applicants may be required to take their grievances before, inter alia, the local courts with a view to seeking redress. It further pointed out in that connection that its primary concern in this respect was to ensure, from the standpoint of the Convention system, that dispute-resolution mechanisms which offer individuals the opportunity of access to justice for the purpose of remedying wrongs or asserting claims should be used. [236]
H96 (m) The Court observes that there is a functioning court system in the TRNC for the settlement of disputes relating to civil rights *751 and obligations defined in "domestic law" and which is available to the Greek- Cypriot population. The court system in its functioning and procedures reflects the judicial and common-law tradition of Cyprus. In its opinion, having regard to the fact that it is the "TRNC domestic law" which defines the substance of those rights and obligations for the benefit of the population as a whole it must follow that the domestic courts, set up by the "law" of the TRNC, are there for their enforcement. For the Court, and for the purposes of adjudicating on "civil rights and obligations" the local courts can be considered to be "established by law" with reference to the "constitutional and legal basis" on which they operate.
In the Court's opinion, any other conclusion would be to the detriment of the Greek-Cypriot community and would result in a denial of opportunity to individuals from that community to have an adjudication on a cause of action against a private or public body. It is to be noted in this connection that the evidence confirms that Greek Cypriots have taken successful court actions in defence of their civil rights. [237]
H97 (n) The Court's conclusion on this matter in no way amounts to a recognition, implied or otherwise, of the TRNC's claim to statehood. [238]
H98 (o) The Court notes that the applicant Government contests the independence and impartiality of the TRNC court system from the perspective of the local Greek-Cypriot population. However, the Commission rejected this claim on the facts. Having regard to its own assessment of the evidence, the Court accepts that conclusion. [239]
H99 (p) For the above reasons, the Court concludes that no violation of Article 6 of the Convention has been established in respect of Greek Cypriots living in northern Cyprus by reason of an alleged practice of denying them a fair hearing by an independent and impartial tribunal in the determination of their civil rights and obligations. [240]
H100 (q) 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. The Court concludes that there has been a violation of Article 9 of the Convention in respect of Greek Cypriots living in northern Cyprus. [245-6]
H101 (r) The applicant Government requested the Court 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. [246]
H102 (s) The Court confirms the Commission's finding that there has *752 been an interference with Article 10 on account of the practice adopted by the TRNC authorities of screening the contents of school-books before their distribution. It observes in this regard that, although the vetting procedure was designed to identify material which might pose a risk to inter-communal relations and was carried out in the context of confidence- building measures recommended by UNFICYP, the reality during the period under consideration was that a large number of school-books, no matter how innocuous their content, were unilaterally censored or rejected by the authorities. It is to be further noted that in the proceedings before the Commission the respondent Government failed to provide any justification for this form of wide-ranging censorship, which far exceeded the limits of confidence-building methods and amounted to a denial of the right to freedom of information. It does not appear that any remedies could have been taken to challenge the decisions of the TRNC authorities in this regard. [252]
H103 (t) The applicant Government considers that the Commission erred in its assessment of the evidence in respect of other categories of Greek-language books as well as newspapers. It has given careful consideration to the matters relied on by the applicant Government. However, the Court does not find that the evidence of individual cases of confiscation at the Ledra Palace check- point adduced before the Commission and highlighted by the applicant Government in its memorial and at the public hearing substantiate its allegations with reference to the "beyond reasonable doubt" standard of proof. [253]
H104 (u) The Court finds therefore that there has been a violation of Article 10 of the Convention in respect of Greek Cypriots living in northern Cyprus in so far as school-books destined for use in their primary school were subject, during the period under consideration, to excessive measures of censorship. [254]
H105 (v) The Commission found it impossible to conclude that during the period under consideration there was any interference by the TRNC authorities with attempts by Greek Cypriots to establish their own associations or mixed associations with Turkish Cypriots, or interference with the participation of Greek Cypriots in the activities of associations. The Court accepts the Commission's finding. Like the Commission, the Court also considers that its conclusion does not require it to examine whether any available domestic remedies have been exhausted in relation to these complaints. [260-1]
H106 (w) It is more appropriate to consider complaints in respect of an alleged practice of imposing restrictions on Greek Cypriots' participation in bi-communal or inter-communal events from the standpoint of Article 8 of the Convention. [262]
H107 (x) The Court concludes that no violation of Article 11 of the Convention has been established by reason of an alleged practice of denying Greek Cypriots living in northern Cyprus the right to freedom of association. [263]
H108 (y) As regards ownership of property in the north, the TRNC practice is not to make any distinction between displaced Greek-Cypriot owners and Karpas Greek-Cypriot owners who leave the TRNC permanently, with the result that the latter's immovable property is deemed to be "abandoned" and liable to reallocation to third parties in the TRNC. These facts disclose a *753 continuing violation of Article 1 of Protocol No. 1 in respect of Greek Cypriots living in northern Cyprus in that their right to the peaceful enjoyment of their possessions was not secured in case of their permanent departure from that territory. [269]
H109 (z) The evidence taken in respect of this complaint also strongly suggests that the property of Greek Cypriots in the north cannot be bequeathed by them on death and that it passes to the authorities as "abandoned" property. The respondent Government contended before the Commission that a court remedy could be invoked by an heir in order to assert inheritance rights to the property of a deceased Greek-Cypriot relative. The Court is not persuaded that legal proceedings would hold out any prospects of success, having regard to the respondent Government's view in the proceedings before the Commission that the property of deceased Greek Cypriots devolves on the authorities in accordance with the notion of "abandoned" property. It further notes that heirs living in the south would in fact be prevented from having physical access to any property which they inherited.
H110 (aa) Accordingly, Article 1 of Protocol No. 1 has also been breached in this respect, given that the inheritance rights of persons living in southern Cyprus in connection with the property in northern Cyprus of deceased Greek-Cypriot relatives were not recognized. [270]
H111 (bb) Concerning the applicant Government's allegation of a lack of protection for Greek Cypriots against acts of criminal damage to their property, the Court considers that the evidence adduced does not establish to the required standard that there is an administrative practice on the part of the TRNC authorities of condoning such acts or failing to investigate or prevent them. The "domestic law" of the TRNC provides for civil actions to be taken against trespassers and criminal complaints to be lodged against wrongdoers. The TRNC courts have on occasion found in favor of Greek-Cypriot litigants. It has not been established on the evidence that there was, during the period under consideration, an administrative practice of denying individuals from the enclaved population access to a court to vindicate their civil rights. [271]
H112 (cc) Accordingly, no violation of Article 1 of Protocol No. 1 has been established by reason of an alleged practice of failing to protect the property of Greek Cypriots living in northern Cyprus against interferences by private persons. [272]
H113 (dd) 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. Moreover, this provision does not specify the language in which education must be conducted in order that the right to education be respected. [277]
H114 (ee) However, the option available to Greek-Cypriot parents to *754 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 fulfill the obligation laid down in Article 2 of Protocol No. 1, having regard to the impact of that option on family life. [278]
H115 (ff) The applicant Government raises a further complaint in respect of primary-school education and the attitude of the TRNC authorities towards the filling of teaching posts. 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. [279]
H116 (gg) 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. [280]
H117 (hh) During the period under consideration, the right of the enclaved Greek Cypriots to family life was seriously impeded on account of the measures imposed by the TRNC authorities to limit family reunification. Thus, it was not disputed by the respondent Government in the proceedings before the Commission that Greek Cypriots who permanently left the northern part of Cyprus were not allowed to return even if they left a family behind. Although arrangements were introduced by the TRNC authorities to facilitate to a limited extent family visits in 1998, the period under consideration for the purposes of the instant application was characterized by severe limitations on the number and duration of such visits. Furthermore, during the reference period schoolchildren from northern Cyprus attending schools in the south were not allowed to return permanently to the north after having attained the age of 16 in the case of males and 18 in the case of females. Certain restrictions applied to the visits of those students to their parents in the north. [292]
H118 (ii) The imposition of these restrictions during the period under consideration as a matter of policy and in the absence of any legal basis resulted in the enforced separation of families and the denial to the Greek- Cypriot population in the north of the possibility of leading a normal family life. In the absence of any legal basis for these restrictions, the Court does not have to consider whether the interferences at issue can be justified with reference to the provisions of Article 8(2) of the Convention. For the same reason it does not have to consider either whether aggrieved individuals could have been expected to exhaust domestic remedies to challenge what in effect amounts to an *755 administrative practice of interference with the right to respect for family life. [293]
H119 (jj) As to the alleged interferences with the right of the enclaved Greek Cypriots to respect for their private life and home, the Court notes that the Commission found it established on the evidence that, during the period under consideration, this community was in effect monitored in respect of its contacts and movements, Greek Cypriots having to account to the authorities for even the most mundane of reasons for moving outside the confines of their villages. The surveillance effected by the authorities even extended to the physical presence of State agents in the homes of Greek Cypriots on the occasion of social or other visits paid by third parties, including family members. [294]
H120 (kk) Such highly intrusive and invasive acts violated the right of the Greek-Cypriot population in the Karpas region to respect for their private and family life. No legal basis for these acts has been adduced, less so any justification which could attract the provisions of Article 8(2) of the Convention. They were carried out as a matter of practice. As such, no question as to the exhaustion of local remedies arises in the circumstances. [295]
H121 (ll) The Court concludes that there has been a violation of the right of Greek Cypriots living in northern Cyprus to respect for their private and family life and to respect for their home, as guaranteed by Article 8 of the Convention. [296]
H122 (mm) No violation of Article 8 of the Convention has been established by reason of an alleged practice of interference with the right of Greek Cypriots living in northern Cyprus to respect for their correspondence. [297-8]
H123 (nn) The applicant Government does not dispute the Commission's decision to examine globally the living conditions of Greek Cypriots in northern Cyprus from the standpoint of Article 8. It does, however, request the Court to isolate from that examination a number of alleged specific interferences with the right to respect for private life and to rule separately on their merits. In the Court's opinion, the matters relied on by the applicant Government in this connection are in reality bound up with their more general allegation that the respondent State pursues a policy which is intended to claim the northern part of Cyprus for Turkish Cypriots and settlers from Turkey to the exclusion of any Greek-Cypriot influence. The applicant Government maintains that this policy is manifested in the harshness of the restrictions imposed on the enclaved Greek-Cypriot population. The specific complaints invoked by the applicant Government regarding impediments to access to medical treatment and hindrances to participation in bi-or inter-communal events are elements which fall to be considered in the context of an overall analysis of the living conditions of the population concerned from the angle of their impact on the right of its members to respect for private and family life. [299]
H124 (oo) The Court cannot but endorse the Commission's conclusion that the restrictions which beset the daily lives of the enclaved Greek Cypriots create a feeling among them "of being compelled to live in a hostile environment in which it is hardly possible to lead a normal private and family life". [300]
H125 (pp) These restrictions are factors which aggravate the violations *756 which it has found in respect of the right of the enclaved Greek Cypriots to respect for private and family life. Having regard to that conclusion, it is not necessary to examine separately the applicant Government's allegations under Article 8 concerning the implantation of Turkish settlers in northern Cyprus. [301]
H126 (qq) 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. 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. 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. [309]
H127 (rr) The discriminatory treatment attained a level of severity which amounted to degrading treatment. 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. [310-311]
H128 (ss) Having regard to the reasoning which underpins its own finding of a violation of Article 3, the Court 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. 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. [314-5]
H129 (tt) 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. [317]
6. Alleged violation of the right of displaced Greek Cypriots to hold elections (Article 3 of Protocol No. 1.)
H130 The Court does not consider it necessary to examine the complaint, having regard to the fact that the complaint has not been pursued by the applicant Government. It is not necessary to examine of its own motion whether the facts disclose a violation of Article 3 of Protocol No. 1. [326-7]
7. Alleged violations in respect of the rights of Turkish Cypriots, including members of the Gypsy community, living in northern Cyprus (Arts.3, 5, 6, 8, 10, 11, 13, 14, Art.1 of Protocol No.1)
H131 (a) The Commission declared admissible complaints introduced by the applicant Government under Articles 5, 6, 10, 11 and 13 of the Convention *757 and Article 1 of Protocol No 1. These complaints were made with respect to Turkish Cypriots. The Commission also declared admissible complaints under Articles 3, 5 and 8 of the Convention in relation to the treatment of Turkish-Cypriot Gypsies who had sought asylum in the United Kingdom. In respect of all these complaints the applicant Government relied on specific sets of facts in support of their allegations. At the merits stage the applicant Government advanced further materials which, in their view, were intended to elaborate on the facts initially pleaded in support of the complaints declared admissible. However, in the Commission's opinion the materials had the effect of introducing new complaints which had not been examined at the admissibility stage. For this reason, the Commission could not entertain what it considered to be "additional complaints". The Court notes that the complaints now invoked by the applicant Government fall into this category. [332]
H132 (b) The Court finds no reason to depart from the Commission's view of the scope of its admissibility decision. On that account the Court will not examine any complaints adjudged by the Commission to fall outside the scope of that decision. [333] & [335]
H133 (c) The Court accepts the Commission's conclusion. Its own assessment of the evidence leads it to believe that there may have been individual cases of interferences with the rights of political opponents. However, it cannot conclude on the strength of that evidence that there existed during the period under consideration an administrative practice of suppressing all dissent directed at the TRNC ruling parties or an official policy of acquiescing in interferences by pro-TRNC supporters with the rights invoked by the applicant Government. The Court must have regard to the fact that the complaints alleged by the applicant Government is shaped in a vulnerable political context bolstered by a strong Turkish military presence and characterized by social rivalry between Turkish settlers and the indigenous population. Such a context has lead to tension and, regrettably, to acts on the part of the agents of the TRNC which violate Convention rights in individual cases. However, the Court considers that neither the evidence adduced by the applicant Government before the Commission nor their criticism of the Commission's evaluation of that evidence can be said to controvert the finding that it has not been shown beyond reasonable doubt that the alleged practice existed during the period under consideration. [346]
H134 (d) The respondent Government, in its submissions to the Commission, made out a case for the availability of remedies, including the remedy of habeas corpus. It is not persuaded on the evidence before it that it has been shown that these remedies were inadequate and ineffective in respect of the matters complained of or that there existed special circumstances absolving the individuals in question from the requirement to avail themselves of these remedies. In particular, and as previously noted, the evidence does not show that the TRNC authorities have, as a matter of administrative practice, remained totally passive in the face of serious allegations of misconduct or infliction of harm either by State agents or private parties acting with impunity. [347]
H135 (e) The Court concludes that it has not been established that there has been an administrative practice of violation of the rights of Turkish Cypriots who are opponents of the regime in northern *758 Cyprus under Articles 3, 5, 8, 10 and 11 of the Convention, including by reason of an alleged practice of failing to protect their rights under these provisions. [348]
H136 (f) Members of the Turkish-Cypriot Gypsy community have suffered hardship at the hands of the TRNC authorities. However, the Court does not consider that these individual cases bear out the claim that there existed during the period under consideration an administrative practice of violating the rights invoked by the applicant Government. It does not appear that any of the members of the Turkish-Cypriot Gypsy community who claim to have suffered at the hands of the TRNC authorities sought to invoke remedies before the local courts. The Court does not accept the applicant Government's assertion that the unavailability of legal aid in the TRNC for the bringing of civil actions exonerated aggrieved individuals from the requirement to use domestic remedies. There is no Convention obligation as such on a Contracting State to operate a civil legal aid system for the benefit of indigent litigants. What is important for the Court is the fact that it does not appear that any attempt has been made to take any legal proceedings whatsoever in respect of the matters alleged by the applicant Government. [352]
H137 (g) The Court concludes that it has not been established that, during the period under consideration, there has been a violation as a matter of administrative practice of the rights of members of the Turkish-Cypriot Gypsy community under Articles 3, 5, 8 and 14 of the Convention, including by reason of an alleged practice of failing to protect their rights under these Articles. [353]
H138 (h) The Court does not have to be satisfied on the evidence that there was an administrative practice of trying civilians before military courts in the TRNC. The applicant Government complains about the existence of a legislative practice of violating Article 6, having regard to the clear terms of "Article 156 of the TRNC Constitution" and the "Prohibited Military Areas Decree". A Contracting State was entitled to challenge under the Convention a law in abstracto having regard to the fact that former Article 24 of the Convention enabled any Contracting State to refer to the Commission any alleged breach of the provisions of the Convention and the Protocols thereto by another Contracting State. A "breach" within the meaning of former Article 24 resulted from the mere existence of a law which introduced, directed or authorized measures incompatible with the rights and freedoms safeguarded. A breach of this kind might only be found if the law challenged pursuant to former Article 24 was couched in terms sufficiently clear and precise to make the breach immediately apparent; otherwise, the decision should be arrived at by reference to the manner in which the respondent State interpreted and applied in concreto the impugned text or texts. [357]
H139 (i) For the Court, examination in abstracto of the impugned "constitutional provision" and the "Prohibited Military Areas Decree" leads it to conclude that these texts clearly introduced and authorized the trial of civilians by military courts. It considers that there is no reason to doubt that these courts suffer from the same defects of independence and impartiality which were highlighted in Incal v. Turkey in respect of the system of National Security Courts established in Turkey by the respondent State, in *759 particular the close structural links between the executive power and the military officers serving on the TRNC military courts. Civilians in the TRNC accused of acts characterized as military offences before such courts could legitimately fear that they lacked independence and impartiality. [358]
H140 (j) The Court finds that there has been a violation of Article 6 of the Convention on account of the legislative practice of authorizing the trial of civilians by military courts. [359]
H141 (k) No violation of Article 10 of the Convention has been established by virtue of alleged restrictions on the right of Turkish Cypriots living in northern Cyprus to receive information from the Greek-language press. [362-3]
H142 (l) The Court does not consider that there was an administrative practice of impeding all bi-communal contacts between Turkish Cypriots living in the north and Greek Cypriots in the south. The TRNC authorities took a much more rigorous approach to such contacts after the second half of 1996 and indeed prohibited them. However, alleged violations of Convention rights occurring during that period are outside the scope of the admissibility decision. [369]
H143 (m) As to the alleged interference with the right of Turkish Cypriots living in the north to freedom of association, the Court observes that the Commission found on the evidence that the TRNC authorities had not made any attempt to intervene to prevent the creation of bi-communal organizations in the north of Cyprus. In the absence of any concrete evidence to the contrary, and having regard to the requisite standard of proof for establishing the existence of an administrative practice of violating a Convention right, the Court concludes that there has been no violation of Article 11 from this standpoint either. [370] & [371]
H144 (n) It has not been established that there has been a violation of Article 1 of Protocol No. 1 by reason of the alleged administrative practice of violating that Article, including by reason of failure to secure enjoyment of their possessions in southern Cyprus to Turkish Cypriots living in northern Cyprus. [377]
H145 (o) The Court could not accept the applicant Government's allegation that there was an administrative practice of denying remedies to individuals, in breach of Article 13 of the Convention. The evidence before the Court in this connection cannot be said to prove beyond reasonable doubt the existence of any such practice. Accordingly, no violation of Article 13 of the Convention has been established by reason of a failure as a matter of administrative practice to secure effective remedies to Turkish Cypriots living in northern Cyprus. [382] & [383]
8. Alleged violations of Articles 1, 17, 18 and former Article 32(4) of the Convention.
H146 The Court considers that it is unnecessary in the circumstances to examine separately these complaints. It further recalls that, regarding the applicant Government's complaints under Articles 17 and 18, it reached the same conclusion in the context of similar allegations made with respect to alleged interferences with the rights of Greek-Cypriot displaced persons' property. [388]

H147 Representation

Mr A. Markides, Attorney-General of the Republic of Cyprus, (Agent), Mr I. Brownlie QC, Mr D. Pannick QC, Ms C. Palley, Barrister-at-Law, Mr M. Shaw, Barrister-at-Law, Mrs S.M. Joannides, Senior Counsel of the Republic of Cyprus, *760 Mr P. Polyviou, Barrister-at-Law, Mr P. Saini, Barrister-at-Law, (Counsel), Mr N. Emiliou, Consultant, (Adviser); for the applicant Government.

H148 The following cases are referred to in the Court's judgment:
1. Abdulaziz, Cabales and Balkandali v. United Kingdom (A/94): (1985) 7 E.H.R.R. 471
2. Akdivar and Others v. Turkey (1997) 23 E.H.R.R. 143
3. Belgian Linguistic Case (A/6): (1979-80) 1 E.H.R.R. 252
4. Belilos v. Switzerland (A/132): (1988) 10 E.H.R.R. 466
5. Çakici v. Turkey: (2001) 31 E.H.R.R. 5
6. East African Asians v. United Kingdom, D.R.78, p.62
7. Ergi v. Turkey: (2001) 32 E.H.R.R. 18
8. Findlay v. United Kingdom (1997) 24 E.H.R.R. 221
9. France, Norway, Denmark, Sweden and the Netherlands v. Turkey, decision of 6 December 1983, D.R. 35, pp.163-164
10. Greek Case, Yearbook 12.
11. Guerra and Others v. Italy (1998) 26 E.H.R.R. 357
12. Ireland v. United Kingdom (A/25): (1979-1980) 2 E.H.R.R. 25
13. Kaya v. Turkey (1999) 28 E.H.R.R. 1
14. Kjeldsen, Busk Madsen and Pedersen v. Denmark (A/23), 7 December 1976
15. Kurt v. Turkey (1999) 27 E.H.R.R. 373
16. L.C.B. v. United Kingdom (1999) 27 E.H.R.R. 212
17. Lithgow v. United Kingdom (A/102): (1986) 8 E.H.R.R. 329
18. Loizidou v. Turkey (1997) 23 E.H.R.R. 513
19. Loizidou v. Turkey (A/319): (1995) 20 E.H.R.R. 99
20. Legal Consequences for States of the Continued Presence of South Africa In Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) Case, [1971] I.C.J.R. 16
21. McCann and Others v. United Kingdom (A/324): (1996) 21 E.H.R.R. 97
22. Mitap and Müftüoglu v. Turkey (1996) 22 E.H.R.R. 209
23. Philis v. Greece (A/209): (1991) 13 E.H.R.R. 741
24. Powell and Rayner v. United Kingdom (A/172): (1990) 12 E.H.R.R. 355
25. Salman v. Turkey: (2002) 34 E.H.R.R. 17
26. Sargin and Yagci v. Turkey, App.Nos. 14116-14117/88, 8 June 1995
27. Tanrikulu v. Turkey (2000) 30 E.H.R.R. 950
28. Van Mechelen and Others v. Netherlands (1998) 25 E.H.R.R. 647
29. Yasa v. Turkey (1999) 28 E.H.R.R. 408


H149 The following additional case is referred to in the opinion of Judge Costa:
30. Chassagnou and Others v. France (2000) 29 E.H.R.R. 615


H150 The following additional case is referred to in the opinion of Judge Fuad:
31. Loizidou v. Turkey (Art.50), 28 July 1998


H151 The following additional cases are referred to in the opinion of Judge Marcus-Helmons:
32. Adams v. Adams [1970] 3 W.L.R. 934
33. Golder v. United Kingdom (A/18): (1979-80) 1 E.H.R.R. 524
34. Open Door and Well Woman v. Ireland (A/246-A): (1993) 15 E.H.R.R. 244 *761
35. Young, James and Webster v. United Kingdom (A/44): (1982) 4 E.H.R.R. 38


H152 The following additional cases are referred to in the Commission's Opinion:
36. Assenov v. Bulgaria (1999) 28 E.H.R.R. 652
37. Austria v. Italy, App.No.788/60, dec.11.1.61, Yearbook 4
38. Chrystostomos, Papachrystostomou v. Turkey, App. Nos. 15299-15300/89, dec.4.3.91, D.R.68, p. 216.
39. Dyer v. United Kingdom, App. No. 10475/83, dec.5.7.84, D.R.39
40. Gillow v. United Kingdom (A/102): (1989) 11 E.H.R.R. 335
41. Gülec v. Turkey (1999) 28 E.H.R.R. 121
42. Incal v. Turkey (2000) 29 E.H.R.R. 449
43. James and Others v. United Kingdom (A/98): (1986) 8 E.H.R.R. 123
44. McVeigh and Others v. United Kingdom, D.R.25, p.15
45. Mehmet Kaya v. Turkey, 19 February 1998
46. Osman v. United Kingdom (2000) 29 E.H.R.R. 245
47. Papamichalopoulos and Others v. Greece (A/260-B): (1993) 16 E.H.R.R. 440
48. Skärby v. Sweden (A/180-B), 28 June 1990
49. Sporrong and Lönroth v. Sweden (A/52): (1983) 5 E.H.R.R. 35
50. Sunday Times (No.1) v. United Kingdom (A/30): (1979-80) 2 E.H.R.R. 245
51. Timurtas v. Turkey: (2001) 33 E.H.R.R. 6
52. X. and Y. v. Netherlands (A/91): (1986) 8 E.H.R.R. 235


H153 The following additional case is referred to in the opinion of Mrs J. Liddy:
53. Buckley v. United Kingdom (1997) 23 E.H.R.R. 101


The Facts

The circumstances of the case

A. General context

13 The complaints raised in this application arise out of the Turkish military operations in northern Cyprus in July and August 1974 and the continuing division of the territory of Cyprus. At the time of the Court's consideration of the merits of the Loizidou v. Turkey case in 1996, the Turkish military presence at the material time was described in the following terms [FN1]:
16. Turkish armed forces of more than 30,000 personnel are stationed throughout the whole of the occupied area of northern Cyprus, which is constantly patrolled and has checkpoints on all main lines of communication. The army's headquarters are in Kyrenia. The 28th Infantry Division is based in Asha (Assia) with its sector covering Famagusta to the Mia Milia suburb of Nicosia and with about 14,500 personnel. The 39th Infantry Division, with about 15,500 personnel, is based at Myrtou village, and its sector ranges from Yerolakkos village to Lefka. TOURDYK (Turkish Forces in Cyprus under the Treaty of Guarantee) is stationed at Orta Keuy village near Nicosia, with a sector running from Nicosia International Airport to the Pedhieos River. A *762 Turkish naval command and outpost are based at Famagusta and Kyrenia respectively. Turkish airforce personnel are based at Lefkoniko, Krini and other airfields. The Turkish airforce is stationed on the Turkish mainland at Adana.

FN1 Loizidou v. Turkey (1997) 23 E.H.R.R. 513 paras 16-17.

17. The Turkish forces and all civilians entering military areas are subject to Turkish military courts, as stipulated so far as concerns 'TRNC citizens' by the Prohibited Military Areas Decree of 1979 (section 9) and Article 156 of the Constitution of the 'TRNC'.
14 A major development in the continuing division of Cyprus occurred in November 1983 with the proclamation of the "Turkish Republic of Northern Cyprus" (the "TRNC") and the subsequent enactment of the "TRNC Constitution" on 7 May 1985.
This development was condemned by the international community. On 18 November 1983 the United Nations Security Council adopted Resolution 541 (1983) declaring the proclamation of the establishment of the "TRNC" legally invalid and calling upon all States not to recognize any Cypriot State other than the Republic of Cyprus. A similar call was made by the Security Council on 11 May 1984 in its Resolution 550 (1984). In November 1983 the Committee of Ministers of the Council of Europe decided that it continued to regard the government of the Republic of Cyprus as the sole legitimate government of Cyprus and called for respect of the sovereignty, independence, territorial integrity and unity of the Republic of Cyprus.
15 According to the respondent Government, the "TRNC" is a democratic and constitutional State which is politically independent of all other sovereign States including Turkey, and the administration in northern Cyprus has been set up by the Turkish-Cypriot people in the exercise of its right to self- determination and not by Turkey. Notwithstanding this view, it is only the Cypriot government which is recognized internationally as the government of the Republic of Cyprus in the context of diplomatic and treaty relations and the working of international organizations.
16 United Nations peacekeeping forces ("UNFICYP") maintain a buffer-zone. A number of political initiatives have been taken at the level of the United Nations aimed at settling the Cyprus problem on the basis of institutional arrangements acceptable to both sides. To this end, inter-communal talks have been sponsored by the Secretary-General of the United Nations acting under the direction of the Security Council. In this connection, the respondent Government maintain that the Turkish-Cypriot authorities in northern Cyprus have pursued the talks on the basis of what they consider to be already agreed principles of bi-zonality and bi-communality within the framework of a federal constitution. Support for this basis of negotiation is found in the UN Secretary-General's Set of Ideas of 15 July 1992 and the UN Security Council resolutions of 26 August 1992 and 25 November 1992 confirming that a federal solution sought by both sides will be "bi-communal" and "bi-zonal".
Furthermore, and of relevance to the instant application, in 1981 the *763 United Nations Committee on Missing Persons ("CMP") was set up to "look into cases of persons reported missing in the inter-communal fighting as well as in the events of July 1974 and afterwards" and "to draw up comprehensive lists of missing persons of both communities, specifying as appropriate whether they are still alive or dead, and in the latter case approximate times of death". The CMP has not yet completed its investigations.

B. The previous inter-State applications

17 The events of July and August 1974 and their aftermath gave rise to three previous applications by the applicant Government against the respondent State under former Article 24 of the Convention. The first [FN2] and second [FN3] applications were joined by the Commission and led to the adoption on 10 July 1976 of a report under former Article 31 of the Convention ("the 1976 report") in which the Commission expressed the opinion that the respondent State had violated Articles 2, 3, 5, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1. On 20 January 1979 the Committee of Ministers of the Council of Europe in turn adopted, with reference to an earlier decision of 21 October 1977, Resolution DH (79) 1 in which it expressed, inter alia, the conviction that "the enduring protection of human rights in Cyprus can only be brought about through the re-establishment of peace and confidence between the two communities; and that inter-communal talks constitute the appropriate framework for reaching a solution of the dispute". In its resolution the Committee of Ministers strongly urged the parties to resume the talks under the auspices of the Secretary-General of the United Nations in order to agree upon solutions on all aspects of the dispute. [FN4] The Committee of Ministers viewed this decision as completing its consideration of the case.

FN2 App. No.6780/74.

FN3 App. No.6950/75.

FN4 See para.16 above.

The third application [FN5] lodged by the applicant Government was the subject of a further report under former Article 31 adopted by the Commission on 4 October 1983 ("the 1983 report"). In that report the Commission expressed the opinion that the respondent State was in breach of its obligations under Articles 5 and 8 of the Convention and Article 1 of Protocol No. 1. On 2 April 1992 the Committee of Ministers adopted Resolution DH (92) 12 in respect of the Commission's 1983 report. In its resolution the Committee of Ministers limited itself to a decision to make the 1983 report public and stated that its consideration of the case was thereby completed.

FN5 App.No.8007/77.

C. The instant application

18 The instant application is the first to have been referred to the Court. The applicant Government requested the Court in their memorial to *764 "decide and declare that the respondent State is responsible for continuing violations and other violations of Articles 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 17 and 18 of the Convention and of Articles 1 and 2 of Protocol No. 1".
These allegations were invoked with reference to four broad categories of complaints: alleged violations of the rights of Greek-Cypriot missing persons and their relatives; alleged violations of the home and property rights of displaced persons; alleged violations of the rights of enclaved Greek Cypriots in northern Cyprus; alleged violations of the rights of Turkish Cypriots and the Gypsy community in northern Cyprus.

D. The Commission's findings of fact in the instant application

19 The Court considers it appropriate at this stage to summaries the Commission's findings of fact in respect of the various violations of the Convention alleged by the applicant Government as well as the essential arguments advanced by both parties and the documentary and other evidence relied on by the Commission.
1. Alleged violations of the rights of Greek-Cypriot missing persons and their relatives
20 The applicant Government essentially claimed in its application that about 1,491 Greek Cypriots were still missing 20 years after the cessation of hostilities. These persons were last seen alive in Turkish custody and their fate has never been accounted for by the respondent State.
21 The respondent Government maintained in reply that there was no proof that any of the missing persons were still alive or were being kept in custody. In its principal submission, the issues raised by the applicant Government should continue to be pursued within the framework of the United Nations Committee on Missing Persons [FN6] rather than under the Convention.

FN6 See para.16 above.

22 The Commission proceeded on the understanding that its task was not to establish what actually happened to the Greek-Cypriot persons who went missing following the Turkish military operations conducted in northern Cyprus in July and August 1974. Rather, it saw its task as one of determining whether or not the alleged failure of the respondent State to clarify the facts surrounding the disappearances constituted a continuing violation of the Convention.
23 To that end, the Commission had particular regard to its earlier findings in its 1976 and 1983 reports. It recalled that in its 1976 report it had stated that it was widely accepted that a considerable number of Cypriots were still missing as a result of armed conflict in Cyprus and that a number of persons declared to be missing were identified as Greek Cypriots taken prisoner by the Turkish army. This finding, in *765 the Commission's opinion at the time, created a presumption of Turkish responsibility for the fate of persons shown to be in Turkish custody. While noting that killings of Greek-Cypriot civilians had occurred on a large scale, the Commission also considered at the time of its 1976 report that it was unable to ascertain whether, and under what circumstances, Greek-Cypriot prisoners declared to be missing had been deprived of their life.
24 In the present case, the Commission further recalled that in its 1983 report it found it established that there were sufficient indications in an indefinite number of cases that missing Greek Cypriots had been in Turkish custody in 1974 and that this finding once again created a presumption of Turkish responsibility for the fate of these persons.
25 The Commission found that the evidence submitted to it in the instant case confirmed its earlier findings that certain of the missing persons were last seen in Turkish or Turkish-Cypriot custody. In this connection, the Commission had regard to the following: a statement of Mr Denktas, "President of the TRNC", broadcast on 1 March 1996, in which he admitted that 42 Greek-Cypriot prisoners were handed over to Turkish-Cypriot fighters who killed them and that in order to prevent further such killings prisoners were subsequently transferred to Turkey; the broadcast statement of Professor Yalçin Küçük, a former Turkish officer who had served in the Turkish army at the time and participated in the 1974 military operation in Cyprus, in which he suggested that the Turkish army had engaged in widespread killings of, inter alia, civilians in so-called cleaning-up operations; the Dillon Report submitted to the United States Congress in May 1998 indicating, inter alia, that Turkish and Turkish-Cypriot soldiers rounded up Greek-Cypriot civilians in the village of Asha on 18 August 1974 and took away males over the age of 15, most of whom were reportedly killed by Turkish-Cypriot fighters; the written statements of witnesses tending to corroborate the Commission's earlier findings that many persons now missing were taken into custody by Turkish soldiers or Turkish- Cypriot paramilitaries.
26 The Commission concluded that, notwithstanding evidence of the killing of Greek-Cypriot prisoners and civilians, there was no proof that any of the missing persons were killed in circumstances for which the respondent State could be held responsible; nor did the Commission find any evidence to the effect that any of the persons taken into custody were still being detained or kept in servitude by the respondent State. On the other hand, the Commission found it established that the facts surrounding the fate of the missing persons had not been clarified by the authorities and brought to the notice of the victims' relatives.
27 The Commission further concluded that its examination of the applicant Government's complaints in the instant application was not precluded by the ongoing work of the CMP. It noted in this connection that the scope of the investigation being conducted by the CMP was *766 limited to determining whether or not any of the missing persons on its list were dead or alive; nor was the CMP empowered to make findings either on the cause of death or on the issue of responsibility for any deaths so established. Furthermore, the territorial jurisdiction of the CMP was limited to the island of Cyprus, thus excluding investigations in Turkey where some of the disappearances were claimed to have occurred. The Commission also observed that persons who might be responsible for violations of the Convention were promised impunity and that it was doubtful whether the CMP's investigation could extend to actions by the Turkish army or Turkish officials on Cypriot territory.
2. Alleged violations of the rights of the displaced persons to respect for their home and property
28 The Commission established the facts under this heading against the background of the applicant Government's principal submission that over 211,000 displaced Greek Cypriots and their children continued to be prevented as a matter of policy from returning to their homes in northern Cyprus and from having access to their property there for any purpose. The applicant Government submitted that the presence of the Turkish army together with "TRNC"-imposed border restrictions ensured that the return of displaced persons was rendered physically impossible and, as a corollary, that their cross-border family visits were gravely impeded. What started as a gradual and continuing process of illegality over the years had now resulted in the transfer of the property left behind by the displaced persons to the "TRNC" authorities without payment of compensation and its re-assignment, together with "title deeds", to State bodies, Turkish Cypriots and settlers from Turkey.
29 The respondent Government maintained before the Commission that the question of the Varosha district of Famagusta along with the issues of freedom of movement, freedom of settlement and the right of property could only be resolved within the framework of the inter-communal talks [FN7] and on the basis of the principles agreed on by both sides for the conduct of the talks. Until an overall solution to the Cyprus question, acceptable to both sides, was found, and having regard to security considerations, there could be no question of a right of the displaced persons to return. The respondent Government further submitted that the regulation of property abandoned by displaced persons, as with restrictions on cross-border movement, fell within the exclusive jurisdiction of the "TRNC" authorities.

FN7 See para.16 above.

30 The Commission found that it was common knowledge that with the exception of a few hundred Maronites living in the Kormakiti area and Greek Cypriots living in the Karpas peninsula, the whole Greek-Cypriot population which before 1974 resided in the northern part of Cyprus had left that area, the large majority of these people now living *767 in southern Cyprus. The reality of this situation was not contested by the respondent Government.
31 The Commission noted with reference to its earlier findings in its 1976 and 1983 reports that there was no essential change in the situation obtaining at the time of the introduction of the instant application. Accordingly, and this was not disputed either by the respondent Government, displaced Greek Cypriots had no possibility of returning to their homes in northern Cyprus and were physically prevented from crossing into the northern part on account of the fact that it was sealed off by the Turkish army. The arrangements introduced by the "TRNC" authorities in 1998 to allow Greek Cypriots and Maronites to cross into northern Cyprus for the purposes of family visits or, as regards Greek Cypriots, visits to the Apostolos Andreas Monastery, did not affect this conclusion.
32 Nor did the respondent Government disputes the fact that Greek-Cypriot owners of property in northern Cyprus continued to be prevented from having access to, controlling, using and enjoying their property. As to the fate of that property, the Commission found it established that up until 1989 there was an administrative practice of the Turkish-Cypriot authorities to leave the official Land Register unaffected and to register separately the "abandoned" property and its allocation. The beneficiaries of allocations were issued with "possessory certificates" but not "deeds of title" to the properties concerned. However, as from June 1989 the practice changed and thereafter "title deeds" were issued and the relevant entries concerning the change of ownership were made in the Land Register. The Commission found it established that, at least since June 1989, the Turkish-Cypriot authorities no longer recognized any ownership rights of Greek Cypriots in respect of their properties in northern Cyprus. The Commission found confirmation for this finding in the provisions of "Article 159(1)(b) of the TRNC Constitution" of 7 May 1985 and "Law No. 52/1995" purporting to give effect to that provision.
33 Although the respondent Government pointed out in its submissions to the Commission that the issue of the right of displaced Greek Cypriots to return to their homes was a matter to be determined within the framework of the inter- communal talks sponsored by the Secretary-General of the United Nations, [FN8] the Commission found that there had been no significant progress in recent years in the discussion of issues such as freedom of settlement, payment of compensation to Greek Cypriots for the interference with their property rights, or restitution of Greek-Cypriot property in the Varosha district.

FN8 See para.16 above.

*768 3. Alleged violations arising out of the living conditions of Greek Cypriots in northern Cyprus
34 The applicant Government adduced evidence in support of its 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. The continuous daily interferences with their rights could not be redressed at the local level on account of the absence of effective remedies before the "TRNC" courts. Similar but less extensive restrictions applied to the Maronite population living in the Kormakiti area of northern Cyprus.
35 The respondent Government maintained before the Commission that effective judicial remedies were available to all Greek Cypriots living in northern Cyprus. However, it claimed that the applicant Government actively discouraged them from taking proceedings in the "TRNC". The respondent Government further submitted that the evidence before the Commission did not provide any basis of fact for the allegations made.
36 The Commission established the facts under this heading with reference to materials submitted by both Governments. These materials included, inter alia, written statements of persons affected by the restrictions alleged by the applicant Government; press reports dealing with the situation in northern Cyprus; case law of the "TRNC" courts on the availability of remedies in the "TRNC"; "TRNC legislation" and decisions of the "TRNC Council of Ministers" on entry and exit arrangements at the Ledra Palace check-point. The Commission also had regard to United Nations documents concerning the living conditions of enclaved Greek Cypriots and especially to the UN Secretary-General's progress reports of 10 December 1995 and 9 March 1998 on the humanitarian review carried out by UNFICYP in 1994-95 concerning the living conditions of Karpas Greek Cypriots, the so-called "Karpas Brief".
37 Furthermore, the Commission's delegates heard the evidence of fourteen witnesses on the situation of Greek Cypriots and Maronites living in northern Cyprus. These witnesses comprised two persons who were closely associated with the preparation of the "Karpas Brief" as well as persons proposed by both Governments. The delegates also visited, on 23 and 24 February 1998, a number of localities in northern Cyprus, including Greek-Cypriot villages in the Karpas area, and heard statements from officials and other persons encountered during the visits.
38 The Commission considered the above-mentioned "Karpas Brief" *769 an accurate description of the situation of the enclaved Greek-Cypriot and Maronite populations at about the time of the introduction of the instant application and that the proposals for remedial action recommended by UNFICYP following the humanitarian review reflected the real needs of these groups in the face of administrative practices which actually existed at the material time. Although the Commission noted that there had been a considerable improvement in the overall situation of the enclaved populations, as evidenced by the UN Secretary-General's progress reports on the "Karpas Brief" recommendations, there still remained a number of severe restrictions. These restrictions were not laid down in any "TRNC legislation" and were in the nature of administrative practices.
39 The Commission further found that there existed a functioning court system in the "TRNC" which was in principle accessible to Greek Cypriots living in northern Cyprus. It appeared that at least in cases of trespass to property or personal injury there had been some successful actions brought by Greek-Cypriot litigants before the civil and criminal courts. However, in view of the scarcity of cases brought by Greek Cypriots, the Commission was led to conclude that the effectiveness of the judicial system for resident Greek Cypriots had not really been tested.
40 In a further conclusion, the Commission found that there was no evidence of continuing wrongful allocation of properties of resident Greek Cypriots to other persons during the period under consideration. However, the Commission did find it established that there was a continuing practice of the "TRNC" authorities to allocate to Turkish-Cypriots or immigrants the property of Greek Cypriots who had died or left northern Cyprus.
41 In the absence of legal proceedings before the "TRNC" courts, the Commission noted that it had not been tested whether or not Greek Cypriots or Maronites living in northern Cyprus were in fact considered as citizens enjoying the protection of the "TRNC Constitution". It did however find it established that, in so far as the groups at issue complained of administrative practices such as restrictions on their freedom of movement or on family visits which were based on decisions of the "TRNC Council of Ministers", any legal challenge to these restrictions would be futile given that such decisions were not open to review by the courts.
42 Although the Commission found no evidence of cases of actual detention of members of the enclaved population, it was satisfied that there was clear evidence that restrictions on movement and family visits continued to be applied to Greek Cypriots and Maronites notwithstanding recent improvements. It further observed that an exit visa was still necessary for transfers to medical facilities in the south, although no fees were levied in urgent cases. There was no evidence to confirm the allegation that the processing of applications for movement was delayed in certain cases with the result that the health or life *770 of patients was endangered; nor was there any indication of a deliberate practice of delaying the processing of such applications.
43 The Commission found it established that there were restrictions on the freedom of movement of Greek-Cypriot and Maronite schoolchildren attending schools in the south. Until the entry into force of the decision of the "TRNC Council of Ministers" of 11 February 1998, they were not allowed to return permanently to the north after having attained the age of 16 in the case of males and 18 in the case of females. The age-limit of 16 years was still maintained for Greek-Cypriot male students. Up to the age-limit, certain restrictions applied to the visits of students to their parents in the north, which were gradually relaxed. However, even today such visits are subject to a visa requirement and a reduced "entry fee".
44 As to educational facilities, the Commission held that, although there was a system of primary-school education for the children of Greek Cypriots living in northern Cyprus, there were no secondary schools for them. The vast majority of schoolchildren went to the south for their secondary education and the restriction on the return of Greek-Cypriot and Maronite schoolchildren to the north after the completion of their studies had led to the separation of many families. Furthermore, school textbooks for use in the Greek-Cypriot primary school were subjected to a "vetting" procedure in the context of confidence- building measures suggested by UNFICYP. The procedure was cumbersome and a relatively high number of school-books were being objected to by the Turkish- Cypriot administration.
45 Aside from school-books, the Commission found no evidence of any restrictions being applied during the period under consideration to the importation, circulation or possession of other types of books; nor was there evidence of restrictions on the circulation of newspapers published in southern Cyprus. However, there was no regular distribution system for the Greek-Cypriot press in the Karpas area and no direct post and telecommunications links between the north and south of the island. It was further noted that the enclaved population was able to receive Greek-Cypriot radio and television.
46 The Commission did not find any conclusive evidence that letters destined for Greek Cypriots were opened by the "TRNC" police or that their telephones were tapped.
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) *771 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.
4. Alleged violations in respect of the rights of Turkish Cypriots and the Turkish-Cypriot Gypsy community in northern Cyprus
49 The applicant Government contended before the Commission that Turkish Cypriots living in northern Cyprus, especially political dissidents and the Gypsy community, were the victims of an administrative practice of violation of their Convention rights. It adduced evidence in support of their claim that these groups were victims of arbitrary arrest and detention, police misconduct, discrimination and ill-treatment and interferences in various forms with other Convention rights such as, inter alia, fair trial, private and family life, expression, association, property and education.
50 The respondent Government essentially maintained that the above allegations were unsubstantiated on the evidence and pointed to the availability of effective remedies in the "TRNC" to aggrieved persons.
51 The Commission's investigation into the applicant Government's allegations was based mainly on the oral evidence of thirteen witnesses who testified before the Commission's delegates on the situation of Turkish Cypriots and the Gypsy community living in northern Cyprus. The witnesses were proposed by both parties. Their evidence was taken by the delegates in Strasbourg, Cyprus and London between November 1997 and April 1998.
52 The Commission found that there existed rivalry and social conflict between the original Turkish Cypriots and immigrants from Turkey who continued to arrive in considerable numbers. Some of the original Turkish Cypriots and their political groups and media resented the "TRNC" policy of full integration for the settlers.
53 Furthermore, while there was a significant incidence of emigration from the "TRNC" for economic reasons, it could not be excluded that there were also cases of Turkish Cypriots having fled the "TRNC" out of fear of political persecution. The Commission considered that there was no reason to doubt the correctness of witnesses' assertions that in a few cases complaints of harassment or discrimination by private groups of or against political opponents were not followed up by the "TRNC" police. However, it concluded that it was not established beyond reasonable doubt that there was in fact a consistent administrative practice of the "TRNC" authorities, including the courts, of refusing protection to political opponents of the ruling parties. In so far as it was alleged by the applicant Government that the authorities themselves were involved in the harassment of political opponents, the *772 Commission did not have sufficient details concerning the incidents complained of (for example, the dispersing of demonstrations, short-term arrests) which would allow it to form an opinion as to the justification or otherwise of the impugned acts. The Commission noted that, in any event, it did not appear that the remedy of habeas corpus had been invoked by persons claiming to be victims of arbitrary arrest or detention.
54 Regarding the alleged discrimination against and arbitrary treatment of members of the Turkish-Cypriot Gypsy community, the Commission found that judicial remedies had apparently not been used in respect of particularly grave incidents such as the pulling down of shacks near Morphou and the refusal of airline companies to transport Gypsies to the United Kingdom without a visa.
55 In a further conclusion, the Commission observed that there was no evidence before it of Turkish-Cypriot civilians having been subjected to the jurisdiction of military courts during the period under consideration. Furthermore, and with respect to the evidence before it, the Commission considered that it had not been established that, during the period under consideration, there was an official prohibition on the circulation of Greek- language newspapers in northern Cyprus or that the creation of bi-communal associations was prevented. In respect of the alleged refusal of the "TRNC" authorities to allow Turkish Cypriots to return to their properties in southern Cyprus, the Commission observed that no concrete instances were referred to it of any persons who had wished to do so during the period under consideration.
The full text of the Commission's Opinion, and of the dissenting opinions contained in the report, follows.

Opinion

[FN9]

FN9 The paragraph numbering from here to para. C636 in bold is the original numbering of the Commission's Opinion (and report). Then we revert to the numbering of the Court's judgment.--Ed.

General and preliminary considerations

I. Locus standi of the applicant Government

C68 At various stages of the proceedings, the respondent Government has contested the locus standi of the applicant Government to lodge an application under former Article 24 of the Convention. The respondent Government does not recognize the applicant Government, to which they refer as the "Greek Cypriot Administration", as being the lawful Government of the Republic of Cyprus. It submits that this administration has been established since 1963 in flagrant violation of the Cypriot Constitution of 1960 and of the *773 international agreements underlying the independence of Cyprus, in particular the provisions on the bi-communal structure of the Government and other central State organs. The respondent Government therefore contends that the applicant Government cannot validly represent the Republic of Cyprus. Its initial refusal to participate in the proceedings on the merits was primarily based on the argument that by admitting the application introduced by that Government the Commission had acted ultra vires.
C69 The applicant Government contests the respondent Government's arguments. It emphasizes that it has been consistently recognized by the international community as the Government of the Republic of Cyprus whose territory covers the whole of the island. As regards non-compliance with the provisions of the 1960 Constitution and corresponding stipulations of the relevant international agreements, they invoke the "doctrine of necessity", i.e. the need to reorganize the State without the representatives of the Turkish Cypriot community after the latter had refused to continue co-operating in the bicommunal structures provided for by the Constitution.
C70 The Commission recalls that the same arguments have been raised by the parties in the previous applications brought by Cyprus against Turkey. Furthermore, similar arguments concerning the applicant Government's locus standi to bring an individual application before the Court by virtue of former Article 48(b) of the Convention have been examined by the Court in the Loizidou case. Both the Commission and the Court eventually rejected the respondent Government's claim that the applicant Government had no locus standi. [FN10]

FN10 cf. The Commission's decision on admissibility of App. Nos.6780/74- 6950/75 of 26 May 1975, D.R.2, pp.135-136, its decision on the admissibility of App.No.8007/77 of 10 July 1978, D.R.13, pp.146-148, and the Court's judgment (Preliminary Objections) Loizidou v. Turkey (A/319): (1995) 20 E.H.R.R. 99 paras.39-41.

C71 In the present case, the Commission cannot but confirm the conclusions reached by itself and the Court in those decisions. It notes in particular the following:
-- The Republic of Cyprus continues to exist as a State and High Contracting Party to the Convention.
-- The applicant Government has been, and continues to be, recognized internationally as the Government of the Republic of Cyprus. Even assuming an inconsistency with the Constitution of Cyprus of 1960, the practice under that Constitution, especially since 1963, must also be taken into account. International legal acts and instruments drafted in the course of that practice on behalf of the Republic of Cyprus have consistently been recognized in diplomatic and treaty relations, both by Governments of other States and by organs of international organizations including the Council of *774 Europe. In any event, having regard to the purpose of former Article 24, the protection of the rights and freedoms of the people of Cyprus under the Convention should not be impaired by any constitutional defect of its Government.
-- The fact that the respondent Government does not recognize the applicant Government does not deprive the latter of the possibility of introducing an inter-State application. The Convention does not only envisage rights and obligations between the High Contracting Parties concerned, but also "objective obligations" accepted by the High Contracting Parties which are primarily owed to persons within their jurisdiction. These obligations are subject to "collective enforcement", of which former Article 24 of the Convention is the vehicle, and which serves the public order of Europe. [FN11] To accept that a Government may avoid "collective enforcement" of the Convention under former Article 24 by not recognizing the Government of the applicant State would defeat the purpose of the Convention.
-- Finally, in so far as former Article 28 of the Convention comes into play, that provision does not necessarily require direct contacts between the Governments concerned, so that non-recognition by one Government of the other does not make it impracticable for the Commission to conduct its proceedings with the participation of the Parties, as foreseen under this Article.

FN11 cf. App.No.788/60, Austria v. Italy, dec.11.1.61, Yearbook 4, pp. 138-142.

C72 The Commission therefore rejects the respondent Government's objections.

Conclusion

C73 The Commission concludes, unanimously, that the applicant Government has locus standi to bring an application under Article 24 of the Convention against the respondent Government.

II. Legal interest of the applicant Government

C74 In its decision on the admissibility of the present application, the Commission, reacting to the argument of the respondent Government that this application is essentially the same as the previous inter-State applications lodged by Cyprus against Turkey, has reserved for consideration at the merits stage the question whether and, if so, to what extent the applicant Government can have a valid legal interest in the determination of the alleged continuing violations of the Convention in so far as they have already been dealt with in previous Reports of the Commission. In so far as the respondent Government had invoked res iudicata and abuse of procedure in this context, the *775 Commission further observed that this presupposed a pronouncement on the identity of the application with the previous ones which also could only be made at the merits stage. [FN12]

FN12 cf. D.R.86, pp. 134-135.

C75 In its observations on the merits, the respondent Government has reiterated its argument that the applicant Government has no legal interest to bring repetitive applications ad infinitum, with a view to changing the relevant resolutions of the Committee of Ministers which the applicant Government may find unsatisfactory, but which constitute res iudicata in relation to proceedings prior to January 1990, when Turkey accepted the Court's compulsory jurisdiction. The respondent Government claims that with the exception of the complaints under Articles 9, 10 and 11 of the Convention and under Article 3 of Protocol No. 1, the facts submitted and the Articles invoked are the same as in the applicant Government's previous applications and disclose no new information or victims.
C76 The applicant Government refutes these arguments. It claims that certain

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