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Cite as: [1991] ECHR 73

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LOIZIDOU v. TURKEY - 15318/89 [1991] ECHR 73 (04 March 1991)

AS TO THE ADMISSIBILITY OF

Application No. 15299/89

introduced on 21 July 1989

by Metropolitan CHRYSOSTOMOS,

Bishop of Kitium

against Turkey

registered on 25 July 1989

Application No. 15300/89

introduced on 21 July 1989

by Archimandrite Georgios

PAPACHRYSOSTOMOU

against Turkey

registered on 25 July 1989

Application No. 15318/89

introduced on 22 July 1989

by Titina LOIZIDOU

against Turkey

registered on 31 July 1989

The European Commission of Human Rights sitting in private on

4 March 1991 the following members being present:

MM. C. A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Sir Basil HALL

MM. C.L. ROZAKIS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the declaration made by Turkey under Article

25 of the Convention on 28 January 1987;

Having regard to the application introduced on 21 July 1989 by

Metropolitan CHRYSOSTOMOS, Bishop of Kitium, against Turkey and

registered on 25 July 1989 under file No. 15299/89;

Having regard to the application introduced on 21 July 1989 by

Archimandrite Georgios PAPACHRYSOSTOMOU against Turkey and registered

on 25 July 1989 under file No. 15300/89;

Having regard to the application introduced on 22 July 1989 by

Titina LOIZIDOU against Turkey and registered on 31 July 1989 under

file No. 15318/89;

Having regard to the Commission's decisions of 9 November 1989

that the applications should be joined and brought to the notice of the

respondent Government and that the Government be invited to submit

written observations on the applications;

Having regard to the respondent Government's observations of

28 February 1990 and the applicants' observations in reply of 6 May

(Applications Nos. 15299/89 and 15300/89) and 11 May 1990 (Application

No. 15318/89);

Having regard to the applicants' further written observations

of 18 December 1990;

Having regard to the parties' oral submissions at the hearing

on 11 January 1991;

Having deliberated on 11 January and 4 March 1991;

Decides as follows:

THE FACTS

I. Particular circumstances of the applications

Application No. 15299/89

The first applicant is a Cypriot citizen born in 1938 and

residing in Larnaca. He is represented by Dr. K. Chrysostomides, a

lawyer practising in Nicosia.

The facts of the case, as they have been stated by the

applicant, may be summarised as follows:

1. On 19 July 1989 - the day preceding the 15th anniversary of

Turkey's invasion of Cyprus - the Women's Pancyprian Movement "Return"

organised a demonstration aimed at proclaiming the refugees' right to

return to their homes. They intended to walk into and remain in the

"buffer zone" through the night until dawn, the time when the first

Turkish paratroopers landed on Cypriot soil on 20 July 1974. The

"buffer zone" is a strip of land between the military posts of the

occupying Turkish army and the national guard of the Republic of

Cyprus, at present under the responsibility of the United Nations

Forces in Cyprus known as UNFICYP.

2. At 5.45 p.m. the first applicant officiated together with other

clergymen over religious prayers for the missing persons in the Church

of Saint Kassianos, in the area controlled by the Government of Cyprus.

These followed a memorial service for those killed during the invasion

in 1974 and laying of wreaths. The congregation consisted of women.

Around 6.15 p.m. the women left the Church of Saint Kassianos. The

first applicant finished with the vespers at approximately 7 p.m.

3. The first applicant was then asked to officiate over a prayer

for the missing persons and pray at the derelict church of Saint George

where in the meantime many women had gathered. The chapel of Saint

George is situated in the buffer zone, in the yard of the school of

Saint Kassianos. When the first applicant entered the church members

of UNFICYP saluted him.

4. While he was proceeding with the prayers Turkish troops

together with Turkish Cypriot "policemen" suddenly charged into the

church and started to indiscriminately hit everybody who was present.

The first applicant, while still in the church, was brutally beaten

with gun butts and clubs and kicked by his captors. A blow with a club

on his head hurled his priest's cap on the ground. As he was trying

to pick it up, they continued to beat him and kick him with their

knees, swore at him and humiliated him. A "policeman" grabbed his

wrist, twisted it and painfully forced him to walk on.

5. When dragged away, the first applicant saw a great number of

civilians, sheltered by Turkish troops, who started to attack him, to

spit on him, to swear at him and to ill-treat him with punches. He

received a blow on his right ear which caused a wound that took about

five days to heal.

6. He was led to a car and, together with the second applicant and

many women who had also been captured, taken to "Pavlides Garage" in

Nicosia.

7. At Pavlides Garage the captors tried to remove the first

applicant's personal belongings, the cross and the pectoral cross. He

refused to hand these over. A mob was throwing stones on the garage

and one stone fell into the interior, but nobody was hurt.

8. At 1 a.m. on 20 July they began to interrogate the first

applicant. The interrogation lasted for about 40 minutes. The

interrogators asked questions in Greek and kept their notes in Turkish.

The first applicant refused to sign these notes. When asked whether

he would join another march he replied that he would go to any peaceful

march because he did not recognise any boundaries that were set by

force and the might of arms; he had done nothing wrong but was simply

present at a holy temple, praying for the missing and the dead people.

9. At around 2 a.m. the first and the second applicants were

brought to the police station known as "Seragio" in Nicosia. They were

led into an office and left during the whole of the remaining night

hours sitting on two chairs. In the morning two interpreters came into

the office and behaved in a provocative way. The first applicant

refused to accept breakfast.

10. In the afternoon of 20 July 1989 the first applicant was told

that he would be presented to a "court". He was taken into a large

room on the ground floor and charged with illegal entry into the area

of the "Turkish Republic of Northern Cyprus" and violation of military

zone A. The "prosecutor" requested that the first applicant be further

detained for three days in order to complete investigations and the

"judge" granted two days.

11. The first applicant was then transported to the prison known

as "Ortagiogou" and detained in a cell together with four other

persons. At around 7 p.m. he was visited by the "Minister of Justice".

He requested to be seen by a doctor as he was suffering from influenza.

The doctor promised to send antibiotics and aspirins, but they did not

arrive.

12. Immediately afterwards all detainees were lined up in order to

be counted. After a while they were again lined up so that the officer

could establish that all were present. At around 11.30 p.m. they began

to open files. At around 2 a.m. or 3 a.m. on 21 July the detainees

were woken up in order to have their photographs taken and they were

otherwise disturbed throughout the night.

13. At around 10 a.m. the first applicant was led to the "court".

An interpeter was present. The first applicant contested the

jurisdiction of the "court" of an illegal regime not recognised by any

state or international organisation. He complained that he had been

illegally arrested in his own State while praying in a church, in an

area controlled by the United Nations, and declared that he was

innocent.

14. The first witness stated that he was the military officer

responsible for the area in which the first applicant had been

arrested, that the first applicant had violated the boundaries of the

"Turkish Republic of Northern Cyprus", and that he had seen that the

first applicant was on "Turkish ground" at the time of the arrest. When

the first applicant asked the witness whether he knew that the first

applicant was in the area controlled by UNFICYP, the "judge" did not

allow the question. Later the witness stated that he had not seen

where the first applicant was arrested.

15. The first applicant refused to cross-examine the other

witnesses in order to avoid the impression that he recognised the

jurisdiction of the "court". The "court" reserved its judgment.

16. The first applicant was taken back to prison. He received a

towel from the Red Cross and some food. In the afternoon the prisoners

were visited by representatives of the United Nations.

17. The first applicant was then searched and again brought to the

"court". The "judge" reading out the "decision" had to interrupt the

pronouncement because a mob outside was shouting "murderer priest",

"traitor priest" and "hand over the priest to us". The first applicant

was pronounced "guilty". He repeated that he did not recognise the

jurisdiction of the "court" and that he had been arrested unlawfully

on Cypriot territory when performing religious duties and demonstrating

peacefully. The "judge" recalled her finding that the first applicant

had been arrested on Turkish ground. When the mob approached the

"court room" the "judge" interrupted the proceedings and received a

Reuter representative, who had been watching the "trial", in her

office.

18. When the "judge" returned the first applicant again complained

of his arrest. In the presence of three United Nations'

representatives he requested protection of the United Nations. The

"judge" observed that protection was offered by the "State police".

The "court's sentence" was three days' imprisonment and a fine of

100,000 CYP, or ten days' detention in default.

19. The bus in which the first applicant was driven back to the

prison was attacked by the mob and a stone hit the glass window.

20. On Sunday 23 July the first applicant requested permission to

conduct prayers with the prisoners. As contact with the female

prisoners was refused prayers were held with only the male prisoners

present.

21. On 24 July mass was interrupted by a "prison officer". The

first applicant received vestments and the holy ware from United

Nations' representatives but was told by the prison director that he

was prohibited from praying and officiating service. The applicant

addressed a protest to the United Nations and from that moment

abstained from taking any food or accepting any medical attendance.

22. On 25 July the doctor came round to examine all prisoners. The

first applicant refused to be examined. At around 11.30 a.m. he was

again interrogated. Later on that day, they took his personal

belongings, watches, crosses and chains from him.

23. On 26 July the first applicant again refused to be medically

examined while being denied the right to pray. Around noon he was put

into isolation on the ground that he should not have declared a hunger

strike. He was locked up in a dark and stiflingly hot cell until the

morning of the following day.

24. On 27 July the first applicant was taken to a room where his

interrogators, a doctor and the director of the prison were present.

He refused to be examined by the doctor or to take any food and was

locked up in a cell 2 x 1.5 metres large which was dark and dirty. He

was told that they would bring his personal belongings from the

previous cell as well as a sheet for the bed, but they never did. The

first applicant was left in that cell until he was visited by a

representative of the United Nations. He was then taken to his

previous cell and told that his punishment of isolation had ended. He

complained to a United Nations' representative in the presence of the

director of the prison of the isolation and the conditions of his

detention. The director of the prison stated that prisons have their

own regulations. Later in the afternoon the first applicant was

informed by the United Nations' representives that he would be released

on 3 August. In the evening he fainted and was sick. He still refused

medical examination or any assistance from the "policemen". Dr. A.C.,

a co-prisoner, assisted him a lot.

25. On 28 July, a Friday, food was placed on the applicant's

bedside. When he refused to take any, they insisted and a TV crew came

to film shots showing that he had food.

26. In the afternoon of 29 July, when brought into the office of

the prison director the first applicant again refused to be examined

by a doctor. The director of the prison said that he could have a

shower and get ready because he would be released at around 8.30 p.m.

At 8 p.m. he was told that release had been postponed until the

following day. He was again offered food which he refused. In the

evening he fainted again and received help from the second applicant.

27. On 30 July he was searched and taken into the office of the

director of the prison. A TV crew was present but the first applicant

refused to make any statements.

28. After his release he was taken to Larnaca Hospital for five

days for exhaustion.

Application No. 15300/89

The second applicant is a Cypriot citizen born in 1949 and

residing at Nicosia. He is represented by Dr. K. Chrysostomides, a

lawyer practising in Nicosia.

The facts of the case, as they have been stated by the second

applicant, may be summarised as follows:

29. On 19 July 1989 the second applicant, together with the first

applicant, conducted the religious service in the derelict church of

Saint George in the "buffer zone". When approaching the church they

had not been stopped by the two United Nations' officers, who had

saluted them in a military fashion.

30. When Turkish troops and "policemen" started beating the women

with electrically charged clubs the second applicant tried to protect

the women. He was beaten mercilessly and thrown on the ground. The

troops tore apart his vestments and stepped on his priest's cap whilst

they continued to kick him, hit him and spit on him. The bruises from

their beating did not disappear for a long time and lumps remained on

his left leg. One of the Turks grabbed his beard and pulled it

unceasingly until a bunch of hair was uprooted. A Turk wearing a

camouflage uniform with dark complexion punched him so violently in the

face that he felt great pain and lost his glasses.

31. The second applicant was led to a bus through the mob that

swore, gestured at him and spat on him. He was holding in his hands

the pieces of his ragged vestments and his cap which could no longer

be worn. His vestments were full of spitting and so was his face.

Whilst he was taken to the bus the mob was beating him continuously.

He was taken to "Pavlides Garage". The mob had gathered outside the

garage, shouted, threatened and threw stones on the windows and the

roof creating panic and fear among the prisoners. One stone broke

through the roof and fell into the garage. At one moment the troops

allowed the mob to break into the garage but later they pushed them

back.

32. At 1 a.m. in the morning of 20 July they came to interrogate

the second applicant. They were asking questions in Greek and one

interrogator took notes in Turkish. The second applicant refused to

sign the notes. At around 2 a.m. the second applicant was taken

together with the first applicant to the "police station" known as

"Seragio". They were left with one guard who was later replaced by

another one. Two of the persons who visited them during that night

were very provocative. At 2.30 p.m. they were ordered to go downstairs

for presentation to "court".

33. The "court" proceedings were short. The "judge", requested to

prolong detention for another three days for further interrogations,

granted two days' prolongation.

34. The second applicant was then driven to a prison known as

"Seragio" where he was visited by the "Minister of Justice".

35. On 21 July he was woken up at 1 a.m. and taken to a hall so

that he could write down his name. Later he was brought before the

"court". The first applicant spoke on behalf of the group. The

witnesses lied. The "court decision" was reserved.

36. Back in prison the second applicant received a towel from the

Red Cross. After midnight he was woken up and photographed holding a

sign with his name.

37. On 22 July the detainees were disturbed in their morning

prayers by loud radio music of the guards. In the afternoon they were

visited by the United Nations' representatives.

38. Later the second applicant was again brought before the

"court". The uproar of the mob outside was so loud that the "judge"

interrupted the reading of her "decision". The second applicant was

pronounced "guilty". The sentence was three days' imprisonment and a

fine of 100,000 CYP, or ten days' detention in default. At the exit

of the "court" the detainees were attacked by the mob. Stones hit the

windscreen of the bus and broke it. The bus changed route and at high

speed drove back to the prison.

39. On Sunday 23 July the male detainees held prayers and a

memorial service, the clergymen having been refused access to the

female detainees. On 24 July prayers were stopped by a prison officer

and the second applicant was told that they were prohibited. He then

went on a hunger strike and only drank water and refused examination

by the prison doctor. On 25 July he was again interrogated.

40. On 26 July the second applicant was informed that according to

prison regulations after 48 hours of hunger strike all hunger strikers

are examined by a doctor. He refused saying that he would only accept

an examination by a doctor practising in the Republic of Cyprus or at

least a doctor of the United Nations. They then took away all his

personal belongings, watch, pen, keys and cross.

41. On 27 July the second applicant again refused food and a

medical examination. He was led to a horrible cell of 2 x 1.5 metres,

dark with a small light window very high up, and was locked up. The

guard promised to bring him his personal belongings from the other

cell, i.e. towel etc., but never did. In the afternoon he was taken

out to meet a group of Turkish journalists. Subsequently he was

visited by United Nations' representatives who told him that he would

be released on 3 August.

42. On 28 July two Turkish convicts came to clean the cell. They

brought a tray with some chicken, potatoes, bread, onions and salad

which they placed on the bedside table. The second applicant had a

back problem because of the beatings which had kept him sitting on a

chair for the last three previous nights. A television team filmed the

food.

43. On 29 July the second applicant again refused to be medically

examined.

44. On 30 July the second applicant's personal belongings were

returned to him. He was searched and released at about 11.30 a.m.

Application No. 15318/89

The third applicant is a Cypriot citizen born in 1949 and

residing at Nicosia. She is represented by Mr. Achileas Dimitriades,

a lawyer practising in Nicosia.

The facts of the case, as they have been stated by the third

applicant, may be summarised as follows:

45. On a number of dates between July 1967 and April 1974 the plots

of land Nos. 4609, 4610, 4618, 4619, 4748, 4884, 5002, 5004, 5386, 5390

in the district of Kyrenia in Cyprus had been donated or purchased by

the third applicant's father and were registered in her name as owner.

The applicant is still the owner of these plots.

46. The third applicant grew up in Kyrenia with her family. She

married in 1972 and moved with her husband to Nicosia. She visited her

family frequently, intending to develop the property her father had

given her in Kyrenia and return there to live. Construction had

actually begun on plot No. 5390, and one of the flats was intended for

her family.

47. The 1974 invasion deprived the third applicant of access to and

use of her property and of the right to enjoy her home town and move

and live freely with her family and the Kyrenian people.

48. The third applicant's opposition to the continuous violation

of her basic human rights and the division of the island by the Turkish

troops, as well as her wish to see Cyprus reunified and to return to

Kyrenia found expression in the aims and goals of the "Women Walk Home"

movement. She participated in each of the four marches organised by

"Women Walk Home", in Spring 1975, in June and November 1987, and on

19 March 1989. On all four occasions she was prevented from walking

home by the Turkish troops.

49. On 19 March 1989 the third applicant, leading a group of some

fifty participants in the march, advanced towards the Church of the

Holy Cross (Stavros) in the Turkish-occupied part of Cyprus. They

passed the United Nations' guard post, but further on unarmed Turkish

soldiers tried to prevent them from continuing. The group persisted,

but when they reached the churchyard the soldiers surrounded them and

they were unable to move any further up the hill.

50. The women all sat down calmly and the third applicant reminded

everyone to be quiet. As they sat there, holding white flags, the

Turkish army was gradually replaced by members of the Turkish Cypriot

"police force", who advanced wearing helmets and carrying shields and

clubs.

51. The Turkish army and so-called police then started pushing them

down the hill. The third applicant too was pushed and two "policemen"

took hold of her. She was carried round to the west side of the hill

and deposited on the ground with other women. A Turkish

officer who was in charge of the situation asked them if they needed

anything. Two United Nations' officers were also there to reassure the

women that they would make all the necessary arrangements for their

release. The women sat there for about two hours, while negotiations

took place between the United Nations' representatives, the Turkish

army, and the "police".

52. Eventually, the group was split up and the third applicant was

put into an ambulance with six or seven other women. They were

escorted by two Turkish Cypriot "policewomen" and a United Nations'

officer. The ambulance took them first to the village of Lourougina,

where a great many Turkish Cypriots and settlers (identifiable by their

clothes) were demonstrating - apparently a pre-arranged

counter-demonstration. They were held up in a traffic jam, with some

of these people banging on the ambulance and gesticulating at the women

to go away. The ambulance stopped at Lourougina "police station" at

the north entrance of the village. One could clearly see soldiers in

blue berets lined up there. They had no blue United Nations' badges

and were Turkish commandos.

53. The car went back to Nicosia. Near the Ledra Palace they

waited for a further two hours or more. Before their release they

passed one by one before a United Nations' doctor, who asked if anyone

had been injured. The third applicant had nothing to report on that

score.

54. The women were eventually all brought to the free area of the

Republic through Nicosia International Airport, where the third

applicant's family was waiting for her. It was midnight by this time.

Further submissions by the applicants

The applicants claim that their detention and all other acts

complained of were carried out by Turkish military forces stationed in

the northern part of Cyprus or by forces acting under their authority.

In support of their submissions the applicants have filed a

number of statements, photographs and other documents.

Statement by the respondent Government on the facts alleged in the

applications

The respondent Government refute the applicants' account of the

facts. They submit that the alleged events relate to a demonstration

organised with the knowledge of the Greek Cypriot authorities. The

demonstration was designed as an attack against the neutral zone and

the territory of the "Turkish Republic of Northern Cyprus". The press

in Southern Cyprus stressed the aggressive nature of the demonstration.

The Turkish forces stationed on the island under the Treaty of

Guarantee did not intervene during the events of 19 July 1989 and had

nothing to do with those events. Only the United Nations' forces and

the security forces of the "Turkish Republic of Northern Cyprus" were

in contact with the demonstrators.

COMPLAINTS

The first and the second applicants complain about their

detention, ill-treatment, the conditions in which they were kept and

the subsequent proceedings. They allege violations of Articles 1, 3,

5, 6, 7, 9 and 13 of the Convention.

The third applicant alleges violations of Article 3 (degrading

treatment) and Article 5 of the Convention and a continuing violation

of Article 8 of the Convention and Article 1 of Protocol No. 1. She

states with regard to the six months' rule (Article 26 of the

Convention) that the violation of Article 8 took place on 19 March 1989

and that Turkey, by refusing the applicant access to her property, has

gradually, over the last 16 years, affected the rights of the applicant

as a property owner and in particular her right to a peaceful enjoyment

of her possessions, thus constituting a continuing violation of Article

1 (submissions of 18 December 1990, paras. 23 and 24).

II. Turkey's declaration under Article 25 of the Convention

55. On 28 January 1987 the Government of Turkey deposited the

following declaration with the Secretary General of the Council of

Europe pursuant to Article 25 of the Convention:

"The Government of Turkey, acting pursuant to Article 25

(1) of the Convention for Protection of Human Rights and

Fundamental Freedoms, hereby declares to accept the competence

of the European Commission of Human Rights to receive petitions

according to Article 25 of the Convention subject to the

following:

(i) the recognition of the right of petition extends only to

allegations concerning acts and omissions of public authorities

in Turkey performed within the boundaries of the territory to

which the Constitution of the Republic of Turkey is applicable;

(ii) the circumstances and conditions under which Turkey, by

virtue of Article 15 of the Convention, derogates from her

obligations under the Convention in special circumstances must

be interpreted, for the purpose of the competence attributed to

the Commission under this declaration, in the light of Articles

119 to 122 of the Turkish Constitution;

(iii) the competence attributed to the Commission under this

declaration shall not comprise matters regarding the legal status

of military personnel and in particular, the system of discipline

in the armed forces;

(iv) for the purpose of the competence attributed to the

Commission under this declaration, the notion of 'a democratic

society' in paragraphs 2 of Articles 8, 9, 10 and 11 of the

Convention must be understood in conformity with the principles laid

down in the Turkish Constitution and in particular its Preamble and its

Article 13;

(v) for the purpose of the competence attributed to the Commission

under the present declaration, Articles 33, 52, and 135 of the

Constitution must be understood as being in conformity with Articles 10

and 11 of the Convention.

This declaration extends to allegations made in respect of

facts, including judgments which are based on such facts which have

occurred subsequent to the date of deposit of the present declaration.

This declaration is valid for three years from the date of deposit with

the Secretary General of the Council of Europe."

56. On 29 January 1987 the Secretary General of the Council of

Europe transmitted the above declaration to the other High Contracting

Parties to the Convention and added:

"At the time this declaration was deposited, I drew the

Turkish authorities' attention to the fact that this notification

made pursuant to Article 25 (3) of the Convention in no way

prejudges the legal questions which might arise concerning the

validity of the said declaration."

57. In a letter of 5 February 1987 to the Secretary General the

Permanent Representative of Turkey observed:

"...

The unequivocal wording of Article 25 (3) of the

Convention offers no basis for expressing opinions or adding

comments when transmitting the copies of the Turkish declaration

to the High Contracting Parties during the discharge of your

functions as depositary.

According to Article 25 (3) of the Convention, the

Secretary General, with regard to each declaration under Article

25 deposited with him, shall 'transmit copies thereof to the High

Contracting Parties and publish them'.

International treaty practice, in particular that

followed by the Secretary General of the United Nations as

depositary to such similar important treaties as the Statute of

the International Court of Justice or the covenants and

conventions dealing with human rights and fundamental freedoms

also confirms that the depositary has to refrain from any

comments on the substance of any declaration made by a

Contracting Party.

..."

58. In his reply of 10 February 1987 the Secretary General stated

with regard to his earlier letter of 29 January:

"...

I consider that this course is in keeping with

international treaty law and with the relevant practice, as

confirmed by numerous precedents, including the practice of the

Secretary General of the United Nations as depositary. ...

... Article 77 (2) of the Vienna Convention on the Law

of Treaties ... provides as follows:

'In the event of any difference appearing between a State

and the depositary as to the performance of the latter's

functions, the depositary shall bring the question to the

attention of the signatory States and the Contracting States or,

where appropriate, of the competent organ of the international

organisation concerned.'

It is consequently my duty to draw the attention of the

Contracting Parties to a point on which there is a difference

between a Government and myself concerning the performance of my

functions as depositary."

59. The Permanent Representative of Turkey replied on 13 March 1987:

"...

First of all, I would like to state that the Turkish

declaration does not contain any 'reservations' in the sense of

international treaty law. ... The term 'reservations' mentioned

in your letter, therefore, consists solely of a subjective

interpretation and attribution which, in fact, should have been

carefully avoided in view of the clearly limited function of the

depositary according to Article 25 (3) of the Convention ...

(The) Secretary General of the UN, conforming himself to

Resolution 598 (VI) adopted on 12 January 1952 by the General

Assembly, has never refused to register notifications or

declarations made by contracting parties to a Convention to which

he acts as depositary, nor has he made any critical comment about

such notifications or declarations when informing the other

contracting parties thereof.

..."

60. On 6 April 1987 the Deputy Minister of Foreign Affairs of Greece

addressed the following letter to the Secretary General:

"...

The Turkish Government, departing from the practice which

has up to now been followed by all States in respect of

declarations made pursuant to the aforementioned provision, has

thought it right to reduce substantially its conventional

obligations by formulating a certain number of reservations ...

(The) Turkish Government has not expressly used the term

reservation in its declaration but ... what is important ... is

not the nomenclature or absence of nomenclature of the act in

question but its content and effect. Accordingly, any unilateral

declaration which limits a State's contractual obligations is

incontestably, from the point of view of international law, a

reservation. This question concerns one of the most established

principles of international treaty law, which has been codified

by the two Vienna Conventions - the Convention of 1969 on the law

of treaties and the Convention of 1986 on the law of treaties

between States and international Organisations or between

international Organisations. Both Conventions provide in

identical terms that 'the expression 'reservation' means a

unilateral statement, however phrased or named, made by a State

when signing, ratifying, accepting, approving or acceding to a

treaty whereby it purports to exclude or to modify the legal

effect of certain provisions of the treaty in their application

to that State' (Article 2, para. 1 (d)).

It is therefore evident that limitations and restrictions

contained in the aforementioned declaration of the Turkish

Government constitute reservations from the point of view of

international law. Moreover, this results clearly from the

expression 'subject to' used in the Turkish declaration.

Accordingly, the question which arises is to know whether

the reservations are compatible with the European Convention on

Human Rights. In our opinion, there is no doubt that they are

incompatible and in particular for the following reasons:

The issue of reservations is regulated very strictly by

Article 64 of the Convention ...

It is self-evident that the Turkish reservations are far

from being in agreement with the conditions set out in this

article since they are neither compatible with the requirement

of time nor with the basic conditions provided therein.

It is moreover incontestable that reservations to the

European Convention on Human Rights may not be formulated on the

basis of any provision other than Article 64. This conclusion

results not only from Article 64 itself, which is the only

provision regulating reservations, but also from the overall

structure and nature of the European Convention on Human Rights

as well as the general principles of international law relating

to reservations. Furthermore, Article 25 provides neither

directly nor implicitly the possibility of formulating

reservations similar to the reservations set out in the Turkish

declaration. The position cannot be otherwise for if

reservations could be made on the basis of Article 25, such a

method of proceeding would undermine Article 64 and would sooner

or later destroy the very foundations of the Convention.

Article 19, paragraph b, of the Convention on the law of

treaties, proclaiming a principle of incontestable legal logic,

states that: 'a State may, when signing, ratifying, accepting,

approving or acceding to a treaty, formulate a reservation

unless: b) the treaty provides that only specified reservations,

which do not include the reservation in question, may be made'

(see also Article 19 (b) of the Convention on the law of treaties

between States and international Organisations or between

international Organisations).

It follows that the Turkish reservations, as they are

outside the scope of Article 64, must be considered as

unauthorised reservations under the Convention and, accordingly,

as illegal reservations. Consequently, they are null and void

and may not give rise to any effect in law.

In conclusion, we insist on stressing how regrettable it

is in this affair of extreme importance which concerns European

public order that you have not up to now fully exercised the

depositary functions resulting from general international law

and, in particular, from the Vienna Conventions of 1969 and 1986

(see Article 77, paragraph 1 (d), and paragraph 2, respectively),

particularly since over and above your depositary role, you are

one of the organs which must supervise the strict application of

the European Convention on Human Rights (Article 57)."

61. The Secretary General replied as follows in his letter of 27

April 1987:

"Referring to the observations ... relating to the

exercise of my functions as depositary under the European

Convention on Human Rights, I would like to recall that, at the

time of deposit of the declaration by the Turkish authorities,

I thought it my duty to stipulate that the notification made

pursuant to Article 25 (3) of the Convention in no way prejudged

the legal questions which might arise concerning the validity of

the said declaration.

Moreover, by letter dated 10 February 1987, I drew the attention

of the Contracting Parties, referring to Article 77 (2) of the

Vienna Convention on the law of treaties, to the divergence which

had arisen between the Government of Turkey and myself concerning

the discharge of my aforementioned functions. In this way, I

consider that I have complied with the law and practice of

treaties and international organisations resulting in particular

from the Vienna Convention of 1969."

62. The Permanent Representative of Sweden, in his letter of 21

April 1987, replied as follows to the Secretary General's letter of 29

January 1987 transmitting Turkey's declaration under Article 25:

"...

The Swedish Government considers this declaration an

important step for the protection of human rights in Turkey.

However, the reservations and declarations which Turkey has made

in connection with the said recognition raise various legal

questions as to the scope of the recognition. The Government

therefore reserves the right to return to this question in the

light of such decisions by the competent bodies of the Council

of Europe that may occur in connection with concrete petitions

from individuals."

63. The Minister of Foreign Affairs of Luxembourg, in his letter of

21 April 1987, replied as follows to the notification, by the Secretary

General, of Turkey's declaration under Article 25:

"...

The reservations, which are set out in that declaration

and which limit the recognition by the Turkish Government of the

competence of the European Commission of Human Rights to receive

individual petitions, raise a fundamental question regarding the

scope of legal instruments elaborated within the Council of

Europe. The question is to know inter alia whether the

unilateral expression of a limitation of an international

Convention's recognition is valid or not.

... Luxembourg reserves to itself the right to express,

when it deems appropriate and before the competent bodies of the

Council of Europe, its position in regard to the Turkish

Government's declaration. Between now and then, the absence of

a formal and official reaction on the merits of that problem

should not ... be interpreted as a tacit recognition by

Luxembourg of the Turkish Government's reservations."

64. The Permanent Representative of Denmark, in his letter of

30 April 1987 to the Secretary General, stated the following with regard

to Turkey's declaration:

"...

In the view of the Danish Government, the reservations

and declarations which accompany the said recognition raise

various legal questions as to the scope of the recognition. The

Government therefore reserves its right to return to these

questions in the light of future decisions by the competent

bodies of the Council of Europe in connection with concrete

petitions from individuals."

65. The Permanent Representative of Norway, in his letter of 4 May

1987 to the Secretary General, made the following statement:

"...

In the view of the Norwegian Government the step taken

by the Turkish Government is to be welcomed as an important

contribution to the strengthening of human rights in Europe.

However, the wording of the declaration could give rise to

difficult issues of interpretation as to the scope of the

recognition of the right to petition. In the event, such issues

fall to be resolved by the European Commission of Human Rights

in dealing with concrete petitions from individuals.

The right of individual petition under Article 25 of the

Human Rights Convention forms an essential part of the system of

procedural safeguards for human rights in Europe. It is

therefore desirable to avoid any doubt as to the scope and

validity of the recognition by individual States of this right

which may be raised by generalised stipulations in respect of the

context in which petitions would be accepted as admissible,

interpretative statements or other conditionalities."

66. The Permanent Representative of Turkey, in his letter of

26 June 1987 to the Secretary General, made the following comments with

regard to the above letters by Greece, Sweden, Luxembourg, Denmark and

Norway:

"First of all, I would like to emphasise that the points

contained in the Turkish declaration cannot be considered as

'reservations' in the sense of international treaty law.

According to the Vienna Convention on the Law of Treaties of

1969, which for most of its provisions purports to codify

existing principles of international treaty law, 'a reservation

modifies for the reserving State the provisions of the treaty to

which the reservation relates to the extent of the reservation'.

In this sense, a reservation distinctly alters for the reserving

State the scope of its commitments under the treaty.

Turkey ratified the Convention and its First Protocol in

1954, by making a reservation with regard to Article 2 of the

Protocol. The 'conditions' attached to the Turkish declaration

of 28 January 1987, however, are not 'reservations' to

commitments arising out of the Convention. They do not modify

Turkey's general obligations under the Convention. The

Convention, as ratified and subject to the 'reservation' made in

1954, continues to bind Turkey to the full extent and ... is open

to allegations under Article 24.

In other words, the conditions attached to the

declaration of 28 January 1987 do not purport to modify or to

exclude any of the legal provisions of the Convention. The

'conditions' have the only purpose to define and limit the

granting of additional power and authority which Turkey as a

Contracting State has on its own volition bestowed upon the

Commission.

Furthermore, any acceptance of an optional clause of an

international treaty is tantamount to an expression of consent

by the State concerned to be bound by that provision. It is thus

based on the subjective attitude and understanding of the State

concerned. This means that the State is free, within the limits

of the rules of the international treaty or convention concerned,

to qualify its consent to be bound by the optional clause.

When recognising the right of individual petition

pursuant to Article 25 of the European Convention on Human

Rights, the States are granting an additional competence to the

European Commission of Human Rights. Such granting of competence

can be made subject to certain conditions.

Article 25 of the Convention does not contain any

indications neither of possible conditions nor of prohibition of

such conditions. In particular, it does not envisage a qualified

declaration nor does it prohibit such a declaration. Thus a

declaration under Article 25 accompanied with certain conditions

cannot be seen as being contrary to an explicit rule of the

Convention.

Finally, I would like to point out in this connection

that the only competent organ to make a legally binding

assessment in this respect is the European Commission of Human

Rights, when being seized by an individual application, and

eventually the Committee of Ministers when acting pursuant to

Article 32 of the Convention."

67. On 22 July 1987 the Permanent Representative of Belgium, in a

letter to the Secretary General, stated the following with regard to

Turkey's declaration under Article 25:

"...

The Belgian Government considers this declaration an

important step towards the protection of human rights in Turkey.

However, the conditions and qualifications set forth in this

declaration, which are liable to limit the recognition by the

Turkish Government of the competence of the European Commission

of Human Rights to receive individual petitions, raise legal

questions as to the scope of an essential provision of the system

of protection of the rights and fundamental freedoms provided for

by the Convention.

Belgium therefore reserves the right to express its

position in regard to the Turkish Government's declaration, at

a later stage and before the competent bodies of the Council of

Europe. Meanwhile the absence of a formal reaction on the merits

of the problem should by no means be interpreted as a tacit

recognition by Belgium of the Turkish Government's conditions and

qualifications."

PROCEEDINGS BEFORE THE COMMISSION

Applications Nos. 15299/89 and 15300/89 were introduced on

21 July and registered on 25 July 1989. Application No. 15318/89 was

introduced on 22 July and registered on 31 July 1989.

On 8 August 1989 counsel for the first and second applicants

informed the Commission that these applicants had been released. On 28

August 1989 he made further submissions.

On 9 November 1989 the Commission decided to join the

applications, to bring them to the attention of the respondent

Government and to invite the Government to submit observations on the

admissibility and merits of the applications.

The respondent Government's observations were filed, after an

extension of the time-limit, on 28 February 1990.

The applicant's observations in reply were submitted, after an

extension of the time-limit, on 6 May (Applications Nos. 15299/89 and

15300/89) and 11 May 1990 (Application No. 15318/89), respectively.

The Commission considered the applications again on 5 October

1990 and decided to invite the parties to a hearing on the admissibility

and merits of the applications.

The applicants filed further written submissions on 18 December

The hearing took place in Strasbourg on 11 January 1991. The

parties were represented as follows:

The Government:

Professor Suat BILGE, Agent

Professor Heribert GOLSONG, Counsel

Professor Elie LAUTERPACHT, Counsel

Münci ÖZMEN, Expert at the Ministry of Foreign Affairs

Dr. Deniz AKÇAY, Expert at the Ministry of Foreign Affairs

Daniel BETHLEHEM, Barrister, Expert

The applicants:

First and second applicants:

Dr. Kypros CHRYSOSTOMIDES, Advocate, Nicosia

Chrystalla PITSILLI, Barrister, Nicosia

Third applicant:

Achilleas DEMETRIADES, Barrister, Nicosia

Joanna LOIZIDOU, Barrister, Nicosia

First, second and third applicants:

Professor Ian BROWNLIE Q.C., Counsel

The first and third applicants were also present.

THE LAW

I. The Commission's competence in relation to the declaration

made by Turkey under Article 25 (Art. 25) of the Convention

69. Article 25 (Art. 25) of the Convention provides:
70. "The Commission may receive petitions addressed to the

Secretary General of the Council of Europe from any person,

non-governmental organisation or group of individuals claiming

to be the victim of a violation by one of the High Contracting

Parties of the rights set forth in this Convention, provided that

the High Contracting Party against which the complaint has been

lodged has declared that it recognises the competence of the

Commission to receive such petitions. Those of the High

Contracting Parties who have made such a declaration undertake

not to hinder in any way the effective exercise of this right.

71. Such declarations may be made for a specific period.
72. The declarations shall be deposited with the Secretary

General of the Council of Europe who shall transmit copies

thereof to the High Contracting Parties and publish them.

73. The Commission shall only exercise the powers provided

for in this Article when at least six High Contracting Parties

are bound by declarations made in accordance with the preceding

paragraphs."

74. Turkey has recognised the Commission's competence under Article

25 (Art. 25) in her declaration of 28 January 1987.

75. The applicants claim to be victims of violations of the

Convention by Turkey in the "buffer zone" and the northern part of

Cyprus. The respondent Government, invoking the territorial limitation

in paragraph (i) of their declaration of 28 January 1987, submit that

Turkey has not recognised the Commission's competence to examine the

present applications, which lie outside the territorial framework

specified in the declaration. The applicants contest the validity of

this territorial limitation and its applicability to the present case.

The respondent Government state that the declaration has been conceived

as a whole and that the rejection of any of the conditions contained

therein would make the declaration inexistent.

76. The Commission must first determine the validity of Turkey's

declaration and its scope. Its competence for this determination has

expressly been recognised by Turkey in earlier correspondence (letter of

26 June 1987 to the Secretary General) and at the hearing before the

Commission. Moreover, the Secretary General of the Council of Europe

has on 28 January 1987, when Turkey deposited her declaration, drawn the

Turkish authorities' attention to the fact that the notification of the

declaration to the other High Contracting Parties "in no way prejudges

the legal questions which might arise concerning the validity of the

said declaration".

a) The meaning of the territorial limitation in

para. (i) of Turkey's declaration

77. The applicants submit with regard to the scope of the

territorial restriction that, on a reasonable interpretation, it does

not provide any assistance to Turkey because the Turkish Constitution

must apply to the actions of its armed forces and to the decisions of

the Government concerning the disposition and use of the armed forces.

They note that Turkey has replaced her declaration of 1987 "with a new

form of words".

78. The Commission finds that the phrase "acts or omissions of

public authorities in Turkey" in the declaration of 1987 clearly refers

to the metropolitan territory, but that the words "territory to which

the Constitution of Turkey is applicable" might also be interpreted as

including acts performed by Turkish authorities abroad, which are

governed by the Turkish Constitution. The Commission notes that the

latter phrase has in the Turkish declaration of 7 March 1990 been

replaced by the words "within the boundaries of the national territory

of the Republic of Turkey".

79. The Commission finds that the territorial restriction in

Turkey's declaration of 28 January 1987 must be interpreted in the light

of its clear object and purpose in view of the previous Inter-State

cases brought by Cyprus against Turkey. The applicants have stated

earlier: "It is generally recognised that this restriction has the

exclusive purpose of seeking to avoid the responsibility of Turkey for

breaches of the European Convention arising from Turkish actions in the

Turkish occupied area of Cyprus."

80. The Commission finds on the basis of the above interpretation

that the acts complained of in the present applications come within the

scope of the territorial restriction in Turkey's declaration of 28

January 1987. The Commission must therefore determine whether its

jurisdiction is limited by this clause.

b) The validity of the limitations in paras. (i) to (v)

of Turkey's declaration

81. Turkey's declaration under Article 25 (Art. 25) contains - apart

from the temporal limitation in the first sentence of the last paragraph

- five restrictive clauses in paras. (i) to (v). In previous

applications by individuals against Turkey the Commission has not

determined the validity of any of these five clauses because they were

not invoked. However, when admitting Applications Nos. 14116/88 and

14117/88 (Sargin and Yagci v. Turkey, Dec. 11.5.89, Revue universelle

des droits de l'homme 1989 p. 516, also to be published in Decisions and

Reports), the Commission based itself on a valid declaration by Turkey

recognising the right of individual petition.

82. The Commission notes that these "conditions" are set out

separately, and are different in their nature, from the temporal

limitation in the last paragraph of Turkey's declaration under Article

25 (Art. 25). It recalls that temporal limitations are permissible

under paragraph 2 of Article 25 (Art. 25-2), which provides that

declarations under paragraph 1 "may be made for a specific period".

This clause has always been understood as allowing High Contracting

Parties to exclude retroactivity of declarations made under Article 25

(Art. 25), cf. the declarations by the United Kingdom of 14 January 1966

(Yearbook 9 p. 8), by Italy of 20 June 1973 (Yearbook 16 p. 10), by

Spain of 11 June 1981 (Yearbook 24 p. 8), by Liechtenstein of 15 August

1985 (Yearbook 28 p. 11) and by Greece of 20 November 1985 (Yearbook 28

p. 10), and Application No. 6323/73, X. v. Italy, Dec. 4.3.76, D.R. 3 p.

83. With regard to the specific terms of the temporal restriction in

Turkey's declaration the Commission has previously held that it is

precluded by this restriction from examining applications concerning

administrative decisions taken before, and confirmed by judgments after,

28 January 1987 (Application No. 13623/88, Dec. 13.4.89).

84. The legal situation is different with regard to the limitations

contained in paras. (i) to (v) of Turkey's declaration. They are not,

like temporal restrictions, covered by paragraph 2 of Article 25

(Art. 25-2) but, as limitations of a different character (ratione loci,

ratione materiae and ratione personae), not expressly authorised in this

Article. The Commission has examined whether they are nevertheless

compatible with Article 25 (Art. 25), as claimed by the respondent Government.

85. Article 31 para. 1 of the Vienna Convention on the Law of

Treaties provides that a treaty shall be interpreted in good faith in

accordance with "the ordinary meaning to be given to the terms of the

treaty in their context and in the light of its object and purpose".

86. As regards the ordinary meaning of Article 25 para. 1

(Art. 25-1) of the European Convention on Human Rights, the Commission

considers that the wording "the rights set forth in this Convention"

presupposes total, not partial recognition. Otherwise the Convention

would in Article 25 para. 1 (Art. 25-1) have referred to "any" or "some"

rights.

87. The Commission has next considered Article 25 (Art. 25) in the

context of the Convention as a whole.

88. It notes that, under Article 64 para. 1 (Art. 64-1) first

sentence any State may, when signing the Convention or when depositing

its instrument of ratification, make a reservation in respect of any

particular provision of the Convention to the extent that any law then

in force in its territory is not in conformity with the provision. It

follows from the clear wording of this provision ("when signing the

Convention or when depositing its instrument of ratification") that a

High Contracting Party may not, when at a later stage recognising the

right of individual petition, substantially modify its Convention

obligations for the purpose of proceedings under Article 25 (Art. 25).

The respondent Government have repeatedly stated that the additional

clauses in their declaration under Article 25 (Art. 25) are not to be

considered as "reservations" in the sense of international treaty law.

89. The Commission observes that, if considered valid, the

restrictions ratione materiae in paras. (ii), (iv) and (v) of Turkey's

declaration would lead to the result that the guarantee of specific

Convention rights would in proceedings under Article 25 (Art. 25) differ

from the guarantee of the same rights applying in proceedings under

Article 24 (Art. 24). However, the competence of the Commission cannot

in regard to the substance of Convention rights be different in the two

proceedings.

90. The conclusion, that Article 25 (Art. 25) only permits the

temporal restrictions expressly authorised in its second paragraph, is

further supported by a comparison with Article 46 (Art. 46-2), which

provides in paragraph 2 that declarations recognising the jurisdiction

of the Court "may be made ... for a specified period". This provision

is analogous to paragraph 2 of Article 25 (Art. 25-2). Article 46 para.

2 (Art. 46-2) further provides that declarations under paragraph 1 "may

be made unconditionally or on condition of reciprocity on the part of

several or certain other High Contracting Parties". As pointed out by

the Commission in the case of Kjeldsen, Busk Madsen and Pedersen, no

further conditions are permitted under this Article (see Eur. Court

H.R., Series B no. 21, p. 119; cf. also Eur. Court H.R., "Linguistic"

case, Series B no. 3, Vol. I p. 432).

91. The Commission also notes that Article 6 para. 2 of Protocol No.

4 and Article 7 para. 2 of Protocol No. 7 (P4-6-2, P7-7-2) provide that

the right of individual recourse recognised by a declaration made under

Article 25 (Art. 25) of the Convention shall not be effective in

relation to the Protocol unless the State concerned has made a statement

recognising such a right. As pointed out by the applicants such an

express stipulation would not have been necessary had Article 25

(Art. 25) allowed such limitations of the right of individual petition

to be placed unilaterally by a State when recognising the right of

individual petition.

92. The Commission has further examined the five conditions in

paras. (i) to (v) of Turkey's declaration under Article 25 (Art. 25) in

the light of the object and purpose of the Convention.

93. It is clear from the Preamble to the Convention that the High

Contracting Parties in concluding the Convention intended to achieve

greater unity by a common understanding and observance of human rights

and to take steps for the collective enforcement of the rights and

freedoms defined in Section I. The Commission found in the Austria v.

Italy case (No. 788/60, Dec. 11.1.61, Collection 7 p. 23 at pp. 40-43 =

Yearbook 4 p. 116 at pp. 136-142) that the purpose of the High

Contracting Parties to the Convention was "to establish a common public

order of the free democracies of Europe" and that the obligations

undertaken by the Parties in the Convention "are

essentially of an objective character" - a character which also appears

in the machinery provided in the Convention for its collective

enforcement - "being designed rather to protect the fundamental rights

of individual human beings from infringement by any of the High

Contracting Parties than to create subjective and reciprocal rights for

the High Contracting Parties themselves".

94. The Court has similarly held in the case of Ireland v. the

United Kingdom (Eur. Court H.R., judgment of 18 January 1978, Series A

no. 25 p. 90 para. 239) that, unlike international treaties of the

classic kind, "the Convention comprises more than mere reciprocal

engagements between contracting States. It creates, over and above a

network of mutual, bilateral undertakings, objective obligations which,

in the words of the Preamble, benefit from a 'collective enforcement'".

95. The Commission finds in the present case that the character of

the Convention, as a constitutional instrument of European public order

in the field of human rights, excludes application by analogy, as

suggested by the respondent Government, of the State practice under

Article 36 para. 3 of the Statute of the International Court of Justice.

Declarations under this clause create mere reciprocal agreements between

contracting States. The Commission notes that Article 36 para. 3 of the

Statute does not, like Article 25 (Art. 25) of the European Convention

on Human Rights, concern petitions brought by individuals but

applications by States. State applications are in the Convention

regulated by Article 24 (Art. 24). Under this provision they may,

without any further agreement and without fulfilling any condition of

reciprocity, be brought by every State which has ratified the Convention

(cf. the Austria v. Italy case loc. cit. and Nos. 9940-44/82 - France,

Norway, Denmark, Sweden and Netherlands v. Turkey -, Dec. 6.12.83, D.R.

35 p. 143, at pp. 168-170).

96. The Commission has finally examined the Convention practice

before and after the Turkish declaration of 28 January 1987, in

accordance with Article 31 para. 3 of the Vienna Convention on the Law

of Treaties, which provides that there shall be taken into account,

together with the context: a) any subsequent agreement between the

parties regarding the interpretation of the treaty or the application of

its provisions; and b) any subsequent practice in the application of the

treaty which establishes the agreement of the parties regarding its

interpretation.

97. The respondent Government relied at the hearing on the

territorial limitation contained in the second paragraph of the United

Kingdom declaration of 14 January 1966 (Yearbook 9 pp. 8 - 9), which

excluded petitions "in relation to anything done or occurring in any

territory in respect of which the competence of the ... Commission ...

has not been recognised by the Government of the United Kingdom or to

petitions in relation to anything done or occurring in the United

Kingdom in respect of such a territory or of matters arising there."

98. The Commission notes that this clause excluded not only local

but also central acts - e.g. decisions of the Privy Council in the

United Kingdom - concerning non-metropolitan territories. However, this

restriction was formulated by the United Kingdom in view of Article 63

para. 4 (Art. 63-4) of the Convention, which permits High Contracting

Parties to limit the application of declarations under Article 25

(Art. 25) as regards the non-metropolitan territories referred to in

Article 63 (Art. 63). The Commission is not in the present case called

upon to verify whether the United Kingdom has in the above declaration

correctly applied Article 63 (Art. 63). It will consider below whether

Article 63 (Art. 63) has any relevance for the present applications.

99. As regards practice subsequent to the Turkish declaration of 28

January 1987, the Commission notes that the restrictions contained in

the declaration were rejected by one High Contracting Party - i.e.

Greece - and that the Governments of Sweden, Luxembourg, Denmark, Norway

and Belgium, and the Secretary General of the Council of Europe as

depositary, reserved their positions in view of the serious Convention

issues raised by the Turkish declaration.

100. The respondent Government also relied at the hearing on the

declaration made under Article 25 (Art. 25) by the Minister of Foreign

Affairs of Cyprus on 9 August 1988, which was deposited on 5 September

1988 and reads as follows:

"On behalf of the Government of the Republic of Cyprus,

I declare, in accordance with Article 25 (Art. 25) of the

Convention ... , that ... Cyprus recognizes, for the period

beginning on 1 January 1989 and ending on 31 December 1991, the

competence of the ... Commission ... to receive petitions

submitted ... subsequently to 31 December 1988, by any person,

non-governmental organisation or group of individuals claiming,

in relation to any act or decision occurring or any facts or

events arising subsequently to 31 December 1988, to be the victim

of a violation of the rights set forth in that Convention.

... (The) competence of the Commission by virtue of

Article 25 (Art. 25) ... is not to extend to petitions concerning

acts or omissions alleged to involve breaches of the Convention

or its Protocols, in which the Republic of Cyprus is named as the

Respondent, if the acts or omissions relate to measures taken by

... Cyprus to meet the needs resulting from the situation created

by the continuing invasion and military occupation of part of the

territory of the Republic by Turkey."

101. The Commission notes that the Secretary General, when

transmitting the above declaration by Cyprus to the other High

Contracting Parties on 12 September 1988, recalled that "according to

the general rules this notification made pursuant to Article 25 (3)

(Art. 25-3) of the Convention in no way prejudges the legal questions

which might

arise concerning the validity of the said declaration". The Commission

further observes that the validity of the limitation in the second

paragraph of the declaration by Cyprus was not at issue, and not

determined, in the Commission's decision of 6 December 1990 admitting

Application No. 15070/89 - Modinos v. Cyprus.

102. Having regard to its above considerations, the Commission finds

no legal basis in the Convention for a restriction of a declaration

under Article 25 (Art. 25-2) other than the temporal limitations

provided for in paragraph 2 of this Article.

103. The Commission has finally examined the territorial restriction

in para. (i) of Turkey's declaration in the light of Articles 1 and 63

(Art. 1, 63) of the Convention, as applied by the Convention organs in

the determination of their competence ratione loci.

104. Article 1 (Art. 1) of the Convention provides:

"The High Contracting Parties shall secure to everyone

within their jurisdiction the rights and freedoms defined

in Section 1 of this Convention."

105. The applicants claim that the alleged actions of Turkish

military forces in Cyprus, and of persons acting under their authority,

fall within Turkey's jurisdiction within the meaning of Article 1

(Art. 1). The Commission recalls that the application of the Convention

extends beyond the national frontiers of the High Contracting Parties

and includes acts of State organs abroad. It has previously stated in

Applications Nos. 6780/74 and 6950/75 (Cyprus v. Turkey, Dec. 26.5.75,

D.R. 2 p. 125 at pp. 136-137), in inter-State proceedings instituted

under Article 24 (Art. 24) of the Convention:

"8. In Article 1 (Art. 1) of the Convention, the High

Contracting Parties undertake to secure the rights and freedoms

defined in Section 1 to everyone 'within their jurisdiction' (in

the French text: 'relevant de leur juridiction'). The Commission

finds that this term is not, as submitted by the respondent

Government, equivalent to or limited to the national territory

of the High Contracting Party concerned. It is clear from the

language, in particular of the French text, and the object of

this Article, and from the purpose of the Convention as a whole,

that the High Contracting Parties are bound to secure the said

rights and freedoms to all persons under their actual authority

and responsibility, whether that authority is exercised within

their territory or abroad ...

The Commission further observes that nationals of a

State, including registered ships and aircrafts, are partly

within its jurisdiction wherever they may be, and that authorised

agents of a State, including diplomatic or consular agents and

armed forces, not only remain under its jurisdiction when abroad

but bring any other persons or property 'within the

jurisdiction' of that State, to the extent that they exercise authority

over such persons or property. Insofar as, by their acts or omissions,

they affect such persons or property, the responsibility of the State is

engaged.

106. The Commission does not find that Article 63 (Art. 63) of the

Convention, providing for the extension of the Convention to other than

metropolitan territories of High Contracting Parties, can be interpreted

as limiting the scope of the term 'jurisdiction' in Article 1

(Art. 1) to such metropolitan territories. The purpose of Article 63 is

not only the territorial extension of the Convention but its adaptation

to the measure of self-government attained in particular

non-metropolitan territories and to the cultural and social differences

in such territories; Article 63 para. 3 (Art. 63-3) confirms this

interpretation. This does not mean that the territories to which

Article 63 (Art. 63) applies are not within the 'jurisdiction' within

the meaning of Article 1 (Art. 1).

107. It follows from the above interpretation of Article 1 (Art. 1)

that the Commission's competence to examine the applications, insofar as

they concern alleged violations of the Convention in Cyprus, cannot be

excluded on the grounds that Turkey, the respondent Party in the present

case, has neither annexed any part of Cyprus nor, according to the

respondent Government, established either military or civil government

there.

It remains to be examined whether Turkey's responsibility under

the Convention is otherwise engaged because persons or property in

Cyprus have in the course of her military action come under her actual

authority and responsibility at the material times. In this respect it

is not contested by the respondent Government that Turkish armed forces

have entered the island of Cyprus, operating solely under the direction

of the Turkish Government and under established rules governing the

structure and command of these armed forces including the establishment

of military courts. It follows that these armed forces are authorised

agents of Turkey and that they bring any other persons or property in

Cyprus 'within the jurisdiction' of Turkey, in the sense of Article 1

(Art. 1) of the Convention, to the extent that they exercise control

over such persons or property. Therefore, insofar as these armed forces,

by their acts or omissions, affect such persons' rights or freedoms

under the Convention, the responsibility of Turkey is engaged."

108. The above view has been confirmed and further developed by the

Commission in Application No. 8007/77 (Cyprus v. Turkey, Dec. 10.7.78,

D.R. 13 p. 85 at pp. 148-150), in the following terms:

"22. The Commission, while maintaining this conclusion in the

present case, wishes to add the following further observations

with regard to the respondent Government's reference to the

'Turkish Federated State of Cyprus'.

109. It is not disputed between the Parties that the European

Convention on Human Rights continues to apply to the whole of the

territory of the Republic of Cyprus, and that the applicant

Government have since 1974 been prevented from exercising their

jurisdiction in the north of the island. This restriction on the

actual exercise of jurisdiction by the applicant Government, as

the Government of the Republic of Cyprus, is due to the presence

of Turkish armed forces in the north of the island. The

respondent Government submit that the presence of their armed

forces in that area is justified both under the Treaty of

Guarantee of 1960 and by the wish of the 'Turkish Federated State

of Cyprus', proclaimed in the north of the Republic in 1975.

110. The Commission is not called upon to pronounce on the

validity of either of these alleged justifications under general

law. It is bound to observe, however, that one High Contracting

Party, namely Cyprus, has since 1974 been prevented from

exercising its jurisdiction in the northern part of its territory

by the presence there of armed forces of another High Contracting

Party, namely Turkey; that the recognition by Turkey of the

Turkish Cypriot administration in that area as 'Turkish Federated

State of Cyprus' does not, according to the respondent

Government's own submissions, affect the continuing existence of

the Republic of Cyprus as a single State and High Contracting

Party to the Convention; and that, consequently, the 'Turkish

Federated State of Cyprus' cannot be regarded as an entity which

exercises 'jurisdiction', within the meaning of Article 1

(Art. 1) of the Convention, over any part of Cyprus.

111. The Commission concludes that Turkey's jurisdiction in

the north of the Republic of Cyprus, existing by reason of the

presence of her armed forces there which prevents exercise of

jurisdiction by the applicant Government, cannot be excluded on

the ground that jurisdiction in that area is allegedly exercised

by the 'Turkish Federated State of Cyprus'."

112. Article 1 (Art. 1) of the Convention, as interpreted above,

supports the view that the territorial restriction in Turkey's

declaration is not permitted under Article 25 (Art. 25).

113. As to the question whether Article 63 (Art. 63) could be invoked

in respect of the view that certain territorial limitations may validly

be added to declarations made under Article 25 (Art. 25) the Commission

observes the following.

114. Article 63 paras. 1 and 4 (Art. 63-1, 63-4) provide:

"(1) Any State may at the time of its ratification or at

any time thereafter declare by notification addressed to the

Secretary General of the Council of Europe that the present

Convention shall extend to all or any of the territories for

whose international relations it is responsible."

"(4) Any State which has made a declaration in accordance with

paragraph 1 of this Article may at any time thereafter declare on behalf

of one or more of the territories to which the declaration relates that

it accepts the competence of the Commission to receive petitions from

individuals, non-governmental organisations or groups of individuals in

accordance with Article 25 (Art. 25) of the Convention."

115. The Commission observes that Article 63 (Art. 63) cannot be

applied directly in the present case. The northern part of Cyprus is

not a territory for whose international relations Turkey is responsible

in the sense of this Article. Application of Article 63 para. 4

(Art. 63-4) by analogy - in the sense that a High Contracting Party may

validly exclude the application of a declaration recognising the right

of individual petition to territories which do not clearly form part of

its own metropolitan territory - is not suggested by the respondent

Government who leave this issue to the Commission's determination. The

applicants, who contest the legality of Turkey's presence in the north

of Cyprus, deny the applicability of Article 63 (Art. 63) in the present

case.

116. The Commission has considered whether application by analogy of

Article 63 para. 4 (Art. 63-4) of the Convention to other

non-metropolitan territories would in the circumstances of the present

case be compatible with the object and purpose of the Convention.

117. The applicants submit that such application of Article 63

(Art. 63) to Turkish acts in Northern Cyprus would be illegitimate,

given the illegality under international law of Turkey's presence in

that area. The respondent Government submit, as regards control of the

implementation of the Convention by Turkey, that Turkey may be

challenged before the Commission for alleged non-observance of the

provisions of the Convention in the framework of Article 24 (Art. 24).

118. The Commission has again had regard to the character of the

Convention, as described above, and to the principle, reflected in its

case-law under Article 1 (Art. 1), that application of the Convention

extends beyond the national frontiers of the High Contracting Parties

and includes acts of State organs abroad (cf. paras. 32 and 33 above).

The Commission also recalls that the Convention is intended to guarantee

"not rights that are theoretical or illusory but rights that are

practical and effective" (Eur. Court H.R., Artico judgment of 13 May

1980, Series A no. 37 p. 34 para. 33). The principle that Convention

rights should serve a practical purpose ("effet utile") applies in the

Commission's view not only to the rights defined in Section I of the

Convention but also to the fundamental procedural right of individual

petition under Article 25 (Art. 25) as soon as a State has recognised

that right. The Commission finally refers to its earlier observations

at para. 9 of its decision of 26 May 1975 (reproduced at para. 32 above)

concerning the purpose of Article 63 (Art. 63), and at para. 23 and 24

of its decision of 10 July 1978 (reproduced at para. 33 above)

concerning the restriction, resulting from the presence of Turkish armed

forces in the north of Cyprus, on the exercise of jurisdiction by

Cyprus, a High Contracting Party to the Convention. While not called

upon to pronounce on the legality under international law of Turkey's

presence in the north of Cyprus the Commission finds that application by

analogy of Article 63 (Art. 63) would be incompatible with the specific

situation in that area.

119. The Commission finds that application by analogy of Article 63

para. 4 (Art. 63-4) would in the circumstances of the present

applications be incompatible with the object and purpose of the

Convention.

120. The Commission finds that the restrictions contained in paras.

(i) to (v) of Turkey's declaration under Article 25 (Art. 25) of 28

January 1987 are not permitted by this Article. This finding does not

affect the Commission's previous decisions (e.g. No. 13623/88, Dec.

121. 4.89, and No. 13891/88, Dec. 20.1.89) applying, as valid temporal

restriction under paragraph 2, the clause contained in the first

sentence of the last paragraph of Turkey's declaration.

c) The validity of Turkey's recognition of the right of

individual petition

122. At the hearing before the Commission the Agent of the respondent

Government made the following statement

"Le gouvernement turc considère et a toujours considéré

que les conditions qui figurent dans sa déclaration

selon l'article 25 (Art. 25), y compris la clause territoriale,

ont un caractère essentiel pour la volonté du

Gouvernment d'accepter le droit de recours individuel,

à tel point que si une seule de ces conditions devait

être rejetée, la déclaration dans sa totalité deviendrait

caduque; dans un tel cas, la reconnaissance par la

Turquie du droit de recours individuel n'existerait plus."

123. The Commission recalls that its competence to determine the

scope and validity of Turkey's declaration under Article 25 (Art. 25)

has expressly been recognised by Turkey (cf. para. 4 above) and that

Turkey has repeatedly stated that the restrictions contained in paras.

(i) to (v) of the declaration "cannot be considered as 'reservations' in

the sense of international treaty law".

124. The Commission must interpret Turkey's intention, when she made

her declaration on 28 January 1987, as expressed at that time. It

recalls that the declaration was deposited after a friendly settlement

had been reached in proceedings brought against Turkey by France,

Norway, Denmark, Sweden and the Netherlands (Applications Nos.

9940-9944/82) and shortly before the expiry, on 1 February 1987, of the

period provided for the reporting procedure agreed in the settlement

(see Comm. Report 7.12.85, D.R. 44 pp. 31, 38f.). By making the

declaration under Article 25 (Art. 25) Turkey then manifested her will

to be bound by the Convention system also as regards individual

applications under Article 25 (Art. 25).

125. Where a State has clearly expressed the intention to be bound

under Article 25 (Art. 25), but has added restrictions to its

declaration which are incompatible with the Convention, the main

intention of the State must prevail. The Commission finds Turkey's

present statement, accepting to be bound by its declaration under

Article 25 (Art. 25) only if all conditions contained therein are valid,

to be incompatible both with her above earlier statements and with the

object and purpose of the Convention. It therefore cannot prevail

within the framework of this instrument.

126. The Commission recalls that the Court, when finding that an

interpretative declaration by Switzerland did not satisfy two of the

requirements of Article 64 (Art. 64) of the Convention, "with the result

that it must be held to be invalid", found it at the same time "beyond

doubt that Switzerland is, and regards itself as, bound by the

Convention irrespective of the validity of the declaration" (Belilos

judgment of 29 April 1988, Eur. Court H.R., Series A no. 132 p. 28 para.

60). The Commission notes in this context a principle frequently applied

in the interpretation of legal instruments where parts are found to be

invalid. This rule is expressed in the Latin phrase "ut res magis

valeat quam pereat".

127. It follows from the above considerations that, by her

declaration of 28 January 1987, Turkey has validly, and with a temporal

limitation only, recognised the right of individual petition under

Article 25 (Art. 25) of the Convention.

128. The Commission therefore finds that it is competent ratione

loci, under Turkey's declaration under Article 25 (Art. 25) of the

Convention of 28 January 1987, to deal with the present applications.

d) The Commission's competence ratione temporis in relation to the

declaration made by Turkey under Article 25 (Art. 25) of the Convention

129. It remains to be examined whether the Commission is also

competent ratione temporis, given that the declaration only "extends to

allegations made in respect of facts, including judgments which are

based on such facts which have occurred subsequent to the date of

deposit of the present declaration".

130. This clause does not affect the Commission's competence to deal

with the complaints in Applications Nos. 15299/89 and 15300/89 which

concern violations of the Convention alleged to have been committed in

July 1989.

131. Nor does it affect the Commission's competence to deal with

those complaints in Application 15318/89 which concern alleged

violations of the Convention in March 1989.

132. The legal situation is different, however, insofar as the third

applicant alleges continuing violations of Article 8 (Art. 8) of the

Convention and Article 1 of Protocol No. 1 (P1-1).

133. The third applicant's submissions invoking the concept of a

continuing violation are made in view of the six months' rule under

Article 26 (Art. 26) of the Convention and concern in particular her

complaint under Article 1 of Protocol No. 1 (P1-1).

134. The Commission has previously held that where there is "a

permanent state of affairs which is still continuing", the question of

the six months' rule "could only arise after the state of affairs has

ceased to exist" (De Becker case, Yearbook 2 pp. 214, 244; First Greek

case, second decision on admissibility, Collection 26 pp. 80, 110 =

Yearbook 11 pp. 730, 778).

135. In Application No. 8007/77, lodged by Cyprus under Article 24

(Art. 24) of the Convention, the Commission has stated the following in

respect of complaints of continuing violations of, inter alia, Article

1 of Protocol No. 1 (P1-1) by Turkey in the north of Cyprus (Dec.

136. 7.78, D.R. 13 p. 85 at p. 154):

"45. The Commission observes ... that, in admissibility

proceedings concerning State applications ..., it is not its task

even to carry out a preliminary examination of the merits since

the provisions of Article 27 para. (2) (Art. 27-2) ... apply,

according to their express terms, to individual applications

under Article 25 (Art. 25) only ...

It follows that the Commission cannot at this stage of

the proceedings examine whether the ... complaints of 'continuing

violations' of the Convention are or are not well-founded and

that the applicant Government's submission, that the six months'

rule is inapplicable because the application relates to such

'continuing violations', must be accepted.

137. The Commission concludes that the application cannot be

rejected under Articles 26 and 27 para. (3) (Art. 26, 27-3) of

the Convention for non-observance of the six months' rule."

138. In the present application under Article 25 (Art. 25) the

Commission must, before considering the six months' rule, examine the

effect of the temporal restriction contained in Turkey's declaration

under this Article.

139. The Commission has previously held that it is precluded by the

specific terms of this restriction from examining applications

complaining of administrative decisions taken before, and confirmed by

judgments after, 28 January 1987 (see para. 11 above).

140. Applying this reasoning in the present case the Commission finds

that it cannot, under the terms of Turkey's declaration under Article 25

(Art. 25) as limited by its temporal restriction, examine complaints of

continuing violations insofar as they relate to periods before 29

January 1987.

141. The Commission concludes that it is not competent ratione

temporis under this declaration to deal with the third applicant's

complaints of continuing violations of Article 8 (Art. 8) of the

Convention and Article 1 of Protocol No. 1 between 20 July 1974 and 28

January 1987. It follows that, to this extent, Application No. 15318/89

is incompatible with the provisions of the Convention within the meaning

of Article 27 para. 2 (Art. 27-2).

II. As to whether the applications are manifestly ill-founded

a) Applications Nos. 15299/89 and 15300/89

142. The first and second applicants complain about their detention

and alleged ill-treatment and the proceedings in Northern Cyprus in July

143. They claim that the acts complained of were carried out by

Turkish military forces stationed in the northern part of Cyprus, or by

forces acting under their authority, and allege violations of Articles

1, 3, 5, 6, 7, 9 and 13 (Art. 1, 3, 5, 6, 7, 9, 13) of the Convention.

144. The respondent Government refute the applicants' account of the

facts and state that Turkish forces did not intervene during the events

of 15 July 1989 and had nothing to do with those events.

145. The Commission finds that the first and second applicants'

complaints raise complex issues of law and fact which require an

examination of their merits. It follows that Applications Nos. 15299/89

and 15300/89 are not manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

b) Application No. 15318/89

146. The third applicant complains that she was detained on 19 March

1989 when trying to return to her property in the northern part of

Cyprus. She alleges violations of Articles 3 and 5 (Art. 3, 5) of the

Convention and continuing violations of Article 8 of the Convention and

Article 1 of Protocol No. 1 (P1-1).

147. The respondent Government contest the third applicant's account

of the facts.

148. The Commission finds that the third applicant's complaints under

Articles 3 and 5 (Art. 3, 5) of the Convention, concerning her detention

in March 1989, raise complex issues of law and fact which require an

examination of their merits. It follows that these complaints are not

manifestly ill-founded.

149. As regards the third applicant's complaints under Article 8

(Art. 8) of the Convention and Article 1 of Protocol No. 1, the

Commission has already found (paras. 59-60) that it is precluded by the

temporal restriction in Turkey's declaration from dealing with the third

applicant's complaints of continuing violations of the Convention

alleged to have occurred before 29 January 1987.

150. The applicant's complaint that she was refused access to her

property in the north of Cyprus after 28 January 1987 raises an issue,

requiring an examination of the merits, under Article 1 of Protocol No.

1 (P1-1) to the Convention, but no issue under Article 8 (Art. 8) of the

Convention, as regards the third applicant's right to respect for her

home. The Commission notes that the applicant grew up in Kyrenia in

Northern Cyprus, but that in 1972 she married and moved with her husband

to Nicosia.

151. The Commission concludes that the third applicant's complaint,

that she was refused access to her property in Northern Cyprus after 28

January 1987, is not manifestly ill-founded, if considered under Article

1 of Protocol No. 1 (P1-1) to the Convention.

For these reasons, the Commission, by a majority

152. DECLARES ADMISSIBLE Applications Nos. 15299/89 and

15300/89 without prejudging the merits of the cases;

153. (a) DECLARES INADMISSIBLE the complaints in Application

No. 15318/89 of continuing violations of Article 8

(Art. 8) of the Convention and Article 1 of Protocol

No. 1 alleged to have occurred before 29 January 1987;

(b) DECLARES ADMISSIBLE the remainder of this

application, without prejudging the merits of the

case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)