AS TO THE ADMISSIBILITY OF

Application No. 20652/92

by Ahmet DJAVIT AN

against Turkey

The European Commission of Human Rights sitting in private on

14 April 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, 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 application introduced on 8 September 1992

by Ahmet DJAVIT AN against Turkey and registered on 18 September 1992

under file No. 20652/92;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

1 July 1997 and the observations in reply submitted by the

applicant on 30 September 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Cypriot national born in 1950, is a

paediatrician residing in Nicosia, north of the "green line". Before

the Commission he is represented by Mr. Malcolm Shaw, a barrister

practising in London.

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

parties, may be summarised as follows:

A. The particular circumstances of the case

In addition to being a critic of the Turkish Cypriot authorities

and of the Turkish military presence in the northern part of Cyprus,

which he qualifies as "occupation", the applicant is the "Turkish

Cypriot Coordinator" of "the Movement for an Independent and Federal

Cyprus", an unregistered association of Turkish and Greek Cypriots

founded in 1989 in Nicosia. The movement has a Turkish Cypriot

coordinating committee in the northern part of the island and a Greek

Cypriot coordinating committee in the southern part. The purpose of

this Movement is to develop close relations between the two

communities. To this end, it organises bi-communal meetings of

political, cultural, medical or social character.

In general, the applicant cannot obtain a permit from the Turkish

and Turkish Cypriot authorities to visit the "buffer zone" or the

southern part of the island. Thus, between 23 September 1989 and

3 October 1996, only 22 out of 124 requests for such permits were

granted. One of the requests that were turned down concerned the

UNFICYP (United Nations Forces in Cyprus) Spring Fair at the Nicosia

International Airport in May 1992 and another a bi-communal medical

seminar organised by UNHCR in June 1992. Moreover, in May 1992 the

above-mentioned authorities refused to allow Greek Cypriots to attend

a meeting organised by the applicant in the northern part of the

island.

The applicant claims that there exists a decision by the cabinet

of the "TRNC" prohibiting his contacts with Greek Cypriots. Reference

to this decision is allegedly made in a letter dated 3 February 1992

by the "Health Minister of the TRNC" to the applicant, which reads as

follows:

"According to the information our Ministry received, you were

informed by the Ministry of Foreign Affairs and Defence orally

and this has been a decision of the government and we have

nothing to add in our capacity as the Ministry."

On 7 May 1992 the applicant wrote to the Prime Minister of the

"TRNC" requesting to be informed of the content of the cabinet decision

referred to in the above-mentioned letter, but received no reply.

On 29 May 1992 he sent a letter of protest to the Foreign

Minister of Turkey, which has also remained unanswered.

On 18 May 1994 the "Directorate of Consular and Minority Affairs

of the Ministry of Foreign Affairs and Defence of the TRNC" informed

the applicant that "the permission requested by (his) letter of

19 April 1994 was refused for security reasons, in the public interest

and because (he) made propaganda against the state."

B. Applicant's previous application

On 13 May 1991 the applicant and four other Turkish Cypriots

filed an application against Cyprus before the European Commission of

Human Rights complaining about the restrictions of their freedom of

movement. The Commission found that the Government of Cyprus "could not

be held responsible under Article 1 of the Convention for the acts of

Turkish Cypriot authorities in the north of Cyprus" and declared their

application inadmissible (No. 18270/92, Ahmet Cavit AN and others

v. Cyprus, Dec. 8.10.91, unpublished).

The applicant claims that the attitude of the Turkish and Turkish

Cypriot authorities towards him has become even stricter following his

first application to the Commission.

COMPLAINTS

1. The applicant complains under Articles 10 and 11 of the

Convention that the Turkish and Turkish Cypriot authorities, by not

allowing him to cross the "green line", prohibit him from exercising

his right to freedom of assembly and association with the Greek

Cypriots as well as his right to freedom of expression including the

freedom to hold opinions and ideas and to receive and impart

information.

2. The applicant complains under Article 13 of the Convention about

the lack of effective domestic remedies to challenge the arbitrary

refusal to allow him to cross the "green line" for the purpose of

taking part in meetings organised in the southern part of the island.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 September 1992 and registered

on 18 September 1992.

On 27 June 1994 the Commission decided to communicate the

application to the respondent Government without requesting any

observations.

On 8 April 1995 the Commission decided to adjourn the examination

of the application pending delivery of the Court's judgment on the

merits of the Loizidou v. Turkey case. The judgment was delivered on

18 December 1996 (cf. Reports 1996-IV).

On 23 January 1997 the Commission decided to request the

respondent Government to submit observations on the admissibility and

merits of the application.

On 2 April 1997 the respondent Government requested the

Commission to adjourn the examination of the case until completion by

the Court of its consideration of the issue under Article 50 of the

Convention in the Loizidou v. Turkey case. On 18 April 1997 the

Commission decided not to accede to the respondent Government's request

and fixed a new time-limit for the submission of their observations.

The Government's written observations were submitted on

1 July 1997, after an extension of the second time-limit fixed for that

purpose. The applicant replied on 30 September 1997.

THE LAW

1. The applicant complains under Articles 10 and 11 (Art. 10, 11)

of the Convention that the Turkish and Turkish Cypriot authorities, by

not allowing him to cross the "green line", prevent him from exercising

his right to freedom of assembly and association with the Greek

Cypriots as well as his right to freedom of expression including the

freedom to hold opinions and ideas and to receive and impart

information. He also complains under Article 13 (Art. 13) of the

Convention about the lack of effective domestic remedies to challenge

the arbitrary refusal to allow him to cross the "green line".

The provisions invoked by the applicant provide as follows:

Article 10 (Art. 10) of the Convention

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive and

impart information and ideas without interference by public

authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

Article 11 (Art. 11) of the Convention

"1. Everyone has the right to freedom of peaceful assembly and

to freedom of association with others, including the right to

form and to join trade unions for the protection of his

interests.

2. No restrictions shall be placed on the exercise of these

rights other than such as are prescribed by law and are necessary

in a democratic society in the interests of national security or

public safety, for the prevention of disorder or crime, for the

protection of health or morals or for the protection of the

rights and freedoms of others. ..."

Article 13 (Art. 13) of the Convention

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

2. The respondent Government submit that they are not responsible

for the decisions of the "TRNC" preventing the applicant from crossing

the "green line". Although the applicant alleges that it was the

Turkish military authorities which prevented him from crossing this

line, he himself confirms that all the applications for a permit he has

lodged were addressed to the Turkish Cypriot authorities. Moreover, the

Government submit that the control and day-to-day administration of the

crossing gates of the "TRNC" belong to the authorities of the "TRNC"

which are also responsible for issuing the relevant permits.

Furthermore, it is the laws of the "TRNC" which apply to the matter in

question. The applicant himself chose to protest to the "Prime Minister

of the TRNC".

The respondent Government further contend that there is no

military occupation of northern Cyprus by Turkey, but rather that there

has been an evolution towards the creation of their own independent

State by the Turkish Cypriot community in exercise of their right to

self-determination. In this respect, the respondent Government refer

in detail to the history of Cyprus since 1960 emphasising in

particular:

(i) the bi-communal character of the 1960 Constitution and the

obligation of Cyprus, under international treaty obligations guaranteed

by the signatories of the 1960 Treaty of Guarantee, to maintain her

independence, territorial integrity and the fundamental principles of

the Constitution;

(ii) the alleged responsibility of the Greek Cypriot side for the

breakdown of the 1960 constitutional arrangements in 1963 and the

subsequent changing of basic principles of the Constitution;

(iii) the allegedly intolerable situation of enclaved Turkish

Cypriots in the period between 1964 and 1974, which caused them to set

up their own administration as from December 1967;

(iv) the fact that the Turkish intervention in July 1974 was

preceded by a coup d'etat of Greek officers of the National Guard who

pursued the aim of unification of Cyprus with Greece (Enosis);

(v) the contention that the Turkish military operation in 1974

was carried out in conformity with Article IV of the Treaty of

Guarantee to protect the right of Turkish Cypriots;

(vi) the contention that the subsequent relocation of both the

Turkish Cypriot and the Greek Cypriot communities in separate parts of

the island was the result of agreements achieved in inter-communal

talks held in Vienna in July/August 1975, these agreements being fully

implemented on a voluntary basis under UN auspices, UN troops moving

into the newly established buffer zone;

(vii) the alleged agreement achieved in 1977 and 1979 between the

Turkish Cypriot and Greek Cypriot leaders for seeking a federal

solution on the basis of a bi-communal and bi-zonal federation, a

concept which it is contended is still valid as a basic guideline for

the inter-communal talks;

(viii) the contention that the establishment of the "TRNC" as an

independent State on 15 November 1983 was declared by the legitimate

representative body of the Turkish Cypriots in exercise of their right

to self-determination, and that this did not constitute secession as

the bi-communal Republic of Cyprus had ceased to function due to the

actions of the Greek Cypriot side since 1963;

(ix) the contention that the subsequent development of "TRNC"

institutions was legitimate and in line with democratic principles and

that it consolidated the statehood of the "TRNC" according to criteria

accepted in international law;

(x) the opinion that, despite the fact that it has not been

recognised de jure by any other State than Turkey, the "TRNC" exists

de facto as an independent State exercising all branches of State power

on its territory (in this connection the respondent Government refer

to several decisions of English courts recognising that there was "an

effective and autonomous administration in the North" and to the fact

that Turkey, having recognised the "TRNC" de jure, does not claim for

herself to exercise power in that area);

Finally, as regards the role of the Turkish forces in northern

Cyprus, the respondent Government claim that these forces are there in

a peace-keeping function at the request and with the consent of the

"TRNC", that they act under the latter's authority and do not

themselves exercise governmental power. It is claimed that their status

is not essentially different from that of Greek military forces in

southern Cyprus.

The Government draw further arguments from the Commission's

Report of 8 July 1993 in Chrysostomos and Papachrysostomou v. Turkey

(D.R. 86-A, p. 4) in which the Commission found that certain legal acts

emanating from the "TRNC" had to be assumed to be legally valid acts

under the Convention. According to the Government, this opinion remains

controlling for the Commission notwithstanding the Court's Loizidou

v. Turkey judgment of 18 December 1996 (Reports 1996-I) which, as the

Government emphasise, binds only the parties in that case and has no

broader legally-binding effect. In any event, the Government argue that

the Loizidou v. Turkey judgment is ultra vires.

In the light of all the above, the respondent Government submit

that Turkey has no accountability, control, jurisdiction or

responsibility in respect of the acts of the "TRNC" which constitute

the basis of the applicant's complaints.

The applicant does not consider it necessary to comment on the

general historical exegesis provided by the respondent Government,

which in any event he does not accept. He refers in reply to the

Court's Loizidou v. Turkey judgment of 18 December 1996 (supra) which

he considers to be determinative as to certain crucial legal issues,

as evidenced by the Commission's decision to adjourn the examination

of his application pending its delivery. He also refers to the

Commission's decision of 7 September 1996 in the fourth inter-State

case (No. 25781/94 Cyprus v. Turkey, D.R. 86-A, p. 104) which is in

line with the approach of the Court.

The applicant recalls that in its Loizidou v. Turkey judgment of

18 December 1996 the Court found that Turkey exercises "effective

overall control" in northern Cyprus, which includes not only direct

actions and omissions of the Turkish authorities but also actions and

omissions of the "TRNC". According to the Court, what matters is

"effective overall control" and not "the actual exercise of control",

as the respondent Government contend. The notion of "actual exercise

of control" was rejected by the Commission itself in its Chrysostomos

and Papachrysostomou v. Turkey Report, when it linked the question of

imputability to the Turkish troops' being capable to intervene (supra,

p. 27, paras. 99-102). The applicant submits that the respondent

Government cannot use the proceedings before the Commission in the

present case to appeal against the Loizidou v. Turkey judgment of the

Court.

The applicant also refers to the Commission's finding in its

Chrysostomos and Papachrysostomou v. Turkey Report that the actual

control of the border area is exercised by Turkish armed forces.

Moreover, he recalls that in its admissibility decision in the fourth

Cyprus v. Turkey case the Commission found that the applicant

Government had sufficiently demonstrated the possibility of a direct

or indirect involvement of Turkish authorities, inter alia, in the

restriction of freedom of movement of Turkish Cypriots, including the

applicant. Finally, he points out that, in addition to having protested

to the Turkish Cypriot authorities, on 29 May 1992 he sent a letter to

the Foreign Minister of Turkey.

The Commission recalls that the Court in its Loizidou v. Turkey

judgment of 18 December 1996 found that

"(i)t is not necessary to determine whether, as the applicant and

the Government of Cyprus have suggested, Turkey actually

exercises detailed control over the policies and actions of the

authorities of the 'TRNC'. It is obvious from the large number

of troops engaged in active duties in northern Cyprus that her

army exercises effective overall control over that part of the

island. Such control, according to the relevant test and in the

circumstances of the case, entails her responsibility for the

policies and actions of the 'TRNC'. Those affected by such

policies or actions therefore come within the 'jurisdiction' of

Turkey for the purposes of Article 1 (Art. 1) of the Convention.

Her obligation to secure to the applicant the rights and freedoms

set out in the Convention therefore extends to the northern part

of Cyprus" (supra, pp. 2235-2236, para. 56).

Moreover, the Commission notes that underlying the applicant's

complaints is his inability to cross the "green line", an area over

which the Commission has already found that the Turkish armed forces

have actual control (Chrysostomos and Papachrysostomou v. Turkey

Report, supra, p. 4, para. 99). It follows that the acts complained of

are imputable to Turkey. As a result, the Commission considers that it

cannot reject the application as inadmissible ratione personae.

3. The Commission will then examine whether the application has been

lodged within the six-month time-limit provided for under Article 26

(Art. 26) of the Convention. The Commission notes in this connection

that the applicant complains about the general effect which the refusal

of the Turkish and Turkish Cypriot authorities to allow him to cross

the "green line" has had on his enjoyment of several Convention rights.

However, the Commission cannot lose sight of the fact that in reality

the applicant complains about a series of incidents some of which

occurred more than six months before the lodging of the present

application on 8 September 1992.

Under Article 26 (Art. 26) of the Convention the Commission may

only deal with a matter within a period of six months from the date on

which the final decision was taken. As a result, the Commission

considers that it must declare inadmissible under Article 27 para. 3

(Art. 27-3) of the Convention the part of the application which relates

to the period before 8 March 1992.

4. Moreover, the Commission notes that the respondent Government

argue that the applicant has not exhausted domestic remedies. They

point out that the applicant is a Turkish Cypriot who lives in the

"TRNC" and to whom all effective remedies within the judicial and

administrative system of the "TRNC" are accessible.

The Government stress in this connection that the "TRNC" is

endowed with a Constitution based on the principles of the rule of law

and supremacy of the Constitution (Articles 1 and 7), which provides

for an independent judiciary (Articles 136, 137, 141 and 150) and for

effective judicial control of executive and legislative activity

(Articles 146-148 and 152). Article 17 relating to fair and public

hearing is similar to Article 6 (Art. 6) of the Convention and

prohibits the establishment of judicial committees or special courts

under any name whatsoever. According to the Constitution, no act of the

administration can be excluded from judicial review. Article 152

provides for judicial review of administrative action on the grounds

of excess and/or abuse of power, illegality and unconstitutionality.

There is also provision for judicial review of legislation by way of

reference to the Supreme Constitutional Court (Article 148) and

institution of proceedings for annulment of legislation and subsidiary

legislation (Article 147).

The respondent Government claim that the existence of an

effective and independent judicial system in the "TRNC" has also been

recognised in the Commission's own case-law. They refer again to the

Commission's Chrysostomos and Papachrysostomou v. Turkey Report

(supra). According to the Government, in paragraph 174 of that report

the Commission recognised the existence of effective remedies before

the national authorities in northern Cyprus when it noted that the

applicants in that case had been brought before judicial authorities

which they refused to recognise, and that they had not wished to avail

themselves of such remedies as might have been available to them with

regard to the circumstances of their arrest by Turkish Cypriot police.

In this connection, the respondent Government submit a list of

cases brought by Greek Cypriots in Turkish Cypriot courts including

inter alia cases relating to trespass by other persons and unlawful

cultivation of land belonging to Greek Cypriot plaintiffs in the Karpas

area. Such claims were accepted by the competent "TRNC" courts.

In the Government's view, the applicant could have used the

remedies which exist in the "TRNC". Moreover, he could have complained

to the Attorney General of the "TRNC". Since he did not do so, he has

failed to comply with Article 26 (Art. 26) of the Convention.

The applicant submits first that the remedies under the "TRNC"

Constitution are illegal in that they emanate from an illegal entity

established pursuant to an illegal invasion and occupation by Turkey.

Secondly, he points out that it is the Turkish authorities that

have the ultimate control and responsibility in northern Cyprus. They

also have effective control over border crossings. As a result and in

the light of the Loizidou v. Turkey judgment of the Court, "TRNC"-based

remedies cannot in principle be adequate and effective. In any event,

the decisions of the Turkish Cypriot courts are not binding on the

Turkish military authorities. The decisions to which the respondent

Government refer revolve around conflicts of private law rights and do

not concern issues involving directly the Turkish authorities.

Thirdly, the applicant submits that there is no law in the

northern part of Cyprus regulating contacts between that part and the

southern part. Decisions affecting him have not been communicated to

him in writing and he has been the subject of veiled threats. As a

result, he has been unable to discover any proper legal basis for his

treatment. In any event, when an application for a permit to cross the

"green line" is rejected, no written reply is issued. The police at the

control point, to whom the authorities send a circular with the list

of persons permitted to cross over, simply do not permit the passage.

Moreover, the Turkish Cypriot courts are likely to treat the freedom

of movement between the two parts of the island as a political matter

which is not judicially reviewable.

Finally, the applicant argues that the arbitrary and erratic

practices in the matter of permits for crossing over to the southern

part fall within the administrative-practice exception to the

exhaustion of domestic remedies rule.

The Commission recalls that, according to the Convention organs'

case-law,

"(i)t is incumbent on the 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 applicant's complaints and offered

reasonable prospects of success" (Eur. Court HR, Akdivar and

others v. Turkey judgment of 16 September 1996, Reports 1996-IV,

no. 15, p. 1211, para. 68).

The Commission notes that the only remedies which the respondent

Government claim that the applicant should have exhausted are remedies

before bodies set up by the "TRNC". However, the Commission recalls

that in its admissibility decision in the fourth inter-State case

(No. 25781/94 Cyprus v. Turkey, supra) it considered that the question

of whether "TRNC" courts are capable of providing redress, inter alia,

in respect of complaints by Turkish Cypriots living in the northern

part of Cyprus could only be determined at the merits stage of the

proceedings. The Commission considers that it must reach the same

conclusion in the circumstances of the present case. As a result, the

Commission decides to reserve the final determination of the question

of whether the applicant is required to pursue his complaints further

before bodies established by the "TRNC" for a later stage in the

proceedings.

It follows that the part of the application which has been

submitted within the six-month time-limit cannot be rejected as

inadmissible under Article 27 para. 3 (Art. 27-3) of the Convention on

the ground that the applicant has not exhausted domestic remedies.

5. As regards the substance of the complaints, the Government argue

that they concern freedom of movement. In their view, the applicant has

failed to demonstrate how the alleged instances of restriction on his

movement have affected his freedom of expression and association, given

the nature of the meetings he wished to attend, namely a Spring Fair

and a bi-communal medical seminar. They also submit that the applicant

cannot complain on behalf of the Greek Cypriots who were allegedly

prevented from attending the meeting he had organised in the northern

part of the island. Moreover, the Government argue that the applicant

has exercised his freedom of expression through the media and other

means available to him in the "TRNC" and elsewhere. In any event, the

exercise of the rights invoked by the applicant is subject to

restrictions under the second paragraph of the relevant provisions of

the Convention.

The applicant submits that he does not complain of restrictions

of freedom of movement as such. The applicant is seeking to assert his

rights to communicate his ideas and appropriate information to those

on the island of Cyprus who share his aims of a peaceful resolution of

the problems of the island and to receive similar ideas and

information. In this respect, his case is analogous to that of Loizidou

v. Turkey where the issue of freedom of movement was considered by the

Court to be a peripheral aspect of the core complaint concerning the

right to property.

In the circumstances of the current situation in Cyprus, the

applicant feels that it is only by meetings of Turkish and Greek

Cypriots that ideas for a peaceful political settlement can be truly

imparted, received and exchanged as envisaged by Article 10 (Art. 10)

of the Convention. Such meetings cannot be held in the northern part

of Cyprus. He also submits that Article 11 (Art. 11) of the Convention

protects inter alia the gathering together of persons. Moreover, the

term "association" has an autonomous meaning. It requires a minimum of

organisation and stability and the Movement for an Independent and

Federal Cyprus fulfils these criteria.

The applicant contends that by not allowing him to cross over

to the southern part, the authorities for which the respondent

Government are responsible have interfered with these rights. However,

there was no law regulating this interference. The Government have made

no effort to indicate the grounds on which such an interference may be

justified. Nor have they shown it to be necessary in a democratic

society. It follows that Articles 10 and 11 (Art. 10, 11) of the

Convention have been violated. Moreover, for the reasons already set

forth, the applicant considers that he has no effective remedy in

respect of these violations.

The Commission, in the light of the parties' observations,

considers that the part of the application which has been submitted

within the six-month time-limit raises serious questions of fact and

law which are of such complexity that their determination should depend

on an examination of the merits. This part of the application cannot,

therefore, be regarded as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no

other ground for declaring it inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES INADMISSIBLE the application insofar as it concerns the

refusal to allow the applicant to cross the "green line" before

8 March 1992;

DECLARES ADMISSIBLE, without prejudging the merits, the remainder

of the application.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission