ECHR

In the case of Djavit An v. Turkey,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Mr     L. Caflisch, President,
          Mr     P. Kuris,
          Mr     B. Zupancic,
          Mr     J. Hedigan,
          Mrs   M. Tsatsa-Nikolovska,
          Mr     K. Traja, judges,
          Mr     F. Gölcüklü, ad hoc judge,
and Mr V. Berger, Section Registrar,

Having deliberated in private on 30 January 2003,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 20652/92) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Cypriot national, Ahmet Djavit An (“the applicant”), on 8 September 1992.

2. The applicant, who had been granted legal aid, was represented by Professor M. Shaw QC, practising in London. The Turkish Government (“the Government”) were represented by their Agent, Professor Z.M. Necatigil.

3. The applicant alleged a violation of Articles 10, 11 and 13 of the Convention, in relation to the refusals by the Turkish and Turkish Cypriot authorities to allow him to cross the “green line” into southern Cyprus and participate in bi-communal meetings.

4. The application was declared partly admissible by the Commission on 14 April 1998 and transmitted to the Court on 1 November 1999 in accordance with Article 5 § 3, second sentence, of Protocol No. 11 to the Convention, the Commission not having completed its examination of the case by that date.

5. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. Mr R. Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr F. Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).

6. The applicant and the Government each filed observations on the merits (Rule 59 § 1). In addition, third-party comments were received from the Cypriot Government, which had exercised its right to intervene (Article 36 § 1 of the Convention and Rule 61 § 2). The parties replied to those comments (Rule 61 § 5).

7. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section.

THE FACTS

8. The applicant is a Cypriot national of Turkish origin born in 1950 and is a paediatrician residing in Nicosia, north of the “green line”.

9. 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 defines as “occupation”, the applicant is the “Turkish Cypriot Co-ordinator” 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 co-ordinating committee in the northern part of the island and a Greek Cypriot co-ordinating 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.

10. The applicant is normally unable to obtain a permit from the Turkish and Turkish Cypriot authorities to visit the “buffer zone” or the southern part of the island in order to participate in various bi-communal meetings. Thus, between 8 March 1992 and 14 April 1998, the date of the Commission's admissibility decision, only 6 out of 46 requests for such permits were granted. Further, between 18 April 1998 and 16 October 1999 two more permits were refused, one of which, however, was granted later on. The requests that were turned down concerned inter alia, an UNFICYP (United Nations Forces in Cyprus) Spring Fair at the Nicosia International Airport in May 1992, a bi-communal medical seminar organised by the UNHCR (United Nations High Commissioner for Refugees) in June 1992, a meeting of the co-ordinating committee for the “Movement for an Independent and Federal Cyprus” at Ledra Palace in October 1992 as well as two meetings for the reorganisation of this committee in April and July 1994, a seminar on cardiology organised by the UNHCR in June 1994, a general meeting of the New Cyprus Association in December 1997 and a number of receptions organised by the German Embassy in Nicosia. 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.

11. The applicant claimed that the cabinet of the “Turkish Republic of Northern Cyprus” (“TRNC”) had adopted a decision prohibiting him from contacting Greek Cypriots. Reference to this decision was 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.”

12. 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.

13. On 29 May 1992 he sent a letter of protest to the Foreign Minister of Turkey, which has also remained unanswered.

14. 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”.

15. On 24 May 1994 the applicant wrote to the Deputy Prime Minister of the “TRNC”, asking if the previous decision of the cabinet was still in force since he was not allowed to visit the buffer zone or cross over into Nicosia. He received no answer and on 19 July 1994 he sent a reminder, which also remained unanswered. However, the applicant claimed that in an article published in a newspaper on 18 March 1996, the former Deputy Prime Minister (to whom he had sent the above-mentioned letters) had stated that when he had held this position he had requested an explanation by the Prime Minister as well as the President of the “TRNC” in relation to the refusal of permits, but had not received an answer.

THE LAW

I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS

16. The Court observes that, in the proceedings before the Commission, the respondent Government raised several objections to the admissibility of the application. The Commission considered these objections under the following heads: (1) alleged lack of jurisdiction and responsibility of the respondent State in respect of the acts complained of; (2) alleged failure by the applicant to comply with the six-month rule; and (3) alleged failure by the applicant to exhaust domestic remedies.

17. The Court further observes that the Commission, in its admissibility decision of 14 April 1998, rejected the respondent Government's challenges under the first head and partly under the second head. As regards the latter, the Commission decided to declare inadmissible the part of the application which related to the period before 8 March 1992. Moreover, the Commission decided to reserve to the merits stage the issues raised under the third head. The Court therefore considers it appropriate to examine the Government's argument on this point as well as the issue of jurisdiction that the Government re-raise in their submissions on the merits of this application, in the form of preliminary objections.

A. As to the respondent State's responsibility under the Convention in respect of the alleged violations

18. As in the proceedings before the Commission, the respondent Government disputed Turkey's liability under the Convention for the allegations set out in the application. In their submissions to the Court, the respondent Government claimed that the acts complained of were imputable exclusively to the “TRNC”, an independent and sovereign State established by the Turkish Cypriot community in the exercise of its right to self‑determination. In particular, the respondent Government submitted that the control and day-to-day administration of the designated crossing points, such as the Ledra Palace crossing gate, and the issuance of permits were within the exclusive jurisdiction and/or responsibility of the authorities of the “TRNC” and not of Turkey.

19. In relation to this the respondent Government disagreed with the findings of the Court in its judgments of 23 March 1995 (preliminary objections) and 18 December 1996 (merits) in the Loizidou v. Turkey case (Series A no. 310 and Reports of Judgments and Decisions 1996-VI), and of 10 May 2001 in the inter-State case of Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001-IV). They also contended that the Commission, in its decision as to the admissibility of the present application, had not interpreted the decision in the Chrysostomos and Papachrysostomou v. Turkey case correctly (application nos. 15299/89 and 15300/89, Commission's report of 8 June 1993, Decisions and Reports (DR) 86, p. 4).

20. The applicant and the Cypriot Government disputed these submissions, relying essentially on the reasons given by the Court for rejecting similar objections raised by Turkey in its judgments of 23 March 1995 (preliminary objections) and of 18 December 1996 (merits) in the Loizidou v. Turkey case (op. cit.) and in its judgment of 10 May 2001 in the case of Cyprus v. Turkey (op. cit.). They affirmed Turkey's responsibility under the Convention for all acts and omissions of the “TRNC” as well as its control over “the border area” and crossings.

21. The Court refers to its dismissal in the aforementioned Loizidou v. Turkey judgment (merits) of the Government's preliminary objections as to Turkey's alleged lack of jurisdiction and responsibility for the acts of which the complaint is made (op. cit., §§ 49–57). More precisely, the Court considered in its above judgment and in connection with that particular applicant's plight:

“52. As regards the question of imputability, the Court recalls in the first place that in its above-mentioned Loizidou v. Turkey judgment (Preliminary Objections) (pp. 23-24, § 62) it stressed that under its established case-law the concept of "jurisdiction" under Article 1 of the Convention is not restricted to the national territory of the Contracting States. Accordingly, the responsibility of Contracting States can be involved by acts and omissions of their authorities which produce effects outside their own territory. Of particular significance to the present case the Court held, in conformity with the relevant principles of international law governing State responsibility, that the responsibility of a Contracting Party could also arise when as a consequence of military action - whether lawful or unlawful - it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration...

56. ... It 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 (see paragraph 16 above) 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 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.”

22. Many of the considerations in the above-mentioned case were confirmed by the Court in its judgment of 10 May 2001 in the case of Cyprus v. Turkey (op. cit.). The Court recalls that in its latter judgment it rejected the Government's arguments that it had erred in its approach to the issues raised by the Loizidou case, especially on the matter of Turkey's liability for alleged violations of Convention rights (Cyprus v. Turkey, op. cit., §§ 69–81) and it considered that Turkey's responsibility was not limited to property issues such as those considered in the Loizidou case. In particular, the Court stated the following:

“77. It is of course true that the Court in the Loizidou case was addressing an individual's complaint concerning the continuing refusal of the authorities to allow her access to her property. However, it is to be observed that the Court's reasoning is framed in terms of a broad statement of principle as regards Turkey's general responsibility under the Convention for the policies and actions of the “TRNC” authorities. Having effective overall control over northern Cyprus, its responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration which survives by virtue of Turkish military and other support. It follows that, in terms of Article 1 of the Convention, Turkey's “jurisdiction” must be considered to extend to securing the entire range of substantive rights set out in the Convention and those additional Protocols which she has ratified, and that violations of those rights are imputable to Turkey.”

23. Accordingly, the Court rejects the respondent Government's aforementioned objections and concludes that the matters complained of in the instant application fall within the “jurisdiction” of Turkey within the meaning of Article 1 of the Convention and therefore entail the respondent's State's responsibility under the Convention.

B. Exhaustion of domestic remedies

1. Arguments before the Court

(a) The respondent Government

24. The respondent Government maintained that the applicant had not attempted to exhaust the remedies available to him within the judicial and administrative system of the “TRNC”, as required by Article 35 of the Convention. In connection with this they submitted that there were effective and adequate remedies within the judicial system of the “TRNC”, which were easily accessible to the applicant, offered him reasonable prospects of success and were capable of providing him with redress. Affirming the impartiality and independence of the judicial system in the “TRNC”, the respondent Government submitted the following points:

- the Constitution of the “TRNC” incorporated provisions for human rights drawn from the 1960 Cypriot Constitution, and also the European Convention on Human Rights which formed part of the laws of the “TRNC”. Under the Constitution fundamental rights and liberties could only be restricted by law and only for the purposes that were provided for in law. Articles 136-155 of the Constitution provided for access to independent courts and for judicial review of administrative action on the grounds of illegality or error of law and excess and / or abuse of power (Article 152) as well as 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). In particular, Article 152 of the Constitution provided that the High Administrative Court had exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person exercising any executive or administrative authority was contrary to any of the provisions of the Constitution, or of any law or subsidiary legislation thereunder, or exceeded or abused the powers vested in such organ or authority or person. The applicant could have brought administrative proceedings in the High Administrative Court for annulment of the relevant decision or decisions of the Cabinet and/or responsible ministry and/or any authority that had allegedly prevented him from crossing over to southern Cyprus;

- the courts had also adopted certain principles which included, inter alia the rules of natural justice or procedural fairness, the principles of reasonableness, proportionality and reasoning of administrative acts. In order to take effect in relation to the person concerned, the administrative act or decision had to have been properly taken and served on the person concerned. Unless this was done the purported act would have been incomplete and would not have come into operation vis-à-vis the person concerned;

- it would have been very unlikely for any administrative act or decision to be characterised as an “act of state” and to be excluded from judicial review. Judicial review of an administrative act relating to matters of high policy would have been treated just as any other administrative act, subject to principles of administrative law relating to the exercise of discretionary powers granted under legal and constitutional provisions. The alleged refusals by the authorities to permit the applicant to visit southern Cyprus would not have been regarded by the courts in the “TRNC” as a political act outside its competence. Although the administration may have been held to have had a certain amount of discretion regarding the merits of the issue involved, the court would not have declined jurisdiction if there were a procedural defect relating, for instance, to the formation and service of the relevant administrative act or decision; or the lack of legal provisions authorising the administration to take the relevant decision, particularly if such a decision were to restrict or limit the exercise of a right or liberty enshrined in the Constitution;

- under Article 76 of the “TRNC” Constitution there was a right of individual petition to the authorities of the State. Failure by the appropriate authority to reply to a petition made under the above-mentioned provision within a period of 30 days constituted an “omission” of the administration under Article 152 of the Constitution giving the complainant the right to recourse to the High Administrative Court;

- it was also possible to submit petitions to the Petitions Committee of the Legislative Assembly of the “TRNC” under the Petitions Law No. 30/1976;

- the applicant could have additionally submitted a complaint to the Attorney-General of the “TRNC” about the matter. Under the Constitution the Attorney-General was an independent officer of the State and if the applicant had complained to him, he could have taken up the matter with the competent organs of the State;

- in view of the fact that the applicant had been given permission on many occasions to visit southern Cyprus, his argument that he was not required to exhaust domestic remedies due to the existence of an “administrative practice” to refuse applications to visit southern Cyprus was unfounded. Each application was considered by the Ministry of Foreign Affairs and Defence on its own merits and, in case of refusal, it was open to the applicant to challenge such refusal on its merits and/or on procedural grounds;

- in light of the Court's judgment of 10 May 2001 in the case of Cyprus v. Turkey (op. cit.), the applicant's argument that “TRNC” remedies were inherently illegal as they emanated from an illegal situation was unfounded on both legal and factual grounds.

25. Finally, the respondent Government maintained that the applicant had by-passed the judicial organs of the “TRNC” not because of the lack of effective judicial remedies but because he was not willing to avail himself of the available remedies. In this respect, they referred to the significance of the applicant's political motivation as well as the political aspect of the present application. They alleged that the applicant was a person of extreme and provocative views that many Turkish Cypriots might have thought transcended the boundaries of criticism. They stated that his style of writing was such that it reminded one of similar, if not identical, expressions on the same points that were often used in the four inter-State applications, Cyprus v. Turkey. In connection with this they mentioned the reference by the applicant to the “International Association for the Protection of Human Rights” in Nicosia on his legal aid form, hinting at Greek Cypriot involvement, assistance or instigation, and contended that it was surprising that he had gone to such lengths to denigrate the State where he lived and/or the authorities, including the judiciary of that State.

(b) The applicant

26. The applicant disputed the arguments of the respondent Government with submissions that included the following points:

- although the Court, in its judgment of 10 May 2001 in the case of Cyprus v. Turkey (op. cit.), was not persuaded that the “TRNC” courts were inherently illegal under international law and thus in principle incapable of offering effective remedies, it was still true under former Article 35 (1) of the Convention, that the definition and application of domestic remedies must have been in accord with the rules and requirements of international law. These constituted the essential boundary lines of the provision which could not be crossed;

- the respondent Government had failed to discharge the burden of proof provided for by the Convention (Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV). In particular, they had not addressed the key questions as to the effectiveness of any of the claimed remedies with regard to the applicant and in the light of the situation. Their observations simply noted generally a range of provisions of the “TRNC” Constitution with no attempt to point to a remedy for the applicant;

- the applicant had never been informed of, and had been entirely unable to discover any proper legal basis for his treatment. Any effective remedy claimed by the respondent Government had to be seen in this light. The applicant had been prevented in an arbitrary and erratic fashion from carrying out his attempts to establish and further contacts with Greek Cypriots in southern Cyprus with a view to developing friendly relations. He had consistently sought to discover the reasons underlying the refusal to allow him to visit southern Cyprus. There did not appear to be a statutory basis in law in northern Cyprus regulating contacts between north and south. Requests for permission were always treated arbitrarily with no proper notice given or no notice at all, and refusals to cross into the south were often dealt with negatively, that is, by not giving express permission to cross, sent to the relevant crossing point, or in an oral fashion making it impossible to challenge in practice. The applicant believed that for political reasons he would not in any event have been treated fairly. He understood that oral decisions concerning him had been taken and he argued that he had not obtained anything in writing apart from veiled threats;

- Article 12 of the “TRNC” Constitution expressly provided that no interpretation could be accepted which implied any right to engage in activities aimed at changing the “rights and status” of the “TRNC”. In this context, the applicant pointed to a letter sent from the Directorate of the Consular and Minority Affairs of the Ministry of Foreign Affairs and Defence of the “TRNC” dated 18 May 1994 that justified the refusal of a permit requested by the applicant on the basis that he engaged in propaganda against the State as well as reasons pertaining to security and the interest and benefit of the public;

- entry regulations into the “TRNC” (and thus by necessary implication exit and re-entry) and the principles of implementation were based on decisions of the Council of Ministers of the “TRNC” which in the legal system of the “TRNC” were not subject to any judicial review (Commission's report of 4 June 1999, in the case of Cyprus v. Turkey, op. cit., § 109);

- in view of the fact that the “TRNC” courts did not have jurisdiction over the Turkish forces manning the dividing line, no “TRNC” court decision supporting the applicant's claim would have or could have any binding effect upon the relevant Turkish forces, not least because both Turkey and the “TRNC” maintained that they were separate independent States;

- in any event the arbitrary and erratic practices with regard to permission to cross over into southern Cyprus were such as to amount to an administrative practice. As affirmed and accepted by the Court in its judgment of 10 May 2001 in the case of Cyprus v. Turkey (op. cit.), the policy of impeding bi-communal contacts, at least from 1996, amounted to an administrative practice. Unlike the inter-State case, however, the violation of the Convention rights of the applicant fell within the scope of the Commission's admissibility decision of 14 April 1998, absolving him from the obligation to exhaust domestic remedies. The argument was that the practice in question amounted to arbitrarily disrupting and impeding such contacts and not that every single contact was prevented. Such a practice was maintained throughout the period relevant to his application.

27. The observations of the Cypriot Government were similar to the observations of the applicant and disputed the arguments of the respondent Government. In their submissions the Cypriot Government disputed that remedies within the “TRNC” judicial system constituted effective domestic remedies requiring exhaustion for the purposes of Article 35 § 1 of the Convention. Alternatively, they submitted that the illegality of those remedies in international law amounted to a “special circumstance” absolving the applicant from the requirement of exhaustion. The Cypriot Government disagreed with the decision of the Commission in its report of 4 June 1999, in the case of Cyprus v. Turkey (op. cit., § 109) as well as the majority of the Court in its judgment of 10 May 2001 in the same case (op. cit.), accepting that remedies available within the “TRNC” could be regarded as “domestic remedies”. Further, they raised the following additional points:

- the respondent Government had failed to demonstrate, with the requisite degree of certainty, the exact remedies available to the applicant, within the “TRNC” legal system, that were accessible and capable of affording effective redress and offered reasonable prospects of redress. The observations of the respondent Government could only be taken to refer to the possibility of an application for “judicial review” based on the “constitutional” rights referred to that was not shown to be effective in practice, or to be sufficiently certain to meet the requirements of Article 35;

- in order to have been effective, any remedy for the present violations would have had to be able to prevent or forestall the violation. No such means could ever have been available since the applicant had never been given formal notification of the decision in advance enabling him to challenge the refusal, but had been notified only at the time it was implemented - by means of a refusal of permission to cross the line. In practical terms, it would have been extremely difficult, if not impossible, for the applicant, or others in the same position, to initiate any process by which an effective remedy, capable of overturning the decision, could be granted. A challenge mounted after the event would not have produced an effective remedy or established a right of passage for the future since each application to cross the Turkish cease-fire lines was separate and resulted in a separate refusal (that was not, however, communicated in advance);

- in view of Article 12 of the “TRNC” Constitution, any political activity, including bi-communal activity, which was aimed at promoting the case for terminating Turkey's illegal occupation of northern Cyprus, and for re‑establishing the rule of law and thus bringing about “changes” to the perceived “status” of the “TRNC” as an independent State was denied “constitutional” protection, negating consequently the rights to freedom of assembly, association or expression. Thus, a constitutional challenge by the applicant could not be said to enjoy reasonable prospects of success;

- the evidence established a practice of restricting freedom of movement and thereby suppressing freedom of expression and association and of preventing the involvement of Turkish Cypriots in bi-communal organisations and activities taking place in the south. Thus the situation differed from that before the Court in the inter-State case. In the present case there was evidence of the practice of imposing politically motivated restrictions on freedom of movement in order to prevent Turkish Cypriot opponents of the regime from travelling to the south in order to exercise their rights to freedom of expression and association (US State Department Country Reports on Human Rights, 1993, 1994 and 1996; Commission's report of 4 June 1999 in the case of Cyprus v. Turkey, op. cit., § 109). There was direct evidence of the application of this practice to the applicant and others. Despite the scale of this practice, the respondent Government were unable to point to any example of a case where a successful challenge had been brought on comparable facts. The position was essentially the same for Turkish Cypriots wishing to cross from the north to the south;

- alternatively, even if the Court were to conclude that there was insufficient evidence to establish the existence of an administrative practice, the pattern of repeated violations was still relevant. Where, as here, there was a pattern of politically motivated restrictions on freedom of expression and association, the absence of any clear remedy, or any previous instances of such a remedy being applied for or granted, was plainly relevant to the determination of whether the Government of Turkey had demonstrated that the suggested remedies were available in practice and had reasonable prospects of success (see Akdivar and Others v. Turkey, op. cit.);

- the courts of the “TRNC” were neither independent nor impartial when called upon to determine political disputes or disputes involving supporters or opponents of the “TRNC”.

2. The Court's assessment

28. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others, op. cit., §§ 65-67).

29. It is incumbent on the respondent Government claiming non‑exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicant has not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see Akdivar and Others, op. cit. § 68; Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, § 35).

30. As regards the application of Article 35 § 1 to the facts of the present case, the Court firstly observes that in its judgment of 10 May 2001 in the case of Cyprus v. Turkey (op. cit.), it held that, for the purposes of former Article 26 (current Article 35 § 1), remedies available in the “TRNC” may be regarded as “domestic remedies” of the respondent State and that the question of their effectiveness is to be considered in the specific circumstances where it arises (op. cit., § 102). In connection with this the Court considers, as it did in the above judgment, that the reliance by the applicant and the Cypriot Government on the illegality of the “TRNC” courts seems to contradict the assertion they make that Turkey is responsible for the violations alleged in northern Cyprus - an assertion which has been accepted by the Court (see paragraphs 21-23 above). In particular the Court stated the following in its Cyprus v. Turkey judgment:

“101. ... It appears difficult to admit that a State is made responsible for the acts occurring in a territory unlawfully unoccupied and administered by it and to deny that State the opportunity to try to avoid such responsibility by correcting the wrongs imputable to it in its courts. To allow that opportunity to the respondent State in the framework of the present application in no way amounts to an indirect legitimisation of a regime which is unlawful under international law.”

31. The Court also notes that the same contradiction arises between the alleged unlawfulness of the institutions set up by the “TRNC” and the argument of the applicant and the Cypriot Government, to be examined at a later stage (see, for example, paragraphs 70-74 below), that there has been a breach of Article 13 of the Convention: it cannot be asserted, on the one hand, that there has been a violation of that Article because a State has not provided a remedy while asserting on the other hand that any such remedy, if provided, would be null and void (see Cyprus v. Turkey, op. cit., § 101).

32. As regards the possible remedies cited by the respondent Government, the Court considers that the latter's assertions cannot suffice to justify the objection they have raised at this stage of the proceedings. In their submissions to the Court the respondent Government referred to a number of constitutional provisions with emphasis, firstly, on the judicial review of administrative acts, decisions and omissions of any organ, authority or person exercising administrative/executive power in relation to individual administrative acts; secondly, on the possibility of recourse to the High Administrative Court in case of failure by the authorities of the “TRNC” to reply to an individual petition in the required time-limit; and thirdly, to the submission of a complaint to the Attorney-General. The Court notes that the respondent Government's submissions regarding this point are very general. The respondent Government have not shown that any of the remedies cited would have afforded redress in any way whatsoever to the applicant. Moreover, the Court does not consider that a remedy before the administrative courts can be regarded as adequate and sufficient in respect of the applicant's complaints, since it is not satisfied that a determination can be made in the course of such proceedings concerning the refusal of the permits at the “green line”. The same applies to the submission of complaints to the Attorney-General of the “TRNC”.

33. Further, the submission by the respondent Government of a list of various cases filed by Turkish Cypriots before the “TRNC” courts does not affect the Court's conclusions under the above paragraphs. The Court notes in this respect that there is no similarity between the present instance and those cases as none of them concerned allegations of refusal by the authorities of the “TRNC” to grant permits to Turkish Cypriots to cross the “green line” into southern Cyprus.

34. Finally, the Court also notes the decision of the Commission in the case of Cyprus v. Turkey (Commission's report of 4 June 1999, op. cit., § 109) in which the Commission noted that entry regulations into the “TRNC” and the principles of implementation are based on decisions of the Council of Ministers of the “TRNC” and are not subject to any judicial review. The Commission was referring to the entry into - exit from the “TRNC” of Greek Cypriots and not to the exit from (and entry into) the “TRNC” of Turkish Cypriots, as in the instant case. The respondent Government state that the organ taking the decision as to whether a permit will be granted is the Ministry of Foreign Affairs and Defence of the “TRNC”. In connection with this, it seems that a distinction exists between the two situations. The respondent Government have not clarified this point within their submissions. The Court, however, considers that it is not necessary to examine the point in the present case.

35. The Court reiterates that it is not for the Convention bodies to cure of their own motion any shortcomings or lack of precision in the respondent Government's arguments (Stran Greek Refineries and Stratis Andreadis, op. cit.).

36. Accordingly, the Court concludes that, in the absence of convincing explanations from the respondent Government and in light of all the above, the application cannot be rejected for failure to exhaust domestic remedies. The Court thus dismisses the respondent Government's objection as to non‑exhaustion of domestic remedies. In view of this conclusion, the Court considers that it is not necessary to address the issue of administrative practice.

37. The Court would emphasise, in accordance with its judgment in the case of Cyprus v. Turkey cited in § 19, that its ruling is confined to the particular circumstances of the present case. It is not to be interpreted as a general statement that remedies are ineffective in the “TRNC” or that applicants are absolved from the obligation under Article 35 § 1 to have normal recourse to the remedies that are available and functioning. It is only in circumstances such as those which have been shown to exist in the present case that it accepts that applicants address themselves to the Court for a remedy in respect of their grievances without having made any attempt to seek redress before the local courts.

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

38. The applicant complained that the refusals by the Turkish and Turkish Cypriot authorities to allow the applicant to cross the “green line” in order to participate in bi-communal meetings had prevented him from exercising his right to freedom of expression, including the freedom to hold opinions and ideas and to receive and impart information, as guaranteed by Article 10 of the Convention, which reads as follows:

“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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

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.”

39. The Court notes that the issue of freedom of expression cannot in the present case be separated from that of freedom of assembly. The protection of personal opinions, secured by Article 10 of the Convention, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 of the Convention (Ezelin v. France, judgment of 26 April 1991, Series A no. 202, § 37). Thus, observing that the applicant's grievances relate mainly to alleged refusals of the “TRNC” authorities to grant him permits to cross over the “green line” and meet with Greek Cypriots, the Court considers that Article 11 of the Convention takes precedence as lex specialis for assemblies, so that it is unnecessary to examine the issue under Article 10 separately. The Court will, however, have regard to Article 10 when examining and interpreting Article 11.

III. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

40. The applicant complained that the refusals by the Turkish and Turkish Cypriot authorities to allow him to cross the “green line” in order to participate in bi-communal meetings had prevented him from exercising his right to freedom of assembly and association with Greek Cypriots in breach of Article 11 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

A. Submissions of those appearing before the Court

1. The respondent Government

41. The respondent Government submitted that the complaints of the applicant related in essence to freedom of movement, guaranteed under Article 2 of Protocol No. 4 to the Convention, which Turkey had not ratified. Accordingly, the respondent Government maintained that the intention of the applicant was to circumvent this legal impediment by attempting to dress up the complaints in the form of a violation of Articles 10 and 11 of the Convention.

42. Furthermore, the respondent Government pointed out that the Loizidou case (op. cit.) was distinguishable from the present application in that the applicant was in essence able to exercise his rights under the above-mentioned provisions. His alleged inability to visit southern Cyprus on the few occasions during the period in respect of which this application had been found admissible had not in any way affected his Convention rights. On the contrary, they contended that during the period in question the applicant had been able to attend a number of gatherings in southern Cyprus.

43. The respondent Government claimed that although the Commission had acknowledged that limitations of freedom of movement, whether arising from a person's deprivation of liberty or from the status of a particular area, might indirectly affect other matters, this did not mean that deprivation of liberty, or restriction of access to a certain area, interfered directly with any other right protected under the Convention (15 Foreign Students v. the United Kingdom, no. 7671/76, Commission decision of 9 May 1977, Decisions and Reports (DR) 9, p. 185).

44. Moreover they maintained that it was not possible to characterise the gatherings mentioned by the applicant, such as exhibitions, festivals, concerts, fairs and receptions, as “assembly” under Article 11 of the Convention. This provision, the Government submitted, did not include gatherings for purposes of entertainment, or such occasions where people come together to share, or enjoy, the company of others. In this context, the Government pointed out that the applicant's arguments were based on a concept of “association” in the sense of the mere possibility for people to come together without necessarily doing so in an organised form and in relation to any specific interference with attempts by the applicant to form an association, in the sense of an organisational structure, with Greek Cypriots. They stated that the “Movement for an Independent and Federal Cyprus”, of which the applicant was the Turkish Cypriot co-ordinator, had been formed without any interference by the Turkish Cypriot authorities. Additionally, nearly all the instances mentioned by the applicant of his inability to visit southern Cyprus were not in any way connected with the activities of the above-mentioned association.

45. Finally, the respondent Government contended that in any event, the exercise of the rights relied on by the applicant was subject to the restrictions under Article 11 § 2 of the Convention.

2. The applicant

46. The applicant disputed the arguments of the respondent Government. He submitted that his complaints had not focused in practice or in theory upon freedom of movement as such. It was the inability to engage in peaceful discourse and intercourse, to pursue the basic democratic rights of receiving and imparting “information and ideas with those on the island of Cyprus who shared his aims of a peaceful and friendly resolution of the problems of that island without interference by public authority and regardless of frontiers” that lay at the heart of his application. In the circumstances of the current situation in Cyprus, he felt that it was only by meetings of Turkish and Greek Cypriots that ideas for a peaceful political settlement could be truly imparted, received and exchanged. However, he stated that such meetings could not be in northern Cyprus and meetings of equivalent range and quality could not be held anywhere other than in southern Cyprus. Thus, the lack of a proper system to regulate crossing from north to south and the arbitrary and erratic way in which he alleged he had been prevented from attending various relevant meetings in the south substantially and adversely affected his Convention rights to freedom of assembly and association as well as expression.

47. The applicant stated that in this context the element of “movement” was purely a by-product of the essential rights in question. In this respect, he argued that his case was analogous to that of Loizidou (merits) (op. cit.) 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. Further he noted that the case of 15 Foreign Students v. the United Kingdom (op. cit.), referred to by the respondent Government in their submissions, was not relevant to the present application or appropriate since the above case did not concern freedom of movement.

48. Moreover, it was submitted by the applicant that although the case-law to date on the interpretation of the term “assembly” was not extensive and had focused upon demonstrations, Article 11 of the Convention covered the right of persons to gather together in order to further their common interests in a peaceful manner, whether in public or private meetings (see Rassemblement jurassien v. Switzerland, no. 8191/78, Commission decision of 10 October 1978, DR 17, p. 93). In this sense, the applicant stated, the actions in relation to him were within the framework of Article 11 and constituted a violation of its provisions. The activities complained of had had the effect as well as the intention of severely disrupting the possibilities of peaceful assembly to further attempts at mutual reconciliation and peaceful settlement of a grievous situation in Cyprus. He maintained that the essence of the various meetings held had been to bring together Turkish and Greek Cypriots with the intention of working towards such goals. The actions complained of had resulted in great difficulty in ensuring Turkish Cypriot participation in such endeavours. The applicant distinguished the Court's judgment of 10 May 2001 in the case of Cyprus v. Turkey (op. cit.) from his application since the conclusions of the Court in the above-mentioned case under Article 11 of the Convention with regard to the Turkish Cypriots had referred to the position in general of the Turkish Cypriots and not the position of a specific person or persons.

49. In relation to freedom of association the applicant stated that the minimum organisation and stability tests required were fulfilled by the “Movement for an Independent and Federal Cyprus”.

50. The applicant contended that he was not aware of any relevant law regulating the matters of which he complained and that there was no legal protection against arbitrary interference by the public authorities with his rights. In relation to this he argued that the respondent Government had made no effort at all to indicate the grounds upon which such interference might have been justified, nor had they shown it to be necessary in a democratic society.

51. Finally the applicant maintained that, in accordance with the principle of protection from arbitrariness in the exercise of authority, the respondent Government, once aware of complaints about the violations of Article 11 of the Convention, were obliged to conduct a prompt and effective investigation (Kurt v. Turkey, judgment of 25 May 1998, Reports 1998-III, p. 1152, §§ 122, 124, 133-134; Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, p. 3124, §§ 115 and 123). According to the applicant, failure to do this exacerbated the violations and constituted a further distinct violation of this Article.

3. The Cypriot Government

52. The Cypriot Government disputed the arguments of the respondent Government. They maintained that the non-ratification by the respondent Government of Protocol No. 4 to the Convention had not affected the applicant's complaint that the restrictions imposed on his freedom to travel to the south violated his rights under Articles 10 and 11 of the Convention. In support of this argument, the Cypriot Government stated that the Court had held on a number of occasions that the fact that the subject-matter of a particular complaint was addressed in an optional protocol which the State concerned had not ratified did not prevent consideration of the complaint under a provision of the Convention itself (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 24 April 1985, Series A no. 94; Guzzardi v. Italy, judgment of 2 October 1980, Series A no. 39). They also referred to the conclusions of the Court in the Loizidou case (merits) (op. cit.) and the findings of both the Commission and the Court in relation to the position of the Karpas Greek Cypriots in the case of Cyprus v. Turkey (Commission's report of 4 June 1999, op. cit.; judgment of 10 May 2001, op. cit.).

53. Finally, the Government of Cyprus maintained that the respondent Government had not justified the interference with the applicant's rights and had thus failed to demonstrate that the measures taken in the present case met the test established in Article 11 § 2 of the Convention.

B. The Court's assessment

1. Preliminary Remark

54. The Court first observes that the applicant's complaint under Article 11 of the Convention is not limited to the question of freedom of movement, that is, to physical access to the southern part of Cyprus. His complaint, as set out in his submissions, is that the authorities, by constantly refusing to grant him permits to cross the “green line”, have effectively prevented him from meeting Greek Cypriots and from participating in bi‑communal meetings, thus affecting his right to freedom of assembly and association, contrary to Article 11 of the Convention. It is this complaint, as formulated above, that was addressed by the applicant as well as the Turkish and the Cypriot Governments in their submissions to the Court. In connection with this the Court also recalls its findings and reasoning in the Loizidou case (merits) (op. cit.), rejecting similar arguments raised by the respondent Government regarding freedom of movement (op. cit., §§ 60‑63).

55. Seen in the above light the Court cannot accept the characterisation of the applicant's complaint as being limited to the right of freedom of movement. Article 11 of the Convention is thus applicable.

2. General principles

56. The Court observes at the outset that the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society. Thus, it should not be interpreted restrictively (see G. v. the Federal Republic of Germany, no. 13079/87, Commission decision of 6 March 1989, DR 60, p. 256; Rassemblement jurassien v. Switzerland, no. 8191/78, p. 93, op. cit.; Milan Rai, Gill Almond and “Negotiate Now” v. the United Kingdom, no. 25522/94, Commission decision of 6 April 1995, DR 81-A, p. 146). As such this right covers both private meetings and meetings in public thoroughfares as well as static meetings and public processions; in addition, it can be exercised by individuals and those organising the assembly (Rassemblement jurassien v. Switzerland, op. cit., p. 119, and Christians Against Racism and Fascism v. the United Kingdom, no. 8440/78, Commission decision of 16 July 1980, DR 21, p. 138, p. 148).

57. The Court notes in addition that States must not only safeguard the right to assemble peacefully but also refrain from applying unreasonable indirect restrictions upon that right (see Ezelin, op. cit.). Finally, the Court considers that although the essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected, there may in addition be positive obligations to secure the effective enjoyment of these rights (see Christians Against Racism and Facism, op. cit., p. 148).

3. Application of these principles to the instant case

58. In the present case, the Court points out that the Commission, in its admissibility decision of 14 April 1998, declared admissible only the part of the application which related to the period after 8 March 1992. The Court's jurisdiction ratione temporis only permits it to consider the period from the above date until 14 April 1998, the latter being the date of the admissibility decision, that is, a period of six years and one month. Thus, alleged violations of Convention rights not occurring within this period are outside the scope of the present judgment.

59. The Court observes that during the above period the respondent Government refused to grant a substantial number of permits to the applicant. Although the applicant was allowed to cross over the “green line” and attend some meetings, these were very few in comparison to the amount of times he was not permitted to cross over. In particular, during the relevant period under consideration, only 6 out of 46 requests were granted. The Court notes that in some of these instances permits were granted to other persons who had submitted requests, but not to the applicant. In connection with this the Court also recalls its findings in its judgment in the case Cyprus v. Turkey (op. cit.) in relation to the rigorous approach taken by the “TRNC” authorities to bi-communal contacts after the second half of 1996 by the imposition of restrictions and, indeed, prohibitions (§§ 368-369). In the instant application, between 2 February 1996 and 14 April 1998 the applicant was refused all permits requested to cross over to southern Cyprus with the purpose of attending bi-communal meetings (10 in total).

60. The Court considers that, despite the varied nature of the meetings the applicant wished to attend, they all shared a core characteristic: they were bi-communal. Thus, irrespective of the form they took and by whom they were organised, their aim was the same, namely, to bring into contact Turkish Cypriots living in the north and Greek Cypriots living in the south with a view to engage in dialogue and exchange ideas and opinions with the hope of securing peace on the island. In light of this objective, whether or not the applicant was to participate in these meetings as the Turkish Cypriot co‑ordinator of the “Movement for an Independent and Federal Cyprus” is irrelevant for deciding upon the question of freedom of assembly, given the ambit of the right guaranteed by Article 11 of the Convention.

61. In view of the above, the Court considers that the refusals to grant permits to the applicant in order to cross into southern Cyprus in effect barred his participation in bi-communal meetings therein, preventing him consequently from peacefully assembling with people from both communities. In this respect the Court observes that hindrance can amount to a violation of the Convention just like a legal impediment (Loizidou v. Turkey, merits, op. cit. § 63).

62. Accordingly, the Court concludes that there has been an interference with the applicant's rights to freedom of peaceful assembly guaranteed by Article 11 of the Convention.

63. Such an interference gives rise to a breach of this provision unless it can be shown that it was “prescribed by law”, pursued one or more legitimate aim or aims as defined in paragraph 2, and was “necessary in a democratic society”.

64. It must first be examined whether the restriction complained of was “prescribed by law”.

65. The Court reiterates that one of the requirements flowing from the expression “prescribed by law” is the foreseeability of the measure concerned. A rule cannot be regarded as “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with the appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, for example, Rekvényi v. Hungary [GC], no. 25390/94, ECHR 1999-II, § 34).

66. In the present case the respondent Government did not refer to any law or measures in the “TRNC” regulating the issuance of permits to Turkish Cypriots living in northern Cyprus to cross the “green line” into southern Cyprus for the purposes of attending bi-communal meetings. Furthermore, they did not provide any indication when restraints to the granting of such permits are allowed.

67. The task of the Court is only to assess the circumstances of an individual case before it. The Court concludes that there seems to be no law applicable in the present case regulating the issuance of permits to Turkish Cypriots living in northern Cyprus to cross the “green line” into southern Cyprus in order to assemble peacefully with Greek Cypriots. Therefore, the manner in which restrictions were imposed on the applicant's exercise of his freedom of assembly was not “prescribed by law” within the meaning of Article 11 § 2 of the Convention.

68. In the light of the above considerations the Court does not consider it necessary to examine whether the other requirements laid down by Article 11 § 2 of the Convention were satisfied. Further, in view of the above, the Court does not consider it necessary to address the issue of freedom of association.

69. Accordingly, the Court concludes that there has been a violation of Article 11 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

70. The applicant complained that no effective domestic remedy existed with regard to the violations of Articles 10 and 11 of the Convention in breach of Article 13 thereof, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

71. The respondent Government stated that the allegations of the applicant under Article 13 were closely related to the issue of domestic remedies and thus their submissions in relation to the existence of effective and practical remedies within the “TRNC” available to the applicant were also applicable with regard to this provision. In addition they submitted that, as decided by the Commission in the case of Chrysostomos and Papachrysostomou v. Turkey (op. cit.), the applicant could not have complained under Article 13 once he chose not to avail himself of existing available and effective remedies.

72. The applicant and the Cypriot Government reaffirmed their arguments in relation to the issue of domestic remedies and submitted that these were also applicable with regard to the question of effective remedies under Article 13 of the Convention.

73. The Court observes that as regards the possible remedies cited by the Government, they have not put forward any example showing their use in a case similar to the present one (see Vereinigung Demokratischer Soldaten Osterreichs and Gubi v. Austria, judgment of 19 December 1994, Series A no. 302, § 53). They have therefore failed to show that such remedies would have been effective.

74. It follows that there has been a violation of Article 13 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

75. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

76. The applicant submitted that he had suffered considerably as a direct result of his long-running attempt to enforce his freedoms of expression and assembly within the context of seeking peace in Cyprus by way of an agreement between the two communities.

A. Damage

1. Pecuniary damage

77. The applicant claimed damages for pecuniary loss for which he gave no figure. He submitted that the delay in the consideration of his case had prevented him from obtaining a job in Nicosia, in the southern part of Cyprus, while the continuing lack of resolution of the issues in question had grievously affected his ability to secure a living in the north. He claimed that he had been prevented from attending further meetings and that his whole professional and financial situation had been seriously affected.

78. The respondent Government did not address the applicant's claim.

79. The Court considers that the applicant has not adduced any proof in support of the above claims. He has not shown that the delay in the consideration of his case has affected his ability to secure his living in northern Cyprus or that he has been prevented at any time from securing employment in southern Cyprus.

80. Therefore, the Court does not find any causal link between the matter found to constitute a violation of the Convention and the pecuniary damage allegedly suffered by the applicant. In accordance with the principles of its case-law, it rejects the entirety of the applicant's claim under this heading (see Çakici v. Turkey [GC], no. 23675/94, § 127, ECHR 1999-IV).

2. Non-pecuniary damage

81. The applicant claimed compensation for non-pecuniary damage in the sum of 50,000 pounds sterling (GBP) for prolonged anxiety, frustration and stress over an extended and continuing period. He contended that the above damage constituted a direct consequence of the actions and omissions for which the respondent Government were responsible under the Convention.

82. The respondent Government did not address the applicant's claim.

83. The Court considers that the applicant must have suffered from a feeling of helplessness and frustration in the face of the continuous refusals by the authorities for over six years to grant him permits to cross over into southern Cyprus and participate in bi-communal meetings. The Court deems that this cannot be compensated solely by the findings of violations.

84. Accordingly, the Court, having regard to the nature of the case, and deciding on an equitable basis, awards the applicant the sum of 15,000 euros (EUR), which it considers would represent fair compensation for the non-pecuniary damage sustained.

B. Costs and expenses

85. The applicant also claimed a total of GBP 6,175 for legal costs and expenses.

86. The Court is not satisfied that all the costs and expenses claimed under that head were necessarily incurred and are reasonable as to quantum (see Iatridis v. Greece [GC], (just satisfaction), no. 31107/96, § 54, ECHR 2000-XI). Further, the Court notes that the applicant was granted legal aid. Therefore, it considers it appropriate to award the applicant the sum of EUR 4,715.

C. Default interest

87. The Court considers that the default interest should be fixed at an annual rate equal to the marginal lending rate of the European Central Bank plus three percentage points.

FOR THESE REASONS, THE COURT

1. Dismisses by six votes to one the Government's preliminary objections;

2. Holds unanimously that it is not necessary to examine separately the applicant's complaint under Article 10 of the Convention;

3. Holds by six votes to one that there has been a violation of Article 11 of the Convention;

4. Holds by six votes to one that there has been a violation of Article 13 of the Convention;

5. Holds by six votes to one

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention the following amounts:

(i) EUR 15,000 (fifteen thousand euros) in respect of non-pecuniary damage;

(ii) EUR 4,715 (four thousand seven hundred and fifteen euros) in respect of costs and expenses;

(iii) any tax that may be chargeable on the above amounts;

(b) that simple interest on the above amounts at an annual rate equal to the marginal lending rate of the European Central Bank plus three percentage points shall be payable from the expiry of the above-mentioned three months until settlement;

6. Dismisses unanimously the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 20 February 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Vincent Berger Lucius Caflisch
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Mr Gölcüklü is annexed to this judgment.

L.C.
V.B.

DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

To my great regret, I cannot agree with the majority's opinion and reasoning or with their conclusions in the present case, for the following reasons.

1. On the island of Cyprus two communities – the Turkish community and the Greek community – once lived and still live side by side, on an equal footing, but not always on very good terms, it must be admitted.

2. It will be remembered that the fateful day as far as the Cypriot “affair” or “crisis” is concerned was 15 July 1974. That was the date of the coup d'état organised by the Greek colonels with the intention of annexing the island to Greece (enosis). The head of State, Archbishop Makarios, fled the country and asked for assistance from the UN Security Council.

3. Following the coup d'état, whose declared aim was to put an end to the Cypriot State's existence, Turkey intervened alone (in view of the indifference of the other two guarantor States) to save the Republic; the intervention was based on the guarantee agreement between three States (the United Kingdom, Greece and Turkey), which gave them the right to intervene, separately or jointly, if the situation so required. It was therefore effected in implementation of a clause in an international instrument.

4. The above-mentioned events considerably altered the existing political situation and led to the separation of the two communities and division of the island (the southern part Greek and the northern part Turkish). I must add that this separation had already been perceptible since 1963. With the situation deteriorating day by day, the buffer zone had been set up and the UN forces interposed as far back as 1964.

Subsequently, the “green line” – or demarcation line – was drawn between the south and north of the island, under the protection and surveillance of the UN forces. The population exchange was agreed between the Turkish authorities and the Greek authorities.

5. First, a few particulars to clarify the status of the buffer zone and the green line. In his report of 7 December 1989 – Security Council document S/21010 – on the UN operation in Cyprus the Secretary-General of the United Nations made the following observations about a demonstration on the demarcation line on 19 July 1989:

“In the evening of 19 July, some 1,000 Greek Cypriot demonstrators ... forced their way into the United Nations buffer zone in the ... area of Nicosia. The demonstrators broke through a wire barrier maintained by UNFICYP and destroyed an UNFICYP observation post. They then broke through the line formed by UNFICYP soldiers and entered a former school complex where UNFICYP reinforcements regrouped to prevent them from proceeding further...”