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Main Page :- Articles :- European Commission of Human Rights - Cyprus v. Turkey - Commission Report, 10 July 1976

 

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PART III - ARTICLE 15 OF THE CONVENTION

A. Submissions of the Parties

506.        The Commission decided on 12 March 1976 to invite the Parties' observations on "the applicability of the Convention to a situation of military action as in the present case, bearing in mind in particular Art, 15".

I.          Applicant Government

507.        The applicant Government submitted [696] that, under the Commission's decision on the admissibility of the applications, the Convention was applicable irrespective of the military situation.

508.        Turkey undertook the military operations described in the applications in order to impose, in violation of the Treaty of Guarantee and the Constitution of Cyprus protected by that Treaty, the federal solution pursued by her.

509.        The application of the Convention was not excluded by Turkey's concurrent responsibility under other international instruments, especially the Fourth Geneva Convention of 1949: in belligerent operations a State was bound to respect not only the humanitarian law laid down in the Geneva Convention (jura in bello) but also the fundamental human rights. Resolution 2675 (XXV) of the United Nations General Assembly of 9 December 1970 provided that fundamental human rights, as accepted by international law and laid down in international instruments, "continue to apply fully in situations of armed conflict".

510.        The applicability of the European Convention on Human Rights to armed, conflicts followed also from its Art. 15 (1) which made provision for the case of "war", while no such reference was contained in the otherwise analogous Art. 4 (1) of the International Covenant on Civil and Political Rights.

The reference to "other obligations under international law" in Art. 15 (1) excluded wars violating such obligations as those under the United Nations Charter; it presupposed that the Convention applied to armed conflicts "irrespective of the applicability thereto of 'other obligations under international law', either conventional such as the Geneva Convention or the Hague Regulations or customary."

The reference in Art. 15(2) to deaths "resulting from lawful acts of war" also connoted that the European Convention could be applied simultaneously with "the law of war relating to the jura in bello because there could be deaths during an armed conflict not resulting from lawful acts of war", as complained of in the present case.

511.        The derogation provided in Art. 15 was "a right of the State concerned": Art. 15 (3) spoke of the High Contracting Party "availing itself of this right of derogation". If the State concerned did not exercise the right of derogation no other person could invoke it, and neither the Commission nor the Court could apply it ex officio. Turkey had not invoked any right of derogation in the present case, although she had done so in the past on other occasions.

512.        Turkey's war against Cyprus was "an aggressive war" and therefore not contemplated by Art. 15(1). Moreover, no derogation by Turkey with respect to Cyprus could have remained in force after 23 July 1974, the date on which the constitutional order in Cyprus "was restored by the assumption of the office of the President of the Republic by the President of the House of Representatives." The actual war operations were carried out on 20, 21 and 22 July 1974 (first phase) and 14, 15 and 16 August 1974 (second phase), while most of the violations complained of were not committed during those days and "unconnected with any war" in the sense of Art. 15.

513.        Turkey never informed the Secretary General of the Council of Europe of any measures of derogation taken under Art. 15 and the Commission could not consider ex officio whether such measures were "strictly required by the exigencies of the situation". In any case, "the nature and extent" of the acts complained of could not be regarded as so required.

514.        Even if any of these acts were considered (otherwise) to be in accordance with Art. 15, they were still inconsistent with Turkey's "other obligations under international law", especially the Geneva Conventions and the Hague Regulations, and therefore could not stand under Art. 15.

515.        Any notice to the Secretary General of measures of derogation should under Art. 15 (3) have been given promptly; no such notice could be given as late as the closing stage of the Commission's proceedings.

516.        Even if Art. 15 applied no derogation could be made from Art. 2 except for deaths resulting from lawful acts of war, or from Arts. 3, 4 (1) or 7 of the Convention; a number of the acts complained of violated Arts. 2, 3 and 4 (1).

517.        Even if Art. 15 applied any derogation by Turkey would in the circumstances be incompatible with Arts. 17 and 18 of the Convention.

II.         Respondent Government

518.        The respondent Government made the following statement: [697]

"It is without any doubt that if the conditions required by the European Convention on Human Rights concerning the admissibility of an application were fulfilled, the question of the applicability of the Convention in matters of military action and the effect of Art. 15 in such a situation must be examined by the Commission as in cases like Applications Nos. 6780/74 and 6950/75 pending before the Commission.

The present situation is however different. In fact, as my Government has repeatedly brought to the attention of the Commission, the above-mentioned application has been brought by an administration which is not qualified to act in the name of a 'High Contracting Party', a condition required by Art. 24 of the Convention. Turkey, a guarantor State of the constitutional system of the Republic of Cyprus according to the Zurich and London Agreements and the Treaties of Nicosia of 1960 and acknowledged as such by the Cyprus Republic itself, has never recognised such competence on the part of the Greek-Cypriot administration which was constituted in flagrant violation of the above-mentioned international treaties. According to the well-established rules of international law, third parties may not and cannot apply rules to the relations between the parties to the treaty other than those rules agreed in the treaty between the parties in question. My Government therefore firmly believes that the argument that a de facto recognition of a government by a certain number of other States and international organs necessitates the recognition of that government as lawful government cannot be binding on Turkey.

In view of the above you will acknowledge that it is out of the question for my Government to submit, in the course of the proceedings on the merits, their observations on the applicability of the said Convention with regard to military action and the effects of Art. 15 thereto."

B. Relevant Article of the Convention

519.        Article 15 of the Convention states as follows:

"1.         In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

2.         No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3,  4 (paragraph 1) and 7 shall be made under this provision.

3.         Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed."

C. Communications by Turkey under Article 15 (3)

I.          As to the northern area of Cyprus

520.        No communication has been made by Turkey under Art. 15 (3) of the Convention with regard to the northern area of Cyprus.

II.         As to the Turkish mainland

521.        With regard to the Turkish mainland, the Permanent Representative of Turkey, by a Note Verbale of 23 July 1974, informed the Secretary General of the Council of Europe as follows:

"The Turkish Government has declared martial law for a duration of one month in the provinces of Ankara, Istanbul, Tekirdag, Izmir, Aydin, Mugla, Kanisa, Kirklareli, Edirne, Canakkale, Balikesir, Adana, Igel and Hatay in conformity with Article 20 of the Constitution.

This decision on martial law which was taken due to a situation that may necessitate war, foreseen in paragraph 1 of Article 15 of the European Convention on Human Rights, is communicated hereby in accordance with the third paragraph of the same article of the above-mentioned Convention."

522.        The above declaration was renewed at intervals up to 5 August 1975 and in all cases the Adana region was included, but martial law was lifted in certain other provinces. All declarations were notified to the Secretary General.

523.        By letter of 12 November 1975 the Turkish Permanent Representative informed the Secretary General that "Martial Law in the provinces of Ankara, Istanbul, Adana and Içel has been lifted on 5 August 1975. Thus, no province now remains where Martial Law is in force."

D. Opinion of the Commission

524.        The Commission has considered whether there is a basis for applying Article 15 of the Convention in the present case:

-         with regard to the northern area of Cyprus, and/or

-         with regard to provinces of Turkey where Greek Cypriots were detained.

I.         As regards the northern area of Cyprus

525.        In its decision on the admissibility of the present applications, the Commission found that the Turkish armed forces in Cyprus brought any other persons or property there "within the jurisdiction" of Turkey, in the sense of Art. 1 of the Convention, "to the extent that they exercise control over such persons or property" [698]. It follows that, to the same extent, Turkey was the High Contracting Party competent ratione loci for any measures of derogation under Art. 15 of the Convention affecting persons or property in the north of Cyprus.

526.        The Commission notes that no communication was made by Turkey, under Art. 15(3) of the Convention, with regard to persons or property under her jurisdiction in the north of Cyprus [699].

The Commission further notes that, at the admissibility stage, the respondent Government submitted that they had no jurisdiction over that area [700].

The Commission recalls that, both in the First Cyprus Case [701] and in the Lawless Case [702], it reserved its view as to whether failure to comply with the requirements of Art. 15(3) may "attract the sanction of nullity or some other sanction". In the Lawless Case the Commission also pointed out that the obligation to inform the Secretary General of a measure derogating from the Convention is "an essential link in the machinery provided in the Convention for ensuring the observance of the engagements undertaken by the High Contracting Parties" and further observed that, without such information, the other Parties will not know their position under Art. 24 of the Convention and the Commission itself will be unaware of facts which may affect the extent of its own jurisdiction with respect to acts of the State in question [703].

527.        In the present case the Commission still does not consider itself called upon generally to determine the above question. It finds, however, that, in any case, Art. 15 requires some formal and public act of derogation, such as a declaration of martial law or state of emergency, and that, where no such act has been proclaimed by the High Contracting Party concerned, although it was not in the circumstances prevented from doing so, Art. 15 cannot apply.

528.        The Commission, by twelve votes against three votes, concludes as regards the present case that it cannot, in the absence of some formal and public act of derogation by Turkey, apply Art. 15 of the Convention to measures taken by Turkey with regard to persons or property in the north of Cyprus.

II.         As to localities in Turkey where Greek Cypriots  were detained

529.        The Commission notes that certain communications, as set out above [704], were made by Turkey under Art. 15(3) of the Convention with regard to certain provinces including the Adana region, in which martial law was declared.

530.        The Commission considers, however, that the said declaration of martial law cannot, within the conditions prescribed in Art. 15, be extended to cover the treatment of persons brought into Turkey from the northern area of Cyprus.

531.        The Commission, by fourteen votes with one abstention, concludes that it cannot, in the present case, apply Art. 15 of the Convention to the treatment by Turkey of Greek Cypriot Prisoners brought to and detained in Turkey.


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Notes:

[696] Observations of 15 April 1976.

[697] Communication of 15 April 1976. Original French, English translation by the Council of Europe.

[698] See Appendix I, para. 10 of The Law.

[699] Cf para. 520 above.

[700] Cf para. 2 above.

[701] See the Commission's (unpublished) Report of 26 September 1958 in Application No 176/56 (Greece v. United Kingdom), Vol. 1, p. 181.

[702] See E.C.H.R., Series B, 1960-1961, pp. 74, 335-336.

[703] Ibid. - The annotation on the draft International Covenants on Human Rights prepared by the UN Secretary General (Doc. A/2929) contained the following observations on the emergency clause in Art. 4 of the draft Covenant on Civil and Political Rights: "47. It was generally agreed that the proclamation of a public emergency and consequential derogation from the provisions of the covenant was a matter of the gravest concern and the States parties had the right to be notified of such action. It was further agreed that since the use of emergency powers had often been abused in the past, a mere notification would not be enough."

[704] Cf paras 521-523.

 


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