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


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1.       In the present case the Commission has concluded that Art. 15 of the Convention is inapplicable. It has, in fact, touched upon a new problem of interpretation in the field covered by Art. 15, which problem it has stated and resolved as follows:

"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." (Report, para. 527)

This proposition has led the Commission to arrive at the conclusion mentioned in the following terms:

"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." (Report, para. 528)

I cannot concur in this approach. Since a general problem of interpretation is involved, I feel it my duty to explain, if only briefly, my reasons for disagreeing.

2.       I would first point out that another problem of inter- pretation of the Convention has also been taken into consideration by the Commission, namely that concerning the legal consequences resulting from a failure to comply with the rule laid down in para. (3) of Art. 15 as to information to be given to the Secretary General of the Council of Europe. The Commission has, in this context, recalled the precedents of the first Cyprus case and the Lawless case and has considered in particular a passage in its Report in the Lawless  case concerning the ratio for this obligation (see: Eur. Court H.R., Series B, 1960-61, pp. 74, 335-336). It has nevertheless left the above problem open once again:

"In the present case the Commission still does not consider itself called upon generally to determine the above question." (Report, para. 527)

3.       In my opinion the obligation laid down in para. (3) of Art. 15, albeit a very important one, is not to be understood as meaning that strict and rigid respect for it is a condition indispensable to the valid exercise of the right of derogation conferred by that article. Such a sanction cannot easily be deduced from the general principles of international law. It would on the other hand have been very easy for the High Contracting Parties to have provided for it if they had had the intention of establishing it : it would have been sufficient to say that this right of derogation could only be exercised, on pain of nullity, if the Secretary General of the Council of Europe were kept fully informed of the measures taken and the reasons which inspired them.

It has even occurred that a High Contracting Party has only informed the Secretary General of the Council of Europe of measures of derogation taken by it after they had already been revoked or withdrawn (see for example the Note Verbale, deposited with the Secretariat General on 16 November 1962 by the Permanent Representative of the United Kingdom, relating to the situation of "public emergency" which had arisen in the Protectorate of Northern Rhodesia, Yearbook of  the European Convention on Human Rights, 1962, p. 8). Whilst it is not now necessary to consider whether such a manner of informing the Secretary General is in accordance with the obligation laid down in para.(3)of Art. 15, it can nevertheless be said that this indicates an attitude which does not suggest any conviction that the exercise of the right of derogation could be struck at by a sanction of nullity in the event that it was not accompanied by transmission of the required information.

In brief, the obligation in question should, in principle at least, be seen as an autonomous obligation in the sense that its violation does not affect the valid exercise of the right of derogation flowing from the same article.

The problem as to the legal consequences of such a violation indeed remains. However, there is no need to examine in depth any aspect of this problem apart from that examined above.

4.       Having said this, I should draw attention to the following point: the measures of derogation envisaged in Art. 15 are promulgated by public authorities in the exercise of their functions and have an exceptional character even from the point of view of internal law. Given this, it is scarcely conceivable that they should not receive some form of publicity. It does not follow that such publicity will accompany every concrete measure : the arrest of persons, the seizure of property and so forth. A distinction must indeed be drawn between these concrete measures and the acts which authorise and regulate them. Whether laws or ordinances or proclamations are involved, it is inherent in the very nature of these acts that they should be promulgated by means of certain forms of publicity. Furthermore, it does not seem compatible with the spirit of the European Convention that it should envisage a right of derogation which would be exercised without even the citizens of the state, the inhabitants of a territory or other persons subject for some other reason to the jurisdiction of the High Contracting Party being warned in what circumstances and under what conditions they might be subjected to restrictions, constraints or sanctions contrary to the rights and freedoms which the Convention normally assures them.

5.       It should, however, be added that the requirement of publicity just referred to need not necessarily always be understood in the sense that recourse to publicity should immediately precede recourse to concrete measures of derogation. There may even be situations with the following characteristics, namely situations envisaged by domestic or international law as being situations which, from the moment when they arise, render applicable rules - of domestic or international law as the case may be - under which exceptional measures can be taken in the conditions envisaged by them. One cannot see how one could deduce from Art. 15 that it was necessary to resort to further forms of publicity in relation to these rules.

This is notably the case in military occupation of the territory of a foreign state, as can be seen from the second volume of the well-known treatise of Oppenheim (International Law, II, Disputes, War and Neutrality, seventh edition, edited by H. Lauterpacht) :

"An occupant having military authority over the territory, the inhabitants are under his Martial Law and have to render obedience to his commands." (p. 438)

The state of emergency which the establishment of military rule in a foreign territory brings about for the occupying authorities differs from other emergency situations in that it bears, to a large extent, certain typical characteristics, so that it is sufficient that the military occupation should be known for the state of emergency which it has brought about to be equally known as an inherent phenomenon. This has allowed the elaboration of rules of the law of war concerning the occupation of territories and covering, amongst other matters, the exercise of exceptional powers by the occupying authorities (see the Regulations respecting the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 1907).

6.       The ideas which have just been set out can be developed further, still in relation to the hypothesis of the military occupation by one High Contracting Party of the territory of another state.

It is to be noted that the rules of international law concerning the treatment of the population in occupied territories (contained notably in The Hague Regulations of 1907 and the Fourth Geneva Convention of 12 August 1949) are undeniably capable of assisting the resolution of the question whether the measures taken by the occupying power in derogation from the obligations which it should in principle observe - by virtue of the European Convention - where it exercises (de jure or de facto) its jurisdiction, are or are not justified according to the criterion that only measures of derogation strictly required by the circumstances are authorised. In fact these rules duly take account of the necessities of the occupying power : they are inspired by the search for a just balance between military necessities and the safeguarding of the rights and interests of the civil population.

It follows that respect for these same rules by a High Contracting Party during the military occupation of the territory of another state, will in principle assure that that High Contracting Party will not go beyond the limits of the right of derogation conferred on it by Art. 15 of the Convention. One can cite, for example, Art. 49 of the Fourth Geneva Convention, which article relates to the prohibition of forced transfers in the occupied territories whether en masse or individually, as also to other obligations on the occupying power in relation to the displacement of persons [732].

7.       Since my aim in the present opinion has only been to take a position on a general problem of interpretation, I shall not formulate any particular conclusions with regard to the case which is subject of the Commission's Report. I shall note, however, that in paragraph 313 in fine thereof, this Report contains the following passage

"Having regard to the above, the Commission has not found it necessary to examine the question of a breach of Art. 5 with regard to persons accorded the status of prisoners of war."

It can be said, in accordance with the above approach, that measures which are in themselves contrary to a provision of the European Convention but which are taken legitimately under the international law applicable to an armed conflict, are to be considered as legitimate measures of derogation from the obligations flowing from the Convention.


I.          As to Art. 3 of the Convention

1.       Although I agree with the Commission's finding at para. 373 that it has not been shown that the Turkish authorities took adequate measures to prevent the acts in question, I want to stress that Art. 152 of the Turkish Military Code [733] contains a provision for punishment of rape. My translation of the Turkish text reads as follows:

"Article 152

1. Those persons who commit rape or ravishment (defloration) in military service, shall be punished pursuant to Chapter 8 of the Turkish Criminal Code.

2. If the crimes of para. 1 are committed against subordinated persons, the punishment shall be increased by 50% according to Art. 417 of the Turkish Criminal Code."

2.       Although I agree with the Commission's finding at para. 393, I consider it necessary to use the same argument as in the case of rape, namely, that it has not been shown that the Turkish authorities took adequate measures to prevent beating and other ill-treatment of prisoners by Turkish soldiers. I consider that such a treatment, apart from obligations under the Third Geneva Convention, is also not a normal behaviour of soldiers and that military ethics prohibit this form of violence against prisoners. The omission of the statement that Turkey did not prevent such ill-treatment might create the impression that it is regarded as a lighter offence of military discipline whose prevention may not be asked for.

II.         As to Art. 1 of Protocol No. 1

Although I agree with the Commission's finding at para. 484, I find it necessary to state that it has not been shown that the Turkish authorities took adequate measures to prevent looting although looting is clearly forbidden and made a punishable offence by Arts. 122, 125, 126 and 127 of the Turkish Military Code [734].

III.         As to Art. 15 of the Convention

I agree with the Commission that Art. 15 does not apply in the present case. My opinion is based on the following observations on the interpretation of Art. 15 of the Convention in the light of its history, linked with the drafting of Art. 4 of the International Covenant on Civil and Political Rights which is now in force.

1.       Art. 15 of the Convention is drafted in similar terms to Art. 4 of the Covenant on Civil and Political Rights [735] which was already preliminarily drafted in 1948 in the course of the elaboration of the first Draft International Covenant on Human Rights. Art. 22 of the Interamerican Convention on Human Rights also contains a clause which corresponds exactly to Art. 15 of the European Convention. The preparatory work of Art. 15 of the European Convention does not give any indication of the intention of the parties to the Convention or the drafters of the Convention in drafting this clause.

2.       It seems that the European drafters based themselves wholly on the results of the work of the UN. Indeed in the Commission on Human Rights of the UN the derogation clause now contained in Art. 4 was drafted by a working group [736]; the text reads as follows:

"Article 4

1. In time of war or other public emergency, a State may take measures derogating from its obligations under Article 2 above to the extent strictly limited by the exigencies of the situation.

2. Any State party hereto availing itself of this right of derogation shall inform the Secretary General of the United Nations fully of the measures which it has thus enacted and the reasons therefor. It shall also inform him as and when the measures cease to operate and the provisions of Article 2 are being fully executed."

In May 1948 the text was revised and the second paragraph was put aside "until implementation articles have been drafted" [737]. At the seventh session of the Commission the text read as follows:

"Article 2

1. In the case of a state of emergency officially proclaimed by the authorities or in the case of public disaster, a State may take measures derogating, to the extent strictly limited by the exigencies of the situation, from its obligations under Article 1, paragraph 1 and Part II of this Covenant.

2. No derogation from Articles 3, 4, 5 (paragraphs 1 and 2), 7, 11, 12 and 13 may be made under this provision. No derogation which is otherwise incompatible with international law may be made by a State under this provision.

3. Any State Party hereto availing itself of the right of derogation shall inform immediately the other States Parties to the Covenant, through the intermediary of the Secretary-General, of the provisions from which it has derogated and the date on which it has terminated such derogation." [738]

The following amendments thereto were drafted:

"Article 2

1.         Paragraph 1

Delete and substitute:

'In time of war or other public emergency threatening the life of the nation the States Parties hereto may take measures derogating from their obligations under the  Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law.'

2.         Paragraph 2

After the words 'with international law' in Article 2, paragraph 2, line 3, insert the words:

'and in particular with the principles of the Charter of the United Nations and the Universal Declaration of Human Rights'.

Delete and substitute:

'No derogation from Article 3, except in respect of deaths resulting  from lawful acts of war, or from Articles 4, 5 (paragraphs 1 and 2), 7 and 11 shall be made under this provision.'

3.         Paragraph 3


For the word 'immediately' substitute the words 'as soon as may be', and for the words 'the other States Parties ... Secretary-General' substitute the words 'the Secretary-General who shall inform the General Assembly of the United Nations'.


After the words in the present text: 'the provisions from which it has derogated' insert the words: 'the reasons by which it was actuated'.."

At the eighth session of the Commission (1952) the relevant clause was voted upon. The report of the Commission [739] noted the following:

"Article 3 (Derogations)

227.    At its 330th and 331st meetings, the Commission considered Article 2.

278.    Scope of derogations. Some representatives favoured some qualification of the kind of public emergency in which a State would be entitled to make derogations from the rights contained in the covenant. In their view, the public emergency should be of such magnitude as to threaten the life of the nation as a whole and not of a portion of the nation, as when a natural disaster  had taken place. Although it was recognised that one of the most important public emergencies of such kind was the outbreak of war, many representatives felt that the covenant should, by omitting any mention of war, avoid the imputation of seeming to condone it or to make particular provision for it. A majority of the Commission also favoured the provision that a public emergency giving the State the right to derogate from its obligations under the covenant should be officially proclaimed. Some representatives, however, were of the opinion that public emergency was too restrictive a term because it did not cover natural disasters, which almost always justified the State in derogating from some, at least, of the rights recognised in the covenant. There was general agreement that no derogation incompatible with international law should be allowed under the covenant, although some representatives considered that, in addition to the expression_'international law', there should be reference, in particular, to the principles of the United Nations Charter and the Universal Declaration of Human Rights.      Others pointed out that the principles of the Charter were part of international law and that the principles of the Universal Declaration of Human Rights were not.

279.    The consensus of the Commission was that none of the derogations from the obligations under the covenant should involve discrimination on grounds of race, colour, sex, language, religion or social origin. There was some debate, however, whether it was 'solely' on those grounds that discrimination was prohibited. In justification of the word 'solely', it was argued that a State might take steps in derogation from the rights recognised in the covenant that could be construed as discriminatory merely because the persons concerned belonged to a certain race, religion, etc.; the evil to be avoided was discrimination based solely on those grounds.

280.    The voting took place at the 331st meeting. The Commission voted upon an amendment of the USSR (E/CN.4/L.121) by division; the words 'caused by circumstances' were rejected by 9 votes to 5, with 4 abstentions; and the words, 'threatening the interests of the people and' were not adopted, there being 8 votes in favour, 8 against, and 2 abstentions. The Commission next adopted, by 13 votes to none, with 5 abstentions, an amendment by France (E/CN.4/L.211), to add after the words 'the life of the nation' in a United Kingdom amendment (E/CN.4/L.139/Rev.1), the words 'and the existence of which is officially proclaimed'. The Commission then rejected an amendment by Yugoslavia (E/1992, annex III, A, article 2), to add after the words 'international law', the words 'particularly the principles of the Charter of the United Nations and the Universal Declaration of Human Rights'. The first part, ending with the words 'United Nations', was not adopted, there being 6 votes in favour, 6 against, and 6 abstentions; the second part was rejected by 7 votes to 3, with 8 abstentions. The Commission finally voted upon the United Kingdom amendment (E/CN.4/1.139/Rev.1) in parts: the first part, reading 'which threatens the life of the nation', was adopted by 14 votes to 4; the word 'solely' was adopted by 9 votes to 7, with 2 abstentions; and the remainder of the amendment, as amended,was adopted by 15 votes to none, with 3 abstentions.

281.    Limitation on derogations. There was much discussion on the rights from which no derogation under the covenant should be permitted. Some representatives expressed their satisfaction with the present specification of the articles in the covenant from which no derogations would be allowed in a state of public emergency under paragraph 1 of the article. Others thought it would be necessary, before the drafting of the covenant was completed, to make a thorough study of the articles to be placed in the category of rights that allowed of no derogation even in times of public emergency. Article 6, paragraphs 1 and 2, and article 8, paragraph 2 (a) (present articles 8 and 10 of the draft covenant on civil and political rights), were mentioned as enunciating rights that should appropriately be included in that category. Some representatives expressed the view that the inclusion of article 13 (present article 15)in that category might cause difficulties, as cases might arise where exercise of one of the rights enunciated in that article would also constitute exercise of a right under articles 14 or 15 (present articles 16 and 17). The expression of opinion might also be the manifestation of a belief. If in such cases derogation from articles 14 and 15 were allowed, while derogation from article 13 was prohibited, an impossible situation might arise. Representatives who took that view considered that a point of substance was involved, because, although they favoured in principle an absolute prohibition of derogation from the right to freedom of thought, conscience and religion, they considered that the manifestation of religion or belief might have to be subject to derogation to the limited extent to which similar derogation would be justifiable under articles 14 or 15.

282.    At its 331st meeting, the Commission unanimously adopted the first sentence of the second paragraph.

283.    Notification of derogation. There was general agreement that a State wishing to derogate from the rights recognised in the covenant should inform the other States parties to the covenant of its action in accordance with the provisions of paragraph 3. Some representatives thought that a mere notification was not enough; the derogating State should also give the reason by which it was actuated in deciding to make the derogation, although it was not suggested that the reasons for each particular measure constituting such derogation should be notified. Some representatives also emphasised the need for retaining the link between the contracting States and the United Nations, since the covenant was an undertaking between the United Nations and those States.

284.    At its 331st meeting, the Commission adopted, by 8 votes to 3, with 7 abstentions, an amendment by Yugoslavia (E/1992, annex III, A, article 2, paragraph 3), to add after the words 'the provisions from which it had derogated' the words 'the reasons by which it was actuated'. Paragraph 3, as amended, was adopted by 14 votes to none, with 4 abstentions.

285.    The article as a whole, as amended, was adopted by 15 votes to none, with 3 abstentions (See article 3, annex IB)."

All in all the following documents are relevant in order to follow the full procedure more closely:

Article 2 of the draft covenant prepared at the sixth session E/1992, annex I; E/CN.4/528, paragraphs 79-86; E/CN.4/528/ Add. 1, paragraphs 50-56;  E/1992, annex III, A; E/CN.4/L.121, 136, 139, 139/Rev. 1, 211, 212, 213; E/CN.4/SR.330-331; E/CN.4/668/Add. 17; and see paragraphs 277-285. The articles referred to in paragraph 2 have been changed to conform with the order of the articles in this section.

3.       As a result of these proceedings it can be said that the said clause in the Covenant is to be considered as a derogation clause, that the notification procedure belongs to the implementation aspects of the Covenant and that the notification is an essential condition for the abrogation of human rights and freedoms. Since the aim of the Convention is similar to that of the Covenant the above conclusion could also be applied to the derogation clause of Art. 15 of the Convention.

The aims of the European Convention, like the aims of other international instruments on the protection of human rights, are focused in its Preamble and in the substantive articles. There cannot be any doubt that the European Convention is designed to establish a collective guaranty of these basic human rights and fundamental freedoms incorporated in the Convention and the additional Protocols. But this guaranty is not an absolute one. The State Parties to the Convention have reserved certain areas where their sovereign will should not be touched, neither by international human rights obligations nor by international intervention. All clauses of the Convention which contain certain exemptions for the State authorities relate to the domestic jurisdiction of the States.

Art. 15 of the Convention exempts a certain area of domestic jurisdiction from the general obligations of respect of human rights ensured in the Convention. The application of this exemption, however, is under the control of the organs established under the Convention. This has already been clarified by the jurisprudence of the Commission and the Court.

4.       Art. 15 of the Convention is a kind of protection clause for member States in regard to those situations mentioned in para. 1 of the Article. It permits the legal suspension of human rights. It is up to the State to avail itself of the right of derogation from its obligations under the Convention. But a State Party availing itself of the right of derogation shall inform the Secretary General accordingly. In every case where the Commission or the Court examined Art. 15 the Governments concerned informed the Secretary General of the derogation of their obligations under the Convention. In the present case, however, for the first time the respondent Government did not indicate that they derogated from their obligations under the Convention except for the declaration concerning the Turkish region of Adana.

5.       The main question before the Commission is two-fold. It has to be considered:

(a)         whether the respondent Government were exempted from invoking Art. 15, and/or

(b)         whether the Commission is authorised to look into the question of Art. 15 ex officio.

Since Art. 15 is a kind of clausula rebus six stantibus by itself it would be illogical to argue that a State member by reference to this clause is free to apply Art. 15 in a given situation. If this would be accepted, the framework of the Convention would be completely destroyed and the State in question would have freed itself from any obligation under the Convention.

The main condition for applying Art. 15 of the Convention, however, is the application of the Convention. By Art. 1 of the Convention the High Contracting Parties are obliged to secure to everyone within their jurisdiction the rights and freedoms contained in the Convention. Only if the jurisdiction of a member State is involved may Art. 15 of the Convention be applied. The Commission already in its decision on admissibility has decided that the action taken by Turkey after 20 July 1974 established a de facto jurisdiction over this part of the territory of Cyprus, which since then has been occupied or controlled by the Turkish army. It may be a consequence of the application of Art. 3 of the Treaty of Guaranty annexed to the London Agreement 1959. The moment when jurisdiction is exercised, Art. 1 of the Convention must be applied. No place whatsoever falling within the jurisdiction of a member State of the Convention may be exempt from the obligations of the Convention. The member State who exercises jurisdiction over a territory -either factually or legally - is obliged to fulfill the obligations under the Convention.

6.       The first question in this context is if the respondent Government were justified in not invoking Art. 15. Could the Turkish Government say that the action taken after 20 July was not "a war" in the meaning of Art. 15 ? (It might be recalled that Art. 4 of the above-mentioned Covenant does not use the expression war but public emergency.) The term "war" is to be understood in the meaning of modern international legislation. The modern international legislation, in particular the attempts to modify the provisions of the Geneva Conventions, avoid the expression "war" and use the expression "armed conflict". There can be no doubt that the events in Cyprus after 20 July 1974 amounted to an armed conflict between Cyprus and Turkey or at least between the Greek-Cypriot population of Cyprus and Turkey. Even if military interventions of the above kind may be justified under the said Treaty of Guaranty, the acts leading to violations of human rights or their abrogation may only be justified in the framework of Art. 15 of the Convention.

7.       Can Art. 15 be invoked ex officio even if the respondent Government has not done so? In its Report in the Lawless Case the Commission said:

"In stating this opinion, however, the Commission is not to be understood as having expressed the view that in no circumstances whatever may a failure to comply with the provisions of para. (3) of Art. 15 attract the sanction of nullity of the derogation or some other sanction." [740]

If the Commission is one of the safeguards of the Convention, it must find ways and means to bring a case occurring within the jurisdiction of a member State within the scope of the Convention as any member State could simply take measures of derogation invoking para. (1) of Art. 15 without observing the provisions of para. (3) of the same Article in order to be exempt from the obligations under the Convention. There are two ways to do so: either the Commission applies Art. 15 ex officio, or it declares the respondent Government cannot rely on para. (1) because it has failed to observe para. (3) of Art. 15.

In view of the Lawless Case it seems that the Commission has the competence to apply Art. 15 ex officio. But it is open to question if it should do so. If the Commission applies Art. 15 ex officio it assumes the role of a State Party and substitutes the sovereign will of a State. However, it is primarily the competence of a given State Party to invoke Art. 15 and, under para. (1), to present all the reasons for a given abregation of human rights. If a Government does not use the means of Art. 15 it is the Government's risk.

If Art. 15 is not invoked and if the Commission does not apply Art. 15 ex officio it follows that Art. 15 cannot be considered as an exemption clause for the respective Government. The consequence is that the provisions of the Convention must be applied without reference to those elements of Art. 15 (1) which justify derogation from obligations to respect human rights.

IV.         As to Art. 1 of the Convention

I cannot agree with the opinion of the Commission that Art, 1 of the Convention cannot be the subject of a separate breach. I follow myseparate opinion expressed on a similar issue in Application No. 5310/71 (Ireland v. the United Kingdom [741]. As stated in that opinion, I consider that Art. 1 can only be violated when there is a consistent pattern of the violations of certain human rights (in particular the right to life or the freedom from inhuman and degrading treatment) which, in regard to other international instruments, are considered as "grave breaches" or as "flagrant and massive violations" of human rights, against which no effective remedy is available and possible. In the present case the respondent Government have not shown that they took adequate measures to prevent the alleged violations and it is to be assumed that the violations found by the Commission belong to the given system in the specific situation.


1.       I am in agreement with the findings of the Commission as regards violations of the Convention.

2.       It should, however, be emphasised that this Report does not present the full extent of each violation because in view of the urgency of the case it was not feasible to hear all the hundreds of available witnesses in relation to a really vast number of complaints, resulting from a violation of the public order of Europe on an unprecedented scale.

3.       Also, the refusal to allow the Delegation of the Commission to visit the northern area of Cyprus under Turkish occupation has rendered it impossible to investigate a considerable number of other complaints. What the Delegation would have found out among other things on such a visit is indicated by an article published in the English daily newspaper "The Guardian" on 6 May 1976, by an English television team, who managed to visit 26 former Greek villages in the occupied area and found in only four of them the village churches in what could be described as a decent condition, and did not find a single graveyard which had not been desecrated.

Moreover, a visit of the Delegation to the occupied area would have enabled the Commission to evaluate the close relationship between the continuing attempt to change the demographic structure of such area by means of settlement of civilians from Turkey and the continuing displacement from there of its Greek Cypriot inhabitants; furthermore, such a visit could have helped considerably in ascertaining the fate of many missing Greek Cypriots.

4.       In addition to the violations of the Convention found by the Commission I am of the opinion that at least two more violations have been established, as follows :

(a)         The restrictions imposed on the liberty of enclaved Greek Cypriots in the occupied area are not only contrary to the Fourth Protocol to the Convention (which has not been ratified by either Cyprus or Turkey) but, in view of their extensive and cumulative nature, they also result, in most instances, in deprivation of liberty contrary to Art. 5 of the Convention.

(b)         The manner in which the detention of many Greek Cypriots has been effected by Turkish military forces, involving the wholesale separation of men from their families, has not only contravened Art. 5 of the Convention (as found by the Commission), but amounts also to a violation of Art. 8 of the Convention.

5.       I should conclude by drawing attention to the fact that this Report establishes extremely serious violations of the public order of Europe; and at least two of them, which are of the utmost gravity, namely the displacement of persons and the deprivation of possessions, are still continuing. I feel that it is my duty to stress the urgency of the need to restore the public order of Europe in Cyprus.


I am not myself satisfied that the facts have been properly established in the present case; and indeed the majority of the Commission acknowledge this in paragraph 82 of the Report when they say that "a full investigation of all the facts has not been possible".

I do not, of course, purport to suggest that any fault for this failure to conduct "a full investigation of all the facts" can be laid at the door of the Commission or of its Cyprus Delegation. The problems confronting the Commission in this case have been essentially political problems, stemming in the main from the posture of nonrecognition assumed by the Turkish Government vis-a-vis the applicant Government in the broad field of general international relations, in consequence of which the respondent Government has not seen fit to participate in the proceedings of the Commission under Article 28.

That being the case, it is not, in my view, open to the Commission to report to the Committee of Ministers under Art. 31, for two reasons. First, the wording of Art. 31 makes the initiation of friendly settlement negotiations mandatory, and it is only if such negotiations have proved abortive that the Commission can proceed to make a Report under Art. 31. In the present case, however, given the refusal of the Turkish Government to "enter into talks" with the applicant Government, no friendly settlement negotiations in fact ensued, so that a "solution" was discounted at the very outset. Secondly, to report to the Committee of Ministers under Art. 31 when the provisions of Art. 28 have been rendered nugatory by the non-participation of a High Contracting Party is tantamount to entering a judgment by default.

In my opinion, the Commission is not empowered to enter a judgment by default.         Unlike the International Court of Justice and the European Court of Human Rights, it is not a judicial tribunal. The Commission is a sui generis  amorphous body which performs divers functions - quasi-judicial, investigatory, political, and auxiliary - throughout the different stages of a case of which it is seized. Where a High Contracting Party defaults on its international obligations under Art. 28, it is not the task of the Commission to enter a judgment by default, but simply to refer the default to the Committee of Ministers in an Interim Report.

Such a Report would indicate to the Committee of Ministers the inability of the Commission to fulfil its functions under Art. 28 and to proceed to a Report under either Art. 30 or Art. 31 of the Convention.

The precedent of the First Greek Case adverted to by the majority of the Commission in paragraph 56 is not precisely in point, since in that case the Greek Government had very largely co-operated both in the Commission's investigatory proceedings under Art. 28 (a) and in the friendly settlement negotiations under Art. 28 (b).

In the light of the foregoing considerations, therefore, and had I not been unavoidably absent when the votes were taken by the Commission in the May session, I would have found myself in the impossibility of expressing an opinion on the merits of the present Applications and would have felt constrained to abstain.


With all respect due to the Commission, of which I am a member, for the reasons stated below, I disagree with its Report as a whole and with the conclusions arrived at therein.

First of all, I am not in agreement with the Commission's decision on admissibility. I abstained in the vote on that decision because I was not permitted to join my separate opinion thereto, on the ground of the Commission's practice (see decision of the Commission as to the admissibility of Applications Nos. 6780/74 and 6950/75 by Cyprus against Turkey, p. 1, footnote (2)). However, there is nothing in our Convention that forbids a member from stating his separate opinion at the admissibility stage. There is also nothing in our Rules of Procedure which bars a member from submitting a separate opinion.

Furthermore, to my recollection, some members were allowed to join their separate opinions to the admissibility decision in the Iversen case (see Application No. 1468/62, Yearbook 6, pp. 278-332 (at pp. 326-332). See also dissenting opinion of Professor Sperduti on the admissibility of the Application No. 788/60, Austria v. Italy, Appendix II to the Commission Report in that case).

As to the procedure followed by the Commission, I would like to raise the issue that in some important respects the Commission did not comply with its Rules of Procedure. Rule 46, for instance, expressly requires a provisional opinion on the merits of a case after deliberation. However in this case no such provisional opinion has ever been reached. This was also contrary to the Commission's constant practice, particularly in inter-State cases (see Ireland v. the United Kingdom, Application No. 5310/71).

The second point that I would like to emphasise is that in its admissibility decision the Commission did not tackle the problem of the competence of the Party which brought this case before the Commission, to do so. This problem, which was raised at the admissibility stage, was not adequately dealt with by the Commission. However in my opinion this was the crucial problem before the Commission and it merited detailed examination because the State of Cyprus was a State sui generis, created by international agreements (mainly the Zurich, London Agreements and, later, Nicosia Treaties of 1960). A reading of the Constitution of Cyprus shows that not only executive power but also legislative and judicial powers were distributed between the two communities. In other words, the powers of State were divided between the two communities. A close examination of the Constitution [742] clearly shows that this distribution of powers depends upon a delicate balance; indeed the power of veto of the Vice-President, who according to the Constitution should be a Turkish Cypriot (see Cyprus Constitution, Article 1, Annex to this Report), covers not only domestic affairs but also international relations including the right to bring a matter before international instances.

The "High Contracting Party" mentioned in Art. 24 of our Convention does not, according to the Cyprus Constitution, consist only of the Greek Cypriot side of the Government, which alone has addressed the application to the Secretary General of the Council of Europe and alleged the violation of the Convention. Under the Constitution this competence is a joint one to be exercised with the Vice-President of the State (see Articles 46, 49, 50, 54 and 57 of the Cyprus Constitution). However the Greek Cypriot side of the Government has referred the case to the Council of Europe without consulting the Vice-President (see also Article 47 of the said Constitution). This is contrary to the Constitution of Cyprus and consequently contrary to our Convention and constitutes an ultra vires act by a Party holding the powers of state unilaterally, and unlawfully and in violation of the International Agreements mentioned above.

Furthermore, it is important to bear in mind that this Constitution has been violated many times by Greek Cypriots (for instance Turkish Ministers were ousted from the Cabinet). In my opinion the Commission was wrong in side-stepping this crucial matter of violation of the Constitution, an essential point in the case, and arguing that all international bodies and organs recognise the applicant Party as legitimate. The organs mentioned by the Commission, such as the United Nations Assembly or Security Council and Council of Europe, are primarily political organisations acting mainly from political motivations. Our Commission, which is a quasi-judicial organ, had at the admissibility stage the task of examining all juridical problems connected with the admissibility of the application, including the question of the competence of the "High Contracting Party" which referred the case to the Commission. It should also be noted that the Consultative Assembly of the Council of Europe did not accept that the Greek Cypriot side of the Cyprus Parliamentary Delegation could alone represent Cyprus.

In dealing with the background to the events, the Commission's Report does not concern itself with the reasons which led the respondent Government to intervene in Cyprus. The respondent Government has invoked that this intervention. was based on the Treaty of Guarantee concluded between the United Kingdom, Turkey and Greece. It is common knowledge that during the summer of 1974 a coup d'etat, instigated by the military junta in Athens and carried out by Greek army contingents stationed on the :island violated the independence of Cyprus, toppled the actual Government and installed a puppet Government headed by Mr. Sampson. This unlawful and illegal interference from outside put an end to the last remnants of constitutional order in Cyprus. The respondent Government has invoked that in such circumstances the Guarantor Powers had a right to intervene, after consultation in order to re-establish constitutional order in the island. If the Guarantor Powers did not agree on joint action, such was the case here, Art. 4/2 of the Treaty of Guarantee gave each power the right to act alone as it saw fit. It should not be forgotten that if there had been no such intervention for the purpose of re-establishing the constitutional order on the island and defending the rights of the long-oppressed Turkish community, the applicant Party would never have had the opportunity of bringing an application before the Commission. This intervention also inevitably helped the collapse of the military junta in Athens and facilitated the establishment of a democratic Government in Greece.

The third point I should like to make is that in the "Background of Events in Cyprus" some important facts have been omitted, which could have shed light on the very complex and intricate Cyprus problem. In my opinion our Report, in order to give a true and exact picture of the situation, should have mentioned all important events, especially those which started in 1963 with the massacre of Turkish families in Nicosia as well as in enclaves and which continued from 1964 onwards and in the summer of 1974 before and during the intervention. Throughout these years the Turkish community of Cyprus has been the victim of systematic ill-treatment by the Greek community. The Turkish community was subjected to many crimes and atrocities during this period. Treated as second-class citizens, the Turks were not able to enjoy even their basic human rights. An appendix showing these events in chronological order could have helped towards a better understanding of this tragic situation behind which lie many human, political, social, cultural and economic factors.

These tragic events, covered and reported by many international news agencies at the time and witnessed also by neutral observers on the spot, such as accredited foreign representatives and members of the United Nations peace-keeping force and the International Red Cross, have unfortunately caused bitter and continuous inter-communal violence between the two different ethnic groups on the island.

The other important points that I should like to raise here are as follows : Firstly at the stage of examination of the merits the Commission did not comply with Art. 28, which provides that:

"in the event of the Commission accepting a petition referred to it: (a) it shall, with a view to ascertaining the facts undertake together with the representatives of the parties an examination of the petition and, if need be, an investigation for the effective conduct of which the States concerned shall furnish all necessary facilities after an exchange of views with the Commission."

However the petition of the applicant party was not examined together with the representatives of the respondent Government. Accordingly the mandatory requirements of Art. 28 were not fulfilled. It can be argued that any High Contracting Party can escape from its obligations under the Convention, merely by giving some reason for not participating in the proceedings before the Commission, and that it can thus prevent the Commission from fulfilling its functions. In my opinion if the Commission found that the Convention procedures were blocked in such a way, the proper course for it would have been to refer the case, with an interim Report, to the Committee of Ministers of the Council of Europe, since such a situation is not envisaged by the Convention and raises a new and complex problem. The Committee of Ministers should then take the appropriate measures to induce the respondent Government to co-operate by sending representatives and thus helping the Commission in its functioning.

In my opinion the Commission was wrong to go ahead in this situation and proceed in the absence of the respondent Government. The Commission has argued in its Report that in such a situation it could, like other judicial organs such as the European Court of Human Rights and the International Court of Justice, proceed in  absentia (see Report, p. 21). However, this approach is not correct because the Commission is not a court. The express provisions of the relevant texts permit the courts mentioned above to give, judgment by default. However in our Convention nothing is said even implicitly in this respect in relation to the Commission. The Commission acts mainly as an investigating body with quasi-judicial powers.

Another important point that I should raise is that the Commission's Report is incomplete since the investigating Delegates sent to Cyprus visited only the Greek Cypriot part of the island. The Delegates heard evidence only from Greek Cypriots and thus only one side of the picture has been given in the Report. It is obvious that such a limited and one-sided inquiry, which lasted barely a few days, could lead only to an incomplete and even unbalanced version of the facts. It can again be argued that this was not the fault of the Commission since the authorities in the northern part of Cyprus did not allow the delegation to visit this part of the island and carry out the necessary investigations. However the Commission was in this respect confronted with the same deadlock as I have mentioned above. In my opinion in order to resolve this the Commission should have addressed itself to the Committee of Ministers and requested its assistance in solving this political problem. After settlement of the preliminary political problem, the Commission should then have gone ahead and visited places throughout the island and taken evidence from a variety of different persons including Turkish Cypriots and have completed its investigation as provided for in Art. 28 (a) of the Convention.

I should also like to mention that some very important documentary evidence highly relevant to the case, for instance, UN reports concerning inter-communal violence on the island, is missing from our Report. Documents of that kind, originating from a neutral and impartial organisation such as the UN should have been taken into consideration by the Commission.

Certain other important evidence is also missing from the Report. For instance the United Nations authorities on the island abstained from giving evidence to the Delegates. They have said that their impartial and neutral position prevented them from co-operating with the Commission (see Report, p. 19). This attitude was incomprehensible since the Commission is an international institution. In the absence of co-operation from these international institutions the Commission was prevented from fulfilling its duty under Art. 28 (a). Again in this situation the Commission should have addressed itself to the Committee of Ministers requesting it to intervene in the matter with the higher authorities of the United Nations.

In addition I should like to state that the Commission and its investigating Delegates did not deal with the atrocities committed against members of the Turkish community, especially those isolated in enclaves in the summer of 1974. Such an inquiry could have helped the Commission to arrive at a better and truer version of events which subsequently occurred. Although in principle the Commission cannot act by itself without being seized of an application by a High Contracting Party [743] - in this case presumably Turkey - it could rightly and properly have examined the alleged atrocities against the Turkish Cypriots insofar as they are relevant to the issues raised in this case. This has not been done by the Commission.

As to the establishment of the facts and the evidence taken by the Commission we know that the sole object and aim of evidence is to assist in the ascertainment of the truth of disputed facts or the determination of points in issue. However some of the evidence taken by the Commission cannot, in my opinion, be considered as conclusive. It is, rather, circumstantial or presumptive. Certain evidence was partly derivative, being hearsay or rumour and thus not the best evidence to prove the facts in dispute in this case. In many instances the evidence consists of testimony given solely by Greek Cypriots.

In addition, in proceedings in an inter-State case it is essential that counter evidence should be produced in order to arrive at the truth of the facts in issue. In this case the respondent Government has not, for the reasons stated in their submissions, taken part in the proceedings on the merits and it was not therefore possible to obtain counter-evidence during the investigation and examination of the petitions by the Commission.

To sum up briefly, the unilateral evidence taken by the Commission during its very short visit to the island must raise serious doubts as to the soundness of the Commission's findings and may endanger the very basis of the Report as well as the conclusions as to violations of the Convention.

The Commission also did not deal properly and adequately in its Report with the question of the applicability of the Convention in a situation of armed conflict and failed to apply it for that purpose. Art. 15 provides that in situations of emergency threatening the life of the nation, a High Contracting Party may take measures derogating from its obligations under the Convention to the extent required by the exigencies of the situation. Although the respondent Government did not formally communicate a notice of derogation to the Secretary General of the Council of Europe concerning Cyprus, the state of martial law proclaimed in Turkey and notified to the Secretary General of the Council of Europe in fact covered all provinces near Cyprus. In my opinion although this point was not invoked by the respondent Government during the proceedings, the Commission should have applied this Article to such situation. Since the respondent Government rejected the argument that Cyprus was under her jurisdiction she could not have invoked this point without contradicting herself. On the other hand the Commission, in accepting that the northern part of the island was under the de facto jurisdiction of the respondent Government, could logically  and consequently have accepted that the state of martial law existing in Turkey also extended, as a matter of actual fact, to the parts of the island under the respondent Government's control.

As to the problem of imputability and responsibility, in my opinion some isolated acts by individuals during an armed conflict cannot properly engage the responsibility of a State unless it has been shown beyond doubt that such acts were in fact ordered, organised and systematically conducted by the responsible authorities. In order to attribute such acts to the respondent Government in the present case, the Commission should also have shown clearly that official tolerance for such acts was displayed by the competent agents of the respondent Government. There is no conclusive evidence that such tolerance was displayed.

Final conclusion

For the reasons stated above, and having observed that the actual applicant Party is not the legitimate and legal High Contracting Party envisaged in the original constitutional order erected by the Cyprus Constitution and sanctioned by international Agreements, and having contemplated that the Commission's Report is inevitably one-sided, unfortunately incomplete, lacking in many crucial facts relevant to the case, that it arrives at conclusions without the counter evidence which is the very essence of all modern legal systems and omits some important legal issues and is thus an unbalanced Report which cannot help in any way to solve this highly complex problem, and having noted furthermore that in such situations, where there is a non co-operating Party, the Commission's best and most adequate form of action would be first to address itself to the Committee of Ministers in order to facilitate its functioning and to further the aim of the Convention and thus to complete its task as provided in the Convention, I am against the Report as a whole and am opposed to the conclusions of the Commission as to the alleged violations of the Convention complained of by the applicant Party.



Part I - General Provisions

Art. 1. The State of Cyprus is an independent and sovereign Republic with a presidential regime, the President being Greek and the Vice-President being Turk elected by the Greek and the Turkish Communities of Cyprus respectively as hereinafter in this Constitution provided.


Art. 46. The executive power is ensured by the President and the Vice-President of the Republic.

The President and the Vice-President of the Republic in order to ensure the executive power shall have a Council of Ministers composed of seven Greek Ministers and three Turkish Ministers. The Ministers shall be designated respectively by the President and the Vice-President of the Republic who shall appoint them by an instrument signed by them both. The Ministers may be chosen from outside the House of Representatives.

One of the following Ministries that is to say the Ministry of Foreign Affairs, the Ministry of Defence or the Ministry of Finance, shall be entrusted to a Turkish Minister. If the President and the Vice-President of the Republic agree they may replace this system by a system of rotation.

The Council of Ministers shall exercise executive power as in Article 54 provided.

The decisions of the Council of Ministers shall be taken by an absolute majority and shall, unless the right of final veto or return is exercised by the President or the Vice-President of the Republic or both in accordance with Article 57, be promulgated immediately by them by publication in the official Gazette of the Republic in accordance with the provisions of Article 57.

Art. 47. The executive power exercised by the President and the Vice-President of the Republic conjointly consists of the following matters that is to say :


(c)         appointment by an instrument signed by them both of the members of the Council of Ministers as in Article 46 provided.


Art. 49. The executive power exercised by the Vice-President of the Republic consists of the following matters, that is to say:


(d)         right of final veto on decisions of the Council of Ministers concerning foreign affairs, defence or security as in Article 57 provided.


Art. 50. 1. The President and the Vice-President of the Republic, separately or conjointly, shall have the right of final veto on any law or decision of the House of Representatives or any part thereof concerning:

(a)         foreign affairs, except the participation of the Republic in international organisations and pacts of alliance in which the Kingdom of Greece and the Republic of Turkey both participate.

For the purposes of this sub-paragraph "foreign affairs" includes:

(i)         the recognition of States, the establishment of diplomatic and consular relations with other countries and the interruption of such relations. The grant of acceptance to diplomatic representatives and of exequatur to consular representatives. The assignment of diplomatic representatives and of consular representatives, already in the diplomatic service, to posts abroad and the entrusting of functions abroad to special envoys already in the diplomatic service. The appointment and the assignment of persons, who are not already in the diplomatic service, to any posts abroad as diplomatic or consular representatives and the entrusting of functions abroad to persons, who are not already in the diplomatic service, as special envoys;

(ii)         the conclusion of international treaties, conventions and agreements;

Art. 54. Subject to the executive power expressly reserved, under Articles 47, 48 and 49, to the President and the Vice-President of the Republic, acting either separately or conjointly, the Council of Ministers shall exercise executive power in all other matters other than those which, under the express provisions of this Constitution, are within the competence of a Communal Chamber, including the following:

(a) the general direction and control of the government of the Republic and the direction of general policy;

(b) foreign affairs as in Article 50 set out;


Art. 57. 1. On a decision being taken by the Council of Ministers such decision shall be transmitted forthwith to the office of the President and of the Vice-President of the Republic respectively.


3. If a decision relates to foreign affairs, defence or security as in Article 50 set out, the President or the Vice-President of the Republic or both shall have a right of veto which they shall exercise within four days of the date when the decision has been transmitted to their respective offices.



I declare my agreement in principle with the present Report insofar as it concerns, in particular, the violations of the Convention in the case under consideration.

Availing myself, however, of the right given to me by Art. 31 (1), I reserve my opinion on the following points:

1.       The number of concrete cases which have come under the Commission's consideration is far from corresponding with the mass of events (massive violations) which form the background of the case.

-         This applies, for example, in the case of the two thousand people declared missing. The impossibility of furnishing, in the present case, tangible proof of violation of Art. 2 (1), did not absolve the Commission from the duty to draw conclusions from the lack of information, after two years, as to the fate of these people.

-         The situation of the Greek Cypriots living in certain enclaves in the occupied zone has not been examined with the attention that might have been wished. The signatory of these lines has the conviction that violations of Arts. 8 and 5 have been committed against these people.

-         Whilst violations of Art. 1 of the First Protocol concerning the peaceful enjoyment of possessions have been found with regard to private property, with the necessary legal implications, no mention is made of cultural patrimony (churches, ancient or mediaeval monuments, objects of art, libraries) which, taking account of the local traditions, occupies a particularly high place in the scale of values.

The difficulty faced by the Commission in making a judgment of a judicial nature on the two last mentioned matters arises from the obstacles encountered by the Delegates in trying to make enquiries in the northern part of Cyprus. It follows from this that the respondent Government's non-observation of Art. 28 in relation to "the obligation en the States concerned to furnish every facility after an exchange of views with the Commission", far from constituting a simple procedural incident, is of such a gravity that it could have featured in the conclusions of the present Report, amongst the major violations of the Convention.

2.       Every act of "public authority" carried out by the Turkish Cypriots in contravention of the provisions of the Convention is, as a result of the situation created in the zone of military occupation in Cyprus, imputable to the respondent party. There exists, indeed, on all the evidence, a direct causal relationship between the presence of the military force from the continent and the opportunity for persons of the same ethnic origin to carry out such acts. It follows that the case of the 146 Greek Cypriots detained in the Sarail prison or the Pavlides Garage, as well as analogous cases, are in my opinion imputable to the respondent Government.

3.       In relation to everything concerning continuing violations as related in the Report, which are circumstances gravely compromising European public order, the Commission had the possibility, acting under Art. 31 (3), of proposing measures necessary in the circumstances for the purposes of an urgent return to the situation demanded by the duty of applying the Convention.


Contrary to the opinion of the majority of the Commission I am of the opinion that Art. 14 does not apply at all in a case where a violation of the Convention has already been found.      In fact, the Commission is called upon to make a choice between two alternatives: either a particular guarantee of the Convention has been violated or not. If one of the guarantees set out in Arts. 2 - 13 of the Convention, 1 - 3 of Protocol No. 1 or 1 - 4 of Protocol No. 4 is found to have been violated, there is no room for an additional finding according to which the violation is aggravated by an element of discrimination.

I concede that discrimination in itself could constitute a wrong, amounting to the violation of a human right. It could then be said, for instance, that the pattern of behaviour of the Turkish military forces in Cyprus, by discrimination, violated human rights of the whole Greek-Cypriot community in the northern area of the country. Under the Convention, however, Art. 14 prohibits discrimination only in connection with "the enjoyment of the rights and freedoms set forth" therein. This wording is to be read in the sense that only where an unreasonable differentiation is made between individuals both enjoying, though to a varying degree, the rights and freedoms set forth in the Convention, can there be discrimination. Such might be the case, for instance, in a discriminate interference with one of the rights set forth in Arts. 8 - 11 in circumstances covered by paragraph 2 of these Articles. As soon as there has been a violation of the Convention, however, the very concept of discrimination/reasonable differentiation becomes meaningless.

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[732] It will be recalled that under an article common to this Convention and the other three Conventions of the same diplomatic conference, "The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance." (1st common article, paragraph 3.)

[733] See Cemal Köseoglu, Hasiyeli Askerď Ceza ve Muhakeme Usulü Kanunlari, Istanbul 1958, p. 146.

[734] See loc. cit., p. 120.

[735] UN Res. 2200 A (XXI).

[736] Docs. E/CN 4/56; E/CN 4/AC 3/1 to 9; see also the Commission's Report on the second session, Doc. E/600.

[737] Doc. E/CN 4/95.

[738] Doc. E/CN 4/ 640.

[739] Toc. E/CN 4/669.

[740] See E.C.H.R., Series B, 1960-1961, page 74.

[741] See pp. 499-500 of the Commission's Report in that case.

[742] See the relevant texts of Articles mentioned herein in Annex attached to my dissenting opinion.

[743] Assuming that the State concerned has not accepted the right of individual petition - Cyprus not having done so.

[744] See Peaslee, Constitutions of Nations, 3rd ed. 1968, Vol. III - Europe, pp. 138 - 216.