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Cyprus v. Turkey. App. No. 25781/94

Published online by Cambridge University Press:  27 February 2017

Frank Hoffmeister
Frank Hoffmeister*
Affiliation:
European Commission
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Type
International Decisions
Information
American Journal of International Law , Volume 96 , Issue 2 , April 2002 , pp. 445 - 452
Copyright
Copyright © American Society of International Law 2002

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References

1 With Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 155), May 11, 1994, having entered into force on November 1, 1998, the former European Commission on Human Rights ceased to exist. The European Court of Human Rights now sits as a permanent court. The Convention for the Protection of Human Rights and Fundamental Freedoms, infra note 4, and its various protocols are available online at <http://conventions.coe.int/treaty/EN/cadreprincipal.htm>.

2 In addition to the majority opinion, there are four partly dissenting opinions, by: Palm. J. (joined by Jungwiert, Levits, Pantîru, & Kovler, JJ., & by Marcus-Helmons, ad hoc J. in respect of Cyprus); Costa, J.; Fuad, ad hoc J. in respect of Turkey; and Marcus-Helmons, ad hoc J. in respect of Cyprus.

3 App. No. 25781/94 (Eur. Ct. H.R. May 10, 2001) [hereinafter Judgment]. The decisions of the European Court of Human Rights are available online at <http://www.echr.coe.int/Eng/Judgments.htm>.

4 Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5), Nov. 4, 1950, 213 UNTS 222.

5 Following the recommendation of the UN Security Council in Resolution 541, Nov. 18, 1983, no state except Turkey has recognized the TRNC, which declared its independence on November 15, 1983. In this case report, I shall, as a matter of convenience, refer to the TRNC and its institutions using the names given to them by the Turkish Cypriots themselves. No legal, political, or ideological consequences should be inferred therefrom.

6 Loizidou v. Turkey, Preliminary Objections, 310 Eur. Ct. H.R. (ser. A) (1995), discussed in Juliane Kokott & Beate Rudolf, Case Report: Loizidou v. Turkey, 90 AJIL 98 (1996); Loizidou v. Turkey, 1996-VI Eur. Ct. H.R. 2216, discussed in Beate Rudolf, Case Report: Loizidou v. Turkey (Merits) , 91 AJIL 532 (1997); Loizidou v. Turkey, Article 50, 1998-IV Eur. Ct. H.R. 1807.

7 Although Turkey neither submitted a memorandum to the Court nor appeared at the hearing, it had presented its views in the previous proceedings before the European Commission on Human Rights. Those views are discussed by the Court as Turkey’s submission on substance.

8 Judgment, supra note 3, para. 77.

9 Id., para. 83.

10 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 ICJ Rep. 16, para. 125 (June 21).

11 Judgment, supra note 3, para. 98.

12 Id., para. 132.

13 Id., para. 135.

14 Id., para. 173.

15 Id., para. 16.

16 Report of the Secretary-General to the Security Council, annex, UN Doc. S/24472 (1992) [hereinafter Set of Ideas].

17 Aug. 26 and Nov. 25, 1992, respectively.

18 Judgment, supra note 3, para. 174.

19 Protocol [No. 1] to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 9), Mar. 20, 1952, 213 UNTS 262.

20 Judgment, supra note 3, para. 309.

21 Id., para. 237.

22 Id., operative para. VIII.

23 See Kurt v. Turkey, 1998-III Eur. Ct. H.R. 1152, para. 108.

24 McCann v. United Kingdom, 324 Eur. Ct. H.R. (ser. A) at para. 161 (1995); Kayav. Turkey, 1998-1 Eur. Ct. H.R. 297, para. 86.

25 Kurt v. Turkey, para. 108.

26 Id., paras. 118-29.

27 Ergi v. Turkey, 1998-FV Eur. Ct. H.R. 1751, para. 82; Yasa v. Turkey, 1998-VI Eur. Ct. H.R. 2411, para. 100; Tanrikulu v. Turkey, 1999-IV Eur. Ct. H.R. 457, para. 103.

28 It is to be noted that the Court was all but unanimous on this point. Only ad hoc Judge Fuad of Turkey dissented, using the weak arguments that the Committee on Missing Persons were already sufficient for an effective investigation and that, if the rules or guidelines governing the committee’s operations were unsatisfactory, they could “be amended with goodwill and the help of the Secretary-General.” Judgment, supra note 3, Diss. Op. Fuad, ad hoc J., para. 22.

29 American Convention on Human Rights, Nov. 22, 1969, 1144 UNTS 123.

30 Velásquez Rodríguez v. Honduras, Inter-Am. Ct. H.R. (ser. C) No. 4, para. 177 (1988). For a detailed analysis of this judgment and the following jurisprudence, see Kokott, Juliane, The Duty to Protect and to Ensure Human Rights Under the Inter-American System of Human Rights, in The Duty to Protect and to Ensure Human Rights 235, 260–65 (Eckart Klein ed., 2000)Google Scholar.

31 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171.

32 Views of the Human Rights Committee Under Article 5, Paragraph 4, of the Optional Protocol to the Covenant Concerning Communication No. 449/1991, UN Doc.CCPR/C/51/D/449/1991 (1994).

33 The Inter-American Commission on Human Rights has already held that the Chilean National Commission for Truth and Reconciliation could not be regarded as an adequate substitute for the judicial process. The latter commission’s work was limited to establishing the victims’ identities; the commission was not empowered to publish the names of those who had committed the crimes; and it was not empowered to impose sanctions on the perpetrators. Garay Hermosilla v. Chile, Case 10.843, Report No. 36/96, Inter-Am. C.H.R. (1996), OEA/Ser.L/ V/II.95, doc. 7 rev., at 156 (1997).

34 See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14, para. 115 (June 27).

35 The UN proximity talks that had started in December 1999 were stalled after the fifth round (November 2000) because the Turkish Cypriot leader, Denktash, with the express backing of Turkey, insisted on a confederal solution and recognition of the TRNC. Even scholars who are sympathetic to such a demand can state nothing stronger than that the TRNC would have a “good claim to statehood,” see Neuwahl, Nanette, Cyprus—Which Way? In Pursuit of a Confederal Solution in Europe (Harvard Jean Monnet Working Paper 4/00 (2000)Google Scholar, at <http://www.jeanmonnetprogram.org/papers/index.html>).

36 In Set of Ideas, supra note 16, para. 82, the former UN Secretary-General proposed the following language: “______ thousand displaced persons who elect to return to their former permanent residence will be processed by the federated state concerned each year for ______ years.” For more on the UN approach, see supra notes 14—17 and accompanying text.

37 Judgment, supra note 3, para. 174.

38 Sunday Times v. United Kingdom, 30 Eur. Ct. H.R. (ser. A) at para. 49 (1979).

39 See SC Res. 774, paras. 2, 3 (Aug. 26, 1992).

40 High-Level Agreement, Feb. 12, 1977, Makarios-Denktash,para.3, in Kypros Chrysostomides, The Republic of Cyprus: a Study in International Law 559 (2000).

41 Article 8(2) states:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, 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.

42 Judgment, supra note 3, Partly Diss. Op. Palm, J., para. 6.

43 Lingens v. Austria, 103 Eur. Ct. H.R. (ser. A) (1986).

44 Incal v. Turkey, 1998-PV Eur. Ct. H.R. 1547.