Press release issued by the Registrar: CHAMBER JUDGMENT IN THE CASE OF DJAVIT AN v. TURKEY

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20.2.2003

Press release issued by the Registrar

CHAMBER JUDGMENT IN THE CASE OF DJAVIT AN v. TURKEY

The European Court of Human Rights has today notified in writing a judgment [1] in the case of Djavit An v. Turkey (application no. 20652/92). The Court held:

·         ·         by six votes to one, that there had been a violation of Article 11 (freedom of assembly) of the European Convention on Human Rights;

·         ·         by six votes to one, that there had been a violation of Article 13 (right to an effective remedy) of the Convention;

·         ·         unanimously, that it was not necessary to examine separately the applicant’s complaint under Article 10 (freedom of expression).

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 15,000 euros (EUR) for non-pecuniary damage and EUR 4,715 for costs and expenses.

(The judgment is available only in English.)

1.  Principal facts

Ahmet Djavit An, a Cypriot national of Turkish origin born in 1950, is a paediatrician living in Nicosia, north of the "green line".

A critic of the Turkish Cypriot authorities and of the Turkish military presence in the northern part of Cyprus, which he defines as an "occupation", the applicant is also 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 aims to develop close relations between the two communities and organises political, cultural, medical and social meetings.

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 of these bi-communal meetings. Between 8 March 1992 and 14 April 1998 only six out of 46 requests for such permits were granted. The requests that were turned down concerned among others, the following meetings: 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 a seminar on cardiology organised by the UNHCR in June 1994. Moreover, in May 1992 the Turkish Cypriot authorities refused to allow Greek Cypriots to attend a meeting organised by the applicant in the northern part of the island.

The applicant claimed that the Cabinet of the "Turkish Republic of Northern Cyprus" ("TRNC") adopted a decision prohibiting him from contacting Greek Cypriots. Reference to this decision was allegedly made in a letter dated 3 February 1992 from the "TRNC" Health Minister to the applicant. On 7 May 1992 the applicant wrote to the "TRNC" Prime Minister asking for information concerning the content of the Cabinet decision, but received no reply. He also sent a letter of protest to the Foreign Minister of Turkey, which had also remained unanswered. On 18 May 1994 the "TRNC" Directorate of Consular and Minority Affairs of the Ministry of Foreign Affairs and Defence informed the applicant that permission had been refused "for security reasons, in the public interest and because [the applicant] made propaganda against the state".

On 24 May 1994 the applicant wrote to the "TRNC" Deputy Prime Minister, 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.


2.  Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on 8 September 1992 and transmitted to the Court on 1 November 1998. It was declared partly admissible on 14 April 1998.

Judgment was given by a Chamber of seven judges, composed as follows:

Lucius Caflisch (Swiss), President,
Pranas Kūris (Lithuanian),
Boštjan Zupančič (Slovenian),
John Hedigan (Irish),
Margarita Tsatsa-Nikolovska (Macedonian),
Kristaq Traja (Albanian), judges,
Feyyaz Gölcüklü (Turkish), ad hoc judge,

and also Vincent Berger, Section Registrar.

3.  Summary of the judgment [2]

Complaints

The applicant complained that 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 breached Articles 10, 11 and 13 of the Convention.

Decision of the Court

Turkey’s responsibility concerning the alleged violations

Turkey disputed its liability under the Convention for the allegations set out in the application, which, it claimed, 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, Turkey submitted that the control and day-to-day administration of the designated crossing points and the issuing of permits were within the exclusive jurisdiction and/or responsibility of the "TRNC" authorities and not of Turkey.

The Court recalled that States which had ratified the European Convention on Human Rights could be held responsible for acts and omissions of their authorities which produced effects outside their own territory. Such responsibility could also arise when, as a consequence of military action, the State concerned exercised 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, derived from the fact of such control, whether it be exercised directly, through its armed forces, or through a subordinate local administration. It was not necessary to determine whether Turkey actually exercised detailed control over the policies and actions of the "TRNC" authorities; it was obvious from the large number of troops engaged in active duties in northern Cyprus that the Turkish army exercised effective control over that part of the island. Such control entailed her responsibility for the policies and actions of the "TRNC". Those affected by such policies or actions therefore came within the "jurisdiction" of Turkey.

The Court therefore concluded that the matters complained of in the case fell within the "jurisdiction" of Turkey and entailed Turkey’s responsibility under the Convention.

Exhaustion of domestic remedies

The Court dismissed the Turkish Government’s argument that domestic remedies had not been exhausted, finding that the government had not shown that any of the remedies it had suggested would have afforded redress in any way whatsoever to the applicant.

The Court emphasised that its ruling was not to be interpreted as a general statement that remedies were ineffective in the "TRNC" or that applicants were absolved from having normal recourse to remedies that were available and functioning.

Article 10

The Court noted that the question of freedom of expression in the case could not be separated from that of freedom of assembly. The protection of personal opinions was one of the objectives of freedom of peaceful assembly as enshrined in Article 11. It was therefore unnecessary to examine the issue under Article 10 separately. The Court decided, however, to consider Article 10 when examining and interpreting Article 11.

Article 11

The Court noted that it could take into account only the period from 8 March 1992 until 14 April 1998, a period of six years and one month. During that period the Turkish Government refused to grant a substantial number of permits to the applicant; in particular, only 6 out of 46 requests were granted. In some cases, permits were granted to other people who had submitted requests, but not to the applicant. Between 2 February 1996 and 14 April 1998 the applicant was refused all permits requested to attend bi-communal meetings in southern Cyprus (10 in total).

The Court considered that all the meetings the applicant wished to attend were designed to promote dialogue and an exchange of ideas and opinions between Turkish Cypriots living in the north and Greek Cypriots living in the south, with the hope of securing peace on the island. The refusals to grant these permits to the applicant in effect barred his participation in bi-communal meetings, preventing him from peacefully assembling with people from both communities.  Accordingly, the Court concluded that there had been an interference with the applicant’s rights to freedom of peaceful assembly.

As there seemed to be no law regulating the issuing of permits to Turkish Cypriots living in northern Cyprus to cross the "green line" into southern Cyprus to assemble peacefully with Greek Cypriots, the manner in which restrictions were imposed on the applicant’s exercise of his freedom of assembly was not "prescribed by law". There had, therefore, been a violation of Article 11.

Article 13

The Court observed that, as the Turkish Government had failed to show that any of the domestic remedies available would have been effective, there had been a violation of Article 13.

Judge Gölcüklü expressed a dissenting opinion, which is annexed to the judgment.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Registry of the European Court of Human Rights
F – 67075 Strasbourg Cedex
Contacts: Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)
Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)
Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54)
Fax: +00 33 (0)3 88 41 27 91

The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court.

[1]Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[2] This summary by the Registry does not bind the Court.