COUNCIL OF EUROPE
    COMMITTEE OF MINISTERS

    Interim Resolution ResDH(2005)44
    concerning the judgment of the European Court of Human Rights of 10 May 2001
    in the case of Cyprus against Turkey


    (Adopted by the Committee of Ministers on 7 June 2005,
    at the 928th meeting of the Ministers' Deputies)

    The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),

    Having regard to the judgment of the European Court of Human Rights (“the Court”) in the case of Cyprus against Turkey (application No. 25781/94) delivered on 10 May 2001 and transmitted the same day to the Committee of Ministers under Article 44 of the Convention;

    Recalling that the Court, in this judgment, found fourteen violations of the Convention in relation to the situation in the northern part of Cyprus since the military intervention by Turkey in July and August 1974;

    Recalling that the obligation incumbent on all states to comply with the judgments of the European Court of Human Rights under Article 46, paragraph 1, of the Convention entails an obligation to adopt measures to put an end to the violations found, to erase as far as possible their consequences and to prevent new violations similar to those found by the Court;

    Emphasising that the need to adopt such measures is all the more pressing given the violations at issue, as well as the time that has elapsed since they were found;

    Recalling that the execution of the judgment by Turkey has been regularly examined by the Committee since June 2001;

    Having focused its examination more particularly on the issue of missing persons, on specific aspects of the living conditions of Greek Cypriots in northern Cyprus, notably those related to education including freedom of expression and freedom of religion, and on the issue of the jurisdiction of military courts in relation to civilians;

    Having taken note of developments regarding these issues and the information furnished by Turkey on measures taken or envisaged following the judgment (see appendix);

    Issue of missing persons

    Stressing that the Court noted in particular the absence of effective investigation into the fate of missing Greek Cypriots, as well as the silence of the Turkish authorities in the face of the real concerns of the relatives of missing persons (continuing violation of Articles 2,3 and 5 of the Convention);

    Noting in this respect that, after a long period of inactivity, the Committee on Missing Persons in Cyprus (CMP), set up in 1981 under the aegis of the United Nations, was reactivated at the end of August of 2004 and that a special information unit has been set up for families within the Office of the Turkish Cypriot member of the CMP;

    Recalling, in this context, that the Court found that “although the CMP's procedures are undoubtedly useful for the humanitarian purpose for which they were established, they are not of themselves sufficient to meet the standard of an effective investigation required by Article 2 of the Convention, especially in view of the narrow scope of that body's investigations” (§135 of the judgment) and its territorial jurisdiction, which is limited to the island of Cyprus (§27 of the judgment);

    Noting that the CMP was created with the sole mandate to:

- draw up an exhaustive list of missing persons of both communities and
- determine whether they are alive or dead, and, in the latter case, determine the approximate date of their deaths;

Considering that concrete results obtained in the framework of this mandate can constitute a positive development in the execution of the present judgment, but that further measures are in any event required in order to comply fully with the requirements of the Convention concerning effective investigations, aimed at clarifying the whereabouts and fate of Greek-Cypriot missing persons who disappeared in life-threatening circumstances or of whom there is an arguable claim that they were in custody when they disappeared;

Emphasising the urgency of this issue;

Noting with concern that the first exhumations conducted in northern Cyprus have not as yet yielded concrete results,

INVITES Turkey to ensure that its contribution to the work of the CMP facilitates the achievement of concrete and convincing results;

CONSIDERS that, should such results not be achieved in the near future, it will be incumbent on Turkey to take other measures to enable the fate of missing persons to be determined;

CALLS UPON Turkey, in any event, to envisage the necessary further measures so that the effective investigations required by the Court's judgment can be conducted as soon as possible;

    Issues relating to education

Recalling that the Court condemned the excessive censorship of school textbooks for use in the primary school of Greek Cypriots living in northern Cyprus (violation of Article 10) and the absence of appropriate secondary education facilities in violation of the right to education of Greek Cypriots living in northern Cyprus (violation of Article 2 of Protocol No. 1);

Noting that the opening of the school in Rizokarpaso, to date providing for three of the six years of secondary education, constitutes an important development in order to remedy the violation found by the Court in this regard;

Noting the undertaking of the Turkish authorities that any screening procedure for schoolbooks will comply with the Convention standards, while considering that further clarifications are necessary;

INVITES Turkey to submit all relevant information regarding any screening procedure for schoolbooks, to ensure full secondary education for enclaved Greek Cypriot and Maronite children and to provide a stable and lasting basis for the functioning of the Rizokarpaso school, by legislative or other appropriate means;

    Issues relating to the freedom of religion

Recalling that the Court considered that a certain number of measures limiting the religious life of enclaved Greek Cypriots, in particular restrictions on their freedom of movement, as well as the refusal to appoint a second priest in the region of Karpas, had infringed their freedom of religion (violation of Article 9);

Noting that, according to information provided by Turkey, such restrictions have been lifted in a satisfactory manner, that numerous examples demonstrate a normal and regular religious life and that prior authorisations are only required for reasons of security and public order, in exceptional situations;

Noting also the information provided by Turkey on the question of the appointment of a second priest called on to officiate in the Karpas region;

INVITES Turkey to provide details regarding the reasons for the rejection of the latest request by the Cypriot authorities for the appointment of a second priest and regarding the further developments of this issue;

    Issues relating to military courts

Recalling that the Court condemned the legislative practice of authorising the trial of civilians by military courts, taking into account in particular the close structural links between the executive power and the military officers serving on these courts and doubts as to their independence and impartiality that civilians accused of acts characterised as military offences before such courts could legitimately have (violation of Article 6);

Observing that the information provided by the Turkish authorities demonstrates that military officers are no longer entitled to serve on the military courts;

Noting moreover that the jurisdiction of these courts has been limited and that all the cases that were removed from the military courts as a result have been transferred to civilian courts;

DECIDES to close the examination of the issues relating to military courts;

* * * * *

Requests Turkey to intensify its efforts with a view to the full and complete execution of the present judgment,

Underlines in particular the urgency of achieving concrete results in respect of effective investigations into the fate of the missing persons,

Decides to continue the supervision of progress accomplished until all necessary measures have been taken.

    Appendix to Resolution ResDH(2005)44

    Information provided by the Government of Turkey
    during the examination of the case Cyprus against Turkey
    by the Committee of Ministers

    With regard to the issue of missing persons, the Turkish authorities invite the Deputies to follow ongoing developments in this context since the reactivation of the CMP in 2004.

    Concerning the censorship of schoolbooks for use in the Greek Cypriot primary schools in the north of the island, found excessive by the Court with regard to Article 10 of the Convention, the Turkish authorities have declared that the screening of all schoolbooks used in the north of Cyprus is presently conducted in conformity with the Council of Europe standards and that it has been relaxed and accelerated. They have also indicated that one single criterion is used nowadays for the censorship of all or parts of schoolbooks, namely if they contain elements conveying sentiments of hatred or hostility, and that the procedure of examination does not last more than about two weeks. At the end of this procedure, the books are returned to the Greek Cypriot authorities, accompanied by a report containing recommendations the implementation of which is left to latter's discretion.

    With regard to secondary education, the Turkish authorities announced the opening, on 13 September 2004, of a secondary school in Rizokarpaso. They have also indicated that work was being conducted with a view to the adoption of a law for the regulation of Greek Cypriot and Maronite schools in northern Cyprus.

    Furthermore, the Resolution adopted by the “Turkish Cypriot Council of Ministers” on 23 May 2005 provides a stable and lasting basis for the functioning of the Greek Cypriot and Maronite school, also ensuring full primary and secondary education.

    With regard to the questions relating to the freedom of religion, the Turkish authorities affirm that there is no interference in the religious activities of the Greek Cypriots living in northern Cyprus. Prior authorisations are only required for reasons of security and public order, in exceptional cases, such as:
    - the conduct of religious services in churches transformed into museums
    - the organisation of religious events bringing together a large number of persons.
    These criteria apply to all religions.

    In addition, the Turkish authorities indicate that a request formulated several months ago by the Cypriot authorities with a view to the appointment of a second priest had finally been approved by the “TRNC authorities”, but that the person proposed could not take up his functions for personal reasons; that a new request by the Cypriot authorities has subsequently been rejected for reasons of security, following a procedure which took a few days.

    Concerning the competence of military courts to try civilians, the Turkish authorities have announced that, following the judgment of the “Supreme Constitutional Court of the TRNC” of 12 April 2001 concluding that the composition of the “Security Forces Court” infringed the “Constitution” due to the presence of military judges in cases concerning civilians, as well as amendments made to “Law 34/1983 on the Establishment and Judicial Procedure of the Security Forces Court and Security Forces Court of Appeal” (the most recent in September 2004):
    - no military judge serves any longer on the Security Forces Court, either at first instance or in appeal proceedings;
    - the judges are appointed to the “Security Forces Court” and the “Security Forces Court of Appeal” by an independent non-military judicial authority, the “Supreme Council of Judicature”, which is composed only of civilians and only appoints civilian judges;
    - civilians who have infringed section 26 and 29 of the “Military Offences and Penalties Law” are no longer tried by the military courts;
    - all cases concerned by this restriction of jurisdiction were removed from the military courts and transferred to civilian courts.

    The Turkish authorities have also recognised that a certain ambiguity remains in the amended law. The latter qualifies as “military judges” the civilian judges appointed by the “Supreme Council of The Judicature” to sit on the security forces courts. However, Article 41(3) of the same law dealing with the composition of the “Security Forces Court of Appeal”, refers to “two military judges” and “one civil judge”. The Turkish authorities have however clarified that this reference to two different categories of judges was due to the presence in this court of a civilian judge appointed before the legislative amendments: at his retirement, he will be replaced by a civilian judge appointed by the “Supreme Council of Judicature” and the wording of the Article concerned will be reviewed in due time.



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